electoral campaign had practically begun and the probability of the
act of a state institution to influence the election was relatively high,
and there was an increased demand for the political neutrality of state
institutions at least during that period of time.
4) The President, then, violated the obligation to maintain neutrality concerning elections, by making the statements at the press
conferences toward the entire public in support of a particular political party by taking advantage of the political weight and influence
of the presidency, when the political neutrality of public official was
highly demanded more than ever due to the temporal proximity to the
election, while the President is ultimately responsible to oversee a
fair administration of election, since such statements constituted acts
performed using the respondent's status as the President unduly influencing the election and thereby affecting the outcome of the election.
(3) Whether the respondent violated Article 60 of
the Public Officials Election Act
(prohibition of electoral campaign by public official)
(A) Definition of electoral campaign
Article 58(1) of the Public Officials Election Act defines the
term 'electoral campaign' as an 'activity for winning an election or
for having another person be or not be elected.' The Public Officials
Election Act, in a proviso in the same provision, lists certain 'acts
not deemed to constitute electoral campaign,' which are: mere expression of opinion toward election, preparatory activity to register as a
candidate and for electoral campaign, mere expression of opinion in
agreement or disagreement toward the parties' recommendation of the
candidates, and ordinary party activities.
Pursuant to the precedents of the Constitutional Court, the 'electoral campaign' under Article 58(1) of the Public Officials Election
Act is any and all active and premeditated deeds for a specific candidate's winning the election and obtaining the votes therefore, or
any and all active and premeditated deeds to have a specific candidate lose the election, among which there is an objective intent to
win or to have win or lose the election (6-2 KCCR 15, 33, 93Hun-Ka4,
July 29, 1994; 13-2 KCCR 263, 274, 2000Hun-Ma121, August 30, 2001).
The important standard in determining whether a specific act
falls within the definition of electoral campaign is the existence of
the required 'intent,' whereas other nature of 'activeness' or 'premeditatedness' is a secondary element that contributes to an objective
finding and analyzing of the required 'intent' of the electoral campaign.
Since the 'purposeful intent' of the actor is a highly subjective element
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