Defendant 1 and eight others

Defendants and Prosecutor

Park Ho-ho and one other

Attorney Lee Won-gu et al.

Suwon District Court Decision 2006Gohap486, 593 (Consolidation) Decided January 24, 2007

All parts of the judgment of the court below against Defendant 1, 2, 4, 5, 6, and 8 shall be reversed.

Defendant 2 shall be punished by a fine of KRW 5,00,00, KRW 4,5, and KRW 6 by a fine of KRW 800,000 and KRW 8 by a fine of KRW 3,00,000, respectively.

If the above Defendants did not pay the above fines, the above Defendants shall be confined in the workhouse for a period calculated by converting the amount of KRW 50,000 into one day.

Three days of detention days before the sentence of the lower judgment is made shall be included in the period of detention in the workhouse in which each of the above fines against Defendant 4,5, and 8 is served.

To order the above Defendants to pay the amount equivalent to the above fines.

Of the facts charged in the instant case, each of the violation of the Public Official Election Act due to the holding of stone gymnasium parks against Defendants 1, 2, and 4, and the opening ceremony of bottled Citizens Park is acquitted.

Defendant 3, 7, and 9’s appeal and prosecutor’s appeal against the above Defendants are dismissed, respectively.

1. Summary of grounds for appeal;

A. Defendants

(i)misunderstanding of facts and misapprehension of legal principles

㈎ 원심 판시 범죄사실 제1의 가., 나.항과 관련하여

(1) mistake of facts

The court below found Defendant 2, 4, 5, 6, and 8 guilty of this part of the facts charged that Defendants 2, 4, 6, and 8 conspired with the rest of the Defendants to plan the above materials in relation to the election campaign of Defendant 2, 4, 5, 6, and 8, to prepare the interview materials, the interview materials, and the interview materials, and Defendant 2, 3, 4, 5, 6, and 7 conspired to prepare the broadcast debate materials, and the above Defendants who are public officials participated in participating in the planning of the election campaign for Defendant 2. Even if Defendant 3, 5, and 7 prepared the materials at Defendant 8’s request, the court below did not err by misapprehending the facts that Defendant 2, 4, and 6 conspired with the rest of the Defendants, or did not participate in the preparation of the above materials, and in particular, Defendant 2 did not instruct them to prepare such materials. Nevertheless, the court below erred by recognizing that the Defendants conspired to prepare such documents under the implied instruction or permission of Defendant 2.

(2) Legal principles

Whether the election campaign constitutes an election campaign

Since Article 86 (1) 2 of the Public Official Election Act prohibits a public official from participating in the planning of an election campaign or in the implementation of such planning and punishs a violation, Defendant 2, 4, 6, 3, 5, 7, and 8’s act of responding to the interview of the press in order to be subject to punishment under the Public Official Election Act, Defendant 2’s act of responding to the interview of the press in order to be subject to punishment under the Public Official Election Act, and since the press can publish the interview of the candidate from 60 days before the election day to the first day of the election period, the act of responding to the interview of the media as a matter of course is naturally allowed, and the act of responding to the interview of the press is a passive and non-Planning, and it does not fall under the planning of an election campaign. Nevertheless, the court below erred by misapprehending the legal principles that the Defendants’ act as stated in this part of the facts charged was participating in the planning of an election campaign or participated in the implementation thereof.

(B) Whether Article 86(1)2 of the Public Official Election Act and joint principal offenders are established

In Article 86 (1) 2 of the Public Official Election Act, a public official's act of participating in the planning of an election campaign or in the implementation of such planning is naturally premised on another person's election campaign, and since the public official's act is similar to the so-called self-denunciation that the public official directly executes, other persons can become a principal offender or an indirect principal offender, and it cannot be a joint principal offender or an indirect principal offender. Even though each of the above acts in the decision of the court below rendered by Defendant 3, 4, 5, 6, and 7 constituted an act of participating in the planning of an election campaign, etc., even though the above acts constituted an act of participating in the planning of an election campaign, the above Defendants who are public officials cannot be a joint principal offender with Defendant 2 or Defendant 8 who is not in the position of a public official

㈏ 원심 판시 범죄사실 제2항과 관련하여

(1) mistake of facts

The election countermeasure committee decided by the court below shall be organized as part of the above Gyeonggi-do election countermeasure committee for the purpose of linking the election campaign of the Do Governor, Do Council members, Si council members, and the election campaign of the head of Si/Gun, and in fact, Nonindicted 2, who is the chairperson of the election countermeasure committee for the Gyeonggi-do party, commissioned its members as members of the above Gyeonggi-do election countermeasure committee for the Gyeonggi-do party, and let them act as members of the committee in the capacity of the committee in charge of the election countermeasure committee for the National Assembly members, and let them to increase the ratio of votes on the candidates belonging to the Korea-do party including Defendant 2. In addition, Defendant 2 established the planning committee as the internal organization of the election campaign office, which is the official election campaign organization, and had 18 persons included in the planning committee to plan and carry out election affairs. Of these, the seven persons including Defendant 9, from among them, were commissioned as members of the election countermeasure committee in the form of a formal election organization, and did not actually act as members of the above committee. In fact, the above committee was found guilty of mistake of the facts charged.

(2) Legal principles

The above Defendants commissioned members under the name of Nonindicted Party 2 in accordance with the official text of the above Gyeonggi-do Party, which concluded that the form of the Central Party or Gyeonggi-do Party was lawful in the election countermeasure committee established at the above level of Gyeonggi-do Party. The above Defendants believed that the above election countermeasure committee was permissible under the Public Official Election Act as an organization belonging to the above Gyeonggi-do Party, and there was justifiable reason for the above Defendants to believe that the above Defendants were identical to this, the lower court erred by misapprehending the legal doctrine.

㈐ 원심 판시 범죄사실 제3의 가., 나.항과 관련하여

(1) mistake of facts

These stone gymnasty parks and bottle citizen parks development projects had significant interest not only in the budget of the citizens but also in the Ansan-si Council. During that period, the question of when the completion date has been extended due to changes in the business plan or design, suspension of construction, civil petition of the citizen or related organizations, etc., there was a crymnasing that the above two parks have been opened until the end of May 2006 at various meetings, including the explanation of the budget proposal and corrective speech for the City Council, etc. The above two parks have been progress well by consultation with the staff in charge of the early of the same month, and thus, they failed to open the crynasty for the purpose of correcting the facts, and thus, they cannot be opened at the beginning of the same month, and the court below found the above 200-day opening of the park as a mistake in the misapprehension of the legal principles and did not make it impossible for the above 20-day opening of the park.

(2) Legal principles

In relation to the above two parks, the court below believed that the opening ceremony was held in accordance with the answer that it is possible to hold it, and there was a justifiable reason to believe that the opening ceremony does not violate the Public Official Election Act, and the court below erred in finding the defendant guilty of this part of the charges without any excessive error.

