[1] The meaning of "election campaign" and the standard for determining whether specific acts constitute election campaign under the Agricultural Cooperatives Act

[2] In a case where Defendant A, a candidate for election of the head of the next term cooperative as the head of the agricultural cooperative association, and Defendant B, a director of the next term cooperative, were indicted for violating the Agricultural Cooperatives Act on the ground that Defendant A conspiredd to give special lectures against new members, and carried out an election campaign by taking advantage of the status of executive officers by promoting business performance and future plans during the period of Defendant A’s employment, the case affirming the judgment below convicting the Defendants as co-principal

[3] The meaning of "the act of participating in the planning of an election campaign or in the implementation of such planning" prohibited against an executive or employee of an association under Article 50 (5) 2 of the Agricultural Cooperatives Act

[4] In a case where Defendant A, the president of an agricultural cooperative, was indicted for violating the Agricultural Cooperatives Act by directly preparing documents stating his performance and pledge while in office, and delivering them to Defendant A’s person in charge of producing election campaign material along with performance-related materials, the case affirming the judgment below holding that Defendant B’s act constitutes “the act of participating in the planning of election campaign or in the implementation of such planning” by taking advantage of his officer’s status

[5] In a case where Defendant A and Defendant B, a candidate for election of the head of the next term cooperative head as the head of the agricultural cooperative association, were indicted for a commercial competition with the crime of violation of the Agricultural Cooperatives Act due to the "election campaign using the status of an officer or employee" and the crime of violation of the said Act due to the "profit provision" on the ground that Defendant A and Defendant B, a director of the next term cooperative head, provided the aforementioned new members with the special lectures to publicize the business performance and future plans during the Defendant A's employment, the case affirming the judgment below which acquitted him of the part of the above meal provision on the premise that the

[1] An election campaign refers to any active and planned act that is necessary for the election, votes, or defeat of a specific candidate and that can be objectively recognized by the intention of promoting an election or defeat. Specifically, when determining whether an act constitutes an election campaign, it should be determined whether an act entails the type of an act as well as the name of the act, namely, the type of the act, the time, place, method, etc. of the act is carried out, and whether the act entails the intention of promoting the election or defeat of a specific candidate.

[2] The case affirming the judgment below which acknowledged Defendants as co-principals of the violation of the Agricultural Cooperatives Act on the ground that the above education is assessed as an election campaign by taking advantage of the status of executive officers of the cooperative prohibited by the Agricultural Cooperatives Act, in case where Defendant A conspired with Defendant A, a candidate for the next president of the agricultural cooperative; Defendant A, a director of the next president of the cooperative; and Defendant A engaged in an election campaign by taking advantage of the status of executive officers by taking advantage of business performance and promotion of future plans, etc. during Defendant A’s employment; and Defendant A was prosecuted for violation of the Agricultural Cooperatives Act (amended by Act No. 10522, Mar. 31, 2011; hereinafter “Agricultural Cooperatives Act”), in full view of the background, timing, contents of education, rate of all new members’ voting rights, and postponed education of existing members after the election.

[3] Article 50 (5) 2 of the Agricultural Cooperatives Act (amended by Act No. 10522, Mar. 31, 2011) provides that "an act of an executive or employee who participates in the planning of an election campaign or in the implementation of such planning" shall be construed as an act of participating in the planning of an election campaign or in the formulation of any plan for the efficient implementation of an election campaign, as it does not reach an election campaign to make a person elected or not to be elected, or an act of directly carrying out, or instructing or guiding the implementation thereof, of an election campaign. It does not necessarily mean only an act of participating in the planning for the purpose of carrying out an election campaign with a specific mind

[4] In a case where Defendant A, the head of an agricultural cooperative, was indicted for violation of the Agricultural Cooperatives Act (amended by Act No. 10522, Mar. 31, 2011; hereinafter “Agricultural Cooperatives Act”), on the ground that Defendant A, a director of the cooperative, directly prepared documents stating his/her performance and pledge while in office, and delivered them to the person in charge of producing the election campaign material, the case affirming the judgment below that Defendant B’s above act constitutes “participation in the planning of an election campaign or participating in the implementation of such planning,” and Article 172(1)2 of the Agricultural Cooperatives Act constitutes “an act of participating in the planning of an election campaign or in the implementation of such planning,” by taking advantage of his/her status as an executive officer, and further rejected Defendant A’s assertion that he/she participated in the planning of an election campaign or in the implementation of such planning separately from his/her executive officer’s status.

