[공공단체등위탁선거에관한법률위반][미간행]
Defendant
Defendant and Prosecutor
Gambi light (prosecutions) and misunderstandings (public trials)
Law Firm Gangnam-nam et al.
Changwon District Court Decision 2015Ra54 decided April 29, 2015
1. The judgment below is reversed.
2. The defendant shall be punished by imprisonment with prison labor for ten months;
3.Provided, That the execution of the above sentence shall be suspended for a period of two years from the date this judgment becomes final and conclusive;
4. To order the accused to provide community service for 320 hours.
5. The seized 50,00 won cash 26 copies (No. 1) and the list of members of each village (No. 2) shall be forfeited from the accused;
1. Summary of grounds for appeal;
A. Defendant
1) Legal principles
A) Part on the provision of money under the pretext of acceptance and payment against Nonindicted 2
An act of granting money to a person in the position of an election campaign worker or a sports team, etc. cannot be deemed as “providing money” under Article 58 subparag. 1 of the Act on Commissioned Election of Public Organizations, Etc. (hereinafter “Entrusted Election Act”). Of the money that the Defendant delivered to Nonindicted 2, KRW 100,000 in the name of the guard is not attributable to Nonindicted 2 for the election campaign purpose, but is merely a payment for services provided in the process of preparing for delivery of money to the union members. Thus, the Defendant’s delivery of KRW 100,00 to Nonindicted 2 does not constitute “providing” under the Commissioned Election Act.
B) Instructions to provide money to union members
(1) Similar to the “Direction” as stipulated in Article 230(3) of the Public Official Election Act, in order to fall under the “Direction” as stipulated in Article 58(4) of the Act on Elections, there must be relations between persons who follow the direction and those who follow the direction in order to fall under the “Direction” as stipulated in Article 58(4) of the Act on Elections. Since the Defendant was not in a position to issue instructions or orders to Nonindicted 2 at the time of the instant case, the Defendant’s act does not constitute “Direction” under the Act on Elections Elections.
(2) The Defendant, upon Nonindicted 2’s request, only delivered money to Nonindicted 2 to deliver KRW 1.2 million to its members, and did not specifically and directly instruct the provision of money to its members. Thus, the Defendant’s act merely in preparation for the provision of money cannot be deemed as an instruction to provide money.
2) Unreasonable sentencing
The punishment sentenced by the court below (limited to eight months of imprisonment, two years of suspension of execution, community service, confiscation) is too unreasonable.
(b) Prosecutors;
The sentence sentenced by the court below is too uneasible and unfair.
2. Determination
A. Ex officio determination
In the trial court, the prosecutor changed the facts charged of this case as stated in the revised facts of the crime, and applied for the amendment of the indictment to add "Article 58 subparagraph 4 and subparagraph 1 of the Act on Commissioned Elections such as Public Organizations, etc." to the applicable provisions of the Acts, and since the subject of the trial was changed by this court's permission, the judgment of the court below was no longer maintained.
However, despite the above reasons for ex officio destruction, the defendant's assertion of legal principles is still subject to the judgment of this court, and we will examine below.
B. Judgment on the Defendant’s misapprehension of legal principle
1) Part on the provision of money under the pretext of acceptance and payment against Nonindicted 2
A) The term “election campaign” under Article 58(1) of the Public Official Election Act means any active and planned act that is advantageous to the necessity for election or defeat in an election for public office under Article 2 of the same Act and that can be objectively recognized by the intention of promoting an election or defeat in the election. Specifically, in determining whether an act constitutes an election campaign, it shall be determined whether the act is an act accompanying the will of a specific candidate for the purpose of promoting an election or defeat in the election (see, e.g., Supreme Court Decision 201Do3985, Aug. 18, 201) by comprehensively observing not only the name of the act, but also the form of the act, place, method, etc. of the act, such as the time, place, etc. of the act, as well as the time, place, etc. of the act, and whether the act constitutes an election campaign (see, e.g., Supreme Court Decision 201Do3985, Mar. 31, 2011; hereinafter the same).
B) In light of the aforementioned legal principles, the following facts and circumstances can be acknowledged by comprehensively taking account of the evidence legitimately adopted and examined by the court below and the court below. ① The defendant, as a member of the livestock cooperative association around March 8, 2015, delivered KRW 100,000 per capita to 12 members, including non-indicted 2, and the non-indicted 2 delivered KRW 1,300,000 in cash at hand to the non-indicted 1,000 won. ② The defendant's delivery of goods, such as money, to the non-indicted 2, constitutes a contribution act. It is reasonable to view that the delivery of goods to the non-indicted 1,000 won to the non-indicted 2, as a mere delivery of money to the non-indicted 1,000 won to the non-indicted 2, and the delivery of goods, such as money, belongs to the non-indicted 2, and the delivery of goods to the non-indicted 1,000 won to the non-indicted 2, based on the dissenting opinion 201.
2) The part of the instructions to provide money to union members
A) Article 230(1) of the Public Official Election Act provides that any person who provides money to an elector for the purpose of an election campaign (Article 230(1) shall be punished by imprisonment with prison labor for not more than five years, or by a fine not exceeding 30 million won. Paragraph (2) of the same Article provides that any candidate, his/her family members, election campaign workers, etc. (hereinafter referred to as “election workers, etc.”) shall be punished by imprisonment with prison labor for not more than seven years or by a fine not exceeding 50 million won, and Paragraph (3) of the same Article provides that any person who instructs an elector to engage in any act stipulated in any of subparagraphs of paragraph (1) or (2) shall be punished by imprisonment with prison labor for not more than seven years or by a fine not exceeding 50 million won if he/she provides money to an elector for the purpose of an election campaign, and such provision provides money to another person for the same purpose as that of the Public Official Election Act, regardless of whether the other party to the election campaign gives money to the elector, etc.
