Defendant

Defendant and Prosecutor

Einception (prosecutions) and inception (public trial)

Attorney Kim Jong-il et al.

Daegu District Court Decision 2016Gohap36 Decided August 9, 2016

1. The guilty part of the judgment of the court below is reversed.

2. The defendant shall be punished by a fine of KRW 900,000.

3. If the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by one day.

4. An order to make the provisional payment of the amount equivalent to the above fine;

5. The prosecutor's appeal on the acquittal portion of the judgment below is dismissed.

1. Summary of grounds for appeal;

A. Defendant

The punishment of the court below (three million won of fine) is too unreasonable because it is too unreasonable (the defendant has withdrawn all the arguments of mistake of facts or misapprehension of legal principles on the second trial of the court below).

(b) Prosecutors;

1) misunderstanding of facts or misapprehension of legal principles

With respect to the violation of the restriction on contribution by a third party, the "election district concerned" as provided in Article 112 of the Public Official Election Act refers to the election district to be set up in the future, and the Constitutional Court's decision of inconsistency with the Constitution becomes null and void by the Constitutional Court. Since the election district for the 19th National Assembly member general election is still valid, the election district for the 20th National Assembly member general election, which is the relevant election district, still remains valid, the judgment of the court below that the act of the defendant providing goods does not constitute a contribution act under the Public Official Election Act

2) Unreasonable sentencing

The sentence of the court below is too unhued and unfair.

2. Determination

A. As to the prosecutor's assertion of mistake or misapprehension of the legal principle

1) Public Official Election Act provisions

(1) Any person, who is in violation of Article 20 (1) (3) of the former Public Official Election Act (amended by Act No. 14073, Mar. 3, 201; hereinafter the same shall apply), local constituency council members (referring to the City/Do council members and autonomous Gu/Si/Gun council members of local constituency; hereinafter the same shall apply) shall be elected by unit of the relevant constituency. Article 24 (1) For the fair definition of the constituency for the National Assembly members, the name and district of the National Assembly members of 18 months before the expiration of the term, and then the election district thereof shall be established and operated by the National Assembly members of 13 months before the election day. (1) The National Assembly shall be deemed to have violated Article 25 (Definition of Local Assembly Members of Local Assembly).

2) The Constitutional Court's ruling of inconsistency with the Constitution, the invalidation of the local constituency for the National Assembly and subsequent legislation

On October 30, 2014, the Constitutional Court rendered a decision that “The table of the election district for the National Assembly member in Article 25(2) attached Table 25(2) of the Public Official Election Act (amended by Act No. 11374, Feb. 29, 2012) does not conform with the Constitution, and the said table of the election district for the National Assembly member shall continue to apply until the legislators amended the said table by December 31, 2015 (see Constitutional Court Decision 2012Hun-Ma190, Oct. 30, 2014; Supreme Court Decision 201Hun-Ma190, Dec. 31, 2015; the said table of the election district for the National Assembly member was invalid from January 1, 2016; the National Assembly, from March 3, 2016 to Article 14073 of the Public Official Election Act.”

3) The defendant and prosecutor's assertion

피고인은, 구 공직선거법(2016. 3. 3. 법률 제14073호로 개정되기 전의 것, 이하 같다)의 국회의원지역선거구구역표는 위 헌법재판소 결정에 따라 2015. 12. 31.이 경과됨으로써 효력을 상실하였고, 2016. 4. 13. 시행된 제20대 국회의원 총선거의 지역선거구는 2016. 3. 3. 공직선거법이 개정·시행됨으로써 비로소 확정되었기 때문에 이 사건 범행일인 2016. 2. 5.경∽2016. 2. 6.경 당시에는 지역선거구가 없었으므로, 제3자 기부행위로 인한 공직선거법위반죄가 성립하지 않는다고 주장한다.

In this regard, the prosecutor asserts that the election district for the 20th National Assembly member general election still exists, such as the reasons for appeal, so the violation of the Public Official Election Act due to the third party's contribution act is established.

