[1] The meaning of the "person in the relevant constituency" and "person who has relations with the electoral resident" under the former Public Official Election Act / Whether the act of contribution under Article 112 (1) of the former Public Official Election Act is established on the premise that it exists in the constituency where the "election district" under the same paragraph refers to the constituency for the National Assembly member (affirmative), and the meaning of the election district where the "election district" under the same paragraph refers to the constituency for the National Assembly member (=attached Table 1 of Article 25 (2) [Attachment 1] of the same Act at the time of the act of contribution

[2] In a case where the defendant was prosecuted for violating the Public Official Election Act by providing gifts to the electorates in connection with the election campaign of Gap who registered as a preliminary candidate for the local constituency National Assembly member, the case affirming the judgment of the court below that the act of offering goods by the defendant with respect to the election of the local constituency National Assembly member does not constitute a contribution act under the same Act during the period in which the schedule of the local constituency National Assembly member becomes invalid under the Constitutional Court's inconsistency with the Constitution

[1] Article 112(1) of the former Public Official Election Act (amended by Act No. 14073, Mar. 3, 2016; hereinafter the same applies) provides, “The term “contribution” in this Act means an act of offering money, goods, and other property benefits to a person in the relevant constituency, a meeting or event of an institution, organization, facility, or an elector in the relevant constituency, or a person who is outside the relevant constituency but has relations with the electorate, or an act of expressing his/her intent to provide such benefits, or an act of promising to provide such things to him/her, although there is an absence of such a meeting or event: (a) a candidate’s contribution (Article 113); (b) a third party’s contribution act (Article 114); (c) a person who made a contribution in violation of this provision (Article 257(1)); and (d) a person who directly or indirectly has an influence on a person who has an address or residence in the relevant constituency, or a person who has a relation with the elector’s family member or person who has relations with him/herself.”

As such, insofar as the Public Official Election Act specifies the other party to a contribution act through the concept of "relevant constituency", a contribution act under Article 112 (1) of the former Public Official Election Act may be established on the premise that it exists in effect at the time of the act. However, Article 25 (2) of the former Public Official Election Act provides that "the name of the constituency for the National Assembly member and its district shall be as shown in attached Table 1], and since Article 112 (1) of the former Public Official Election Act provides that "the name of the constituency for the National Assembly member and its district shall be as listed in attached Table 1, the relevant constituency refers to a constituency provided for in the schedule of the National Assembly member district for the National Assembly member at the time of the act."

[2] In a case where the defendant was prosecuted for violating the Public Official Election Act by providing gifts to electorates in connection with the election campaign of Party A registered as a preliminary candidate for the local constituency National Assembly member, the case affirming the judgment below that the defendant, on October 30, 2014, decided that "the election district for the local constituency of the local constituency does not conform with the Constitution, and the above election district for the local constituency of the local constituency of the local constituency of the National Assembly is applied continuously until the legislators revised on December 31, 2015 (see, e.g., Constitutional Court en banc Decision 2012Hun-Ma190, Oct. 30, 2014); since the National Assembly did not confirm the new goods list for the local constituency of the local constituency of the National Assembly member by December 31, 2015, the above election district of the local constituency of the National Assembly member of the National Assembly becomes invalid as the Act No. 1371, Oct. 16, 2016>

[1] Article 25(2) [Attachment I] of the former Public Official Election Act (Amended by Act No. 14073, Mar. 3, 2016); Article 112(1), Articles 113, 114, 115, and 257(1) of the current Public Official Election Act / [2] Article 25(2) [Attachment I] of the former Public Official Election Act (Amended by Act No. 14073, Mar. 3, 2016); Article 25(3) [Attachment I] of the former Public Official Election Act (Amended by Act No. 14073, Mar. 3, 2016); Article 112(1) and 115, Article 257(1)1 of the current Public Official Election Act; Article 325 of the Criminal Procedure Act

[1] Supreme Court Decision 2006Do9043 decided Mar. 30, 2007 (Gong2007Sang, 655)

Defendant

Prosecutor

Attorneys Yellow-gu et al. and two others

Daegu High Court Decision 2016No483 decided December 1, 2016

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 112(1) of the former Public Official Election Act (amended by Act No. 14073, Mar. 3, 2016; hereinafter the same shall apply) provides that “The term “contribution” in this Act means an act of offering money, goods, and other property benefits to a person in the relevant constituency, a meeting or event of an institution, organization, facility, or electorate, or an act of holding such a meeting or event outside the relevant constituency, or an act of holding such a meeting or event, or a person who has relations with the electorate, an expression of intent to offer such benefits, or an act of promising to offer such things, even though such person is outside the relevant constituency: (a) a candidate’s contribution act (Article 113); (b) a third party’s contribution act (Article 114; Article 115); and (c) a person who has made a contribution act in violation of this provision is punished by a person who has a direct or indirect relation with the electorate, such as a person who has an address or abode in the relevant constituency, but is directly or indirectly affected by the elector’s.”

Inasmuch as the Public Official Election Act specifies the other party to a contribution act through the concept of “relevant election district,” the act of contribution under Article 112(1) of the former Public Official Election Act shall be deemed to be established on the premise that the election district in question remains effective at the time of the act. However, Article 25(2) of the former Public Official Election Act provides that “The name and the district of the election district for the National Assembly members shall be as shown in attached Table 1” (attached Table 1) provides that “The name and district of the election district for the National Assembly members shall be as specified in attached Table 1).” Therefore, in a case where the “election district” as provided in Article 112(1) of the former Public Official Election Act refers to the election district in the table of the election district for the National Assembly members, it is reasonable to view that the election district refers

2. According to the reasoning of the lower judgment, the lower court sentenced the Constitutional Court on October 30, 2014, that “Article 25(2) [Attachment Table 1] of the Public Official Election Act (amended by Act No. 11374, Feb. 29, 2012) does not conform with the Constitution, and the said schedule of the election district for the local constituency for the National Assembly shall continue to apply until the legislators revised the said schedule with the deadline of December 31, 2015 (see, e.g., Constitutional Court en banc Order 2012Hun-Ma190, Oct. 30, 2014); however, the lower court determined that the said schedule of the election district for the local constituency for the National Assembly was invalid from January 1, 2016 to the new schedule of the election district for the local constituency for the National Assembly under the former Public Official Election Act because the National Assembly did not confirm the new schedule of the election district for the local constituency for the National Assembly under Article 25(3) of the former Public Official Election Act.

In light of the above legal principles, such determination by the court below is just, and contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles on the meaning of “relevant constituency” under Article 112(1) of the former Public Official Election Act

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

Justices Kim Shin (Presiding Justice)