[정보통신망이용촉진및정보보호등에관한법률위반·명예훼손·농업협동조합법위반][공2004.5.15.(202),855]
[1] Legislative intent of Article 18(3) of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts
[2] Whether Article 18(3) of the Act on the Election of Public Officials and the Prevention of Unlawful Election, which stipulates that an election criminal and another crime shall be tried and sentenced separately, may be applied to the trial procedure for an election criminal of an executive of an agricultural cooperative by analogy (negative)
[1] Article 18 (3) of the Act on the Election of Public Officials and the Prevention of Election Illegals provides that "a concurrent offender who commits an election crime and any other crime shall be tried and sentenced separately, notwithstanding the provisions of Article 38 of the Criminal Act." The purpose of this provision is to minimize that other crime, which is not an election criminal, affects the sentencing of an election criminal, the application of Article 38 of the Criminal Act shall be excluded and tried separately and sentenced separately.
[2] Article 18(3) of the Act on the Election of Public Officials and the Prevention of Unlawful Election provides that "If the elected person of an officer of an association or the National Federation commits a crime provided for in Article 172 and is sentenced to imprisonment or a fine exceeding one million won, such election shall become invalidated." Since Article 38(3) of the Criminal Act is an exception to Article 38 of the Criminal Act, which is the general provision on the treatment of concurrent crimes, and the Act on the Election of Public Officials and the Prevention of Unlawful Election, is excluded from the application of Article 38 of the Criminal Act, and intends to separate and separately decide on concurrent crimes of other crimes, it shall have a express provision recognizing the exception, such as Article 18(3) of the Act on the Election of Public Officials and the Prevention of Unlawful Election, and Article 173 of the Agricultural Cooperatives Act provides that "If the elected person of an officer of an agricultural cooperative or the National Federation commits a crime provided for in Article 172 and is sentenced to a fine not less than one million won, it may be deemed that other crimes, unlike Article 38 of the Criminal Act, it should be tried and resolved by legislation.
[1] Article 18 (3) of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [2] Article 18 (3) of the Act on the Election of Public Officials and the Prevention of Unlawful Election, Article 173 of the Agricultural Cooperatives
[1] Supreme Court Decision 99Do636 delivered on April 23, 1999 (Gong1999Sang, 1100) Supreme Court Decision 2003Do3090 Delivered on February 13, 2004 (Gong2004Sang, 508)
Defendant
Defendant
Daegu District Court Decision 2003No1 delivered on January 9, 2003
The appeal is dismissed.
1. Examining the adopted evidence of the judgment below and the judgment of the court of first instance as cited by the court below in light of the records, as follows: ① Defendant’s title “written petition” called “written petition on the bulletin board of each homepage as indicated in the judgment of the court below by using a computer, thereby impairing the honor of a friendship game by openly pointing out false facts through an information and communications network for the purpose of slandering people by inserting false information; ② In addition, as stated in the judgment of the court below concerning the above friendship games, Defendant prepared printed printed materials stating false facts as stated in the judgment regarding the above friendship games and sent them by mail to the office of members of the Korean Agricultural Cooperative Association members of the Korean Agricultural Cooperatives, thereby damaging the reputation of the friendship game by openly pointing out false facts, and at the same time publicly announcing false facts related to the election of the head of the association; contrary to what is alleged in the grounds of appeal, it cannot be said that there was an error of law by failing to exhaust all necessary deliberation by misapprehending the legal principles on the determination of falsity regarding
2. Article 18(3) of the Act on the Election of Public Officials and the Prevention of Unlawful Election provides that "a concurrent offender who commits an election crime and any other crime shall be tried and sentenced separately, notwithstanding the provisions of Article 38 of the Criminal Act," and its purport is that Article 38 of the Criminal Act shall be excluded and tried separately to minimize that other crime, not an election criminal, affects the sentencing of the election criminal, and a separate sentence shall be imposed (see Supreme Court Decision 99Do636, Apr. 23, 199). However, this provision is an exception to Article 38 of the Criminal Act, which is the general provision on the treatment of concurrent crimes, because Article 38 of the Criminal Act, which is not applicable, is an exception to other election crimes to which the Act on the Election of Public Officials and the Prevention of Unlawful Election, is excluded from the application of Article 38 of the Criminal Act, and in order to separately deliberate and decide on the concurrent crimes of other crimes, there shall be explicit provisions recognizing the exception, such as Article 18(3) of the Public Official Election and Prevention of Unlawful Election Act.
Article 173 of the Agricultural Cooperatives Act provides, "If the elected person for an officer election of a cooperative or the National Federation commits an offense provided for in Article 172 in the election concerned and is sentenced to imprisonment or a fine exceeding one million won, his election shall be invalidated." Thus, even in an election of an officer of an agricultural cooperative, it may be deemed necessary to minimize the fact that other crime than an election criminal affects the sentencing of an election criminal. However, for this purpose, unlike the provisions of Article 38 of the Criminal Act, it is necessary to separately examine and decide on whether to separately sentence another crime, other than an election criminal, and it shall be resolved by the legislation following the decision of the legislator. In other words, the applicable scope may not be applied by applying Article 18 (3) of the Act on the Election of Public Officials, Election of National Assembly Members, Local Council members and the head of a local government, which is limited to the election of an election of an officer of an agricultural cooperative.
Therefore, the judgment of the court below which did not separately deliberate on the crimes different from those of the violation of the Agricultural Cooperatives Act and did not sentence them separately shall not err in the misapprehension of legal principles as to the concurrent crimes of crimes other than election-related laws and regulations, as alleged in the ground of appeal.
3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Shin Hyun-chul (Presiding Justice)