Whether the crime of obstruction of performance of official duties by fraudulent means is established in a case where a ballot paper is marked on a ballot paper so that a ballot inspector for an election of the chairman of a local council can distinguish who has cast his/her seal on the ballot paper from who has cast his/her vote on the ballot paper (affirmative)

Article 137 of the Criminal Act

Defendant

Defendant

Daejeon District Court Decision 2009No229 Decided June 30, 2009

The appeal is dismissed.

The grounds of appeal are examined.

The local council shall elect the chairperson and the vice-chairperson of the local council from among the council members by a secret vote (Article 48 of the Local Autonomy Act), the chairperson of the local council shall maintain order in the meeting place and supervise the affairs of the council (Article 49 of the same Act). In the election of the chairperson of the local council, each member elected the chairperson by a secret vote, and the chairperson shall maintain order in the meeting place where a secret vote is taken and supervise the affairs of election of the chairperson

On the other hand, a secret vote is an election method prepared in order to prevent any elector from being aware of who cast his vote. Accordingly, the act of marking the ballot paper on the paper to distinguish who is a member of the ballot box for the election of the chairman of the local council from who cast his vote in advance is an infringement on the secrecy of the secret vote, and then, if the vote was then cast on the paper, it constitutes an act that interferes with the chairman’s duties of election by the secret election and the chairman’s duties of supervising the voting affairs of the chairman in a deceptive way. Furthermore, even if a member is aware that the secrecy was infringed, it does not interfere with the execution of his duties of the National Assembly members and the chairman’s above duties.

We affirm the judgment below to the same purport. Contrary to the allegations in the grounds of appeal, we do not err by misapprehending the legal principles as to obstruction of performance of official duties

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)