Ultimately, the difference between the defendant and the prosecutor's assertion is whether the "election district concerned" as provided in Article 112 (1) of the former Public Official Election Act can be seen as an existing election district or a future decided election district.

4) Specific determination

In light of the following circumstances, the term “relevant constituency” under Article 112(1) of the former Public Official Election Act means the existing constituency as provided in the table of the districts for the National Assembly members in attached Table 1 of Article 25(2) of the former Public Official Election Act, and it cannot be deemed that it means a constituency to be decided in the future. Therefore, the prosecutor’s assertion of mistake or misapprehension of legal principles is without merit.

① Under the Public Official Election Act, the other party to a contribution act stipulates that “the person in the relevant constituency” is “the person in the relevant constituency,” and the purport of prohibiting such person from making a contribution is to prohibit such a case, as the provision of money and goods or property benefits to not only electorates but also electors in the relevant constituency is likely to affect electors (see Supreme Court Decision 96Do500, Nov. 29, 1996, etc.).

In relation to the meaning of the "election district", the former Public Official Election Act does not have an explicit provision that defines the meaning, but in light of the ordinary meaning of the language and text and the fact that the local constituency National Assembly member is an election by the constituency of the relevant National Assembly member, i.e., the local constituency for the National Assembly member, and the name and district of the local constituency for the National Assembly member in attached Table 1 of Article 25(2), the "election district" in the election of the local constituency National Assembly member means each local constituency for the National Assembly member defined and specified in attached Table 1.

In light of the language and purport of the provision on the restriction on contributions, it cannot be said that the act of contribution is premised on the existence of a valid constituency prescribed in attached Table 1 above. However, due to the Constitutional Court’s ruling of inconsistency with the Constitution, the schedule of the election district for the National Assembly members under the former Public Official Election Act becomes invalid from January 1, 2016, and the National Assembly’s amendment of the Public Official Election Act to the election law, and there is no schedule of the election district for the National Assembly members until March 3, 2016, and no local constituency exists.

② At the time of the public prosecutor’s assertion, the term “election district concerned” does not mean the existing election district under the Public Official Election Act at that time, but rather means the election district to be established in the future, causes the following problems.

For example, there are areas A, B, and C, and existing areas A and B were the same constituency, and the area B and C were changed to the same constituency due to the amendment of the Public Official Election Act, and A will file a candidate registration with the local election commission, and B will submit a contribution act against the following persons in the area B after registering the candidate with the local election commission.

Although the above change in the constituency was made through a normal procedure of law amendment, it is natural to interpret that Gap is punished and punished before the amendment, but after the amendment, Gap is punished and punished without the punishment. If it is interpreted that the relevant constituency means a election district for future election, such as the prosecutor's assertion, it would result in the result that Gap's act conducted before the amendment is not a contribution act for a person in the relevant constituency, and Eul's act would be punished as a contribution act for a person in the relevant constituency.

According to this conclusion, there is a gap in punishment in that Gap is not subject to punishment even though he committed an act of law with an intention to have an unreasonable influence on the election clearly. On the contrary, Eul is not subject to punishment at the time of the act. This is obviously a punishment by retroactive legislation, which violates Article 13 (1) of the Constitution (no citizen shall be prosecuted by an act that does not constitute a crime by law at the time of the act) and thus, it is extremely unfair conclusion that Article 13 (1) of the Constitution is not required.

