[1] Meaning of “persons eligible to be recorded in the electoral registry” among “ electors”, the other party to the crime of purchasing under Article 230(1)1 of the Public Official Election Act

[2] The meaning of "the purpose of being elected in preference" under Article 230 (1) 1 of the Public Official Election Act

[1] Article 230 (1) 1 of the Public Official Election Act / [2] Article 230 (1) 1 of the Public Official Election Act

[1] Supreme Court Decision 2005Do2245 Decided August 19, 2005 (Gong2005Ha, 1525), Supreme Court Decision 2011Do3824 Decided June 24, 201, Supreme Court Decision 2017Do6510 Decided December 5, 2017 (Gong2018Sang, 129) / [2] Supreme Court Decision 2008Do6233 Decided October 9, 2008 (Gong2008Ha, 1571), Supreme Court Decision 2013Do5399 Decided January 29, 2015 (Gong2015Sang, 408)

Defendant

Prosecutor

Daegu High Court Decision 2016No518 decided June 15, 2017

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The grounds of appeal are examined.

1. Of the facts charged in the instant case, the summary of the violation of the Public Official Election Act due to the purchase of ancillary facts charged related to food and the inducement of understanding is as follows.

On April 13, 2016, the Defendant worked as advisory members at the election campaign office of Nonindicted Party 1, which was the candidate for the △△ City local constituency of the 20th National Assembly member, ○○○○○, which was implemented on April 13, 2016, and the co-defendant 2 of the first instance trial was active in the election campaign office of Nonindicted Party 1. The Defendant, along with the co-defendant 2 of the first instance trial, prepared a group of meals with Nonindicted Party 1 and electors registered as preliminary candidates for the 20th National Assembly election of the 20th National Assembly member at ○○○○○, the Defendant planned to allow Nonindicted Party 1 to communicate with the electors and calculated the meal cost, and the Defendant conspired with Nonindicted Party 2, 3, and 4 to offer 196,000 won [excluding Nonindicted Party 1, Defendant 2, and Nonindicted Party 1, Defendant 1, and Defendant 1, Defendant 1, and Defendant 2, in collusion with Nonindicted Party 1, to be present at the first instance.

2. On the grounds indicated in its reasoning, the lower court: (a) premised on the existence of a specific election district having legal effect; and (b) based on Article 25(2) [Attachment 1] [Attachment 1] of the former Public Official Election Act (amended by Act No. 14073, Mar. 3, 2016); (c) insofar as the schedule of the constituency for the National Assembly member loses its effect from January 1, 2016 as the Constitutional Court’s ruling of inconsistency with the Constitution, the Defendant’s act does not constitute an act of purchasing and inducing interests under the former Public Official Election Act; and (d) it is insufficient to recognize that the Defendant provided financial benefits to the voters for the purpose of election of Nonindicted Party 1, thereby not

3. However, the lower court’s determination is difficult to accept for the following reasons.

(1) Article 230(1)1 of the Public Official Election Act provides that “an elector,” who is the other party to the crime of purchasing, includes “persons eligible to enter the electoral register in the electoral register before preparing the electoral register.” In such cases, “persons eligible to enter in the electoral register” is not limited to electors registered in the relevant constituency as of the record date for the preparation of the electoral register, but is based on various circumstances, such as the resident registration status and age, and it is reasonable to view “a person eligible to enter in the electoral register,” if the person is eligible to become the same elector when determining based on the above circumstances based on the resident registration status and age (see Supreme Court Decisions 2005Do2245, Aug. 19, 2005; 201Do3824, Jun. 24, 2011).

Considering the meaning of the “ elector”, the other party to the crime of purchase, as well as the legislative purport of the above provision, in order to ensure the fairness of election by punishing an act that distorted an individual’s free will regarding an election due to unlawful economic interests, etc., if a person is eligible to be the elector of an election that would have affected by a purchase act based on the election day, the act constitutes a “ elector” who is the other party to the crime of purchase, and the election district must be demarcated at the time of the purchase act or the valid election district should not exist.

According to the evidence duly adopted and examined by the lower court and the first instance court, Nonindicted 2, etc., the party to the crime of purchase as provided in Article 230(1)1 of the Public Official Election Act, who was the other party to the crime, was 19 years old at the time of the provision, and all Nonindicted 1, etc., who had been registered as a resident in the △△△-gu, ○○○, where Nonindicted 2, etc. intended to leave the election for the 20th National Assembly member. Therefore, in determining the above election day, it is sufficient to view that Nonindicted 2, etc., as a person eligible to be recorded in the electoral register, is the one eligible to be the elector, who is the other party to the crime of purchase as provided in Article 230(1)1 of the Public Official Election Act. Moreover, even if the validity of the electoral district for the National Assembly member was lost at the time of the provision of property benefits, and even if Nonindicted 2, etc. was not demarcated in a specific constituency that may be elected

(2) Article 230(1)1 of the Public Official Election Act provides that a person shall be punished in the event of offering money, goods, etc. to an elector “to allow or not to vote, or to make another person elected or not to be elected.” Here, the term “the purpose of being elected” refers to an act that directly affects voting by the relevant elector who is provided with money, goods, etc., or an act that directly affects another person’s voting intention or an act that causes an elector who is provided with money, goods, etc. to affect the success of a specific candidate (see Supreme Court Decisions 2008Do6233, Oct. 9, 2008; 2013Do5399, Jan. 29, 2015).

According to the evidence duly adopted and examined by the lower court and the first instance court: ① at the time of the instant meal meeting, Nonindicted Party 1 was registered as a preliminary candidate at the 20th election district for the National Assembly member of the 20th National Assembly at the 200th ○○○○○○○, and the Defendant was working for Nonindicted Party 1’s election campaign office at the 1st election campaign office; ② the Defendant was working as a special career alert at the 1st election campaign office; ② the Defendant first five persons among the members of the instant meal meeting; and the second two persons of the first instance trial were first two persons among the members of the instant meal group; the said persons did not have any specific exchange with the Defendant. However, in light of the circumstances that the Defendant attended the instant meal meeting and the first instance trial meeting, Nonindicted Party 1 appears to have been aware of Nonindicted Party 1’s meal call at the 1st 2nd 1st ○○, which was the first instance trial witness at the time of the instant meeting, and Nonindicted Party 1 appeared to have arrived before and after the first instance.

Examining these circumstances in light of the legal principles as seen earlier, the Defendant may be deemed to have provided Nonindicted 1 with property benefits to Nonindicted 2, etc. for the purpose of having him elected in the local constituency of △△ City at ○○○○ City in the election of the 20th

(3) Nevertheless, the lower court rendered a not guilty verdict on this part of the ancillary charges solely based on the circumstances indicated in its reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on the meaning of “an elector” and “the purpose of being elected” as provided by Article 230(1)1 of the Public Official Election Act, and by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules

4. Therefore, among the judgment below, the part of the violation of the Public Official Election Act due to purchase and inducement of understanding, which is an ancillary charge related to food provision, should be reversed. Since the violation of the Public Official Election Act, which is the main charge related to the provision of food related to the same body, and the part of the judgment of the court below which should be sentenced as one of the concurrent crimes under the former part of Article 37 of the Criminal Act, should be reversed, the part of the judgment

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jae-chul (Presiding Justice)