Do 2017 Do 9794 A. Violation of Public Official Election Act

(b) The concealment of evidence (the name of preliminary crime: the concealment of evidence);

(c) Concealment of evidence;

1. (a) A;

2. (a) B

3. (a) C

4.(a)(c) D

5. (a)(c) E;

6.2 b.F

7.(c) G.

8. A. H

9. (a) I

Defendant A, D, E, G, I, and Prosecutor (Defendant A, B, C, D, E, F, and H

section 22)

Attorney J, K, or L (for Defendant A)

Corporation M (for Defendant B, C, D, E, F, G, H, and I)

Attorney in charge N

Legal entity (for defendant A, D, and G),

Attorney P, Q, R in charge

Busan High Court Decision 2017Do85 decided June 14, 2017

June 15, 2018

all appeals shall be dismissed.

The grounds of appeal are examined (the statement of the grounds of appeal submitted by Defendant D or G counsel after the lapse of the period for submitting a statement of grounds of appeal, including a statement of grounds for appeal submitted by Defendant D or G counsel, within the limit of supplement to the grounds of appeal).

1. Regarding Defendant A and I’s violation of the Public Official Election Act due to the prior election campaign at a meeting of the organization of Defendant A and I

A. On the grounds of Defendant I’s appeal, the court below rejected the Defendant’s appeal on the grounds of the judgment of the court below, on the ground that: (a) holding a meeting of this case at the election office of Defendant A, which was registered as a preliminary candidate for the election of the National Assembly members of the 20th National Assembly; and (b) conducting an act to raise Defendant A’s personal guidance at the election office of Defendant A, as shown in the List of Crimes List (1) attached to the judgment of the court of first instance, constitutes an advance election campaign; and (c) accordingly, the Defendant’s appeal against this case is dismissed.

Examining the reasoning of the original judgment in light of the relevant legal principles and evidence duly adopted by the first instance court that maintained the judgment of the lower court, the said judgment of the lower court is justifiable, and at the same time, the lower court did not err by exceeding the bounds of the due diligence against logical and empirical rules, or by misapprehending the legal principles on election campaign, as otherwise alleged in the grounds of appeal.

B. As to Defendant A’s grounds for appeal, the court below held that Defendant A’s appeal does not constitute an appeal for support, which is a prior election campaign that is allowed to the preliminary candidate pursuant to the proviso of Article 59 and Article 60-3(1)2 of the Act on the Election of Public Officials, since Defendant A’s appeal for support was made at a meeting of the organization of this case through 150 members of the aforementioned Defendant’s attendance at the meeting of the organization of this case. Accordingly, the court below determined that the prior election campaign prohibited under the Act on the Election of Public Officials was conducted in collusion with the above Defendant, and that the aforementioned Defendant’s appeal was dismissed.

Examining the reasoning of the judgment of the court below in light of the relevant legal principles and evidence duly adopted by the first instance court that maintained the judgment of the court below, the above judgment of the court below is legitimate, and there is no error in the misapprehension of legal principles as to the appeal of support under Article 60-3 (1) 2 of the Election of Public Officials Act, the appeal of support under Article 60-3 (1) 2 of the Election of Public Officials Act, the joint principal offender, and the prohibition of analogical interpretation, etc. against the law of logic and experience, as otherwise alleged in the grounds of appeal.

2. As to the violation of the Public Official Election Act due to the illegal election campaign against Defendant A’s violation of the restriction on the use of the positive device

For the following reasons, the lower court determined that the Defendant committed an illegal election campaign by violating the restriction on the use of the positive device as shown in the crime list (2) attached to the judgment of the first instance court, and rejected the allegation of the grounds for appeal by the said Defendant. In other words, ① The use of the positive device prohibited under Article 91(1) of the Public Official Election Act shall not be limited to the positive device installed at the candidate’s own expense. ② The preliminary candidate is not included in the “candidate” who is able to use the positive device pursuant to Article 79(7) of the Public Official Election Act.

Examining the reasoning of the judgment of the court below in light of the relevant legal principles and evidence duly adopted by the first instance court that maintained the judgment of the court below, the above judgment of the court below is legitimate, and there is no error of law by misapprehending the legal principles as to the restriction on the use of precise devices under Article 91(1) of the Public Official Election Act, as otherwise alleged in the grounds of appeal.

