(영문) 부산고등법원 2018.1.10.선고 2017노277 판결

A) As stated in the facts charged, the Defendant did not make a false entry in the printing cost, the banner expense-related documentary evidence, and the accounting report in collusion with B, such as concluding a side agreement with C or D, and obtained the difference amount equivalent to the actual election expenses.

B) Article 49(1) of the Political Funds Act punishs a case where a false statement on the accounting report for election expenses is made without justifiable grounds. The printing contract between B and C constitutes a provisional contract with a priority of KRW 121,00,000 (including additional tax) on the premise that the actual printing cost is settled ex post, and it is inevitable to submit a report on the receipt and disbursement of political funds in accordance with the provisional contract because the said report has not yet been made at the time of submission of the report on the receipt and disbursement of political funds stated in the facts charged, and thus, it cannot be said that it constitutes a false statement on the accounting report, or a case where there is no justifiable reason.

C) The election commission, regardless of the amount of the candidate’s application for compensating for the election expenses, cannot be deemed as having a causal relationship between false entries such as evidentiary documents related to printing expenses and the act of paying the compensation for the election expenses by the election commission. Moreover, the printing expenses actually paid as a result of post settlement between B and C exceed KRW 83,00,000 (or the actual printing expenses of KRW 84,30,000) and the compensation for the election expenses, so there is no money acquired through fraud related to printing expenses.

2) Unreasonable sentencing

The sentence of the lower court (two years of imprisonment for not more than August and suspension of execution, fine not exceeding 5,00,000) is too unreasonable.

(b) A prosecutor;

Article 49(1) of the Local Education Autonomy Act and Article 18(3) of the Public Official Election Act provide that concurrent crimes shall be imposed on crimes provided for in Article 49 of the Political Funds Act and other offences. Nevertheless, the lower court erred by misapprehending the Local Education Autonomy Act and Article 18(3) of the Public Official Election Act, even if recognizing the entire charges of violation of the Local Education Autonomy Act and fraud, but did not separately

2. Determination:

A. Ex officio determination

1) misunderstanding of legal principles as to the number of crimes

Article 50 of the Local Education Autonomy Act, Article 49(1) of the Political Funds Act, which violates the Local Education Autonomy Act due to false accounting reports, is established by making false statements on election expenses without justifiable grounds. Even if a person in charge of accounting enters false facts concerning various items of election expenses in a single accounting report, a single crime is not established depending on the items of election expenses, but a single crime is established as a whole. Furthermore, if a defendant submits a single request for the preservation of election expenses in which multiple items of election expenses are falsely entered, and receives excessive preservation of election expenses from the Republic of Korea, then such fraud shall be assessed as a single crime, and it does not constitute a separate crime according to each item of election expenses.

Nevertheless, the lower court determined a punishment within the scope of the term of punishment aggravated for concurrent crimes pursuant to the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act on the premise that each separate accounting report by the Defendant, based on the false entry or false entry, constitutes a crime of violation of the Local Education Autonomy Act, and each separate crime of fraud, depending on the election expenses item entered by the Defendant. In so doing, the lower court erred by misapprehending the legal doctrine on the violation of the Local Education Autonomy Act due to false entry or the number of crimes of fraud, thereby causing difference in the scope of punishment, thereby adversely affecting the conclusion of the judgment (see, e.g., Supreme Court Decisions 2003Do6288, Dec. 26, 2003; 2008Do5794, Sept. 11, 2008).

(ii) Amendments to Bill of Indictment

In the trial of the party, the prosecutor applied for the amendment of the indictment to the contents of the facts charged (attached Form) as stated in the revised facts charged before the amendment (the main purpose thereof is to prosecute the facts charged by false entries in each accounting report that the court below judged as concurrent crimes under the former part of Article 37 of the Criminal Act, and to withdraw the charges related to the printing cost-related fraud that the court prior to the remand had judged as not guilty of the reason, and to withdraw the charges related to the printing cost-related fraud that the court prior to the remand of the case was found not guilty of the reason).

