(original)Violation of the Public Official Election Act 2017No12

1. A;

2. B

Prosecutor

Senior Jins, Cho Dong-hun, Hun-ju, Lee Jae-ho (Public trial)

Law Firm C (for Defendant A)

Attorney D

Attorneys Y (Korean National Assembly for Defendant B)

Changwon District Court Decision 2016Gohap37 decided January 5, 2017

April 3, 2017

All appeals filed by the prosecutor against the Defendants are dismissed.

1. Summary of grounds for appeal;

According to the evidence submitted by the prosecutor, in relation to the Fre-election (hereinafter referred to as the "election in this case") conducted on April 13, 2016, Defendant A delivered KRW 2 million in cash to Defendant B in return for the renunciation of horse and the opposition to support, and Defendant B can fully recognize the fact that he received it. The judgment of the court below that acquitted Defendant B of the facts charged in this case is erroneous in the misapprehension of facts.

2. Determination

A. As evidence consistent with the facts charged in the instant case, there are statements made by Defendant B at the prosecution, the court below and the court of the first instance, and H in the prosecution and the court of the original instance. However, without any need to discuss the legal doctrine that “The above statements made by Defendant B and H should be based on evidence with probative value sufficient to ensure the authenticity of the facts charged to the extent that there is no reasonable doubt,” which is recognized by the record, and there is no credibility in full view of the following facts and circumstances recognized by the record.

B. Whether Defendant B’s withdrawal and election campaign were carried out

Defendant B declared that he will be going out of the instant election on January 20, 2016, but did not make a preliminary candidate registration, and did not carry out an election campaign, such as not only not opening an election office but also making a name tag for election campaign. In addition, Defendant B posted a krum to waive his going out on March 2, 2016 as “J” at I newspapers, and Defendant B renounced his going out completely. Since Defendant B did not prepare a recommendation letter necessary for his going out, Defendant B did not prepare a recommendation letter for his going out of the election, and Defendant B did not make a statement that Defendant B carried out an election campaign again and carried out an election campaign on March 22, 2016, which was immediately immediately preceding the election day.

C. Non-existence of concrete consultation among the Defendants

① As above, even though Defendant B disclosed his will on January 20, 2016, it did not actually engage in an election campaign. Since Defendant A given up fully going out on March 2, 2016, Defendant A first left home, and there was an incentive for Defendant B to waive the going out and end up to support Defendant B. The agreement that Defendant A would pay money in return for Defendant B’s renunciation of going out and support (hereinafter “the resignation agreement in this case”) is highly likely to be sentenced to a punishment for invalidation of election, since the nature of the crime and statutory punishment in violation of the Public Official Election Act are heavy, and such fact is discovered. In order for Defendant A to propose the resignation agreement in this case to Defendant B first, it would normally be subject to consultation on the contents, terms, and conditions of the resignation agreement in person with Defendant B, but would normally be contrary to the empirical rule, and even if Defendant B’s statement was made, it would considerably be contrary to Defendant A’s general rules.

② At the time, the contents of the call between the Defendants are as follows. Defendant B did not reach an agreement on the surrender of this case at the time of Defendant B’s call with Defendant A. However, Defendant B requested Defendant B to resign and support, and accepted it and decided to visit Defendant B. However, Defendant B made a statement to the effect that it was impossible to use Defendant B’s call at around October 7, 2016 at the time of election and around March 24, 2016 at the time of Defendant B’s request. Defendant B made a statement to the effect that it was impossible to use Defendant B’s call at around 0:10,000 won and 50,000 won. Defendant B made a statement to the effect that it was impossible to use Defendant B’s call at around 16:0,000 won and 6:3:0,000 won. Defendant B made a statement to the effect that it was impossible to use Defendant B’s call at around 20,016.

A person shall be appointed.

