[1] The meaning of and criteria for determining election campaigns under Article 58 (1) of the Public Official Election Act

[2] The case holding that an act of maliciously participating in the election campaign in favor of voters who are waiting for voting in front of the polling station on the election day constitutes a planned and dynamic act for the election in the election, which constitutes an election campaign under the Public Official Election Act

[3] In a case where the court recognizes the date and time of the crime as different from the written indictment, whether it is necessary to amend the indictment

[4] In interpreting the meaning of election campaign, whether Article 254(1) of the Public Official Election Act violates the principle of clarity in the principle of no punishment without law (negative)

[5] Whether punishing all election campaigns on the election day of Article 254 (1) of the Public Official Election Act more severe than the crime of prior election campaign is an excessive violation of freedom of election or a violation of the principle of proportionality (negative)

[1] Article 58 (1) of the Public Official Election Act / [2] Articles 58 (1) and 254 (1) of the Public Official Election Act / [3] Articles 254 (4) and 298 of the Criminal Procedure Act / [4] Article 254 (1) of the Public Official Election Act, Article 12 (1) of the Constitution / [5] Articles 59 and 254 (1) of the Public Official Election Act, Article 37 (2) of the Constitution

[1] Supreme Court Decision 2005Do301 Decided October 14, 2005 (Gong2005Ha, 1818), Supreme Court Decision 2006Do9043 Decided March 30, 2007 (Gong2007Sang, 655) / [3] Supreme Court Decision 82Do2156 Decided December 28, 1982 (Gong1983Sang, 390), Supreme Court Decision 91Do65 Decided March 27, 191 (Gong191, 1318), Supreme Court Decision 91Do723 Decided June 11, 191 (Gong191, 1962)

Defendant

Defendant

Law Firm Malibavia et al.

Daejeon High Court Decision 2007No28 Decided April 27, 2007

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. An election campaign under Article 58(1) of the Public Official Election Act refers to all acts that are necessary or favorable for the election or winning of a specific candidate and that can be objectively recognized with the objective of promoting the election or defeat of a specific candidate. Specifically, in determining whether an act constitutes an election campaign, it shall simply observe not only the name of the act, but also the form of the act, i.e., the time, place, method, etc. of the act, and determine whether the act is an act accompanying the purpose of promoting the election or defeat of a specific candidate (see Supreme Court Decision 2006Do9043, Mar. 30, 2007).

According to the reasoning of the judgment below, the court below acknowledged that the defendant was able to take 10 electors and 10 electors, such as the time, place, and method of the above act, relationship with the defendant and the person who was maliciously engaged in the election, and subsequent actions of the defendant, etc. in consideration of the time, place, and method of the act, relationship with the defendant and the person who was maliciously engaged in the election, etc., the defendant's act constitutes an election campaign as a planned and functional act for the defendant to be elected in the election, and it cannot be viewed as an ordinary, ordinary, or social act. Upon examining the relevant evidence in accordance with the above legal principles and records, the above judgment of the court below is just, and there is no violation of the rules of evidence or rules of experience as alleged in the grounds of appeal, or misapprehension of the legal principles as to the election campaign as provided in Article 254 (1) of the Public Official Election Act, and there is no violation of the rules of evidence or rules of experience as to election campaign as provided in Article 254 (1) of the Public Official Election Act.

On the other hand, the court below held that the defendant's act was also an election campaign prohibited under Article 254 (1) of the Public Official Election Act beyond ordinary, ordinary, and social acts on the grounds as stated in its reasoning, even though the defendant's action was changed. This part of the judgment is a family and additional judgment of the court below, and as long as the judgment of the court below is just, the judgment of the court below is not affected by the conclusion of the judgment, and there is an error of law by misunderstanding the legal principles as to election campaign under Article 254 (1) of the Public Official Election Act in this part of the judgment.

