[1] Criteria to determine whether an organization, etc. constitutes “similar institution” under the main sentence of Article 89(1) of the Public Official Election Act

[2] The meaning of "one election campaign organization established at the election campaign office of a candidate or preliminary candidate" under the proviso of Article 89 (1) of the Public Official Election Act

[3] The number of crimes of violating the Public Official Election Act in a case where only a part of the money was actually provided after the promise to offer money or goods was promised to do an election campaign

[1] Whether an organization constitutes a “similar organization” under the main sentence of Article 89(1) of the Public Official Election Act is determined by the existence of the purpose of election campaign. Thus, if a person who wishes to be a candidate establishes an organization to have an effect on the elector beyond the dimension of the internal preparation for election campaign, it constitutes a similar organization under the above provision.

[2] The legislative purport of the main sentence of Article 89(1) of the Public Official Election Act is to maintain equality in election campaign organizations among candidates and to prevent excessive competition and waste due to the establishment of various forms of election campaign organizations; and Article 89(1) proviso of the former Public Official Election Act (amended by Act No. 11485, Oct. 2, 2012; hereinafter the same) permits the establishment of “one election campaign organization to be established at the central party of a political party and the office of a City/Do party” under the proviso of Article 89(1) of the former Public Official Election Act (amended by Act No. 11485, Oct. 2, 2012; hereinafter the same) is to take into account the fact that the election campaign organization of a political party has the nature of the internal organization of a political party with the basic purpose of participating in the formation of the political will by recommending or supporting candidates to run in an election for public office, and thus, such organization of a political party violates the main sentence of Article 89(1) of the former Public Official Election Act.

[3] The crime of violation of Articles 135(3) and 230(1)4 of the Public Official Election Act is subject to the punishment of offering, expressing an intention to offer, or promising to offer money, goods, or other benefits in connection with the election campaign. If an offer is made after promising to offer money and other valuables in connection with the election campaign, the promise is absorption into offer. However, if only a part of the offer is offered after promising to offer money and other valuables, the act of offering money and other valuables cannot be seen as being absorption into the act of offering money and other valuables. It is reasonable to view that the crime of violation of Articles 135(3) and 230(1)4 of the Public Official Election Act is established by combining the entire act of offering money and other valuables, and that the act

[1] Articles 89(1) and 255(1)13 of the Public Official Election Act / [2] Article 89(1) of the former Public Official Election Act (Amended by Act No. 11485, Oct. 2, 2012); Articles 89(1) and 255(1)13 of the Public Official Election Act / [3] Articles 135(3) and 230(1)4 of the Public Official Election Act

[1] Supreme Court Decision 2005Do303 Decided June 27, 2006 (Gong2006Ha, 1447) Supreme Court Decision 2010Do2095 Decided May 13, 2010 / [2] Supreme Court Decision 97Do2249 Decided December 26, 197 (Gong198Sang, 468)

Defendant 1 and two others

Defendant 2 and one other and the prosecutor

Attorney Kim Il-chul et al.

Busan High Court (Chowon) Decision 2012No197, 245 decided November 30, 2012

All appeals are dismissed.

The grounds of appeal are examined.

1. As to Defendant 2’s ground of appeal

A. As to the first ground for appeal

(1) As to the assertion that “○ private placement” cannot be seen as a similar institution

Since whether a certain organization, etc. constitutes “similar organization” under the main sentence of Article 89(1) of the Public Official Election Act is determined by the existence of the purpose of election campaign, if a person who wishes to be a candidate establishes an organization, etc. with the intent to affect the electors beyond the internal source of the preparation for election, it constitutes a similar organization under the above provision (see, e.g., Supreme Court Decisions 2005Do303, Jun. 27, 2006; 2010Do2095, May 13, 2010).

On October 26, 2011, Non-Indicted 1, who was in charge of the head of the policy office or the head of the situation office within Defendant 2’s election campaign, has collected a list of election campaign members from Defendant 2, and has recruited approximately 50 election campaign members under the name of “○ private placement” (hereinafter “meetings of persons who love Defendant 2”), and on September 17, 201, had Defendant 2 and election campaign workers look back to the inducements with contents of Defendant 2’s experience and advantages to the election campaign workers. After that, Non-Indicted 1 collected election campaign members on September 20, 201 to gather information about the election campaign team established by Non-Indicted 2, etc. for the purpose of collecting information about the election campaign members and promoting the election campaign activities of Defendant 2 from the first day of the election campaign organization to the public announcement of the election campaign at the same election campaign team, and then, had Defendant 2 et al. to gather information about the election campaign team’s experience and advantages from the election campaign team.”

In light of the above legal principles and records, the above judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to similar institutions under Article 89 (1) of the Public Official Election Act, or in violation of the principle of free evaluation

(2) As to the assertion that acquittal should be pronounced

Article 89(1) main text of the former Public Official Election Act at the time of the instant case (amended by Act No. 11485, Oct. 2, 2012; hereinafter “former Public Official Election Act”) prohibits the establishment of similar organizations, and excludes “one election countermeasure organization established in the central party of a political party and the office of a City/Do party” from those subject to the prohibition of “election association established by the Political Funds Act” under the proviso. In addition, the proviso of Article 89(1) of the amended Public Official Election Act as of October 2, 2012 excludes “one election countermeasure organization established in a candidate or a preliminary candidate’s election office” from those subject to the prohibition of “one election campaign organization established in a candidate or a preliminary candidate’s election” under the proviso of Article 89(1) of the former Public Official Election Act. However, the legislative purport of the main text of Article 89(1) of the former Public Official Election Act is to maintain fairness in election campaign organizations among candidates and prevent competition and establishment of a political party for the purpose of the National Election Commission or the National Election Commission.

