Whether the act of giving money or goods to an intermediary who is a simple custodian or a mere private person is included in the "providing" under Article 230 (1) 4 and 5 of the Act on the Election of Public Officials and the Prevention of Election Fraud (negative)

The term "providing money, goods, and other benefits" under Article 230 (1) 4 and 5 of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts does not necessarily mean the reversion of money, goods, etc. to the other party, and even though the other party receiving such money, goods, etc. is a so-called intermediary who is not the party to whom such money, goods, etc. belong, as long as there is a possibility of judgment and discretion on the objects or method of allocation, the amount of allocation, etc., and the amount of money, goods, etc., even if there is no designated portion to which such money, etc. belongs, the offering of money, goods, etc. to such person is included in the "providing" under the above provision. However, if the intermediary is a simple custodian or a private person who acts in a heart to deliver a specific money, etc. to a specific person, giving money, etc

Article 230 (1) 4 and 5 of the Act on the Election of Public Officials and the Prevention of Election Malpractice

Supreme Court en banc Decision 2001Do2819 Decided February 21, 2002 (Gong2002Sang, 734)

Defendant 1 and one other

Prosecutor

Busan High Court Decision 2004No420 delivered on August 11, 2004

All appeals are dismissed.

We examine the grounds of appeal.

Article 135(3) of the Act on the Election of Public Officials and the Prevention of Election Malpractice (hereinafter “Public Election Act”) provides that no person may provide, or express an intention to provide, money or goods, or other benefits in connection with the election campaign, or promise, instruction, solicitation, mediation, demand or receive such money or goods, or other benefits, or may promise, offer, offer, or receive such money or goods, or other benefits in connection with the election campaign regardless of the pretext, except where allowances, actual expenses, or other benefits are provided pursuant to the provisions of the same Act. Article 230(1)4 of the same Act provides that anyone who expresses or promises to provide money or goods or other benefits in connection with the election campaign in violation of the provisions of Article 135(3)5 of the same Act (hereinafter “Public Election Act”) shall be punished for each person who receives or promises to provide such money or goods, or who provides such benefits to the other person, even if such money or goods are not delivered to the other party, it shall be included in the scope of 20% of the amount of such money or goods to be distributed.

According to the reasoning of the judgment below, with regard to the defendants' violation of Article 230 (1) 5 of the Official Election Act among the facts charged in this case against the defendants, the court below acknowledged that the defendants received the above money from the non-indicted 1's husband non-indicted 1's husband non-indicted 2's post-school and aided election campaign upon his request. The defendants received the money as stated in the facts charged by the non-indicted 1's order and temporarily stored it. ② The defendants delivered the above money to the non-indicted 1's non-indicted 1's order, such as the name and contact of the person who will receive the money from them, and the other party delivered the money to the non-indicted 1's non-indicted 2's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 2's non-indicted 3's non-indicted 1's money to be distributed or non-indicted 3's non-indicted 1's money to be distributed.

Examining the reasoning of the judgment below in light of the records and the legal principles as seen earlier, we affirm the above fact-finding and judgment of the court below as just, and there is no error in the misapprehension of legal principles as to "the provision of money or goods or other benefits" under Article 230 (1) 4 and 5 of the Official Election Act due to the violation of the rules of evidence or in the misapprehension of legal principles as to "the provision of other benefits"

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

Justices Kim Yong-dam (Presiding Justice)