(영문) 대법원 2018.2.8.선고 2017도8007 판결

1. The summary of this part of the facts charged which was selectively added by the court below, and the defendant "the defendant" is the 20th National Assembly.

on February 2, 2016, for the purpose of getting K, a preliminary candidate for the CM election, to be elected in the original election, and

L, which is the employees of the G Do and related agencies, provide to the electors with entertainment in the restaurant.

was ‘C'.

As to this, the lower court, regarding the election of the local constituency National Assembly member, Article 230(1) of the Public Official Election Act

In applying subparagraph 1, the effects of the purchase act in the scope of the “ elector” as defined in the above provision.

only an elector in a specific constituency where a person to become a candidate or to become a candidate

In addition, the defendant provided meals to 64 persons, such as L, etc.

Article 25 Paragraph 2 of the former Public Official Election Act (Amended by Act No. 14073, Mar. 3, 2016)

[Attachment 1] The Constitution of the National Assembly shall become effective as the Constitutional Court's ruling of inconsistency with the Constitution.

In fact, there has been a legal gap, and such a legal gap has been included in each constituency.

not set forth the scope of the area, the other party to whom money, etc. are provided shall be the election district concerned.

Inasmuch as it is difficult to ascertain whether the act of offering money, goods, etc. was conducted by the elector, the act of offering money, etc.

Punishment shall be judged not guilty on the ground that it cannot be permitted against the principle of no punishment without the law.

had been.

2. However, it is difficult to accept the above judgment of the court below for the following reasons.

A. Article 230(1)1 of the Public Official Election Act provides that an elector who is the other party to a purchase shall be eligible for the election.

The electoral register is not limited to "persons with the authority and listed on the electoral register".

Before preparation, the person who is eligible to be recorded in the electoral register is also included in the elector’s name.

(1) In this case, a person who is eligible for entry in the electoral register shall be the electoral registry preparation machine.

(1) An electoral register, not limited to the electors registered in the relevant constituency as of the corresponding day;

Even before the standard date for preparing a resident registration shall be based on all circumstances, such as the resident registration status and age;

(1) if a person is eligible to be an elector as above, the elector shall be entitled to be an elector as of the election day.

It is reasonable to view that it is “a person eligible to be recorded on the list” (Supreme Court Decision 2005Do205 Decided August 10, 2005).

245, Supreme Court Decision 201Do3824 Decided June 24, 2011, etc.

In addition, the meaning of the " elector" who is the other party to the above purchase, and the legislative intent of the above provision is denied.

If such acts distort the individual's free will of election due to economic interests, etc.,

Considering that the fairness of an election is guaranteed, determination shall be made on the basis of an election day.

to be the elector in the area in which the election to be affected by the purchase act is conducted.

A person who is the other party to the crime of purchase shall be an elector, and election shall be held at the time of the purchase.

It shall not be deemed that the Gu has been demarcated or that there is no valid constituency.

section 3.

B. According to the evidence duly admitted, L, the other party to whom the defendant offered entertainment, etc.

Persons who have already reached 19 years of age at the time of provision, and all K in the election of the 20th National Assembly members;

It can be known that there was a resident registration in the G area intended to do so. Therefore, the above day of the next election.

at the election of the defendant, unless there are special circumstances, L et al. shall be elected.

there is room to regard K as a person who can be an elector in the area where K is to run.

In Sector, L et al. is eligible for entry in the electoral register, and Article 230 of the Public Official Election Act

It is reasonable to see that it constitutes a " elector" who is the other party to a purchase as provided in subparagraph 1 of paragraph (1); and

Pursuant to the decision of the Constitutional Court at the time of offering the entertainment, the effect of the electoral district table;

It was not defined that L et al. will be elected yet.

Nor can it be viewed otherwise.

Nevertheless, the lower court, contrary to this, constitutes an elector under Article 230(1)1 of the Public Official Election Act.

on the erroneous premise that the constituency should be specified at the time of such purchase;

Considering that L, etc. provided with entertainment for the reasons indicated in its holding is not a " elector" or a " elector";

The lower court rendered a not guilty verdict on this part of the judgment below. Article 230(1)1 of the Public Official Election Act

There is an error in the misapprehension of legal principles as to the meaning of the elector.

3. The part of the judgment below that violated the Public Official Election Act due to the purchase by electors is reversed.

to the extent that the part of the facts charged is reversed, the third party's contribution which is selectively prosecuted shall be made.

Election campaigns in relation to the violation of the Public Official Election Act and commercial competition due to the violation of restrictions on activities;

Since the violation of the Public Official Election Act due to the violation of the period is to be reversed together, the judgment below.

All judgments must be reversed.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion.

We conclude that it is so decided as per Disposition by the assent of all participating Justices.