Whether the Public Official Election Act Article 60-3 (1) 6 provides that a preliminary candidate may engage in an election campaign for a preliminary candidate under Article 60-3 (1) 6 only in cases where the "appealing for support by means of direct telephone conversations between the sender and the receiver" is applied (affirmative)

Article 60-3 (1) of the Public Official Election Act provides that a preliminary candidate may engage in an election campaign by means of direct telephone conversations between the sender and the receiver (Article 60-3 (1)). "Act of appealing for support by means of direct telephone conversations (Article 60-3 (6))" does not include any provision regarding a person who may appeal for support by means of direct telephone conversations between the sender and the receiver (Article 60-3 (1) of the same Act, such as act of directly taking name cards of a preliminary candidate or of appeal for support (Article 60-3 (2) unlike act of posting by mail (Article 60-3 (1) of the same Act) and act of directly taking out name cards of a preliminary candidate or of appeal for support by a preliminary candidate (Article 60-3 (1) of the same Act). However, Article 60-3 (2) of the same Act does not limit the above act to a person who may appeal for support by means of direct telephone calls under subparagraph 6 of the same paragraph, and Article 6 of the same Act applies only to a large number of election campaigns and a preliminary candidate.

Articles 60-3(1)1, 2, 4, 6, 254(2), and 254(2) of the Public Official Election Act

Defendant 1 and eight others

Defendants and Prosecutor

Law Firm Barun Law LLC, Attorneys Kim Dong-dong et al.

Daegu High Court Decision 2012No709 decided January 30, 2013

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal by Defendants 1 and 2

A. As to the prior election campaign

1) As to the prior election campaign by December 12, 2011

In full view of the circumstances revealed by the evidence duly adopted by the court below, the defendants conducted an interview with telephone campaign personnel in the first instance trial until December 12, 2011 (on the day before December 13, 2011, when Defendant 1 registered a preliminary candidate), such as the statement in paragraph (a) of Article 1-A of the criminal facts in the judgment of the court of first instance (hereinafter the "public opinion poll in this case") by allowing the telephone campaign personnel to have a visual telephone conversation to the South and North electorate electorates, and conducted a survey (hereinafter the "public opinion poll in this case") to improve the support level by enhancing Defendant 1's personal guidance prior to the election campaign period, not just "an act of preparing candidates and election campaign" but also publicity about his career or relations with the non-indicted 1 National Assembly members, and therefore, it constitutes an "prior election campaign" objectively recognized by the intention of promoting election in the future, and it is reasonable to view that Defendant 1 had a criminal intent against such an act, and there is no violation of the law of logic or free evaluation of evidence.

2) As to the advance election campaign from December 13, 201

Article 60-3 (1) of the Public Official Election Act provides that a preliminary candidate may engage in an election campaign by means of direct telephone conversations between the sender and the receiver (Article 60-3 (1) "(Article 6)" refers to an act of filing an appeal for support by means of direct telephone conversations between the sender and the receiver (Article 60-3 (1)) and an act of directly taking name cards of a preliminary candidate or an appeal for support (Article 60-3 (2) unlike an act of posting a preliminary candidate by mail (Article 60-3 (1) (Article 60) and an act of directly taking out name cards of a preliminary candidate or claiming support by mail (Article 60-3 (1) (Article 60-3 (1)). However, there is no provision regarding a person who may appeal for support by means of direct telephone call between the sender and the receiver (Article 60-3 (1)). In light of the above fact that the above act does not require strict restriction to the person entitled to election campaign and the person entitled to election campaign under subparagraph 6 (2).

In full view of the circumstances revealed by the evidence duly adopted by the court below, the court below's determination that the Defendants' conduct of the public opinion poll in this case from December 13, 201 constitutes an advance election campaign is justifiable in light of the above legal principles, and Defendant 1 had a criminal intent to such an issue is justifiable in light of the above legal principles. There is no violation of law by misapprehending the legal principles or violating the rules of logic and experience, contrary to what is alleged in the grounds of appeal.

B. As to the violation of the prohibition of installation of a similar institution

In full view of the circumstances revealed by the evidence duly adopted by the court below, the court below held that the public opinion poll of this case constituted an election campaign and used the existing ○○○○○○○○ Forum office as a similar institution of the election campaign office or election campaign liaison office under the Public Official Election Act is just in light of the relevant legal principles and records, and there is no violation of the law of misunderstanding the prohibition of establishment of a similar institution under the Public Official Election Act or the principle of free evaluation of evidence in violation

C. As to the provision of money and valuables to telephone promotion agents related to election campaigns

In full view of the circumstances revealed by the evidence duly admitted by the lower court, it is justifiable to view that the instant public opinion poll conducted before December 13, 201 constituted an election campaign and determine that the portion of money that Defendant 1 and Defendant 2 paid to telephone campaignors by December 13, 201 as money and valuables provided in relation to the election campaign. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against the logical and empirical rules regarding the provision of money and valuables related to election campaign under the Public Official Election Act.

2. As to the grounds of appeal by Defendants 3, 4, 5, 6, 7, 8, and 9

A. As to the crime of prior election campaign of the above Defendants

In full view of the circumstances revealed by the evidence duly admitted by the court below, it is just in light of the relevant legal principles to determine that the above defendants were aware of the fact that the public opinion poll conducted by them constituted election campaign unlike the general public opinion poll commonly used at the time of the public opinion poll, or at least dolusent intent, or that there was no illegality in violation of the principle of free evaluation of evidence in violation of logical and empirical rules.

B. As to the receipt of money or valuables relating to election until December 12, 201 by the remaining Defendants except Defendant 9

In full view of the circumstances revealed by the evidence duly adopted by the court below, it is just to determine that the public opinion poll of this case, which was conducted until December 12, 201, constituted an advance election campaign and the remaining Defendants, other than Defendant 9, received from Defendant 1 and Defendant 2 to December 12, 201, as money and valuables received in connection with the election campaign. There is no error of law such as misunderstanding of legal principles as to the receipt of money and valuables related to the election campaign under the Public Official Election Act or exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules.

3. As to the prosecutor's grounds of appeal

A. As to the first ground for appeal

In full view of the circumstances admitted by the adopted evidence, the lower court affirmed the first instance judgment that acquitted Defendant 1 and Defendant 2 of this part of the charges on this part, on the ground that it cannot be readily concluded that Defendant 2’s KRW 18.5 million received from Nonindicted 2 constituted money and valuables provided in connection with the instant public opinion poll, which constitutes an election campaign for Defendant 1’s election campaign for the purpose of election.

In light of the relevant legal principles and records, the judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the Public Official Election Act or by exceeding the bounds of the free evaluation of evidence.

B. On the second ground for appeal

The lower court upheld the first instance judgment convicting Defendant 1 of this part of the facts charged on the ground that it is difficult to readily conclude that even if the name of Nonindicted 1’s severe weather report externally changed to ○○○○○○○○○○○○○○○, Defendant 1 was “the head of the present Nonindicted 1 △○○○○○○○○○○○○○○○○○,” and that even if it may be deemed that there is a little difference from the truth or somewhat exaggerated expression, it is a false fact inconsistent with the truth, and it is difficult to conclude that it was proven to the extent that there is no reasonable doubt.

In light of the relevant legal principles and records, the judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles on the Public Official Election Act or exceeding the bounds of the principle of free evaluation of evidence.

4. Conclusion

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

Justices Park Poe-dae (Presiding Justice)