(영문) 대전고등법원 2006. 9. 29. 선고 2006노309 판결

The number of detention days prior to the pronouncement of the judgment below shall be 38 days per defendant 1, and 39 days per defendant 2 shall be included in the above punishment.

However, with respect to Defendant 2, the execution of the above punishment shall be suspended for one year from the date this judgment becomes final and conclusive.

The seized file 15 copies (Evidence Nos. 9 through 23), one copy (Evidence No. 28), and one copy (Evidence No. 30) of the list shall be confiscated from Defendant 1.

2. All appeals filed by Defendant 1 and Defendant 3 and by the Prosecutor against Defendant 2 and Defendant 3 are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1

(1) misunderstanding of facts or misapprehension of legal principles

(A) As the Defendant increased, on December 2005, sent approximately 1,015 members of the Seocheon-gun Civil Association (name omitted), “Seocheon-gun Civil Association (name omitted)” to 1,015 members. At that time, there was no determination as to whether to close the market (name omitted), and thus, it did not intend to have an effect on the election as a formal act.

(B) The Defendant’s distribution of Nonindicted 5 (Name omitted) Party “(name omitted)” (name omitted) at the time of the rally for the formation of a political party does not aim at exerting an influence on the election.

(C) In addition, there is no fact that the defendant establishes an organization "(Name omitted) Union" for election campaign, and (Name omitted) the Union is an unincorporated organization and there is no fact that the defendant has carried out an election campaign using it.

(D) The Defendant only provided multiples of less than 3,000 won to persons visiting an election campaign office, and thus does not constitute a contribution act.

(E) The Defendant was aware that, within the tourist bus where the Defendant was visiting Andong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-gu, the participants were only engaged in personnel statements and did not divide the name cards into the opportunity for self-introductions, and that preliminary candidates were able to request support through personnel reports.

(2) Unreasonable sentencing

The sentencing of the court below, which is set forth in eight months of imprisonment for the defendant, is too unreasonable.

B. Defendant 2, 3

The sentencing of the court below that determined the punishment of Defendant 2 as 6 months of imprisonment and the punishment of Defendant 3 as a fine of KRW 5 million is too unreasonable.

(1) misunderstanding of facts or misapprehension of legal principles

(A) According to the statement, etc. made by Nonindicted 6, the lower court erred by misapprehending the legal doctrine that the lower court did not have any evidence, even though it was acknowledged that Defendant 1 sent Defendant 1 to 600 members of Seocheon-gun, Seocheon-gun, Seocheon-gun, Gun Residents’ Members, and that it was sent from 180 days before the 4th election day ( May 31, 2006) to the election day.

(B) Defendant 1’s act of sending a letter of invitation for the formation of a political party to the (name omitted) party (name omitted) the (name omitted) party and beyond the scope recognized by social norms constitutes “the first hearing” as provided in Article 140 of the Public Official Election Act. Nevertheless, the lower court found Defendant 1 not guilty of this part on the ground that there is no evidence to acknowledge that the person who received the invitation was actually present, was not present. It erred by misapprehending the legal doctrine under Article 140 of the

(2) Unreasonable sentencing

The lower court’s sentencing against the Defendants is too uneasible and unfair.

2. Determination

A. Part concerning Defendant 1’s assertion of mistake or misapprehension of legal principles

(1) The point of distributing a document by unlawful means around December 30, 2005 and April 3, 2004

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

① On November 13, 2005, Defendant 1 joined a political activity in Busan and registered as a preliminary candidate for the National Central Party (name omitted) on January 31, 2006. However, on the ground that the National Central Party does not pass a competition, Defendant 1 resigned from the National Central Party on the 29th day of that month, and was admitted to Nonindicted Party 5 (name omitted) on April 3 of that year. On April 19, 2006, Defendant 1 was selected as a preliminary candidate at the rally for the formation of the Central Party (name omitted) and was on May 13, 2005, and then resigned from the National Party on May 13 again (name omitted). After that Defendant left the National Party’s name omitted on May 24, 2006 (name omitted), but omitted on May 24, 2006.

② On December 30, 2005, Defendant 1 sent to approximately 1,015 members of the Seocheon-gun Civil Association of Korea, a new year, including the following: (a) on December 30, 2005, the full-time president of the Union (title omitted) Defendant 1: (b) “I will put the sick year in the form of success; and (c) I will put it in the form of success; and (d) I will take it early at the Sungwon.”

