[1] The meaning of "election campaign" under Article 135 (3) of the Act on the Election of Public Officials and the Prevention of Election Malpractice, and whether the act of keeping office equipment and establishing election campaign measures by employing election campaign workers, etc. is an election campaign (affirmative)

[2] The meaning of "in relation to election campaign" under Article 135 (3) of the Public Official Election and Prevention of Unlawful Election Act

[3] Persons subject to punishment under Article 230 (1) 4 of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts, which punishs the act of offering money or goods in connection with election campaigns

[4] Whether a claim stated in the appellate court's summary of oral argument may be invoked as the ground of appeal (negative)

[5] The meaning of "providing" under Article 135 (3) of the Act on the Election of Public Officials and the Prevention of Unlawful Election

[6] Whether Article 230 (1) 4 and Article 135 (3) of the Act on the Election of Public Officials and the Prevention of Unlawful Election are unconstitutional (negative)

[1] Article 135 (3) of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [2] Article 135 (3) of the Act on the Election of Public Officials / [3] Articles 135 (3) and 230 (1) 4 of the Act on the Election of Public Officials / [4] Article 379 (2) of the Criminal Procedure Act / [5] Article 135 (3) of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [6] Articles 135 (3) and 230 (1) 4 of the Act on the Election of Public Officials and the Prevention of Unlawful Election

[1] Supreme Court Decision 98Do1432 delivered on April 9, 199 (Gong199Sang, 935) Supreme Court Decision 2004Do7511 delivered on January 27, 2005 (Gong2005Sang, 376) / [2/5] / [6] Constitutional Court en banc Decision 2001Hun-Ba26 delivered on April 25, 2002 (Hun-Ba68, 387), / [4] Supreme Court Decision 95Do2716 delivered on February 13, 1996 (Gong196, 1027). Supreme Court Decision 2002Do606 delivered on March 11, 2004

Defendant 1 and five others

Defendants

Senior Law Firm, Attorneys Choi Jin-jin et al.

Daegu High Court Decision 2004No306 delivered on September 30, 2004

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed on January 12, 2005).

1. As to the violation of the rules of evidence

A. The main text of Article 312(1) of the Criminal Procedure Act provides that "a protocol in which a prosecutor makes a statement of a suspect or a person other than a suspect and a protocol in which a prosecutor or a senior judicial police officer recorded the result of inspection of evidence may be admitted as evidence when it is admitted to be genuine by the person making the original statement at a preparatory hearing or during a public trial." Here, the authenticity of formation refers to both the formal authenticity of the protocol, such as seal, signature, and seal, and the actual authenticity that the content of the protocol is recorded as stated by the person making the original statement. A protocol in which a prosecutor makes a statement of a suspect or a person other than a suspect, shall be admitted as evidence only when not only the formal authenticity is made by the person making the original statement at a preparatory hearing or during a public trial but also the actual authenticity is recognized (see Supreme Court en banc Decision 2002Do537, Dec. 16, 2004).

However, according to the records, in the list of evidence which forms part of the protocol of this case or the protocol of trial, the defendants acknowledged each interrogation protocol of the prosecutor on the date of the first instance trial and accepted it as evidence by the court, and the court stated that the defendants and the defense counsel did not have any different opinion as to the result of the examination of evidence. On the other hand, until the examination of evidence is completed by the defendants, the defendants specified the part that the above interrogation protocol was entered differently from their statements in the above interrogation protocol and stated differently from their statements in the prosecutor's office did not deny the actual authenticity, and on the contrary, the prosecutor's protocol of interrogation against the defendants as to each interrogation protocol of the prosecutor is acknowledged to be authentic by the defendants' statement on the date of trial. Thus, the grounds for appeal on this point are not acceptable.

B. In a case where the defendant argues that the defendant's statement or the testimony of the defendant on the trial date entered in the suspect examination protocol prepared by the public prosecutor is false confession, the court should determine whether the above statement was made arbitrarily by free trial evidence in consideration of all the circumstances such as the defendant's academic background, career, occupation, social status, contents of the statement, and the form of the protocol according to the specific case (see Supreme Court Decision 2003Do705 delivered on May 30, 2003, etc.).

