(영문) 서울고등법원 2006. 10. 26. 선고 2006노1439 판결[공직선거법위반][미간행]
Defendant
Defendant
Kim Jong-tae
Incheon District Court Decision 2006Gohap298 Decided July 13, 2006
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 1,000,000.
When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for a period calculated by converting 50,000 won into one day.
In order to order the provisional payment of an amount equivalent to the above fine.
1. Summary of grounds for appeal;
In light of various sentencing conditions in the instant case, such as the motive leading up to the instant crime, the economic situation of the Defendant, and volunteer activities in the community, etc., the sentence of the lower court (a fine of KRW 4 million) is too unreasonable.
2. Ex officio determination
Before determining the grounds for appeal by the defendant, the judgment of the court below, ex officio, could no longer be maintained as there is an error of law by misunderstanding the legal principles as seen below. The prosecutor maintained the facts charged in this case as it was in the main charge and stated in the separate charge as the ancillary charge, as it applied for changes in the indictment to add Articles 257(1)1 and 115 of the Public Official Election Act, Articles 37 and 38 of the Criminal Act as the conjunctive applicable provisions, and this court permitted it, and thus, it should be judged again including the additional object to be tried.
3. Conclusion
Therefore, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without proceeding to decide on the grounds for appeal by the defendant on the ground of ex officio reversal, and the judgment below is again ruled as follows through pleading.
It is as shown in the attached Form.
Since the corresponding column of the judgment below is the same as the corresponding column of the judgment below, it shall be quoted by Article 369 of the Criminal Procedure Act.
1. Article relevant to the facts constituting an offense and the selection of punishment;
Articles 257 (1) 1 and 115 (Selection of Fine for Negligence)
1. Aggravation for concurrent crimes;
The former part of Article 37, Article 38(1)2, and Article 50 (Aggravation of Punishment on Non-Indicted 4 in Sales)
1. Detention in a workhouse;
Articles 70 and 69(2) of the Criminal Act
1. Order of provisional payment;
Article 334(1) of the Criminal Procedure Act
(3) The gist of the facts charged in this case is as follows: (1) it is difficult to find out the facts charged by the defendant that there is no other person involved in the election campaign for the 2nd election campaign or for the 2nd election campaign for the 3rd election campaign, and (2) it is hard to find out the fact that there is no other person involved in the election campaign for the 2nd election campaign or for the 3rd election campaign for the 4th election campaign for the 2nd election campaign, or that there is no other person involved in the election campaign for the 5th election campaign or for the 2nd election campaign for the 3rd election for the 4th election for the 2nd election for the 4th election for the 6th election campaign, or that there is no other person involved in the election campaign for the 2nd election for the 4th election for the 2nd election for the 4th election for the 2nd election for the 3rd election for the 4th election for the 2nd election for the 2nd election for the 2nd election for the 3rd election for the 2nd election campaign.
If so, the primary facts charged of this case constitute a crime or there is no proof of a crime. However, as long as the court found the defendant guilty of violating the Public Official Election Act, which is the ancillary facts charged of this case, it shall not be sentenced separately from the disposition
In this case, for non-indicted 2, etc. who performed telephone publicity activities on behalf of the candidate who was going through the intraparty competition, the daily allowances according to the period of activities are provided by the defendant instead of the candidate, the fact that the defendant was the first offender who did not have any previous criminal records, the money and valuables provided by the defendant are the money paid in return for the provision of labor, the publicity activities of this case are conducted for the representatives of political parties who are not general shareholders, the fact that the candidate who was publicized by the defendant was involved in the intraparty competition, the location and role of the defendant in the election campaign, age, character and conduct, character and behavior, intelligence and environment of the defendant, motive and means of the crime, result, etc., and the sentencing conditions as prescribed in Article 51 of the Criminal Act, which
Judges Lee Jae-hwan (Presiding Judge) Kim Jong-ho