[1] The meaning and scope of "election campaign" and the standard for determining whether an election campaign constitutes an election campaign under the Public Official Election Act

[2] Whether the act of contribution under Article 112(1) of the Public Official Election Act is established on the premise that the act of contribution is effective at the time of the act (affirmative) / In a case where the “election district concerned” under Article 112(1) of the Public Official Election Act refers to the election district for the National Assembly member, the meaning of the election district concerned (=attached Table 1 of Article 25(2) [Attachment Table 1] of the Public Official Election Act at the time of the act

[3] The meaning of "a person in the relevant constituency" and "a person who has relations with the electoral resident" under Article 112 (1) of the Public Official Election Act

[1] Articles 87(1)3, 254(2), and 255(1)11 of the Public Official Election Act / [2] Articles 112(1), 113, 114, 115, and 257(1)1 of the Public Official Election Act, Article 25(2) [Attachment Table 1] [Attachment Table 1] (Article 25(3) [Attachment Table 1], Articles 112(1), and 257(1)1 of the former Public Official Election Act / [3] Articles 112(1), 257(1)1 of the Public Official Election Act

[1] Supreme Court en banc Decision 2015Do11812 Decided August 26, 2016 (Gong2016Ha, 1457), Supreme Court Decision 2016Do1947 Decided October 31, 2017 (Gong2017Ha, 2250) / [2/3] Supreme Court Decision 2016Do20490 Decided April 13, 2017 (Gong2017Sang, 1067) / [3] Supreme Court Decision 2006Do9043 Decided March 30, 2007 (Gong2007Sang, 655)

Defendant 1 and 10 others

Defendants and Prosecutor (Defendant 1, Defendant 2, Defendant 3, Defendant 4, Defendant 5, and Defendant 6)

Law Firm LBnB Partners et al.

Gwangju High Court Decision 2016No317 decided December 8, 2016

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. Judgment on the Defendants’ grounds of appeal

(a) Election campaigns under the Public Official Election Act;

(1) The term “election campaign” under the Public Official Election Act refers to an act that can be objectively recognized by the intention of promoting the election or defeat of a specific candidate in a specific election. The intent of such purpose is not only the express method by which the elector expresses his/her intent to participate in a specific election and asks for support, but also can be recognized in a case where the intention of promoting the election or defeat in a specific election from the perspective of the elector in light of the prevailing circumstances. To deem that there was such intent, the mere fact that the relationship with the election can be inferred or that the elector was motiveed for the election should be based on an objective circumstance that is clearly recognizable by the elector.

In particular, in light of the fact that the Public Official Election Act regulates a specific act at different intervals with the election day, and that even the same act may be perceived differently from the election from the elector’s point of view, depending on the time when the act at issue was conducted, whether an act with such intent ought to be determined by comprehensively observing not only the name of the act, but also the time, place, method, appearance, etc. of the act (see Supreme Court en banc Decision 2015Do1812, Aug. 26, 2016).

(2) In light of the following circumstances, the lower court determined that the Defendants’ act of organizing and holding the ○○ Mountain Association constituted an act of establishing a private organization or “election campaign” for the purpose of “election campaign” or “election campaign” under the Public Official Election Act, on the grounds that the Defendants’ act, at the time, could have easily inferred the intent of promoting Defendant 1’s election in the 20th National Assembly election from the perspective of the electors.

① They actively recruited and mobilized the participants in the event, as well as the Defendants, and those who have engaged in political activities based on △△△△△△, became the main axis, and the participants could be able to find to some extent that they are collectively mobilized according to what purpose they are currently mobilized.

② The event of the ○○ Mountain Conference showed a very exceptional figure compared to the event of the normal mountain conference, such as destination, participants’ age and gender, and the scale and composition of events. The event was conducted separately in the order of “largeized hours” for Defendant 1, who is a medium-fluor political party, which is a remote and fluor political party, after going through an election of the △△△△△△△ in 2014. The term “largeized hours” was operated by using devices, such as microphones and spackers, for a considerable period of time in sports halls or auditoriums.

③ Defendant 1 made a statement mainly on Defendant 1’s suspicion about himself, the promotion of the past achievements, and the development plan of △△△△△ in the future. Defendant 1’s suspicions related to the relocation of △△△△△△△△△△△△△△ was one of the falling-off factors, and it was necessary to give priority to the election of the National Assembly members in 2016. Defendant 1 made a statement of criticism about the development plan of △△△△△△△△△△△△ which was presented by the Nonindicted Party member. Defendant 1 made a statement of criticism about the Nonindicted Party member’s election of the 20th National Assembly member.