3) Although the lower judgment cannot be maintained as it is due to such reasons for ex officio destruction, the Defendant’s assertion of misunderstanding of facts or misapprehension of legal principles is still subject to the lower judgment, and this is examined below.

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

1) The portion rejected by the court of final appeal on the ground that the allegations in the grounds of final appeal are groundless shall have become final and conclusive simultaneously with the pronouncement of the judgment, and the defendant shall not be contested against this part, and the court that has been remanded may not make a decision contrary thereto (see, e.g., Supreme Court Decisions 2004Do8651, Mar. 24, 2005; 2005Do1247, Oct. 28, 2005).

2) The Defendant filed an appeal against the judgment of the trial court prior to remand (excluding the part on acquittal in the grounds of appeal) by asserting the same purport as the principal of the grounds of appeal in this part. However, the judgment of the case remanded was rejected by deeming that the allegation was groundless, and the judgment of the case remanded did not change the relationship between evidence, which forms the basis of the judgment of the case remanded at the trial, and thus, the judgment is inconsistent with the judgment of the case remanded at the trial. The Defendant’s allegation in the grounds of appeal in this part is without merit.

3. Conclusion

The judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act, and the remaining appeals by the defendant and the prosecutor are reversed, and the judgment below is reversed, and it is again decided as follows.

[The reasons for multi-use agreement]

Criminal facts

[Attachment] The revised facts charged are as stated in the [Attachment].]

Summary of Evidence

Since the judgment of the court below is the same as the corresponding part of the judgment, it shall be quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 50 of the Local Education Autonomy Act, Article 49(2)6 of the Political Funds Act, and Article 30 of the Criminal Act (Appointment of Fines)

○ Violation of the Local Education Autonomy Act due to false accounting reports: Article 50 of the Local Education Autonomy Act; Article 49(1) of the Political Funds Act; Article 30 of the Criminal Act (Appointment of Fines)

○ Fraud: Articles 347(1) and 30 (Selection of Fine) of the Criminal Act

1. Separate sentence for concurrent crimes;

Article 49(1) of the Local Education Autonomy Act, Article 18(3) and Article 18(1)3 of the Public Official Election Act (each Local Education Autonomy Act and punishment for fraud shall be imposed separately)

1. Aggravation for concurrent crimes;

Articles 37(former part), 38(1)2, and 50 of the Criminal Act (in relation to each violation of the Local Education Autonomy Act, punishment shall be aggravated within the scope of the sum of the maximum punishment for each crime as prescribed by the Local Education Autonomy Act due to false or false accounting reports with heavier punishment)

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

Reasons for sentencing

For a long time, there are no particular criminal records, and most of the acquired money seems to have been recovered to the National Treasury, and some favorable circumstances for the defendant, such as the fact that a letter of resignation from office of education seems to have been submitted (the statement of defense counsel on January 3, 2018).

However, the Defendant, as a candidate for the Superintendent of the Ulsan Metropolitan City Office of Education, who requires high level of integrity, made a false representation in the evidentiary documents and accounting report for the preservation of election expenses in collusion with a printing business operator, banner business operator, etc., and received excessive preservation of election expenses by using them. Such crime, in principle, is strictly regulated and punished inasmuch as the State, in order to ensure the fairness of election by bearing election expenses, and to seriously damage the purpose of the public election system to guarantee the election of a able candidate who is not capable of being self-sufficient, and to inflict losses on the national treasury formed with national taxes, by benefiting personal benefits. In light of the course, method and contents of the crime, and the amount of money obtained by deception, etc., the crime and the crime are not good. Nevertheless, the Defendant is strongly imprisoned by denying participation in the crime up to the trial. As to the Defendant, the punishment corresponding to such crime is inevitable.

