[1] The meaning of and criteria for determining "election campaign" under Article 58 of the Act on Entrusted Elections by Public Organizations, etc.

[2] The meaning of "the purpose to be selected in preference" under Article 23 of the Act on Entrusted Elections by Public Organizations, etc.

[3] The meaning of "providing money, etc." under Article 58 of the Act on Commissioned Elections by Public Organizations, Etc., and the meaning of "Direction" to provide money, etc., and whether there must be a relationship between a person who provides money, etc. and the other party, or a strict direction and supervision relationship at an organization or workplace (negative)

[1] “Election campaign” under Article 58 of the Act on Commissioned Elections by Public Organizations, Etc. (hereinafter “Act on Commissioned Elections”) refers to all acts necessary and favorable for the success or defeat of an election in the commissioned election under Article 3 of the Act on Commissioned Elections, which are an active and planned act that can be objectively recognized as an objective purpose of promoting the success or defeat of an election (Article 23 of the Act on Commissioned Elections). Specifically, when determining whether a certain act constitutes an election campaign, the type of an act as well as the type of the act, namely, the time, place, method, etc. of the act, shall be objectively determined from the perspective of an elector, by comprehensively observing the following as a whole:

[2] The purpose of Article 23 of the Act on Commissioned Elections of Public Organizations, Etc. (hereinafter “Act on Commissioned Elections”) is to contribute to the sound development of public organizations, etc. and the development of a democratic society by ensuring that elections by public organizations, etc. are carried out clean and fair. Thus, “the purpose of being elected” as stipulated in Article 23 of the Act on Commissioned Elections refers to the act of having the electors, etc., who are provided with money, goods, entertainment, other property benefits, or a public or private position (hereinafter “property benefits, etc.”) directly affect voting by the pertinent voters, etc. who are provided with such property benefits and the public or private position (hereinafter “property benefits, etc.”) or having them do an act that may affect the voting will of others or that affects the election of a specific candidate.

[3] “Provision of money, etc.” under Article 58 of the Act on Commissioned Elections by Public Organizations, Etc. refers to the ordinary reversion of money, etc. to the other party, and an act of offering money, etc. in contrast thereto requires the other party to unilaterally leave to provide money, etc., and such act does not necessarily require a strict relationship between the person who gives instructions and the other party to direct or supervise such an organization, workplace, etc.

[1] Articles 3, 23, and 58 of the Act on Commissioned Elections by Public Organizations, etc. / [2] Articles 1, 23, and 58 of the Act on Commissioned Elections by Public Organizations, etc. / [3] Article 58 of the Act on Commissioned Elections by Public Organizations, etc.

[1] Supreme Court en banc Decision 2015Do11812 Decided August 26, 2016 (Gong2016Ha, 1457) / [2] Supreme Court Decision 2013Do5399 Decided January 29, 2015 (Gong2015Sang, 408)

Defendant

Defendant

Attorneys Yellow-gu et al. and two others

Changwon District Court Decision 2015No1064 decided September 21, 2016

The appeal is dismissed.

The grounds of appeal are examined.

1. (a) Article 58 of the Act on Commissioned Elections by Public Organizations, Etc. (hereinafter “Entrusted Election Act”) provides that an elector (including a person eligible to enter the electoral register before preparing the electoral register) or an institution, organization, or facility established and operated by his/her family members or the elector or his/her family members shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding 30 million won.

B. Here, “election campaign” refers to all acts necessary and favorable for winning or defeating an election in an entrusted election prescribed in Article 3 of the Commissioned Election Act, which can be objectively recognized by the intention of promoting the success or defeat of an election (Article 23 of the Commissioned Election Act). Specifically, in determining whether an act constitutes an election campaign, the form of an act as well as the name of the act should be comprehensively observed, i.e., the time, place, method, etc. of the act in question, and whether the act is an act accompanying the purpose of promoting the election or defeat of a specific candidate from the perspective of the elector (see, e.g., Supreme Court en banc Decision 2015Do1812, Aug. 26, 2016).

