[1] Whether a person who applied for intervention in an election after the termination of the petition due to the death of the petitioner has standing to seek nullification of the election (negative)

[2] The case holding that, in case where a person going out of a military election dies after filing a petition seeking confirmation of invalidity of the election with the election commission, since the above petition is terminated due to the above death, the person who filed an application for intervention in the above petition has no standing to sue in the lawsuit demanding confirmation of invalidity

[1] According to Article 221(1) of the Public Official Election Act and Article 16 of the Administrative Appeals Act, a third party who has an interest in the result of a petition may participate in the case after obtaining permission from the committee. According to Article 222(2) of the Public Official Election Act, in an election of the head of a local government, a petitioner (including elected persons) who is dissatisfied with the decision under Article 220(1) of the Public Official Election Act as to the validity of an election by the head of a local government may file a lawsuit with the chairman of the relevant election commission as the defendant. Meanwhile, in an election of the head of a local government, a lawsuit against the head of a local government is filed with the chairman of the relevant election commission. Since a lawsuit against the head of a local government is not a property right as a public lawsuit, it is not transferable, and even in its attribution or exercise, it is not a right to dispute by another person, such as a successor, if the candidate has lawfully filed an election lawsuit and the relevant lawsuit is terminated as a matter of course after the death of the petitioner.

[2] The case holding that, in case where a person going out of a military election dies after filing a petition seeking confirmation of invalidity of the election with the election commission, since the above petition is terminated due to the above death, the person who filed an application for intervention in the above petition has no standing to sue in the lawsuit seeking confirmation of invalidity of

[1] Articles 220, 221(1), and 222(2) of the Public Official Election Act; Article 16 of the Administrative Appeals Act; Article 35 of the Administrative Litigation Act / [2] Articles 220, 221(1), and 222(2) of the Public Official Election Act; Article 16 of the Administrative Appeals Act; Article 35 of the Administrative Litigation Act

Plaintiff 1 and three others (Attorney Park Ha-young, Counsel for the plaintiff-appellant)

The chairperson of the Si/Gun election commission (Attorney Yang Tae-soo, Counsel for defendant)

Intervenor (Attorney Kim Yong-hwan, Counsel for the intervenor-appellant)

November 30, 2006

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Recognizing that an election of head of a Gun held on May 31, 2006 is null and void.

1. Basic facts

A. On May 31, 2006, the fourth nationwide local election, which was implemented on May 31, 2006, the Defendant Intervenor (hereinafter “ Intervenor”) filed an application for each candidate registration with the Defendant as a candidate for the Democratic Party at that time, and the deceased Non-Party’s candidate at that time as of May 16, 2006, as of May 24, 2006.

B. As a result of considering whether the intervenor is a democratic party member, the defendant's reply from the democratic party that the intervenor is a democratic party member was presented from May 29, 2006 to the Central Election Management Committee on May 29, 2006 to the proposal for decision on the invalidation of the candidate's registration against the intervenor's secret voting, and as a result, the above decision was rejected as a result of being added to the secret voting of the defendant among the members of the Central Election Management Commission members, together with 4, 2, and 2 votes, and the above decision was

C. Ultimately, on May 31, 2005, the Intervenor, the deceased soldiers, and the deceased soldiers were all candidates, and on May 31, 2005, 2005, 2,439 marks 2,4, 10,806 marks 13,934 marks issued by the Intervenor, who was a candidate for the Democratic Party, and 13,934 marks issued by the Intervenor, was decided as the elected person on June 1, 2006 (hereinafter the Intervenor refers to the elected person according to the circumstances).

D. On June 12, 2006, the Deceased filed a petition to seek the invalidity of an election of head of Gun to the Jeonnam-do Election Commission (2006 Jeonnama1) for the reason that the elected person, who is a member of the Democratic Party, had an illegal cause to go out of the National Assembly, and caused an impact on the election result.

E. However, while the above appeal procedure is underway, the deceased died on July 24, 2006, the plaintiffs and non-party 1, 2, 3, 4, 5, 6, 7 applied for participation in the above appeal on July 26, 2006.

