[2] Whether the act of distributing a name to the candidate during the period of prohibition of distribution is in a mutually concurrent relationship between the crime of distributing documents, etc. by unlawful means and the crime of prior election campaign using printed materials (negative)

[2] Article 254 (2) of the Act on the Election of Public Officials and the Prevention of Election Unlawful Act provides that "a person who commits an act falling under any of the following subparagraphs prior to the election period shall be punished by imprisonment for not more than two years or by a fine not exceeding four million won, except as otherwise provided for in this Act." In this context, "where there are other provisions in this Act" means cases where there are separate provisions concerning the period of prohibition of advance election campaign and where there are penal provisions in violation thereof, it is reasonable to interpret that the act of distributing name cards by a candidate during the period of prohibition of distribution of name cards, etc. Thus, in cases where the act of distributing name cards by a candidate violates Article 93 of the same Act and constitutes a crime of distributing documents, etc. by illegal means under Article 255 (2) 5 of the same Act, the crime of advance election campaign using printed materials under Article 254 (2)

Defendant shall be punished by a fine of KRW 800,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period calculated by converting 20,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

A. misunderstanding of facts or misunderstanding of legal principles

First, the defendant, who is the head of a church, contributed 20,000 won to another church as stated in the decision of the court below, is an ordinary act not considered as a contribution act under Article 112 (2) of the Election of Public Officials and Prevention of Unlawful Election Act (hereinafter referred to as the "Election Act"), but the court below erred by law or misunderstanding the legal principles that the court below applied for a contribution act under Article 113 of the Election Act, and second, the facts of Article 93 (2) of the decision of the court below were contacted with the voters in order to recruit volunteers and issued a name without making a specific request to affix his/her ticket. This is merely a formal act, and thus, it does not constitute a crime of distributing documents, etc. under Article 93 (1) of the Election of Public Officials and Prevention of Unlawful Election Act or a crime of advance election under Article 254 (2) 1 of the Election Act, but the court below erred by misapprehending the legal principles or misunderstanding the legal principles, which affected the conclusion of the judgment of the court below.

B. Unreasonable sentencing

Even if the defendant's act is guilty, in light of the fact that the violation of the election law is weak, the sentence of a fine of KRW 800,000 against the defendant is too heavy.

2. Determination:

A. Judgment on the grounds of appeal for mistake of facts or misapprehension of legal principles

First, Article 112 (2) 6 of the Election Act provides that an act prescribed by the National Election Commission Regulations as a courtesy or an act on duty shall not be deemed a contribution act, and Article 50 (3) 2 (h) of the above Rule provides that "an act of a religious person makes a contribution according to ordinary practices to a church, etc. in which he attends." Thus, the defendant has contributed to another church which is not a church in which he attends the usual meeting and that is not a church in which he belongs, but a church in which he belongs and is also a sexual intercourse, which is not a church in which he attends the usual meeting, and this does not constitute a formal act in accordance with the Election Act, and there is no error of misunderstanding of facts or misunderstanding of legal principles in the court below's decision that the above contribution act by the defendant was made to an organization in the constituency subject to the restriction period

Second, as consistently recognized by the defendant, if the defendant returned at least six times in the constituency near the election campaign period and distributed to 55 persons the name of the party and his/her name, photograph, career, etc., he/she did not make a specific request to affix his/her mark, even though he/she did not do so, it goes beyond formal acts and even if he/she had the purpose of recruiting volunteers, it constitutes a crime of distributing documents, etc. by unlawful means under Article 93 (1) of the Election Act, as it goes beyond the purpose of recruiting volunteers, and it cannot be found that there was any error of mistake of facts or misapprehension of legal principles in the original judgment, and therefore there is no reason to discuss the appeal of mistake of facts or misapprehension of legal principles.

