[1] The legislative intent of Article 89(1) of the former Act on the Election of Public Officials and the Prevention of Unlawful Election Act and the scope of similar institutions prohibiting establishment

[2] The meaning of prior election campaign under the Act on the Election of Public Officials and the Prevention of Election Illegal Acts and the criteria for its determination

[3] Requirements for establishing a conspiracy relationship in a conspiracy of co-principal

[4] Requirements for acquiring the status of a paid election campaign worker under the Act on the Election of Public Officials and the Prevention of Election Malpractice

[5] Whether Article 17 of the Addenda to the Public Official Election and Prevention of Unlawful Election Act is unconstitutional (negative)

[6] Whether Article 230 (1) 4 and Article 135 (3) of the former Public Official Election and Prevention of Unlawful Election Act are unconstitutional (negative)

[7] Whether Article 255 (1) 13 and Article 89 (1) of the former Public Official Election and Prevention of Unlawful Election Act are unconstitutional (negative)

[8] Whether Article 255 (2) 5 and Article 93 (1) of the former Public Official Election and Prevention of Unlawful Election Act are unconstitutional (negative)

[1] Article 89(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) is a provision for maintaining the fairness of an election campaign organization among candidates, and preventing excessive competition and waste due to the establishment of various forms of election campaign organizations, and whether a certain institution, organization, or facility constitutes a similar organization that is prohibited under this Article is determined by the existence of the purpose of election campaign. Thus, unless it is established for the purpose of election campaign of a specific candidate, the prohibition under this Article is not violated unless it is established for the purpose of election campaign. The term "election campaign" refers to an act directly or indirectly necessary and beneficial to make a specific candidate elected or not to be elected. Thus, preparation for election campaign does not include the act, and if a person who wishes to be a candidate establishes or installs an institution, organization, or facility as an internal act that does not affect the electors in the pure preparation for election, not for the purpose of election campaign, it does not constitute a violation of the prohibition of establishment under this Article.

[2] In determining whether a certain act constitutes an election campaign, which can be objectively recognized by the intent of the purpose of engaging in an election campaign prior to the election campaign period, the type of the act as well as the context of the act, i.e., the time, place, method, etc. of the act should be comprehensively observed in order to determine whether the act is an act accompanying the purpose of promoting the election or defeat of a specific candidate.

[3] In relation to accomplices who are jointly engaged in a crime by more than two persons, the conspiracy does not require any legal punishment. It is a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no process of the whole conspiracy, if there was a combination of intent to do so in order or impliedly, the conspiracy relationship is established between several persons, and even if there was no direct participation in the conduct, a person is held liable as a co-principal for the other's act.

[4] In order to obtain the status of a paid election campaign worker under the Act on the Election of Public Officials and the Prevention of Election Malpractice, a report must be made to the competent election commission.

[5] Article 17 of the Addenda to the Act on the Election of Public Officials and the Prevention of Election Malpractice ( March 12, 2004) provides that "in the application of the penal provisions to acts before and after the enforcement of this Act, the previous provisions shall govern the application of the penal provisions to acts committed before and after the amendment shall be governed by the Act on the Election of Public Officials and the Prevention of Election Malpractice." The amendment of the Act on the Election of Public Officials and the Prevention of Election Malpractice provides that the application of penal provisions to acts committed before and after the amendment shall be governed by the Act on the Election of Public Officials, the Election of Public Officials shall be newly established and supplemented with various institutional devices to ensure that elections are held fairly and fairly in accordance with free will of the people and democratic procedures. The amendment of the Act on the Election of Public Officials and the Prevention of Election Malpractice of Public Officials shall expand the election campaign by means of various media such as newspapers and broadcasting instead of closing a campaign speech meeting by a joint speech meeting and a political party and a candidate, and shall promote our political culture by creating a new election climate, such as innovation in high election districts and transparent election expenses.

[6] Articles 230(1)4 and 135(3) 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), except where allowances, actual expenses, and other benefits are provided under the same Act, regardless of the pretext, such as allowances, actual expenses, compensation for volunteer service, shall be provided, or the promise, instruction, solicitation, mediation, demand, or receipt of such offer in connection with the election campaign. If a person permits an act of offering benefits in connection with the election campaign, it is difficult to prevent an excessive election campaign, and if an benefit is provided to an election campaign worker, it is difficult to make it difficult for the election campaign worker to readily conclude that the election campaign is conducted for the purpose of benefit of the election campaign and that it is ultimately restricted to the election campaign, and if an act of offering benefits is punished with a restriction on the period of election campaign, it is difficult to ensure that there is no restriction on the freedom and provision of benefits in relation to the election campaign.