④ On April 13, 2016, some participants were able to directly turn on the election of the National Assembly members scheduled to take place on April 13, 2016, Defendant 1. The “413 Defendant 1” told Defendant 1 to “the time of modernization” to be “to send Defendant 1 to the National Assembly.”

⑤ Although Defendant 1 did not directly speak in the election of the 20th National Assembly member, Defendant 1, who was a climatic political party with a high-level map in △△△ Group, was in the 20th National Assembly member election campaign, and the said Defendant’s 20th National Assembly member election campaign was widely spreading.

6. The participants showed the reaction that “the participants were suffering from a political mountain society, not a prudent mountain society,” and there was a statement among the participants that “the participants were presumed to feel an advance election campaign” and “the same were the same in mind of an election campaign.”

(3) Examining the reasoning of the lower judgment in light of the evidence duly admitted, despite the purpose of the articles of incorporation that “○○ Mountain Association contributes to the promotion of physical strength and the development of local communities with friendship and friendship,” Defendant 1 mobilized many voters to the greatest extent possible so that Defendant 1 can be elected in the election of the 20th National Assembly members of the 2016 National Assembly, and concentrated on the activities of impairing the suspicion of the above Defendant and promoting his achievements.

Furthermore, in full view of various circumstances, including the organization circumstances and personnel composition of the ○○ Mountain Conference, the method of mobilization of participants, Defendant 1’s personal guidance, and the time for comparison, the method of organization of the event, the commission nature of questioning persons and the selection of the contents of question, the rapid expansion of the scale of event, the economic benefits provided in excess of membership fees, as well as the details of economic benefits that are directly mentioned in the election of National Assembly members, and the △△ Election Commission, knowing the event of the mountain conference at the time of △△△ election commission, informed Defendant 2, the chairperson of the mountain conference, was informed of the relevant laws and regulations on September 2015, and the overall details stated by the people attending the event, such act may be deemed as an act of establishing a private organization or an “election campaign” under the Public Official Election Act, which is objectively recognized as an objective act for the purpose of promoting the election or defeat in the election, beyond the ordinary scope of political activities. Even if the Defendants committed the above act at intervals between about 10 to 5 months, it does not affect the

The lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on election campaigns prohibited under the Public Official Election Act or omitting judgment.

(b) Scope of contributions and election districts;

(1) Article 112(1) of the Public Official Election Act provides, “The term “contribution” in this Act means an act of offering money, goods, or other property benefits, an expression of intent to offer such benefits, or an act of promising to offer such things, to a person in the relevant constituency, an institution, an organization, a facility, or a meeting or event of the electorate, or to an institution, an organization, or a facility outside the relevant constituency, even if there is such a meeting or event, or to a person who is related with the electorate, or to an institution, an organization, or a facility, or an act of promising to offer such things: (a) a contribution by a candidate, etc. (Article 113), a contribution by a political party and a family member of the candidate (Article 115), and (b) a person who makes a contribution in violation

As long as the Public Official Election Act specifies the other party to a contribution act through the concept of "relevant constituency", a contribution act under Article 112 (1) of the Public Official Election Act may be established on the premise that it exists at the time of the act. However, Article 25 (2) of the former Public Official Election Act (amended by Act No. 14073, Mar. 3, 2016; hereinafter the same shall apply) provides that "the name and the district of the constituency for the National Assembly members shall be as specified in attached Table 1], and then the list of the constituency for the National Assembly members is prescribed in attached Table 1. Therefore, where the "election district" under Article 112 (1) of the Public Official Election Act refers to a constituency in the constituency for the National Assembly member at the time of the act (see, e.g., Supreme Court Decision 2016Do20490, Apr. 13, 2017).

(2) Under the premise that at the time of providing property benefits through the event of the ○○ Mountain Conference, Defendant 1, Defendant 3, and Defendant 6, etc., the National Assembly member of the △△△△△ was effective, the lower court recognized that the residents living in the △△△△△△△△ at the time constituted “persons within the relevant constituency” under Article 112(1) of the Public Official Election Act as the party to the contribution act.

(3) The Constitutional Court decided that "Article 25 (2) [Attachment 1] [Attachment 1] of the Public Official Election Act (amended by Act No. 11374, Feb. 29, 2012) does not conform with the Constitution, and the said schedule of the election district for the National Assembly shall continue to apply until the legislators revised the schedule on December 31, 2015 (see, e.g., Constitutional Court en banc Decision 2012Hun-Ma190, Oct. 30, 2014). After that, the National Assembly revised the Public Official Election Act by Act No. 14073, Mar. 3, 2016; the new schedule of the election district for the National Assembly becomes invalid from January 1, 2016 to March 2, 2016.

