[1] Whether the ‘business relation' of the pertinent act is required in order to fall under the ‘business trip activity other than ordinary business affairs' during the election period prohibited by Article 86 (1) 6 of the Election of Public Officials and the Prevention of Election Illegal Act (affirmative)

[2] The case holding that the act of the defendant, who is in office as an auditor of the Korea Min Il-young Corporation, committed at a personal level that the defendant, while on duty, contributed to the opening ceremony of the election office of a political party to which he belongs before his office was held, and introduced the name thereof, and used the government cars, does not constitute a violation of Article 86 (1) 6 of the Act on the Election of Public Officials and the Prevention of Election Illegal Act, since he did not constitute an act of cutting down the office ceremony of the above election office regardless

[1] In order to constitute a business trip during the election period prohibited by Article 86 (1) 6 of the Act on the Election of Public Officials and the Prevention of Election Malpractice, an act of a public official, etc. having an influence on the election, such an act shall be deemed as a part of ordinary business performance in substance, on the premise that the act has the appearance of a business trip related to the pertinent public official, etc. in the name, form, or horse, etc.

[2] The case holding that the act of the defendant, who is in office as an auditor of the Korea Minting and Closing Corporation, committed on a personal level that the defendant, while on duty, was involved in the opening of the election office of a political party to which he belongs prior to the appointment of the above auditor while on duty and introduced the name of the office, and used the official cars to reduce the awareness of opening the office of the above election office regardless of the duties as the auditor at all, does not constitute a violation of Article 86 (1) 6 of the Election of Public Officials and the Prevention

[1] Article 86 (1) 6 of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [2] Articles 86 (1) 6 and 256 (2) 1 (f) of the Act on the Election of Public Officials and the Prevention of Unlawful Election

Defendant

Defendant

Law Firm Egsan, Attorneys Seo-ok et al.

Daejeon High Court Decision 2004No530 decided April 15, 2005

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

1. Summary of the judgment below

The summary of the facts charged of this case is that the defendant, who is a full-time officer of the Korea Min Il-gu Corporation, a government-invested institution under the Framework Act on the Management of Government-Invested Institutions, was in violation of Article 86 (1) 6 of the Act on the Election of Public Officials and the Prevention of Election Unlawful Act (hereinafter referred to as the "the provision of this case") by engaging in a business trip other than normal business during the election period, such as the person who attended from April 14:0 to 14:20 on April 2, 200 the ceremony of opening the election office for the non-indicted 1, who is a candidate of the Daejeon-gu Seoul Special Metropolitan City, the non-indicted 10 participants attending the election office and attending the meeting of the non-indicted 10 participants.

On the facts charged, the court below held that the prior meaning of the "business trip (business trip)" means the "act of leaving outside to work" on the premise of business relevance, or that the "act of leaving outside to work" is prohibited from an act that affects the election of the public officials, etc." The prohibited act of Article 86 of the Official Election Act is listed as the prohibited act of "act that affects the election of the public officials," and it is not a requirement of business relevance other than that of paragraph (1) 7 of the same Article, and it does not include a case of "act that does not affect the election of the public official," and it does not constitute an act that does not affect the election of the public official, and it does not constitute an act that does not affect the election of the public official or the public official of the public official of the public official of the public service of the public service of the public service of this case for the reason that it is a violation of the concept of "act that does not affect the election of the public official of the public service of this case, and it is an act that does not have an ordinary relation to the election of the public official."

2. Judgment of the Supreme Court

A. Article 58(2) of the Election Campaign Act provides that, in principle, in order to ensure the fairness of election by strictly regulating various illegal election campaigns, in order to ensure the political rights of citizens and the freedom of expression in elections to the maximum extent possible, an election campaign that is not individually restricted or prohibited by the public election law instead of a comprehensive restriction or prohibition (Article 58(2)). As part of the regulation on illegal election campaigns, the Act on the Election of Public Officials excludes public officials, etc. from those who can engage in election campaigns in order to guarantee the political neutrality of their duties and to prevent any harm to public elections that infringe on the fairness and freedom of election (Article 60(1)), while punishing public officials who engage in election campaigns using their status (Article 85(1)), it is prohibited as acts affecting a standardized election and affecting the fairness of election even if they did not reach such election campaign (Article 86(1)), and Article 86(1) through (4) of the Act on the Election of Public Officials (Article 56(2)5)5 of the same Act provides that the Act shall be punished as crimes against various types of illegal election Campaign.

B. Under the above background, it is reasonable to view that the concept of ‘business trip other than ordinary business trip' prohibited by the provision of this case as an act affecting the election during the election period is necessary in light of the following circumstances. On the other hand, it is difficult to accept the judgment of the court below that the act constitutes a violation of the provision of this case in principle if it is an act affecting the election regardless of business relation.

First, with respect to the grammatic interpretation of the provision of this case, the concept of ‘business trip' contained in the various Korean language advance (Evidence 2 1 - 10) submitted as evidence is defined as ‘a business trip', ‘a business trip going outside the place where he works for a company or a workplace', ‘a visit outside the place where he works for a company or a workplace' or ‘a temporary dispatch outside the place where he works for a company or a workplace', ‘a visit or dispatch outside the place where his duties are performed', and ‘a business trip outside the country or temporary dispatch' is defined as ‘a business trip outside the country or temporary dispatch', and ‘a business trip' is defined as ‘a business trip outside the country or temporary dispatch' in light of the context of the business trip and an example, combined language (explosion equipment, branch office, etc.) and the meaning of ‘a business trip outside the country' and the meaning of ‘a business trip outside the country' in question and the meaning of ‘a business trip outside the country' in question and there are no reasonable grounds for its interpretation.

Second, in light of the legislative purport of the provision of this case, since freedom of election campaign under the current Public Election Act is exceptionally permitted and as long as it is subject to punishment, it can only be subject to punishment. Therefore, even if it can be evaluated that an act of a person holding status as a public official is likely to substantially affect the election, it may not be punished for a violation of Article 60 or 85 of the Public Election Act even if such act is not included in the types of acts under Article 86 (1) 1 through 7 of the Public Election Act, it may not be punished for a violation of Article 86 of the Public Election Act. ② In the case of subparagraphs 1 through 4 of Article 86 (1) of the Public Election Act, it is difficult to interpret that the act constitutes an illegal election campaign, and thus, it may not be viewed that it constitutes a violation of Article 256 (1) 7 of the Public Election Act, which is a separate provision from the case of a public official under Article 256 (1) of the Public Election Act.

C. Thus, in order to be an act of violating the provision of this case, the act of this case must be acknowledged as part of ordinary business performance in its substance under the premise that the act has the appearance of business trip related to the official duties of the pertinent public official, etc. In addition, it is clear in the record that the defendant's act of this case was conducted in an individual level, regardless of his duties as an auditor of the Korea Min Il-gu Corporation, and as long as the court below acknowledged it, the defendant's act does not constitute an act of violating the provision of this case, even though it does not constitute an act of violating the provision of this case. Thus, the court below's judgment which found the defendant guilty of the facts charged of this case by interpreting or expanding the concept of the "business trip" beyond the scope of possible meaning of literal and purpose interpretation, and it is erroneous in the misapprehension of the principle of no punishment without the law requiring clarity of penal law or its strict interpretation. The ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the judgment of the court below is reversed, 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.

Justices Park Jae- Jae (Presiding Justice)