The meaning of “an elector eligible for entry in the electoral register” among “an elector” who is the other party to the purchase and inducement by interest under Article 230(1)1 of the Public Official Election Act / Whether a person eligible for entry in the electoral register constitutes “an elector” who is the other party to the purchase and inducement by interest, and whether a person eligible for entry in the electoral register constitutes “an elector” who is the other party to the purchase and inducement by interest (affirmative)

Article 230 (1) 1 of the Public Official Election Act

Supreme Court Decision 2005Do2245 Decided August 19, 2005 (Gong2005Ha, 1525) Supreme Court Decision 201Do3824 Decided June 24, 2011 (Gong2017Do6510 Decided December 5, 2017) (Gong2018Sang, 129)

Defendant

Prosecutor

Seoul High Court Decision 2016No2754 decided March 22, 2017

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

The grounds of appeal are examined.

1. As to the violation of the Public Official Election Act due to the violation of restriction on contributions

For the reasons indicated in its holding, the lower court acquitted the Defendant on the violation of the Public Official Election Act due to the violation of the principle of no punishment without the law, on the ground that: (a) the time when the Defendant provided meals to 14 residents of ○○○ City △△△△△△△△, the period in which the list of the local constituency districts for the National Assembly under the former Public Official Election Act (amended by Act No. 14073, Mar. 3, 2016; hereinafter the same shall apply) becomes invalid as the Constitutional Court’s ruling of inconsistency with the Constitution, and the new list of the local constituency districts for the National Assembly was enforced; and (b) the scope of areas included in each constituency at the time of contribution was not clearly defined as at the time of contribution; and (c) the punishment

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the restriction on contribution under Articles 115 and 112(1)

2. As to the violation of the Public Official Election Act due to purchase and inducement for understanding

A. The summary of this part of the facts charged that was added in the lower court is that “the Defendant provided 14 residents of △△△△△△, including Nonindicted 2, etc., with food and drink equivalent to KRW 192,00 on February 16, 2016, at the restaurant located in △△△△△△△△, for the purpose of getting Nonindicted 1 to be elected in the election of the 20th National Assembly members, at the 20th National Assembly members.”

In applying the provisions of Article 230 (1) 1 of the Public Official Election Act to the election of the local constituency National Assembly member, the lower court found the Defendant not guilty on the ground that the provision of money and valuables, etc., to the voters under the above provision is not permissible as against the principle of no punishment without the law, on the ground that the time when the Defendant provided meals to 14 residents of ○○ City, △△△ City, since the list of the local constituency districts for the National Assembly under the former Public Official Election Act became invalid and the scope of the area included in each constituency is not determined, the provision of the money and valuables, etc., to the voters cannot be deemed as being permitted as against the principle of no punishment without the law.

B. (1) Article 230(1)1 of the Public Official Election Act does not limit “persons having a right to vote and who are listed on the electoral register,” but also includes “persons eligible for entry on the electoral register before preparing the electoral register.” Here, “persons eligible for entry on the electoral register” is not limited to electors registered in the relevant constituency as of the record date for the preparation of the electoral register, but is not limited to electors registered in the relevant constituency as of the record date for the preparation of the electoral register, and it is reasonable to view “persons eligible for entry on the electoral register,” if determined based on the multi-party election day based on all the circumstances, including the resident registration status and age (see, e.g., Supreme Court Decisions 205Do245, Aug. 19, 2005; 201Do3824, Jun. 24, 2011).

Considering the meaning of the “ elector”, who is the other party to the above purchase and inducement by interest, as well as the legislative purport of the above provision, in order to ensure the fairness of election by punishing an act that distorted an individual’s free will regarding an election due to economic benefits, etc., if a person is eligible to become an elector of an election that would have an impact on the election day based on the multi-party election day, it constitutes a “ elector” who is the other party to the purchase and inducement by interest, and the election district is not necessarily demarcated at the time of

(2) According to the evidence duly admitted, Nonindicted 2, etc., the other party to whom the Defendant offered entertainment, was the resident registration of both Nonindicted 1 and Nonindicted 2, etc., at the time of offering entertainment, who had reached the age of 19 at the 20th National Assembly election. Therefore, in determining based on the above election day, it is sufficient to view that Nonindicted 2, etc., barring any special circumstance, etc., can be deemed as a person eligible to be an elector in the area where Nonindicted 1 would have to be elected in the above election, and thus, it is reasonable to deem that Nonindicted 2, etc., as a person eligible to be recorded in the electoral register and constitutes “ elector”, who is the other party to the purchase and inducement by interest, as provided in Article 230(1)1 of the Public Official Election Act. Moreover, even if the effect of the election district for the National Assembly member became invalidated according to the decision of the Constitutional Court at the time of offering entertainment, and even if Nonindicted 2, etc. did not have

Nevertheless, the lower court acquitted Nonindicted 2, etc., who received entertainment on the grounds as indicated in its reasoning, on the erroneous premise that the constituency should be specified at the time of the purchase in order to be deemed an elector under Article 230(1)1 of the Public Official Election Act. In so doing, the lower court erred by misapprehending the legal doctrine on the meaning of “an elector” as provided in Article 230(1)1 of the Public Official Election Act.

3. For the foregoing reasons, the part of the judgment below on the violation of the Public Official Election Act due to purchase and inducement of understanding should be reversed. The part on the violation of the Public Official Election Act due to the violation of the third party contribution-restricted act and the violation of the Public Official Election Act due to the violation of restrictions on the subject of election campaign, which are primarily charged, should be reversed. Thus, the judgment below should be reversed in its entirety.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)