【Unjustifiable sentencing

㈎ 피고인 1

Since May 18, 2006, Defendant 2, the mayor, registered as a candidate for the election in the Ansan market, the above Defendant was planned and promoted on behalf of the mayor from around May 18, 2006. The above two parks were opened and promoted since they were planned and promoted. The facts of opening the two parks were known 4 days before they were non-existent, which was widely publicized to citizens and sent the invitation letter, and the construction that was not completed was minor, and thus, did not have to postpone the opening ceremony for this reason. In light of the fact that the person in charge of holding the opening ceremony in the Gyeonggi-do Election Commission did not go against the Public Official Election Act, it was unfair that the above Defendant was sentenced to a fine of KRW 80,00,000, which was sentenced by the court below, in light of the fact that the opening ceremony was not easy to be widely publicized to citizens

㈏ 피고인 2

The reason is that the above defendant's act of entering the facts of the crime of this case cannot be deemed to have been helpful to the above defendant because he did not work for the election of the above defendant in a more strict and thorough manner in the election management, and that the above defendant's act is against his depth in the public opinion poll, and that the above defendant's act has already been able to take place in the public opinion poll of the above defendant in the public opinion poll of the above defendant, and that the defendant's act of promoting the promotion and improvement of the juvenile-related fields, the promotion and improvement of the public arts projects, and the promotion of the public arts projects in the public opinion poll of Ansan-si market for seven years since the election of the above defendant was held in the public opinion poll of the above defendant, and this case cannot be deemed to have been carried out under the above defendant's planned intention. Furthermore, since the members of the election countermeasure committee did not act for the above defendant's election, each act of entering the facts of this case's crime of this case cannot be seen to have influenced the above defendant's election, and the above defendant's business should be more successful.

㈐ 피고인 3

In full view of the facts that the above defendants received several official commendationss for 32 years, and around December 2005, the presidential official was sealed in good faith by winning the presidential commendation, etc., and the relation between the defendant 2 and the defendant 8 was difficult to refuse the request by the defendant 8 in light of the relationship between the defendant 2 and the defendant 8, and the fact that the facts were not known that it was illegal, but it was in profoundly against this, etc., the punishment of fine of KRW 80,000,000, which the court below sentenced to the above defendant is too unreasonable.

㈑ 피고인 4

In full view of the fact that the above defendant was in office as a public official for 27 years and was able to receive official commendation several times, and in this case, the above defendant was not intended by the above defendant, the punishment of 80,000 won, which the court below sentenced to the above defendant, is too unreasonable.

㈒ 피고인 5

In full view of the fact that the above defendants, while serving as public officials for about 20 years, have been doing exemplary public service by receiving the official commendation from the Gyeonggi-do Governor, was difficult to refuse the request from the commercial defendant 3 and the defendant 8 who was close to that of the above employees, and cooperation was made without recognizing the illegality of ordinary dismissal. However, in full view of the above facts, the punishment of fine of KRW 80,000,000, which the court below sentenced to the above defendant is too unreasonable.

㈓ 피고인 6

In full view of the fact that the above defendants, while serving as public officials for twenty-four years, have engaged in exemplary public service life, such as receiving the official commendation from the Gyeonggi-do Governor, this case is not by the above defendant's intention, but by giving more careful attention to prevent any violation of the law in the future, and that it is the most likely that the above defendants should support locks and wifes, etc., the punishment of fine of KRW 80,000,000, which the court below sentenced to the above defendant is too unreasonable.

㈔ 피고인 7

In full view of the fact that the above defendant is in office as a public official for the past 20 years and has been engaged in exemplary public service life, such as receiving official commendation several times, this case is not by the intention of the above defendant, but by fluoring to pay more careful attention so that it does not violate the law in the future, and the fact that the defendant must support his wife and his two daughters, etc., the punishment of fine of KRW 80,000,000, which the court below sentenced to the above defendant is too unreasonable.

㈕ 피고인 8

In full view of the fact that Defendant 3 et al.’s review of the draft prepared by the above Defendant did not properly recognize the illegality of the review, and asked it to do so, and that it is hard to see that the depth of the instant case is unfolded and that the law should not be followed again, and that it is the most likely that the Defendant must support the mother, wife, and consciousness, the punishment of the fine of KRW 3 million imposed by the above Defendant is too unreasonable.

㈖ 피고인 9

In full view of the fact that the above defendant served as the chief director of the Siwon, Ansanyang YMCA, served as an armed rioter at the Anyang Korea Emyptian conference, and is a person who has lived in good faith, and that he accepts the duties of the chief director of the prior subrogation in order for Defendant 2, who is being well led by Defendant 2 upon the request of Defendant 2, who is the backer, to serve for the aged, and that he is highly careful attention to prevent any violation of the law in the future, the sentence of fine of KRW 80,000, which the above defendant sentenced to the above defendant is too unreasonable.

(b) Prosecutors;

(i)Legal principles

㈎ 공소사실 중 피고인 2, 6, 5, 8에 대한 피고인 2의 프로필 재작성 등을 내용으로 하는 선거운동의 기획에 참여 및 그 실시에 관여함으로 인한 공직선거법위반의 점

Defendant 2’s act of taking Defendant 2’s existing professional pen at the age of 60 to 59, and the final academic background into “Seoul Metropolitan Government University University Master’s Master’s degree of urban administration” was determined by selecting a specific part favorable to obtaining support from the right holder and promoting it, concentrating it, Defendant 2’s intent and goal for winning Defendant 2’s election by packaging the households differently in order to ensure that Defendant 2 does not raise the age. Although Defendant 2 constituted the planning of election campaign by specifying that it is an election campaign, the lower court erred by misapprehending the legal doctrine by deeming that it is merely an amendment to the personal personal history, and that it is not an act of participating in the planning or implementation of election campaign.

㈏ 공소사실 중 피고인 2, 4, 8에 대한 선거일 후 향응제공으로 인한 공직선거법위반의 점

Article 118 subparag. 1 of the Public Official Election Act prohibits a candidate, his family, or the executive staff member of a political party from providing money, goods, or entertainment to the Gu residents for congratulationsing or holding other return courtesys with respect to the failure to be elected after the election day. Here, the electorate is sufficient to be a resident in the constituency, whether he is an elector, or not he exercises his right to vote in the election, and whether he was an election campaign for a candidate. It is also deemed that the above provision of the Act is only a "election resident," and it does not have any limit, and it does not have any limit, and the purport of the provision of the Act is to prevent harm such as increase in election expenses and subsequent purchase. Accordingly, the above provision of the Act is a general provision punishing a candidate where the candidate provides money, goods, or entertainment to the "election district", which is established, and there is no reason to limit the "person who provided money, goods, or entertainment to the "election campaign" from the "election district," and there is no reason to interpret the above provision of the Act as a "person who provided for election campaign or other similar act."

【Unjustifiable sentencing

In this case, Defendant 2’s election campaign run for the above Ansan market, including Defendant 2’s instruction to most departments in Ansan-si, through the vision room and planning and budget, and preparation of data related to election campaign, etc., the case is a systematic and large-scale election for which many public officials under their jurisdiction are mobilized, and Defendant 2 is expected to have personnel rights of public officials under his jurisdiction participate in election campaign and actively participate in the planning and implementation of election campaign, thereby making subordinate public officials as a large-scale criminal law. In addition, Defendant 2’s election campaign organization is established as the head of the headquarters for the purpose of inducing Defendant 2 to support himself, and the head of the organization, area maintenance, etc. with which he can exercise influence in Ansan-si area. The Defendants’ election campaign organization is organized, and the entertainment is not good by inviting persons related to it over 11 times after completion of election, and the rest of the Defendants’ election is likely to interfere with the evidence destruction of evidence by providing them with the formation of a fine, etc., which is absolutely favorable to each of the public official under the election market.

2. Determination on the grounds for appeal

A. As to the defendants' assertion of mistake of facts and misapprehension of legal principles

(1) Part of the crime No. 1-A, (b) (Preparation of interview data and candidate debate data) of the judgment of the court below

㈎ 원심 및 당심이 적법하게 채택하여 조사한 증거들에 의하면, 다음과 같은 사실을 인정할 수 있다.

