공직선거법상 ‘기부행위’와 그 예외로서 조례에 근거한 ‘직무상 행위’의 해석 - 대법원 2015. 10. 15. 선고 2015도11392 판결 -

Abstract

The Public Official Election Act(‘the Election Act’) explicitly prohibits all ‘acts of contribution’ under Article 112 and only allows few exceptions in Article 112 (2). The judgment made in this case is significant, as it is the first case to find the defendant not guilty on the grounds that his actions fell under the ‘functional acts’ in article 112 (2) 4 (b) of the Act. In this case, the defendant, head of a Gun, executed additional operating expense for villages that did not qualify for such governmental support according to the original plan. Such execution could be justified based on the municipal ordinance of the Gun, though he did not review the stricter requirements set out by the Act, a higher level legislation that overrules a municipal ordinance. In the first trial by a district court, the court ruled that the defendant’s execution of such expense could not be regarded as ‘functional acts,’ and thus found him guilty. However, the appellate court and the Supreme Court held that the defendant, as he is the head of a Gun, should adhere to the municipal ordinances first rather than the Act or other higher level legislation. As a result, the appellate court and the Supreme Court ruled that the defendant did not violate the Act because he had adhered to the requirements and procedures prescribed by the respective municipal ordinance. The Election Act stipulates that the local governments’ decision to provide money or goods according to their own project plans within their budgets shall not be considered as an ‘act of contribution', when such decision adheres to a municipal ordinance of the respective local governments that specifically set out the scope, method, and objective of such support. Further, the Supreme Court has the authority to judge whether a municipal ordinance is illegal. Thus, a local public official such as the defendant shall comply with the respective municipal ordinances as long as such ordinance is not considered illegal by the Supreme Court. Therefore, the defendant should not be found guilty for adhering to a municipal ordinance that he is expected to follow in the first place. The existence of a contradictory higher level legislation shall not make the same action illegal. Furthermore, with regard to ‘the expression of suggesting benefits,’ the person receiving such benefit and the exact benefit should be specific. In this case, the defendant’s remarks, “I will consider supporting the business expense,” thus did not violate the Act. Finally, non-compliance of administrative procedures and criminal intent must be strictly distinguished, and the latter should not be presumed without a valid proof. The defendant, in the process of executing the project expenses, made an inquiry to the National Election Commission regarding this issue and the Commission responded that the possibility of violating the Election Act is miniscule at maximum. As a result, the defendant is found to have legitimate reasons for mistakenly believing in legal legitimacy of his actions and shall be found not guilty.