[1] The scope of " newspapers, communications, magazines, or agencies, organizations, or other publications of institutions, organizations, or facilities" under Article 95 (1) of the former Public Official Election and Prevention of Unlawful Election Act

[2] The limit of the organization permitted to conduct an election campaign by using printed materials under the proviso of Article 87 of the former Act on the Election of Public Officials and the Prevention of Election Malpractice

[3] The case holding that it does not constitute an act permitted under the proviso of Article 87 of the former Act on the Election of Public Officials and the Prevention of Election Illegal Acts that a trade union distributes to its members the severe weather alerts issued immediately before an election for the purpose of election, not a regular institution

[1] In light of the overall system of the Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of Mar. 12, 2004) under Article 95 as a special rule with respect to Article 93 of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of Mar. 12, 2004) and the general system of the Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of Mar. 12, 2004) that takes strict restriction with respect to the election campaign, the "New Examination, etc." which is allowed to distribute by interpretation of Article 95 shall be limited to the case where a media organization, such as a newspaper, telecommunication, and broadcasting, has been subject to regulation with respect to the fairness of the contents of the report for a considerable period of time and has not been permitted by the interpretation of Article 95 of the Act on the Election of Public Officials and the Prevention of Unlawful Election.

[2] In light of the fact that an individual or political party including a candidate under the Public Official Election and Prevention of Election Illegal Act is permitted to conduct an election campaign only within the extent permitted by the same Act, even though it is an organization permitted to support or oppose a specific political party or candidate pursuant to the proviso of Article 87 of the former Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 7189 of March 12, 2004), it shall not be deemed that an election campaign can be carried out without any restriction for supporting or opposing a specific political party or candidate. In light of the fact that an organization permitted to carry out an election campaign distributes printed materials to its members, even if it is examined in relation to the act of distributing printed materials, it shall not be deemed that the organization's act constitutes a violation of the provisions of Articles 64 through 66, 95, 111, 138, and 139, etc. of the same Act including the name of the political party or its dissenting opinion after the above organization's decision was made, it shall not be deemed that the organization's act of supporting or opposing the members of a specific political party.

[3] The case holding that it does not constitute an act permitted under the proviso of Article 87 of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of March 12, 2004) that a trade union distributed to its members the severe weather alerts ( severe weather alerts) issued immediately before an election for the purpose of election, not a regular institution

[1] Article 95 of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of March 12, 2004) / [2] Articles 87 and 93 (1) of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of March 12, 2004) / [3] Articles 87, 93 (1), and 95 of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of March 12, 2004)

Defendant

Prosecutor

Law Firm Busan, Attorneys Yoon In-sap et al.

Busan High Court Decision 2003No479 delivered on May 19, 2004

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

We examine the grounds of appeal.

1. Summary of the facts charged in this case

The defendant, as one of the 16th presidential election unions, was 0:00 on December 16, 202, 16:00 to 08:0, the 10th anniversary of the 16th presidential election, and the 2nd anniversary of the 10th anniversary of the 16th presidential election (the defendant's name was omitted); the 5th anniversary of the 10th presidential election, the 1st anniversary of the 10th presidential election, and the 1st anniversary of the 10th presidential election, the 3th presidential candidate for the Democratic Labor (the name was omitted); the 5th presidential election, the 1st anniversary of the 10th presidential election, the 5th presidential election of the 2nd presidential election of the 2nd presidential election of the 3th presidential election of the 2nd presidential election of the 2nd presidential election of the 3th presidential election of the 3th presidential election of the 2nd presidential election of the 3th presidential election of the 4th presidential election of the 3th presidential election of the 2nd political party.

2. The judgment of the court below

According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which acquitted the defendant on the ground that the defendant did not violate Article 93 (1) of the Public Official Election Act, since the court below acknowledged the fact that the defendant cited the evidence of the first instance court and distributed the same printed materials as the above facts charged to the members of the Hyundai Motor Vehicle Trade Union, the above printed materials constitute an institution that posted articles related to the election under Article 95 of the Public Official Election Act, and the defendant's act of distributing the above printed materials to the above members is permitted by Article 87 of the

3. The judgment of this Court

However, this decision of the court below is not acceptable.

A. Article 95(1) of the Public Official Election Act provides that "No one shall distribute or distribute any newspaper, communication, magazine, or organ or other publication of any institution, organization, or facility that carries articles concerning the election in any way other than ordinary ways" in Article 95(2) provides that "any person who violates the provisions of Article 95(1) shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding 6 million won" in Article 252(1) provides that "any person who violates the provisions of Article 95(1) shall be punished by imprisonment with labor for not more than 9 years or by a fine not exceeding 90,000 won in light of the purpose of Article 93 and Article 95(2) provides that "no one shall issue or distribute any newspaper, communication, magazine, institution, organization or facility, or other publication that has been published in the same way as an article concerning the election" and "no more than 900,000,000 won in the case of an ordinary news report or news report which has been published or published."

However, according to the records, the above printed materials are the title of "the severe weather alert of the current Labor Relations Commission" rather than a fixed institution, and the local election on June 13, 2002 and the presidential election on December 19, 2002, and they are published only once before the above election, and they are published there. In light of the above legal principles, the above printed materials do not constitute "the newspaper, etc., for which distribution is allowed by the interpretation of Article 95 of the Public Official Election Act."

B. In light of the fact that individuals including candidates themselves and political parties are allowed to engage in election campaign only within the extent permitted by the Public Official Election Act, even though they are organizations permitted to support or oppose a specific political party or candidate pursuant to the proviso of Article 87 of the Public Official Election Act, it cannot be deemed that they are allowed to carry out election campaign without any restriction. In addition, even if an organization permitted to engage in election campaign distributes printed materials to its members, the act of using printed materials is subject to strict restrictions in Articles 64 through 66, 93, 95, 111, 138, and 139 of the Public Official Election Act, the act of distributing printed materials to the members of a specific political party or candidate after the above organization decided to hold a general meeting or in a manner that does not violate the provisions of Article 87 of the Public Official Election Act, excluding the act of distributing printed materials, etc. to the members of a specific political party or in a way that does not know or oppose the contents of the resolution by the members of a specific political party, excluding the act of distributing materials, etc.

According to the records, the above printed materials are distributed after a considerable time after the date of the resolution to support candidates for the Democratic Labor Force of the Hyundai Motor Vehicle Trade Union, and they are distributed at least three days before the election day, and there seems to have been widely known that there was such resolution. In light of the above legal principles, the above printed materials are not entirely recorded in the decision-making process or the decision-making process of the above trade union related to the 16th presidential election and only contain the contents supporting candidates for the Democratic Labor Party. Examining these circumstances in light of the above legal principles, even though the act of distributing the above printed materials to the above members was conducted in accordance with the above trade union's decision that allowed election campaign, and it constitutes an election campaign in violation of Article 93 (1) of the Public Official Election Act, and it does not constitute an act permitted under the proviso of Article 87 of the Public Official Election Act.

C. Thus, the defendant's act of distributing the above printed materials violates Article 93 (1) of the Public Official Election Act. However, the court below erred in the misapprehension of legal principles as to "a newspaper, etc. carrying articles related to an election under Article 95 of the Public Official Election Act" and the scope of election campaigns permitted under the proviso of Article 87 of the Public Official Election Act, which affected the conclusion of the judgment. Thus, the ground of appeal pointed out this error is with merit.

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yang Sung-tae (Presiding Justice)