[1] The meaning of "pre-election campaign" and whether an ordinary, ordinary, or religious act is included in the pre-election (negative), and the criteria for its determination

[2] The elements for the exclusion of illegality of a contribution act that does not fall under the ordinary or official acts under Article 112(2) of the former Public Official Election and Prevention of Election Illegal Act

[3] Method of specifying the crime of violation of restriction on contribution

[4] The meaning of "a person eligible to enter in the electoral register" in the crime of purchasing an elector under Article 230 (1) 1 of the Public Official Election and Prevention of Election Illegal Act

[1] The term "prior election campaign" means any act necessary or favorable to obtain a vote for the purpose of winning an election of a specific candidate prior to the election campaign period in a specific election, or an active or planned act which can be objectively recognized as being intended to promote an election or defeat against an elector, among all acts necessary or unfavorable to a specific candidate for the purpose of defeating the election, and is excluded from here, and whether an ordinary, ordinary, or social, or social action is an ordinary or social action shall be determined in light of social norms, comprehensively taking into account all the circumstances such as the social status of the offender and the other party, the relationship between him/her, the motive, method, contents, and attitude of the act, etc.

[2] In light of the method of the former Public Official Election and Prevention of Election Illegal Act (amended by Act No. 7189 of Mar. 12, 2004), insofar as the offering of money and valuables falling under Article 112 (1) of the same Act does not constitute ordinary acts or official acts by the National Election Commission Regulations and the decision of the committee based on Article 112 (2) of the same Act, it constitutes the element of Article 257 (1) 1 of the same Act punishing the violation of the prohibition of contribution by candidates, etc., unless the act of offering money and valuables falls under the category of ordinary acts or official acts under Article 112 (2) of the same Act. However, if the contribution act by the candidates, etc. does not fall under the category of ordinary acts or official acts, if it can be deemed that it is within the scope of social order created naturally as one of the normal forms of living, it may be a kind of formal acts or official acts, and thus, it is reasonable to recognize the illegality of such a reason.

[3] The crime of violation of the restriction on contributions is specified if the election, the time and completion period of the entire contribution act, the place and method of the contribution act, and the electors of the counter-party who are the object of the restriction on contributions clearly do not specify the individual contribution act forming part of the crime.

[4] Article 230 (1) 1 of the Act on the Election of Public Officials and the Prevention of Election Illegal Act provides that "a person who has the right to vote as to the elector, who is the other party to a purchase, and is eligible to be recorded in the electoral registry, shall not be limited to the elector, and even before the preparation of the electoral registry, even before the preparation of the electoral registry." Even before the preparation date of the electoral registry, if it is determined based on the other party's resident registration status, age, and other circumstances, it is reasonable to view "a person eligible to be recorded in the electoral registry" as "a person eligible to be recorded in the electoral registry," and unlike this, by limiting the meaning of "a person eligible to be recorded in the electoral registry," only with the elector registered as a resident in the relevant constituency as of the preparation date of the electoral registry, in relation to the provision of entertainment prior to the preparation date of the electoral registry, it cannot be deemed that

[1] Article 254 (2) of the Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 7681 of Aug. 4, 2005) / [2] Articles 112 (1) and (2), and 257 (1) 1 of the former Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 7189 of Mar. 12, 2004) / [3] Articles 113 and 257 (1) 1 of the Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 7681 of Aug. 4, 2005), Article 254 (4) of the Criminal Procedure Act / [4] Article 250 (1) 1 of the Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 7681 of Aug. 4, 2005)

[1] Supreme Court Decision 2001Do2268 decided Jun. 29, 2001 (Gong2001Ha, 1812), Supreme Court Decision 2002Do1792 decided Jul. 26, 2002 (Gong2002Ha, 2156) / [2] Supreme Court Decision 96Do1768 decided Dec. 10, 1996 (Gong197Sang, 4466), Supreme Court Decision 99Do499 decided May 11, 199 (Gong1999Sang, 1202), Supreme Court Decision 2004Do6323 decided Feb. 18, 2005 / [3] Supreme Court Decision 93Do39395 decided Oct. 12, 199 (Gong39395 decided Oct. 39, 209)

Defendant

Prosecutor and Defendant

Attorneys Kim Hong-won et al.

Daegu High Court Decision 2005No39 decided March 31, 2005

The judgment below is reversed, and the case is remanded to the Daegu High Court.

1. As to the Defendant’s ground of appeal

(a) Occupation of each advance election campaign;

The term "prior election campaign" means any act necessary or favorable to obtain a vote for the purpose of election of a specific candidate for the purpose of obtaining or making another person obtain a vote for a specific election, or any act necessary or unfavorable to the contrary for the purpose of defeating a specific candidate, which can objectively be objectively recognized by the intention that the act is intended to promote the success or defeat in the election, among all acts necessary and unfavorable to the contrary for the purpose of defeating a specific candidate, and is excluded from here, and whether an act is ordinary, ordinary, or ordinary, or social intercourse shall be determined in light of social norms by taking into account all the circumstances, such as the social status of the actor and the other party, the relationship between the actor and the other party, the motive, method, contents, and attitudes (see Supreme Court Decision 201Do268, Jun. 29, 2001).

In light of the above legal principles and the records, the court below is justified in finding the defendant guilty of all the facts constituting an election campaign prior to the election campaign period, and there is no error in the misapprehension of facts against the rules of evidence or misunderstanding of legal principles as to advance election campaign due to violation of the rules of evidence or in the grounds of appeal.