③ Accordingly, Defendant B’s statement to the effect that Defendant A first requested Defendant B to give up the horse, and Defendant B’s request to compensate for election expenses, and agreed to receive the money, was not reliable. In full view of the telephone call time, frequency, time, etc. between the Defendants, Defendant B offered that Defendant A would give up the horse and give up the horse to Defendant A, and that Defendant A would make a declaration of support. Defendant A accepted this, and Defendant A’s assertion that “only was a mere mere giving up the horse to Defendant B and preparing a statement of support and a statement of support.”

D. The need for Defendant A to pay the price for the waiver and support of the horses to Defendant B

① In full view of the fact that Defendant B first proposed Defendant B’s renunciation of departure and support declaration, Defendant B did not actually engage in an election campaign, and thereby, Defendant B’s influence over the election is inevitable. In full view of the fact that Defendant A’s payment of money to Defendant B and that there is a very high risk of the burden of the burden of the Defendant A’s payment of money to Defendant B, and that Defendant A’s payment of money to Defendant B would have been made in advance, it seems that there was no need for Defendant A to pay “money exceeding an abstract promise.”

② Defendant B did not actually engage in an election campaign on January 20, 2016, unlike having expressed his intention to participate in an election campaign, and does not seem to have spent election expenses exceeding the money used for ordinary people. In addition, even though Defendant B made a clear intention to withdraw through the press on March 2, 2016, Defendant B could not be ruled out the possibility that Defendant B would have also proposed the same proposal to Defendant B, as seen earlier, since Defendant B could not be seen as having first proposed election expenses in the form of Defendant B’s offer to withdraw and have not been seen as having been made in the form of Defendant B’s offer to withdraw and have not been able to be seen as having been made in the form of Defendant B’s offer to withdraw and have not been able to be seen as having been made in the form of Defendant B’s offer to Defendant B, even if Defendant B made a statement on March 2, 2016. Defendant B’s offer to withdraw and have not been able to be seen as having been made in the form of Defendant B’s offer to withdraw and have not been made.

(e) Forms of delivery of two million won or more;

Defendant B made a statement to the effect that “Defendant B was 50,000 won and 2,000 won, which was 50,000 won and 50,000 won from Defendant A.” However, Defendant A was a position to request Defendant B to give a declaration of withdrawal and support, and only a part of Defendant B was paid without paying 4,00,000 won as required by Defendant B, and Defendant A’s duty of putting it into an envelope when reducing the amount of encouragement to another person, etc. in light of Defendant A’s career. In full view of the fact that the above method of delivery was an exceptional, Defendant B’s above statement is not credibility. A prosecutor acknowledged that the above method of delivery was not an actual experience, but rather, Defendant B could not make a statement unless Defendant B was able to have been able to make a statement. However, Defendant B did not have the possibility of keeping Defendant B’s envelope with the reason that Defendant B did not make a statement in the form of 20,000 won.

F. Circumstances after the delivery of a written visit

① Upon receipt of Defendant A’s written reply from Defendant A, Defendant B presented a written reply to H as well as a written reply. Defendant B did not conduct a written reply to the reporter. Defendant A did not present any further condition or present any written reply to the reporter, and then, Defendant A presented a written reply to Defendant B and again requested the reporter. If Defendant A delivered KRW 2 million in return for Defendant B’s waiver of the horse departure and the declaration of support, Defendant A knew of the expenditure and risk burden of KRW 2,00,000,000,000,000,000,000,000 won. Nevertheless, Defendant A presented additional conditions to Defendant B in order to have the reporter visit, or made any amendment to the reporter agreement, and Defendant B’s assertion is inconsistent with Defendant B’s assertion.

② After Defendant A’s election at the instant election, the circumstances are also consistent with Defendant A’s assertion. around April 2016, Defendant B requested and rejected Defendant A’s request for help with respect to solar construction, which is a solar power plant operator, and W stated that Defendant A was subject to a recommendation from Defendant A. If Defendant A committed a crime of candidate purchase that grants KRW 2 million to Defendant B in return for the waiver of departure and the declaration of support, it would have not been able to make a speech or behavior giving W’s non-compliance.

