(영문) 대구고법 1988. 11. 30. 선고 88노372 형사부판결 : 상고[국회의원선거법위반피고사건][하집1988(3·4),443]
Time when a crime of expression of intent to provide money, etc. under Article 152(1)1 of the Election of National Assembly Members Act is established
The crime of expressing intent to provide money, etc. is established when the intention reaches an elector who is the other party, and the arrival of the declaration of intention is not necessarily required to inform the other party of the fact of the arrival, even if the communication media (e.g., plastic bags) at least reaches the other party's residence, etc., and the other party's family members receive it, etc. are generally required to be placed in an objective situation in light of social norms.
Article 152(1) of the Election of National Assembly Members Act
Defendant 1 and one other
Defendants
Daegu District Court Decision 88Gohap65 decided Jun. 1, 200
1. The judgment below is reversed.
2. Defendant 1 shall be punished by imprisonment for a year;
3. As to Defendant 1, 65 days of detention prior to the pronouncement of the original judgment shall be included in the above sentence.
4.Provided, That with respect to Defendant 1, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive;
5. Of the facts charged against Defendant 1, the fact that on April 24, 1988, the National Assembly member of the National Assembly expressed an intention to provide money of KRW 89,100,000 in cash each to 4,455 persons, including Nonindicted 1, etc., each of which was 20,000,000, and Defendant 2 is acquitted.
1. The gist of Defendant 1’s first ground for appeal is that the above Defendant committed the act identical to that of paragraph (1) at the time of original adjudication. However, the above act is merely an attempted crime of offering money, etc. under Article 152(1)1 of the current National Assembly Election Act, which does not provide any penal provision under the same Act. The crime of expression of intent to offer money, etc. under Article 152(1)1 of the same Act, which the court below applied to the above act, is established only by providing money, etc. to the elector, and the crime of expression of intent to offer money, etc. at the time of over-the-counter election without providing money, etc., is established only when the elector actually intended to provide money, but it differs from the case of attempted money, and there is a case where the crime of expression of intent to offer money is established with respect to the real money provision to the domestic elector. However, in this case, the above act did not reach the elector, and it did not reach the end of the judgment of the court below and the court below found Defendant 2 and the defendant guilty of this error.
2. Therefore, Defendant 1’s first ground for appeal (in relation to Defendant 2, ex officio) is examined as to Defendant 1’s first ground for appeal, and the so-called prior purchase of money under Article 152(1)1 of the Election of National Assembly Members Act is comprehensively examined in comparison with other penal provisions under Article 152(1)1 of the same Act, which provides that a series of separate acts such as money shall be punished for independent crimes according to the development stage of each act of providing money, etc. for the purpose of getting elected or getting elected or preventing it from being elected, and the so-called crime of expression of intention, such as money, etc. among them, shall be provided in reality without offering money, etc., but even if the other party refuses to receive it, it shall be deemed that the above crime was established as a part of the crime of offering money, etc. against the person who provided it, even if it is found that the other party did not reach the objective concept of the crime of offering money, etc., and thus, the court below cannot accept the defense counsel’s assertion that the above provision of money, etc.
3. Therefore, since Defendant 1’s appeal Nos. 1 pointing this out has merit, the decision on the remaining grounds for appeal is omitted, and the decision of the court below, including the part concerning the expression of intent to provide the above money, etc. to the above Defendant and the remaining criminal facts with concurrent relation, which were sentenced to one sentence, is reversed in accordance with Article 364(6) of the Criminal Procedure Act. Further, Defendant 2 also omitted the decision on the grounds for appeal, and the decision of the court below is reversed ex officio and it is again decided as follows after the pleading pursuant to Article 364(2) and
Defendant 1 work for the Daegu branch office of the Korea Telecommunication Corporation, and was working as a person in charge of private organization election for Nonindicted 2, a candidate for the National Assembly member in the 13th National Assembly election as a member of the National Assembly at the time of the 13th National Assembly election, who was in the position of the head of the company’s trade union organization, and was not a person eligible to engage in an election campaign reported to the competent election commission and other election campaign, and even when Nonindicted 2 of the said candidate completed the candidate registration at the local constituency election commission on April 8, 198, the purpose of Defendant 1 is to have
1. On March 29, 200 of the same year, around 19:00, the election campaign is carried out by making 173 voters residing underground of Ansan-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-si, and the support of the above candidate is properly made, with food and drink equivalent to KRW 536,920,00, and the elector conducts an election campaign;
2. On April 2, 1999, around 19:00 of the same year, the head of Si/Gun/Gu has collected 164 electors' names and unclaimed winners, and has contacted all the foods equivalent to 766,700 won in the same way, not during the election campaign period, and has provided them with food to electors in the same way; and
3. On the 16th day of the same month, at the Dong-dong 200 Dong-dong 200 Dong-dong dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong 536,920 won of money, such as
4. On the 22th day of the same month, around 16:00, around 184 electors' names were gathered to offer approximately 184 voters' names and unclaimed boxes, and all of the same methods such as swine bublings were contacted with food equivalent to 565,400 won, and election campaign was conducted to the voters.
Each fact in the ruling,
1. Statement suitable to Defendant 1 in the protocol of the first trial of the court below;
1. Each statement suitable for the examination records of the suspect against Defendant 1 in the course of examination by a public prosecutor and the assistant judicial police officer;
1. Statement of Nonindicted 3 in preparation of a judicial police assistant, which is suitable for the statement;
1. In full view of the simplified tax invoices prepared by Nonindicted 4, there is evidence to prove the following.
Defendant 1-2’s each act in Articles 178(1)1 and 39 of the Election of National Assembly Members Act, and Articles 3 and 41(1)1 of the same Act, each act in Articles 178(1)1 and 41(1) of the same Act, and each of the above acts in Articles 37(1)2 and 50(3) of the same Act is concurrent crimes under the former part of Article 37 of the Criminal Act. Since each act in Articles 38(1)2 and 50(3) of the same Act is concurrent crimes under Article 4 of the same Act, each act in Articles 178(1)1 and 178(1)2 of the same Act shall be punished by imprisonment with prison labor for up to one year, and six-five days of the number of detention days prior to the sentence of the judgment of the court below against the above accused shall be included in the above sentence under Article 57 of the same Act, but the execution of the sentence shall be postponed for two years from the date of the above decision.
Of the facts charged in the instant case, the Defendants conspired to offer money to the voters of Ansan-si from April 21, 198 to April 10, 198, 309, and Defendant 1 sent money to Nonindicted 5, Nonindicted 6, and Nonindicted 3, and Nonindicted 4, Defendant 2, who sent money to the voters of Ansan-dong-dong-dong-dong-si-si-si-si-si-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type.
It is so decided as per Disposition for the above reasons.
Judge Lee Jae-soo (Presiding Judge)