F. On July 31, 2006, the Jeonnam-do Election Commission rendered a decision to the effect that “the instant petition was completed upon the death of the petitioner on July 24, 2006.”

[Basis] Facts without dispute, Gap evidence 4-1, 2, Gap evidence 9-1, 2, Gap evidence 10, 13, Eul evidence 1, Eul evidence 2-1, Eul evidence 3, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

(1) On January 24, 2006, the elected submitted an application for the candidate for the election of public officials to the central party of a democratic party, and submitted a written pledge signed and sealed as necessary documents, and the application forms for joining the National Assembly. In addition, on January 25, 2006, the elected paid KRW 500,000,000 for the receipt of the application form for official appointment. On February 16, 2006, the application form for joining the National Assembly was sent to the Democratic Party, which was decided to be admitted, and was registered on the roster of party members.

(2) On February 17, 2006, the elected person lost the status of a state public official upon his dismissal from office, and held on February 27, 2006, held on February 27, 2006, held a campaign speech and held as a candidate for a democratic head of a Gun police station and worked as a candidate for a democratic head of a Gun or a party member.

(3) On March 6, 2006, the elected person declared on March 6, 2006 that the application for postponement of the public opinion poll date for the decision of the candidate for democratic head of a Gun has not been accepted, and thereafter registered as a candidate to which he belongs.

(4) However, the elected person registered as a candidate without submitting a report of resignation from a democratic party to the district party or to the central party and without maintaining the status of a member of the democratic party. This is null and void pursuant to Article 52(1)4 and Article 49 Subparag. 6 of the Public Official Election Act, which has affected the result of the election. Accordingly, the election of head of the Gun, which was implemented on May 31, 2006, is null and void.

B. The defendant and the intervenor's assertion

(1) The instant lawsuit is brought by a person who has no standing to sue, and must be dismissed as it is unlawful in determination of the requirements for the lawsuit.

(2) The elected person, upon receipt of a proposal for strategic success system from the chairman of the Special Committee on the Management of the Democratic Party Personnel, clearly indicates that the elected person is still a public official status at the time, and if it is not a strategic success system in order to find out the possibility of the strategic success for the elected person, he/she shall not be meaningful, and only have the documents pertaining to the strategic success which are entrusted to the Director General of the Democratic Party, and there is no application for a routing nomination to the Central Party of the Democratic Party or submitted the application for the regular membership, and the above documents related to the routture have lost its effect by the declaration of intent of the elected person's withdrawal of the strategic success. The name of the elected person is recorded on the roster of party members at his/her own discretion without due process, and the elected person is a current state public official at the time of registration on the roster of party members, and as a member of a political party is not a party under relevant laws

(3) Therefore, the elected person cannot be deemed to be a democratic party member at the time of the registration of the candidate for the head of Sungsung-gun on May 26, 2006, and therefore, the elected person cannot be deemed to be an illegal ground that affected the election of this case, which affected the elected person's registration as a candidate

(c) Markets:

According to Article 221(1) of the Public Official Election Act and Article 16 of the Administrative Appeals Act, a third party who has an interest in the result of a petition may participate in the case with permission from the committee. According to Article 222(2) of the Public Official Election Act, in an election of the head of a local government, a petitioner (including elected persons) who is dissatisfied with the decision under Article 220(1) of the Public Official Election Act on the validity of an election by the head of a local government may file a lawsuit with the chairperson of the relevant election commission as the defendant. On the other hand, in an election of the head of a local government, there is no right to dispute as a civil lawsuit, and there is no transfer of the right to dispute as a civil lawsuit, and even in its attribution or exercise, it cannot be deemed that the procedure of dispute is succeeded by another person, such as a heir, etc., who has died after the candidate lawfully files an election lawsuit, and the relevant litigation case is naturally terminated upon the death of the petitioner.

However, the plaintiffs filed an application for participation in the above appeal on July 26, 2006 after the death of the deceased. Thus, the plaintiffs cannot be deemed to have standing to sue in the lawsuit of this case.

3. Conclusion

If so, the instant lawsuit is filed by a person who has no standing to sue and is unlawful, and thus, it is decided as per Disposition by the assent of all participating Justices.

Judge Choi Full-time (Presiding Judge)