Defendant 1, etc.’s act of offering benefits was conducted from June 2015 to November 2015, 2015, which was prior to the time limit of the above amendment. Since Article 25(2) [Attachment Table 1] of the former Public Official Election Act as to the electoral district list does not constitute a provision on punishment against which contribution is prohibited, it does not lose its retroactive effect in accordance with the ruling of inconsistency with the Constitution even before the amendment deadline. Nor is it possible to become a contribution act under the Public Official Election Act on the ground that the act of offering property benefits, etc. during the period when the electoral district list loses its validity does not have a valid electoral district, the act of the said Defendants prior to the amendment constitutes a contribution act under the Public Official Election Act, as long as there is a valid electoral district list.

Furthermore, even if the election district list cannot be punished for a contribution act made during the period when the election district list becomes invalid, it is only a result of the absence of a temporarily valid election district list in accordance with the decision of inconsistency with the Constitution, and it does not constitute a case where a violation of Article 257(1)1, Article 113, or Article 115 of the Public Official Election Act as to a violation of the restriction on contribution does not constitute a crime.

In so determining, the lower court did not err by misapprehending the legal doctrine on the scope of application of Article 1(2) of the Criminal Act, the meaning of “relevant constituency” under the former Public Official Election Act, and the retroactive effect of penal provisions, contrary to what is alleged in the grounds of appeal.

C. Whether a co-principal is a co-principal

In full view of the circumstances such as the preparation process of the establishment of the ○○ Mountain Association, the lower court acknowledged the fact that Defendants including Defendant 9 actively recruited and conspireded in the election campaign by establishing the ○○ Mountain Association and conducting election campaigns through the event of the said mountain conference. In addition, the lower court acknowledged the fact that Defendants 1, 3, 5, and 6, etc. conspired and conspired to make contributions to provide participants with property benefits exceeding membership fees.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine, 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 logical and empirical rules, or by misapprehending the legal doctrine on functional control of

D. Unreasonable sentencing

According to Article 383 subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal may be filed on the ground of unfair sentencing. Therefore, in this case where Defendant 5 was sentenced to a more minor punishment, the argument that the punishment is too unreasonable is not legitimate

(e) Other

Defendant 4 and Defendant 5 appealed on the violation of the Public Official Election Act due to the violation of the Restriction on Contribution Act, but did not state in the appellate brief the grounds of appeal on this part.

2. Determination on the Prosecutor’s grounds of appeal against Defendant 1, Defendant 2, Defendant 3, Defendant 4, Defendant 5, and Defendant 6

(a) Other party to a contribution act;

In Article 112(1) of the Public Official Election Act, “a person who is a party to a contribution act” includes not only a person who has his/her domicile or residence in a constituency but also a person who temporarily stays in a constituency. “A person who is a electoral resident” refers to a person who has a certain blood or personal relationship, such as his/her family, relative, family, relative, workplace, workplace, person who is superior to the elector, or a person who is in a relationship with the elector, such as a native meeting, alumni meeting, alumni meeting, relatives meeting, etc., and is likely to have any direct or indirect influence on the decision of the elector (see Supreme Court Decision 2006Do9043, Mar. 30, 2007, etc.).

The lower court found the Defendant not guilty on the grounds that there is insufficient evidence to view that the number of persons residing in △△△△△, a constituency, exceeds 1,903, as falling under “persons within the relevant constituency” or “persons having relations with the electors” under the Public Official Election Act, and that there is a lack of evidence to view that such persons fall under “persons within the relevant constituency” or “persons having relations with the electors,” among the facts charged regarding the violation of the

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the lower court did not err by misapprehending the legal doctrine on the scope of the other party to the contribution act.

B. misunderstanding of legal principles as to admissibility of evidence

Of the judgment below, the prosecutor argued that there was a misapprehension of the legal principle about the admissibility of evidence on the ground that he violated Article 272-2(6) of the Public Official Election Act with respect to recording recording of Defendant 1’s statement, etc. inside the indoor event of the ○○ Mountain Association.

However, the court below determined that the facts charged against the violation of the Public Official Election Act due to the establishment of private organizations, election campaign through private organizations, and advance election campaign related to the above evidence are sufficient to find the defendant guilty with the remaining evidence except the above evidence.

Therefore, this part of the ground of appeal is not allowed as it is intended to dispute only the reasons, not the text of the judgment, and such appeal is not allowed (see Supreme Court Order 92Mo21, Mar. 4, 1993, etc.). Therefore, it cannot be viewed as a legitimate ground of appeal.

3. Conclusion

The Defendants and the Prosecutor’s appeals are all dismissed as they are without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)