[1] The meaning of election campaign under Article 58 (1) of the former Public Official Election and Prevention of Election Illegal Act and the standard for determining such election campaign

[2] The case holding that the act of sending text messages that contain the contents of appeal for support to party members and general electorates for the election in the competition to run as a candidate to the election of public officials constitutes an election campaign under Article 58 (1) of the former Election of Public Officials and the Prevention of Unlawful Election Act

[1] An election campaign under Article 58 (1) of the former Act on the Election of Public Officials and the Prevention of Election Malpractice (amended by Act No. 7189 of Mar. 12, 2004) refers to all acts necessary or favorable for the election or the winning or defeat of a certain candidate, which can be objectively recognized as an objective for the purpose of promoting the election or defeat of a certain candidate. It is distinguishable from the preparation of an election campaign that constitutes an internal or procedural preparation for a future election campaign or ordinary political party activities; however, in determining whether a certain act constitutes an election campaign, it shall be determined by comprehensively observing not only the pretext of such act, but also the form of such act, i.e., the time, place, method, etc. of such act, and by comprehensively observing the purpose of promoting the election or defeat of a specific candidate.

[2] The case holding that the act of sending text messages containing the contents of appeal for support to party members and general electorates for the election in the competition to run as a candidate to the election for public office constitutes an election campaign under Article 58 (1) of the former Act on the Election of Public Officials and the Prevention of Unlawful Election Act (amended by Act No. 7189 of March 12, 2004)

[1] Article 58 (1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of March 12, 2004) / [2] Article 58 (1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of March 12, 2004)

[1] Supreme Court Decision 98Do1432 delivered on April 9, 1999 (Gong1999Sang, 935) Supreme Court Decision 2004Do7511 Delivered on January 27, 2005 (Gong2005Sang, 376)

Defendant 1 and one other

Prosecutor and Defendants

Attorneys Park Jae-in et al.

Seoul High Court Decision 2004No1631 delivered on December 21, 2004

The judgment below is reversed and the case is remanded to Seoul High Court.

1. Judgment on the Defendants’ Appeal

A. As to Defendant 1’s ground of appeal

In light of the records, the court below's decision that found the above defendant guilty based on the adopted evidence is acceptable, and there is no violation of the rules of evidence such as misconception of facts against the rules of evidence.

B. As to Defendant 2’s appeal

Defendant 2 did not file an appellate brief within a lawful period, and the appellate brief does not indicate the grounds in the petition of appeal.

2. Judgment on the prosecutor's appeal

A. According to the reasoning of the judgment of the court below, the court below held that among the facts charged in this case, "any person who conspireds with the defendant to exercise influence on the election from 180 days before the election day to the election day" includes contents of supporting, recommending, or opposing a person who wishes to be a candidate or indicating the name of the candidate cannot send text messages indicating the name of the candidate, but on February 23, 2004, at the office of "Maiju Reform Forum for the operation of defendant 1" in Gwangju City, Gwangju City, the 1,121 cell phone, "Seocheon Democratic Party Election Day was finally decided," and that the act of sending text messages "Defendant 1" is not subject to the provision of the former Public Official Election Act, and it is not subject to the provision of the Public Official Election Act, and it is not subject to the provision of Article 1 of the Public Official Election Act, and it is not subject to the provision of the same Act, and it is not subject to the provision of the same Act.

B. An election campaign under Article 58 (1) of the Public Official Election Act refers to all acts necessary or favorable for the election or winning of a specific candidate, which are objectively recognized by the intention of promoting the election or defeat of a specific candidate. It is distinguishable from an act of preparing an election campaign or ordinary political party activities, which is an internal or procedural preparation for a future election campaign; however, in determining whether an act constitutes an election campaign, it shall be determined simply by comprehensively observing 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 by comprehensively observing the time, place, method, etc. of the act, and whether it is an act involving the purpose of promoting the election or defeat of a specific candidate (see Supreme Court Decision 98Do1432, Apr. 9, 199).

C. However, according to the records, Defendant 1’s method of the primary election for the 17th National Assembly member of the Newcheon Democratic Party that he left as a candidate is not by the representatives or party members’ voting, but by the public opinion poll organization delegated by the central authority from among the electorates of Gwangju City, which forms a electoral group without permission of up to 50% and constitutes a electoral group, and conducts a public opinion poll for them through telephone, and it is difficult to conclude that there is a need for the Defendants to conduct an election campaign for the democratic party members on behalf of the democratic party members. Further, considering the following, the Defendants sent text messages for the democratic party members who are not specified as the electoral group and the general voters, and the Defendants’ act of sending text messages to Defendant 1 constitutes “an act of preparing for the election campaign or election campaign” to constitute “an act of preparing for the election of Defendant 1” to constitute “an act of preparing for the election of Defendant 1’s National Assembly member.

D. Nevertheless, the court below found the Defendants not guilty of this part of the facts charged solely on the grounds as stated in its reasoning. Thus, the court below's measures are erroneous in matters of law such as misconception of facts against the rules of evidence.

3. Conclusion

Therefore, among the judgment of the court below, the part of acquittal against the Defendants is not exempt from reversal, and the appeal against each of the Defendants is without merit. However, since the part which the court below found the Defendants guilty and found the Defendants not guilty are related to a blanket crime, the part of the judgment of the court below against the Defendants should be reversed together with the part of the acquittal.

Therefore, the entire judgment of the court below against the Defendants shall be reversed, and the case shall be 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 Zwon (Presiding Justice)