① On April 19, 2006, Defendant 2, who was employed as the Ansan market, was registered as a preliminary candidate to close to the election for the 4th local election campaign, which was carried out at the same time, on April 28, 2006, but was elected as the candidate for the Kyang market on April 28, 2006, when he returned to the market, he was in office in the Kyang market before he was registered as the candidate for the Kyang market at the competent election commission on May 17, 2006. Defendant 8, who was working as the Kyangyang market secretary, retired from the above post on March 18, 2006 on the grounds of his election campaign at the Kyang market, was able to work as a representative for the head of the Kanyang market office in combination with Defendant 2’s election campaign.

② When Defendant 2 receives a request for an interview from various media companies during his/her office, he/she had the relevant department prepare the interview data after being reported to Defendant 2 via the interview room, and the interview data prepared therefrom has been processed in a way that they are distributed to the relevant media organization after having been reported in writing to Defendant 2 and passed the approval. Defendant 4, Defendant 6, as the head of the letter office, and Defendant 6, have been in charge of the overall affairs of the letter office. Most of the interview data were prepared from the planning and budget of the head of the letter office, Defendant 5, as the head of the letter office, and Defendant 2, as the head of the group. Defendant 2, with a mark “V” or “OK” on the letter-reported interview data, have been subject to prior resolution by means of indicating “revision” when approval or revision is necessary.

③ On May 12, 2006, Defendant 2’s holding office: (i) received a request for an interview of a mid-to long-term interview as indicated in the judgment of the court below with respect to a candidate for the Ansan market in the Ansan market room; (ii) reported and delivered the above interview to Defendant 2 in advance; and (iii) Defendant 2 respondeded to the above interview by referring to the above materials, and published the above interview materials as Defendant 2’s interview articles on May 12, 2006.

④ Around May 9, 2006, Defendant 8 received a written interview from an Ansan civic newspaper, and Defendant 5 asked Defendant 5 to prepare the interview data. Defendant 5 prepared the interview data and sent it to Defendant 8 and 6 by e-mail, and Defendant 8 confirmed that the interview data obtained Defendant 2’s approval, distributed the interview data to the Ansan civic newspaper reporters on May 19, 2006, and published the above interview data as Defendant 2’s interview news.

⑤ The main contents of Defendant 5, etc. include detailed contents, such as the specific area, budget, progress, future progress, and future plan for the use of the site of the Gu Livestock Sanitation Laboratory, etc., based on the following: (a) Defendant 2’s use as reference materials in the debate held by the Election Commission as well as the distribution of contents to the media as pledge contents: (b) Defendant 2’s use as reference materials in the debate held by the Election Commission as well as the contents of the press.

(6) On the other hand, on May 2, 2006, Defendant 2 received from the Anyang Broadcasting through the Annyang Police Station on May 22, 2006, an application for the rent of the said Annyang Broadcasting Station was filed to hold an election debate in the Annyang Broadcasting Station. Defendant 2 instructed employees of the Annyang Broadcasting Station or Defendant 8 of the said site to prepare for the said debate. Defendant 4’s business pocket book on May 8, 2006 stated “preparation for an election debate”.

④ On May 16, 2006, Defendant 8 asked Defendant 5 to prepare materials to prepare the above debate. Defendant 5 sent materials to Defendant 6 on May 11, 2005, from May 16, 2006 to May 19, 2006 on the pending issues, which may be at issue in an election of the Ansan market, from 17 public officials of Ansan-si, to 24 occasions. After collecting materials, Defendant 8 sent the materials to Defendant 5 on May 11:1, 2006, and then sent the above debate materials to Defendant 6 by e-mail.

④ On May 19, 2006, Defendant 8 received a question about the above candidate’s debate from the competent election commission. Defendant 3 and Defendant 5 had the public officials of the relevant department attend school on May 20, 2006, May 20, 2006, and had them prepare and submit the answer data, etc. about the above questionnaire, and collect them together, and deliver to Defendant 8, who found the above planning and budget office on May 21, 2006, about about 26 copies of “the debate data on candidates for the two markets” and about 50 copies of “the debate data (individual question) on candidates for the two markets.”

9 Defendant 2 possessed the above debate materials and participated in the debate of candidates for the Ansan market held on May 2, 2006, and participated in the debate. Defendant 8, etc. partially compilationed the “data on the candidate’s debate (public pledge) for the Gyeyang market” and distributed them to the press.

(10) In each of the discussions above, the following specific figures include the purpose, outline, progress, required budget, and measures for securing budget, etc. of each pledge, based on the content of each pledge, including the matters included in the interview data, such as the creation of a green park in the site of the broadcast video industry support center and the Gu livestock sanitary laboratory, and the content of each pledge.

1) Although Defendant 2’s election campaign office was organized with a separate planning team, the planning team members, such as the head of the planning team, were unable to fully know about the preparation of interview data and pledge data, and the above planning team mainly took charge of Defendant 2’s affairs on the election day. Except Defendant 8 at the above election campaign office, Defendant 2 did not have human resources to perform duties, such as preparation of pledge data.

(12) Defendant 8 was preparing for election by accumulating data related to some elections at the time of Defendant 8’s work as a campaign secretary, but there was no written report from Defendant 2, and it was virtually impossible to prepare each of the interview data and the debate data with only the above data.

㈏ 판단

① The Defendants’ conspiracy

In relation to co-offenders who jointly process two or more persons in a crime, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no process of the whole conspiracy, if the combination of doctors is made in order or implicitly through several persons, the conspiracy relationship is established, and even if there was no direct evidence therefor, it can be recognized in accordance with the circumstantial facts and empirical rules. As long as such conspiracy was made, even if there was no direct evidence, those who did not directly participate in the act of the commission are held liable for criminal liability as co-principal against the other co-offenders’ acts (see Supreme Court Decision 2001Do606, Dec. 12, 2003).

Since Defendants 2, 3, 5, 7, and 8 and each of the above data (Sweet interview data and debate data) are disputed that there was no contest for Defendant 2, 3, 5, 7, and 8, the paper examines whether Defendant 2, 3, and 6 are recruited or not.