In light of these circumstances and comprehensive consideration of all the sentencing conditions under Article 51 of the Criminal Act as shown in the arguments of the court below and the political party, the sentence against the defendant shall be determined as ordered.

Judges

J. decoration (Presiding Judge)

Quascis

gender; and

Site of separate sheet

[Attachment]

Indictment Prior to Amendment

The defendant is a candidate for the election of the superintendent of the office of education in Ulsan Metropolitan City, Ulsan Metropolitan City, which was implemented on June 2, 2010, and B is a person who was in the fourth degree of relationship with the defendant and was in the office of accounting in the election office of the defendant in relation

1. Violation of the Local Education Autonomy Act and fraud related to printing expenses;

On June 2, 2010, the Defendant and B issued a contract and tax invoice with the printing costs related to the election of the Ulsan Metropolitan City Superintendent of the Office of Education at Ulsan Metropolitan City, which was implemented on June 2, 2010, to the printing company, and the said company paid only the printing costs under the actual contract. The election commission at Ulsan Metropolitan City, the election commission at Ulsan Metropolitan City, intended to submit evidentiary documents, such as false tax invoices, estimates, contracts, etc. stating the amount so unftened as above, to receive the preservation of election expenses in accordance with

(a) Violation of the Local Education Autonomy Act concerning false entry into evidence with the accused and B;

In the case of receiving and paying election expenses, receipts or other evidential documents shall not be falsely entered, counterfeited or altered.

Nevertheless, the Defendant and B requested the printing of official gazette, pledge collection, etc. by finding the “X” operated by the Defendant and B around May 2010 * * * The Defendant set the contract price for the actual printing cost as KRW 70,000,000, and the document related to the tax contract, such as the tax contract, is written in KRW 110,000,000. The remaining money is returned to B, and the consent was obtained from the above C.

According to the above agreement, the defendant and B were supplied with printed matters from the above C around May 1, 2010, while Eul received from the above C'X office the tax invoice stating "10,000,000, tax amount of 11,000,000, 121,00,000,0000 won," and "one hundred and fifty-one,00,000,000,000,000,000,000,000,000,000 on May 3, 2010, each of the above 10,000,000,000,000 won, 4,00,000,000 won, 40,50,500,0000 won, 50,005,000 won, 105,005,05,000 won.

Accordingly, the Defendant conspired with B, even though the printing cost was KRW 70,000,000, the Defendant entered false statements in the estimates, contracts, demands, and tax accounts, which are documentary evidence related to election expenses, as it was 121,000,000.

(b) Violation of the Local Education Autonomy Act concerning false entry of defendants in accounting reports;

Where the accountant in charge makes an accounting report on election expenses to the competent election commission, he/she shall not make a false entry, forge, alter or omit it without justifiable grounds.

Nevertheless, the Defendant, in collusion with the accountant in charge B, entered the amount spent as Defendant’s printing expenses in relation to the election of Ulsan District Office of Education on June 2, 2010 in KRW 121,00,000, not in KRW 70,000 as stated in the above 1. Around June 28, 2010, the Defendant submitted an accounting report stating “the report on revenues and expenditures of the Defendant’s election related to the election of the candidate who is the superintendent of the Office of Education at the Ulsan Metropolitan City Election Commission” as follows: (a) on May 18, 2010, KRW 1.5,000; (b) on KRW 2.5,00,000; (c) on KRW 1.5,000,000; (d) on KRW 1,50,000,000; (d) on KRW 1,50,000,000,000; (d) on KRW 25,01,05,01,05,00.

As a result, the Defendant conspired with B to prepare and submit an accounting report as if the amount of KRW 121,00,000 is the printing cost, and KRW 51,00,000 is the credit payment, and entered false matters in the accounting report as to the revenues and expenditures of election expenses, notwithstanding the fact that the actual printing cost is KRW 70,000,000 without justifiable grounds.

