Defendant 1 and one other

Defendants and Prosecutor

Civil Manmang

Attorney Lee Sang-hoon

Busan District Court Decision 2006Gohap711 Decided July 10, 2007

1. The part on Defendant 2 among the judgment below is reversed.

2. Defendant 2 shall be acquitted.

3. To give public notice of the summary of the judgment on Defendant 2.

4. All appeals against Defendant 1 and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant 1

(1) With respect to the fact that the Busan Dong-gu Sports Council (hereinafter referred to as the “sports Council”) as stated in the list of crimes in the holding of the court below, there is no evidence to acknowledge it except the admissibility of evidence or the police protocol on April 12, 2006 against Nonindicted 9, the police protocol on April 12, 2006, the police protocol on Nonindicted 10, and the protocol of interrogation of the suspect.

(2) As to the contribution of the uniforms to the Busan Dong-gu sports competition, it cannot be deemed that the sports council made the contribution with the name and funds of its organization, and the other party to the contribution is not the Dong-gu Office but the participants in the sports competition not specified.

(3) Defendant 1 is not a candidate or candidate for the fourth simultaneous local election, and thus, he cannot be a subject of contribution under the Public Official Election Act.

(4) The act of donation by Defendant 1 in this case is not directly related to the election, and is not in violation of the social rules as a formal act or an official act, and thus, it is dismissed from the illegality.

(5) Even if Defendant 1 made a contribution as indicated in the facts charged, the above election cannot be deemed to be the pertinent election under Article 268 of the Public Official Election Act, since there was no intention to participate in the fourth simultaneous local election to be held on May 31, 2006 at that time. The public prosecution of this case was instituted six months after the day on which the above act was committed, and the statute of limitations expired pursuant to Article 268 of the Public Official Election Act.

B. Defendant 2

Article 115 of the Public Official Election Act provides that a third party who intends to be a candidate or a person who intends to be a candidate shall be punished for the act of donating his own goods or goods or benefits that he may dispose of. Defendant 2 is not the person who has the right to dispose of the goods contributed in this case, and thus, he cannot be the person who has the right

(c) Prosecutors;

(1) The lower court acquitted Defendant 1’s contribution act to Nonindicted 1 through 8 on the ground that it does not go against the social norms, thereby misapprehending the legal doctrine on the grounds for the exclusion of illegality.

(2) The sentence imposed by the lower court on the Defendants (Defendant 1: fine of KRW 800,00,000, and fine of KRW 500,000) is too uneased and unreasonable.

2. Determination

A. As to Defendant 1’s assertion

(1) Whether contributions to the Sports Council are made

In light of the fact that Nonindicted 9 and 10’s police statements that correspond to the facts charged in this part are not voluntarily made or are not found to have any reason to suspect the credibility of the statements made by the police at the time of the above competition, it is difficult to readily deny the credibility of the statements even if the statements made by the police were not recorded in the above competitions registry, and they were reversed in the court below, in light of their age, academic background, career, and intelligence level, they cannot obtain a clear understanding of the background of the reversal or the statement to reverse the statements, which are attached to the statement made by the police at April 12, 2006 against Nonindicted 9 was seized in the office of the Organizing Committee of the World (Name omitted) 2005 (hereinafter “Organizing Committee”), and Nonindicted 10 stated that the police was prepared while managing the goods warehouse at the time of the above competition, it is difficult to readily deny the credibility of the statements even if they were not recorded in the above Games registry. Accordingly, according to the evidence duly adopted and investigated by the court below, this part of the charges can be found guilty.

(2) Whether Defendant 1 is the subject of contribution to the Busan Dong-gu Office

According to the evidence duly adopted and examined by the court below, Defendant 1 donated KRW 100 million to the Organizing Committee in which he is the chairperson, purchased in a lump sum the amount of KRW 30 million, etc., and ordered Defendant 2 to deliver the amount of KRW 282 to Nonindicted 10 among them, and it can be acknowledged that Nonindicted 10 delivered it to the Busan Dong-gu Office.

