Supreme Court: Sending ARS Calls Before Cutoff Review Violates Election Law

A prospective candidate who recorded a voice message appealing for support to voters in the electoral district before the candidate exclusion (cut-off) screening and sent it via an automatic response system (ARS) call was found guilty of violating the Public Official Election Act.

According to an existing Supreme Court precedent, even if the internal party primary has not been confirmed or the person has not yet registered as a preliminary candidate, if a person intending to participate in the internal party primary conducts primary campaign activities beyond the scope permitted by the Public Official Election Act in preparation for the primary, it constitutes a violation of internal party primary campaign regulations.

Supreme Court, Seocho-dong, Seoul.

On the 13th, according to the legal community, the Supreme Court's First Division (Presiding Justice Oh Kyung-mi) upheld the original court ruling that sentenced former Hwasun County Governor Jeon Wan-jun and volunteer A, who worked at Jeon's campaign office during the election, to fines of 1 million won each for violating the Public Official Election Act.

The court explained the reason for dismissing the appeal, stating, "There is no error in the lower court's judgment that violates the rules of logic and experience, exceeds the limits of free evaluation of evidence, or misinterprets the legal principles regarding the establishment of the crime of violating the Public Official Election Act and the recognition of illegality."

The two were indicted on charges of sending 86,000 voice messages appealing for support to voters in the electoral district via ARS calls from April 9 to 12, 2022, after registering as preliminary candidates for the Democratic Party's Hwasun County Governor ahead of the 8th nationwide simultaneous local elections in 2022.

Article 57-3(1) of the Public Official Election Act (Internal Party Primary Campaign) allows the following campaign methods in internal party primaries conducted by political parties granting voting rights to party members and non-members: ▲ establishing a campaign office or installing signs, plaques, or banners at the campaign office ▲ directly handing out business cards no larger than 9 centimeters in length and 5 centimeters in width containing one's name, photo, phone number, education, career, and other necessary promotional information or appealing for support ▲ the party sending one type of promotional material prepared by the primary candidate once ▲ the party holding joint speeches or joint debates indoors.

If internal party primary campaign activities are conducted by other methods, they are punishable under Article 255(2)(3) of the Public Official Election Act (Illegal Election Campaigning) by imprisonment for up to two years or a fine of up to 4 million won.

The voice file directly recorded by A contained the message: "Hello. I am preliminary candidate Jeon Wan-jun. I have returned because I want to work. I want to accomplish great things. (Omitted) Please listen to the achievements and accomplishments that no one can imitate until the end and be sure to choose Jeon Wan-jun. Thank you."

In court, Jeon argued that since the ARS messages were sent during the cut-off screening, not the internal party primary, it did not violate election laws. In fact, Jeon was eliminated in the screening on April 19 and did not become a primary candidate; he ran as an independent but lost.

Jeon also claimed that before sending the voice recording file, he instructed his campaign manager and others to inquire with the local election commission about whether it violated election laws and received a report that it did not, so he was unaware of any illegality.

However, both the first and second instance courts found the two guilty and sentenced them to fines of 1 million won each.

The court cited the following reasons: ▲ At that time, the Democratic Party Jeonnam Provincial Party Candidate Recommendation Management Committee reflected 40% public opinion survey, 10% interview, 25% party contribution, 10% legislative activity, and 15% morality in the preliminary candidate screening ▲ the period during which the two sent the voice recording files coincided with the ARS public opinion survey on the suitability of primary candidates to decide the primary candidates ▲ the recorded content was not merely encouraging voters to participate in the survey but appealed for support to be chosen in the survey and promoted pledges ▲ the number of voice recording files sent exceeded the total population of the relatively small electoral district with 55,193 voters, which could have significantly influenced the preliminary candidate suitability survey ▲ although Jeon failed the candidate screening and did not become a primary candidate, he later declared an independent candidacy, and the defendants’ actions could be abused as a means of pre-election campaigning, which goes against the legislative intent of restricting internal party primary campaign methods.

Furthermore, although Jeon claimed he instructed his campaign manager to inquire with the election commission, the court pointed out that an election commission official testified, "Jeon's campaign office manager visited for consultation but only inquired about sending text messages, not about voice recording files," and thus rejected the claim. The court judged, "It is difficult to see that the defendant made all necessary efforts to recognize the illegality of his actions, and it is also difficult to consider that there was a justifiable reason for mistakenly believing his actions were not illegal."

The Supreme Court's judgment was the same.

Meanwhile, the Supreme Court previously stated, "The purpose of restricting internal party primary campaign methods in the Public Official Election Act is to prevent overheating of internal party primary campaigns, promote orderly primaries, and prevent internal party primary campaigns from turning into election campaigns and being abused as an illegal means to circumvent pre-election campaign prohibition regulations. Therefore, even if the implementation of the internal party primary is not confirmed or the person has not yet registered as a preliminary candidate, if a person intending to participate in the internal party primary conducts primary campaign activities beyond the scope permitted by the Public Official Election Act in preparation for the primary, it constitutes a violation of internal party primary campaign regulations."

This content was produced with the assistance of AI translation services.