[1] The standard for determining whether a member constitutes an election campaign by taking advantage of an official act within the organization of an institution, organization, etc., which is prohibited under Article 85(2) of the Public Official Election Act

[2] The case affirming the judgment below holding that the above act constitutes an election campaign prohibited under Article 85 (2) of the Public Official Election Act in case where the defendant of the Korea National Tourism Organization auditor asked the support of a specific candidate who participated in the reelection of National Assembly members by leaving his employees in an audit room through his letter to the audit room

[1] Article 85(2) of the Public Official Election Act prohibits an election campaign to its members by taking advantage of an official act in an educational, religious or professional institution, organization, etc. Where determining whether a certain act constitutes “using an official act in the organization”, it shall be determined whether a certain act constitutes an act related to his/her duties by comprehensively observing not only the duty to be handled according to the status of the organization, but also various circumstances such as the time, place, method, etc. of the act.

[2] In a case where the defendant of the Korea National Tourism Organization requested the support of a specific candidate for the re-election held by the National Assembly member who participated in the same constituency as his/her own secretary report individually, the case affirming the judgment below which held that the above act constitutes "a case where the defendant conducts an election campaign for its members by taking advantage of an official act within the organization of an institution, organization, etc. prohibited under Article 85 (2) of the Public Official Election Act when comprehensively takes into account the contents of the authority held as an auditor within the Corporation, the circumstances where the employee under his/her control was asked to support a specific candidate by taking into account the audit room, and the time, place, method, etc.

[1] Article 85 (2) of the Public Official Election Act / [2] Articles 85 (2) and 255 (1) 9 of the Public Official Election Act

Defendant

Defendant

Attorney Kim Tae-ju et al.

Seoul High Court Decision 2010No3324 decided January 27, 2011

The appeal is dismissed.

The grounds of appeal are examined.

1. As to whether a crime of violating Article 85(2) of the Public Official Election Act is established

Article 85(2) of the Public Official Election Act prohibits a member of an election campaign by taking advantage of an occupational act in an educational, religious or professional institution or organization. Specifically, in determining whether a certain act is an act in the organization, it shall comprehensively observe not only the duty to be dealt with according to the status of the organization, but also various circumstances such as the time, place, method, etc. of the act.

According to the reasoning of the judgment below, the court below acknowledged the facts and circumstances as stated in its reasoning based on the evidence of employment, and determined that the defendant's election campaign against members by using official activities within the organization, in full view of the contents of the authority that the defendant has as an auditor in the Korea National Tourism Organization, the circumstances leading the defendant to make a statement about the employees belonging to the Korea National Tourism Organization to request the support of a specific candidate, and the time, place, method, etc.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error of law by misunderstanding the legal principles as to the violation of Article 85 (2) of the Public Official Election Act, as otherwise alleged in the ground of appeal.

The remaining grounds of appeal by the defendant are nothing more than an error of the selection of evidence and fact-finding which belong to the exclusive authority of the court below as a fact-finding court, and it cannot be viewed as a legitimate grounds of appeal. In addition, even if examining the records in light of the records, it is not deemed that the court below erred by failing to exhaust all the necessary deliberations or exceeding the bounds of

2. As to the assertion of unfair sentencing

According to the provisions of Article 383 subparagraph 4 of the Criminal Procedure Act, only a case on which death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the ground of unfair sentencing is permitted. As such, in this case where the defendant has been sentenced to a fine, the reason that the sentencing of the sentence

3. Conclusion

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

Justices Ahn Dai-hee (Presiding Justice)