In regard to this, at the police and the court below, Nonindicted 10 stated that the above amount was paid as the purchase price of the above amount, and delivered it to the Busan Dong-gu Office. At the latest, on May 10, 2005, Nonindicted 100,000 won was withdrawn from the sports council account, and on May 10, 2005, it was paid as the purchase price of the above amount. Thus, it is difficult to view that the above amount was paid as the purchase price of the above amount. In addition, in light of the fact that the time when the purchase price was made by Nonindicted 10 was different from the time when the above amount was purchased, it is difficult to view that the above amount was paid as the purchase price of the above amount. In addition, Nonindicted 10, who was in charge of the actual consultation on the contribution act, was likely to violate the Public Official Election Act of Defendant 1, the chairperson of the sports council, and was given to Nonindicted 10, the main body of the sports promotion council, despite having been informed that it did not violate the Public Official Election Act.

In full view of the circumstances leading up to this part of the contribution act, the actual nature of Defendant 1’s act of donation, and the fact that Defendant 2 and Nonindicted 10, who carried out the status and actual act of donation at the sports council of Defendant 1, were in the position of receiving instructions from Defendant 1, the subject of the contribution act is Defendant 1, and the direct counterpart of the contribution act is sufficient to recognize that Defendant 1 is not an unspecified number of people who participated in the sports competition at the above Busan Dong-gu Office but an office of Dong-gu, Busan.

Therefore, the above defendant's assertion of this issue is without merit.

(3) Whether Defendant 1 constitutes “a person who intends to become a candidate under the Public Official Election Act”

The "person who intends to become a candidate" under Article 113 of the former Public Official Election and Prevention of Election Illegal Act (amended by Act No. 7681 of Aug. 4, 2005; hereinafter the "Public Official Election Act") includes not only the person who is scheduled to run in an election but also the person who has objectively been aware of his/her intention to run in an election in light of his/her status, contact, or speech and behavior, and also the person who has objectively expressed his/her intention to run in an election, such as an application for success in a political party or punishment for activities to obtain a candidate from a general elector, but also the person who has objectively expressed his/her intention to run in an election, in light of his/her status, contact, or speech and behavior, etc. (see, e.g., Supreme Court Decisions 2004Do7419, Jan. 27, 2005; 2006Do2370, Jun. 27, 2006).

However, Defendant 1, as a member of Busan Metropolitan City at the time of the donation act in this case, was engaged in a king external activities, such as the chairperson of the Organizing Committee and the chairperson of the Sports Council, and as a general person, he thought that he is a person who intends to run for the fourth simultaneous local election once a year, barring any special circumstance, and according to the newspaper articles attached to the investigation report prepared by Nonindicted 12, Defendant 1 was reported to the media as a fluorous candidate even around January 2006, and around that time, Defendant 1 stated that he was "I will play a great role in improving the fluorial rights" in an interview with the media that "I will play a great role in improving the fluorial rights." Defendant 1 also took an attitude to recognize the contents of the press report as a candidate at the time of the next election, and there was no objective reason to see that Defendant 1 had the right to participate in the election as a candidate at the time of the next election, and Defendant 1 also did not have the right to participate in the election in the world.

(4) Whether it violates social rules

Article 113 of the Public Official Election Act provides that local council members, etc. shall not make all contributions without any time limit, and that the other party to the contributions in this case is the Dong-gu Sports Council and Dong-gu Office, which is an organization or institution that can exercise a large influence within the constituency, through such an organization or institution, re-spons and souvenirs are given to the electorates of Defendant 1 or the electorates and the electorates through these organizations or institutions, and the quantity and value of the re-spons and souvenirs are not significant, even though considerable quantity of clothes and souvenirs remains, it is not visible that goods distributed to the institutions or organizations belonging to other local governments, other than the Busan Dong-gu, Busan Metropolitan City, which is the election district of Defendant 1, are distributed for publicity. Accordingly, the above defendant's assertion about this does not have merit.

(5) Whether the statute of limitations has expired

The term "relevant election day" in the main sentence of Article 268 (1) of the Public Official Election Act refers to the voting day for the election directly related to the relevant election crime. Thus, since such election crime is deemed to have been committed before the relevant election day, and whether the period of public prosecution for the short term against such election crime shall be deemed to have commenced after the relevant election day, or whether the election crime shall be deemed to have commenced after the relevant election day, and whether the period of public prosecution for the short term has commenced after the relevant election day shall depend upon whether the election crime was committed before and after (see Supreme Court Decision 2006Do3026, Aug. 25, 2006).