3. As to Defendant D and G’s concealment of self evidence on September 8, 2016 and Defendant E’s intent to conceal self evidence on September 7, 2016

A. On the grounds of the common appeal by Defendant D, G, and E, the lower court excluded the output of the files stored in the instant mobile storage device (hereinafter “the files output of the USB of this case”) and it cannot be deemed that the search and seizure conducted on the object of S operation under the search and seizure warrant was unlawful, or that it did not infringe on the substantive content of the lawful procedure. Accordingly, the lower court recognized the admissibility of the evidence of the goods seized on the above solid object.

In addition, the court below held that each investigation report in the judgment of the court below, excluding the investigation report attached to the USB file output of this case and the investigation report on the confirmation of the evidence seized on the above article above, should be duly conducted at the court of first instance and adopted as evidence or agreed by the above defendant, so the admissibility of evidence should be recognized.

Examining the reasoning of the original judgment in light of the relevant legal principles and records, although some of the reasoning of the original judgment was insufficient, the conclusion of the original judgment which recognized the admissibility of evidence for the investigation report on the goods seized on the above solid goods and the part of the investigation report is legitimate, and at the same time, there is no error of misapprehending the legal principles on the principle of exclusion of illegally collected evidence, such as the allegation of the grounds of appeal.

The Supreme Court's judgment cited as the ground for appeal is different from the case of this case, and it is not appropriate to invoke this case.

B. As to Defendant D and G’s remaining grounds for appeal, the lower court upheld the first instance judgment that found Defendant D and G guilty of the charge of concealing its evidence on September 8, 2016, and rejected the Defendant’s allegation of the grounds for appeal.

Of the grounds of appeal, the above defendants transferred only to the custody place of evidence related to the above case of defendant A, who is the accomplice of the violation of the Public Official Election Act, and thus, they cannot be viewed as the act of concealing evidence against the criminal case of others. The above defendant's assertion that it cannot be viewed as the act of concealing evidence against the criminal case of others is not a misunderstanding of the above defendant's grounds of appeal, or it is not a legitimate reason for appeal. Furthermore, in light of the relevant legal principles and evidence duly adopted by the court below as well as the grounds of the judgment of the court below, the above judgment of the court below is just, and contrary to the logic and experience law as alleged in the grounds of appeal, the judgment of the court below is contrary to the limitation of free trial due to the logic and experience, or contrary to the legal principles as to the evidence and concealment of the crime of concealing evidence, the intention of concealment, the degree of conviction, and the degree of proof of guilt.

C. On September 7, 2016, the lower court rejected the Defendant’s grounds of appeal on the following grounds: (a) even if Defendant E’s remaining grounds of appeal were excluded from the printed files of the USB of this case and the unfounded evidence, such as the investigation report attached thereto, the lower court determined that the facts of prosecution as to the concealment of evidence could be found guilty on September 7, 2016; and (b) accordingly, rejected the Defendant’s allegation of the grounds of appeal.

This part of the grounds for appeal is the purport of disputing the finding of facts by the court below, and it is nothing more than misunderstanding the judgment on the selection of evidence and probative value by the court of fact-finding which belong to the free judgment of the court of fact-finding.

Examining the reasoning of the original judgment in light of the relevant legal principles and the evidence duly adopted by the original judgment, the original judgment is justifiable, and it is not unlawful in that it exceeded the limit of free evaluation of evidence or misunderstanding the legal principles on the degree of proof of guilt, contrary to the logical and empirical rules, such as the allegation of the grounds of appeal.

4. As to the prosecutor's appeal

A. Regarding the establishment of similar agencies in Defendant A, B, C, and D, and the violation of the Public Official Election Act due to the prior election campaign by similar agencies

The lower court determined that the evidence submitted by the prosecutor alone was insufficient to recognize that the counseling center of this case constitutes a similar institution prohibited under Article 89(1) of the Public Official Election Act for the purpose of Defendant A’s election in the elector’s perspective, or that the said Defendant was engaged in a prior election campaign through the counseling center of this case. Accordingly, the first instance judgment, which rendered a verdict of not guilty of this part of the public prosecution, was maintained, and rejected the Prosecutor’s allegation of the grounds for appeal disputing this.

Examining the reasoning of the judgment of the court below in light of the relevant legal principles and records, the above judgment of the court below is just, and there is no illegality in the misapprehension of legal principles as to election campaign under the Public Official Election Act and the establishment of similar institutions by violating the logical and empirical rules, such as the allegation of the grounds of appeal.

