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The judgment below
Of them, the part against Defendant C shall be reversed.
Defendant
C shall be punished by a fine of KRW 7,000,000.
Defendant .
Reasons
1. Summary of grounds for appeal;
A. The Prosecutor (the Defendant A)’s sentence (the term of imprisonment with prison labor for 10 months and 2 years of suspended execution) sentenced by the lower court to Defendant A is too unhued and unreasonable.
B. Defendants 1) misunderstanding of facts or misunderstanding of legal principles (Defendant C) cannot be a joint principal offender of the crime of violating the Public Official Election Act since there was no discussion on the election other than the provision of personal information to Defendant A at the request of Defendant A. In addition, since Defendant C’s act of providing personal information to Defendant A is based on Defendant A’s personal request, it cannot be deemed that there was a relationship with Defendant C’s duties, and it cannot be said that there was an act affecting the election. 2) The punishment of unfair sentencing (Defendant A: the above punishment, Defendant B: fine 2,00,000, Defendant C: imprisonment with prison labor for six months, and 2 years of suspended sentence) declared by the lower court against the Defendants is too unreasonable.
2. Determination
A. Determination on the assertion of mistake of facts or misapprehension of legal principles in relation to Defendant C’s “duty” includes not only the duty under the jurisdiction of the public official, but also the act closely related to the duty or the act of performing the duty that is actually involved in the custom or practice. However, whether specific act falls under the duties of the public official should be determined by taking into account the practical aspects of whether it is reasonably necessary in relation to the duty that the public official should perform together with the formal aspects that it was performed as part of the public official’s duty (see, e.g., Supreme Court Decision 2009Do2453, May 26, 201). In addition, the concept of “using the status of a public official” in Article 85(1) of the former Public Official Election Act (Amended by Act No. 12393, Feb. 13, 2014) is not a public official’s individual qualification but also a public official’s status.