[1] The purpose of prohibiting door-to-door visits under Article 106 (1) of the Public Official Election Act and the standard for determining the establishment of crime of door-to-door visits

[2] The meaning of "house-to-house visit" under Article 106 (1) of the Public Official Election Act

[3] Whether the act of visiting a hospital room for election campaign constitutes a "house-to-house visit" restricted by Article 106 (1) of the Public Official Election Act (affirmative)

[1] The purpose of prohibiting door-to-door visits under Article 106 (1) of the Public Official Election Act is that: (a) dialogue at a place that is not open to the general public is likely to interfere with the cooling and reasonable judgment of electors by putting it on the emotional and non-essential elements, such as doubt or recognition; (b) there is a possibility that unlawful acts such as purchase and Inducement by interest, etc. through the passage of a closed place may be committed; and (c) there is a risk of infringing the peace of private life as a result of being exposed to any unexpected visits of candidates who are not known from the standpoint of the elector; and (d) there is a risk that it is difficult to guarantee the substantial equality of election campaigns among candidates, such as the time of visit, the number of visitors or visitors, the scope of visitors, the relationship with visitors and visitors, and all the circumstances such as speech and behavior at the place where the above visit is likely to be committed, considering social norms and social norms, it shall be deemed that there is any danger that the above act of door-to-door visits is established.

[2] The typical example of door-to-door visit places for which the crime of door-to-door visit is constituted is called “house-to-door.” However, in light of the provisions of Article 106(1) and (2) of the Public Official Election Act, the term “house-to-door visit” where the crime of door-to-door visit is constituted includes a place other than “road, road, market, store, multiple, large room, or other open places to which many and unspecified persons pass,” and even if the person under door-to-door visit temporarily resides, it includes a closed place where free access by many and unspecified persons is restricted.

[3] The act of visiting a hospital room constitutes “house-to-house visit” as stipulated in Article 106(1) of the Public Official Election Act, and thus, the act of visiting a hospital room for election campaign constitutes “house-to-house visit” restricted by the above provision.

[1] Article 106 (1) of the Public Official Election Act / [2] Article 106 (1) of the Public Official Election Act / [3] Articles 106 (1) and 255 (1) 17 of the Public Official Election Act

Defendant

Prosecutor

Sushee

Attorney Park Jae-hwan

Daegu District Court Decision 2006Gohap784 Decided January 5, 2007

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 900,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

1. Summary of grounds for appeal;

A. Meritorious of legal principles

In light of the legislative purport and form that restricts door-to-door visits under Article 106 of the Public Official Election Act, and the entrance room of a hospital is not a place where anyone freely enters and leaves the hospital. In light of the fact that the entrance room of this case also constitutes “house-to-house” that restricts visits under Article 106(1) of the Public Official Election Act, the court below acquitted the principal facts of this case on the ground that this does not constitute “house-to-house”. Thus, the court below erred by misapprehending the legal principles on the concept of “house-to-house visit” under the Regulation on Restriction on door-to-House Visit, thereby affecting the conclusion of the judgment.

B. The point of unfair sentencing

Even if the primary facts charged in the instant case were not guilty, in light of the circumstance where the Defendant visited the sick room where Nonindicted Party 1 was hospitalized, etc., the lower court’s delay of sentencing a fine of KRW 500,000 to the Defendant is unreasonable.

2. Determination:

A. Summary of the facts charged in this case

The Defendant was elected after going to ○○○, a candidate for the Gyeongbuk-do Council member (name omitted), in the fourth local election of Dong-si, which was implemented on May 31, 2006, at the fourth local election of Dong-si, the Defendant was elected, and anyone cannot visit each house for an election campaign.

At around 15:20 on January 6, 2006, Nonindicted 4, a resident of the above constituency, who was hospitalized in the 1018 room at the Nam-gu Daegu-dong (name omitted) Hospital, and Nonindicted 4, a resident of the above constituency, who was hospitalized in the 1018 room, was above Dong for about 10 minutes, such as "the head of the Dong," and continued to find Nonindicted 1, a resident of the above constituency, who was hospitalized in the 645 room of the same hospital, who was hospitalized in the 645 room of the same hospital, and the head of the Dong, who was the resident of the above constituency, was in the 652 room of the same hospital, and the head of the Dong was 5 minutes, and the head of the Dong was 5 minutes, and the head of the Dong, who was hospitalized in the 652 room of the same hospital, notified Nonindicted 3, a resident of the above area, who was hospitalized in the 652 room of the same hospital, and the head of the Dong and the head of the above 136.

B. The judgment of the court below

The court below acknowledged the fact that the defendant visited each room stated in the facts charged, but on the premise that the "house" referred to in Article 106 (1) of the Public Official Election Act does not mean only a house or building, but also includes a place that can be seen as a visiter, such as house gate. However, the scope of the "house" itself is based on the meaning of the above terms in advance (the meaning of house, house, house, etc. consisting of family members, and is used in the above meaning as above in light of social common sense). However, considering the provision system of Article 106 (2) of the Public Official Election Act which provides a place where visit is permitted, it is a closed place under the actual control and management of the patient's house or a place where many people can freely view the patient's visit as a place of business to be treated and open to the public, and thus, the court below acknowledged that the patient's visit cannot be seen as a place of business for which many people can freely take into account the purpose of medical treatment of the patient, such as the time and place of treatment of the patient.

C. Judgment of the court below

However, it is difficult to accept the judgment of the court below that the hospitalization room of this case does not fall under the "title" stipulated in Article 106 (1) of the Public Official Election Act.

