Defendant 1 and one other

Defendants

Freeboard Kim

Attorney Lee Jong-soo et al., Counsel for the defendant-appellant

Daejeon District Court Decision 2008 Godan538 Decided December 30, 2008

Of the judgment below, the part on Defendant 2 shall be reversed.

Defendant 2 is not guilty.

Defendant 1’s appeal is dismissed.

1. Summary of grounds for appeal;

A. Defendant 1

Unfair Economic Decision

B. Defendant 2

(1) misunderstanding of facts

Defendant 2 did not provide money and valuables to Nonindicted 1 as stated in the facts constituting the crime of the lower judgment.

(2) Unreasonable sentencing

2. Determination

A. Judgment on Defendant 1’s assertion

In full view of the legislative intent of the Agricultural Cooperatives Act, the scope of punishment, the amount of money and valuables provided by the Defendant and the transmission and recovery of mobile phone messages using the mobile phone, the degree of influence on the election of the head of the association of this case, and other circumstances that are the conditions for the sentencing of this case as indicated in the records, such as the status, age, character and conduct, environment of the Defendant, motive for committing the instant crime and circumstances after committing the instant crime, etc., the sentence of the court below is deemed reasonable and unreasonable even if considering the circumstances alleged by the Defendant are considered.

B. Judgment on Defendant 2’s assertion of mistake of fact

(1) Facts charged

Defendant 2 was born in the election of the president of the cooperative of Seocheon Livestock Industry Cooperatives, which was implemented on April 30, 2008.

A person could not offer money, goods, entertainment, or other property benefits to a member for the purpose of having him/herself or a specific person elected as a member of a regional livestock cooperative, but Defendant 2 offered 300,000 won in cash to Nonindicted 1 of the Seocheon-gun Cooperative’s members, on April 21, 2008, when he/she puts an envelope containing two parts of the register of members, at the “○○○○,” located in the Hancheon-gun, Seocheon-gun, Seocheon-gun, Seocheon-gun, Seocheon-gun, a member of a regional livestock cooperative, with an envelope containing two parts of the register of members. Accordingly, the Defendant provided money and valuables to the members for the purpose of election in the election of the head of the Seocheon-

(2) Determination

The lower court determined that Defendant 2 provided money and valuables of KRW 300,000 to Nonindicted 1 in connection with the election of the head of the instant association by comprehensively taking account of Nonindicted 1’s investigative agency and Nonindicted 1’s copies of passbook 1 related to the statement and the statement in the court

However, on April 21, 208, Nonindicted Party 1’s statement appears to have been sufficiently aware of the fact that Nonindicted Party 1 was present at the police station’s election campaign regarding receipt of money and valuables, and it is difficult for Nonindicted Party 2 to have been asked to deposit money from Nonindicted Party 1 to the police station, and that it was difficult for Nonindicted Party 2 to have been asked to receive money and valuables from Nonindicted Party 1 to make a statement on April 18, 2008, and that it was difficult for Nonindicted Party 2 to receive money and valuables from Nonindicted Party 1 to make a statement on April 21, 208, and that it was difficult for Nonindicted Party 2 to receive money and valuables from Nonindicted Party 1 to make a statement on deposit with Nonindicted Party 2 as evidence, and that it was difficult for Nonindicted Party 1 to receive money and valuables from Nonindicted Party 2 to make a statement on deposit with Nonindicted Party 1 as well as to have received money and valuables from Nonindicted Party 2 to the police station’s other place where it appears to be open to the public.

(3) Sub-determination

The conviction in a criminal trial ought to be based on strict evidence that leads to a judge to have a reasonable doubt, and if there is no such evidence, it is inevitable to determine the interest of the defendant even if there is doubt about the defendant's guilt. The evidence submitted by the prosecutor in the instant case alone is insufficient to recognize that Defendant 2 provided money and valuables of KRW 300,000 to Nonindicted 1 in relation to the election of the president of the association, and there is no other evidence to acknowledge the facts charged in the instant case. Thus, Defendant 2's assertion is with merit.

3. Conclusion

Therefore, Defendant 1’s appeal is without merit, and it is dismissed under Article 364(4) of the Criminal Procedure Act. Since Defendant 2’s appeal is well-grounded, the part on Defendant 2 among the judgment below’s appeal is reversed under Article 364(6) of the Criminal Procedure Act, and it is again decided as follows without examining Defendant 2’s assertion of unfair sentencing.

The facts charged in this case against Defendant 2 are as shown in the above 2.b. (1) and 2.b. (2) and (3). As examined in the above 2.b. (2) and (3), the facts charged in this case constitute a case where there is no proof of a crime, and thus, the defendant is acquitted under the latter part of

Judges Kim Ji-hee (Presiding Judge)