[1] The meaning of "the secrecy of voting" under Article 167 (1) of the Public Official Election Act

[2] In a case where the head of the village arbitrarily decided the voting intention from the abode voters without any consent of the abode voters and puts their votes, the case holding that the crime of infringing on the secrecy of voting under Article 241 of the Public Official Election Act cannot be established on the ground that there is no indication of the above abode voters' intention at all through voting, and there is no "confidential of voting"

[3] In a case where the head of the village, who recommended a specific candidate to put a mark on behalf of the residence voter, and the above voter puts a mark on the above candidate directly with the intention to express his explicit objection, the case holding that the crime of infringing on the secrecy of voting under Article 241 of the Public Official Election Act cannot be established since the secrecy of voting cannot be deemed to exist, and it constitutes "any act of voting or making another person cast a vote by other fraudulent means" under Article 248 of the same Act

[1] In full view of the overall structure and system of the Public Official Election Act, and the provisions of Article 167 of the Public Official Election Act (hereinafter “voting” or “voting”), it is reasonable to interpret the “confidential of voting” under Article 167(1) of the Public Official Election Act to mean “the result of voting” as indicated in the elector’s intent by voting act.

[2] In a case where the head of the village arbitrarily determines the voting intention from the abode voters without any consent of the abode voters and puts their votes, the case holding that the crime of infringing voting secrets under Article 241 of the Public Official Election Act cannot be established on the ground that there is no indication of the above abode voters' intention at all through voting, and there is no "confidential of voting"

[3] In a case where the head of the village, who recommended a specific candidate to put a mark on behalf of the residence voter, and the above voter directly puts a mark on the above candidate who failed to express his explicit objection, the case holding that the crime of infringing on the secrecy of voting under Article 241 of the Public Official Election Act cannot be established on the ground that the secrecy of voting cannot be deemed to exist, and it constitutes "any act of voting or making another person cast a vote by other fraudulent means" under Article 248 of the same Act

[1] Articles 167(1), 242, and 248 of the Public Official Election Act / [2] Articles 167(1) and 241 of the Public Official Election Act / [3] Articles 167(1), 241, and 248 of the Public Official Election Act

Defendant

J. J. J.T.

Attorney Park Jong-young

1. The defendant shall be punished by a fine of 800,000 won;

2. If the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for a period calculated by converting 50,000 won into one day.

The defendant is a person who is engaged in agriculture as a head of Si, Si (Myeon, Ri omitted).

1. On May 21, 2006, at the office of the defendant located in Busan Metropolitan City (detailed address omitted) around May 21, 2006, at the fourth local election held on May 31, 2006, when the defendant was requested by the non-indicted 1, who caused the abode polling, to help him enter the list on the abode polling paper prior to the election, to help him enter the list on the abode polling paper, the defendant voluntarily decided the candidate to put the list on his own, and then by sending it by mail to the Busan Metropolitan City Election Commission as if Non-indicted 1 entered and sent the list on May 23, 2006;

2. In the same place as of May 22, 2006 at the same time, in relation to the above local election, upon the request of Nonindicted 2, who had caused the Defendant to enter the ballot paper from Nonindicted 2 who had caused the abode polling place prior to the election, the Defendant directly put a mark on Nonindicted 3 upon Nonindicted 2’s consent, upon Nonindicted 2’s recommendation to put the mark on the ballot paper from Nonindicted 3 of the same region. In the election of the basic council members, upon Nonindicted 2’s consent, the Defendant directly put the mark on Nonindicted 3. In the remaining election, the Defendant voluntarily determined the candidate to put the mark on the ballot paper and posted it on May 23, 2006.

1. Statement made by the defendant in this court;

1. Statement of the suspect interrogation protocol of the defendant prepared by the assistant judicial police officer (including the substitute part of the defendant's interrogation protocol of non-indicted 4);

1. Statement of each statement made by the judicial police assistant on Nonindicted 1 and 2

1. A written accusation and a written answer (Non-Indicted 4)

1. Relevant Article of the Act and the choice of punishment for the crime;

Article 248 (1) of the Public Official Election Act and Selection of Fines

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Summary of the primary facts charged

The defendant is a person who is engaged in agriculture as the head of Sinsan City (Myeon, Do omitted). Although no one infringes on the secrecy of voting, he infringed on the secrecy of voting of non-indicted 1 and 2 as follows.

A. On May 21, 2006, at the office of the defendant located in Busan Metropolitan City (detailed address omitted) and at the 4th local election held on May 31, 2006, upon the defendant's request from non-indicted 1, who had conducted an abode polling report, to help him enter the list on the ballot paper, the defendant voluntarily determined the candidate to record and sent the list to the Busan Metropolitan City Election Commission on May 23, 2006.

B. Around May 2, 2006, at the same place, at the same time and around May 22, 2006, the defendant was requested by Nonindicted 2, who had caused the abode polling report prior to the election, to help him enter the ballot paper. In the election of the basic council members, he recommended Nonindicted 2 to enter the ballot paper to Nonindicted 3 of the same region, and approved him, the defendant directly entered the ballot paper to Nonindicted 3, and in the remaining election, he voluntarily decided the candidate to record, and then sent the ballot paper to the Busan City Election Commission around May 23, 2006.

