[1] The meaning of "participation in the planning of an election campaign or in the implementation of such planning" prohibited for public officials under Article 86 (1) 2 of the Public Official Election Act

[2] The case holding that a public official belonging to a local government in relation to an election of the head of a local government is an act of participating in the planning of an election campaign or participating in the implementation of such planning, which is prohibited by Article 86 (1) 2 of the Public Official Election Act, in preparing interview data and debate materials of a candidate who is the head of the incumbent organization held in the election of the head of the local government

[3] Whether a person who is not a public official is a joint principal offender with the crime of violation of Article 255 (1) 10 of the Public Official Election Act in a case where he/she processes a joint act of participating in a public official's election campaign planning and a public official processes a joint act of participating in another

[4] Whether Article 135(3) of the Public Official Election Act, which provides for allowance and compensation for actual expenses for election workers, applies only to acts before the election day (negative)

[5] The meaning of "general electorate" under Article 118 of the Public Official Election Act

[1] Article 86 (1) 2 of the Public Official Election Act, one of the acts prohibited against a public official, "an act of participating in the planning of an election campaign or in the implementation of such planning" refers to an act of participating in the formulation of all plans for the efficient implementation of an election campaign or in the direct implementation of, or the instruction and supervision of, a plan for the implementation of an election campaign, because it does not reach an election campaign for the purpose of causing or preventing a public official from being elected. It does not necessarily mean only an act of participating in the planning for the purpose of carrying out an election campaign in consideration of a specific election campaign.

[2] The case holding that the act of a public official belonging to a local government to participate in the preparation of interview data and debate materials or preparation of campaign pro ratas for election, which are prohibited by Article 86 (1) 2 of the Public Official Election Act, constitutes an act of participating in the planning of election campaign or in the implementation of such planning" prohibited by Article 86 (1) 2 of the Public Official Election Act

[3] Article 86 (1) 2 of the Public Official Election Act prohibits persons in public positions, such as public officials, from participating in the planning of election campaign or in the implementation of such planning. Article 255 (1) 10 of the Public Official Election Act prohibits "any person who commits or causes another person to commit an act violating Article 86 (1) 2," and Article 255 (1) 10 of the Public Official Election Act is subject to punishment for "any person who commits or causes another person to commit an act violating Article 86 (1) 2". Even if a person is not a public official or any other person who is engaged in a public official's act of participating in the planning of election campaign, he/she cannot be exempted from the criminal liability for a violation of Article 255 (

[4] Since the Public Official Election Act, which provides allowances and reimbursement for actual expenses for an election campaign worker, does not impose restrictions on the time of the violation under Article 135(3), according to the literal meaning, it shall be deemed that the violation after the election day is also applicable, and even if the violation is committed after the election day, there is a need to punish it. However, in light of the fact that the Public Official Election Act does not provide a separate penal provision on it, it shall not be deemed that the same applies only to the act before the election day under Article 135(3)

[5] Articles 256(4)11 and 118 of the Public Official Election Act prohibit and punish the act of a candidate to provide money, goods, etc. to the general electorates in return for a congratulations or defeat in the election, etc. after the election day. As such, “general electorates” should be deemed to refer to the general voters who did not participate in an election campaign.

[1] Article 86 (1) 2 of the Public Official Election Act / [2] Articles 86 (1) 2 and 255 (1) 10 of the Public Official Election Act / [3] Articles 86 (1) 2 and 255 (1) 10 of the Public Official Election Act, Article 30 of the Criminal Act / [4] Articles 135 (3) and 230 (1) 4 of the Public Official Election Act / [5] Articles 118 and 256 (4) 11 of the Public Official Election Act

[1] Supreme Court Decision 2003Do2932 Decided March 25, 2004 / [4] Supreme Court Decision 2001Do4014 Decided January 22, 2002 (Gong2002Sang, 607) / [5] Supreme Court Decision 98Do3169 Decided March 9, 199 (Gong199Sang, 697)

Defendant 1 and seven others

Defendant 1 and the Prosecutor other than Defendant 1

Attorney Lee Won-gu et al.

