Open Decision Ledger · Criminal law
Party primaries that give non-members a vote, and the opinion-poll method
Supreme Court, Oct. 31, 2019, 2019Do894 (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·정당법위반·사기
Official text on the National Law Information Center
Question
Does a party primary in which members and non-members express their choice among primary candidates fall within the 'primary election conducted by granting voting rights to party members and non-members' in Article 57-3(1) of the Public Official Election Act, need the vote be cast only by marking a ballot paper, does an opinion-poll method also count, and does 'opinion polls relating to an election' in Article 108(5) and (11) of that Act include a poll connected with a primary?
Holding
Yes, on all points. The Act contains no provision defining voting. For elections to public office, Article 146(1), Article 147, Article 150, Article 151 and Article 159 prescribe marking a ballot paper and govern the ballot box, but the Act does not restrict how votes are cast in a primary. Marking a ballot paper is therefore not required: any method of indicating which primary candidate should become the candidate is sufficient, and, absent special circumstances, this includes an opinion poll. Nor does the Act define opinion polls or distinguish them from voting. Because it permits polls that use mock voting or a replica resembling a ballot paper, it does not treat voting as the opposite of an opinion poll. Article 57-2(2) allows a poll to replace a primary, and Article 8-8(8) does not exclude polls for primaries from election polls, so 'opinion polls relating to an election' in Article 108(5) and (11) include polls connected with a primary.
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 its 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 method of exercising such voting right is not necessarily limited to the method of marking a ballot paper, and unless there are special circumstances, it must be regarded as also encompassing a method of having such expression of choice made through an opinion survey.
Factors
- 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)
- 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 a party primary in which a political party has its 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)
• Whether the method of exercising such voting right at that time is necessarily limited to the method of marking a ballot paper (negative)
• Whether a method of having such expression of choice made through an opinion survey is also included (affirmative in principle)
• Whether 'an opinion survey on an election' as provided in Article 108 paragraphs (5) and (11) of the Public Official Election Act also includes 'an opinion survey 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 an opinion-poll method fall outside a primary election under Article 57-3(1)?
An amendment to Article 57-3(1), Article 57-2(2), Article 8-8(8) or Article 108(5) and (11) of the Public Official Election Act would call for a fresh reading, as would a later decision defining the special circumstances left open here or excluding polls connected with a primary from opinion polls relating to an election. New facts on whether non-members held voting rights or on how the poll was run would also reopen the analysis.
Cross-family AI independent reading & axis check
8 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-26
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 20 December 2018 (2018No484), held that the primary to choose the party's candidate for mayor, in which the votes of all responsible party members and a telephone survey of 3,000 ordinary citizens were each weighted at 50 per cent, was a primary conducted by granting voting rights to party members and non-members under Article 57-3(1). It convicted the Defendant of primary electioneering by having calls made to guide responsible party members through the mobile voting procedure, of breaching Article 108(5) and (11) by call forwarding, directing duplicate answers and not disclosing the polling organisation's name and telephone number, and of having students who were members of an educational organisation campaign, providing money outside the Act and making donations under Article 115.
Supreme Court standard: The Supreme Court found no error. It held that the restrictions on primary electioneering aim to keep primaries orderly and to prevent them from being used to evade rules such as the ban on early electioneering; that this primary fell within Article 57-3(1); that votes need not be cast by marking a ballot paper; and that, absent special circumstances, an opinion-poll method is included. It also held that, because Article 8-8(8) does not exclude polls for primaries, Article 108(5) and (11) apply to them. The Court unanimously dismissed the appeal as unfounded, noting that, under Article 383(iv) of the Criminal Procedure Act, a complaint that the sentence is too severe is not a lawful ground of appeal.
Distinguishing conditions
- A primary in which only party members are given voting rights, since the rule depends on non-members also having voting rights.
- A poll that is not used to express the choice among primary candidates or to substitute for the primary under Article 57-2(2), so that it is not connected with a primary.
- Special circumstances taking an opinion-poll method outside a primary, which the Court left undefined.
Record verification notes
Check first whether non-members were given voting rights and whether the poll fed into the selection of the party's candidate, as the 50 per cent weighting did here. For an Article 108 charge, compare each act (call forwarding, instructions to give duplicate answers and failure to identify the polling organisation) with the wording of Article 108(5) and (11). For the campaign work, money and donations, also consider the distinction between electioneering and primary electioneering, and the Article 115 donations and their recipients.
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 its 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 method of exercising such voting right at that time is necessarily limited to the method of marking a ballot paper (negative), and whether a method of having such expression of choice made through an opinion survey is also included (affirmative in principle) [2] Whether 'an opinion survey on an election' as provided in Article 108 paragraphs (5) and (11) of the Public Official Election Act also includes 'an opinion survey 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
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