In addition, the purpose of the Commissioned Election Act is to contribute to the sound development of public organizations, etc. and the development of a democratic society by ensuring that elections by public organizations, etc. are clean and fair. Thus, the term “purposes to be elected” under Article 23 of the Commissioned Election Act refers to an act of directly affecting voting by the relevant elector, etc., who is provided with money, goods, entertainment, other property benefits, or public or private positions (hereinafter “property benefits, etc.”) or an act of causing the elector, etc., who is provided with property benefits, etc. to affect voting by the relevant elector, etc. (see Supreme Court Decision 2013Do5399, Jan. 29, 2015, etc.).

C. In addition, the term “providing money, etc.” generally refers to the reversion of money, etc. to the other party, and in contrast, the act of offering money, etc. to the other party is unilaterally causing the other party to perform an act of offering money, etc., and it does not necessarily require any relationship or strict direction and supervision relationship between the person under instructions and the other party.

2. According to the evidence duly admitted by the court below, the following facts are revealed.

A. On March 8, 2015, the Defendant released Nonindicted 1 Livestock Cooperatives (hereinafter “Nonindicted 1 Livestock Cooperatives”) as a candidate for the president of Nonindicted 1 Livestock Cooperatives (hereinafter “Nonindicted 1 Livestock Cooperatives”) at the first election of the head of the Dong-si Cooperative, which was scheduled to take effect on March 11, 2015, and was a member of Nonindicted 1 Livestock Cooperatives (hereinafter “Nonindicted 1 Livestock Cooperatives”) who left for the election day on March 8, 2015, and was the one who was the elector of Nonindicted 2, as a member of Nonindicted 1 Livestock Cooperatives, around 10:47, where the election day remains.

B. At the time, the Defendant: (a) visited Nonindicted 2’s stable with Nonindicted 1’s list as a member of the livestock cooperative; (b) visited Nonindicted 2; and (c) told Nonindicted 2 that another candidate could not defend himself/herself as he/she purchased an act. The Defendant: (a) specifically mentioned the name of 17 members residing in the above ○○○ Council; and (b) made preparations in advance to the effect that he/she would cause harm to the rest of the members except the five members who have a friendly relationship with the Defendant; and (c) delivered the cash amount of KRW 1.3 million (50,00 won) to Nonindicted 2; and (d) as indicated in the modified criminal facts, the Defendant indicated the specific purpose of the above 1.3 million won as stated in the revised criminal facts in the instant case, “The Defendant sent KRW 100,000 per head, including Nonindicted 2, and brought KRW 1.02 million at the expense.”

C. The Defendant is working for more than 40 years at Nonindicted 1 Festivals. Around December 2014, at the election of the head of the said association, retired from office last, and Nonindicted 2 was elected as a non-permanent director of the livestock cooperative, and became aware of the Defendant’s work together with the Defendant while working as a representative. The Defendant and Nonindicted 2 are trend, and the Defendant is much more age than Nonindicted 2.

3. Examining the above facts in light of the legal principles as seen earlier, even in the case of KRW 100,000,000,000,000,00,000,000, which was paid by the Defendant to Nonindicted 2, the elector, the elector, and was paid to Nonindicted 2, the elector, and there is no aspect that Nonindicted 2 could be seen as the consideration for the service of delivering money to other voters. However, there is sufficient reason to recognize that Nonindicted 2 delivered money to the intent of promoting the election of the Defendant in relation to the election of the head of the association of the association of Nonindicted 1 Livestock Cooperatives, and there is sufficient reason to recognize that Nonindicted 2 provided money to the elector for election campaign. In addition, the Defendant’s delivery of KRW 110,000,00 to other members of the association by delivering KRW 1100,000,000,000 to the other members of the association constitutes an act of ordering the provision of money for election campaign

According to the reasoning of the judgment below, the court below’s determination that the modified facts charged in this case were guilty on the grounds as stated in its reasoning is justifiable and justifiable. Contrary to what is alleged in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on the purpose, provision, and instruction of election campaigns

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

Justices Kim Jae-hyung (Presiding Justice)