[7] Articles 255(1)13 and 89(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) are subject to punishment for the act of newly establishing or establishing or establishing a new one election countermeasure organization for a candidate (including a person who wishes to be a candidate), other than the election campaign office or election campaign liaison office as provided in the same Act, regardless of the name. The proviso of the same paragraph permits exceptions to the establishment of one election countermeasure organization at the office of the central party, district party, etc. of a political party, so it may be deemed that the freedom of election campaign is relatively limited compared to the political party. However, since the political party has a nation-wide organization, the ordinary operating system is inappropriate for dealing with all affairs related to the election, such as preparation of an election campaign across the nation, and therefore, it is reasonable to protect the political party's democracy to a certain extent that it is permitted to protect the activities of a political party.

[8] Articles 255(2)5 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) are subject to punishment for acts such as the distribution or posting of documents and pictures by unlawful means. Restrictions on acts related to this election under Article 93(1) of the same Act are limited to the purpose of ensuring the freedom and fairness of election and ensuring the common interests of the electors including voters and the people concerned, and its legitimacy is recognized. The restriction has the meaning as an institutional device to guarantee the freedom and fairness of election, and it is difficult to present effective means other than prohibiting such acts for a certain period, and in particular, it is reasonable or appropriate in that it takes place in that it does not violate the fundamental rights of the public, such as the freedom of election campaign or the principle of free competition, and it does not violate the fundamental rights of the public, and thus, it does not violate the principle of freedom of expression or the principle of free competition.

[1] Articles 89(1) and 255(1)13 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] Article 254(3) 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] Article 30 of the Criminal Act / [4] Articles 62(3), 63(1) and (2), and 135(1) and (2) of the Public Official Election and the Prevention of Unlawful Election Act / [5] Article 17(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] Article 50(1) and (3) of the former Act on the Election of Public Officials and the Prevention of Unlawful Election Act (amended by Act No. / [130(4) of Article 7(19) of the Act)

[1] Supreme Court Decision 97Do2249 delivered on December 26, 1997 (Gong1998Sang, 468) / [2] Supreme Court Decision 98Do1432 delivered on April 9, 199 (Gong199Sang, 935) / [3] Supreme Court Decision 99Do636 delivered on April 23, 199 (Gong199Sang, 1100), Supreme Court Decision 2004Do5494 Delivered on December 24, 2004 (Gong205Hun-Ba, 222) / [5] Constitutional Court en banc Decision 95Hun-Ma196 delivered on December 28, 199 (Hun-Ba13, 160) / [206Hun-Ba, 208Hun-Ba, 3681 delivered on April 26, 198]

Defendant 1 and four others

Defendants

Attorney Seo-sik et al. (for the defendant 5)

Daejeon High Court Decision 2004No348 delivered on October 28, 2004

All appeals are dismissed.

We examine the grounds of appeal.

1. As to the Defendants’ establishment of a similar organization related to the election campaign and prior election campaign

Article 89(1) 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; hereinafter referred to as the "former Act") provides for the maintenance of fairness in election campaign organizations among candidates, and the prevention of excessive competition and waste due to the establishment of various forms of election campaign organizations. Since it is determined whether a certain institution, organization, or facility is a similar institution prohibited under this Article, it does not violate the prohibition of this Article unless it is established for the purpose of election campaign of a specific candidate, unless it is established for the purpose of election campaign. Here, the term "election campaign" refers to an act directly or indirectly necessary and beneficial to make a specific candidate elected or not, and it does not include an act of preparation for election campaign, and if a person who wishes to be a candidate establishes an internal act that does not affect the electors in a pure manner, not only constitutes an act of preparation for election campaign, but also an act of installation or installation of an institution, organization, or facility for the purpose of election campaign 97.29.

