Defendant 1 and one other

Defendants

Kim Sung-sung

Attorney Lee Do-wheeled

Suwon District Court Decision 2005Gohap193 Decided February 8, 2006

Of the judgment of the court below, the part on Defendant 1 is reversed.

Defendant 1 is not guilty.

Defendant 2’s appeal is dismissed.

1. Summary of the facts charged

Co-defendant 1 of the court below is the president of the Korea Medical Association; Defendant 1 is the vice president of the Korea Medical Association; Defendant 2 is the chairman of the Sungnam City Association;

A. Defendant 1 in collusion with the above Nonindicted Party 1:

On April 30, 2005, when non-indicted 2, the president of the Korea National Assembly member's re-election in Seongbuk-gu, Seongbuk-gu, Sungnam-gu, who was established on April 30, 2005, went out as a candidate for the Korea National Assembly member, Non-indicted 2, who was active as the president of the Korean Medical Association at the time of the campaign against the opposition to the medical division as the president of the Korean Medical Association, was judged to be favorable to the medical community, such as the Korean Medical Association, in case where the above non-indicted 2, who was elected as a member of the National Assembly at the time of the campaign against the medical division as the president of the Korean Medical Association, was elected as a member of the Korean Medical Association. On April 30, 2005, after completing the standing committee at the Korean Medical Association in Yongsan-gu, Yongsan-gu, Seoul, the non-indicted 1, who was gathered in the office of the president, will not assist the above non-indicted 1 in the election for the last time.

Defendant 1 and the above non-indicted 1 attend the above gathering on April 19, 2005, on the 1st floor of the Jung-gu, Sung-gu, Sung-gu, Sung-gu, Sung-gu, Seoul, the first floor of the general meeting of the society of Sung-nam. Defendant 1 and the above non-indicted 15 who are affiliated with the society of Sung-nam, including Non-indicted 3, the president of the Gyeonggi-do Association, the president of the society of Sung-nam, the chairman of the society of Sung-nam, the general secretary of the society of Sung-nam, and the non-indicted 4, the non-indicted 1, who attended the meeting of the above gathering. Defendant 1 used the existing candidate's intention to use the candidate's existing meeting for the purpose of opening the meeting with the non-indicted 1's counter-indicted 3, the non-indicted 3, the chairman of the society of Sung-nam, and the non-indicted 1, who made a great effort to be elected at this time.

B. Defendant 2:

As stated in the preceding paragraph, when Nonindicted 2, a doctor of Sungnam City, who is the president of the above defendant, went out of the election of National Assembly members of the Republic of Korea, determined that if he is elected, he would be favorable to the society of Sungnam City, and that he was unable to pay any support that falls short of the limit at the time of the 17th presidential election, and that there was insufficient election funds, such as hearing the horses that he did not receive any employee’s benefits from the relevant person of the election campaign office at the time of the registration of the preliminary candidate.

On April 19, 205, in order to encourage members to transfer support money to Nonindicted 2’s supporters’ associations by making phone calls to executives, such as Nonindicted 4, and members of the Sungnam-si society, and requesting support from members of the Sungnam-si society, thereby encouraging members to pay support money. As in the preceding paragraph, on April 19, 2005, the society of Sungnam-si was held on April 19, 2005, and the above Nonindicted 1, the president of the Association of Sungnam-si, was allowed to attend the above conference, he recommended Nonindicted 2 to take personnel at the meeting, and then used the existing organization called the society of Sungnam-si for the candidate, such as allowing members to find and take personnel affairs in the above meeting in the first meeting.

2. The judgment of the court below

The lower court found the Defendants guilty of all the charges of this case on the ground that, even if there was an organization permitted to support a specific candidate under the former Public Official Election Act (amended by Act No. 7681, Aug. 4, 2005; hereinafter referred to as the “Public Official Election Act”), insofar as there was a public opinion to support Nonindicted 2 candidates without going through the procedures for making decisions on the organization’s will, such as a general meeting, under the premise that it may conduct an election campaign after having decided to support and oppose the candidate through the procedures for making decisions on the organization’s will, such as a general meeting, etc., in this case, insofar as there was a formation of a public opinion to support Nonindicted 2 candidates by the majority of the members, it cannot be readily concluded that the support for Nonindicted 4 candidates is the intention of the Korean Doctor Association or the organization of the Sungnam City Society in violation of the main sentence of Article 89(1) of the Public Official Election Act.