③ On April 3, 2006, Defendant 1 joined Nonindicted 5 (name omitted) Party (hereinafter “Defendant 1”) and instructed female employees of the election campaign office to send the Defendant a letter of invitation to the rally for the formation of a political party to Nonindicted 5 (name omitted), which was held on the seventh day of that month, to 1,19 members, such as the Defendant’s motive and alumni, (name omitted) and head of Si/Gun/Gu, and head of Si/Gun/Gu, etc. The said letter of invitation includes Nonindicted 5 (name omitted) and the candidate’s appeal for support.

(B) Comprehensively considering the contents of the invitation letter for the formation of a new year sent by Defendant 1, the party and the number of persons to whom the invitation letter for the formation of a political party, and the timing of distribution, it can be sufficiently recognized that the Defendant distributed documents by a wrongful method in order to influence the fourth nationwide local election. Therefore, this part of Defendant 1’s assertion cannot be accepted.

(2)The establishment of a private organization called the Union.

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

① At around October 2005, Nonindicted 7, a preparatory chairperson for himself, and Defendant 1, a vice-chairperson, intended to establish a political, economic, social, and cultural-centered group (name omitted). At around December 2005, Nonindicted 7, a non-political group, as a non-political group, tried to establish a union (name omitted), and withdrawn from the 18th day of each month on October 24, 2005 on the nature of the union (name omitted). After that, Defendant 1 became a standing president, and the (name omitted) the general meeting was held at the (name omitted) flexible hotel. (Name omitted) The office of the Union was placed on three floors in the middle-gu (name omitted) building (name omitted) Jung-gu (name omitted). Defendant 1 requested Defendant 3 to assist the Union to work on December 3, 2005, and Defendant 3 through his request was made to the Secretariat. (name omitted)

② On January 31, 2006, Defendant 1 registered as the preliminary candidate for the national-oriented party (name omitted) market, and there was no organized member until January 31, 2006, the Union (name omitted) formed an organization upon joining the organization from the time when Defendant 2, who was engaged in multi-stage sales business around March 2006, was on the part of Defendant 1’s election campaign workers. Defendant 3 formed a membership form of the Union (name omitted) members around that time.

③ Defendant 2 was asked by Defendant 1 on March 2006 whether to organize the organization, and understood as a request to create an organization for Defendant 1, and stated that the (name omitted) alliance was formed by Defendant 1’s election campaign organization.

④ From the beginning of March 2006, Defendant 2 served as Defendant 1’s performance expenses, and called Defendant 1’s multi-stage sales connection, and decided 25 executives of the Union (title omitted), and recruited members in the form of recruitment of executives by multi-stage method. (Name omitted) The Union was composed of Nonindicted 8, Vice-Chairperson 9, Director-General 10, and Director-General 11, and Defendant 1 was active to hold the management committee of the Union (title omitted).

⑤ Nonindicted 12, who was a member of the (name omitted) Union around March 20, 206, automatically joined the (name omitted) Union, has carried out an election campaign by Defendant 1 at the time of joining the said Union. It is naturally stated that Nonindicted 5 (name omitted) is aware that he/she is a member of the said Union.

④ From March 9, 2006 to April 3 of the year, Defendant 1: (a) the members visiting the conference office from around March 9, 2006 to around April 3 of the year, or the general public who visited the said office with the knowledge of the name of the Defendant’s election office, complained of support by disclosing his career to the Defendant’s election office.

(B) Comprehensively taking account of these facts, it can be sufficiently recognized that Defendant 1 conspired to establish the Union (title omitted) and used it for the election campaign by Defendant 1. Accordingly, this part of the assertion by Defendant 1 cannot be accepted.

(3) Violation of prohibition of contribution act from March 9, 2006 to April 3 of the same year

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

① From March 20, 2006 to April 3, 2006, Defendant 1 provided a restaurant in the office (title omitted) a combined office and an election campaign office, with meals, such as rice tea stations, national numbers, and Kim Han-sung (name omitted). Here, Defendant 1 and the members of the Union (name omitted) were most members of Defendant 1, and at least 20 persons average per day were found.

② During that period, Defendant 1 told those who find an election campaign office from 11:0 p.m. to explain their personal history and career experience and asked them to support, and told them to be able to know about their neighboring children.

③ Defendant 1 had a person who provided meals in violation of the Public Official Election Act and collected money at a restaurant of an election campaign office, and had a person who provided meals voluntarily paid money from KRW 00 to KRW 00.0.

