The case holding that an act of a local council member, as a ballot inspector in an election of the chairman of the local council, attaching a mark to distinguish ballot papers when affixing a seal on the ballot paper, constitutes an obstruction of the execution of official duties by fraudulent means.

The case holding that a local council member committed obstruction of performance of official duties by fraudulent means on the grounds that he/she interferes with the duties of the chairman of the local council having the authority to supervise affairs of administration and ballot counting and the duties of the council members with the authority to supervise affairs of administration and ballot counting and his/her secret voting as a ballot inspector in an election of the chairman of the local council.

Article 137 of the Criminal Act

Defendant

Decree: Egypt

Attorney Lee Dong-sik

Defendant shall be punished by a fine of KRW 5,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for a period calculated by converting 50,000 won into one day.

To order the defendant to pay an amount equivalent to the above fine.

The Defendant, as a member of the ○○ Metropolitan City Council (hereinafter referred to as the “Council”), confirmed the ballot paper, etc. from the election of the Speaker of the Council on July 8, 2008 to the ballot inspector.

According to the Local Autonomy Act, an election of the Speaker shall be held at a session, and the Speaker at the time of election shall declare the commencement of voting, select a ballot-counting commissioner, designate certain public officials to assist in the affairs of the ballot-counting and ballot-counting, and determine and publish the Speaker based on the ballot-counting with a ballot counting certificate issued by the ballot-counting committee members after the completion of voting, under the supervision of the Speaker's overall affairs of the election and ballot-counting procedures, and this is to observe the principle of secret voting, the basis of free democracy.

The election of the chairman of the ○○ Metropolitan City council shall be elected with the attendance of a majority of the incumbent members and the votes obtained by a majority of the present members, and when there is no person who has received the same votes, the second voting shall be held, and when there is no person who has received the same votes in the second voting

○○ Metropolitan City Council consisting of 19 members in total, and it was necessary to secure at least 10 members in order to obtain majority votes.

The defendant supported the non-indicted 1 member to be elected as the chairperson, and on July 6, 2008 and the 7th day of the same month, the defendant thought that he had confirmed the intention of support of at least 10 members among the 11 members who participated in the above gathering, in the sense that he prevented the withdrawal check from cafeterias and telecomes in the vicinity of the school affairs.

1. On July 8, 2008, the Defendant was selected as a ballot counting member in relation to the first ballot for the election of the Speaker, which was implemented under the supervision of Nonindicted Party 2, at the plenary session of the ○○ Metropolitan City Council at the third floor, at the time of the plenary session. The ballot counting member is authorized to check the members who cast their votes and affix their seals on the ballot paper verification column, affix their seals on the ballot paper, and prepare a ballot counting confirmation document after confirming the ballot counting after the voting is finished.

The Defendant, as a member of ○○○○○○ Council who did not clearly state his intention to support the Defendant’s exercise of the above authority as a member of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Council, with a seal affixed on the 18 ballot papers among 19 members of 19 members, affixed the seal of confirmation of the members of ○○○○○○○○○ Council. Accordingly, the Defendant distinguished the ballot papers of ○○○○○○○ Council,

Afterwards, the Defendant confirmed the result of voting by checking the ballot papers of ○○○○ Council members whose distinction was affixed and sealed as above.

Ultimately, the Defendant interfered with the act of duties of the chairman of the local council having the authority to supervise affairs of administration and ballot counting and the act of duties of local council members having the authority to vote in secret and secret manner, which violates the principle of free democracy, which is the basis of the principle of secret voting.

2. On the same day as Paragraph 1, at around 11:36, at the same time, the Defendant was unable to be elected in the first ballot due to the escape slip, which was anticipated to have been elected by at least 10 marks in connection with the second ballot of the chairman’s election conducted under the supervision of Nonindicted 2, at least 11:36, the Defendant confirmed whether a member of the alcoholic beverage was a "person who is a member of the second ballot," and, if a member of the second ballot is unable to obtain a majority and a majority vote even in the second ballot, he had a secret mark in order to prepare for the third run-off voting, and accordingly, the Defendant’s letter of confirmation of a member of the ballot inspector on the side of the non-powered alcoholic beverage was signed and sealed at the center at the bottom, while the letter of confirmation of a member of the ballot inspector on the side of the alcoholic beverage was affixed individually by dividing the ballot paper into the upper end and the right side and the right side.

Ultimately, the Defendant interfered with the act of duties of the chairman of the local council having the authority to supervise affairs of administration and ballot counting and the act of duties of local council members having the authority to vote in secret and secret manner, which violates the principle of free democracy, which is the basis of the principle of secret voting.

1. Partial statement of the defendant;

1. Investigation protocol concerning Non-Indicted 1 by the prosecution

1. Each prosecutorial statement against Nonindicted 3-10

1. Each protocol of seizure;

1. Report on investigation (Attachment of a copy of ballot paper);

Judgment on the defendant's defense counsel's assertion

Defendant’s defense counsel means using mistake or land of other persons or using deceptive means to achieve the purpose of obstruction of the performance of official duties by deceptive means. The above acts by the Defendant cannot be deemed as using mistake or deception or cruel means. Members, as they cast their votes in accordance with their intent, did not interfere with the members’ voting activities, and there was no risk of interference. According to Articles 43 and 71 of the Local Autonomy Act, the local council’s election of the 00 Metropolitan City chairman is also included within the scope of the 00 Metropolitan City chairman’s autonomous power, so it cannot be determined by the rules of the local council as long as it is necessary in addition to those prescribed by this Act, the local council’s election of the 00 Metropolitan City chairman is also included within the scope of the 00 Metropolitan City chairman’s autonomous power. However, it is difficult to view that the Defendant’s act, other than those of the local council members or the chairman’s ballot papers, may be viewed as constituting a site for the local council or the Speaker, and that the above acts by the local council chairman’s autonomous power and autonomous power of the local council chairman are violated.

1. Article applicable to criminal facts;

Article 137 of the Criminal Act

2. Selection of punishment;

Selection of Fines

3. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

4. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

As secret voting is the foundation of democratic politics, it is impossible to hold democratic politics without secret voting, the Constitution and the Local Autonomy Act provide for secret voting, and in order to guarantee the free decision-making of voters by guaranteeing secret voting, it shall not infringe the secrecy of voting by making it possible to distinguish it from other ballot papers. The defendant's act of affixing a seal on the ballot paper as a member of the ○○ Metropolitan City Council's seal to distinguish the ballot papers is an act infringing on the secret voting, and the nature of the crime is not good, and Article 36 (1) and (2) of the Local Autonomy Act provides that "Local Council members shall perform their duties in good faith according to conscience with preference to public interest. Local Council members shall have the duty of integrity and dignity as Council members." While the defendant is aware of the responsibilities as local council members, the defendant's act of attaching a seal on the ballot paper so that the defendant can be elected as the chairperson of the ○○ Metropolitan City Council, which seems to considerably affect the defendant's result of the crime of this case, it appears that the defendant's act of operation of this case, such as the reason of the defendant's election of this case, etc.

Judges Kim Jong-il