3. Summary of grounds for appeal;

The purpose of the main text of Article 89(1) of the Public Official Election Act is to prohibit the use of a specific candidate's organization for an election campaign regardless of the intention of the organization permitted to engage in an election campaign, and it does not necessarily require that the organization be subject to the procedure of decision-making by the general meeting, etc. for an election campaign even when the intention of the organization is clear. On the ground that it is clear that the Korean Doctor Association and the organization's intention in relation to the re-election of the member of the Sungnam-gu National Assembly in Seongbuk-gu implemented on April 30, 2005 support for Nonindicted 2 candidates, who are the result of the intention, can carry out an election campaign on behalf of the above organization, as the officers of the Korean Doctor Association or Sungnam-gu Society, on behalf of each of the above organizations, and thus, the Defendants were guilty of all the facts charged in the instant case, despite the fact that the Defendants did not violate the provision prohibiting an election campaign

4. The judgment of this Court

A. Regarding the relationship between the main sentence of Article 89(1) of the Public Official Election Act and the election campaign of an institution or organization that is permitted to engage in an election campaign

(1) Article 89(1) of the Public Official Election Act is a provision for maintaining equity in election campaign organizations among candidates and preventing excessive competition and waste due to the establishment of similar organizations, such as various forms of election campaign organizations (see, e.g., Supreme Court Decision 2005Do3932, Feb. 9, 2006). Even if an institution, organization, organization, or facility is already established, any person uses the said institution, organization, organization, or facility directly or indirectly for the purpose of making a certain candidate elected or not to be elected, i.e., using the said institution, organization, organization, or facility for the purpose of conducting an election campaign, and constitutes an illegal election campaign pursuant to Article 255(1)13 of the same Act.

However, Article 87 (1) of the Public Official Election Act provides that "An institution or organization falling under any of the following subparagraphs shall not conduct an election campaign under its name or the name of its representative," and lists an institution or organization which is prohibited from conducting an election campaign under subparagraphs 1 through 8 of Article 87 of the Public Official Election Act [Article 87 (Prohibition of Organization Election Campaign) of the Public Official Election Act (amended by Act No. 6663 of March 7, 2002) provides that "any institution or organization shall not act to support, oppose, or oppose a specific political party or candidate in its name or name of its representative in the election campaign regardless of its name, such as an association, foundation, or others, and regardless of its name, and any institution or organization that violates subparagraphs 1 through 3 of Article 81 of the Trade Union and Labor Relations Adjustment Act shall not be deemed to have committed an election campaign in violation of Article 81 (1) 1 through 3 of the same Act, and therefore, an institution or organization shall not be deemed to have engaged in any specific election campaign."

(2) However, in light of the legislative intent of Article 1 of the Public Official Election Act and the fact that a candidate himself/herself is allowed to carry out an election campaign only within the extent permitted under the same Act, it shall not be deemed that an election campaign can be carried out in support of or opposing a specific candidate without any restriction, and even in conducting such election campaign, it shall be in accordance with the same Act (see Supreme Court Decisions 2003Do782, Apr. 25, 2003 and Supreme Court Decision 2001Do6511, Mar. 12, 2002). Considering the legislative intent of Articles 87(2), 81 and 89(1) of the same Act, where an election campaign is permitted, it shall not be deemed that an institution or organization is allowed to carry out an election campaign for a specific candidate regardless of the total number of members of another institution or organization, and thus, it shall not be deemed that the aforementioned organization has an ordinary nature of the institution or organization's decision to support or oppose the election campaign in an exceptional manner.

(3) A prosecutor asserts that an election campaign can be carried out only through the ordinary procedure of determining the intention of an organization such as a general meeting. However, even if the language and text of Article 87(1) of the Public Official Election Act itself does not necessarily require that an organization be subject to the required decision-making procedure for the organization’s decision-making (former Article 87 provides that “only an organization that is able to hold an interview or debate with a candidate, other than a trade union, may hold an interview or debate with a candidate,” and there is room for any different interpretation.” (2) The types of institutions or organizations permitted an election campaign under the Public Official Election Act are so diverse that the decision-making procedure are also various forms, and accordingly, each kind of such decision-making procedure is difficult or impossible prior to the election campaign due to the election strategy. If it is interpreted that the organization’s decision-making procedure should be necessarily carried out for the election campaign, an institution or organization’s decision-making procedure, such as a general meeting, etc., is not in violation of the principle of equal opportunity to carry out an election campaign.