C. Fraud between the Defendant and B

The Defendant and B, as described in the above 1. A, were able to receive election expenses preservation using documentary evidence stating the amount of unfluened printing, as described in the above 1.1. Around June 14, 2010, Ulsan-gu in Ulsan-gu also received 82,720,424 won from the public official in charge of the Busan-gu Election Commission Committee for Election of Ulsan-gu, Seoul-do, under his name, for the purpose of compensating for the expenses incurred in printing the amount of KRW 70,000,00, which is stated as if the actual printing cost was 121,00,000, and attached documentary evidence, such as a estimate, tax invoice, contract, etc., and the statement of revenue and expenditure of political funds, and the Defendant received the excessive amount of KRW 12,720,424,424 from the public official in charge of the election commission for the purpose of compensating for the expenses incurred in printing the bank account under his name.

Accordingly, the Defendant, in collusion with B, deceiving public officials of the election commission of Ulsan Metropolitan City, thereby deceiving the victim of KRW 12,720,424.

2. Violation of the Local Education Autonomy Act concerning the expenses for banner, and fraud;

The Defendant and B issued a contract and a tax invoice, etc. with respect to the expenses for bannering in relation to the election of the superintendent of education of Ulsan Metropolitan City, which was implemented on June 2, 2010, from the banner company, to the amount higher than the actual contract price. The said company received a refund of the excess appropriated difference after paying the amount of the said tax invoice issued. The election commission of Ulsan Metropolitan City, the election commission of Ulsan Metropolitan City, by submitting documentary evidence, such as a false tax invoice, estimate, contract, etc. in which the amount to be uneased, was entered, to receive the preservation of the election expenses in the

(a) Violation of the Local Education Autonomy Act concerning false statements by defendants;

When receiving and paying election expenses, no false entry of receipts or other documentary evidence shall be made or altered.

On April 2010, the Defendant conspired with B, a person in charge of accounting, to prepare a estimate for banner costs, and entered into a contract for the production and installation of a banner with D and an election campaign office, etc., with a view to KRW 8,000 per square meter, and entered into a contract for the production and installation of a banner with D and an election campaign office, etc., with a view to KRW 60,000 per square meter. From April 12, 2010 to May 25, 2010, the Defendant entered the banner production unit price of KRW 60,000 per square meter, KRW 60,000 per 20,000 per square meter, KRW 70,000 per 7,000 per 20,000 per 20,000 per 7,000,000 per 7,000,000 per 27,000,000 per square meter.

Accordingly, the Defendant, in collusion with B, was merely about KRW 22,345,983 (= KRW 17,737,192 + KRW 4,608,791, such as the cost of installing the banner + KRW 4,608,791). However, the Defendant 45,656,600 (= + KRW 41,047,809 + KRW 4,608,791, such as the cost of banner + the cost of installing the banner 41,608,791).

(b) Violation of the Local Education Autonomy Act with regard to false accounting reports by defendants;

Nevertheless, the Defendant conspired with B, a person in charge of accounting, who has the authority to make an accounting report by cutting off the current expenses related to the election of the superintendent of the office of education of Ulsan Metropolitan City, which was implemented on June 2, 2010. The Defendant submitted an accounting report in the title "the report on the revenue and expenditure of political funds" as stated in the above 1. B in the election of Ulsan Metropolitan City, Ulsan Metropolitan City, which was written on May 27, 2010, stating that the total expenses for making a banner is not KRW 45,65,60,60 as stated in the above 2. A, notwithstanding that the total expenses for making a banner are not KRW 22,345,983, as stated in the above 2.2.

As a result, the Defendant conspired with B to prepare and submit an accounting report as if 45,656,60 won was paid in total, 22,345,983 won in fact, and entered false matters in the accounting report concerning election expenses.