먼저 피고인 2의 공모의 점에 대하여 보건대, 위 인정사실에 의하면 다음과 같은 사정을 엿볼 수 있다. 즉, ㉮ 앞서 본 시장 비서실에서의 결재 과정에 비추어 볼 때, 피고인 2가 사전에 비서실을 통해 중부일보측이 안양시장 후보자로서의 위 피고인에게 인터뷰를 요청하였다는 사실 및 평소 이런 업무를 담당한 피고인 5 등이 작성한 인터뷰 자료를 보고 받았고, 실제로 위 인터뷰 자료를 이용하여 인터뷰에 응하였던 점, ㉯ 평소 안양시장인 피고인 2에 대한 언론사의 인터뷰 요청 및 안양시 공무원 등에 의하여 작성된 인터뷰 자료의 결재 과정 등에 비추어 피고인 8이 사전에 피고인 2의 결재를 받지 않고 안양시민신문에 피고인 2에 대한 인터뷰 기사가 게재되게 한 것으로 보기는 어려운 점{ 피고인 8도 정무비서를 그만두기는 하였으나 책상은 그대로 있어 수시로 비서실을 드나들었고, 안양시민신문 지면 인터뷰 자료와 관련하여 정치적인 부분은 자신이 작성하고 행정적인 부분은 피고인 6에게 보완을 부탁하였는데, 피고인 2가 평상시 인터뷰 기사를 사전에 챙기는 꼼꼼한 성격으로 그의 결재가 있어야 배포되고 있었으므로, 안양시민신문 인터뷰 자료도 사전에 보고를 받았을 것으로 보이고, 그 후 전화로 피고인 6에게 인터뷰 자료가 완성되었는지 확인하면서 위 피고인으로부터 배포해도 좋다는 말을 듣고 인터뷰 자료를 공소외 1 기자에게 송부하였다고 진술하고 있다(증거기록 1660, 1661쪽)}, ㉰ 위 각 인터뷰 자료에는 안양시의 시급한 현안, 신·구도시간의 격차 해소방안 등을 주제로 하여 구체적인 면적, 예산 등 세부적인 내용이 기재되어 있어 이를 활용하여 대면 또는 서면 인터뷰에 응한 피고인 2로서는 위 각 인터뷰 자료가 안양시 공무원들에 의하여 작성되었음을 인식하였을 것으로 보이는 점, ㉱ 피고인 2가 비서실 직원 또는 피고인 8에게 위 후보자 토론회의 준비를 지시한 바 있고{특히, 피고인 8은 처음 검찰에서 조사를 받으면서 위 위 각 자료(인터뷰 자료 및 토론회 자료)를 자신이 개인적으로 다른 피고인들에게 부탁하여 작성하게 된 것이지 피고인 2가 관여한 바 없다고 하였다가 2회 진술시 나머지 피고인들에 대한 미안함, 자신의 고민 등을 털어놓으면서 토론회 자료의 작성 경위에 대하여, 2006. 5. 19.경 안양시동안구선거관리위원회로부터 같은 달 22. 실시되는 안양방송 주관의 안양시장 후보자 토론회에 참석하라는 공문과 질의서를 받고 기획팀장 공소외 3에게 답변 자료를 준비하도록 지시한 다음, 유세에서 돌아온 피고인 2에게 여러 사람이 모인 자리에서 질의서를 보여주며 답변 자료를 준비하고 있다고 보고하였다가, 피고인 2로부터 행정도 제대로 모르면서 그걸 다루느냐, 시간 낭비하지 말고 다른 일이나 잘하라는 핀잔을 듣었는데, 속으로 그 준비를 맡길 데가 있는가보다라고 생각하였으며, 그 후 상황실에서 피고인 3으로부터 전화로 피고인 2가 뭘 좀 만들라고 하는데 자신과 상의하라고 하였다는 전화를 받고 기획예산과장인 피고인 3에게 토론회 자료 준비 지시가 내려갔구나 하고 생각하였고, 그 후 피고인 3, 기획예산팀장인 피고인 5가 타부서의 것까지 취합하여 답변자료를 만들게 된 것이라고 진술하고 있다(증거기록 1313, 1314쪽)}, 위 각 후보자 토론회 자료의 작성에 동원된 공무원의 수, 작성된 자료의 분량 및 내용 등에 비추어 피고인 8이 피고인 2와는 무관하게 독단적으로 공무원 수 십명을 동원하거나 휴무일에 공무원 수 십명을 출근시켜 피고인 5 등 공무원들로 하여금 위 토론회 자료를 작성하게 하였다고 보기는 어려운 점, ㉲ 이 사건 당시 피고인 2의 선거사무소에는 위 각 인터뷰 자료 및 위 후보자 토론회 자료를 작성할 만한 인력이 없었을 뿐만 아니라 위 각 자료에는 실제 업무에 관여한 공무원이 아니면 알 수 없는 공약 추진에 소요되는 예산 등 매우 구체적이 내용이 기재되어 있고, 위 후보자 토론회 자료의 경우 그 분량이 매우 방대하여 피고인 2로서도 피고인 8 개인이나 선거사무소의 직원들에 의하여 위 각 자료가 작성된 것으로 인식하고 있다고 보기 어려운 점 등에 비추어 볼 때, 위 각 자료(인터뷰 자료 및 토론회 자료)들은 피고인 4가 실장, 피고인 6이 팀장으로 있는 안양시장 비서실을 경유하여 피고인 2에게 보고절차를 거친 이후, 기획예산과 등을 통하여 그 자료가 작성되어 다시 비서실을 경유하여 피고인 2에게 전달되어 왔고, 피고인 2로서도 그러한 절차적인 진행과정을 잘 알고 있었다고 보여지는바, 사정이 이와 같다면, 위 각 자료는 피고인 2의 명시적 또는 묵시적 지시 하에 기획예산과 등을 통하여 작성되어 전달된 것으로 볼 것이고, 피고인 2가 그 자료를 받아 이를 사용한 이상 각각의 개별사안에 대하여 구체적으로 그 내용을 지시하지 아니하였다고 하여 달리 볼 것은 아니라 할 것이므로 피고인 2가 공무원인 나머지 피고인들의 행위에 대하여 공범으로서의 죄책을 면할 수 없다고 할 것이다.

In addition, Defendant 4 or Defendant 6, as the head of the Ansan market office or the head of the team at the Ansan market room, is in a situation in which all relevant documents are reported or delivered through the library room, and thus, the act of participation cannot be denied.

Therefore, it shall be sufficiently recognized that there is sufficient possibility that the above materials between Defendant 2, 4, 6 and Defendant 3, 5, 7, and 8 are prepared to participate in the planning of election campaign or to participate in the conduct of election campaign. The above judgment of the court below is legitimate, and the above part of the defendants' assertion is without merit.

(2) Regarding Article 86 (1) 2 of the Public Official Election Act:

Article 86 of the Public Official Election Act prohibits acts that are likely to affect the election even if they do not reach the election campaign, and stipulates an example of ‘act that affects the election' rather than ‘act that affects the election'. Thus, the purpose of the election campaign is not required, and the act that participates in the planning of the election campaign is not required by the public officials, etc., and the "act that participates in the planning of the election campaign" under Article 86 (1) 2 of the Act should be interpreted as participating in the formulation of all plans for the efficient implementation of the election campaign (see Supreme Court Decision 2003Do2932, Mar. 25, 2004).

Therefore, as recognized earlier, the Defendants’ act of participating in the preparation of all of the above data (e.g., interview data and debate data) in this part is related to the election of Defendant 2, who is sent to the candidate for the Hanna City in the Ansan market election. This may affect the election by using them in public relations materials and pledge for the efficient performance of election campaigns by Defendant 2, and thus, it shall be deemed to have participated in the planning of election campaign under Article 86(1)2 of the Public Official Election Act. The judgment of the court below to this purport is just and contrary to its assertion, and there is no error of law such as misunderstanding of legal principles as otherwise alleged, and thus, the Defendants’ assertion is without merit.

③ As to this part of the facts charged by the prosecutor, the court below held that the above defendants can sufficiently be recognized as participating in the planning of an election campaign or as participating in the implementation of such planning in collusion with the above defendants as stated in Article 255(1)10, Article 86(1)2, and Article 30 of the Criminal Act. The above acts of the defendants 3, 4, 5, 6, and 7, who are the public official status, in the above acts of the defendants 3, 4, 5, 6, and 8, who are the candidates, are involved in the above acts of the defendants 2, 8, who are not the public official, and the above public official's violation of the Public Official Election Act which is established by participating in or participating in the planning of an election campaign, can be committed as a co-principal with the public official and thus, the above judgment of the court below is just

[Establishment of Election Campaign Organization] No. 2 (Establishment of Election Campaign Organization) of the judgment below

㈎ 공직선거법 제89조 제1항 본문의 ‘유사기관’ 해당 여부

Since whether a certain organization, etc. constitutes a “similar organization” under the main sentence of Article 89(1) of the Public Official Election Act is determined by the existence of the purpose of election campaign, if a person who wishes to be a candidate establishes an organization, etc. with the intent to affect the electors beyond the internal source of the preparation for an election, it constitutes a similar organization under the above provision (see Supreme Court Decision 2005Do303, Jun. 27, 2006, etc.).

