Open Decision Ledger · Criminal law
Party primaries by opinion poll within the election-law rules on campaigning
Supreme Court, Oct. 31, 2019, 2019Do2356 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 공직선거법위반
Official text on the National Law Information Center
Question
Does a party primary in which party members and non-members express a choice among candidates fall within the primary 'conducted by granting voting rights to party members and non-members' under Article 57-3(1) of the Public Official Election Act, may the voting be done by opinion poll rather than by marking a ballot, and does a primary-related poll count as an 'opinion poll concerning an election' under Article 108(5) and (11) of that Act?
Holding
Yes to all three. The Court held that a primary asking party members and non-members to express a choice among candidates is a primary conducted by granting voting rights to both, that the way those rights are exercised need not be marking a ballot and, absent special circumstances, includes a method that obtains the choice through an opinion poll. It also held that an opinion poll connected with a party primary falls within the 'opinion poll concerning an election' regulated by Article 108(5) and (11), and dismissed the appeal.
Points at issue, verbatim
정당이 당원과 당원이 아닌 자에게 경선후보자 중 누가 선거의 후보자가 되어야 하는지에 관한 선택의 의사를 표시하게 하는 당내경선이 공직선거법 제57조의3 제1항에서 정한 ‘당원과 당원이 아닌 자에게 투표권을 부여하여 실시하는 당내경선’에 해당하는지 여부(적극)
Unofficial English translation
Whether a party primary in which a political party has party members and non-members express their choice as to which of the primary candidates should become the party's candidate for an election falls under 'a party primary conducted by granting voting rights to party members and non-members' as provided in Article 57-3, paragraph (1) of the Public Official Election Act (affirmative)
Disposition
Dismissed Stated in the decision
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Form of the test
Elements stated Stated in the decision
그 투표권을 행사하는 방식은 반드시 투표용지에 기표하는 방법으로 제한되지 않으며, 특별한 사정이 없는 한 여론조사 방식을 통하여 위와 같은 선택의 의사표시를 하도록 하는 방법도 포함한다고 보아야 한다.
Unofficial English translation
the manner in which such voting right is exercised is not necessarily limited to the method of marking a ballot, and, absent special circumstances, it must be regarded as also including the method of having such expression of choice made through a public opinion survey.
Factors
- ‘당원과 당원이 아닌 자에게 투표권을 부여하여 실시하는 당내경선’에 해당하는지 여부(적극)
- 이때 투표권을 행사하는 방식은 반드시 투표용지에 기표하는 방법으로 제한되는지 여부(소극)
- 여론조사 방식을 통하여 위와 같은 선택의 의사표시를 하도록 하는 방법도 포함하는지 여부(원칙적 적극)
- 공직선거법 제108조 제5항, 제11항에서 정한 ‘선거에 관한 여론조사’에 ‘당내경선과 관련된 여론조사’도 포함되는지 여부(적극)
Unofficial English translation
• Whether it falls under 'a party primary conducted by granting voting rights to party members and non-members' (affirmative)
• Whether the manner in which the voting right is exercised on such occasion is necessarily limited to the method of marking a ballot (negative)
• Whether the method of having such expression of choice made through a public opinion survey is also included (affirmative in principle)
• Whether 'public opinion surveys on elections' as provided in Article 108, paragraphs (5) and (11) of the Public Official Election Act also includes 'public opinion surveys related to a party primary' (affirmative)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2013. 5. 9. 선고 2012도12172 판결 참조
Unofficial English translation
See Supreme Court Decision 2012Do12172 decided May 9, 2013
Decisions referred to
[1] 대법원 2007. 3. 15. 선고 2006도8869 판결(공2007상, 585), 대법원 2008. 9. 25. 선고 2008도6232 판결(공2008하, 1511), 대법원 2013. 5. 9. 선고 2012도12172 판결(공2013상, 1061)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
What special circumstances would make a poll method fall outside the exercise of voting rights in a party primary?
