공직선거법위반
The prosecutor's appeal is dismissed.
1. The summary of the grounds for appeal (e.g., suspension of sentence: fine of KRW 800,000 per day) of the lower judgment is too uneasible.
2. The sentencing on the basis of a statutory penalty is a discretionary judgment that takes place within a reasonable and appropriate scope, taking into account the factors constituting the conditions for sentencing prescribed in Article 51 of the Criminal Act, on the basis of the statutory penalty.
However, considering the unique area of sentencing of the first instance court that is respected under the principle of trial priority and the principle of directness taken by our Criminal Procedure Act and the nature of the ex post facto review of the appellate court, it is reasonable to reverse the unfair judgment of the first instance court only in cases where it is deemed that the sentencing of the first instance court exceeded the reasonable scope of discretion when comprehensively considering the conditions of sentencing specified in the process of the first instance sentencing review and the sentencing criteria, or where it is deemed unfair to maintain the first instance sentencing judgment in full view of the materials newly discovered in the course of the appellate court’s sentencing review, etc.
In the absence of such exceptional circumstances, it is desirable to respect the sentencing of the first instance court in the absence of such exceptional circumstances.
(See Supreme Court en banc Decision 2015Do3260 Decided July 23, 2015). The lower court, based on its stated reasoning for sentencing, sentenced the Defendant to the aforementioned punishment. However, the fact that the prosecutor sent to 10,00 copies of the legislative report stating false facts among the circumstances cited as the grounds for appeal and the fact that there are many parties to the publication of false facts was considerably large, was already considered as disadvantageous circumstances while determining the sentencing at the lower court.
In addition, the prosecutor asserts that the "H sports center improvement project" is a project whose budget is stated as KRW 1.5 billion and which is a very important project among the projects indicated in the legislative report, and thus, it cannot be deemed as a ground for sentencing favorable to the defendant, only one of the projects indicated in the legislative report.
(b).