[1] Whether a crime of violation of Article 230 (1) 5 and 4 of the Act on the Election of Public Officials and the Prevention of Unlawful Election is established in a case where money, valuables, or other benefits are provided in connection with an election campaign at the competition in the party competition to elect a candidate to be recommended by a political party to run in an election for public office (affirmative with qualification)

[2] The case reversing the judgment of the court below that recognized the violation of Article 230 (1) 5 and 4 of the Act on the Election of Public Officials and the Prevention of Unlawful Election Act as to the act of conducting an election campaign to a specific candidate and receiving money, valuables and other benefits during the competition campaign conducted by a political party to elect a candidate to run in an election for public office

[1] The term "election campaign" under Articles 230 (1) 5 and 230 (1) 4 and 135 (3) of the Act on the Election of Public Officials and the Prevention of Unlawful Election refers to an act for the success or defeat in an election at an election for public office under Article 2 of the same Act. Therefore, where the act for the election or defeat in an election at a competition for the election of a political party to be present at an election for public office does not fall under the act for the election or defeat in an election, and where money, valuables and other benefits are provided in relation thereto, a crime of violation of Article 230 (1) 5 and 4 of the same Act may not be established. However, in fact, it can be assessed that an act for the election or defeat in an election for public office under Article 2 of the same Act is an act for the election or defeat in an election within the election for public office only in exceptional cases where it can be assessed that such act is an act for the election or defeat in an election within the election for public office.

[2] The case reversing the judgment of the court below that recognized the crime of violation of Article 230 (1) 5 and 4 of the Act on the Election of Public Officials and the Prevention of Unlawful Election Act as to the act of conducting an election campaign for a specific candidate and receiving money, valuables and other benefits during the competition campaign conducted by a political party to elect a candidate to run in an election for public office

[1] Articles 2, 58(1), 135(3), and 230(1)4 and 5 of the Act on the Election of Public Officials and the Prevention of Election Malpractice / [2] Articles 2, 58(1), 135(3), and 230(1)4 and 5 of the Act on the Election of Public Officials and the Prevention of Election Malpractice

Defendant 1 and 24 others

Defendants

Gwangju High Court Decision 2002No698 delivered on December 26, 2002

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

The grounds of appeal are examined (to be examined ex officio as to Defendant 2).

1. According to the reasoning of the judgment of the court below and the reasons of the judgment of the court of first instance as cited by the court below, the defendants were convicted of the defendants as to the expenses for activities necessary for conducting an election campaign for the transfer of debt by requesting the support of the transfer of debt to the voters residing in Gwangju City who were candidates for the election of Gwangju City which was implemented on June 13, 2002, and by receiving the application for the participation of the citizen voters in the democratic candidate competition scheduled to be implemented on May 4, 2002, as to the transfer of debt, from April 18, 2002, where the election campaign for the Democratic Party Gwangju City which started in full time on April 18, 202 to be carried out for the transfer of debt, as well as the facts that the expenses for activities or transfer of debt necessary for conducting an election campaign for the transfer of debt or the election campaign for the transfer of debt was conducted on April 30, 2002, as well as the money and valuables to be provided in accordance with the Public Official Election Act No. 2014.

2. Article 230(1)5 and 4 of the Act provides that any person shall be punished to receive money, valuables, or other benefits in connection with an election campaign regardless of the pretext such as allowances, actual expenses, and compensation for volunteers, in violation of Article 135(3) of the Act, and Article 135(3) of the Act provides that any person may not receive money, valuables, or other benefits in connection with an election campaign regardless of the pretext such as allowances, actual expenses, and compensation for volunteers, except where allowances, actual expenses, etc. are provided under the provisions of this Act. Article 2 of the Act provides that this Act shall apply to the election of the presidential election, National Assembly members, election of local council members, and the head of a local government, and Article 58(1) of the Act provides that "election campaign" in this Act means an act to get elected or getting another person to be or not to be elected, and therefore, "an act of violation of Article 230(1)5 and 4 and Article 135(3) of the Act shall not be established within the scope of the election to be recommended for the election or the election of the candidate to be elected.

According to the records, some defendants received the application for the participation of the citizen elector's team in the democratic Gwangju City for the purpose of raising their friendship and relatives, and some defendants requested the support for the transfer to the person decided as the citizen elector's team, and some defendants requested the support for the transfer to the person decided as the citizen elector's team, and after the transfer from the candidate, some defendants requested the support for the transfer to the transfer to the candidate. Thus, in light of the fact that the above defendants' act appears to be an act to be an act to elect the candidates from the party competition in the democracy party within the democracy party, and that the transfer to the candidate in the process of the internal competition party competition, it is difficult to judge that the defendants' act was practically from that time to that of the campaign for the election in the Gwangju City election market.

Nevertheless, the court below found Defendants guilty of the violation of Article 230 (1) 5 and 4 of the Act. In so doing, it is erroneous in the misapprehension of legal principles as to the violation of Article 230 (1) 5 and 4 of the Act, which affected the conclusion of the judgment. The grounds for appeal pointing this out are with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)