However, according to the statement made by the police suspect interrogation committee of the defendant 1 on May 29, 2006, each of the contribution acts of this case was made more than once in the fourth simultaneous local election, and it was made at the time near the above election rather than the election prior to the act. According to the statement made by the police suspect interrogation committee of the defendant 1 on May 29, 2006, each of the contribution acts of this case was made at the time when the defendant 1 gave up the election, it was difficult for the defendant 1 to finish the meeting for the athletes' right to vote in the year 2005 after May 24, 2005, and it was stated that the employees of the Dong-gu Election Commission did not have the intention to go out on January 2, 2006, it is reasonable to view that each contribution act of this case was related to the fourth simultaneous election, and therefore, it cannot be viewed that the defendant's act of this case was completed as long as the prescription of this case was completed before May 31, 2006.

B. As to Defendant 2’s assertion

A crime of violation of each contribution-restricted act under Article 257 (1) 1 of the Public Official Election Act is established only when the status of each limited person is established in Articles 113 (Restriction on Contribution Act by Candidates), 114 (Restriction on Contribution Act by Political Parties and Candidates), and 115 (Restriction on Contribution Act by Third Parties) of the same Act. Since an analogical interpretation cannot be conducted in accordance with the principle of no crime without the law, a contribution act by a person who has no status in the above above does not constitute a crime of violation of each of the above provisions of the law. In addition, the separate provisions of each of the above provisions of the law are to punish each person subject to contribution and each of the requirements for contribution-restricted acts according to the status of each person subject to contribution, and even if a person who is not recognized as a person subject to each contribution act made a contribution in collusion with the person subject to each contribution act, it shall not be punished as a joint principal offender under the applicable law of the person subject to contribution (see, e.g., Supreme Court Decision 2006Do8525).

Based on these legal principles, the prosecutor did not prosecute Defendant 2 as a co-principal for the violation of Article 113 (Restriction on Contribution Act by Candidates) of the Public Official Election Act, and was indicted for the violation of Article 115 (Restriction on Contribution Act by Third Parties) of the same Act. However, in order for Defendant 2 to become the subject of the violation of the above Act, the ownership or right to dispose of the delivered goods should belong to Defendant 2.

However, according to the records, it is recognized that: (a) Defendant 2 was employed by Defendant 1 as an employee of the Organizing Committee with Defendant 1’s order and did not participate in the purchase budget or settlement of accounts; and (b) Defendant 2 delivered the uniforms, etc. to Nonindicted 10 of the Sports Council as stated in the facts charged in the instant case upon Defendant 1’s instruction; and (c) notified Nonindicted 9 of the release details to Nonindicted 10 of the Organizing Committee’s employees and made them enter them in the list of goods.

As above, Defendant 1, the president of the Organizing Committee, appears to have exercised the right to dispose of the above uniforms, etc., and Defendant 2 served as a staff member of the Organizing Committee in charge of the receipt and delivery of the uniforms, etc. indicated in the facts charged manually according to Defendant 1’s occupational order. Thus, this can only be seen as part of the performance of duties performed by an employee of the Organizing Committee. Therefore, Defendant 2 cannot be deemed as the subject of the violation of Article 115 (Restriction on Contribution by a Third Party) of the Public Official Election Act. Thus, the facts charged against Defendant 2 constitute a case where there is no proof of crime. Nevertheless, the lower court’s judgment convicting Defendant 2 is erroneous by misapprehending the facts or by misapprehending the legal doctrine. Accordingly, the above assertion by Defendant

C. Regarding the prosecutor's assertion

(1) Whether there is a misapprehension of the legal principle as to the grounds for wrongful dismissal

According to the legal statement of Defendant 1, each statement of the suspect interrogation protocol of each prosecutor's office against Defendant 1, each statement of each police officer's protocol against Nonindicted 13, each statement of the police officer's protocol against Nonindicted 13, the statement of the Dong-gu Living Sports Council's director's name group attached to the police's statement of April 10, 206 against Nonindicted 13, and evidence 8-3, 4, and 5 attached to the defendant's summary of statement, the following circumstances are acknowledged.

① around September 16, 2004, one year and eight months prior to the fourth simultaneous local election, Defendant 1 sent a gift to 40 persons under the name of Defendant 1 of the president of the Busan City (title omitted) Franchis Association. Among them, Nonindicted 1 was the chairman of the Busan Dong-gu Democratic Peace Advisory Committee, to which Defendant 1 belongs, and Nonindicted 2 was the head of the Busan City branch office in the constituency of Defendant 1 as the head of the Construction Association’s member management department, and Nonindicted 1 was the head of the Busan City branch office in the constituency of Defendant 1.