[5] In a case where Defendant A, a candidate for the next election of the president of the agricultural cooperative head, and Defendant B, a director of the association, were indicted on charges of commercial competition between the crime of violation of the Agricultural Cooperatives Act (amended by Act No. 10522, Mar. 31, 201; hereinafter “Agricultural Cooperatives Act”) and the crime of violation of the Agricultural Cooperatives Act due to the use of the status as an officer or an employee due to the “profit provision” on the ground that Defendant A, a candidate for the next election of the president of the agricultural cooperative head, and Defendant B, a director of the association, were provided with a special lecture to publicize the business performance and future plans during Defendant A’s employment, the case affirming the judgment below finding the Defendant not guilty on the part of the above meal provision on the grounds that the above two crimes are accompanied incidental to the process of providing education for new members recognized as an election campaign, and it is difficult to view it as a separate profit provision for the purpose of Defendant A’s election.

[1] Articles 50 (5) and 172 (1) 2 of the Agricultural Cooperatives Act (Amended by Act No. 10522, Mar. 31, 201) / [2] Article 30 of the Criminal Act; Articles 50 (5) 1 and 172 (1) 2 of the Agricultural Cooperatives Act (Amended by Act No. 10522, Mar. 31, 201); Articles 50 (3) and 172 (1) 2 of the Agricultural Cooperatives Act / [3] Articles 50 (5) 2 and 172 (1) 2 of the Agricultural Cooperatives Act (Amended by Act No. 10522, Mar. 31, 201); Articles 50 (5) 2 and 172 (1) 2 of the Agricultural Cooperatives Act (Amended by Act No. 10522, Mar. 31, 201); Article 30 (1) 2 and 30 (1) of the Criminal Act

[1] Supreme Court Decision 98Do1432 delivered on April 9, 1999 (Gong1999Sang, 935) / [3] Supreme Court Decision 2007Do4069 delivered on October 25, 2007 (Gong2007Ha, 1882)

Defendant 1 and two others

Defendants and Prosecutor

Law Firm (LLC) LLC, Attorneys More thanks et al., Counsel for the defendant-appellant

Cheongju District Court Decision 2010No26 decided July 15, 2010

Each appeal shall be dismissed.

The grounds of appeal are examined.

1. As to the Defendants’ grounds of appeal

A. As to the crime No. 2 of the first instance judgment

An election campaign refers to any act that is advantageous to the purpose of promoting the success or defeat of a specific candidate and that is objectively recognized by the intention of promoting the success or defeat in the election. Specifically, in determining whether a certain act constitutes an election campaign, it shall be determined not only on the pretext of the act, but also on the form of the act, i.e., the time, place, method, etc. of the act, and whether the act is an act accompanying the intention of promoting the election or defeat of a specific candidate (see Supreme Court Decision 98Do1432, Apr. 9, 199).

Meanwhile, in the case of co-offenders who are engaged in a crime by two or more persons, the conspiracy does not require any legal penalty, but is sufficient if there is an implicit communication on the joint execution of the crime directly or indirectly between the accomplices, and if there is no direct evidence, it can be recognized by the circumstantial facts and empirical rules (see Supreme Court Decision 2002Do868, Jun. 28, 2002, etc.).

According to the reasoning of the judgment below, the court below held that Defendant 1 and Defendant 2, a candidate for the election of head of ○○ Agricultural Cooperatives (hereinafter referred to as “○○ Agricultural Cooperatives”), who was the head of ○○ Agricultural Cooperatives (hereinafter referred to as “○○ Agricultural Cooperatives”) conducted on November 4, 2008, conspired with Defendant 1 and 1, an economic standing director of ○○○ Agricultural Cooperatives, who was a candidate for the election of head of ○○○ Agricultural Cooperatives (hereinafter referred to as “○○○ Agricultural Cooperatives”), Defendant 1 maintained the special class of about one hour against 153 new members on May 21, 2008, the special class of about one hour against 110 new members on May 22, 2008, and around 30 minutes on or around July 30, 2008, the court below held that Defendant 1’s voting rights were prohibited in the course of conducting an election campaign using his status as an executive officer through publicity of the future plan, etc., and that the Defendants’ roles and details of the education were 1’ existing members’ voting.

