[1] The purpose of Articles 50(1)1 and 50(1)3 and 172(1)2 of the former Agricultural Cooperatives Act and the meaning of “the purpose to be made in good faith” under Article 50(1)1 of the same Act

[2] In a case where acts under Article 50(1)1 and 3, which are subject to punishment under Article 172(1)2 of the former Agricultural Cooperatives Act, are conducted in order, whether the act of offering an expression of intent or promise to provide property gains, etc. is absorption into the act of offering, and whether the act of accepting an expression of intent to offer is absorption into the act of receiving an offer (affirmative)

[3] In a case where a member consenteds to provide property benefits, etc. for the purpose of having a specific candidate elected before the voting is completed in an election of an executive officer or representative of a local agricultural cooperative, and furthermore, a member actually provides property benefits, etc. according to a promise after the voting is completed, whether the act of offering property benefits, etc. and being provided with property benefits is subject to punishment pursuant to Article 172(1)2 and Article 50(1)1 and 3 of the former Agricultural Cooperatives Act (affirmative)

[1] Article 50(1)1 and 3, and Article 172(1)2 of the former Agricultural Cooperatives Act (amended by Act No. 10522, Mar. 31, 201; hereinafter the same) purport of the legislative purpose is to prevent the excessive and excessive solicitation of elections in the election of executives or representatives of local agricultural cooperatives, and to ensure the fairness of elections. Thus, “the purpose of being elected in advance” under Article 50(1)1 of the former Agricultural Cooperatives Act refers to an act that directly affects voting by the pertinent association members, etc., or an act that causes influence on the success of a specific candidate, by having a union member, etc., upon receiving money, goods, entertainment, other property benefits, or public or private positions (hereinafter collectively referred to as “property benefits and public or private positions”).

[2] In the case where an act under Article 50(1)1 and 3, which is subject to punishment under Article 172(1)2 of the former Agricultural Cooperatives Act (amended by Act No. 10522, Mar. 31, 2011), is conducted in order, the act of offering money, goods, entertainment, other property benefits, or a public or private position (hereinafter “property benefits and the public or private position”), and of offering and receiving property benefits, etc., the act of offering or promising to offer property benefits, etc., and the act of accepting the expression of intent to offer is absorption into the act of offering, and the act of accepting the expression of intent to offer, respectively.

[3] In light of the relevant legal principles as to Article 50(1)1 and 3 and Article 172(1)2 of the former Agricultural Cooperatives Act (amended by Act No. 10522, Mar. 31, 201; hereinafter the same), where a member expressed his/her intention to offer money, goods, entertainment, or other property benefits, or public or private positions for the purpose of having the member elected a specific candidate before the voting is completed in an election of an executive officer or representative of a local agricultural cooperative, and where a member expressed his/her intention to offer money, goods, entertainment, or other property benefits, or public or private positions (hereinafter collectively referred to as “property benefits and public or private positions”), and where property benefits, etc. are actually provided pursuant to a promise after the voting is completed, even if the voting is no longer likely to affect the voting activities of members, etc. or the candidate’s price price, the act of offering and offering property benefits, etc. is conducted for the purpose of having a specific candidate elected in the election, as the act of consenting to the offering.

[1] Articles 50(1)1 and 3, and 172(1)2 of the former Agricultural Cooperatives Act (Amended by Act No. 10522, Mar. 31, 201) / [2] Articles 50(1)1 and 3, and 172(1)2 of the former Agricultural Cooperatives Act / [3] Articles 50(1)1 and 3, and 172(1)2 of the former Agricultural Cooperatives Act (Amended by Act No. 10522, Mar. 31, 201)

[1] Supreme Court Decision 2008Do5965 Decided September 11, 2008 (Gong2008Ha, 1571) Supreme Court Decision 2010Do17153 Decided September 13, 2012 (Gong2012Ha, 1709)

Defendant 1 and one other

Prosecutor

Law Firm Sejong & 2 others

Seoul Northern District Court Decision 2013No87 decided April 18, 2013

The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.

The grounds of appeal are examined.

1. An act of offering money, goods, entertainment, other property benefits, or a public or private position (hereinafter collectively referred to as "property benefits, etc.") under Article 50 of the former Agricultural Cooperatives Act (amended by Act No. 10522, Mar. 31, 201; hereinafter the same) to a cooperative member or his/her family member, etc. for the purpose of getting himself/herself or a specific person elected or not elected as an executive officer or representative of a local agricultural cooperative (hereinafter referred to as "local agricultural cooperative") under Article 50 (1) 1 of the former Agricultural Cooperatives Act (amended by Act No. 10522, Mar. 31, 201; hereinafter the same shall apply) prohibited an act of offering money, goods, entertainment, or other property benefits or a public or private position (hereinafter referred to as "property benefits, etc.") and prohibited an act of offering such benefits or an act of demanding or arranging such offer in violation of Article 10 (1) 1 and 20 (1) through (20).

