[1] Criteria to distinguish between ordinary competition and legal competition agreement

[2] The meaning of a special relationship, which is a form of a legal holiday agreement

[3] In a case where a single act satisfies each of the elements of a violation of Articles 257 and 113 of the Act on the Election of Public Officials and the Prevention of Unlawful Election, and Articles 45-2 and 31-2 (1) of the Political Parties Act, the relationship between the two crimes (=ordinary concurrence)

[1] Commercial concurrence refers to a case where a single act actually satisfies several elements. Legal concurrence refers to a case where a single act appears to meet the elements of several crimes, but actually constitutes only one crime. Whether a single crime is actually one crime or several crimes should be determined in terms of the evaluation of the elements of the crime and the legal interests and interests.

[2] In a special relationship, which is a form of a legal concurrence agreement, the act that satisfies the requirements of a special law, but on the contrary, does not meet the requirements of a special law, in a special relationship where the elements of a special law should be satisfied, in addition to all the elements of a special law.

[3] In addition, when comparing the contents of Articles 113 and 112 of the Act on the Election of Public Officials and the Prevention of Unlawful Election Act and the main sentence of Article 31-2(1) of the Political Parties Act, the provisions of the Political Parties Act do not constitute a case where the elements of the Political Parties Act include all elements of the elements under the Act on the Election of Public Officials and the Prevention of Unlawful Election, and the Prevention of Unlawful Election, and there are many differences in the specific elements of the elements, such as the subject of the act, the period during which the act is restricted or prohibited, whether the purpose is required together, whether the act requires intention or not, the object of the act or the provision of money and goods, and the contents and method of the act. Thus, the provisions of the Political Parties Act do not constitute a case where the elements of the Political Parties Act include any element of the elements under the Act on the Election of Public Officials and the Prevention of Unlawful Election, and they are independent independent elements, and if one act satisfies the requirements

[1] Articles 37 and 40 of the Criminal Act / [2] Article 37 of the Criminal Act / [3] Article 40 of the Criminal Act; Articles 1, 112, 113, and 257 (1) 1 of the Act on the Election of Public Officials and the Prevention of Election Malpractice; Articles 1, 31-2 (1), and 45-2 of the Political Parties Act

[1] Supreme Court en banc Decision 84Do782 delivered on June 26, 198 (Gong1984, 1381) 97Do2956 delivered on March 24, 1998 (Gong1998Sang, 1248) Supreme Court Decision 2000Do189 delivered on July 7, 200 (Gong200Ha, 1911), Supreme Court Decision 2000Do5318 Delivered on March 27, 2001 (Gong201Sang, 1064) 202Do669 Delivered on July 18, 202 (Gong2002Ha, 209) / [209Do3979 delivered on June 29, 193] Supreme Court en banc Decision 2000Do9749 delivered on July 29, 207 (Gong2002Ha, 2010)

Defendant

Defendant

Law Firm Jinju General Law Office, Attorneys Kim Yong-pon et al.

Daejeon High Court Decision 2002No478 delivered on October 18, 2002

The appeal is dismissed.

1. The term "ordinary concurrence" refers to a case where a single act actually satisfies several elements, and the term "legal concurrence" refers to a case where a single act appears to meet the elements of several crimes in appearance, or practically constitutes only one crime. The term "one crime" or " several crimes" shall be determined by considering the evaluation of the elements of a crime and the legal interests and interests protected by the law in terms of the evaluation of the elements of a crime (see, e.g., Supreme Court Decisions 97Do2956, Mar. 24, 1998; 2002Do669, Jul. 18, 2002; 2002Do669, Jul. 18, 2002). In addition, in a special relationship where a special relationship, which is a form of a mutual agreement, meets the elements of a special law, but the act meeting the requirements of a special law does not meet the requirements of a special law (see, e.g., Supreme Court Decision 93Do4987, Jun. 22, 1997).

2. Article 112 of the Public Official Election Act (hereinafter referred to as the "Public Official Election Act") provides for the definition of a contribution act and restriction period, etc. under Article 113, "candidate (including a person intending to become a candidate) and his/her spouse shall not make any contribution act during the contribution-restricted period, regardless of whether it is related to the election in question." Article 257 (1) 1 provides that anyone who violates the above provisions shall be punished by imprisonment for not more than five years or by a fine not exceeding 10 million won. On the other hand, the main sentence of Article 31-2 (1) of the Political Parties Act provides that "any person may not offer, express an intention to offer, or promise to offer money, goods, other property profits, or public or private positions, to any candidate or his/her spouse, lineal ascendant or descendant, who has a right to vote for the purpose of getting elected or not elected as a candidate in the process of recommending and selecting a representative of a political party, and any person who violates the above provisions shall be punished by imprisonment for not more than 50 years or less than 50 million won."

However, the legislative purpose of the Public Official Election Act is to ensure that elections under the Constitution and the Local Autonomy Act are held in accordance with free will of the people and democratic procedures and to prevent any illegality related to elections (Article 1). Article 113 of the same Act provides that if a contribution act contributes to creating a foundation for supporting candidates or is likely to be associated with an act of purchasing, such permission is granted, it is likely that the election itself would face the candidate's financial ability rather than an opportunity to evaluate the candidate's personal figures, opinions, and policies, and it is a provision to prevent such act (see Supreme Court en banc Decision 2001Do2819, Feb. 21, 2002). Since Article 31-2 (1) of the same Act provides that the political party has a separate legislative purpose for securing an organization necessary to participate in the formation of the political will of the people and guaranteeing the democratic organization and activities of the political party (Article 1), and Article 131-2 (1) of the Political Parties Act provides that the act is subject to prohibition of offering of money and goods, etc.

The court below acknowledged that the defendant provided 4 million won in cash to the party members, etc. who hold the right of election for the purpose of being elected as a candidate at the 1st Nara 1, 2002 candidate competition ( March 29, 2002) held on March 27, 2002, which was the third Do-dong local election, which was implemented on June 13, 2002 by the defendant, for the purpose of being elected as a candidate at the 3rd Do-dong local election, and then applied Articles 257 (1) 1 and 113 of the Public Official Election Act, Articles 45-2 and 31-2 of the Political Parties Act, and Articles 40 and 50 of the Criminal Act in sequence to the crime of violating the Public Official Election Act. In light of the records and the above legal principles, the above measures of the court below are justifiable, and there is no error of law as alleged in the grounds for appeal

3. Therefore, the appeal is dismissed. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)