Supreme Court: Holding Permitted Badges for Preliminary Candidates Constitutes Election Law Violation

The Supreme Court has ruled that the act of a preliminary candidate holding election signs in both hands and raising them above their head cannot be regarded as the act of "wearing" signs indicating the candidate's status, which is a method of preliminary election campaigning allowed to preliminary candidates under the Public Official Election Act.

The ruling emphasizes that the term "wearing" cannot be broadly interpreted to include carrying or holding on the body, and since the provision is an exception that permits preliminary election campaigning otherwise prohibited by the Public Official Election Act, it must be interpreted strictly.

Supreme Court, Seocho-dong, Seoul.

According to the legal community on the 11th, the Supreme Court's Second Division (Presiding Justice Kwon Young-jun) upheld the lower court's ruling that sentenced Kang Mugil, a Busan City Council member, to a fine of 500,000 won for violating the Public Official Election Act.

Kang was indicted for violating the Public Official Election Act after he registered as a preliminary candidate for the Haeundae District Office in Busan during last year's 8th simultaneous local elections and conducted election campaigning on the street by holding election signs in both hands and raising them above his head.

Article 59 (Election Campaign Period) of the Public Official Election Act stipulates that "election campaigning may only be conducted from the start of the election campaign period until the day before the election," thereby prohibiting preliminary election campaigning, but Article 59, Clause 1, Item 1 provides an exception for "cases where preliminary candidates conduct election campaigning."

Furthermore, Article 60-3 (Preliminary Candidates' Election Campaigning), Paragraph 1, Item 5 of the same law states that "the act of wearing a sash or signs indicating the status of a preliminary candidate for election campaigning" is a type of preliminary election campaigning permitted for preliminary candidates.

During the trial, Kang's side argued that "wearing" should be interpreted to include carrying signs on the body.

However, both the first and second instance courts found Kang guilty and sentenced him to a fine of 500,000 won. The Supreme Court's judgment was the same.

The court stated, "Under the Public Official Election Act, the act of wearing signs should be understood as 'attaching or fixing signs to the body by wearing, putting on, or similar means.' Simply placing signs near the body without attaching or fixing them, maintaining only physical contact, or holding signs in both hands and raising them above the head does not fall under this definition," explaining the reasoning.

The court further added, "This provision reflects the legislator's intention to prohibit preliminary candidates from conducting preliminary election campaigning by carrying or holding sashes or signs beyond the usual meaning of wearing them. Therefore, expanding the meaning of 'wearing' is not appropriate."

As grounds for this judgment, the Supreme Court cited ▲ Article 60-3 of the Public Official Election Act, which stipulates the election campaigning methods allowed for preliminary candidates, is an exception to the generally prohibited preliminary election campaigning, so its scope should be strictly interpreted according to the wording ▲ The provision in question was newly established during the 2010 amendment of the law, and at the same time, Article 68, Paragraph 1 of the Public Official Election Act concerning candidates' election campaigning methods was amended to expand the permitted acts from only "wearing sashes, hats, or T-shirts" to also include "attaching, wearing, or carrying sashes, badges, mascots, etc.," whereas for preliminary candidates, only "wearing" is permitted.

A Supreme Court official stated, "This ruling is the first to interpret the meaning of 'the act of wearing signs' permitted to preliminary candidates under Article 60-3, Paragraph 1, Item 5 of the Public Official Election Act."

Kang withdrew from the preliminary candidacy for Haeundae District Office and ran for Busan City Council, where he was elected.