[1] Whether an act of success or defeat in the intraparty competition for the election of a candidate recommended by a political party to run in an election for public office constitutes an election campaign under the Public Official Election Act (negative in principle)

[2] Whether it constitutes an election campaign under the Public Official Election Act solely on the ground that an act incidental to the act of promoting the success or defeat in an election in an election for public office is included in the intraparty competition to elect a candidate recommended by a political party to run in an election for public office (negative)

[3] Where any institution, organization, or facility is not established for the election campaign of a specific candidate, but is established for the purpose of causing candidates to be elected as a candidate in the intra-party competition, whether it violates Article 89(1) of the former Public Official Election Act (negative)

[1] Articles 2, 57-2(1), 57-3(1), and 58(1) of the Public Official Election Act / [2] Articles 2, 57-2(1), 57-3(1), and 58(1) of the Public Official Election Act / [3] Article 89(1) of the former Public Official Election Act (Amended by Act No. 11485, Oct. 2, 2012); Articles 57-3(1), 87(2), and 255(2)3 of the Public Official Election Act

[1] [2] [3] Supreme Court Decision 2012Do12172 Decided May 9, 2013 (Gong2013Sang, 1061) / [1] Supreme Court Decision 2003Do305 Decided July 8, 2003 (Gong2003Ha, 1743), Supreme Court Decision 2004Do7549 Decided January 13, 2005, Supreme Court Decision 201Do17437 Decided April 13, 2012

Defendant

Prosecutor

Gwangju High Court Decision 2012No297 decided February 7, 2013

The appeal is dismissed.

The grounds of appeal are examined.

1. A. The main sentence of Article 58(1) of the Public Official Election Act (hereinafter “Act”) provides that “The term “election campaign” in this Act means an act to be elected or not to be elected” and Article 2 provides that “this Act shall apply to the presidential election, election of National Assembly members, election of local council members, and election of the head of local government (hereinafter “election for public office”)” and separately, Article 57-2(1) provides that “a political party may hold a competition (hereinafter “party-party competition”) to recommend candidates for public office.” The main sentence of Article 57-3(1) provides that “The competition campaign may not be conducted by means other than those falling under any of the following subparagraphs shall not be conducted in the intra-party competition in which a political party grants voting rights to a party member and a person who is not a party member.”

In full view of the contents, structure, legislative purport, etc. of the aforementioned relevant provisions, the term “election campaign” means an act for the success or defeat in an election for a public office, and the act for the success or defeat in an election in the intra-party competition to elect a candidate recommended by a political party to participate in an election for a public office does not constitute “election campaign”. However, in substance, an act for the success or defeat in an election for a public office is deemed an election campaign only in exceptional cases where it is deemed that an act for the success or defeat in an election for a public office is performed in an election for a public office (see, e.g., Supreme Court Decisions 2003Do305, Jul. 8, 2003; 201Do17437, Apr. 13, 2012).

Furthermore, Article 57-3(1) of the Act provides that “No competition campaign shall be conducted by any means other than those falling under any of the following subparagraphs in the intra-party competition where a political party grants voting rights to any party member and any person who is not a party member.” In view of the fact that, in the process of the intra-party competition, a limited number of competition campaign is permitted to not only party members but also general voters who are not a party member that is likely to be registered as a competition group in the process of the intra-party competition, the mere fact that such act includes an intention to promote the election or defeat in an election in an election for public office incidental to the act of election or defeat in the intra-party competition

B. According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, ○○○○○○○ Party intended to implement the so-called national competition system to recommend candidates in the Dong-dong election of Gwangju National Assembly members, which will be implemented on April 11, 2012. This is the following: (a) the electorate, including ○○○ Party members and non-party members, registered the so-called “Ma-called Women’s Support Committee” using his mobile phone, etc. from February 20, 2012 to February 29, 2012; and (b) the Defendant recommended Nonindicted Party 2, Nonindicted Party 2, an assistant to the aforesaid election of the National Assembly members, to enter Nonindicted Party 1’s mobile elector’s name in the 200○○○○ Party in the aforesaid list, and recommended the Defendant, who was the head of the Dong-dong 2, to enter Nonindicted Party 3’s mobile ballot-party 1’s seat in the 20th election campaign; and (c) the Defendant, the head of the Dong-dong 25 Women.

C. Examining the above facts in light of the legal principles as seen earlier, the Defendant’s act of asserting support for Nonindicted Party 1 while soliciting mobile competition in preparation for the intraparty competition by the Dong-gu Voluntary Women Association established or used in accordance with the plan delivered by Nonindicted Party 4, shall be deemed to have been carried out by Nonindicted Party 1 based on the intention to have Nonindicted Party 1 elected as a candidate for the National Assembly member in the intraparty competition for ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○,

2. Meanwhile, Article 89(1) of the former Public Official Election Act (amended by Act No. 11485, Oct. 2, 2012; hereinafter “former Act”) aims at maintaining the equity of election campaign organizations among candidates and preventing excessive competition and waste due to the establishment of various forms of election campaign organizations. The act of the intra-party competition campaign conducted in violation of Article 57-3(1) of the Act to ensure that specific candidates are elected in the course of the intra-party competition, along with the structure or legislative intent of the provision, may be punished pursuant to Article 255(2)3 of the Act; Article 89(1) of the former Act and its legislative purport similar to Article 87(2) of the same Act prohibit establishment of private organizations and other organizations for the “election campaign” as provided by Article 87(2) of the same Act if it does not violate Article 89(1)9 of the former Act for the purpose of selecting a candidate as a candidate and not for the purpose of being established as a candidate in the intra-party competition.

3. In the same purport, the lower court’s determination of not guilty on the violation of the Public Official Election Act due to the establishment, use, and establishment of a similar organization among the facts charged in the instant case is acceptable. In so doing, contrary to the Prosecutor’s assertion, there were no errors by misapprehending the legal doctrine on the meaning or scope of election campaign and competition campaign under the Act, or by omitting judgment on the prohibition of establishment of a similar organization under Article 89(1)

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

Justices Kim Yong-deok (Presiding Justice)