Defendant

Defendant

Class ¥§§§ 6

Attorneys Yoon Man-man et al.

Daejeon District Court Decision 2008Gohap420 Decided October 17, 2008

The judgment of the first instance shall be reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

Sentencing Points

2. Ex officio determination

A. The judgment of the first instance court is judged ex officio prior to the defendant's assertion of unfair sentencing, since the court below erred by mistake of facts or misunderstanding of legal principles affecting the conclusion of the judgment, as examined next.

B. Summary of the facts charged

On April 9, 2008, the Defendant was a volunteer of Nonindicted Party 1 (the Nonindicted Party in the judgment of the Supreme Court), who was going to a preliminary candidate for ○○○○○○○○○○○○ Party in the election of the 18th National Assembly members of the National Assembly, and was in charge of publicity affairs of the said candidate. On February 11, 2008, Nonindicted Party 1’s election campaign office located in ○○○ 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-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-gu (www for raising Nonindicted Party 1’s awareness map compared to other candidates, and joined Nonindicted Party 1’s Internet-based-dong-gu-dong-dong-dong-dong-dong-dong-gu-dong-dong-dong-dong-dong-dong-dong-do-dong-.

C. Determination

(1) The term "election campaign" under the Public Official Election Act means an active or planned act that is objectively recognized by the intention that the act is intended to promote the success or defeat in the election of a specific candidate among all acts necessary for or favorable to obtain a vote for the purpose of winning the election of a specific candidate, or all acts necessary for or against the purpose of winning the election of a specific candidate, and in addition, whether the act such as the distribution or posting of documents, drawings, or pictures under Article 93(1) of the Public Official Election Act is merely ordinary, exceptional, or social acts or whether it is an evasion of the law with the purpose of influencing the election should be determined comprehensively by comprehensively taking into account the time, content, method, object, and form of such act (see Supreme Court Decisions 2005Do301, Oct. 14, 2005; 2005Do3493, Apr. 14, 2006, etc.).

(2) Comprehensively considering the evidence submitted by the prosecutor, it is recognized that the defendant sent text messages, the same as the facts charged, to the electorate 9,308. However, the following circumstances revealed by the evidence, namely, ① the content of the text messages sent by the defendant is merely merely informing Nonindicted 1 of the opening ceremony of the election office of the preliminary candidate, and it does not include any matters that may affect the election, such as requesting support from Nonindicted 1 of the preliminary candidate. ② The delivery of the text messages is not limited to many and unspecified persons, ② most of the candidates are general party members and responsible party members at ○○○○○○, ○○ Elementary School, 54 times at ○○ High School, 54 times at ○○ High School, ○○○ High School, and 77 times at ○○○○ University, a preliminary candidate or a member of the political party, who sent text messages to the head of the election commission, by simply considering the circumstances that the defendant sent such messages to the preliminary candidate or the head of the political party, and thus, did not clearly inform the Defendant of the instant text messages.

3. Conclusion

Therefore, without the need to determine the defendant's argument during the sentencing, the judgment of the first instance court is reversed in accordance with Article 364 (2) and (6) of the Criminal Procedure Act, and the following is again decided after the pleading.

The summary of the facts charged of this case is as stated in Paragraph 2-B of Article 2, and as seen in the judgment of the grounds for appeal, it constitutes a case where there is no proof of a crime, and thus, it is so decided as per Disposition with the decision of not guilty of the defendant under the latter part of Article

Judges Kim Sang-ok (Presiding Judge)