The purpose of prohibiting door-to-door visits in Article 106 (1) of the Public Official Election Act is to: (a) the conversation in a place that is not open to the general public is likely to interfere with the cooling and reasonable judgment of electors by putting it on the emotional and non-essential elements, such as doubt or recognition; (b) there is a possibility that fraud such as purchase and inducement by interest, etc. through the passage of a closed place may be committed; (c) there is a concern that the peace of private life may be infringed as a result of being exposed to any unexpected visits by the candidate that he/she does not know at all from the candidate's standpoint, and (d) there is a risk that the peace of private life may be infringed by being exposed to any unexpected visits by the candidate who is exposed to the suspicion of door-to-door visits.

Therefore, considering the overall situation, such as the timing of visit, number and scope of visitors or visitors, relationship between visitors and visitors, speech and behavior at the visit place, etc., the crime of door-to-door visit shall be established if the above place is expected to be harmful and the purpose of the visit is deemed to be for election campaign.

In addition, the typical example of door-to-door visit places where the crime of door-to-door visit is constituted shall be called "door-to-door," but Article 106 of the Public Official Election Act provides that "any person shall not visit door-to-door for election campaign or for the solicitation of admission and admission during the election period." Paragraph (2) of the same Article provides that "any person eligible for election campaign may not visit door-to-door, for election campaign or for the purpose of soliciting admission and admission," and Paragraph (2) of the same Article provides that "any person may appeal to support a political party or candidate at a road, market, store, store, bank, large room, or other open places where many people have access, notwithstanding the provision of Paragraph (1)." In light of the above provision, a door-to-door visit place where the crime of door-to-door visit is constituted is not "road, market, store, bank, waiting room, or other places where many people have access to, even if an unspecified person temporarily resides, it shall be deemed that the free access of many and unspecified persons is restricted.

Therefore, comprehensively taking account of the evidence adopted by the lower court as to the instant case, the Defendant’s act of visiting Non-Indicted 1 and Non-Indicted 2 was limited to Non-Indicted 2 and Non-Indicted 6’s entrance and exit to Non-Indicted 1 and Non-Indicted 6’s entrance and exit to Non-Indicted 1 and Non-Indicted 6’s entrance and exit to Non-Indicted 1 and Non-Indicted 2 for the purpose of Non-Indicted 6’s election. Non-Indicted 1 and Non-Indicted 6’s entrance and exit to Non-Indicted 1 and Non-Indicted 6’s entrance and exit to Non-Indicted 4 at Non-Indicted 1 and Non-Indicted 6’s entrance and exit to Non-Indicted 6’s election for the purpose of Non-Indicted 2 and Non-Indicted 6’s entrance and exit to Non-Indicted 1 and Non-Indicted 6’s entrance and exit to Non-Indicted 6’s election.

Therefore, among the primary facts charged in this case, the Defendant’s visit to the hospital in which Nonindicted 4, 1, 5, and 6 were hospitalized constitutes a violation of the Public Official Election Act due to a violation of the prohibition of door-to-door visit. However, the lower court found this part as not constituting “house-to-door visit” and found the Defendant not guilty. In so doing, the lower court erred by misapprehending the legal doctrine on “house-to-door visit” which is prohibited under Article 106(1) of the Public Official Election Act, thereby adversely affecting the conclusion

3. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, without examining the prosecutor's argument of unfair sentencing, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and the following is again decided after pleading.

The Defendant was elected after going to the ○○○ constituency for the Gyeongbuk-do Council member (name omitted) of the Gyeongbuk-do Council member at the fourth local election of Dong-si on May 31, 2006, which was implemented by the Defendant on May 31, 2006. No one can visit each house for an election campaign,

At around 15:20 on January 6, 2006, Nonindicted 4, a resident of the above constituency, who was hospitalized in the Nam-gu Daegu-dong (name omitted) Hospital, and Nonindicted 4, a resident of the above constituency, who was hospitalized in the 1018 room, was above Dong for about 10 minutes, such as "the head of the Dong," and continued to find Nonindicted 1, a resident of the above constituency, who was hospitalized in the 645 room of the same hospital, who was hospitalized in the 645 room of the same hospital, and the head of the Dong, who was the resident of the above constituency, was in the 652 room of the same hospital, and was in the 652 room of the same hospital, notified him of his body for about five minutes, and the person who was in the above 652 room of the non-indicted 4, who was in the 652 room of the same hospital, and was in the 17th constituency of the above 7th constituency of the same Dong and the above 17th of the above 36th constituency.

1. Statement of the defendant in the second trial records of the court below;

1. Partial statement of each prosecutor's protocol of examination of the defendant against the defendant;

1. Some statements made by the prosecutor in the suspect interrogation protocol against Nonindicted 2

1. Statement made by each prosecutor on Nonindicted 3, 5, 4, and 1

1. Statement made by the police on Nonindicted 6

1. Relevant Article of the Act and the selection of the kind of punishment concerning the crime;

Articles 255(1)17 and 106(1) of the Public Official Election Act (Selection of Fines)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

In light of the purport of the Public Official Election Act which limits the freedom of election and fairness of election because it is easy for the elector to vote by impairing the dignity of the candidate and leading him to a blindly, and there is a great risk of encouraging illegal and unlawful election campaigns by inducing him to buy votes and inducing him to understand, and in order to prevent the spreading of all candidates and electors, the election campaign by door visit of this case must be strictly punished. On the other hand, the defendant's door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door is not illegal in itself, but rather is the most natural way of election campaign. In this respect, some foreign legislation cases (such as England, Germany, Canada, etc.) allow it as well. The contents of the violation of the Public Official Election Act have door door door door door door to door door, which is not actively done by the defendant, and it is not possible to actively engage in the election campaign to inform him of the fact, the circumstances and circumstances leading him to the election of this case, etc.

It is so decided as per Disposition for the above reasons.

Judges Lee Kang-won (Presiding Judge) (Presiding Judge)