위에서 본 법리와 기록에 비추어 살펴보면, 원심이, 피고인들은 공모하여 제17대 국회의원 선거에 출마하려는 피고인 1의 선거운동을 위하여 공주시 금성동 200-3 소재 2층 건물에 판시와 같은 각종 사무용 집기 및 사무기기를 갖추어 ' 명칭생략'(이하 '이 사건 연구소'라 한다)를 설치하고, 피고인 2는 이 사건 연구소의 자금관리 및 총책임, 공소외 1은 기획실장, 피고인 3은 공주고등학교 동문 담당, 피고인 4는 조직 담당, 공소외 2는 홍보 담당, 피고인 5는 오씨 종친회 담당, 공소외 3은 컴퓨터 작업 및 일반사무처리 담당 등 일정한 역할을 분담한 뒤, 피고인들은 이 사건 연구소에서 피고인 1의 인지도 상승 및 당선을 위한 방법 등에 대해 상의하거나 피고인 2, 피고인 3, 피고인 4, 피고인 5 등은 공주, 연기 선거구내 선거구민들을 직접 접촉하거나 전화를 걸어 피고인 1에 대한 지지를 부탁하거나 마을회의 및 계모임이 개최되는 사실을 알아내어 피고인 1이 그 모임에 참여하여 지지를 부탁하고, 공소외 3으로 하여금 피고인 1 명의로 다수의 선거구민들의 휴대전화에 새해인사를 문자로 전송하고, 피고인 1, 피고인 2와 공소외 2는 윷놀이 대회를 개최하여 선거구민들을 모아 피고인 1에 대한 지지를 호소하는 등 사실상 이 사건 연구소를 피고인 1의 선거 사무실로 사용함으로써 선거운동을 할 목적으로 선거사무소 유사기관인 이 사건 연구소를 설치하고, 위와 같이 사전선거운동을 하였다는 범죄사실을 유죄로 인정한 것은 정당한 것으로 수긍이 가고, 거기에 주장과 같은 채증법칙 위배, 사전선거운동에 관한 법리오해 등의 위법이 없다.

2. As to Defendant 1’s distribution of printed materials and prior election campaign at a master craftsperson’s inspection

In light of the records, the judgment of the court below that found Defendant 1 guilty of the crime of distribution of a name by law and the crime of prior election campaign in a general name company is just and acceptable, and there is no violation of the rules of evidence such as incomplete trial and violation of the rules of evidence.

3. As to the contribution act in the private-school restaurant by Defendant 1 and Defendant 2

원심은, 피고인 1, 피고인 2 및 공소외 2가 사전에 공모하거나 이들 사이에 암묵적으로 상통하여 그 의사의 결합이 이루어져 윷놀이대회라는 명목하에 이학식당에 참석한 자들에게 판시와 같은 경품 및 음식 등을 제공하여 기부행위를 하였다는 범죄사실을 유죄로 인정하였는바, 기록에 비추어 보면, 원심의 위와 같은 사실인정과 판단은 정당한 것으로 수긍이 가고, 거기에 주장과 같은 채증법칙 위배 등의 위법이 없다.

4. As to Defendant 1 and Defendant 2’s offering of money and valuables and expression of intent to offer money and valuables related to the election campaign, and receipt of money and valuables by Defendant 5

In relation to co-offenders who are jointly engaged in a crime, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no process of the whole conspiracy, if the combination of doctors is formed by successively or implicitly through several persons, the conspiracy relationship is established, and even if there was no direct participation in the act of the conspiracy, even if there was no direct participation in the act of the conspiracy, they are held liable for the other co-principal's act as co-principal (see Supreme Court Decision 9Do636 delivered on April 23, 199).

Examining the above legal principles and records in light of the above legal principles, the court below's decision that found Defendant 1 and Defendant 2 guilty of the facts constituting an election campaign with each other in collusion with Defendant 3, Defendant 4, Defendant 5, Nonindicted Party 1, Nonindicted Party 2, Nonindicted Party 2, Nonindicted Party 3, and Nonindicted Party 4, and Defendant 5 guilty of the facts constituting an offense in which Defendant 5 received each amount of money as stated in the judgment in relation to the election campaign from Defendant 2 is just and acceptable, and there is no error of law such as violation of the rules of evidence, incomplete hearing, and misapprehension

5. As to the assertion of misapprehension of legal principles as to Article 62(3) of the Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of March 12, 2004; hereinafter referred to as the "Public Election Act")