G. The process of statements by H and Defendant B

① The issuer of “I”, the main place of which is K, K, K, and Gohap. Defendant B published a knife in I or delivered the said newspaper with H along with H. Defendant B. Defendant B immediately received the instant press conference from Defendant A, and immediately followed Defendant B received the instant press conference from Defendant A, and then was close to the point of view as to whether or not H will be allowed to visit the press conference.

② Around August 11, 2016, H made a phone call with M and included the following contents in the horses, and H intended Defendant A to fall off from military office with a strong hostile sense against Defendant A due to the following problems: (a) Defendant A engaged in personnel management of K-Gun public officials differently from H’s wishes; and (b) Defendant A was able to fall off from military office.

A person shall be appointed.

A person shall be appointed.

③ On August 11, 2016, H submitted a written complaint to the Election Commission of K (hereinafter “K Election Commission”) stating that, in the event that Defendant A’s resignation is terminated and Defendant B resigns, Defendant A was ordered to pay the price by giving a contract for various construction works, etc. after Defendant A was elected, and filed a complaint with Defendant A as a violation of the Public Official Election Act. On August 12, 2016, H, upon receipt of an investigation at the K Line, provided that “Defendant B cooperates with Defendant B so that he/she may withdraw from the office and make a press conference for Defendant A, and that, upon receipt of a press conference for Defendant A, Defendant A did not reply to Defendant B even after asking Defendant A whether he/she received money from Defendant A.”

④ On August 12, 2016, Defendant B was investigated by the K Line on the part of the K Line, and proposed that Defendant A resigned from the F Candidate and would accept a request from the head of the Gun later if the Defendant would be the head of the Gun for the purpose of Defendant A, and that Defendant B was not directly paid or promised for the waiver of the call.

⑤ On the other hand, around August 16, 2016, H filed an accusation against Defendant A as a violation of the Public Official Election Act with the purport that “Defendant A provided KRW 100,000,000 to the metropolitan investigation team of the Election Commission at the Standing Committee of the Republic of Korea on April 7, 2016, when the members of the Gyeongnam branch of the Gyeongnam branch of the Gyeongnam-nam branch of the Republic of Korea were to provide KRW 1 million through M during the three-day visit of the members of the Gyeongnam branch of the Gyeongnam branch of the Gyeongnam branch of the Republic of Korea.” On the same day, Defendant A was present at the metropolitan investigation team at the above metropolitan investigation team and stated that Defendant A provided Defendant B with KRW 2 million on the same day.” However, the statement that Defendant A provided Defendant B with meals.

④ On August 17, 2016, K Line passed an investigation into H and Defendant B, etc., the first accusation case that H voluntarily closed on the ground that Defendant A’s suspicion is not recognized.

7) On August 18, 2016, H submitted to the Supreme Prosecutors' Office a petition stating the contents similar to the above accusation, which was presented to the Supreme Prosecutors' Office, and confirmed on September 6, 2016, that Defendant A was present at the investigation of the Changwon Branch Office and asked Defendant B about whether or not he had provided money and other valuables, etc. in return for his resignation from office. The first answer was made by the prosecutor who asked Defendant B to ask Defendant B for the question of whether or not he had provided money and other valuables, etc. in return for his resignation from office, and that Defendant B had already received KRW 2 million in return for his renunciation of the instant election from Defendant A and for his invitation to the press, and that he was aware that he had received KRW 8 million after the election.

④ On October 5, 2016, Defendant B also appeared at the first witness examination by the K branch office, and stated that “ unlike the statements previously made at the K branch,” was paid KRW 2 million in cash in relation to the renunciation of the instant election campaign and the support of Defendant A.” Defendant B’s second witness examination, and Defendant A continued to receive two million won in return for the renunciation of the going-out and going-out from the Defendant.