Based on the records, the court below found that Defendant 2, 8, and 9 conspired to hold Defendant 2's election campaign, the above election campaign committee constituted a similar organization organized to affect the voters for the purpose of Defendant 2's election campaign, and that the above election campaign committee does not change the substance of its composition due to the form of commission of its members, and that the above committee does not appear to be a meeting of volunteers. The court below found this part of the facts charged. The court below found that the above election campaign committee constituted a similar organization organized to affect the voters solely for the purpose of the election campaign of Defendant 2, and that the above election campaign committee does not change the substance of its organization, and that the above committee does not appear to be a meeting of volunteers.

The judgment of the court below is just, and it is not erroneous in the misapprehension of legal principles as to the scope of similar organizations under Article 89 (1) of the Public Official Election Act, and this part of the defendants' assertion is without merit.

㈏ 법률의 착오에 해당하는지 여부

Article 16 of the Criminal Act provides that an act of misunderstanding that one's own act does not constitute a crime under the Acts and subordinate statutes shall not be punishable only when there are justifiable grounds for misunderstanding. However, it is generally accepted that his act constitutes a crime, but it does not constitute a crime under the Acts and subordinate statutes in his own special circumstances, and if there are justifiable grounds for misunderstanding, it shall not be punishable. Whether there exists a justifiable reason shall be determined depending on whether the act of misunderstanding is not aware of the illegality of his own act as a result of misunderstanding, even though it was possible to recognize the illegality of his act if the act was done with his intellectual ability, and there was a chance that the act of misunderstanding could have been aware of the illegality of his act, and the degree of efforts necessary for recognizing the illegality should be determined differently depending on the situation of the act of misunderstanding, the individual's awareness ability, and the social group to which the actor belongs (see Supreme Court Decision 2005Do3717, Mar. 24, 2006, etc.).

The court below acknowledged the following circumstances based on the evidence duly adopted and investigated by the court below. In other words, the above defendants agreed to organize the election campaign committee under the above election campaign organization on April 2006 and completed the composition of the election campaign committee on May 17 of the same year, and the defendant 2 was present in court on May 7 of the same year. On the other hand, around May 7, 2006, the time when the appointment of the members was completed, the election campaign committee was illegal from the Gyeonggi-do Party of Gyeonggi-do to grant a letter of appointment of the chairman of the election campaign committee under the name of the above Gyeonggi-do Party of Gyeonggi-do Party, so the above election campaign committee received a letter of appointment of the chairman of the election campaign committee under the name of the above Gyeonggi-do party chairman at the time of appearance in order to pretend that the above committee was part of the election campaign committee of the above Gyeonggi-do. In light of the above facts, the above defendants' act of establishing similar agencies prohibited under the Public Official Election Act cannot be deemed to have any justifiable reason or justified.

Article 3-1(1)(b) of the Criminal Act of the court below

㈎ 이 부분 공소사실의 요지

Defendant 2, 1, or 4

Except as otherwise permitted by the Public Official Election Act, the head of a local government shall not hold or support cultural lectures, project explanation meetings, public hearing meetings, sports events for the aged, civil petition counseling, or other various events. Nevertheless, he/she has promoted construction of the 'Yean Sports Park' and the 'Yean Civil Park' in order to develop an area relatively underdeveloped within the region during the period of his/her service. The above 2 citizen parks are anticipated to be completed during the election period, he/she shall hold the above 2 citizen park and publicize their achievements during the 60th anniversary of the opening of the 20th anniversary of the opening of the 20th anniversary of the opening of the 20th anniversary of the opening of the 5th anniversary of the opening of the 20th anniversary of the opening of the 5th anniversary of the opening of the 1st anniversary of the opening of the 5th anniversary of the opening of the 5th anniversary of the opening of the 2nd anniversary of the opening of the 2nd anniversary of the opening of the 3th anniversary of the opening of the 2nd.

① Notwithstanding the completion on April 20, 2006, at the time of Ansan-si’s scheduled construction period from December 17, 2004 to April 20, 2006, Kanyang-si’s “Tan Sports Park” construction works located in 522 Dong-dong 522 of Manyang-gu, Manyang-gu, Mayang-si, the construction period of which was ordered, shall be opened by inviting not less than 2,00 people from May 19, 206 after entering the completion inspection procedure on May 19, 2006, and then opening the park awareness in the presence of not less than 2,00 citizens invited in the above park around May 17, 206;

② From June 7, 2004 to May 23, 2006, an order for construction period was ordered and the construction period was scheduled, and the construction project was not completed according to the scheduled plan. On May 22, 2006, even though the above park was applied for partial modification of a design and the construction is still underway, there were about 2,00 Ansan citizens following entering the completion inspection procedure on May 23, 2006, and around 17:30 on May 24, 2006, and around 2,00 Ansan citizens were opened at the citizen park in the above public park in the public park in the public park in the public park in the public park in the above public trees.

㈏ 원심의 판단

The court below found Defendant 2 guilty of the facts charged on the ground that, in light of the fact that, only around May 2006, it appears that the public relations activities on the opening of each of the above parks were conducted against the Ansan-si citizens at the level of Ansan-si only around May 2006, each of the above parks was held to the extent that each of the above parks was left for the fourth local election day, and that the additional construction was conducted at the time when the opening ceremony was held and thereafter after the opening ceremony was held, it is difficult to deem that the purpose of the above park opening ceremony could not be achieved if the above park opening ceremony was not held before or after the opening ceremony was held, and that Defendant 2 expressed that he had expressed the general public about the opening ceremony of each of the above parks opening ceremony around May 2006.

㈐ 당심의 판단

(1) Facts of recognition.

According to the evidence duly adopted and examined by the court below and the trial court, the following facts can be acknowledged.

From December 17, 2004 to December 16, 2005, the construction works for the creation of the tin-sports park was conducted with approximately KRW 23.7 billion in the project cost of the Yanyang-si, Yan-gu, Yanyang-si, Yan-si, the initial construction period of which was selected as the contractor for the construction of the Yan-gu, Inc. from December 17, 2004 to December 16, 2005, with approximately KRW 23.7.7 billion in the daily Yan-gu, Ansan-si. After the completion date, the construction was changed to March 30, 206, again on April 30 of the same year, and again on April 17, 2006, at the request of the construction period extension of the construction works, such as the above construction of the Yan-gu, the construction works was completed for each field, such as construction, civil engineering, and landscaping.

From June 7, 2004 to January 28, 2006, the National Park Creation Corporation: (a) selected YY as the City Mayor and had it completed the initial construction period; (b) was a construction project using approximately KRW 26 billion in the project cost of approximately 81,238 square meters in Ansan-gu, Ansan-si; (c) the installation of artificial explosions, squares, squares, gardens, and auxiliary facilities. After the completion date of construction, it was changed to March 14, 2006; (d) again, the construction of the said 2nd amendment contract was concluded on May 23, 2006 to reflect the results of discussions at the Advisory Council around November 18, 2005; and (e) the additional construction of the said 5th amendment plan, such as the new installation of the 2nd amendment plan, which reflects the additional installation of the 3rd square, including the installation of the 5th amendment plan to the 26th amendment plan of the 5th amendment plan to the 5th amendment plan.

Dhoe Civil Park was aimed at the creation of a space for citizens' rest and the balanced development of the city while concurrently carrying out the forest restoration project for the stone collection site in Gyeyang-9 Quarrying. In particular, in the case of tin-sports parks, the basic survey design service was established at the level of Anyang-si around 2002 on the commencement of the basic survey design service around 2000, and the plan was established to implement the principal park creation project from the next year to the next year on around 2003, and it was completed for more than six years. These two park creation projects were one of the main projects that recommended construction with a focus on the three-line public-based infrastructure in order to develop relatively underdeveloped-gu areas where Defendant 2 relatively underdeveloped.

On the other hand, due to the extension of the air due to the modification of a design, the Eyang Citizens or Ansan-si Council urged the prompt completion of the project requiring several billion won, and sought the opening date. On November 28, 2005, the Ansan-si promised to open the above two parks up to the end of May 2006 at the plenary session of the Si Council around February 6, 2006, at various events such as a corrective speech at the special meeting of the Si Council, and at the meeting of the Si Council around February 6, 2006.

Defendant 4 opened the above two parks around May 2, 2006 at the end of the construction work of the above two parks and met with the completion awareness of the above two parks around May 23, 2006. In addition, Nonindicted 5 confirmed Nonindicted 7’s person in charge of sports facilities and the urban development division, who is the department in charge of the Kanman Sports Park, who is the department in charge of the Kanman Park, confirmed the schedule of Defendant 1, who is the deputy police officer of the early May 2006, and on May 4, 2006, Nonindicted 4 was able to hold the opening awareness of the Kanman Park at the time of the opening of the public park on May 23, 2006 and reported that Nonindicted 5 was holding the above opening plan to Defendant 1’s general public park on May 23, 2006 and received the approval of the opening awareness to Defendant 25’s general public park on May 15, 2006.

On May 17, 2006, the above sports facilities and the above sports facilities sent to 2,384 general members, including the representatives of the various levels of stories in Ansan-si, a letter of invitation to open a sports park. At that time, in order to promote the above opening ceremony, franc cards were posted to all citizens of Ansan-si, such as the entrance of the park, event site, major distance, etc. In order to promote the above opening ceremony. On May 17, 2006, the above urban development division sent a letter of invitation to open a private park to 2,100 members, including the representatives of the various levels of stories in Ansan-si in Ansan-si. From May 22, 2006 to the next day, the promotion of the opening of a private park in the public park in the public park in the public park in the above public park through cable broadcasting and local newspapers, around that time, the above park entrance, event site, major distance, and so on.

At around 17:30 on May 23, 2006, the opening ceremony of the above stone-sports park was held, and around 17:30 on May 24, 2006, around 17:30 on the opening ceremony of the sick Park, approximately 2,000 male citizens were present, and all of the two events were not open to the public in the same line, and they did not offer a tea.

On the other hand, when opening the above two parks, Defendant 2 and Nonindicted 8, who is the opposite candidate, were present. Defendant 2 was short of personnel statement to the effect that “Defendant 2 cannot make personnel or speech because he was present as a candidate rather than the market, because he was present as a candidate, without being introduced from anyone.”

At the time of the opening of the above Byungan Civil Park, the above park's civil engineering-related construction works, packing, landscaping works, and the management office's seal was under way, but there was no particular inconvenience in the use of the park, but there was no particular inconvenience in the use of the park. The completion inspection report was prepared on May 26, 2006 in the case of the stone-sports parks, and on June 2, 2006 in the case of Byungan Civil Park, the electrical construction work was completed on June 5, 2006 and on June 15, 2006 in the case of Byungan Civil Park creation works.

(2) Judgment

Article 86 (2) 4 (b) of the Public Official Election Act permits the head of a local government to hold events that can not achieve the purpose of the public official election even if he/she fails to hold such events within the specified period from 60 days before the election day to the election day.

According to the above facts, the construction period was extended on May 23, 2006 for the public park in the second half of 205 on the ground of design change, and the construction period was extended on May 20, 206 through several design changes, etc. In accordance with the schedule, it seems that the above two parks were to be opened through several passages from the second half of 2005 to the end of May 2006. In addition, in light of the fact that the above two parks were opened, it appears that Defendant 4, who was the head of the market office, did not attend the above two parks before the opening of the public park, was determined by the person in charge of the construction of the above two parks and the person in charge of the above two parks before the opening of the public park (it appears that the new opening of the public park was a natural procedure in light of the function of the market non-permanent opening, and there was no evidence that Defendant 1, who was the deputy head of the public building before the opening of the public park and the new opening of the public park.

In light of the above circumstances, the above two parks will be opened around May 2006. The above two parks construction works have been promised to be held by the Ansan citizens, etc. continuously from the second half of the year of 2005. The above two parks construction works, as soon as they were a large business with budget of KRW 00 billion over several years, are held before and after that time as of the scheduled completion date, is acceptable in light of the empirical rule. The above two parks construction works cannot be held if they were held before and after that date or the scheduled completion date. The above two parks opening forms can not be seen as having achieved the purpose of opening, and the additional construction works are completed after that date and most of the additional construction works are completed (e.g., even if some construction works were not completed on the scheduled opening date due to unavoidable circumstances, it appears that the above two parks construction works could not be delayed until the scheduled opening date and the opening date cannot be viewed as having been opened without being aware of the scheduled completion date of the opening date, and it cannot be viewed that there was no other evidence related to the above opening date or the opening date.

㈐ 소결론

Therefore, the above two park opening ceremony constitutes an event that can not achieve the purpose unless held at a specified date or specified period under Article 86 (2) 4 (b) of the Public Official Election Act, and there is no other evidence to prove the facts charged. Therefore, this part of the facts charged against the above Defendants should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act because it constitutes a case where there is no evidence of crime, and thus, the court below erred by misapprehending the facts charged or by misapprehending the legal principles as to Article 86 (2) 4 (b) of the Public Official Election Act. Thus, the appeal by the above Defendants is justified.

B. As to the prosecutor's argument of mistake of facts and legal scenarios

(1) Violation of the Public Official Election Act by participating in the planning and implementation of an election campaign involving the re-preparation of Defendant 2, 6, 5, and 8 by Defendant 2

㈎ 공소사실

Defendant 2, 6, 5, or 8

At the Ansan market room on May 2006, Defendant 2 instructed Defendant 6 to re-prepare the propy by modifying his academic background and age in his existing propy, and around May 3, 2006, Defendant 6 instructed Nonindicted 9, a female employee of the Anyang market, to prepare the said propy. At the Anyang market room on May 3, 2006, Defendant 6 sent Defendant 2’s propy [Attachment: Book Name: Market Nitter-2] to Defendant 2’s propy [Defendant 1] to Defendant 2’s propy [an election campaign for Defendant 1, a female employee of the Annyang market”, to Defendant 2’s propy [an election campaign for Defendant 2, a female employee of the said market” [an election for Defendant 5] to participate in the above e-mail] from May 18, 2006, and then sent it to Defendant 1, a Korean National Assembly member of the said market to Defendant 2, a Korean National Assembly member of the said e-mail.”

㈏ 원심의 판단

The lower court rendered a judgment not guilty of this part of the facts charged on the ground that the term “propy” was a part concerning the historical fact of an individual’s personal history, and thus, cannot be deemed as falling under the planning of an election campaign or the implementation thereof, on the ground that there is no other evidence to acknowledge it.

㈐ 당심의 판단

According to the evidence duly adopted and examined by the court below and the court below, Defendant 6's order showed that Defendant 2's existing professional pen's age is from 60 to 59 years of age through Defendant 2's order, and the final academic background is "Seoul National University University Administrative Graduate School" from "Seoul National University University" to "Seoul National University University", and it is acknowledged that Defendant 5 and 8 sent it by e-mail to Defendant 1. Thus, changing the age from 60 to 50 years of age to 60 years of age would display the image of young people in the different households. It is intended to add the final academic background to the so-called highest academic division of the Republic of Korea. This would affect election by using Defendant 2's plan to carry out an election campaign efficiently, and in particular, it is added to the "election name" to the file name, the above Defendants' act of participating in the election campaign or engaging in the election campaign under Article 86 (1) 2 of the Public Official Election Act.

Nevertheless, the court below determined that the above defendants' acts cannot be deemed to be part in the planning of election campaign and the implementation thereof. Thus, the court below erred by misunderstanding facts, or by misapprehending the legal principles as to the participation in the planning of election campaign and the implementation thereof under Article 86 (1) 2 of the Public Official Election Act. Therefore, the above appeal is justified.

B. The point of offering entertainment after the election day of Defendant 2 and 4

㈎ 원심 공소사실의 요지 및 판단

(1) Facts charged

Defendant 2 and 4 shall not offer money, goods, or entertainments to the electorate for congratulations, consolation, or any other return courtesy in collusion with the elector for a success or defeat in the election after the election day;

From June 1, 2006, Defendant 4 contacted each member of the election countermeasure committee, “SJD-06 election countermeasure committee,” which is Defendant 2’s election countermeasure committee, and planned to plan to YJ-06 election. Defendant 2, according to its schedule, gave eight persons, including Defendant 9, the elector of the election countermeasure committee, who was the elector in the Dongwon restaurant at Ansan-si on June 12, 2006, provided them with entertainment including food of KRW 450,000 in total to them. From this time to August 19, 2006, Defendant 4 provided them with entertainment including food of KRW 450,00,000, as stated in the attached Table 4, a total of ten times in the election countermeasure committee, including food of KRW 4,091,500, as stated in the attached Table 19:00.

(2) Judgment

The court below, on the premise that Article 256 (4) 11 of the Public Official Election Act provides that a person who violates the provisions of Article 118 of the same Act shall be punished, and Article 118 of the same Act provides that a candidate, his/her family member, or the executive staff member of a political party shall not be permitted to engage in an election campaign or provide money or entertainment for congratulations or other return courtesy to the electorate after the election day. This provision prohibits and punishing the general electorate for answers such as congratulations or defeat in the election, and it shall be deemed that the general electorate in the election campaign has no choice but to participate in the election campaign (see Supreme Court Decision 98Do3169, Mar. 9, 199; Supreme Court Decision 200Do3169, Mar. 27, 2007). Further, the court below held that Defendant 9 was unable to participate in the election campaign at the election campaign office or to participate in the election campaign at the distance of the members of the election campaign liaison committee from time to time to time with the head of the election campaign liaison committee;

The above fact-finding and judgment of the court below are just, and there is no error of misunderstanding of facts or misunderstanding of legal principles, and the prosecutor's appeal is without merit.

㈏ 공소장 변경

Meanwhile, the prosecutor added "Article 230 (1) 4 and Article 135 (3) of the Public Official Election Act and Article 30 of the Criminal Act" to the applicable provisions of the Act as to Defendant 2 and 4 in the first instance trial, and in addition, "Defendant 2 and 4 conspired to offer allowances, actual expenses, and other benefits under the Public Official Election Act, and no person may express his intention to offer or promise, induce, mediate, demand, or receive money, valuables, or other benefits related to the election campaign, or offer of such money, valuables, or other benefits, or promise to offer such money, valuables, or other benefits, or promise to offer such money, valuables, or other benefits, i.e., compensation for volunteer service, etc., from 006 to 000, Defendant 4 shall be called "SD-06 election," which is an election of Defendant 2, and a total of 00 days from 100 days to 40 days from 200,000 electors of the above election commission, and shall not be reported to 908 days from 10.6.

C. As to Defendant 3, 7, and 9 and the Prosecutor’s assertion of unreasonable sentencing on the above Defendants

In this case, Defendant 3 and 7, who was an incumbent public official, prepared interview data or answer data in relation to the election of Defendant 2 at the fourth simultaneous local election held on May 31, 2006 at the time of opening the fourth simultaneous election held on May 31, 2006. The purpose of prohibiting the opening of an election by public officials, which may lead to the loss of electorates, due to the public official's occupational appearance, may lead to the loss of electorates. Defendant 9 actively participated in a similar agency prohibited by the Public Official Election Act, thereby hindering fair competition in the election. In light of the fact that Defendant 9 actively interfered with a similar agency prohibited by the Public Official Election Act, and thus, the above Defendants are not less likely to be subject to punishment corresponding thereto.

However, all of the above Defendants did not have any particular criminal history, and in the case of Defendants 3 and 7, the Defendants were faithfully working as public officials for a considerable period of time, and the Defendants appeared to have been involved in the instant crime according to the superior relationship to the president in the organization of public officials. This part of this part is closely against this Defendants, and considering the circumstances leading up to the instant crime and the degree of their participation, and other factors of sentencing under Article 51 of the Criminal Act, which were revealed in the whole process of the public trial, even though considering the circumstances alleged by the above Defendants or the public prosecutor, the above Defendants and the public prosecutor’s appeal on this part is without merit.

3. Conclusion

Therefore, among the part against Defendant 1 and the part against Defendant 2 and Defendant 4's conviction, the part against the above Defendants as to the violation of the Public Official Election Act due to the opening of tin sports park and bottle citizen park, and the part not guilty of Defendant 2, Defendant 6, 5, and 8, the prosecutor's appeal against the above Defendants as to the violation of the Public Official Election Act by participating in the planning of election campaign and participating in the re-preparation of Defendant 2's protocol, etc. among the part not guilty, are reasonable. Thus, pursuant to Article 364 (6) of the Criminal Procedure Act, the part against the above Defendants 1, 2, 4, 5, 6, and 8 among the judgment below against Defendant 2 and the judgment below as to the violation of the Public Official Election Act due to the offering of entertainment after the election day as to Defendant 4 is reversed pursuant to Article 364 (2) of the Criminal Procedure Act, and since the prosecutor's appeal against the above Defendants 2, 4,568, and 368 of the judgment of unfair sentencing is dismissed.

The facts constituting the crimes against Defendant 2, 4, 5, 6, and 8, which are recognized by this Court, are deleted from 11th to 13th 10th 13th 10th of the original judgment, and are all the following facts constituting the crimes:

“3. Defendant 2, 6, 5, and 8 are conspired,

At the Ansan market room on May 2006, Defendant 2 instructed Defendant 6 to re-written the propy by modifying his academic background and age in his existing propy, and around May 3, 2006, Defendant 6 instructed Nonindicted 9, a female employee of the Seocho market, to prepare the said propy, and Defendant 6, at around 11:18 of the same day, sent Defendant 2’s propy [Attachment file name: Market Nitter-2] to Defendant 2, in preparation for the fourth local election by sending the e-mail, and sending the propy to Defendant 1, an interview to Defendant 2, who is a public official, and then sent it to Defendant 2, including the above e-mail, and sent it to Defendant 18, Defendant 2, who participated in the above e-mail to Defendant 1, who is a non-indicted 5, and the above e-mail screen to Defendant 2, who is a public official of the e-mail market.”

4. Defendant 2 or 4 conspired,

Except for the cases of providing allowances, actual expenses, and other benefits under the Public Official Election Act, no person may offer or express his/her intention to offer money, valuables, or other benefits related to the election campaign, or promise, direction, solicitation, mediation, demand or receive the offer, regardless of the pretext thereof, such as allowances, actual expenses, compensation for volunteer services, etc.;

From June 2006, Defendant 4 called the “SJD-06 Election Countermeasure Committee”, Defendant 2, referring to the list of the “SJD-06 Election Countermeasure Committee”, which is Defendant 2’s election countermeasure committee, planned to contact each member of the above election countermeasure committee, and planned to YJD-06, and Defendant 2, depending on its schedule, invited 8 persons, including Defendant 9, the electorate, etc., to offer them with the head of the Defendant Election Countermeasure Committee, who is the electorate at Ansan-si on June 12, 2006, and provided them with entertainment equivalent to 450,000 won in total, including food, etc., from this time to August 19, 2006.”

With the exception of adding B, it is identical to each corresponding column of criminal facts of the judgment of the court below, and thus, it is quoted in accordance with Article 369 of the Criminal Procedure Act.

The summary of the evidence of the above facts charged by this Court is deleted from 14 pages 15 to 15 pages 14 of the judgment of the court of the court below and, in other words, the summary of the following evidences:

[Fact 3 in the market]

1. The defendant 2, 6, 5, and 8's statements in each part of the original judgment and each of the original trials at the court below

1. Some statements made by the prosecution concerning the defendants 2, 6, 5, and 8 in each protocol of suspect examination of the prosecution;

1. The prosecutor’s statement concerning Nonindicted 1

1. Entry into an investigation report (to attach both e-mail confiscated materials);

1. Investigation report ( defendant 2's interview contents, etc.);

【Fact 4 at the Time of Sales】

1. The defendant 2, 4, and 9's statements in each part of the original judgment and each of the original judgment

1. Some statements made by the prosecution against the defendant 2 and 4 in each protocol of suspect examination of the prosecution;

1. Investigation report (report attached to the list of persons related to the election countermeasure committee of defendant 2's election campaign committee) (report attached to the list of persons related to the election countermeasure committee of defendant 2's election campaign committee), investigation report (report attached to the list of candidates for the two markets), investigation report (Attachment to the list of seized articles

With the exception of adding B, the corresponding column of the judgment of the court below is the same as that of the judgment of the court below, and this is cited by Article 369 of the Criminal Procedure Act.

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

(a) Defendant 2, 4, 5, 6, 8

Article 255 (1) 10, Article 86 (1) 2, Article 30 of the Criminal Act (the fact that each public official's participation in the planning and implementation of election campaigns at the time of sale and the selection of each fine)

B. Defendant 2, 8

Article 255(1)13 of the Public Official Election Act, the main sentence of Article 89(1), Article 30 of the Criminal Act (the establishment of a similar institution under Article 2 of the Public Official Election Act, the selection of each fine)

C. Defendant 2, 6, 5, 8

Article 255 (1) 10, Article 86 (1) 2, Article 30 of the Criminal Act (the fact that each public official's participation in the planning and implementation of election campaigns, the selection of each fine)

D. Defendant 2, Defendant 4

Articles 230(1)4 and 135(3) of the Public Official Election Act (the fact that money, valuables, and other benefits are provided for in the 4th election at the time of sale, the selection of each fine)

1. Aggravation of concurrent crimes (defendants 2, 4, 5, 6, 8);

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravated Punishment for Defendants 2 and 4) of the Criminal Act shall be imposed on the crime of violation of the Public Official Election Act through the provision of other profits such as money, valuables, etc. related to election Nos. 7 of Attached Table 4 of the Judgment on which punishment is the most severe, the circumstances of the offense against Defendants 5 and 6 shall be the largest, and the circumstances of the offense against Defendants 8 shall be the most severe and the circumstances of the offense shall be aggravated.

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Code

1. Inclusion of days of pre-trial detention (defendant 4,5,8);

Article 57 of the Criminal Code

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Violation of the Public Official Election Act due to the holding of the defendant 1, 2, and 4's stone gymnasium parks, and the opening of bottled civic parks;

이 사건 공소사실 중 피고인 1, 2, 4에 대한 석수체육공원, 병목안시민공원 개장식 개최로 인한 각 공직선거법위반의 점의 요지는, 위 ‘제2의 가. ⑶ ㈎’의 기재와 같은바, 앞서 본 바와 같이 위 두 공원의 개장식은 특정일·특정시기에 개최하지 아니하면 그 목적을 달성할 수 없는 행사에 해당한다 할 것이고 달리 위 공소사실을 인정할 증거가 없으므로, 이 부분 공소사실은 범죄의 증명이 없는 경우에 해당하여 형사소송법 제325조 후단에 의하여 무죄를 선고한다.

2. A point where the defendant 2 or 4 gives entertainment after the election day;

이 사건 공소사실 중 이 부분 주위적 공소사실인 피고인 2, 4에 대한 선거일 후 향응제공으로 인한 공직선거법위반의 점의 요지는, 위 ‘제2의 나. ⑵ ㈎ ①’ 기재와 같은바, 앞서 본 바와 같이 위 피고인들로부터 음식 등 향응을 제공받은 상대방이 피고인 2의 선거운동에 참여한 사람들이고, 달리 그 상대방이 그 이외의 선거구민임을 인정할 증거가 없으므로, 위 주위적 공소사실은 범죄의 증명이 없는 경우에 해당하나 앞서 본 바와 같이 당심에서 공소장변경이 허가된 이 부분 예비적 공소사실인 위 피고인들에 대한 선거관련 금품 등 기타 이익 제공에 의한 공직선거법위반죄를 유죄로 인정하는 바이므로 주문에서 따로 무죄를 선고하지 아니한다.

In this case, Defendant 2, who was going through the fourth simultaneous local election on May 31, 2006 as the incumbent Ansan market and implemented on May 31, 2006, had public officials of Ansan-si, including Defendant 3, 4, and 5, prepare and utilize the interview data or debate data related to his election, and establish an election campaign organization prohibited by the Public Official Election Act and provide them with entertainment to the persons involved in the above election campaign organization. As such, as in this case, if the head of the incumbent organization is mobilized by public officials under his rank and takes part in the election, it may not only cause serious harm to the fairness of the election in competition with other candidates, but also cause adverse effects to promoting the excessive election, which may result in damage to the electorate, and it may result in serious damage to the public confidence in the political neutrality of public officials, and it is difficult to view that the above Defendants' crime and the above Defendants' crime are mitigated in light of the fact that considerable amount of entertainment has been provided for several times to the persons involved in his election campaign.

However, all of the above Defendants did not have any particular criminal history, and in the case of Defendants 4, 5, and 6, they were faithfully serving as public officials for a considerable period of time, and the above Defendants should maintain the sentence imposed by the court below in consideration of the circumstances leading to the crimes in relation to each of the crimes in this case, the degree of their participation, and other various sentencing conditions under Article 51 of the Criminal Act as revealed in the whole process of public trial

It is so decided as per Disposition for the above reasons.

[Attachment 4 Omission of List of Offenses]

Judges Han-su (Presiding Judge)