B. As to the violation of the Public Official Election Act due to Defendant A and E’s prior election campaign using the number of mobile phone numbers

The lower court determined that the evidence-related evidence-related records and the files output of the USB of this case cannot be acknowledged for the following reasons, and that the remainder of this part of the evidence alone cannot be acknowledged. In other words, the lower court reversed the first instance judgment that found the Defendant guilty of this part of the public prosecution and rendered a verdict of innocence. In other words, the prosecutor’s statement protocol concerning T is characterized by the document stating T’s statement in the actual suspect status at the time of the preparation of the protocol. However, there is no evidence to acknowledge that the prosecutor notified TT of the right to refuse to make a statement before the preparation of the protocol and the right to receive assistance by the counsel, and there is no evidence-related ability to obtain the evidence as evidence. ② Extraction and reproduction of electronic information stored in the USB of this case were conducted without guaranteeing the right to participate in the seizure and the right to participate in the seizure and delivery of the original evidence to the person subject to seizure and without taking measures to ensure the identity and identity of the original evidence in the Criminal Procedure Act.

Examining the reasoning of the original judgment in light of the relevant legal principles and records, the aforementioned determination by the original judgment is justifiable, and at the same time, there is no illegality of misapprehending the legal principles on the records of reference, electronic media seizure, and output, such as the allegation of the grounds of appeal.

C. As to Defendant A’s violation of the Public Official Election Act due to publication of false facts

The court below maintained the judgment of the court of first instance which rendered a verdict of not guilty as to this part of the public prosecution, on the ground that the part in which the above defendant stated "B" in the election campaign bulletin of this case cannot be concluded as false facts, and rejected the prosecutor's allegation of the grounds for appeal disputing this part.

This part of the grounds for appeal is the purport of disputing the finding of facts by the court below. It is nothing more than denying the judgment on the selection and probative value of evidence by the court below which actually belongs to the free judgment of the court of fact-finding.

Examining the reasoning of the original judgment in light of the relevant legal principles and records, the aforementioned determination by the original judgment is justifiable, and at the same time, the judgment by the original judgment is not unlawful against the legal principles of logic and experience, such as the allegation of the grounds of appeal.

D. As to Defendant H’s establishment of private organization and violation of the Public Official Election Act due to the prior election campaign by private organization

citing the reasoning of the judgment of the court of first instance, the court below maintained the judgment of the court of first instance which rendered a verdict of not guilty as to this part of the public prosecution on the grounds that it cannot be deemed that the aforementioned defendant established a private organization under the Public Service Election Act, or that the prior election campaign by a private organization was conducted. The court below rejected the prosecutor's allegation of the grounds for appeal disputing this.

Examining the reasoning of the judgment of the original court in light of the relevant legal principles and records in the judgment of the first instance, the aforementioned judgment of the original court is justifiable, and there is no illegality such as misapprehending the legal principles on the establishment, etc. of private organizations under Article 87(2) of the Public Official Election Act, as otherwise alleged in the grounds of appeal.

E. Aiding and abetting Defendant A and B to conceal evidence on September 7, 2016, and Defendant A, B, and F’s September 2016

8. Regarding the charge of aiding and abetting the concealment of Evidence

citing the reasoning of the judgment of the court of first instance, the court below maintained the judgment of the court of first instance that rendered a verdict of innocence against the facts charged around each of the facts charged by the above defendants on the grounds that there is no evidence to support the fact that the above defendants instigated the crime of concealing evidence, and rejected the prosecutor's allegation of the grounds for appeal disputing this.

In addition, the court below rendered a judgment of not guilty on the ground that the evidence submitted by the prosecutor alone is insufficient to recognize that the above defendants aiding and abetting the concealment of each evidence, and that there is no other evidence to acknowledge this, each of the preliminary public prosecution facts added at the court below was found not guilty on the ground that there is no other evidence to acknowledge this.

Examining the reasoning of the original judgment in light of the relevant legal principles and records in the first instance court and the judgment of the court below, the above judgment of the court below is legitimate, and at the same time, the judgment of the court below exceeded the limit of free evaluation of evidence against the logical and empirical rules, as otherwise alleged in the grounds of appeal, or did not err by misapprehending the legal principles on aiding and abetting or aiding and abetting evidence.

F. As to the guilty part of the judgment of the court below

The prosecutor filed a final appeal with the scope of the final appeal as the whole judgment of the original court, but there is no specific statement of the grounds for final appeal in the petition of final appeal or the statement of grounds for final appeal as to the convicted portion.

5. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim So-young

Justices Ko Young-han

Justices Cho Jae-chul