[1] The time when "distribution" prohibited by Article 93 (1) of the Public Official Election Act is demanded

[2] The case holding that the defendants' delivery of documents does not constitute "distribution" prohibited under Article 93 (1) of the Public Official Election Act in a case where the mail was suspended at a post office upon the request of the election commission for the suspension of mailing and seized before the documents sent by the defendants reached the voters

[3] The applicable provisions to the act of distributing documents in a way that is unlawful prior to the election campaign period

[1] In light of the legislative intent and the meaning of the language and text of Article 93(1) of the Public Official Election Act, which prohibits the distribution and posting of documents and drawings by unlawful means, insofar as documents and drawings have not arrived at the other party to the act of direct distribution, it cannot be deemed that the act of distribution has been completed merely by delivering documents and drawings to the person who committed the act of direct distribution or to the transportation agency, etc. who knows the contents thereof.

[2] The case holding that the defendants' delivery of documents does not constitute "distribution" prohibited under Article 93 (1) of the Public Official Election Act in a case where the mail was suspended at a post office upon the request of the election commission for the suspension of mailing and seized before the documents sent by the defendants reached the voters

[3] Article 254(2) of the Public Official Election Act provides that "where there are other provisions in this Act" means cases where there is a separate penal provision in this Act. Thus, if there is a separate penal provision in this Act, the Defendants cannot be punished for violation of Article 254(2) of the same Act. Therefore, the Defendants’ attempt to distribute documents by mail to the electors from 180 days before the election day to the election day without following the provisions in Article 254(2)1 of the Public Official Election Act constitutes a method provided in Article 254(2)1 of the same Act, and at the same time, since Article 255(2)5 of the same Act and Article 93(1) of the same Act are applicable only to the election campaign, and there is no room to apply Article 255(2)1 of the same Act to the Defendants. In addition, as long as the penal provision on the methods of election campaign originally intended by the Defendants is not completed, even if the election campaign is not completed, the Defendants’ act cannot be punished under Article 254(2)1)1 of the same Act.

[1] Article 93(1) of the Public Official Election Act / [2] Articles 93(1) and 255(2)5 of the Public Official Election Act / [3] Articles 93(1), 254(2)1, and 255(2)5 of the Public Official Election Act

[3] Supreme Court Decision 96Do837 delivered on June 9, 1998 (Gong1998Ha, 1921) Supreme Court Decision 97Do856 delivered on June 9, 1998 (Gong1998Ha, 1926)

Defendant 1 and one other

Prosecutor

Daejeon High Court Decision 2008No568 Decided February 5, 2009

All appeals are dismissed.

The grounds of appeal are examined.

According to the reasoning of the judgment below, Article 93(1) of the Public Official Election Act prohibits the act of distributing or posting documents, pictures, etc. by unlawful means that influence an election for a certain period before the election day. The purport of this provision is to prevent the fair and fair election by distributing documents, such as documents having the character of election campaign, and printed materials, in order to ensure the fairness and equality of the conditions of candidates in an election campaign, without any limit, thereby causing unfair competition. The term "distribution of documents, drawings, etc. under Article 93(1) of the Public Official Election Act" refers to the act of delivering documents, drawings, etc. under Article 93(1) to many and unspecified persons (see Supreme Court Decisions 200Do1696, Jan. 25, 200; 2005Do2025, Sept. 29, 2005; 2005Do2025, etc.). In light of the legislative purport and meaning of the above provision, the defendants' act of distributing or distributing documents to the other party cannot be seen or distributed.

In addition, the lower court determined that the Defendants’ initial method of election campaign under Article 254(2)5 of the Public Official Election Act provides that “A person who commits an act falling under any of the following subparagraphs before the election campaign period shall be punished by imprisonment with prison labor for not more than two years or by a fine not exceeding 4 million won, except as otherwise provided for in this Act.” The Defendants’ initial method of election campaign under Article 254(2)5 of the Public Official Election Act provides that “a person who conducts an election campaign or makes another person conduct an election campaign using propaganda facilities or tools or various printed materials, regardless of the name,” and Article 254(3) of the Public Official Election Act provides that “a person who did not engage in an election campaign or has another person conduct an election campaign by means other than those provided for in paragraph (2)5 shall be punished by imprisonment with prison labor for not more than one year or by a fine not exceeding 2 million won” under Article 254(2)5 of the Public Official Election Act cannot be punished under Article 254(2)2 of the Public Official Election Act from the election Act to the election Act.

In light of the records, the judgment of the court below is just and there is no error of law such as misunderstanding of legal principles as to distribution and printed matters or inconsistent reasoning as otherwise alleged in the ground of appeal.

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

Justices Lee Hong-hoon (Presiding Justice)