Defendant shall be punished by a fine of KRW 5,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

The defendant shall be ordered to pay an amount equivalent to the above fine by provisional payment.

A. Defendant

1) misunderstanding of facts and misunderstanding of legal principles (the provision of money to Nonindicted 1 and Nonindicted 2 for election campaign)

The Defendant, as indicated in the facts charged, has been carrying KRW 300,00 to Nonindicted 1, the elector’s family members, and KRW 50,000,00 to Nonindicted 2, the elector’s family members. However, this was given consolation money to Nonindicted 1’s children and Nonindicted 2’s children (Nonindicted 3) suffering from sick, and there was no purpose of election campaign.

2) Unreasonable sentencing

The punishment of the court below (the fine of KRW 5,000,000) is too unreasonable.

(b) Prosecutors;

The sentence of the court below is too unhued and unfair.

2. Determination

A. Ex officio determination

Article 60 of the Act on Entrusted Elections including Public Organizations, Etc. (hereinafter “Entrusted Election Act”) provides that “The benefits received by a person who commits an offense under Article 58 or 59 shall be confiscated: Provided, That if it is impossible to confiscate all or part of such benefits, an amount equivalent thereto shall be collected.” Even according to the facts charged in this case, the Defendant issued KRW 300,00 to Nonindicted 1 and Nonindicted 2 and returned them, and thus, the Defendant cannot be deemed to have received the benefits of KRW 350,00 due to the instant crime.”

Nevertheless, the lower court erred by misapprehending the legal doctrine on Article 60 of the Act on Commissioned Elections, thereby adversely affecting the conclusion of the judgment, which additionally collects KRW 350,000 from the Defendant by applying Article 60 of the Act on Commissioned Elections. In this regard, the lower judgment was no longer maintained.

However, the defendant's assertion of misunderstanding of facts and misapprehension of legal principles is still subject to the judgment of this court despite the above reasons for ex officio reversal, and this is examined below.

B. As to the Defendant’s assertion of mistake and misapprehension of legal principles

1) The judgment of the court below

The Defendant asserted the same as the grounds for appeal in the lower judgment, and the lower court rejected the Defendant’s allegation that there was no reason to deliver 300,000 won consolation money to Nonindicted Party 1 and Nonindicted Party 13 (Nonindicted Party 1’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s wife’s husband’s husband’s husband’s husband’s wife’s husband’s husband’s wife’s husband’s husband’s wife’s husband’s husband’s wife’s husband’s husband’s husband’s husband’s wife’s husband’s husband’s husband’s wife’s husband’s husband’s wife’s husband’s husband’s wife’s husband’s husband’s husband’s wife’s husband’s 60,000 won. In addition, the Defendant did not have any relationship with Nonindicted Party 3 and Nonindicted Party 2’s wife’s husband’s wife’s husband’s wife’s 214.

2) Determination of the immediate deliberation

A) Relevant legal principles

"Election campaign" under Article 58 of the Commissioned Election Act refers to "an act to be, or not to be, a candidate or to be elected (Article 23 of the Commissioned Election Act)" (Article 23 of the Commissioned Election Act). This refers to all acts necessary and favorable for the success or defeat, which can be objectively recognized as an objective act for the purpose of promoting the success or defeat in an election. Thus, an act to prepare an election campaign or ordinary activities for an internal or procedural preparation for an election campaign in the future does not constitute an election campaign; however, in determining whether a certain act constitutes an election campaign, it shall be determined by comprehensively observing not only the name of the act, but also the form of the act, i.e., the time, place, method, etc. of the act in question, and by comprehensively observing the purpose of promoting the election or defeat of a specific candidate (see, e.g., Supreme Court Decision 2011Do3985, Aug. 18, 2011).

B) Determination

In full view of the following facts and circumstances acknowledged by each evidence duly adopted and examined at the lower court and the lower court, it can be sufficiently recognized that the Defendant provided each money to Nonindicted 1 and Nonindicted 2, the elector’s family member for election campaign purposes, not just courtesy consolation benefits. Accordingly, the Defendant’s assertion is without merit.

① The Defendant stated at the prosecution that “the Defendant had been thought of going out before September 2014” (see, e.g., evidence records 1312), and Nonindicted 9, the Defendant’s spouse, also determined that the Defendant would go to an election of the head of the association of ○○ Livestock Industry Cooperatives (hereinafter “○○○ Livestock Industry Cooperatives”) around December 2014 (see, e.g., Supreme Court Decision 238 pages, etc. of the trial record), and the Doldong Election Commission stated that Nonindicted 5, including the Defendant, were candidates for the head of the ○○○○ Savings Association, which was carried out on March 11, 2015, with the Defendant’s statement that Nonindicted 10 through 15, etc., the Defendant provided the Defendant to Nonindicted 2, including Nonindicted 15, a member of the association, or Nonindicted 14, a member of the association.

