[1] Whether the phrase “a person who compels a person in a public position, such as a public official, to publicize his/her achievements to an employee or electorate,” who is punished under Article 86(1)1 and Article 255(1)10 of the former Public Official Election Act is limited to “a person in a public position, such as a public official,” who is punished (negative)

[2] In a case where a defendant, who is an incumbent market (market) where candidate for the next-year local election, was prosecuted for violating the former Public Official Election Act by promoting his achievements to the electorates by using a public official organization such as Eup/Myeon/Dong head, the case finding him guilty

[1] In light of the legislative purport, details, and language and text, etc. of Articles 60(1)4, 85(1), 86(1)1, and 255(1)10 of the former Public Official Election Act (amended by Act No. 9974, Jan. 25, 2010; hereinafter “Public Official Election Act”), it is reasonable to deem that the subject of the act is “a person in a public position, such as a public official,” and that the subject of the act is not limited to “a person in a public position, such as a public official,” and that the subject of the act that causes a public official, etc. to engage in an act affecting the election, regardless of whether a public official, etc. or an employee of the public office is a candidate for public service or a candidate for public service (including a person who is subject to punishment under Article 86(1)1 and 255(1)10 of the Public Official Election Act, regardless of whether he/she is a candidate for public service or candidate for public service, etc.

[2] In a case where the defendant, who is an incumbent market (market) where candidate for the next-year local election, was prosecuted for violation of the former Public Official Election Act (amended by Act No. 9974, Jan. 25, 2010) on the ground that he had a public official organization such as Eup/Myeon/Dong head, etc. publicize his achievements to the electorate, the case affirming him on the ground that he did not act as a public official or promoting his achievements on his own, but did not act as a public official, that he had the head of Eup/Myeon/Dong who is a public official promote the defendant's achievements, and that whether the defendant was a public official

[1] Articles 60(1)4, 85(1), 86(1)1, and 255(1)10 of the former Public Official Election Act (Amended by Act No. 9974, Jan. 25, 2010); / [2] Articles 86(1)1 and 255(1)10 of the former Public Official Election Act (Amended by Act No. 9974, Jan. 25, 201)

Defendant

Defendant

Attorneys Kim Young-soo et al.

Busan High Court Decision 2010No842 decided December 15, 2010

The appeal is dismissed.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

The selection of evidence and the recognition of facts belong to the full authority of the fact-finding court unless they are against logical and empirical rules. Examining the adopted evidence of the court below in light of the records, it is justifiable that the court below acknowledged that the defendant, either alone or jointly with Co-Defendant 1 and 2 of the court of first instance, had a public official publicize the achievements of the defendant to the electorate.

The court below did not err in affecting the judgment in violation of the principle of court-oriented trial and the rules of evidence as alleged in the grounds of appeal.

The ground of appeal on this part is without merit.

2. Regarding ground of appeal No. 2

Examining the reasoning of the lower judgment, the lower court determined that the Defendant’s primary promotion projects from around 2008 to ○○○ City, such as the nationwide power plant, innovation city, etc., were unable to perform any of the Defendant’s role in attracting the local public opinion on March 2, 2010 (the clerical error in June 2, 2010), which was the main promotion projects of ○○○ City, and that three lines might be difficult due to the failure to receive Hanra, and that the Defendant’s public opinion would be created at the time of promoting the major promotion projects of ○○○○ City by using public officials organizations such as the head of the Eup/Myeon/Dong and the head of the Dong, etc., to create a public opinion to support the Defendant at the time of promoting the correction of the Defendant’s major promotion projects of ○○ City, and that the Defendant’s public opinion was created at the meeting of the head of the Eup/Myeon/Dong at around September 1, 2009 to expand the number of ordinary people to the head of the Eup/Myeon/Dong.

In full view of the motive and circumstance leading up to the instant crime, the purport of awarding a decoration at the Eup/Myeon/Dong meeting, and the following activities of the non-indicted △△ head, etc., even though the expression “public relations of the defendant’s achievements” as stated in the above criminal facts is not directly and clearly included in the Defendant’s decoration, it appears that the fact that the defendant had a public official publicize the defendant’s achievements to the electorate is sufficiently specified that meets the elements for the instant crime. Thus, as otherwise alleged in the ground of appeal, it cannot be deemed that the entry of this part of the lower judgment in this part of the criminal facts constitutes a case where the crime

The judgment of the court below is not erroneous in the misapprehension of legal principles as to a non-criminal act.

This part of the grounds of appeal is without merit.

3. Regarding ground of appeal No. 3

Article 86(1)1 of the former Public Official Election Act (amended by Act No. 9974, Jan. 25, 2010; hereinafter “Public Official Election Act”) prohibits persons in public positions, such as public officials, from publicizing their achievements to a specific political party or candidate (including a person who intends to become a candidate) regardless of their name, regardless of education or whatever, to the employees or electorate. Article 255(1)10 of the same Act punishes “a person who commits or causes another person to commit an act in violation of the provisions of Article 86(1)1 of the same Act” (hereinafter collectively referred to as “each provision of this case”).

Article 60(1)4 of the Public Official Election Act provides that a public official is prohibited from conducting 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, and further, each of the provisions of this case regulates that the public official shall not engage in any activity that may affect the election in the case of a person who is in a public position, such as a public official. This is aimed at ensuring the fairness of election by thoroughly planting room for the election of a person who is in a public position or election (see, e.g., Constitutional Court en banc Order 2004Hun-Ba33, Jun. 30, 2005).

In light of the legislative purport as above, the contents of the provision, and the form of language and text, etc., it is reasonable to view that each of the provisions of this case is prohibited from performing an act by a person who is in a public position, such as a public official, and its subject is “a person who is in a public position, such as a public official,” and it is not limited to “a person who is in a public position, such as a public official,” and the subject of the act by a person who causes an act that affects an election.

Therefore, a person who has had a person in a public position, such as a public official, engage in an act of promoting the achievements of a specific political party or a candidate (including a person who intends to be a candidate) to the personnel under his/her control or the electorate, regardless of whether he/she is a public official, etc., shall

In this case, as otherwise asserted in the ground of appeal, since the defendant is in a position of public official or has committed an act of promoting his own achievements, it is not punishable, but since the defendant's act of having the head of Eup/Myeon/Dong who is a public official publicize the defendant's achievements to the electorate, the issue of whether the defendant is in a public position, such as

However, according to the provisions of this case, the court below held that the public officials, such as public officials, are punished for the act of promoting the candidate's achievements. Thus, the court below held that the public officials, who are candidates, are punished under the premise that the public officials act for themselves as public officials, should be punished, and that there are some inappropriate parts in its reasoning, but the conclusion that found the defendant guilty of the facts charged of this case is just.

The court below did not err in the misapprehension of legal principles as to interpretation and application of Article 86 (1) of the Public Official Election Act as otherwise alleged in the ground of appeal.

This part of the grounds of appeal is without merit.

4. Conclusion

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

Justices Yang Chang-soo (Presiding Justice)