(영문) 청주지방법원 2017.6.16.선고 2016노1264 판결

2. The defendant shall be punished by a fine of 2,00,000 won. If the defendant does not pay the above fine, the defendant shall be confined in a workhouse for the period calculated by converting 10,000 won into one day.

The defendant shall be ordered to pay an amount equivalent to the above fine by provisional payment.

Reasons

1. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of facts - As to the entry of the Defendant in the electoral registry about H, I, and L, the Defendant’s wife, I, son L (hereinafter “the Defendant’s family members”) shall be deemed to be qualified as a forestry cooperative member, since the Defendant and the J have planted and managed the prone trees on the land of J. Accordingly, the Defendant’s family members are not listed in the electoral registry by fraud. Nevertheless, the lower court convicted the Defendant of this part of the facts charged, which was erroneous and adversely affected the conclusion of the judgment.

(2) Unreasonable sentencing

The punishment (one million won of fine) declared by the court below is too unreasonable.

B. In full view of the evidence submitted by the Prosecutor - The court below acquitted the Defendant of this part of the facts charged despite the fact that the Defendant entered E in the electoral register of forestry cooperatives by fraudulent means.

In this case, there is an error of misunderstanding facts and affecting the conclusion of the judgment.

2. Judgment on the defendant's assertion of mistake of facts

A. Summary of this part of the facts charged

The main points of this part of the facts charged are as follows, which the defendant consistently asserts the innocence from the time of the investigation as well as the court below and the trial court.

No one may enter matters in the electoral register by fraud or other improper means.

On September 1, 2014, the Defendant prepared a lease contract as if H and I leased from J the 2,331mm square meters prior to the Chungcheongbuk Ma owned by J, and submitted a written application for membership of H and L’s G forestry cooperative, along with the application for membership of H and L’s G forestry cooperative and submitted it on March 11, 2015, in relation to the election of the head of the association, which was implemented on March 11, 2015.

However, there was no fact that H, I, L had cultivated landscaped trees by leasing the above land from J, and there was no qualification for membership of the National Forestry Cooperatives Committee.

Accordingly, the Defendant entered H. I L in the National Forestry Cooperatives List by false means.

B. Determination of party members

In relation to this part, the defendant argued the same purport in the court below.

The court below rejected the Defendant’s assertion on the Defendant and the defense counsel’s assertion in light of the following circumstances, which can be acknowledged by the evidence duly adopted and examined by the Defendant and the J, the fact that at the expense of the Defendant and the J, the Defendant used 1,000 pung trees to manage each of the instant land (land before the land category), the Defendant’s wife H and ASEAN were able to assist the Defendant’s family members, but the Defendant’s management of h and ASEAN appears to have been unfolded, and the Defendant’s h and h were likely to not participate in the Defendant’s management of hI and L, which were necessary for the Defendant to join the forestry association as a member of the forestry association on September 2014, the court below rejected the Defendant’s assertion to the effect that there was no reason to acknowledge that the Defendant did not have any false statement on the part of the Defendant’s investigative agency, including the fact that H, I, and L did not know that it was a lease agreement.

In comparison with the above judgment of the court below with the records, the above judgment of the court below is just, and it is not different even if the testimony of the witness L of the court below is added.Therefore, the defendant's ground for appeal cannot be accepted.

3. Judgment on the prosecutor's assertion of mistake of facts

A. Summary of this part of the facts charged

The summary of the facts charged by the prosecutor on the ground of mistake of facts is as follows.

On September 11, 2014, the Defendant: (a) at the office of the forestry cooperative office located in the Chungcheong F, the Defendant prepared a lease contract as if he leased 2,331m of the Chungcheong BK owned by J from the J; and (b) submitted an application for membership of the G forestry cooperative institute to register it in the electoral registry of the union members on March 11, 2015.

However, the above land was leased from E to cultivate landscaped trees, and there was no qualification for membership of the National Forestry Cooperatives Committee.

As a result, the Defendant entered E in the National Forestry Cooperatives List by false means.

B. Judgment of the court below

The lower court found the Defendant not guilty of this part of the facts charged on the following grounds. The lower court recognized that E signed a false lease agreement on the land of J as a forestry cooperative member and entered it on the list of electors of forestry cooperatives by false means.