(4) Based on the above legal principles, we examine the Defendants’ grounds for appeal in sequence.

B. As to Defendant 1’s grounds of appeal

(1) In full view of the evidence duly examined and adopted by the lower court and the evidence presented by the defense counsel, the following facts can be acknowledged.

(a)The Korean Medical Association is a corporation established under Article 26 of the Medical Service Act with the aim of promoting social welfare, promotion of national health, protection of the rights and interests of its members, and friendship among its members. The Korean Medical Association constitutes a person who has obtained a Korean Medical Doctor's license, and forms the Federation and its branches by Si/Gun/Gu, and its decision-making body has the Board of Directors and the General

(B) On November 18, 2001, the Korean Medical Association opened a national resolution and declared the political power of the Medical Association while the president of the Si/Gun/Gu Council was present in the process of the government-wide strike due to the so-called pharmaceutical distribution situation at the time of November 18, 2001, and began actively participating in the 16th presidential election in 2002 and the 17th National Assembly election in 2004.

Specifically, in accordance with the articles of association on April 27, 2002, the Korean Medical Association established the "Out-of-the-Counter Cooperation Committee" under the standing committee, and held a lecture for inviting candidates for the President and a debate for inviting candidates for each political party. Accordingly, in the 16th presidential election held around December 2002, the Korean Medical Association expressed its intention to disclose the candidates for the 17th presidential election. On January 7, 2004, the Korean Medical Association held the "Public Health and Medical Policy Committee" with the aim of achieving the political power of the 17th presidential election of the National Assembly members in 2004 and held the "Public Health and Medical Policy Committee" with the aim of reflecting the political power of the 17th presidential election of the National Assembly members, and established a detailed plan to reflect the opinions of the Korean Medical Policy Committee from the 2002 Standing Committee in the policies on candidates, the Korean Medical Policy Association and the National Assembly member candidate policies on the same day in lieu of the National Health and Medical Policy Committee.

(C) On April 15, 2004, the said Special Committee on Planning of the Games held a meeting once more and discussed specific measures to implement the said detailed plan. During that process, the said Special Committee decided to support the election of the candidates from the doctors, such as Nonindicted 2 candidates, who were going to the election district in Seongbuk-gu, Sungnam-gu, Seoul Special Metropolitan City, and developed active support activities at the level of the Korean Association of Doctors.

(D) A candidate for Nonindicted 2 who participated in the re-election of the instant member of the National Assembly was active as an opening business in Seongbuk-gu, Sungnam-si, and was elected from March 200 to the president of the Sungnam-si Association. From May 200, the candidate was elected as the chairman of the Committee for the Posing against the Rights of the National Assembly from May 200, and performed his duties for three years after being elected as the president of the Association of the Korea National Assembly in 2001. A candidate, who participated in the re-election of the instant member of the National Assembly in 2004, went out to Sungnam-si and was elected as a member of the National Assembly.

(E) On December 1, 2004, prior to the instant reelection of the National Assembly member, the said Special Committee held the first meeting on December 1, 2004, to ascertain in advance anticipated candidates for the re-election in 2005, and cope with the election efficiently and promptly, and decided to actively recommend and support the members so that they can be recruited as candidates for each political party, and thereafter, Defendant 1, who was the chairman of the said Special Committee, started specific support activities under the initiative of Defendant 1. For this purpose, Defendant 1, as in the instant facts charged, discussed with the above non-indicted 1, the president of the Association, discussed the measures to support the candidates for the non-indicted 2 candidates who were going to the constituency in Seongbuk-gu, Sungnam-gu, Seoul, and discussed with the chairman of the Association, and each City/Do branch sought support for the non-indicted 1’s re-election of the National Assembly member of this case. On April 19 of the same year, the non-indicted 1, 2004>

(f)The Assembly of Representatives, which are other decision-making bodies of the Association of Korean Doctors, shall be composed of a total of 250 fixed delegates and proportional delegates, and shall be an organization which shall resolve important matters within the Association of Korean Doctors, such as matters concerning budget and settlement of accounts, and amendments to the Articles of Incorporation, through an extraordinary meeting held in April of each year by legitimate request for convocation.