(B) Article 112(2)1(e) of the Public Official Election Act provides that “A person who visits an election campaign office, election campaign liaison office, or political party’s office within the ordinary scope shall not be deemed as a contribution act.” However, the term “a case where a person visits an election campaign office provides tea within the ordinary scope” refers to a case where a person visits an election campaign office by providing a simple tea to a person visiting an election campaign office for a specific purpose of visiting the election campaign office. As in the instant case, an act of providing a gynasium which includes a rice culture station, etc. which cannot be deemed as a tea for many unspecified persons, constitutes an act of providing food that does not constitute a contribution act under the said provision. Accordingly, this part of Defendant 1’s assertion cannot be accepted.

(4) An election campaign in advance on a tourist bus

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

① At spring in 2006, Defendant 1 proposed that the conference be held for the members of the (name omitted) Union. On March 29, 2006, Defendant 1 and Nonindicted 5 (name omitted) decided on March 29, 2006, the chairman of the preparatory committee for formation of the political party, who decided on March 30 of that month, to leave the trip under the pretext of “constition of folk villages and industrial facilities”. Defendant 3 contacted the members of the (name omitted) Union and used it as a travel expense by receiving the donation from Nonindicted 3, etc.

② On March 30, 2006, Defendant 1 and Nonindicted 13 agreed to participate in the rally for the formation of a political party of the Gyeongdong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong (name omitted).

③ 피고인 1과 공소외 13은 2006. 3. 30. 안동으로 가는 버스 안에서 그들의 공약을 설명하고 지지를 호소하였다. 피고인 1은 “제가 공소외 14씨를 모시고 새로운 정당, 공소외 5 (당 이름 생략)당, …모든 사람들이 (시 이름 생략) 한번쯤 살고 싶은 도시야 하는 소리를 꿈꿀 수 있는 사람이 저는 감히 피고인 1밖에 없다고 생각합니다. 여러분들이 아니면 제가 (시 이름 생략)시장으로 서지 못합니다.”라고 지지를 호소하였다.

(B) According to the proviso of Article 60-3(1)2 of the Public Official Election Act, an appeal for support by a preliminary candidate is permitted. However, an appeal for support by a candidate is not allowed at the “public place where many people pass or gather” as prescribed by the National Election Commission Regulations. Meanwhile, according to Article 26-2(1)1 of the Rules on the Management of Public Officials Election, passenger transport is included in the “public place where many people pass or gather.” Therefore, even if Defendant 1 was a preliminary candidate, an appeal for support by a candidate within a tourist bus falling under the “public place where many people pass or gather” constitutes an election campaign not permitted under the Public Official Election Act even if the name was not given. In addition, even if Defendant was found to have mistakenly known that his act was not a crime by law, it does not constitute legal errors on the ground that there were justifiable grounds for such mistake. Accordingly, Defendant 1’s assertion on this part is without merit.

B. As to the prosecutor's assertion of mistake or misapprehension of legal principles

(1) On December 2005, Defendant 1’s distribution of documents under the Exclusion of Police Officers Act

(A) Summary of the facts charged

In December 2005, Defendant 1 sent documents to 60 members of the Seocheon-gun Civil Association, including Nonindicted 6, in the name of “Defendant 1 of the Seocheon-gun Civil Association” in the name of “Defendant 1 of the Seocheon-gun Civil Association” and “Defendant 1 of the Seocheon-gun Civil Association” in the 4th regular local election.

(B) Determination

Article 255(2)5 of the Public Official Election Act and Article 93(1) main text of the same Act punishs the act of distributing documents by unlawful means in order to influence the election “from 180 days before the election day”. However, according to whether Defendant 1 sent a new year of 600 during the period from 180 days before the 4th election day to the election day, Defendant 1 stated that the period of delivery is no longer than 11 months or 12 months after the end of the 10th election day. In addition, as credit card holders, who were in charge of finance of the Seocheon-gun National Assembly, Seocheon-gun National Assembly, Inc. (name omitted), paid expenses to Defendant 1, who was sent a year off from the 180th election day, it cannot be ruled out that there is no possibility that Defendant 1 sent a new year of statement from the 10th day to the election day, even if Defendant 1 made a statement that he received a year off December, 2005.

Therefore, it is proper for the court below to determine that there is a lack of evidence to acknowledge this part of the facts charged, and the prosecutor's assertion on this part is not acceptable.