Furthermore, in light of the following circumstances, it is difficult to recognize that the defendant made entry in the electoral register of E in light of the fact that the defendant submitted the application form for membership and lease contract to the forestry cooperative instead of the defendant's request and submitted it to the defendant for E, but the defendant stated that E had the intent to join the forestry cooperative member consistently from the investigative agency, namely, the fact that E had the intent to consistently join the forestry cooperative member from the evidence duly adopted and investigated, although the defendant notified the defendant of documents necessary for E's request for advice, it was written with the ECJ and the direct lease contract with the defendant, and that E did not have been recommended from the defendant to join the forestry cooperative member, it is insufficient to recognize that the defendant made entry in the electoral register of E without reasonable doubt.

C. Judgment of the court below

In light of the following circumstances, the court below's decision and the trial court's decision can be duly adopted and investigated and recognized, since the defendant can sufficiently be recognized that E also was registered on the list of the electors of forestry cooperatives with his family members in a false manner, the court below's decision not guilty of this part of the facts charged is erroneous in the misapprehension of facts, which affected the conclusion of the judgment. Accordingly, the prosecutor's appeal pointing this out has merit.

0. As seen above, the lower court seems to have seen the fact that E prepares a direct lease contract with JJ, as the main grounds for the recognition of innocence. It can be recognized that E directly prepares a lease contract in the JJ office according to the reasoning of the lower court.

However, considering the following circumstances that the court of original judgment can legally adopt and investigate, it seems that there is no reason that the defendant's act of preparing a false lease contract on behalf of the defendant's family and E's act of preparing a false lease contract with J is not significantly different, and eventually, it is reasonable to see that E's lease contract has been made under the lead of the defendant.

In other words, in order for E to prepare a false lease contract, the person who introduced theJ of the lessor is the defendant. In addition, the forms of lease contract that the defendant provided to E are the same as the form of lease contract in the name of the defendant's family member prepared by the defendant instead of the defendant. Although E directly prepares a lease contract, it is the major contents of the lease contract such as lease term, rental fee, purpose of lease, etc., and is not aware of the basic contents.

② At the investigation stage, E consistently asserts that the principal wants to become a member of G forestry cooperative and that it is not by the Defendant’s recommendation. This part is one of the main grounds for the lower court rendered a not-guilty verdict. However, considering the following circumstances that can be duly adopted and investigated by the lower court, it is difficult for E to believe health class, E’s statement and testimony as they are, and there is no particular reason for E to be entered in the electoral register at the time of the instant investigation. In other words, the Defendant appears to have joined the G forestry cooperative at the time of BC and the head of the association, and the livestock industry in the relevant area, are likely to have frequently meet the Defendant and close to BC. E, rather than refusing the Defendant’s request, there is a high possibility that he would act as the Defendant’s hys, and the case is likely to correspond thereto.

E은 돌아가신 아버지의 산림조합원 지위를 승계하기 위해서 이 사건 가입신청을 하였다고 주장하나, E의 아버지가 예전에 산림조합원 자격이 있었다는 사실에 관한 별다른 증거를 찾아볼 수 없을 뿐만 아니라 설사 그것이 사실이라 하더라도 사망한 산림조합원의 지위를 자녀가 승계한다는 일은 상정할 수 없는바, 위와 같은 E의 진술은 ‘감정적(感情的) 또는 정서적(情緒的)으로 행동하였다'는 말 정도의 의미를 가질 뿐인데, 약 3년전에 사망한 아버지(증거기록 제1889쪽)의 조합원 지위 복원을 위해 그와 같은 행동을 하였다는 E의 설명은, 본건 산림조합원 지위 취득 동기를 제대로 설명할 만한 말이 아니다.

In addition, E gives testimony to the effect that he/she should join the forestry cooperative for inheritance due to his/her father's investment request, but this is also the assertion that he/she would lose the status of his/her membership in the housing cooperative. While E/her primary purpose is to cultivate landscape trees on front of the house, it seems that 50 percent of landscape trees would have been deep before the house (161 pages of public trial records) and that it is difficult to view that he/she would have cultivated landscape trees or seedlings for sale in light of the purport of E's testimony, even if he/she would have obtained a false statement from the police cooperative for the purpose of landscaping or for the purpose of securing small demand at home (such as planting trees) and that he/she would have obtained a false statement from the police cooperative to the extent that he/she would have received a false statement from the police cooperative to the extent that he/she would have received a new statement from the public institution for the first time of election of the president of the housing cooperative (which would not have been able to do so).