(2) As revealed in the above facts, Defendant 1’s act of supporting Nonindicted 2’s election is based on the policy for supporting the candidates for the special election of National Assembly members from the result of the intention decided at the 9th meeting of the Overseas Planning Special Committee, which is a subordinate organization of the Korea Medical Association’s standing director. Although there was no prior consent or approval from the General Assembly of Representatives, considering the nature and size of members of the Korean Medical Association, the convenience of the resolution at the General Assembly of Representatives and the general meeting, the history of supporting the previous election of the Korean Medical Association, and the relationship with Nonindicted 2’s personal history and the Korean Medical Association, it is evident that Defendant 1’s act of supporting Nonindicted 2’s candidate in the re-election of this case constitutes an election campaign on behalf of the father of the Korean Medical Association and the chairman of the above external Planning Special Committee, and there is no evidence to prove otherwise in the facts charged against the Defendant.

(3) Therefore, the facts charged against Defendant 1 should be judged not guilty on the ground that there is no proof of crime. Since the court below erred by misapprehending the legal principles on organizations permitted to engage in election campaign under the Public Official Election Act, and found Defendant guilty of the facts charged, the above Defendant’s appeal is with merit.

C. As to the grounds of appeal by Defendant 2

(1) Comprehensively taking account of the evidence duly examined and adopted by the court below, Defendant 2 is the president of the Sungnam City Association, a branch of the Korea Medical Association, and the above non-indicted 2, a doctor under his jurisdiction, went out the re-election of the National Assembly member of this case. On April 2005, the above non-indicted 2, a doctor under his jurisdiction, requested support by calling the executive officers, such as the general secretary director of the Sungnam City Association, non-indicted 4, etc., and the members of the Sungnam City Association, and urged him to visit and pay support payments to the above non-indicted 2. On April 19, 2005, the fact that the 15 doctors of the Sungnam City Association held on April 19, 205 and 15 doctors of the Sungnam City, who belong to the Sungnam City Association, have the above non-indicted 2 find and take personnel affairs at the meeting. Accordingly, the above defendant can be recognized as using the existing organization of Sungnam City for the election of the above non

(2) Furthermore, according to the above legal principles, the above defendant's act is legitimate as an election campaign of the organization called Sungnam City. In other words, there was no resolution to support the candidate for non-indicted 2 through the organization's internal regulations in the Sungnam City society, and even before the re-election of this case, there was no activity for the election of the candidate for non-indicted 2 at the organization level in the Sungnam City society. There are 52 Bans in the Sungnam City society, which is the election district in this case, 1 Bans in the Sungnam-gu, which is the election district in this case, and it is difficult to view that the above defendant's meeting was a meeting of the above Jungnam City Council's members belonging to the above Jungnam City Council and its members cannot be seen as a meeting for determining the total amount of the members of the society in Sungnam City as the above non-indicted 2's members, even if the Sungnam City Association is an organization permitted to engage in the election campaign, and thus, the defendant's act cannot be seen as a legitimate organization's opinion.

(3) Therefore, the lower court’s judgment that found Defendant 2 guilty of the facts charged in this case is justifiable, and there were no errors by misapprehending the facts or by misapprehending the legal principles, and the above Defendant’s assertion is without merit.

5. Conclusion

Therefore, since the appeal by Defendant 1 is well-grounded, the part of the judgment of the court below against the above defendant is reversed pursuant to Article 364(6) of the Criminal Procedure Act, and the appeal by Defendant 2 is again decided as follows. Since the appeal by Defendant 2 is without merit, it is dismissed pursuant to Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition

The summary of the facts charged in this case against Defendant 1 is the same as that of the above Paragraph 1, and as determined in the above Paragraph 4-A, this constitutes a case where there is no proof of facts constituting a crime, and thus, not guilty under the latter part of Article 325 of the Criminal Procedure Act

Judges Hong-il (Presiding Judge)