2017Do12584 Violation of the Public Official Election Act

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7. J;

Defendant A, B, C, J and Prosecutor (Defendant A, C, D, E, and F)

L Law Firm (for Defendant A, B, and C)

Attorney M,O, S

Law Firm, Intellectual Property (for Defendant A)

Attorney I Q, IR, IR, IS, IT, IU

Law Firm N. (Defendant J.)

Attorney AO, AP, and Q

Busan High Court Decision 2017No186 decided July 26, 2017

December 22, 2017

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal by Defendant A, B, and C

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the first instance court and the lower court, it is justifiable to have determined that the lower court was guilty of violating the Public Official Election Act by Defendant A and B’s similar institutions among the facts charged in the instant case, and by violating the Public Official Election Act due to Defendant C’s prior election campaign (excluding the part on innocence in the reasoning), Defendant A, and C’s one-person demonstration, one-person demonstration prior to the public relations campaign, and one-way advance election campaign prior to the street publicity. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on prohibition of installation of similar institutions under Article 89(1) of the Public Official Election Act, prohibition of election by public organizations under Article 254(2) of the Public Official Election Act, requirements for establishment of

In addition, the argument that the judgment of the court below was erroneous in the misapprehension of the reason for sentencing constitutes an allegation of unfair sentencing. However, pursuant to Article 383 subparag. 4 of the Criminal Procedure Act, only in the case where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years is imposed, an appeal on the ground of unfair sentencing is allowed. As such, the argument that the determination of the sentence is unfair is not legitimate grounds for appeal.

2. As to Defendant J’s ground of appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the first instance court and the lower court, it is justifiable for the lower court to have found Defendant J guilty of all the facts charged. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on election campaign under Article 254(2) of the Public Official Election Act, purchase by interest and awareness of illegality under Article 230

In addition, under Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years has been imposed, an appeal on the grounds of unfair sentencing is allowed. As such, in this case where a fine is imposed against Defendant J, the argument that punishment is too unreasonable is not a legitimate ground for appeal.

3. As to the prosecutor's grounds of appeal

Examining the reasoning of the judgment of the court below in light of the records, it is just for the court below to render a judgment of the court of first instance which acquitted or acquitted the defendant on the ground that there was no proof of crime as to the violation of each public official election law due to Defendant C, D, E, and F’s telephone advance election from among the facts charged in the instant case, and the violation of the public official election law due to Defendant C, D, E, and F’s telephone advance election (excluding the guilty part). In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by exceeding the bounds of the

Meanwhile, the Prosecutor appealed against Defendant A, C, D, E, and F in the lower judgment. However, the Prosecutor did not state the grounds for objection in the petition of appeal or appellate brief regarding the guilty portion.

4. Conclusion

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

Justices Kim Jae-hyung

Justices Park Young-young

Jeju High Court Justice Kim Chang-suk

Justices Lee Dong-won