(영문) 대법원 2017.12.7.선고 2017도7514 판결

Of the convictions and innocences of the lower judgment, the violation of the Public Official Election Act due to contribution acts and the violation of the Public Official Election Act due to purchase and inducement for understanding is reversed, and this part of the case is remanded to the Daegu High Court.

The Prosecutor's remaining appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. As to the violation of the Public Official Election Act due to the Defendants’ purchase and inducement of understanding

A. The summary of this part of the facts charged that was added in the first instance trial is as follows: “Defendant B and C provided meals equivalent to KRW 163,000 in total to nine electors, including G, at the restaurant located in Ansan-si, on January 1, 2016, for the purpose of getting Defendant B and C elected in the election of the National Assembly members of the 20th National Assembly.”

The lower court affirmed the judgment of the first instance court that acquitted the Defendants of this part of the facts charged on the grounds that the Defendants cannot be deemed to have purchased G, etc. for this purpose, on the following grounds: (a) the Defendants’ election of the National Assembly members of local constituency is premised on the existence of a specific election district having legal effect; (b) Article 25(2) of the former Public Official Election Act (amended by Act No. 14073, Mar. 3, 2016) [Attachment 1] / [Attachment 1] where there is no valid election district due to the invalidation of the Constitutional Court’s ruling of inconsistency with the Constitution as to the election of the National Assembly members of local constituency; and (c) there is no valid election district.

B. (1) Article 230(1)1 of the Public Official Election Act provides that, with respect to “an elector,” who is the other party to purchase and inducement by interest,” the elector is not limited to “persons eligible to be recorded on the electoral registry,” but also includes “persons eligible to be recorded on the electoral registry,” before preparing the electoral registry. In this context, “persons eligible to be recorded on the electoral registry,” is not limited to electors registered on the electoral registry as of the record date for the preparation of the electoral registry, but is not limited to electors registered on the electoral registry as of the relevant electoral registry, and is reasonable to view “persons eligible to be recorded on the electoral registry, if determined on the basis of all the circumstances, including the current status of resident registration and age,” if they are eligible to be recorded on the electoral registry (Supreme Court Decisions 2005Do2245 Decided August 10, 2005; 201.

24. Supreme Court Decision 2011Do3824 Decided January 2, 201

Considering the meaning of the above-mentioned "candidates" as well as the legislative purport of the above-mentioned provision is to punish acts that distort an individual's free will in an election due to economic benefits, etc., thereby ensuring the fairness of election, such act constitutes "an elector", who is the other party to the purchase and inducement by interest, if a person is eligible to be an elector in an election that would have an impact on the election day based on the multi-party election day, and it does not necessarily require a constituency to be demarcated at the time of such act, or a valid election district exists.

Nevertheless, under the erroneous premise that there is a valid election district in order to determine the "candidate" under Article 230 (1) 1 of the Public Official Election Act, the lower court may not be punished for purchasing and by inducement by interest unless there was no valid election district at the time of providing meals to the Defendants.

The lower court determined that it erred by misapprehending the legal doctrine on the meaning of “an elector” under Article 230(1)1 of the Public Official Election Act, thereby failing to exhaust all necessary deliberations. (2) Article 230(1)1 of the Public Official Election Act provides that a person who provides money, goods, etc. to an elector shall be punished for the purpose of having another person cast or not cast a vote, or getting another person elected or not elected. Here, “the purpose of election or being elected” refers to an act that directly affects voting by the elector, etc. who is provided with money, goods, etc. or money, etc., or causing another person to engage in an act that affects another person’s voting intent or an act that affects a certain candidate’s success (see, e.g., Supreme Court Decisions 208Do6233, Oct. 9, 2008; 2013Do5399, Jan. 29, 2015).

According to the reasoning of the lower judgment and the record, Defendant A is registered as a member of the National Assembly in the 19th H local constituency, and as a preliminary candidate on February 17, 2016 in relation to the 20th National Assembly member election, and Defendant A registers as a preliminary candidate on March 24, 2016, and H.

I registered as a candidate for the said constituency on April 13, 2016, and elected as a member of the National Assembly on the election day. ② Defendant A made a public debate through media reports, etc. that Defendant B would combine with H, and request Defendant B to arrange for the meeting with the residents of K and make a resident registration as described in this part of the facts charged. ③ At the time, Defendant A had a plan to leave the constituency as a member of the National Assembly when the election district is integrated, but there was no particular connection with activities in the K area, ④ Defendant A et al. was a person who is in the leading position of the public opinion in the area, such as the Speaker of the former K Assembly, and Defendant A et al. was not aware of the fact that Defendant A et al. had no special contact, ⑤ Defendant A et al., but did not have any personal history, etc., with G et al., but did not yet become final and conclusive.

Examining these facts in light of the legal principles as seen earlier, it is reasonable to view that Defendant A provided meals to G, etc. for the purpose of getting Defendant B and C elected in the election of the 20th National Assembly member.

Nevertheless, the lower court determined otherwise on the grounds stated in its reasoning that it was difficult to deem the Defendants to have the aforementioned objective. In so determining, the lower court erred by misapprehending the legal doctrine on the meaning of “the purpose of election or election” under Article 230(1)1 of the Public Official Election Act, thereby failing to exhaust all necessary deliberations.

(3) Ultimately, the lower court erred by misapprehending the legal doctrine on the meaning of "the purpose of being elected or to be elected" as provided by Article 230 (1) 1 of the Public Official Election Act, thereby adversely affecting the conclusion of the judgment.

2. As to the part concerning Defendant A’s violation of the Public Official Election Act due to publication of false facts, the lower court upheld the first instance judgment that acquitted Defendant A of this part of the charges on the grounds that there was no proof of crime. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by failing to exhaust all necessary deliberations and exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

3. As to the remainder

The prosecutor appealed to the entire judgment of the court below, but did not submit the appellate brief on the violation of the Public Official Election Act due to a contribution act among the guilty part and the acquittal part.

4. Scope of reversal

Of the judgment of the court below, the part on the violation of the Public Official Election Act due to the Defendants’ purchase and the inducement for understanding should be reversed on the grounds as seen earlier. Since the part on the charge of violation of the Public Official Election Act (the primary charge) due to the contribution act among the acquitted part of the judgment of the court below is identical to the part on the charge, it should be reversed together. The guilty part of the judgment of the court below should be reversed on the ground that the above reversed part and the concurrent crime under the former part of Article 37 of the Criminal Act or the ordinary concurrent crimes under Article 40

5. Conclusion

Therefore, among the convictions and innocences of the judgment below, the violation of the Public Official Election Act due to contribution act and the violation of the Public Official Election Act due to purchase and inducement for understanding is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices