In a case where a defendant who is a candidate for the election of the head of a local government was prosecuted for violating the Public Official Election Act by publishing false facts in election campaign bulletins by preparing and submitting a submission of criminal records with the omission of some criminal records to the competent election commission for the purpose of election, the case holding that the conviction may be found on the ground that the publication of false facts about criminal records and false facts

In a case where a defendant who is a candidate for the election of a head of a local government was prosecuted for violating the Public Official Election Act by publishing false facts in the election campaign bulletin by preparing and submitting a written submission of criminal records showing some criminal records omitted to the competent election commission for the purpose of election, the case affirmed a guilty verdict on the grounds that, in full view of all the circumstances, such as the fact that the defendant did not have some criminal records due to a criminal record response letter issued by the chief of a police station, but the defendant who had multiple times of candidate and election experience appears to have accumulated considerable knowledge about the election under the Public Official Election Act, it can be recognized as intentional publication of false facts about criminal records, at least dolusent intention, and it can be recognized as having published false facts for the purpose of election in light of the fact that the defendant prepared a written submission that omitted part of criminal records, and prepared a written submission that omitted the criminal records, but only 1,00

Articles 49(4)5 and 250(1) of the Public Official Election Act

Defendant

Defendant and Prosecutor

Egypts

Law Firm Won-ju et al.

Chuncheon District Court Decision 2014Gohap115 decided December 31, 2014

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 900,000.

When the defendant fails to pay the above fine, the defendant shall be confined in the old house for the period calculated by converting 100,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of facts and misapprehension of legal principles

Since the Defendant did not know the fact that he had omitted criminal records of the violation of the Framework Act on the Construction Industry and the violation of the Construction Technology Management Act, there was no intention to publish false facts, and as a result, there was no purpose of election, and the evidence submitted by the Prosecutor alone cannot be deemed as having been proven for guilt without any reasonable doubt, the lower court erred by misapprehending the legal doctrine on the burden of proof, or by misapprehending the legal doctrine on the burden of proof, thereby convicted

(2) Unreasonable sentencing

The suspension of sentence of a fine of KRW 900,000 (the suspension of sentence of a fine of KRW 900,000) is excessively unreasonable.

(b) Prosecutors;

The sentence imposed by the court below is too unhued and unreasonable.

2. Determination

A. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

(1) According to the evidence duly admitted and examined by the lower court and the lower court, the following facts can be acknowledged.

(A) The process of publishing false facts

On April 16, 2014 and May 20, 2014, the Defendant issued a criminal record reply to a candidate for public office to the head of ○○○ Police Station, and there was an error in the reply letter, and the Defendant did not appear to have the record of having been sentenced to a fine of KRW 2 million on the violation of the Framework Act on the Construction Industry and the violation of the Construction Technology Management Act (hereinafter “instant criminal record,” and “instant crime”). The Defendant drafted and submitted the submission of a criminal record certificate, without omitting the instant criminal record as stated in the reply letter, to the election commission.

(B) The trial process on the instant crime

On November 24, 2006, a prosecutor prosecuted Defendant 2 on charges of violation of the Public Official Election Act, violation of the Framework Act on the Construction Industry, and violation of the Construction Technology Management Act. On May 23, 2007, the court of first instance convicted Defendant of all the facts charged, and sentenced Defendant of a fine of KRW 5 million in relation to the violation of the Public Official Election Act, and a fine of KRW 2 million in relation to the instant crime (2006Da10101). The Defendant appealed against this, the Seoul High Court, which was the appellate court, reversed the part of the first instance judgment on September 7, 2007, and dismissed the appeal against the instant crime (207No1264). The Defendant appealed to the appellate court judgment on March 13, 2008 (207No1264). However, the Supreme Court dismissed the Defendant’s appeal from the appellate court on March 13, 2008 (207Do174, etc.).).

(C) Career and history of the defendant

From 202 to 2014, the Defendant was running for the ○○ market election four times, and passed away in 2002 and 2006, but was elected in 2010 and 2014. The Defendant was subject to criminal punishment in violation of the Public Official Election Act two times in the process. Among them, the content of the crime of violating the Public Official Election Act stated in the above (B) is that the Defendant submitted a property declaration omitting some property for the purpose of election and published false facts.

(D) Details of the instant crime and the relationship between the Defendant and Nonindicted Party 1

The contents of the instant crime were falsely reported by the Defendant in collusion with Nonindicted Party 1 on the current status of Nonindicted Party 2’s technician who was operated by himself, and in that process, Nonindicted Party 1 borrowed career career career from any other person. Nonindicted Party 1 accused the Defendant at an investigation agency along with the charge of violating the Public Official Election Act. Nonindicted Party 1 attempted to conduct an election campaign while operating the Defendant and the company in the past, but Nonindicted Party 1 accused the Defendant that he was damaged by the Defendant even though he had attempted to engage in an election campaign.

(2) First of all, the facts acknowledged as above are as follows: ① the disadvantage of a fine of one million won or more in the case of a crime of violating the Public Official Election Act, which is imposed upon the Defendant, appears to have accumulated considerable knowledge about the candidate and election. ② The crime of this case was initiated by accusation of Nonindicted Party 1, who has malicious testimony, and the Defendant had an appraisal of considerable amount of money (at the original trial date, the Defendant filed a false accusation against the crime of this case, and the Defendant was detained on the ground that he was not a major shareholder). ③ The Defendant merely stated that he was punished for the crime of this case on the ground that he was not guilty on three occasions throughout his life, and that it was hard to view that the Defendant was forgotten with criminal records of this case since he was sentenced to a fine of 1 million won or more in the case of a crime of violation of the Public Official Election Act (at least 7 times before the initial trial date, after being aware of the fact that he was sentenced to a fine of this case’s violation of the Public Official Election Act).

(3) Next, we examine the following facts: ① the Defendant’s election campaign bulletin prepared by the Defendant, which omitted the instant criminal records, was less than 2 Defendant’s previous convictions, but less than 10,00 Defendant’s prior convictions; ② the number of prior convictions published by the competition candidate is the same as the Defendant, and ② the number of prior convictions published by the competition candidate is generally accepted by the general public; ② more than 10,00 prior convictions are recorded in the election campaign bulletin, and more than 2 are recorded in the election campaign bulletin, which would have a significant difference in the elector’s receipt and more than 2 criminal records, may be deemed to have served as an unfavorable factor to the election. ③ The criminal record of the candidate in the election campaign for public office is the important standard for the elector to choose candidates, and the majority of the electors of the relevant constituency receive the election campaign bulletin omitted from the instant criminal records from the Defendant’s election campaign bulletin; ④ The Defendant’s submission of the aforementioned criminal records to the election campaign report without any specific error that could have an adverse effect on the Defendant’s reply to the candidate.

B. Determination on the assertion of unfair sentencing

The crime of this case is not an active act of concealment by the defendant, but an error of a reply to the omission of the criminal records of this case due to an error of public documents, and it is hard to correct the error. There are circumstances to take into account the motive and circumstances of the crime. The opposing power is election in the situation where the omission of criminal records is a serious issue through media and social relations network services (SNS). The criminal record of the omission of the defendant is similar to that of the public announcement, and the criminal record of the crime of violation of administrative regulations is not a crime of poor quality to the general public to the extent that it is not necessary to conceal it. The defendant has faithfully held office in the 000 market, and it is more favorable for the citizens to take advantage of the above favorable circumstances, such as the fact that it is difficult to accept the defendant to write or publish the candidate's property status in the election campaign bulletin and book-type election campaign bulletin, payment of military service, property tax, etc., and criminal records, etc. It is reasonable to view that the defendant's act is more likely to have made the candidate's election and correct the same motive of the crime.

3. Conclusion

Since the prosecutor's appeal is well-grounded, the judgment of the court below shall be revoked in accordance with Article 364 (6) of the Criminal Procedure Act, and the following judgment shall be rendered again after pleading

Since each corresponding column of the judgment below is the same as that of the judgment below, it shall be quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Relevant legal provisions concerning criminal facts;

Article 250(1) of the Public Official Election Act (Selection of Fines)

2. Invitation of a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

3. Order of provisional payment; and

Article 334(1) of the Criminal Procedure Act

1. Scope of punishment: Fines of 50,000 to 30,000 won;

2. Scope of recommended sentences according to the sentencing criteria;

[Determination of Type] 【Publication of False Information on Election Crimes / Public Notice of Candidates / Non-Party 2 (Publication of False Information for Election Purposes)

[Special Mitigation] The publication of false facts or the degree of solicitation of candidates is weak;

[Scope of Recommendation] Fine of KRW 700,000 to KRW 3 million (Discretionary)

3. Determination of sentence: A fine of KRW 900,000 (see, e.g., part regarding the determination of an unfair sentencing).

Judges Jindo (Presiding Judge)