C. Defendant B’s fraud

The Defendant and B, as described in the above 2. A. B., using documentary evidence stating the fixed price for banners as indicated in the above 2.3. on June 14, 2010, at the office of the Ulsan Metropolitan City Election Commission located in Ulsan-gu, the Defendant and B, despite the fact that public officials in the name omitted amounting to KRW 22,345,983,00 (i.e., banner cost + KRW 17,737,192 + + KRW 4,608,791 + KRW 72,310,617, and KRW 45,617, as stated in the list of crimes in the attached Form 1.3.5, the Defendant and the Defendant received the total amount of KRW 75,656,600, and the total amount of KRW 165,000,000, KRW 41,047,809 +67,000,000,000).

As such, the Defendant, in collusion with B, arrested public officials of the election commission of Ulsan Metropolitan City, thereby deceiving the victim of KRW 13,513,753.

Revised Facts

1. Invitation between the defendant and B;

On June 2, 2010, the Defendant and B issued a contract and tax invoice with the printing company and banner company for printing costs and current suspension costs related to the election of the superintendent of education in Ulsan Metropolitan City, Ulsan Metropolitan City, which was implemented on June 2, 2010, with the amount higher than the actual contract amount. They were either paid only the printing cost under the actual contract or returned the amount lower than the original contract amount. The election commission in Ulsan Metropolitan City, which submitted evidentiary documents, such as the false tax invoice, quotation, contract, etc., in which the amount lower than the amount was paid, and conspired to receive the compensation for the election expenses according to the amount lower.

2. Specific criminal facts;

(a) Violation of the Local Education Autonomy Act due to false statements in evidential documents;

When receiving and paying election expenses, no false entry of receipts or other documentary evidence shall be made or altered.

(i) False entry into evidentiary documents relating to printing costs;

Defendant and B found as “X” office around May 2010 * Ulsan**** requested the printing of a pledge book, etc., and the Defendant determined that the contract price for the actual printing cost to the above C is KRW 70,000,000 (Additional Tax), and written in KRW 110,000 (Additional Tax) for documents related to tax contracts, such as tax contracts, etc., the remaining money is returned to B, and the consent was obtained from the above C.

According to the above agreement, the defendant and B received printed matters from the above C around May 3, 2010, while Eul received from the above C at the "X" office around May 31, 2010, the total amount of 110,000,000, 11,000,000, and 121,00,00,000,000 won in total, and 05,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000,00,000,00,000,000 won, and 0,000,000,000,000 won.

Accordingly, the Defendant conspired with B, while the printing cost was KRW 70,000,000 (Additional tax separately), made a false entry in a written estimate, a contract, a written agreement, a statement of request, or a tax invoice, which is a document evidencing election expenses, as if it were 121,00,000.

(ii) false entries in documentary evidence relating to the expenses for banner.

On April 2010, the Defendant conspired with the accountant in charge for accounting to prepare a banner, etc. with a 60-day estimate, etc., and entered into a contract for the production and installation of banner B with D during the operation of "&& & an election campaign office," and entered into the contract for the production and installation of banner at KRW 8,000 per square meter, and delivered banner from April 12, 2010 to May 25, 2010, up to KRW 60-day price for banner, up to KRW 70,000 per square meter, KRW 60,000 per square meter, KRW 21,000 per square meter, KRW 60,000 per square meter, KRW 70,000 per 7,000 per square meter, KRW 70,000 per 20,000 per square meter, KRW 17,70,000 per square meter, including the above 60-day price per square meter.

Accordingly, the Defendant, in collusion with B, was merely about KRW 22,345,983 (=17,737,192 + KRW 4,608,791, such as the cost of installing the banner + KRW 4,608,791), but was about KRW 23,310,617 (= + KRW 41,047,809 + + KRW 4,608,791, such as the cost of banner + the cost of installing the banner + KRW 41,608,79).

(b) Violation of the Local Education Autonomy Act due to false accounting reports;

Where the person in charge of accounting makes an accounting report on election expenses to the competent election commission, he/she shall not make a false entry, forge, alter or omit it without justifiable grounds.