(2) As to the violation of restrictions on holding a rally for the formation of a political party

(A) Summary of the facts charged

Defendant 1, at his election office around April 3, 2006, opened a rally for the formation of a political party at the (name omitted) of Nonindicted Party 5 (name omitted) who is scheduled to be held on April 7, 2006, and sent to the members of the political party, including Nonindicted Party 15 and 16, who are not members of the political party, for whom the person, who is not a party member, was invited to the rally for the formation of a political party, at his own election office, at the (name omitted) of Nonindicted Party 5 (name omitted) who is scheduled to be held on April 7, 2006, and was prepared in the name of Defendant 1.

(B) The judgment of the court below

Article 140(1) of the Public Official Election Act provides that “a political party shall hold a rally for the formation of a political party, merger, or reorganization, or the election of candidates from 120 days before the election day to the election day only to the party members at a place which is open to the general public, but may invite persons who are not members of the political party to the extent recognized by social norms.” Here, the phrase “which shall be held only to the party members belonging thereto, shall be held while only the party members belonging thereto attend the rally,” and as an exception thereto, the phrase “those who are not members of the political party may invite persons who are not members of the political party to attend the rally within the extent recognized by social norms.” Thus, in order to punish them as a violation of Article 256(3)5 of the Public Official Election Act, it is insufficient to dispatch a invitation to those who are not members of the political party to attend the rally, and further, it is recognized that there is no evidence to acknowledge that the invitation was actually made by the party members of the political party beyond the scope recognized by social norms.

The purport of Article 140(1) of the Public Official Election Act, which restricts the method of holding a rally for the formation of a political party, ought to be deemed to be to prevent an excessive and unlawful election campaign by holding a rally for the formation of a political party at the time when the election is imminent. Meanwhile, it cannot be deemed that the term “original hearing” merely means a “defluent” and also means to attend the rally in response to the invitation.

The lower court determined that only a member may invite a large number of persons to attend a meeting, and that the invitation itself can be punished for the act of distributing documents by unlawful means, but the act of inviting the rally itself does not necessarily constitute an act of distributing documents by unlawful means. In addition, the act of inviting a rally for the formation of a political party beyond the scope recognized by social norms can in itself be emphasizing the election crisis, and the act of inviting a certain candidate to the rally for the formation of a political party is likely to be used as an unlawful election campaign, because the widely known fact that a specific political party is formed, merged, or organized, and that a certain candidate is held, there is a large need to limit it

Therefore, even in light of the language and text of Article 140(1) of the Public Official Election Act and its legislative intent, Defendant 1’s act of inviting 1,000 persons, beyond the scope recognized by social norms, to the rally for the formation of a political party (name omitted) to Non-Indicted 5 (name omitted), shall be deemed to be in violation of the Public Official Election Act. Nevertheless, the court below’s decision of not guilty of this part of the facts charged is erroneous in the misapprehension of the legal principles of the Public Official Election Act, and it is clear that such error affected

Thus, Defendant 1 is in a mutually competitive relationship between the fact of violation of the restriction on holding a rally for the formation of a political party and the fact of distributing documents by means of the law by sending a letter of invitation, and the remaining crimes are also in a substantive concurrent relationship with the other crimes. Thus, the judgment of the court below cannot avoid the whole reversal without determining the unreasonable sentencing on the prosecutor’s defendant.

C. As to the assertion of unfair sentencing on Defendants 2 and 3 by the Prosecutor

(1) Defendant 1

As in the instant case, even though the Defendant has been punished twice in violation of the election-related Acts and subordinate statutes, the Defendant violated the Public Official Election Act and has violated the Public Official Election Act again, and the degree of the violation is heavy. In full view of such circumstances, the Defendant’s age, character and conduct, environment, motive and means of crime, method of crime, and circumstances, etc., which are the conditions for sentencing, the lower court’s sentencing cannot be deemed as being too unreasonable. Accordingly, this part of Defendant 1’s assertion cannot be accepted.

(2) Defendant 2

The act of violation of the Public Official Election Act committed by the Defendant with Defendant 1 is a serious criminal act that disturbs the fair election order and is therefore subject to a strict punishment. However, the Defendant committed the instant crime under Defendant 1’s instruction and the role of the Defendant is relatively somewhat somewhat somewhat weak. In addition, the Defendant has no particular criminal record and is in depth divided into several circumstances, including the Defendant’s age, character and behavior, environment, motive, means, method, and method of the offense, and circumstances after the offense. In full view of these circumstances, it is recognized that the sentence of the lower court is too unreasonable rather than unreasonable. Accordingly, the Prosecutor’s allegation in this part cannot be accepted, and the Defendant 2’s allegation in this part is with merit.