2. Determination:

A. The meaning of "the secrecy of voting" under Article 167 of the Public Official Election Act

Article 167 of the Public Official Election Act provides, “The secrecy of voting shall be ensured. ② The elector does not have any duty to make a statement to anyone with the name or political party name of the candidate who cast a vote, any person shall not be asked until the close of the election day, or shall not request any statement. ③ The elector shall not disclose the ballot papers on which he/she has cast, and shall not make the public the vote papers open to the public.” As to the act of using a deceptive method in the voting process or participating in another person’s voting, separate provisions [Article 242 of the Public Official Election Act] are provided for in the Act on interference with and interference with voting and ballot counting (Article 248 of the Public Official Election Act).

In full view of the overall structure and regulatory structure of the Public Official Election Act and the provisions of Article 167 of the Public Official Election Act, which are the applicable provisions of this case, (hereinafter “voting”), it is reasonable to interpret that “the secrecy of voting” under Article 167(1) of the Public Official Election Act means “the result of voting” which is clearly indicated by the elector’s intent through voting act (Article 167(2) through (4) of the same Act specifies specific types of prohibited acts to ensure the secrecy of voting (Article 167(2) through (4) of the same Act).

B. Whether the Defendant infringed the confidentiality of the residence voter’s vote

(1) First, we examine the portion on which the Defendant entered the ballot paper in the remaining election except for the basic election as provided in paragraphs (1) and (2) of the facts charged in the instant case.

This part of the facts charged is that the Defendant arbitrarily decided and puts the vote without any consent from Nonindicted 1 or Nonindicted 2, the residence voter, and there is no indication of the above residence voter’s intention through the voting act. Therefore, there is no “the secrecy of voting” under Article 241 of the Public Official Election Act. Therefore, the crime of infringement of secrecy of voting under Article 241 of the Public Official Election Act cannot be established.

(2) Next, as to the portion on which Nonindicted 2’s consent was obtained in the ballot paper for the basic election of a National Assembly member under paragraph (2) of the facts charged in the instant case.

According to the records, Nonindicted Party 2 is a senior citizen of 83 years of age who was living in the village where the defendant was living in this Do and was supported from the defendant at any time due to the circumstances such as not reading his writing and not good health conditions. Nonindicted Party 2 requested the defendant to find the defendant on May 22, 2006 and to help him cast his residence voting. Accordingly, on behalf of Nonindicted Party 2, the defendant recommended Nonindicted Party 3, who was the candidate for the basic parliamentary election, to put his vote on his own (name omitted) on behalf of Nonindicted Party 2, and then put his seal on Nonindicted Party 2 to Nonindicted Party 3, who did not express any opposing opinion, and on the other hand, Nonindicted Party 2, who stated in the investigative agency, was unable to properly detect the situation at the time of signing the above residence ballot paper.

Comprehensively taking account of such fact-finding, the Defendant recommended Nonindicted 2, the elector, to put a mark on a specific candidate, and did not explicitly express objection, and cannot be deemed to have reflected Nonindicted 2’s active intent in the record. Furthermore, even if the actual subject of the above voting is Nonindicted 2, insofar as the actual subject of Nonindicted 2 did not directly put a mark, it cannot be deemed that Nonindicted 2’s “the secrecy of voting” is not established, and even if not, it cannot be said that the Defendant’s act was merely an assistance in the process of forming “the secrecy of voting” of Nonindicted 2, and it cannot be said that it infringed on it.

Therefore, in relation to this part of the facts charged, it cannot be deemed that there exists or infringed upon the secrecy of Non-Indicted 2’s voting, and thus, it cannot be said that the crime of violation of voting secrecy under Article 241 of the Public Official Election Act is established.

3. Conclusion

Therefore, since the facts charged in the primary charge of this case against the defendant are not a crime or there is no proof of facts constituting a crime, it shall be pronounced not guilty pursuant to Article 325 of the Criminal Procedure Act. However, as seen earlier, inasmuch as the defendant is found guilty of a violation of the Public Official Election Act by means of fraudulent voting, which is the ancillary charge of this case, (the act of the defendant was actually involved in voting on the ground that a person who is not the elector has aided in voting on the ground that he has aided in voting, so it is recognized as "the act of voting or having by other fraudulent means"

The defendant, as this Chapter, committed an illegal act detrimental to a fair election by neglecting his/her duty to maintain political neutrality in relation to the election and voting in a deceptive way. The defendant did not intend to intervene in the election from the beginning, but appears to have led to the case in the process of attempting to cast a residence vote for the village senior citizens who first requested assistance from the defendant. The defendant was the first offender and is in profoundly against his/her mistake, and other circumstances, such as the defendant's age, family environment, etc., shall be determined by taking into consideration various circumstances.

Judges Lee Jae-hoon (Presiding Judge)