(b) Violation of each contribution restriction;

Article 112 (1) 1 of the former Public Official Election Act (amended by Act No. 7189 of Mar. 12, 2004; hereinafter referred to as the "Public Official Election Act") provides money, goods, etc. falling under Article 112 (2) of the same Act, unless the act of offering such money, goods, etc. does not constitute ordinary or official acts according to the National Election Commission Regulations and its decision-making based on Article 112 (2) of the same Act, and Article 257 (1) 1 of the same Act provides that punishment for a violation of the prohibition of contribution by candidates, etc. shall meet the element of a crime under Article 257 (1) 1 of the same Act. However, where a contribution act by a candidate, etc. falls under a formal or official act prescribed in Article 112 (2) of the same Act, even if it does not fall under such act, if it can be deemed that it is within the scope of social order created historically, the illegality of such act may be dismissed.

In light of the above legal principles and the records, the court below is justified in holding that the defendant's act of providing the non-indicted 1 et al. with alcohol and al. for the purpose of aiding and abetting the election, and the relation between the defendant and the subject of each act of contribution, the amount of alcohol and al. which were provided as each act of contribution, and the contents of conversation made in the course of each act of contribution, etc., shall be considered as a customary living form which is within the scope of the social order which has been historically created, and it shall not violate the social rules, and there is no error of law such as misconception of facts against the rules of evidence or incomplete trial, or misunderstanding of legal principles as to the act of contribution under the Public Official Election Act.

In addition, the crime of violation of the Restriction on Contribution Act, even though it is not specifically specified for each act of contribution which constitutes part of the crime, it is specified if the election, the time and completion period of the entire act of contribution, the place and method of the act of contribution, and the electors of the rough target of the act of contribution are specified (see Supreme Court Decision 9Do335 delivered on October 12, 199). Thus, it cannot be deemed that the crime of violation of the Restriction on Contribution Act by December 5, 2003 of the decision of the court below is not specified.

2. As to the Prosecutor’s ground of appeal

A. Summary of the facts charged and the judgment of the court below

Of the facts charged in this case, the summary of the judgment of the court below is as follows: "the defendant: (a) from around 20:00 on August 10, 200, around 18:00, the (title omitted) meeting was held by 18:00 on the same day at the Gu-Si (hereinafter address omitted) Si (hereinafter address omitted); (b) the defendant provided entertainment equivalent to KRW 5.60,00 for the purpose of being elected to the second-class meeting with 7 persons, such as non-indicted 2, etc.; and (c) around 21:00 on August 29, 200, at the Gu-U.S. (name omitted); and (d) around 19:0 on the same day, at the former president of the Gu-U.S. Agricultural Federation, the former president of the Korea Agricultural Cooperatives, the non-indicted 3, non-indicted 4, and the non-indicted 6, and the non-indicted 4, non-indicted 78, and the non-indicted 13000."

Article 230 (1) 1 of the Public Official Election Act provides that a person who offers, expresses an intention to offer, or promises to offer money, goods, motor vehicles, transportation, entertainment, other property benefits, or public or private positions to a " elector" (including a person eligible to be entered in the relevant electoral register before the preparation of the electoral register) with the intention of making another person cast a vote or making another person elected or not elected, and Article 37 (1) of the same Act provides that a person shall be punished. Article 37 (1) of the same Act provides that a person who investigates an elector registered as a resident within his/her jurisdiction as of the basic date for preparation of the electoral register (22 days before the election day in cases of a National Assembly member) and prepares the electoral register within five days after the basic date for preparation of the electoral register. In full view of the above provisions, a person who is eligible to be entered in the electoral register under Article 230 (1) 1 of the Public Official Election Act refers to an elector within the relevant constituency as of the basic date for preparation of the electoral register, and thus, the Defendant cannot be found guilty of Article 230 (1).

B. The judgment of this Court

However, we cannot accept the above decision of the court below for the following reasons.

Article 230 (1) 1 of the Public Official Election Act provides that "a person who has the right to vote as to the elector, who is the other party to a purchase, and is eligible to be entered in the electoral register, but is also entitled to be entered in the electoral register before the preparation of the electoral register." Even before the preparation date of the electoral register, if it is determined based on the other party's resident registration status, age, and other circumstances, it is reasonable to view that "a person eligible to be entered in the electoral register" as "a person eligible to be entered in the electoral register" is a person eligible to be entered in the electoral register. However, by limiting the meaning of "a person eligible to be entered in the electoral register" only by the elector registered as a resident in the electoral register as of the basic date of the electoral register, in relation to the provision of entertainment prior to the preparation date of the electoral register, it cannot be deemed that the crime

Nevertheless, the court below acquitted the above facts charged on the ground that the offering of entertainment prior to the preparation date of the electoral register does not constitute a crime of purchasing to the elector under Article 230 (1) 1 of the Public Official Election Act. This part of the judgment below is erroneous in the misunderstanding of legal principles as to the meaning of a person eligible to be entered in the electoral register under Article 230 (1) 1 of the Public Official Election Act, and it has affected the conclusion of the judgment.

3. Conclusion

Therefore, the part of the judgment of the court below which rendered not guilty cannot be reversed. This is a concurrent crime under the former part of Article 37 with the remaining criminal facts, and one sentence should be reversed. Therefore, the entire judgment of the court below is reversed without examining the remainder of the grounds of appeal by the prosecutor, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Zwon-won (Presiding Justice)