Whether a candidate may be punished under Article 258 (2) 1 of the Act on the Election of Public Officials and the Prevention of Election Unlawful Act, where the candidate has paid election expenses without reporting the deposit account before the person in charge of accounting is appointed (negative)

In light of the provisions of Articles 123(1), 125(1), 127(1) and (2), and 258(2)1 of the Act on the Election of Public Officials and the Prevention of Unlawful Election, the candidate cannot be held liable to open and report a deposit account for the revenues and disbursements of election expenses until he/she appoints or reports a person in charge of accounting, notwithstanding the provisions of Article 125(1) of the same Act. Thus, even if the candidate received or disbursed the election expenses without opening and reporting a deposit account before he/she appoints or reports a person in charge of accounting, such act shall not be punished by applying Articles 258(2)1 and 127(2) of the Act on the Election of Public Officials and the Prevention of Unlawful Election Act.

Articles 123(1), 125(1), 127(2), and 258(2)1 of the Act on the Election of Public Officials and the Prevention of Election Malpractice

Defendant

Defendant

Busan High Court Decision 96No4 delivered on April 4, 1996

The judgment below is reversed, and the case is remanded to Busan High Court.

1. The decision shall be made ex officio;

According to the reasoning of the judgment of the court below, the court below acknowledged the criminal facts that the defendant was elected as a candidate for the election district in Yangsan-gun in the election of members of the Yangsan-gun on June 27, 1995, and the candidate was granted 1,000,000 won to the non-indicted cip, an election campaign worker, before the election office of the defendant located in the same Myeon principle, and paid 1,000,000 won for the election expenses without going through the deposit account as allowances, actual expenses, etc., and found that the court below applied Articles 258 (2) 1 and 127 (2) of the Public Official Election and Prevention of Unlawful Election Act (hereinafter referred to as the "Act") to the so-called judgment of the defendant.

Article 125 (1) of the Act provides that "any person who intends to be a candidate or a candidate (including an accountant in charge of a political party in the case of the presidential election) shall take charge of the affairs concerning the revenues and disbursements of the election expenses before the appointment or report of the person in charge of accounting is made, in accordance with the provisions of Article 127 (Revenues and Expenditures of Election Expenses)." Article 127 (2) of the Act provides that "the person in charge of accounting shall take charge of the revenues and disbursements of all the election expenses only through the deposit account as provided in paragraph (1)." Article 258 (2) 1 of the Act provides that "where the political party, candidate or accountant in charge violates the provisions of Article 127 (Revenues and Expenditures of Election Expenses), he/she shall be punished by imprisonment for not more than two years or by a fine not exceeding four

Article 123(1) of the Act provides that "a political party (limited to a presidential election, an election of the National Assembly member, and an election of proportional representative City/Do council member) or a candidate (including an election of the chief of the election campaign liaison office) shall appoint one person in charge of accounting to carry out an election campaign for each election campaign office and election campaign liaison office without delay after a candidate's registration application and report his/her name, address, and resident registration number in writing to the relevant election commission." Article 127(1) of the Act provides that "when a political party or candidate appoints or reports a person in charge of accounting, he/she shall immediately open a deposit account for revenues and disbursements of election expenses at a financial institution with the location of the relevant election office or election campaign liaison office, and the name, deposit owner, name of the financial institution, type of deposit account, and deposit account number of the relevant political party or candidate shall be reported to the competent election commission, notwithstanding Article 125(1) of the Act, a candidate shall not be deemed to have any obligation to report the revenues and expenditure of election expenses to the competent election commission."

Nevertheless, the court below found the defendant guilty by applying Articles 258 (2) 1 and 127 (2) of the Act to the so-called "the judgment of the court below" as to the judgment of the court below. The court below erred in the misapprehension and application of each of the above provisions, and it is obvious that such illegality affected the conclusion of the judgment, so the judgment of the court below shall not be reversed.

2. Therefore, without examining the Defendant’s grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Sung-sung (Presiding Justice)