(4) The Defendant was found guilty on the entry on the electoral registry under the name of the Defendant’s family members. The entry on the E electoral registry was also conducted at a time similar to the time of entry on the electoral registry

4. Conclusion

Therefore, since the prosecutor's argument of mistake of facts is well-grounded, the judgment of the court below shall be reversed pursuant to Article 364 (6) of the Criminal Procedure Act without examining the defendant's grounds for appeal of unfair sentencing, and the following decision shall be

【Discretionary Judgment】 Criminal History Office

No one may enter matters in the electoral register by fraud or other improper means.

On September 1, 2014, at the G forestry cooperative office located in the Chungcheong F, the Defendant prepared a lease contract as if L leased from J 2,331 square meters prior to the Chungcheong NorthK owned by H, I, and EN, and as L was leased from J 1,402 prior to the Chungcheong M owned by J, and submitted an application for membership of H, I, E, and L, along with the application for membership of H, E, and L, and entered it in the register of union presidents on March 11, 2015.

However, there was no reason that H, I, E, L had cultivated landscaped trees by leasing the above land from J, and therefore there was no qualification for membership of the National Forestry Cooperatives Committee.

Accordingly, the Defendant entered H, I, E, and L in the National Forestry Cooperatives List by false means.

Summary of Evidence

1. The original judgment and the part of the trial court of the defendant in court room;

1. The legal statement of J and E of the witness of the court below

1. A protocol concerning the examination of partially the defendant's prosecution;

1. Each prosecutor's statement to the N and J;

1. Copy of each police statement made by the defendant, H, L, and E;

1. A copy of a petition, reply from the head of the Chungcheong Regional Headquarters of the National Forestry Cooperatives Federation to the civil petition reported by him/her, civil petition documents sent by him/her to the Audit Office of the National Forestry Cooperatives Federation, copy of the current status of actual status of members of a G forestry cooperative, copy of membership eligibility, copy of the procedures for membership entry, copy of the G forestry cooperative'

Application of Statutes

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

Article 63(1) of the Act on Commissioned Elections, such as each Public Organization, and Selection of Fines

1. Aggravation for concurrent crimes;

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

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 provides that the Defendant has no record of having been sentenced to a fine or heavier punishment. The Defendant has made considerable contributions to local communities or BC associations. Moreover, even though the Defendant violated the law and entered false family members and branch members in the electoral register, the Defendant’s withdrawal of the registration before the election and did not lead to an actual illegal election, etc. is favorable to the Defendant.

In particular, the defendant, while holding office as the head of the immediately preceding 'BC Association' and has been deteriorated business performance, was laid down in the radius of an exemplary local union that is considered to be a member of the whole country, and as a result, 72% of the members who participated in the voting (in the election for the head of the association implemented on March 24, 2017, since the voting rate was 86%, referring to the rate of 62% as a whole, referring to the level of pressure support by the whole voters) are successful in reappointment. However, Article 49 (1) 8 of the Agricultural Cooperatives Act provides that a person for whom 4 years have not passed since he was sentenced to a fine of 1 million won or more for the crime provided for in Article 63 of the Act on Election of Public Organizations, etc. may not be an executive of agricultural cooperatives. Accordingly, there is no possibility that the result of this case may affect the status of the above local community, and there is no concern for the defendant to be punished for a large number of local residents in this case.

However, the crime of this case committed by the defendant was recorded on the electoral register with false family and branch members in order to exert an unreasonable influence on the election of the head of a forestry cooperative that should be fair, and thus, it is serious to the extent of illegality of the act. In addition, in light of the nature of the crime, there is a problem that falls under the disqualifications for executive officers under the Agricultural Cooperatives Act as above in light of the nature of the crime, and the degree of strict acquisition of qualification for executive officers under the Agricultural Cooperatives Act is merely an anti-defensive effect in accordance with the sentencing of this case. Moreover, it is difficult to view that the defendant's withdrawal of membership of a forest association with his family and branch members by the police after undergoing an investigation on it is difficult to view that the defendant's intent is voluntary, and it appears that the defendant continued to have understood that it is difficult for him to understand until this court and denies the crime, but it is difficult to say that the defendant's speech and behavior divided into one's own mistake is true or correct.

In addition to the above circumstances, comprehensively taking into account the defendant's age, character and conduct, intelligence and environment, motive, means and consequence of the crime, the circumstances after the crime, etc., all of the sentencing conditions shown in the arguments in this case shall be determined as ordered.