[1] Whether Article 114 of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts applies to a case where the head of a unit agricultural cooperative, who intends to run in the election of Provincial Council members, operated a university of senior citizens and provided tourism with the funds of the cooperative, and supervised such events (affirmative), and whether it constitutes an advance election

[2] The case holding that there is no justifiable ground under Article 16 of the Criminal Code where his act was judged to be lawful

[1] From April 11, 1995 to May 19, 195, when working as the head of a Eup-Myeon-unit agricultural cooperative, a person who was elected as a candidate for the election of the Provincial Council member implemented on June 27, 1995, established the first elderly university by inviting senior citizens in Eup-Myeon-type including his constituency at the above cooperative during the period from April 11 to May 19, 195. On May 10 of the same year, the first elderly university was established at the above cooperative's expense of KRW 1,80,00 for the above union's 110 students at the above cooperative's college, while carrying out folk village tourism, the senior citizens who were located at the place of departure at around 00 and carried out the above event under his supervision on May 19 of the same year. In light of the above provision, if the head of the above cooperative, who is an executive of the above association, was able to estimate his name as a candidate for the above election, it constitutes an unlawful act of the defendant 1 and the above candidate.

[2] The case holding that there is no justifiable ground to believe that the defendant's act was not a crime, solely on the ground that the defendant's act was legitimate as a customary act due to an accident by a non-professional on the Public Official Election and Prevention of Election Illegal Act

[1] Articles 59, 112, 114, 254(3), and 257 of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [2] Article 16 of the Criminal Act, Articles 254(3), and 257 of the Act on the Election of Public Officials and the Prevention of Unlawful Election

Defendant

Defendant

Attorney Lee Dong-dong et al.

Daegu High Court Decision 95No574 delivered on February 9, 1996

The appeal is dismissed.

The grounds of appeal are examined.

1. The decision of the court below is just in holding that the facts constituting a contribution act under Article 112 (1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election (hereinafter referred to as the "Public Official Election Act") for the first or 10 criminal facts as stated in the judgment of the court of first instance and at the same time constitutes a prior election campaign, and it is merely an act harmful to courtesy and official duties and therefore it is not a contribution act and it is not a prior

2. The court of first instance, as cited by the court below, held that the defendant was working as the head of an Eup-Myeon and elected at the election for the Gyeongbuk Provincial Council member implemented on June 27, 1995 and established the first elderly university during the period of donation prohibition as of April 11, 195 to May 19, 110 of the same year, with a charge of KRW 1,80,000 for the above 110 students at the above association's university's college's expense for the above 1,80,000, while carrying out Ansan-dong tourism as of May 10 of the same day, the court below's prior election for the above 08:00 senior citizens who were working as the head of an Eup-Myeon-dong National Agricultural Cooperative, and as such, did not constitute an unlawful act of violation of the legal principles as to the above 14th election campaign's prior election as an executive officer at the above association's meeting meeting held on May 19, 1995.

3. The Defendant asserted that he asked the employee of the election commission before making the contribution act of this case, and according to the record, the witness stand-down of the first instance court, a general secretary of the planning division of the above union, stated in the court of first instance that "at least 10 days prior to the establishment of the elderly university, the regular member of the union asked questions about whether the above union violated the election law on the front line of the election, and that the election should not be made only after the election should be made (Article 204 of the trial record)" (Article 204 of the trial record). However, the above statement is doubtful as to whether the above questions were made in light of the witness's and the defendant's relations, and it cannot be considered as materials to recognize that the above answers were given to the above purport, and therefore, it cannot be acknowledged that the above questions and verbal replys were made.

Therefore, the defendant, in the end, determined that the defendant's act was legitimate as a formal act due to an accident on his own, who is a non-professional in the Public Official Election Act. This circumstance alone does not necessarily mean that there is a justifiable reason to believe that the defendant's act was not a crime. Therefore, the court below did not err in the misapprehension of the legal principle of Article 16 of the Criminal Act.

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

Justices Ahn Yong-sik (Presiding Justice)