As in this case, the election district table of the Public Official Election Act does not have a valid validity, but in a case where the Constitutional Court lost its validity as a ruling of inconsistency with the Constitution, but later the amendment of the Public Official Election Act was made later, it is unclear whether the other party to the contribution act is a person within a certain constituency at the time of the act, and it cannot be said that it is against the principle of no punishment without the law even if it is judged to be the basis of punishment based on the newly established election district

③ In particular, in a special case where local constituency consolidation is expected pursuant to the Constitutional Court’s ruling of inconsistency with the Constitution, it is extremely unreasonable and dangerous to determine whether to punish a contribution act based on the constituency to be determined in the future. Since a constituency to be determined in the future is generally expected and necessary to prohibit and punish it for fair and fair elections, the prosecutor appears to have premised on the fact that a decision on whether to punish a contribution act is not unfair, but is not unfair. However, the prosecutor’s assertion is difficult to accept in that the constituency is determined by taking into account the interests between the political forces and the large number of factors, and it is difficult to expect how to determine, even if it is expected that a certain degree of election district can be expected or almost change, it is difficult to clearly determine the degree, and thus, the possibility of a contribution act cannot be considered as the basis of whether to punish a person.

A public prosecutor asserts that the election district may vary whenever an election is held, and that there is a difference to the extent that the constituency demarcation is delayed, but it is not limited only to the election of the 20th National Assembly members, and in a case where the constituency demarcation is delayed due to conflicts of interest, etc. even though the election district is scheduled to be changed, a contribution act before the constituency demarcation is made in the absence of the election district inevitably. However, as seen above ② as seen above, the previous election district table at the time of the contribution act is still legally effective before the election district is changed and decided normally, and therefore, it is necessary to determine whether the election district table at the time of the contribution act is a constituent element based on the existing election district in accordance with the Constitutional Court's ruling of inconsistency with the Constitution. In this case, it is against the principle of no punishment without law to determine whether the election district constitutes a modified

④ The former Public Official Election Act and the Prevention of Unlawful Election Act (amended by Act No. 7189, Mar. 12, 2004) prohibit only the contribution act from “from 180 days before and after the expiration of the term of validity to the election day” (Article 112(4)1). However, the amended Public Official Election Act and the amended Public Official Election Act strengthens regulations that prohibit the full-time contribution act by abolition of the restriction period.

Therefore, if the meaning of the "election district" in the provision on prohibition of contribution act is interpreted as a constituency or a constituency to be set in the future, a person who wishes to be a candidate for a National Assembly member's election is subject to the provision on prohibition of contribution act in the circumstances where it is possible to define or change how the constituency he wants to leave for a period of four years after the immediately preceding election is demarcated and changed in the future, and the punishment of the act is set according to future legislation. This interpretation is not allowed because it violates the principle on prohibition of analogical interpretation and the principle on prohibition of penal penalty in the principle of no punishment without law, which are derived from the principle of no punishment without law. Therefore, in this regard, the provision on prohibition of contribution act should be interpreted as the premise of the existing election district based

Although the prosecutor asserts that the existing constituency is merely a mere meaning with the re-election, special election, or registration of preliminary candidates, there is no ground to interpret it against the language and text of the objective law.

⑤ It is true that it is not desirable to interpret “the relevant election district” as an existing election district as a result that a contribution act made from January 1, 2016 to March 2, 2016 would not be punished, and that a contribution act prohibited in the previous election district as a temporary vacancy period is not punishable. However, such a problem is not only an act of contribution but also an act of contribution at all times that the Constitutional Court determines as unconstitutional, and there is no reason to interpret it differently.

Therefore, on October 30, 2014, the Constitutional Court made a decision of inconsistency with the Constitution on the list of local constituency districts for the National Assembly and made it possible for the Constitutional Court to continue to apply the same until December 31, 2015. However, even if the National Assembly was granted a sufficient period of one year and two months in amending the list of local constituency districts for the National Assembly, the National Assembly did not determine the local constituency for the National Assembly before the said period expires. As a result, there was no constituency for the National Assembly, and accordingly there was a vacancy in punishment due to the National Assembly’s delay in legislation.

It is naturally prohibited acts (for example, murder, theft, etc.) but can not be punished unless the penal provisions are provided by law.