② Defendant 1 sent a gift to Nonindicted 3, 4, and 5 in his own name around January 31, 2005, there is no evidence to acknowledge that Defendant 1 sent the gift to Nonindicted 3, 5. The name of the sender of the gift to Nonindicted 3, and Nonindicted 5 was Nonindicted 15, the father of Defendant 1, and only the fact that the sender of the gift to Nonindicted 4 was Nonindicted 16, the affiliate of the said company. At the time, the name of the sender of the gift to Nonindicted 4 was recognized. At the time, Nonindicted 15 and Nonindicted 16, the number of the other party who was delivered the gift under the name of Nonindicted 15 and Nonindicted 16 was the one who was in a transaction with the said company, and both Nonindicted 3, 4, and 5 are the one who was in a transaction with the said company, and only their office or domicile are within the constituency of Defendant 1.

③ Nonindicted 7 and 8 are the employees of the organizing committee that Defendant 1 was the chairperson of the organizing committee, whose domicile is in the constituency of Defendant 1, and Nonindicted 6 is the vice-chairperson of the sports council that Defendant 1 is the chairperson.

In full view of the relationship between Defendant 1 and Nonindicted 1 through 8 as above, the time and circumstances in which gifts are sent to them, and the value of gifts, Defendant 1’s above act is deemed to have sent courtesy gifts to those who have occupational relations or have worked together with others, and it is reasonable to evaluate that the illegality is dismissed as it does not violate the social rules and regulations. Accordingly, the prosecutor’s assertion disputing this issue is without merit.

(3) Whether there is an unreasonable sentencing on Defendant 1

Since Defendant 1 has violated the purpose of legislation of the Public Official Election Act in order to establish a fair and clean election culture by repeatedly donating the quantity and value of goods for a considerable period of time, the liability for such crime is not easy in that it has violated the purpose of legislation.

However, in full view of the above defendant's age and experience, character and conduct, motive, means and consequence of the crime, as well as various other circumstances that are the conditions for sentencing as shown in the records, such as the above defendant's age, career, character and conduct, motive, means and consequence of the crime, since the above defendant did not have the same criminal power, and was not taken out in the fourth simultaneous local elections, the prosecutor's assertion on this part is without merit.

3. Conclusion

Thus, since the appeal against Defendant 1 and the prosecutor against Defendant 1 is without merit, all of them are dismissed, and since the prosecutor's appeal against Defendant 2 is with merit, the part against Defendant 2 among the judgment of the court below is reversed without examining the prosecutor's allegation of unfair sentencing as to Defendant 2, and it is again decided as follows after the pleading.

Defendant 2:

1. On April 27, 2005, in collusion with Defendant 1, at the office of the Organizing Committee of the World (Name omitted) Winter-gu Dockco World (Sck) Dokco World (name omitted), Defendant 1 asked Defendant 2 to deliver white half-piters to the Dong-gu Living Sports Council located within the constituency, Defendant 2 consented to the contribution of 46 red-pit pumps to the Dong-gu Living Sports Council. From around that time to May 15, 2005, Defendant 2 made an act of donation to an organization located in the constituency for Defendant 1 by delivering 495 articles to the Dong-gu Living Sports Council in total six times within the constituency by means of the above method.

2. In collusion with Defendant 1 and Nonindicted 10, and 17, on May 17, 2005, Defendant 1 purchased oil pumps, etc. manufactured while attracting the said (name omitted) athletes at KRW 30 million, and on May 20, 2005, at the same place as the above paragraph (1) above, Defendant 2 requested Defendant 2 to deliver oil pumps to the Dong-gu sports competition in the Dong-gu sports conference held on May 21, 2005, at the “Dong-gu sports competition in opposition against the Dong-gu agency or organization” at the same place as above, and Defendant 2 consented to the above request by Defendant 1’s violation of the Public Official Election Act, after consultation with the Dong-gu Sports Council to contribute to the Dong-gu Office after acquiring the oil pumps at KRW 1,410,00,000, and after consultation with Nonindicted 10, who acquired the above method, to make contributions to the Dong-gu Office for the purpose of donation to Defendant 282.

The above facts charged constitute a case where there is no proof of criminal facts as seen in Article 2-2(b) and thus, the latter part of Article 325 of the Criminal Procedure Act shall be pronounced not guilty on Defendant 2, and the summary of the judgment of not guilty on the above defendant shall be published in accordance with Article 58(2) of the Criminal Act

Judges Ma Sung Man-man (Presiding Judge) Ma-man (Presiding Judge)