In light of the above legal principles and records, the fact-finding and judgment of the court below are justified.

The court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules in the selection of evidence belonging to the exclusive authority, or by misapprehending the legal principles on the establishment of joint principal offenders or by violating the principle of evidence trial.

B. On the crime No. 3 of the first instance judgment

"Act of participating in the planning of an election campaign or in the implementation of such planning" prohibited by Article 50 (5) 2 of the Agricultural Cooperatives Act (hereinafter referred to as the "Agricultural Cooperatives Act") means an act that does not reach an election campaign to make a person elected or not to be elected, or an act that participates in the formulation of all plans for the efficient implementation of an election campaign or directly in the implementation thereof, or an act that instructs or instructs the implementation thereof, and it shall not be deemed that only means an act that participates in the planning for the purpose of carrying out an election campaign with a specific mind in mind (see Supreme Court Decision 2007Do4069, Oct. 25, 2007, etc.).

According to the reasoning of the judgment of the court below, the court below acknowledged that Defendant 2 instructed his subordinate employees or received documents on the tendency of supporting candidates from his subordinate employees under contact with them, and decided that Defendant 2’s act of directly preparing documents stating Defendant 1’s performance records and pledges at the time of Defendant 1’s head of the association and delivered them to Nonindicted 1 in charge of the production of Defendant 1’s election campaign material at the time of Defendant 1’s election campaign material without simply providing performance data and, as stated in the judgment of the court of first instance, would affect the election by using them in preparing promotion materials and pledge materials for the efficient performance of Defendant 1’s election campaign, and that Defendant 2 could not easily access the above materials at the economic standing director, and thus, Defendant 2’s aforementioned act constitutes “an act of participating in the planning of election campaign or in the implementation of such planning” or “an act of participating in the implementation of the planning and implementation of the election campaign” under Article 17(1)2 of the National Agricultural Cooperative Act. Furthermore, it rejected Defendant 2’s aforementioned act of participating in the planning and implementation of the Act.

In light of the above legal principles and records, the fact-finding and judgment of the court below are justified.

The court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules or by misapprehending the legal principles on the interpretation of Articles 50(5)2 and 172(1)2 of the Agricultural Cooperatives Act in the selection of evidence belonging to the exclusive authority.

C. On the crime No. 4 of the first instance judgment

Examining the evidence duly adopted by the court of first instance by the court below in light of the records, the court below accepted the credibility of Non-Indicted 2's statement and recognized the fact that Defendant 3 made the statement to Non-Indicted 2 as stated in the judgment of the court of first instance; considering that Defendant 3 was at least three months prior to the election of the head of the association; and that there was no personal relationship with Non-Indicted 2, it is reasonable to view that the above statement was merely made in an individual's private dialogue, and to find the defendant guilty of this part of the facts charged.

The court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules in the selection of evidence belonging to the exclusive authority, or by misapprehending the legal principles on the violation of the Agricultural Cooperatives Act by using the status of executive officers and employees.

2. As to the Prosecutor’s Grounds of Appeal

According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which acquitted the defendant 1 and 2 on this part of the facts charged by applying Article 50 (1) 1 of the Agricultural Cooperatives Act to the acts of providing food to new members after conducting the education of new members, since the provision of meals in this case was incidental to the process of conducting the education of new members of the instant case recognized as election campaign, and it is difficult to regard the act of providing food for the purpose of election of the defendant 1 itself as an act of providing separate profits for the purpose of election of the new members of the instant case. Since the facts charged in this part of the facts charged and the elements of the crime of paragraph (2) of the first instance as stated in the judgment are different from the principal, the act of providing food for the purpose of election of the new members of the instant case,

Examining the reasoning of the lower judgment in light of the record, we affirm the lower court’s determination as justifiable.

The court below did not err in the misapprehension of legal principles as to the number of crimes or in the misapprehension of legal principles as to the violation of the Agricultural Cooperatives Act due to the act of offering purpose or profit.

3. Conclusion

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

Justices Yang Chang-soo (Presiding Justice)