According to the records, since the police officers had been provided with KRW 48,20,00 from the prosecutor's office to the court of first instance, they consumed 1,8710,00 won out of their office construction cost and purchase cost, etc.; money remaining after excluding part of their use is provided to the election campaign worker, who is the defendant 1, 4, 5, 6, co-defendant 1, and 2, etc. (hereinafter referred to as "defendant 1, etc.") as activity expenses; provided several different statements on the amount individually provided to the defendant 1, etc. at the police stage; thus, in light of the above facts and records, it is recognized that the facts and credibility of the prosecutor's statement made at the prosecutor's office were sufficiently different from those mentioned in paragraph (1) of the first instance court's first instance judgment; thus, it is recognized that there were no other facts that the defendant 2 provided information about the defendant 1, etc. at the police stage to the prosecutor's office's office's first instance to the extent that the defendant 2 provided information about the remaining facts charged.

C. Examining the evidence, including the above confessions, admitted by the court below in light of the records, the fact-finding of the court below as stated in its reasoning on the date and amount of money and valuables received between Defendant 2, Defendant 3, and Defendant 1, etc. is just and acceptable, and there is no violation of the rules of evidence or incomplete hearing as otherwise alleged in the ground of appeal.

The confessions made by the defendant under Article 310 of the Criminal Procedure Act does not include the statements made by the co-defendant. As to the statements made by the co-defendant, the defendant's right to cross-examination is guaranteed, and independent admissibility of evidence is guaranteed (see Supreme Court Decision 85Do951, Mar. 9, 1985; Supreme Court Decision 92Do917, Jul. 28, 1992, etc.). Thus, the court below erred by finding the defendant 2's statement as evidence and recognizing the criminal facts of the defendant 3.

2. As to the relation of the given money and valuables election campaign

A. An election campaign under Article 135(3) of the Act on the Election of Public Officials and the Prevention of Election Malpractice (hereinafter referred to as the "Public Election Act") refers to all acts necessary and favorable for the election or the defeat of a specific candidate, which are objectively recognized as an objective act for the purpose of promoting the election or the defeat of a certain candidate. It is distinguishable from an act of preparing an internal or procedural preparation for an election campaign for a future election campaign or ordinary political party activities; however, in determining whether a certain act constitutes an election campaign, it shall be determined whether the act is an act accompanying the purpose of promoting the election or defeat of a specific candidate by comprehensively observing the time, place, method, etc. of the act in question, as well as the name of the act in question. Accordingly, the act of preparing an election campaign, etc. by separately preparing an office and keeping a clerical device and employing an election campaign worker, etc., is obviously a preparation for an election campaign for a specific candidate or an ordinary political party activity as a political party (see, e.g., Supreme Court Decision 200Do484, Apr. 1999).

In full view of the adopted evidence, Defendant 3 had Defendant 1 and Defendant 2, who was 53 alumnis of Yongcheon Elementary School around August 2003, avoided the intention of the first time, and had Defendant 1 et al. provide the stores in fact to the Dong branch office 53 times in Yongcheon Elementary School and 53 times as a base for the first time. Defendant 1 et al. employed election campaign workers by consecutive employment of Defendant 1 et al. in order to overcome his low-level figures, the lower court determined that Defendant 3 did not have any legitimate reasons to believe that the acts of Defendant 1 et al. conducted an election campaign by dividing into several regions in Yongcheon-si and Seocheon High School, or by visiting various facilities or organizations, and that the number of election campaign workers increased, and that the number of election campaign workers visiting the above Dong branch office was increased, and that Defendant 3 did not have any more active reasons to find that the act of Defendant 1 et al. was an act of being prepared for an election campaign or to take measures from time to time in light of the above legal principles.

B. In relation to an election campaign under Article 135(3) of the Election of Public Officials Act, the term "in relation to an election campaign" means "for an election campaign, motiveing matters concerning an election campaign" is more broad than "for an election campaign", and even if there was no purpose of affecting the purpose of the election or the election, the act itself was established in the necessity to regulate the act that is highly likely to infringe on the freedom and fairness of the election. Therefore, the provision of money and valuables does not need to be the consideration for an election campaign, and it includes what is related to the election campaign, such as the cost of providing information related to the election campaign, and the cost of fee for the election campaign (see Constitutional Court en banc Decision 201Hun-Ba26, Apr. 25, 2002).

