[1] The meaning of “office of the party members council, etc. for the operation of subordinate organizations of a City/Do party” prohibited under the Political Party Act and the standard for determining whether to be established

[2] In a case where Defendant (the chairman of the Local Committee for Party Party A) was indicted for violating the Political Parties Act by establishing an individual office at his/her own expense and using the same external office as “office of party members council, etc. for the operation of a City/Do party subordinate organization”, the case holding that the judgment below which found Defendant not guilty on the ground that there were various circumstances that the above office was actually utilized as a office space for the main purpose of the party members council activities of Party Members A

[1] In light of the purport of Article 3 of the former Political Parties Act (amended by Act No. 7190 of Mar. 12, 2004), and Articles 3 and 37 of the Political Parties Act, “office of party members council, etc. for the operation of subordinate organizations of a City/Do party” prohibited to be established refers, regardless of the name, to the fixed place of business that actually deals with affairs such as the organization, organization, activities, and support of party members council, etc. of the subordinate organization of a City/Do party, regardless of the organization, the term “office of party members council, etc. for the operation of the subordinate organization of the City/Do party” refers to the organization of the party members council, etc. of the relevant City/Do party and its subordinate organization. As to whether it is actually applicable, the determination should be made by comprehensively taking into account various circumstances, such as the purpose and function of the location of the facility at issue, the name and sign of the relevant City/Do party members council

[2] In a case where Defendant (the chairman of the Local Committee for Party Party Party A) was indicted for violating the Political Parties Act by establishing an individual office using the name of “an incorporated association” as “office of party members council, etc. for the operation of a City/Do party subordinate organization” at his/her own expense, the case holding that the lower court erred by misapprehending the legal principles as to the interpretation of “office of party members council, etc.” prohibited under the Political Parties Act, and by failing to exhaust all necessary deliberations, the lower court found Defendant not guilty solely on the ground that the said office did not fall under the “office of the party members council, etc. for the operation of a City/Do party subordinate organization” on the ground that the said office was actually used as an office space for the main purpose of the activities of the party members council, even though there are various circumstances to deem that the office was actually used as a office space for the operation

[1] Article 3 of the former Political Parties Act (amended by Act No. 7190 of March 12, 2004); Articles 3, 37, and 59(1)3 of the Political Parties Act / [2] Articles 37(3) and 59(1)3 of the Political Parties Act

Defendant

Prosecutor

Jeonju District Court Decision 2011No126 decided May 13, 2011

The judgment of the court below is reversed, and the case is remanded to the Jeonju District Court Panel Division.

The grounds of appeal are examined.

1. Article 3 of the former Political Parties Act (amended by Act No. 7190 of March 12, 2004) provides that "political parties shall be composed of a central party located in the waterworks and a district party for the local constituency: Provided, That where necessary, a party branch may have a party branch in the Special Metropolitan City, Metropolitan City, and Do, and a Gu/Si/Gun may have a party liaison office in the Gu/Si/Gun, if necessary, in order to improve the structure of a political party for high expenses and low-efficiency, by amending the Political Parties Act by Act No. 7190 of March 12, 2004, and abolish the district party system, the political party may establish a party members council for each local constituency and autonomous Gu/Si/Gun, Eup/Myeon/Dong." Provided, That anyone may not establish an office for the operation of a party members council under Article 37(3) of the Political Parties Act.

Article 37 of the Political Parties Act declares the freedom of political party's activities, provides that the act of promoting its own policies or current political issues by using printed materials, facilities, advertisements, etc. and the act of recruiting party members (excluding door-to-door visits) as ordinary political party activities without supporting, recommending, or opposing a specific political party or candidate for a public election (including a person intending to become a candidate) shall guarantee that the party activities may be conducted as ordinary party activities. As such, even though the party activities may establish a party members council by the local constituency for the National Assembly members and the autonomous Gu/Si/Gun, Eup/Myeon/Dong, as an exception to the freedom of party activities, the office for the operation of the relevant City/Do party's subordinate organization is prohibited.