② Around 1999, the Defendant and Nonindicted Party 1 had worked together at ○○○ Savings Association. From around 2009 to 2 years, the Defendant’s wife 9 had a year-to-day visit with Nonindicted Party 1 and △△△△ University University: (a) however, the Defendant did not offer money for KRW 30,00 when Nonindicted Party 1 was married with Nonindicted Party 1 in 1999 when he was working together with Nonindicted Party 1; (b) on any pretext, the Defendant or Nonindicted Party 9 did not offer money for KRW 30,00 when he was married with Nonindicted Party 1; and (c) prior to the instant case, Nonindicted Party 3 and Nonindicted Party 1 did not have a friendly relationship with the other party’s family, knowing that it was open to the public (see, e.g., trial record). In addition, Nonindicted Party 3 and Nonindicted Party 9 had a ties, but there was no visit between Nonindicted Party 3’s mother and Nonindicted Party 23 and Defendant 256, etc.

③ On October 20, 2014, the Defendant, who was a preliminary candidate for the head of the cooperative, stated in the official text “Guidance on Restriction or Prohibition concerning the Election of the head of the cooperative head” that was sent on or around October 20, 2014, the case where it is impossible to give a specific case and the case where the act of giving cash to a member who was hospitalized in a hospital, who was hospitalized in the hospital, cannot be said to be the case where “the act of giving cash to the member who was hospitalized in the hospital” (see, e.g., evidence records 838 pages, 1313

④ Without the purpose of an election campaign around January 2015, when the Defendant did not leave for more than two months, it is difficult to readily understand that Nonindicted 1’s children, who are not the union members themselves, either paid consolation money of KRW 300,000 solely on the ground that Nonindicted 1’s children, who were not the union members themselves, (at least without asking Nonindicted 1, a state of being seriously affected by a disease), or, at the time of Nonindicted 3’s direct hospitalization, attempted to deliver consolation money to Nonindicted 3’s family members who did not have been present one time at the place of the house of Nonindicted 3.

⑤ At the time Nonindicted 1 or 2 received money from the Defendant, Nonindicted 1 or 2 stated in the court of the court below that “I want not to participate in the election of the president of the association, even though there was phone or text message from the Defendant, I want to do so.” Nonindicted 1’s above statement is consistent with the contents of telephone between the Defendant and Nonindicted 1 (see, e.g., evidence records 175, 1757 page), and Nonindicted 2, at the court of the trial court, stated that “I would have received money from the Defendant and the Defendant for the election, and I would have received money again from the Defendant for the purpose of returning the money under the pretext of the Defendant’s election campaign.” In light of the fact that “I would have received money from Nonindicted 2, 7, and I would have received money again from the Defendant for the purpose of returning money from the election of the Defendant.”

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act without examining the defendant and prosecutor's assertion of unfair sentencing, on the grounds of ex officio reversal, and it is again decided as follows.

Article 58 Subparag. 1, Article 30 (Provision of Money for Election Campaign to Non-Party 1), Article 58 Subparag. 1 (Provision of Money for Election Campaign to Non-Party 2) of the Act on Entrusted Elections by Public Organizations, Etc., Article 66 Subparag. 1, Article 24(2) of the former Act on Entrusted Elections by Public Organizations, Etc. (wholly amended by Act No. 13619, Dec. 24, 2015); selection of each fine

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

However, the election of the head of a regional livestock cooperative is narrow in the scope of constituencies or electors, and there is a relatively small number of voters, and there is a high possibility of excessive, mixed, or election campaign due to the provision of money and valuables, etc., and therefore, it is necessary to strictly punish the crime of providing money for the purpose of the instant election campaign. The crime of the instant advance election is also considered to be disadvantageous to the Defendant in light of the frequency, number of voters, the number of members of the ○○ money cooperative, the number of members of the ○○ money cooperative, the result of voting, etc.

In each of the above circumstances, the Defendant’s age, character and conduct, environment, motive and background of the instant crime, means and method of the instant crime, and all of the sentencing factors shown in the process of the trial and records, including the circumstances after the crime, shall be determined as ordered.

Judges Park Jeong-hee (Presiding Judge) and Lee Jin-jin

1) The Defendant alleged to the effect that, as at the time, Nonindicted 3’s situation was very good, it was difficult to make a medical examination because it was in the patient room, it would be between Nonindicted 3’s house. On the contrary, Nonindicted 7, who asked the Defendant to deliver consolation money, stated that “ Nonindicted 3 was aware of the fact that he was hospitalized by the Defendant, and that he was given consolation money directly to Nonindicted 3’s family by sending it to the hospital.”