(1) False entry into the accounting report relating to printing costs

On June 2, 2010, the Defendant conspired with B, a person in charge of accounting, 1.2: (a) the amount disbursed as the Defendant’s printing expenses in relation to the election of Ulsan District Office of Education was KRW 70,000,000 (Additional tax), not KRW 121,00,000, as described in paragraph (1) of the above A; (b) the Defendant submitted an accounting report on the “report on revenues and expenditures of the Defendant’s election for the superintendent of education” around June 28, 2010, 1.2: (c) the amount disbursed as the Defendant’s printing expenses on May 18, 201; (d) the amount disbursed as KRW 5,00,000; (e) the amount disbursed as KRW 1.5,00,000,000,000,000,0000,000 won and KRW 1.5,005,00,000,00.

2) False entry into a false accounting report relating to the expenses for banner.

The Defendant conspiredd with B, a person in charge of accounting, to make an accounting report on the cost of banner-related election of the superintendent of the office of education in Ulsan Metropolitan City, Ulsan Metropolitan City, which was implemented on June 2, 2010. The Defendant submitted an accounting report on the "report on the revenue and expenditure of political funds" as stated in paragraph (1) at the election commission in Ulsan Metropolitan City, Ulsan Metropolitan City, which was written on June 2, 2010, which was written on the "Report on the revenue and expenditure of political funds" as stated in paragraph (2) above, although the cost of banner production is not a total of 45,656,600 won as stated in the above paragraph (a) as stated in paragraph (2) above, submitted the accounting report on the "report on the revenue and expenditure of political funds" as stated in paragraph (1) at the election commission in Ulsan Metropolitan City, Ulsan Metropolitan City, which was written on May 27, 2010, and attached a tax invoice to 31, 1, and 2007.

3) Accordingly, the Defendant conspired with B in collusion with the accounting report as if the actual printing cost was KRW 70,000,000 (Additional tax) and 121,00,000,000 among them were printing costs and 51,00,000, which was actually paid for the production and installation of banner, instead of the total amount of KRW 22,345,983, even though the amount actually paid for the production and installation of banner was KRW 22,345,983, the Defendant made a false entry in the accounting report as if the amount was paid in KRW 45,656,60,00.

The Defendant and B, as described in the above A. The documents, using the documentary evidence stating the expenses for printing and bannering as well as the above A. The Defendant and B had the mind to receive the preservation of election expenses.

B On June 14, 2010, in the office of the Ulsan Metropolitan City Election Commission located in Ulsan-gu, Ulsan-gu, a public official in secret name, ① The fact is described as follows: (i) although the actual cost of printing was KRW 70,00,000 (Additional tax) but as if the actual cost of printing was 121,00,000,000; (ii) evidentiary documents such as written estimates, tax invoices, contract documents, etc.; and (iii) the total cost of manufacturing and installing banner was 22,345,983 (=the total cost of installing banner + KRW 17,737,192 + installation cost + KRW 4,608,791). Notwithstanding the attached list of crimes, the detailed statement of the total cost of manufacturing and installing bannered KRW 72,00,310,617 was written as if the total cost of manufacturing and installing banner was 4,65,606,6040,794,7970).7

around July 30, 2010, the Defendant received a remittance of KRW 82,720,424 from a public official in charge of the election commission of Ulsan Metropolitan City in charge of the election commission of Ulsan Metropolitan City, under his name, to the Gyeongnam Bank account in order to preserve the printing cost, and received an excessive preservation of KRW 5,720,424 (i.e., KRW 82,720,424 - KRW 70,000 - KRW 7,000). The Defendant received a remittance of KRW 31,16,465 in total as indicated in the attached list of crimes, and received an excessive preservation of KRW 13,513,753 in total, as indicated in the attached list of crimes.

Accordingly, in collusion with B, the Defendant, by deceiving public officials of the election commission of Ulsan Metropolitan City, thereby deceiving the victim from the Republic of Korea (= KRW 5,720,424 + KRW 13,513,753).

List of Offenses

Omission of Entry

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