In light of the purport of this provision, the office of the party members council, etc. for the operation of the subordinate organization of a City/Do party, regardless of its name, refers to a fixed place facility that actually deals with the affairs of the organization, organization, activities, support, etc. of the party members council corresponding to the subordinate organization of the City/Do party, regardless of its name. Moreover, as to whether it is actually applicable, it shall be determined by comprehensively taking into account various circumstances, such as the purpose and function of the relevant place facilities; the name and function of the relevant place facilities; whether the relevant party members council, etc. uses the name and signs related to the subordinate organization of the City/Do party; whether a human resources dealing with the affairs such as the party members council, etc. are permanently stationed or frequently

2. The court below affirmed the judgment of the court of first instance that acquitted the facts charged of this case on the ground that it is difficult to deem the office of this case as the "office of party members council, etc. for the operation of subordinate organizations of City/Do party" established by the defendant, the chairman of the △△△△ City local committee, to be "office of party members council, etc. for the operation of the subordinate organization of City/Do party", such as holding regular meetings at the office of this case, or managing party members or party members fees on a regular basis, such as managing party activities and other affairs related to the political party. However, the court below affirmed the judgment of first instance that acquitted the defendant on the facts charged of this case on the ground that it is difficult to view that the office of this case constitutes "office of party members council, etc. for the operation of subordinate organizations of City/Do party" solely on the ground that the defendant used part of the human and material facilities of the party members council established and operated at his own expense for the preparation of the party members conference.

3. According to the reasoning of the lower judgment and the evidence duly adopted by the first instance court, the Defendant: (a) went out on April 9, 208 at the election district of the 18th National Assembly members; (b) from May 208, at the local committee for △△△ City (○○○ Party appears to fall under the party members council prescribed by the Political Parties Act); (c) at its own expense, the Defendant established the instant office on the third floor of the building located in △△△△△ City (hereinafter omitted); (d) the Defendant did not carry out specific activities related to the instant office for the establishment of the △△△△△△△ City’s office without obtaining permission from the competent government office for the establishment of the said office; and (e) the Defendant did not frequently carry out the activities of the △△△△ City’s office for the 10th National Assembly members, including the fact that the 2nd office of the 1st election of the 1st National Assembly members and the 2nd office of the 1st National Assembly members of the △ City.

According to these facts, although the instant office has the same appearance as the Defendant’s personal office established at the Defendant’s expense under the name of “△△△ branch of an incorporated association”, the instant office shows that it is related to the local committee of △△△△△ because it is a banner that contains political-related relief under the name of the local committee of △△△△△△ City. The instant office was used as a place for the meeting of party members in this region, a place for the countermeasures to prepare the party members meeting, a place for supporting the activities of the local committee of △△△△△ City, or a place for contact with the local committee of △△△△ City, a place for supporting the activities related to the ○○ branch of the central committee, or an external agency of the local committee of △△△△△△ City, and accordingly, the instant office was recognized as the office of △△△△△ City or its related office, in addition to the activities of the said △△ City local committee, and the instant office was used for the purpose of utilizing the local committee as its main office.

4. Therefore, the lower court should have sufficiently deliberated on the various circumstances that the instant office should be considered when determining whether the Defendant’s personal and material facilities of the instant office were “office of party members council, etc. for the operation of the City/Do party subordinate organizations” in the process of preparing the party members’ rally or conducting the activities of the party members council, and should have determined whether the instant office constitutes “office of the party members council, etc. for the operation of the City/Do party subordinate organizations” in light of the aforementioned legal doctrine, and should have determined whether the instant office constitutes “office of the party members council, etc. for the operation of the City/Do party subordinate organizations.” Accordingly, the lower court erred by misapprehending the legal doctrine on the interpretation of “office of the party members council, etc. for the operation of the party members council, etc.” prohibited by the Political Parties Act, and by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

5. 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 Shin Young-chul (Presiding Justice)