(6) Article 3 of the Addenda to the Public Official Election Act amended on March 3, 2016 provides for general transitional measures regarding the determination of constituency for the National Assembly member. However, such provision shall be deemed a provision prepared to prevent blanks in the procedures such as the registration of preliminary candidates. Based on the foregoing, if it is interpreted in the manner that a contribution act before January 1, 2016 can be punished on the basis of the previous constituency after March 3, 2016, it is against the Constitutional Court’s ruling of inconsistency with the Constitution, as well as against the principle of no punishment without prison labor and the principle of no punishment without prison labor, and thus, it shall not be permitted.

5) Sub-committee

Since the time when the Defendant provided goods is from February 5, 2016 to February 6, 2016, and there was no valid constituency that is the premise of contribution during the above period, the Defendant’s act cannot be evaluated as a contribution act under the former Public Official Election Act. Therefore, the lower court’s decision that acquitted the Defendant of this part is justifiable.

B. As to the assertion of unreasonable sentencing by the defendant and prosecutor

The purpose of the Public Official Election Act is to contribute to the development of democratic politics by ensuring that an election is held fairly in accordance with the free will of the people and democratic procedures, and by preventing any malpractice related to the election, and in particular, to prevent the confluence of election campaigns, and to ensure that an election is held fairly and transparently in accordance with free and democratic procedures, the acceptance and provision of money and valuables related to the election campaign is strictly regulated. The crime of this case is committed by the Defendant by providing the electorates, etc. with a total amount of KRW 1,225,200 in preparation for the local election in preparation for the future local election as a City Council member, and such crime is not less complicated.

On the other hand, the Defendant is attempting to commit a crime and is against the mistake. The value of an individual gift set offered to one electorate is relatively small in and out of KRW 10,000. The time when the Defendant made a contribution by the Defendant appears to have an impact on the election two years prior to the commencement date of a local election. A relatively minor gift is given to a person who was aware of it immediately before the establishment date of a local election, and the Defendant does not seem to have committed a crime under the confirmed objective for election. The Defendant does not have any criminal record exceeding the same kind of gift or fine.

Considering such circumstances as the Defendant’s age, character and conduct, environment, motive, means and consequence of the crime, and circumstances that are conditions for sentencing as shown in the records of this case as a whole, the sentence imposed by the lower court is deemed to be too unreasonable. Therefore, the prosecutor’s assertion that the Defendant’s unreasonable sentencing is reasonable, and the lower court’s sentence is too unjustifiable, cannot be accepted.

3. Conclusion

Therefore, since the defendant's appeal is well-grounded, the part of the judgment below's conviction among the judgment below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act and it is again decided as follows. The prosecutor's appeal on the part of innocence among the judgment below is without merit and it is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act.

The summary of the facts constituting an offense and the evidence recognized by this court is the same as that of the original judgment, and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

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

Articles 257(1)1 and 113(1) of the Public Official Election Act (Selection of Fines)

2. Aggravation for concurrent crimes;

Articles 37, 38 subparag. 2, and 50 of the Criminal Act [the penalty concurrent crimes prescribed in the Public Official Election Act due to a contribution act to the Nonindicted Party listed in [Attachment 1] No. 27] Articles 37, 38 subparag. 2, and 50 of the Criminal Act

3. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

4. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. The scope of punishment by law;

벌금 50,000원∽15,000,000원

2. Scope of recommended sentences according to the sentencing criteria;

(a) Basic crimes and concurrent crimes;

【Determination of Punishment】

The violation of the prohibition of and restriction on contribution to the election crimes > 1 type 1 (contribution act).

[Special Mitigation]

Where money, valuables or benefits provided are extremely insignificant;

【Determination and Scope of Recommendations】

감경영역, 500,000원∽3,000,000원

(b) Scope of recommendations according to the guidelines for handling multiple crimes;

500,000원∽5,500,000원(기본범죄의 형량범위 상한 ＋ 제1경합범죄의 형량범위 상한의 1/2 ＋ 제2경합범죄의 형량범위 상한의 1/3)

3. Determination of sentence: Fines of 900,000 won; and

The punishment shall be determined as per the order, comprehensively taking into account the various circumstances seen above.

Judge Lee Dong-dae (Presiding Judge)