① On June 2016, 2016, 12.6, H had been present as a witness on the second trial date of the lower court, and stated to the effect that, around June 2016, Defendant A had been aware of the fact that Defendant B had given KRW 2 million to Defendant B, before submitting a written accusation on the B’s line. Defendant B also stated to the same effect in the trial.

(10) As above, around August 11, 2016, Defendant H had an obvious intention to cut off Defendant A from F from herF position, and repeatedly made a petition to the Preliminary and the Supreme Prosecutors' Office by August 18, 2016. If Defendant B knew of the receipt of KRW 2 million from Defendant B around June 2016, Defendant H, as a matter of course, included the fact of the receipt of KRW 2 million in the contents of the petition and stated it. Nevertheless, Defendant H did not include the receipt of KRW 2 million until the petition submitted to the Supreme Prosecutors' Office on August 18, 2016. On August 12, 2016, Defendant B asked Defendant B to the effect that Defendant B did not receive money from Defendant B, and Defendant B’s statement that Defendant B received KRW 600,000,000 from Defendant B, and Defendant B did not receive money from Defendant B until 20,016.

11. If Defendant B received KRW 2 million from Defendant A, the credibility of Defendant B’s statement is very important in determining the credibility of the entire statement made by H and Defendant B. Since Defendant B did not talk with H until August 18, 2016, and there was an opportunity or circumstance to talk between August 18, 2016 and September 6, 2016, and Defendant B received KRW 2 million depending on whether the opportunity or circumstance would be able to obtain the credibility of Defendant B’s statement. As such, whether the time when Defendant B mentioned 2 million won in relation to the receipt of KRW 2 million in the entire statement made by H and Defendant B is very important in determining the credibility of the entire statement made by Defendant B. As long as the time when the statement was clearly stated in the statement of KRW 2 million in determining the credibility of the statement made by H and Defendant B, “B” cannot be acknowledged as having received the credibility of the statement made by Defendant A from Defendant A.

(12) In addition, H made a statement to the effect that in return for the resignation of the candidate for the first time in the original court, Defendant B gave the same KRW 10 million to Defendant B. However, Defendant B made no statement as to the receipt of additional money and valuables in return for the resignation of the candidate at the time of the prosecutor’s investigation. On the other hand, Defendant B responded to the court of the original court that “it is well known that there is a fact that Defendant A promised to receive not only KRW 2 million but also KRW 8 million from Defendant A in return for the resignation of the candidate at the time of the prosecutor’s investigation.” This part of the statement made by Defendant B and Defendant B is about the fact that Defendant B experienced, so it is more possible to make a statement, and Defendant B’s attitude is merely about the fact that Defendant B received KRW 8 million from Defendant B and it is merely a mere fact that Defendant H made a simple statement. However, Defendant B had no choice but to know that it is more than KRW 1 million.

(13) Until August 18, 2016, H with an intention to fall off with Defendant A was repeatedly accused of violating the Public Official Election Act by repeatedly filing a complaint with Defendant A, but did not talk about the fact of receiving KRW 2 million only on September 6, 2016. Defendant B also stated the fact of receiving KRW 2 million from October 5, 2016. Defendant B also stated that up to eight million, the relationship with Defendant B and H and their telephone conversations were not stated by Defendant B (H presented the above complaint about KRW 60,00,000,000,000). From August 11, 2016 to August 201, 2016, H conspiredd Defendant B with Defendant B to make an average of KRW 16,000,000,000,000,000,000,0000,000,000,000,000,00,000.

H. Since the statement made by H and Defendant B in an investigative agency and court is not reliable, and the remaining evidence submitted by the prosecutor alone is insufficient to acknowledge the facts charged in the instant case, the facts charged in the instant case against the Defendants constitutes a case where there is no proof of a crime. In this regard, the court below is just to render a verdict of innocence against the Defendants, and there is no violation of the rules of evidence or any

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim So-young

Completion of Judge

Judges’ Conciliation Exchange