[1] In a case where a person who established a private organization prohibited under Article 87(2) of the Public Official Election Act provides money, goods, and other property benefits to a private organization, whether a separate violation of Article 115 or 230(1)2 of the Public Official Election Act is established (negative with qualification)

[2] Whether an employee of the Election Commission bears the duty to present his/her identification card when entering a place suspected of election crimes pursuant to Article 272-2 of the Public Official Election Act (affirmative), and whether the violation of Article 272-2 (6) is established due to the act preventing entry on the ground of non-issuance of identification card (negative)

[1] In a case where the defendant, who is subject to punishment under Article 255(1)11 of the Public Official Election Act by establishing a private organization prohibited under Article 87(2) of the same Act, provided money, goods, and other property benefits to the private organization, it is not always excluded from the subject of Article 230(1)2 of the Public Official Election Act or Article 115(2) of the same Act. However, considering the following circumstances of the establishment of such private organization, the circumstances leading up to the establishment of the organization, the degree of the defendant's participation, the relationship with the private organization or the defendant's position, the time when the defendant provided property benefits, etc. to the private organization, the degree of the time when the defendant provided property benefits, etc. to the private organization, the use of the pertinent property benefits, and other circumstances, it is ordinarily included in the series of acts establishing the private organization itself, and thus there is no need to punish it separately from the establishment of the private organization, or it is not reasonable to pay the money, goods, and other property benefits within the scope of Article 15(2).

[2] As an exception to the principle of warrant, Article 272-2 of the Public Official Election Act provides that a member or employee of the Election Commission shall have the authority to enter a place suspected of election crimes regardless of the intention of the relevant person. Article 256(4)12 of the Public Official Election Act provides that criminal punishment shall be imposed on an act interfering with entry. In light of the legislative purport and content thereof, in order for a member or employee of the Election Commission to lawfully enter the relevant place based on Article 272-2(1) of the Public Official Election Act to lawfully enter the relevant place, the substantive and procedural requirements stipulated in Article 272-2(6) must be met. If a member or employee of the Election Commission does not have the authority to lawfully enter the relevant place without some of such requirements, even if a member or employee of the Election Commission intends to restrain entry to the relevant place, it does not necessarily constitute an interference with entry of a member or employee of the Election Commission. Meanwhile, the same shall apply where a member or employee of the Election Commission does not have the authority to present a certificate indicating his/her status to a related person.

[1] Articles 87(2), 115, 230(1)2, and 255(1)11 of the Public Official Election Act / [2] Articles 256(4)12, 272-2(1) and (6) of the Public Official Election Act, Article 146-3(3) of the Rules on the Management of Public Official Election Act

Defendant 1 and two others

Prosecutor

Seoul High Court Decision 2008No862 decided June 20, 2008

All appeals are dismissed.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

A. As to the Defendant’s act of establishing a private organization under Article 87(2) of the Public Official Election Act, which is subject to punishment under Article 255(1)11 of the same Act, and of providing money, goods, and other property benefits to the pertinent private organization, such act is not always excluded from the subject of application of Article 230(1)2 of the Public Official Election Act or Article 115(2) of the same Act on the ground that the purpose of establishment of the pertinent private organization or “the relationship between the subject of providing such property benefits and the other party.”

However, considering the circumstances of the establishment of such private organization, the degree of the defendant's participation in the establishment, the relationship with the defendant or the defendant's position, the time and circumstances of the defendant's provision of property benefits, etc. to the private organization, the value of property benefits, etc., the use of such property benefits, and other circumstances, it is reasonable to deem that the act of the defendant who established such private organization is ordinarily included in the series of acts that establish the private organization, and it is not necessary to punish him/her separately from the act of the establishment of the private organization, or it constitutes an act that provides money, goods, or other property benefits within the reasonable and acceptable value to pay for the funds required for the operation expenses, etc. in accordance with the internal regulations of the private organization or the duties under the operational practices, if it constitutes an act that provides the private organization with money, goods, or other property benefits within the scope of reasonable and acceptable value, Article 230 (1) 2 (b) of the Public Official Election Act cannot be applied to such act.

B. The court below acknowledged the facts as stated in its reasoning based on the evidence duly employed, and determined that the act of Defendant 1, who established the private organization of the 17th presidential election, to be a candidate, leased the office of this case to 50 million won on March 15, 2007 and provided it to the National Branch of the Korean Branch of the 21 Mountain Association or the National Federation's office space to be used by various groups such as the National Branch of the 21 Mountain Association, etc., or the officers and employees of the National Federation, as an election organization for the purpose of election campaign, provided free of charge the goods or office space to be used by the above defendant, who established the said mountain association, cannot be said to constitute an act of inducing the purchase and understanding of the organization as provided in Article 230 (1) 2 of the Public Official Election Act or an act of act of contribution as provided in Article 115 of the same Act.