The legislative intent of the above provisions of the former Agricultural Cooperatives Act is to prevent the excessive competition of elections in the election of executive officers or representatives of local agricultural cooperatives and to ensure the fairness of elections (see Supreme Court Decisions 2008Do5965, Sept. 11, 2008; 2010Do17153, Sept. 13, 2012). The term "purpose to be elected" under Article 50 (1) 1 of the former Agricultural Cooperatives Act refers to an act that directly affects voting by a member, etc. who is provided with economic benefits or economic benefits, or an act that affects the resolution of a specific candidate or an act that affects the resolution of a specific candidate (see Supreme Court Decision 2008Do6233, Oct. 9, 2008).

However, in a case where an act under Article 50(1)1 and 3, which is subject to punishment under Article 172(1)2 of the former Agricultural Cooperatives Act, is conducted in order, the act of expression of intent or promise to provide property gains, etc. is interpreted as absorbing the act of offering, and the act of accepting the expression of intent to offer such property gains, etc., in a case where an act under Article 50(1)1 and 3, which is subject to punishment under Article 172(1)2 of the same Act, is provided with

In light of the relevant provisions and legal principles of the former Agricultural Cooperatives Act, in cases where a member consented to provide property benefits, etc. for the purpose of having a specific candidate elected at the election of an executive officer or representative of a local agricultural cooperative before the voting is completed, and furthermore, his/her promise is actually provided after the voting is completed, even if the voting becomes no longer likely to affect the voting by the union members or the candidate’s price, it is reasonable to interpret that the act of offering and receiving such financial benefits is made with the intention of having a specific candidate elected at the election, as it is with the intention of having a specific candidate elected at the election, and thus, it is reasonable to interpret that the act of offering and receiving such financial benefits is subject to punishment pursuant to Article 172(1)2 and Article 50(1)1 and 3 of the former Agricultural Cooperatives Act.

2. The summary of the facts charged of this case is as follows: Defendant 1 was elected from the above regional agricultural cooperative head on December 24, 2009 at the above regional agricultural cooperative head on the election of the head of the agricultural cooperative (hereinafter “the election of the head of the cooperative”). Defendant 2 was in office for 12 years from the beginning of 1998 to February 2, 2010 as the head of the above regional agricultural cooperative head for 12 years. Defendant 1 supported Defendant 2 as a candidate for the head of the cooperative head with the head of the cooperative, and Defendant 1 paid a certain amount of money each month after the election. Accordingly, on February 26, 2010, Defendant 1, a driver at the above regional office, provided KRW 300,000,000,000,000,000,000 won, from the above regional office, to the national bank name of the head of the cooperative head, and Defendant 2 provided KRW 301,00,000.

3. According to the legal principles as seen earlier, even if the time when Defendant 1 paid the sum of KRW 13.5 million to Defendant 2 on the election day of the head of the instant association, as shown in the facts charged of this case, if Defendant 2 supported Defendant 1, a candidate for the head of the instant association before the election day of the head of the instant association and Defendant 1 promised to pay the monthly amount to Defendant 2 before the election day, it can be deemed to have been made for the purpose of having the candidate for the head of the instant association elected at the election of the head of the association. Thus, it constitutes a violation of Article 50(1)1 and 3 as stipulated in Article 172(1)2 of the former Agricultural Cooperatives Act.

4. Nevertheless, the court below affirmed the judgment of the court of first instance that found the Defendant not guilty on the ground that the act of offering and receiving the above money constitutes a violation of Article 50 (1) 1 (a) and 3 of the former Agricultural Cooperatives Act, on the ground that (1) where the act of offering money was committed after the voting for the pertinent election was completed and the decision on whether it was committed after the election day, the act of offering money did not constitute an act of prohibiting under Article 50 (1) 1 (a) of the former Agricultural Cooperatives Act even if the act of offering money was committed before the election day, on the contrary to the presumption that the act of offering money was not committed prior to the election day.

Therefore, the court below erred by misapprehending the legal principles as to Article 172 (1) 2 and Article 50 (1) 1 and 3 of the former Agricultural Cooperatives Act and by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)