(3) Defendant 3

However, the Defendant’s act of violating the Public Official Election Act ought to be strictly punished as a serious criminal act that disturbs the fair election order. Taking into account such circumstances into account various circumstances as the Defendant’s age, character and behavior, environment, motive and means of committing an offense, method, and circumstances after committing an offense, it cannot be deemed that the sentence imposed by the lower court differently from the other Defendant is too heavy or unreasonable. Accordingly, the Defendant and the Prosecutor’s assertion in this part cannot be accepted.

3. Conclusion

Therefore, Defendant 1 and Defendant 3’s appeal and prosecutor’s appeal against Defendant 2 and Defendant 3 are dismissed, and the prosecutor’s appeal against Defendant 1 and Defendant 2’s appeal against the acquittal portion of the judgment below are reversed, and the judgment of the court below is reversed and the decision is delivered as follows

Criminal facts

The facts of the lower judgment’s crime No. 1-b. 5 of the crime No. 1-2 of the lower judgment, except that “a person who is not a party member is invited to a rally for the formation of a political party, and at the same time, the document is distributed by such unlawful means as above,” cited the document in accordance with Article 369 of the Criminal Procedure Act.

Summary of Evidence

Since the judgment of the court below is the same as the written judgment, it shall be quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Relevant legal provisions concerning criminal facts;

A. Defendants: Articles 255(1)11 and 87(2) of the Public Official Election Act; Article 30 of the Criminal Act (a) of the Criminal Act; Article 254(2)4 of the Public Official Election Act; Article 30 of the Criminal Act (a) of the Criminal Act; Article 254(3) of the Public Official Election Act; Article 254(3) of the Public Official Election Act; Article 30 of the Criminal Act (including each of the following: a prior election campaign by private organizations; a prior election campaign by private organizations); Article 30 of the Criminal

B. Defendant 1: Article 255(2)5 of the Public Official Election Act, the main sentence of Article 93(1) (including the distribution of documents by unlawful means, the distribution of documents under subparagraph 1(a) of the ruling, and the distribution of each document under paragraph (b) of the same Article), Articles 256(3)5 and 140(1) of the Public Official Election Act (the violation of the restriction on holding a rally for the formation of a political party), Articles 257(1)1 and 113(1) (including the act of contribution, Article 3 and 113(4) of the Public Official Election Act)

(c) Defendant 2: Articles 257(1)1 and 115 of the Public Official Election Act, and Article 30 of the Criminal Act (the provision of meals, etc., including the provision of meals, etc., and the provision of them, respectively);

1. Commercial competition;

Articles 40 and 50 of the Criminal Code

A. Defendant 1 and 2: An election campaign against the general public; a crime of violation of the Public Official Election Act due to a prior election by using a private organization; and a crime of violation of the Public Official Election Act due to an act of donation by providing food and beverages; a punishment is imposed on each of the offenses of violation of the Public Official Election Act due to an act of donation by providing the most severe food and beverage. A punishment is imposed on each of the offenses of violation of the Public Official Election Act due to a prior election by using a private organization with a heavier punishment - punishment is imposed on each of the offenses of violation of the Public Official Election Act due to an election by using a private organization.

B. Defendant 1: Violation of the restriction on holding a rally for the formation of a political party, and each violation of the Public Official Election Act due to the distribution of documents by a method of unlawful means; punishment on the violation of the Public Official Election Act due to the distribution of documents by a method of unlawful means, shall be imposed.

1. Selection of punishment;

Each Imprisonment Selection

1. Aggravation of concurrent crimes;

(a) Defendant 1: the former part of Article 37, Articles 38 (1) 2, and 50 of the Criminal Act (Aggravation of concurrent crimes with punishment prescribed in a crime of violating the Public Official Election Act due to a contribution act made by providing the most severe food and drinks);

(b) Defendant 2: the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with the punishment prescribed in the Public Official Election Act due to a contribution act made by providing the most severe food)

1. Calculation in the number of unconvicted days of detention (defendant 1, 2);

Article 57 of the Criminal Code

1. Suspension of execution (Defendant 2);

Article 62(1) of the Criminal Act (Special Considerations in favor of the Defendant in front)

1. Confiscation (Defendant 1);

Article 48 (1) 1 of the Criminal Act

Judges Kang Il-won (Presiding Judge)

심급 사건

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대전고등법원 2006.9.29.선고 2006노309

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