B) We examine the following facts and circumstances that can be recognized by comprehensively taking account of the evidence legitimately adopted and examined by the lower court and the first instance court. ① The Defendant visited Nonindicted 2’s stables at the time of the instant case with the list of members of Nonindicted 1 and gave 17 members residing in △△△△△ Group, and delivered 130,000 won in cash to the rest of the Defendant except 5 members residing in △△△△△ Group. ② Examining the contents of conversation between the Defendant and 2 at the time, the Defendant appears to have provided Nonindicted 2 with money to the effect that “I will think you will work?” “I will not see that I will not see that I would like to have provided the Defendant’s money to the Nonindicted 2 and that I would not know that I would like to know that I would like to know that I would like to know that I would like to know that I would not know that I would like to know that I would not know that I would like to know that I would not have any other reasons.”
3. Conclusion
Therefore, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act, and the judgment of the court below is reversed, and it is again decided as follows, without examining the above grounds for ex officio reversal.
The gist of the facts constituting an offense and the evidence acknowledged by this court is to change the facts constituting an offense as stated below to the altered facts constituting an offense, and to change the “written statement by the police against Nonindicted 2” in the summary of the evidence to the “written statement by the court below at the trial of Nonindicted 2” as stated in each corresponding column of the judgment below, and thus, it is acceptable in accordance with Article 369 of the Criminal Procedure Act.
"Revised Criminal facts"
The Defendant was elected at the first election of the head of a national Dong-si Cooperative on March 11, 2015, following the election of Nonindicted Party 1 Livestock Cooperative (hereinafter “Nonindicted Party 1 Livestock Cooperative”).
No one shall provide money to an elector for an election campaign, or give instructions to the elector regarding provision of money.
Nevertheless, at around 10:47 on March 8, 2015, the Defendant visited Nonindicted 2’s stable, the elector, the Plaintiff, as a member of the Korea Development Bank, at around 10:47, to visit Nonindicted 2’s stable, the elector, and to decide on how to conduct an election? Before using the money, the Defendant would make a lot of money. I wish to use the money.” “I wish to use the money. I wish to do so,” and “ twelve members, including Nonindicted 2, Nonindicted 2, 4, Nonindicted 5, Nonindicted 6, Nonindicted 7, Nonindicted 8, Nonindicted 9, Nonindicted 10, Nonindicted 11, Nonindicted 12, and Nonindicted 13, Nonindicted 2, and Nonindicted 130,000 won for each of the members including Nonindicted 2 (Nonindicted 3, Nonindicted 2, Nonindicted 4, Nonindicted 5, Nonindicted 6, Nonindicted 7, Nonindicted 8, Nonindicted 8, Nonindicted 10, and Nonindicted 13).”
Accordingly, the Defendant provided money of KRW 200,000 to the elector Nonindicted 2 for the purpose of election campaign, and ordered Nonindicted 2 to provide money of KRW 1.1 million to the elector 11.
1. Article applicable to criminal facts;
Article 58 subparag. 1 of the Act on Commissioned Elections by Public Organizations, Etc. (A point of providing money for the purpose of an election campaign), Article 58 subparag. 4 and subparagraph 1 of Article 58 (A point of Order to Provide money for Election Campaign
1. Commercial competition;
Articles 40 and 50 of the Criminal Act
1. Selection of punishment;
Imprisonment Selection
1. Suspension of execution;
Article 62(1) of the Criminal Act
1. Social service order;
Article 62-2 of the Criminal Act
1. Confiscation;
Article 48 (1) 1 of the Criminal Act
The crime of this case is unfair because the defendant provided money to non-indicted 2 for the purpose of election campaign in the course of election campaign at the head of the association and ordered other members to provide money for the purpose of election campaign. The crime of this case is not very good. The defendant, after the investigation of this case was initiated, is not suitable to the circumstances after the crime, such as removing the list of union members for the purpose of destroying evidence after the investigation of this case, and delivered 1.3 million won in cash supported by objective evidence, but he did not directly instruct other union members, or delivered money by Non-indicted 2, and there is a question as to whether the defendant is seriously against each of the crimes of this case. In addition, the election at the head of the regional association of the association of the association of the regional association is narrow in the scope of constituency or elector, and there is a relatively small number of voters, and the possibility that the voting is likely to have an excessive election due to the provision of money, goods, etc., or there is a considerable influence on election, and the act of a public organization such as election is highly likely to be punished.
On the other hand, the facts of each of the crimes of this case are generally recognized by the Defendant as a substitute, there is no criminal records that exceed the same criminal record or fine, the Defendant has served for a long time in Nonindicted 1 Livestock Cooperatives and has lived in good faith, the amount of money provided or directed by the Defendant is not significant, and each of the crimes of this case is difficult to be deemed to have directly affected the result of the election, and a large number of Nonindicted 1 Livestock Cooperatives members want to take the preference against the Defendant.
It is so decided as per Disposition by taking into account the above circumstances and the Defendant’s age, character, conduct and environment, background of the crime, means and consequence of the crime, the circumstances after the crime, and all the conditions of sentencing as shown in the instant records and arguments.
Judges Jeong Jae-soo (Presiding Judge)
1) The majority opinion states that “The receipt of cash between a candidate’s spouse and an election campaign worker does not simply keep a candidate’s spouse for the purpose of delivering it to a specific elector, or allow him to use it for an illegal election campaign such as securing support marks by purchasing an unspecified number of voters, and thus constitutes an “contribution” under Article 112(1) of the Public Official Election Act, and it cannot be deemed that it is merely a preparation or preliminary act for the execution of a contribution act.”