Seoul High Court Decision 2007No497 decided April 26, 2007

Each appeal shall be dismissed.

We examine the grounds of appeal.

1. As to the remaining Defendants except Defendant 1’s appeal

A. The part on violation of Article 86(1)2 of the Public Official Election Act

(1) In the establishment of accomplices, the conspiracy does not require any legal punishment, but is sufficient if there is an implied communication with each other on the joint commission of a crime directly or indirectly, and it may be recognized by the circumstantial facts and empirical rules even if there is no direct evidence (see Supreme Court Decisions 98Do3169, Mar. 9, 199; 2005Do2014, Sept. 9, 2005).

The court below determined that the interview data and debate data in its ruling are prepared and delivered to Defendant 2 under the explicit or implied instruction of Defendant 2, and that as long as Defendant 2 received and used them, it is not different from the fact that Defendant 3 and 5 did not specifically instruct the contents of each individual case. Furthermore, in light of the fact that all relevant documents were reported or delivered to Defendant 2 through the secret book room, the court below's fact-finding and decision are just and acceptable. In light of the records, the court below did not err in violating the rules of evidence as alleged in the grounds for appeal.

(2) Article 60(1)4 of the Public Official Election Act provides that a public official is prohibited from carrying out an election campaign in principle, and Article 85(1) provides that a public official shall not engage in an election campaign by taking advantage of his/her position, in addition to the provision that a public official is unable to carry out an election campaign, and Article 85(1) provides that no further act that may affect the election shall be affected by the election campaign. This is intended to ensure the fairness of the election by thoroughly planting room for intervention in the election of the public official or the person in a public position. Considering the legislative intent of Article 86 of the Public Official Election Act and the relationship with other provisions of the Public Official Election Act, “an act of participating in the planning of an election or in the implementation of such planning” as one of the acts prohibited under Article 86(1)2 of the Public Official Election Act does not reach an election campaign to make him/her elected, and thus, the act of directly participating in an election campaign or in the implementation of such planning shall not be construed to refer to only the act of planning or implementation of an election campaign.

On the premise of the above legal principles, the court below held that the defendants' act of taking part in the preparation of interview materials and debate materials of each newspaper held by the court below is related to the election of defendant 2 who goes out to the candidate for Hanyang market election, and this act is affected by the preparation of promotional materials and establishment of pledge for the efficient performance of election campaigns by defendant 2, and thus, it is "participation in the planning of election campaign" as provided by Article 86 (1) 2 of the Public Official Election Act. Further, for the reasons stated in its reasoning, defendant 4, 5, 7 et al. were ordered by the defendant 2 and sent them to the non-indicted 2's e-mail and sent them to the defendant 2's above newspaper's interview materials and interview materials, which were introduced by the defendant 2 to the non-indicted 2, who is the candidate for the above newspaper. The judgment of the court below is not erroneous in the misapprehension of legal principles as to the election campaign under Article 86 (1) 2 of the Public Official Election Act.

Meanwhile, in light of the legislative intent of Article 86(1) of the Election Act, the act of preparing an election protocol shall not be deemed to constitute an act of statutory or public official, and in light of the overall legal order or the social ethics or social norms, it is difficult to regard such act as an act that is ordinarily acceptable in light of social norms, and therefore, it shall not be deemed an act of preparing an election protocol as a justifiable act as stipulated in Article 20 of the Criminal Act. The argument in the grounds of appeal on this point is unacceptable.

(3) Article 86(1)2 of the Public Official Election Act prohibits persons in public positions, such as public officials, from participating in the planning of election campaign or in the implementation of such planning, and Article 255(1)10 of the same Act prohibits “the person who commits or causes another person to commit an act in violation of Article 86(1)2.” Even if a person is not a public official, he/she cannot be exempted from the criminal liability as a co-principal in violation of Article 255(1)10 where he/she processes jointly in the act of participating in the planning of election campaign by a public official or other person in public positions, and the same applies where a public official processes jointly in the act of participating in the planning of election campaign for himself/herself. Since the judgment of the court below is justified on the premise of this legal principle, Defendant 2’s ground of appeal premised on a different position cannot be accepted.