Article 62 (3) of the Official Election Act provides that "a preliminary candidate may appoint not more than three election campaign workers, including an election campaign manager, from among persons who are entitled to engage in an election campaign," and Article 135 (1) provides that "any person who is registered as a preliminary candidate may pay allowances and actual expenses to the election campaign manager, the chief of the election campaign liaison office, the election campaign worker, the assistant election campaign worker, and the person in charge of accounting." However, Article 63 (1) of the Official Election Act provides that "when a political party, candidate, preliminary candidate, the election campaign manager, or the chief of the election campaign liaison office appoints or dismisses the election campaign worker, he/she shall report in writing to the competent election commission without delay." Article 62 (2) of the same Act provides that "the election campaign manager shall wear an identification card attached with a photograph issued by the relevant election commission and conduct an election campaign, and if he/she is dismissed, he/she shall immediately return it, but if not returned, he/she may not report the replacement of the election campaign manager."

According to the records, since March 15, 2004 when Defendant 1 registered as a preliminary candidate, there is no evidence to deem that Defendant 4, Defendant 5, and Nonindicted Party, etc. were reported to the competent election commission as election campaign workers, they cannot be deemed as paid election campaign workers permitted under the amended Public Election Act. Accordingly, the court below found Defendant 1 guilty of the total amount paid to them, and there is no error in the misapprehension of legal principles as to paid election campaign workers under Article 62 (3) of the Public Election Act as alleged.

6. As to whether Article 17 of the Addenda to the Public Ship Act and Articles 230(1)4, 135(3), 255(1) and 13, 89, 255(2) and 5, and 93(1) of the former Public Ship Act are unconstitutional

A. As to the claim that Article 17 of the Addenda to the Public Line Act is unconstitutional

Article 17 of the Addenda to the Public Line Act provides that "in the application of the penal provisions to acts before and after the enforcement of this Act, the previous provisions shall govern the application of penal provisions to acts committed before and after the amendment of the Public Line Act shall be based on the Public Line Act before the amendment. The obligation of legislators to the so-called retroactive legislation in a case where the amended new Act is favorable to the subject, is not derived from the principles of the Constitution, and therefore, in determining whether to enact such retroactive legislation, the decision is a matter of legislative discretion, and therefore, in deciding whether to take such mutually advantageous measures, the legislative discretion is recognized, unlike the case where the rights of the people are restricted or new obligations are imposed (see Constitutional Court en banc Decision 95Hun-Ma196, Dec. 28, 1995).

Furthermore, legislators may decide whether to enact a mutually advantageous retroactive legislation in consideration of the legislative purpose, social situation, citizens’ legal sentiment, and the reason or circumstances of the amendment of the law. Such decision should be respected. The decision cannot be deemed to violate the Constitution unless it is remarkably unreasonable and unfair beyond the scope of reasonable discretion (see Constitutional Court en banc Decision 97Hun-Ba65, Nov. 26, 1998).

According to the case of this case, the amendment of the public election law is intended to advance our political culture by establishing and supplementing various institutional devices so that elections can be fairly held in accordance with the free will of the people and democratic procedures, expanding election campaigns through various media, such as newspapers and broadcasting instead of closing the joint speech meeting and the campaign speech meeting by political parties and candidates, and creating a new election climate by innovative high-cost constituency groups and transparent election expenses expenditure. Considering such circumstances as the reason for and content of the amendment of the law, transparent and fair election, and the legal sentiment of the people, it cannot be deemed that the amendment of the former public election law did not make a mutually advantageous retroactive legislation to apply the public election law after the amendment, and thus, it cannot be deemed that the above provision goes beyond the bounds of reasonable discretion on legislative formation, and thus, it cannot be deemed that there is a violation of Article 11(e) and Article 13(2)(e) of the Constitution of the Republic of Korea, Article 15(2)(i) and Article 25(2) of the Constitution of the Republic of Korea.