An amendment to Article 57-2, Article 57-3(1), Article 8-8(8) or Article 108(5) and (11) of the Public Official Election Act would require this entry to be read again. A later Supreme Court decision holding that a particular poll was not the exercise of voting rights in a primary, or that a primary poll falls outside Article 108, would change the reading.
Cross-family AI independent reading & axis check
8 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on all 8 axes.
Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Daegu High Court, in its judgment of 24 January 2019 (2018No542), held that the defendant breached Article 57-3(1) of the Public Official Election Act by setting up and running an election office similar to a campaign office for another person before the campaign period and sending eleven text messages promoting or appealing for support for that person, with the aim of campaigning in the primary for the nomination of the Mayor of ○○○○ in the 7th nationwide local elections of 2018. It also held that the defendant breached Article 108(5) and (11) by arranging call redirection in the primary so as to direct duplicate responses, and by asking which candidate the respondent supported without disclosing the name and telephone number of the polling agency or organisation.
Supreme Court standard: The Supreme Court found no error. It reasoned that the Act does not define voting or opinion polls, sets no restriction on the method of voting in a primary although it restricts voting methods in general elections, and does not treat voting and polls as opposing concepts, so that a poll may obtain the choice in a primary and may even replace one under Article 57-2(2). It also held that Article 8-8(8), which excludes certain polls from polls concerning an election, does not exclude primary polls, so Article 108(5) and (11) covers them; the court below had not misread the scope of those provisions. The Justices unanimously dismissed the appeal.
Distinguishing conditions
- A party primary that grants voting rights only to party members and does not include non-members among those entitled to vote, since the rule turns on a primary conducted for both.
- An opinion poll that does not obtain a choice of which candidate should be the party's nominee, since only such a method is treated as the exercise of voting rights in a primary.
- A primary poll falling within one of the categories that Article 8-8(8) excludes from polls concerning an election, since the exclusion there is not lifted for primary polls.
Record verification notes
Set the primary's rules against the statute first: confirm that non-party members held voting rights and how their votes and the poll were combined, here 50 percent each. Then fix the campaign period for the primary and the dates of the acts charged, and check separately whether the poll disclosed the polling agency's name and telephone number and directed duplicate responses.
From the official text
Points at issue
[1] 정당이 당원과 당원이 아닌 자에게 경선후보자 중 누가 선거의 후보자가 되어야 하는지에 관한 선택의 의사를 표시하게 하는 당내경선이 공직선거법 제57조의3 제1항에서 정한 ‘당원과 당원이 아닌 자에게 투표권을 부여하여 실시하는 당내경선’에 해당하는지 여부(적극) 및 이때 투표권을 행사하는 방식은 반드시 투표용지에 기표하는 방법으로 제한되는지 여부(소극)와 여론조사 방식을 통하여 위와 같은 선택의 의사표시를 하도록 하는 방법도 포함하는지 여부(원칙적 적극) [2] 공직선거법 제108조 제5항, 제11항에서 정한 ‘선거에 관한 여론조사’에 ‘당내경선과 관련된 여론조사’도 포함되는지 여부(적극)
Unofficial English translation
[1] Whether a party primary in which a political party has party members and non-members express their choice as to which of the primary candidates should become the party's candidate for an election falls under 'a party primary conducted by granting voting rights to party members and non-members' as provided in Article 57-3, paragraph (1) of the Public Official Election Act (affirmative), and whether the manner in which the voting right is exercised on such occasion is necessarily limited to the method of marking a ballot (negative), and whether the method of having such expression of choice made through a public opinion survey is also included (affirmative in principle) [2] Whether 'public opinion surveys on elections' as provided in Article 108, paragraphs (5) and (11) of the Public Official Election Act also includes 'public opinion surveys related to a party primary' (affirmative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Provisions referred to
[1] 공직선거법 제57조의2, 제57조의3 제1항, 제108조 제1항, 제2항, 제146조 제1항, 제147조, 제150조, 제151조, 제159조, 제255조 제2항 제3호 [2] 공직선거법 제8조의8 제8항, 제108조 제5항, 제11항, 제256조 제1항 제5호
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
Back to the ledger