Examining the evidence adopted by the court below in light of the above legal principles, 1.4 million won (No. 6,10 of the crime list (2) of the court of first instance) received by Defendant 4 from Defendant 3 was delivered as a loan from Defendant 4 to settle the card price, but it can be recognized that the above card price of Defendant 4 was created due to the fact that Defendant 4 paid various expenses incurred in the election campaign for Defendant 3 by credit card, and there was no agreement on due date or interest, and it is reasonable that the above 1.4 million won was related to the election campaign, and it is hard to view that Defendant 3 and Defendant 4 did not actually have a definite intention to repay or receive the above money, and that the above 2.2.2 million won of the list of crimes in the court of first instance, among the money and valuables received by Defendant 1 from Defendant 3, the above 200 million won was delivered to Defendant 1 and Defendant 3 did not actually use the above money and valuables at the time of the election campaign.

3. As to the misapprehension of legal principles as to Article 135 of the Official Election Act

Article 230 (1) 4 of the Official Election Act provides that a person who provides, manifests an intention to provide, or promises to provide money, goods, or other benefits in connection with an election campaign regardless of the pretext, such as allowances, actual expenses, other compensation for volunteers, in violation of Article 135 (3) shall be punished. Article 135 (1) of the Official Election Act provides that "the election campaign manager, the head of the election campaign liaison office, the election campaign worker, and the person in charge of accounting (hereafter referred to as the "election campaign manager, etc." in this Article) may pay allowances and actual expenses". Paragraph (2) provides that "the kinds and amounts of allowances and actual expenses shall be determined by the National Election Commission". Paragraph (3) provides that "Except where allowances, actual expenses, and other benefits are provided by this Act, regardless of the pretext, such as compensation for volunteers, actual expenses, etc., shall not be provided, nor shall allowances and actual expenses be provided to persons who are not subject to the Act on the Election of Public Officials, and Article 135 (2) of the Act provides that allowances and actual expenses are not subject to the Act.

Examining the record in light of this legal principle, Defendant 3’s election campaign manager reported to the competent election commission with the fixed number of election campaign workers who can be placed at the election commission of the National Assembly members pursuant to Article 62(2)2 of the Public Election Act, and paid allowances and actual expenses as prescribed by each Act to them. Defendant 1 et al. do not constitute all. As such, the offering of money and valuables to Defendant 1 et al. in relation to the election campaign is deemed to violate Article 135(3) of the Public Election Act and is punished pursuant to Article 230(1)4 of the Public Election Act. Thus, the judgment of the court below to the same purport is justifiable. Under other legal opinions or fact-finding, where the other party to the offering of money and valuables is a person other than an election campaign worker as provided in Article 135(1)4 of the Public Election Act, it is not subject to punishment pursuant to Article 230(1)4 of the Public Election Act, or Defendant 1 et al. merely constitutes an election campaign worker and thus, it cannot be accepted the ground for appeal.

4. As to the assertion of the summary of the oral argument in the court below

According to the statement in the statement in the grounds of appeal, it is necessary to invoke the summary of the oral argument of the Red Cross Agency of the original court as to whether there was "providing money or other benefits". However, the grounds of appeal should be specified by citing the facts expressed in the records of trial and the evidence examination by the original court. Thus, it cannot be a legitimate ground of appeal (see, e.g., Supreme Court Decisions 95Do2716, Feb. 13, 1996; 2002Do606, Mar. 11, 2004; 2002Do606, Mar. 11, 2004). The "providing" under Article 135 (3) of the Official Election Act refers to a delivery of pecuniary benefits. It does not necessarily mean that the other party's income should be attributed, such as the allegation in the above summary of oral proceedings (see the above decision in the Constitutional Court).

5. Regarding violation of the Constitution

Articles 230(1)4 and 135(3) of the Public Election Act prohibit not all acts of offering benefits, but only acts of offering benefits related to election campaigns, and specifically define acts of offering benefits related to election campaigns through a judge’s supplementary interpretation of the law. Thus, the above provision of the law cannot be deemed to violate the principle of clarity or to excessively restrict election campaigns or freedom of expression, and therefore, it cannot be deemed that it violates the Constitution that regulates the principle of no punishment without the law, the right of reference, and the right of freedom (see the above decision of the Constitutional Court). Therefore, the grounds of appeal on this point cannot be accepted.

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

Justices Ko Hyun-chul (Presiding Justice)