In light of the above legal principles and records, although there are some inappropriate parts in the reasoning of the judgment of the court below, Defendant 1's act of offering the office of this case constitutes a series of acts ordinarily included in the establishment of the above private organization, or the act of offering the office of this case was conducted in lieu of membership fees or support payments within the scope acceptable to cover the fund required for operating expenses of the above private organization, which is the founder of the above private organization and the chairperson of the above defendant. The judgment of the court below is just and acceptable in its conclusion, and there is no violation of the principle of legality, violation of the rule of experience and logic, or violation of Article 230 (1) 2 (b) of the Public Official Election Act or 115 of the same Act, as alleged in the ground of appeal.

2. Regarding ground of appeal No. 2

A. Under the Public Official Election Act, when a member or employee of the Election Commission intends to enter the relevant place on the grounds that the grounds prescribed in Article 272-2(1) of the Public Official Election Act are recognized, the public official shall present an identification card indicating his/her status to the relevant person and explain his/her position and name to the relevant person (Article 272-2(6)). Here, “a certificate indicating his/her status as a member or employee of the Election Commission” shall be based on Article 146-3(8) and attached Form 63 of the Rules on the Management of Public Official Election, and may be substituted by a member identification card or a public official identification card issued by the competent commission (Article 146-3(8) of the Rules on the Management of Public Official Election), and no person shall interfere with the entry of a member or employee of the Election Commission pursuant to Article 272-2(1) of the Public Official Election Act (Article 272-2(3) of the Public Official Election Act); and any person who interferes with such entry shall be punished by imprisonment for not more than one year or by a fine not exceeding two million won (Article 256(2).

As an exception to the principle of warrant, in light of the legislative purport and contents of the above provision of the Act, which provides that a member or employee of the election commission shall have the authority to enter the relevant place regardless of the intention of the related person, and criminal punishment for the act interfering with the entry, etc., the member or employee of the election commission must meet the substantive and procedural requirements provided for in Article 272-2(1) of the Public Official Election Act in order for the member or employee of the election commission to lawfully enter the relevant place on the basis of Article 272-2(1) of the Public Official Election Act. A member or employee of the election commission does not have the authority to lawfully enter the relevant place when he/she fails to meet all such requirements, and even if he/she fails to meet all such requirements, the member or employee of the election commission does not have the authority to lawfully enter the relevant place. In such a situation, the act

In addition, the presentation of identification to a related person, among the requirements stipulated in Article 272-2(6) of the Public Official Election Act, does not change even if the person concerned was already aware of the fact that he/she is a member or an employee of the Election Commission, in accordance with the prescribed form, or a member identification card or a public official identification card issued by the competent commission.

B. Based on the evidence duly admitted, the lower court determined that the Defendants’ failure to comply with the above request by the Nonindicted Party, etc. was not a crime of interference with entry to the Election Commission under the Public Official Election Act, on the ground that, on May 21, 2007, four employees, including the Nonindicted Party, etc., (i) directed of the Seoul Election Commission and the Nonindicted Party, etc., who were affiliated with the Seoul Election Commission, requested the Defendants to enter the venue of the Olympic Convention site in the Olympic Convention Center in Songpa-gu, Songpa-gu, Seoul, on the ground that the Nonindicted Party, etc. did not present an identification card in the form of a certificate provided for in Article 272-2(6) of the Public Official Election Act, Article 146-3(8) of the Rules on the Management of Public Officials Election, or a public official certificate issued by the Seoul Election Commission.

In light of the above legal principles and records, the selection of evidence, fact-finding, and judgment of the court below are justified, and there are no errors in the misapprehension of legal principles as to the obstruction of entry to an employee of the Election Commission under the Public Official Election Act, as alleged in the grounds of appeal.

3. As to the third ground for appeal

The court below found the facts as stated in its reasoning based on the evidence duly admitted, and determined that the non-indicted 1's act of failing to comply with the above request under Article 256 (4) 12 of the Public Official Election Act cannot be deemed to constitute a crime of failing to comply with the above request under Article 256 (4) 12 of the Public Official Election Act, in addition to the non-indicted 1's act of failing to comply with the request under the telephone on June 13, 2007, as shown in this part of the facts charged.

In light of the records, the above selection of evidence, fact-finding, and judgment of the court below are justified, and there is no error of law such as misunderstanding of legal principles as to non-compliance with the request for submission of materials under the Public Official Election Act, as alleged in the

4. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)