2. In general, the date and time of the crime is not a requirement for the specification of the facts charged, and the date and time of the crime recognized by the court is likely to cause substantial disadvantages to the defendant's exercise of his/her right to defense, barring special circumstances, such as the fact that the time and time of the crime stated in the indictment and the time and time of the crime recognized by the court are long at intervals, and thus, are likely to cause substantial harm to the defendant's exercise of his/her right to defense (see Supreme Court Decision 82Do2156, Dec. 28, 1982).

The court below maintained the judgment of the court of first instance that recognized the time of the crime stated in the indictment of this case by changing the " around 10:40 on May 31, 2006" to " around 09:50 on May 31, 2006," without following the amendment procedure of the indictment, and according to the records, the error in the indictment was corrected according to the time of the crime recognized by objective evidence, and the difference between the time of the crime is only 50 minutes, and each crime is not compatible with the facts charged of this case depending on the different time of the crime, and the defendant does not dispute the facts charged of this case since the first instance court, and thus, it does not seem that there was a substantial disadvantage to the defendant's exercise of his right to defense. Ultimately, the above disposition of the court below is just, and there is no violation of law by misunderstanding the legal principles on the amendment

Supreme Court Decision 91Do723 delivered on June 11, 1991 and Supreme Court Decision 92Do1824 delivered on October 27, 1992 cited in the ground of appeal is not appropriate to be invoked in the instant case on the grounds that there are different cases.

3. In light of the legislative purpose, overall contents, structure, etc. of the penal provisions, if it is possible to find a reasonable interpretation standard to specify or limit the types of acts meeting the elements of punishment as a result of ordinary people’s understanding and judgment with the ability to discern things, it does not go against the principle of clarity in penal provisions (see Supreme Court Order 2004Hu41, Mar. 12, 2004). Article 254(1) of the Public Official Election Act provides that a person who conducts an election campaign shall be punished before the election day close on the election day. Article 58(1) of the Public Official Election Act provides that an election campaign means an act to be elected or made another person elected or not impossible: Provided, That it means an act to open a simple opinion and expression of opinion on election, preparation for election campaign and preparation for election campaign, simple support and expression of opinion and expression of opinion on the recommendation of candidates of political parties, and ordinary political party activities are not deemed an election campaign act of a specific candidate, and thus, it refers to an act that can be objectively construed and permitted if any person has an objective purpose of statutory interpretation or unlawful act.

On the other hand, the restriction of the period of election campaign itself does not excessively limit the political fundamental rights, and the specific period of election campaign is left to the legislative policy, so it cannot be deemed unconstitutional unless it is deemed that the specific period of election campaign excessively limits the freedom of election campaign so that it can not be seen as unconstitutional. In light of the fact that Article 59 of the Public Official Election Act allows election campaign only before the election day, and that Article 254 (1) of the Public Official Election Act punishs a person who has carried out election campaign on the election day of the election day, the election campaign on the election day is likely to have the most direct influence on the choice of the voters, so it is highly likely that the election campaign is permitted by the candidates if it is allowed to do so. Therefore, the purpose of prohibiting the exercise of voting rights is to ensure that the exercise of voting rights is carried out in an orderly and orderly manner by maintaining the peace and cooling situation on the election day, and that there is a defect that does not adversely affect the freedom of electors and rational decision making by election campaign on the election day, the attitude of election, realistic necessity of election in Korea, etc.

In addition, Article 254(1) of the Public Official Election Act provides that a person who conducts an election campaign is punished more heavily than the crime of ordinary prior election, regardless of the type of the election campaign before close on the election day. This is because the election campaign at the election day is more likely to obstruct the right choice of voters or impair the peace of voting progress, and thus, its illegality is more severe than the ordinary prior election. As such, Article 254(1) of the Public Official Election Act uniformly and relatively heavy punishment for all the election campaign, it cannot be said that it excessively infringes on the freedom of election campaign or violates the principle of proportionality.

Therefore, we cannot accept the argument in the grounds of appeal that Article 254 (1) of the Public Official Election Act is in violation of the Constitution.

4. In the instant case where the Defendant was sentenced to a fine, the reason that the lower court’s sentencing was excessive does not constitute a legitimate ground for appeal.

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

Justices Lee Hong-hoon (Presiding Justice)