B. As to the unconstitutionality of Article 230(1)4 and Article 135(3) of the former Official Election Act

Articles 230(1)4 and 135(3) of the former Public Election Act, except for cases where allowances, actual expenses, and other benefits are provided pursuant to the former Public Election Act, regardless of the pretext such as allowances, actual expenses, compensation for volunteer service, etc., shall be subject to punishment for acts of offering money, goods, or other benefits, or of expressing an intention to offer them, or of promising, instructing, soliciting, arranging, demanding, or receiving such offer in connection with an election campaign. If an act of offering benefits in connection with an election campaign is permitted, it is difficult to prevent an election campaign due to excessive election campaign, and if benefits are provided to election campaignors, etc., it is difficult to conduct an election campaign for the purpose of benefit, and ultimately make it difficult to conduct an election campaign and ultimately make it difficult to punish the act of offering benefits related to an election campaign, and if a person is punished with a restriction on a period of time in relation to the act of offering benefits related to an election campaign, it is difficult to punish the act of offering benefits by avoiding such period.

Therefore, the restriction under the above legal provision not only has the meaning of an institutional device to guarantee the freedom and fairness of election campaign, but also has its restriction on election campaign under the premise that the provision of benefits related to election campaign is prohibited to prevent harm, and its restriction is merely a partial restriction on election campaign, not a full-scale restriction on election campaign methods, but a partial restriction limited to the provision of pecuniary benefits, such as money and valuables, in relation to election campaign. Therefore, it cannot be readily concluded that the freedom of election campaign at all is unreasonable or that it should be punished (see Constitutional Court en banc Decision 201Hun-Ba26, Apr. 25, 2002).

Therefore, the foregoing provision shall not be deemed to violate the provisions of Article 10(human dignity and the guarantee of fundamental human rights), Article 11 (Equality and Denial of Special Ranks), Article 15 (Right of Vocational Selection), Article 18 (Right of Communication), Article 24 (Right of Election), Article 32 (1) (Right of Employment), and Article 37 (Respect of Freedom and Freedom of People and Restriction) of the Constitution.

C. As to the unconstitutionality of Article 255(1)13 and Article 89 of the former Official Election Act

Articles 255(1)13 and 89 of the former Public Election Act, other than the election campaign office or election campaign liaison office as provided in the former Public Election Act, are subject to punishment for acts of using similar institutions, organizations, organizations, or facilities for a candidate (including a person intending to become a candidate), regardless of their names, and the proviso of the same Article permits the exceptions for the establishment of one election campaign organization at the offices of central and regional parties, etc. of a political party, and thus, the candidate under its jurisdiction is relatively limited to the freedom of election campaign compared to the candidate of the political party. However, this exceptional provision is a nation-wide organization, and thus, the ordinary operating system is inappropriate in dealing with overall affairs related to the election, such as the preparation of election campaign, etc. throughout the nation, and thus, discrimination is derived from the special protection of the activities of a political party, and thus, such discrimination is reasonable (see Article 255(1)15 of the Constitutional Court en banc Decision 201Hun-Ga15, Dec. 13, 2015).

D. As to the unconstitutionality of Article 255(2)5 and Article 93(1) of the former Official Election Act

Article 25(2)5 and Article 93(1) of the former Election Act are subject to punishment for acts such as distributing or posting documents and drawings by unlawful means. Inasmuch as restricting acts prescribed therein in relation to this election under Article 93(1) of the former Election Act is a objective limitation that guarantees the freedom and fairness of election and ensure the common interests of all the electors including electors or citizens, the legitimacy of legislative purpose is recognized. The restriction has the meaning as an institutional device to guarantee the freedom and fairness of election, and it is difficult to present an effective means other than prohibiting such acts for a certain period of time, and in particular, it is difficult to present an effective means in order to prevent harm, and it is reasonable or appropriate in that such restriction takes place, and such restriction is a necessary and minimum measure for securing the fairness of election, and it does not violate the principle of minimum infringement, and it cannot be seen that it does not violate the freedom of election campaign and the basic rights of the press, which are protected by the Constitution or the principle of equal rights of the Constitutional Court.

In the same purport, the foregoing provision shall not be deemed to be in violation of the provisions of Articles 10 (Human Dignity and Guarantee of Fundamental Human Rights), 11 (Equality and Denial of Special Ranks), 15 (Right of Freedom of Employment), 18 (Right of Communication), 21 (Right of Communication), 24 (Right of Representation, Right of Representation), 25 (Right of Election), 32 (1) (Right of Labor), 37 (Right of Freedom, Respect, Restriction, etc. of People) of the Constitution.

7. Conclusion

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

Justices Yoon Jae-sik (Presiding Justice)