B. The part concerning the establishment of similar organizations under Article 89(1) of the Public Official Election Act

The court below affirmed the first instance court's judgment that found Defendant 2, 7, and 8 guilty of all charges of violation of Article 89 (1) of the Public Official Election Act as to Defendant 2, 7, and 8 on the ground that the above election campaign committee exclusively constitutes a similar organization of election campaign organized to affect the right holder for the purpose of Defendant 2's election campaign, and the actual substance of its organization does not vary due to the commission of its members, and that the above committee does not appear to be a volunteer group. Furthermore, in light of the circumstances in its holding, the above defendants' establishment of a similar organization whose establishment is prohibited under the Public Official Election Act cannot be seen as not being a crime by law or there is no justifiable reason to recognize it. In light of the records, the court below's findings of fact and judgment are justified. In light of the records, the court below did not err by misapprehending the rules of evidence or misapprehending the legal principles as to errors as alleged in the Grounds for Appeal.

C. Violation of Article 135(3) of the Public Official Election Act

Article 135(3) of the Public Official Election Act provides that "any person, regardless of the pretext, such as allowances, actual expenses, other compensation for volunteer service, shall not offer or express an intention to offer money, goods, or other benefits in connection with the election campaign, or shall not offer or promise, guide, induce, mediate, demand, or receive such offer." Article 230(1)4 of the Public Official Election Act provides that anyone who violates such provision shall be punished. As such, since the Public Official Election Act does not impose restrictions on a violation under Article 135(3) of the Public Official Election Act, it shall be deemed that the violation after the election day shall also be applicable, even if such violation is committed after the election day, and there is a need to punish it even after the election day, in light of the fact that there is no separate penal provision on it, it shall not be deemed that Article 135(3) of the Public Official Election Act applies only to acts before the election day (see Supreme Court Decision 201Do4014, Jan. 22, 2002).

The court below found Defendant 2 and 3 guilty of the facts charged in violation of Article 135(3) of the Public Official Election Act in light of the aforementioned legal principles and records. In light of the above, the court below's findings of fact and decision are justified. The court below did not err in the misapprehension of legal principles as to the scope of application of Article 135(3) of the Public Official Election Act as alleged in the ground of appeal.

In addition, in light of the facts acknowledged by the court below and the records, the above defendants' offering of entertainment, such as food, etc., by inviting members of the Election Countermeasure Committee more than 10 times in total, cannot be deemed to constitute a justifiable act as stipulated in Article 20 of the Criminal Act, as an act of performing their duties, to hear public opinion and seek cooperation in correction after winning the election. The argument in the grounds of appeal on this issue is

2. As to the prosecutor's appeal

A. In light of the records, the court below's decision on Defendant 1, 2, and 3's acquittal of all the charges of violation of Article 86 (2) 4 of the Public Official Election Act as stated in the judgment below is just and acceptable. The court below did not err by violating the rules of evidence or by misapprehending the legal principles as alleged in the grounds of appeal.

B. Article 256(4)11 of the Public Official Election Act provides that a person who violates the provisions of Article 118 of the same Act shall be punished, and Article 118 of the same Act provides that a candidate, his family member, or the executive staff member of a political party may not engage in certain acts, such as offering money, goods, or entertainment for congratulations, consolation, or other return courtesy, to the electorate after the election day. This is a provision prohibiting and punishing a candidate from holding an election to a general elector after the election day, and thus, the general electorate of a woman refers to a general elector who did not participate in an election campaign (see Supreme Court Decision 98Do3169, Mar. 9, 199); therefore, the judgment of the court below to the same purport is justifiable. The argument in the grounds of appeal, premised on a different position, cannot be accepted.

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 Jeon Soo-ahn (Presiding Justice)