However, as seen earlier, since “○ private placement” was established for the purpose of election campaign affecting the electors for Defendant 2’s election, it cannot be deemed as “election countermeasure organization” under the proviso of Article 89(1) of the amended Public Official Election Act. Therefore, the ground of appeal that this part of the facts charged constitutes a case where the punishment is abolished by amendment of the law after the crime was committed, and thus, acquittal should be pronounced cannot be accepted.

B. Regarding ground of appeal No. 2

A public offering is not required in relation to co-offenders who are co-processed with two or more persons in a crime. A public offering is not required under the law, but is only a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no process of the whole conspiracy, if a combination of doctors is formed in order or implicitly through several persons, the public offering relationship is established, and even if there was no direct participation in the act of the conspiracy, even if there was a person directly involved in the act of the conspiracy, he/she is held liable for the other co-principal's act as a co-principal (see, e.g., Supreme Court Decision 2004Do7511, Jan. 27, 2005). On the other hand, if a witness's statement is consistent in the main part, the credibility of the statement is not arbitrarily denied solely on the ground that there is no somewhat consistency in the statement on other minor matters (see, e.g., Supreme Court Decision 2008Do12112, Aug. 20, 200

The court below held that ① upon receipt of the list of election campaign applicants from Defendant 2, Nonindicted Party 1 was ordered to prepare the list of election campaign workers who are managed by each of the election campaign workers, and then prepared a regular meeting with Defendant 2, and Defendant 2 present at that place, upon considering the following as follows: “At the time of the election campaign, many sections of the election campaign would be so high as to interfere with the election campaign,” the court below decided upon the request of Defendant 2 to give a definite answer to the price of the election campaign, and reported it to Defendant 2 on the list of the election campaign workers, and then notified Defendant 2 of the order to pay 10,000 won and transportation expenses per day from Defendant 2 to the election campaign workers, and that Nonindicted Party 1 made an advance election campaign using the above method, and that Defendant 2’s statement and statement as to the election campaign, including the money and valuables, was not consistent with the aforementioned circumstances, and thus, Defendant 2’s statement and statement as to his own motive and circumstances, including the aforementioned change in the name of Defendant 2.

In light of the above legal principles and records, the above judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles as to co-principal, or exceeding the bounds of the principle of free evaluation of evidence

2. As to Defendant 3’s ground of appeal

The court below found Defendant 3 guilty of this part of the facts charged that Defendant 3 received the above KRW 1.2 million in connection with the election campaign, taking full account of the following circumstances in its holding: (a) Non-Indicted 1 consistently stated that he provided Defendant 3 with KRW 1.2 million in return for his activities as a socialist for Defendant 2; (b) Non-Indicted 3’s statement conforms to it; and (c) Non-Indicted 1’s motive or reason to make a false statement to Defendant 3, especially disadvantageously unfavorable to Defendant 3.

Upon examining the reasoning of the judgment below in light of the records, the above judgment of the court below is just and there is no violation of law of free evaluation of evidence against logical and empirical rules as otherwise alleged in the grounds of appeal.

3. As to the Prosecutor’s Grounds of Appeal

A. The crime of violation of Articles 135(3) and 230(1)4 of the Public Official Election Act is subject to the punishment of offering, expressing an intention to offer, or promising to offer money, goods, or other benefits in connection with the election campaign. If an offer is made after the promise to offer money or goods in connection with the election campaign, the promise can be absorption into offer, but if only a part of the offer is offered after the promise to offer money or goods, the act of offering money or goods cannot be seen as being absorption into the act of offering money or goods. It is reasonable to view that the crime of violation of Articles 135(3) and 230(1)4 of the Public Official Election Act is established by combining all the act of offering money or goods and the act of offering money or goods

B. The summary of the facts charged in the instant case against Defendant 1 is that Defendant 1 promised to provide money and valuables in connection with the election campaign in collusion with Nonindicted Party 1, etc. by promising the election campaignmen to pay daily allowances and incidental expenses for the period from September 26, 201 to October 25, 2011, and by paying the daily allowances from September 26, 201 to October 12, 201, which is a part of the said money and valuables, to 38 persons in connection with the election campaign.

The court below found Defendant 1 not guilty of the charge of the above provision of money and valuables on the ground that the facts charged of the above provision of money and valuables were added to the facts charged of the above provision of money and thus, it did not constitute a crime of violation of the Public Official Election Act under the above provision of money and goods. However, in light of the above legal principles, the court below erred by misapprehending the legal principles as to the number of crimes of violation of the Public Official Election Act, which found that all the part of the above provision of money and goods were not actually offered among the above act of offering money and goods to be absorbed into the act of offering money and goods. However, even if it is deemed that Defendant 1 only committed a crime of violation of Article 135(3) and Article 230(1)4 of the Public Official Election Act under the provision of money and goods by including all of the above act of offering money and goods, the above act of offering money and goods can not be deemed to have affected the conclusion of the judgment. Ultimately, this part of the ground of appeal is without merit.

4. Conclusion

All appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)