B. Ex officio determination

Before determining the Defendant’s grounds for appeal on the grounds of unfair sentencing, the court below held that the Defendant distributed the name of the court below’s decision during the period of prohibition of distribution of name cards, etc. not stipulated by the Election Act constitutes a crime of distributing documents, etc. by unlawful means under Articles 255(2)5 and 93(1) of the Election Act and an election campaign by using printed materials under Article 254(2)1 of the Election Act, which constitutes a crime of prior election by using printed materials under Article 254(2)1 of the Election Act, and that the above two crimes are mutually concurrent crimes

However, Article 254(2) of the Election Act provides that "any person who commits an act falling under any of the following subparagraphs before the election campaign period shall be punished by imprisonment with prison labor for not more than two years or by a fine not exceeding four million won, except as otherwise provided for in this Act," and the term "cases where other provisions exist in this Act" means a separate provision concerning the period of prohibition of prior election campaign and where a separate penal provision is imposed where a violation is made (for example, Article 93 of the Election Act is applicable to cases falling under Article 255(2)5 in violation of Article 255(2)5 in violation of Article 93 of the Election Act, and Article 254(2) of the Election Act is interpreted to refer to cases falling under Article 257(1)1 in violation of Article 113 in violation of Article 93 of the Election Act, and therefore, Article 255(2) of the Election Act does not apply separately in cases where Article 255(2)5 of the Election Act

Therefore, among the facts charged in this case, the prior election campaign using printed materials under Article 254 (2) 1 of the Election Act does not constitute a crime separate from the crime of distributing documents, etc. by unlawful means under Articles 255 (2) 5 and 93 (1) of the Election Act, and thus, the court below found the defendant guilty. However, the court below erred in the application of the law and affected the conclusion of the judgment.

3. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Articles 364(2) and 364(6) of the Criminal Procedure Act without a further determination on the grounds for appeal of unfair sentencing, and the following is again decided after pleading.

Criminal facts

The defendant was a candidate for the election of the head of Jung-gu Incheon, Incheon, which was implemented on June 27, 1995, and is the head of the Korean War Veterans Association (the name of the church omitted) church;

1. On May 14, 1995, around 11:00, an act of contribution is made by attending the week of the Korean Emotional Association of the Korean Emotional Association of North Korea, which is located in 7 of Jung-gu Incheon, Jung-gu, Incheon, Jung-gu, and inserting 20,000 won in an envelope with the name of the defendant written therein and making an audit contribution;

2. From around 11:30 on April 30, 1995 to 12:30 on April 30, 1995, which was 180 days before the election day of the head of the Jung-gu Incheon Jung-gu, which was implemented on June 27, 1995, the head of the Gu, from around 11:30 on April 30, 1995 to from around 12:30, Jung-gu, Incheon Jung-gu, Jung-gu, Incheon, distributed one name of the above during the period of prohibition of distribution, such as a name of the party and its name, photograph, career, name of the person in question (a 9cm, 5cm in length, 5.5cm in length), and a name of the person in question, who is not in accordance with the Public Official Election and Prevention of Unlawful Election Act, at least six times until June 5, 1995.

Summary of Evidence

Since the corresponding column of the judgment of the court below is the same as that of the corresponding column of the court below, it is cited in accordance with Article 369

Application of Statutes

1. Relevant legal provisions;

Articles 257 (1) 1, 113 (paragraph (1)), 255 (2) 5, and 93 (paragraph (2) at the time of sale) of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts

2. Selection of punishment: Selection of a fine for negligence;

3. Aggravation of concurrent crimes: The punishment provided for in the former part of Article 37, Articles 38 (1) 2 and 50 of the Criminal Act. Article 50 (Aggravation of Concurrent Crimes concerning Crimes prescribed in paragraph (1) of the said Article which are heavier Crimes)

4. Determination of amount of fine: Article 51 of the Criminal Act (In cases of a first offense, the amount of contribution is the small amount, and there are some grounds for considering the circumstances of the crime, but on the other hand, the illegal distribution of name cards has been made six times).

5. Attraction of a workhouse: Articles 70 and 69 (2) of the Criminal Act.

6. A provisional payment order: Article 334 (1) of the Criminal Procedure Act.

Parts of innocence

Of the facts charged in the instant case, the Defendant distributed 55 copies of the name cards during the period from April 30, 1995 to June 5, 195, which was prohibited from distributing the name cards, etc., which are not in accordance with the Election Act, constitutes a crime not committed as seen in the preceding ex officio judgment, but as long as the Defendant found him guilty of an advance election campaign using printed materials prosecuted for a commercial concurrent crime, the sentence of innocence shall not be imposed separately.

It is so decided as per Disposition for more than one reason (attached Form omitted)

Judges Lee Jae-sung (Presiding Judge)