2015No47 Violation of the Public Official Election Act

A

Prosecutor

For the purpose of transfer, stuffing, and completion of a trial.

Attorney B

Changwon District Court Decision 2014Gohap298 Decided January 15, 2015

March 18, 2015

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 4,000,000.

When the defendant does not pay the above fine, the defendant shall be the defendant for the period converted 100,000 won into one day.

shall be confined in a workhouse.

The provisional payment of the amount equivalent to the above fine shall be ordered.

1. Summary of grounds for appeal;

The punishment sentenced by the court below (hereinafter referred to as a fine of 4 million won) is too unhued and unfair.

2. Determination

The prosecutor's grounds for appeal on unreasonable sentencing are examined ex officio before determining the grounds for appeal.

A. Whether the statute of limitations has expired

The defendant asserts that "the statute of limitations for the instant case has expired," and calls for ex officio judgment.

However, the judgment of the court below on the above argument (based on the election day, which is the day public notice, rather than several primary election days) is deemed justifiable. Thus, the corresponding column of the judgment of the court below is cited pursuant to Article 369 of the Criminal Procedure Act.

(b) Number of crimes;

1) The prosecutor asserts that “the instant crime constitutes concurrent crimes as it constitutes one crime by sending text messages for each act of sending text messages, through a written opinion submitted after the lapse of the period for appeal, is not timely filed.”

2) If a number of acts falling under the name of the same crime continues to be conducted for a certain period as a single and continuous criminal intent and the legal benefits from such damage are the same, each of these acts shall be punished by a single comprehensive crime. However, if the unity and continuity of a criminal intent are not recognized in multiple crimes or the method of committing a crime is not the same, each of the crimes constitutes substantive concurrent crimes (see Supreme Court Decision 2013Do10467, Nov. 28, 2013). The foregoing legal principles and the purpose of the Public Official Election Act stipulating the statute of limitations for a short term, the number of crimes under each provision of the Public Official Election Act, etc. shall be determined by taking into account the aforementioned legal principles,

3) In the case of each text message listed in Nos. 4 and 5 of the crime sight table in the judgment of the court below, since it was sent at intervals of one day to the same addressee, it can be recognized that the criminal intent continues.

However, in the case of the remaining text messages, it is difficult for the Defendant to recognize that each crime was committed under the single criminal intent at the time of sending text messages, considering the following: (a) the date of sending each text message is different; (b) the distance between the recipients and the number of recipients is not specified; and (c) the content does not coincide with each other; and (d) the fact that the contents are not related to each other; and (b) the Defendant is difficult to recognize that each crime was committed at the time of sending text messages, and therefore, the act of sending the remaining text messages is in a

Therefore, the judgment of the court below that each of the above acts was in the relation of a single comprehensive crime is erroneous as to the number of crimes.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act without examining the prosecutor's decision on the grounds of ex officio reversal, and it is again decided as follows.

Grounds used again due to destruction -

Criminal facts and summary of evidence

The summary of the facts constituting an offense and evidence recognized by this Court is identical to the entries in each corresponding column of the judgment below, and thus, it is accepted 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;

Each Public Official Election Act No. 255(2)3 and 57-3(1)(No. 4 and 5)

Each violation of the Public Official Election Act (hereinafter referred to as the “Public Official Election Act”) shall include:

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act

4. Aggravation for concurrent crimes committed in violation of the Public Official Election Act as stated 5.

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

The crime of this case, which is recognized by evidence, evidence law, and legal principles, is conducted in a way that is not prescribed by the public official election law, such as analyzing the tendency of representatives who participate in the local public opinion and competition, or transmitting text messages that support and publicize the C preliminary candidate, with the aim of having the Defendant elected C as a candidate in the intra-party Do branch by using the central mountain association operated by him to analyze the tendency of representatives who participate in the local public opinion and competition with the aim of having them elected as a candidate in the intra-party Do branch, and the public official election law strictly limits the method of the intra-party election campaign. Thus, the crime liability is not less than those against the crime, and the defendant committed the crime of this case in a planned and systematic manner, and the crime of this case is recognized as unfavorable sentencing factors

However, a favorable sentencing factor or objective and neutral sentencing factor is also recognized, such as the fact that the defendant has recognized the crime itself and has no record of punishment for the same kind of crime.

In full view of the aforementioned factors of sentencing and the statutory punishment for the crime of violation of the Public Official Election Act (a two-year imprisonment or a fine not exceeding four million won) due to the instant crime, the scope of the recommended sentence according to the sentencing guidelines set by the Supreme Court Sentencing Board, Defendant’s age, character and conduct, intelligence and environment, motive and circumstance leading to the instant crime, means and consequence of the instant crime, and the circumstances after the instant crime, etc., the sentence like the main sentence is selected and determined by comprehensively taking into account various circumstances revealed in the arguments.

【Main Grounds for Determination of Sentencing】

- Many Crimes

-Violation of the Public Official Election Act due to each illegal election campaign: Election crime group, violation of the election campaign period, election campaign by vice-party, violation of the election campaign method (type 2), planned and organized crimes, and reflective reflect, etc.

Maap-gu (Presiding Judge)

Kim Don Kim

S. S. S.S.