(영문) 서울중앙지방법원 2017.8.18. 선고 2017고합670 판결

When Defendant A and C fail to pay the above fine, each of the above Defendants shall be confined in a workhouse for the period calculated by converting 100,000 won into one day.

However, with respect to Defendant B, the execution of the above sentence shall be suspended for two years from the date this judgment becomes final and conclusive.

To order the defendant A and C to pay an amount equivalent to the above fines.

Reasons

Criminal facts

Defendant B is a lessor holding a store in F commercial buildings, Defendant C is a lessor holding a store in the same commercial building, and Defendant C is a member operating the shop on the first floor of commercial buildings, Defendant A is an apartment management institute, Defendant A and C are in friendship with Defendant B, respectively.

1. No one shall make a contribution act for any person who intends to become a candidate with respect to the election, make a contribution act for any person who intends to be a candidate, get him/her to be elected or prevent him/her from being elected as a candidate in connection with the election for the intra-party competition, or provide any money, entertainment and other property benefits to any competition elector, etc. for the purpose of getting him/her to vote;

Nevertheless, Defendant B, with respect to the 19th presidential election at the end of March, 2017, recruited members of the National Assembly who participated in the 19th presidential election as a candidate for the presidential election of a political party to be elected as a candidate for the presidential election of a political party, Defendant B conspired to bear all the costs of the Defendant B, by inviting members of the National Assembly who participated in the 19th presidential election of a political party to be elected as a candidate for the presidential election of a political party. On the 25th of the same month, Defendant B, who is a usual relative-friendly Defendant A and C, was taking the above persons into the voting place in Gwangju Dong-gu Office on the 20th day of the same month.

Accordingly, the Defendants recruited people to participate in the intraparty competition in the Gwangju metropolitan area at around that time, and on March 22, 2017, Defendant B called the 45-person tourist buses cut into Gwangju for the purpose of providing traffic convenience to participants, and on March 23, 2017, Defendant A paid KRW 50,000 to Defendant A and KRW 2.5 million to Defendant C on March 24, 201, respectively.

At around 07:00 on March 25, 2017, Defendant A and C had 29 participants, including I, board only one tourist bus (8.50,000 won) that Defendant B pre-leaseded in the Jongno-gu Seoul Jongnodong-gu, Seoul, and provided the participants with food equivalent to KRW 213,00,00, such as Kim Han-sung, while moving to the Dong-gu Office in Gwangju-gu, Gwangju where the G party competition polling station is located.

Defendant A and C, at around 12:30 on March 25, 2017, arrived at the Dong-gu Office of the relevant Gwangju metropolitan city, had the said participants participate in the G party competition voting and vote for the mark JH. After voting, Defendant A and C provided the said participants with meals equivalent to KRW 4.30,000, such as rice tea, during the period of 17:01 on the same day at the L restaurant located in the Gwangju Mine-gu, Gwangju, with meals equivalent to KRW 4.30,00,00, such as 140,000, including fishing gear, around 17:01 on the same day, and thereafter, provided the same participants with a variety of meals equivalent to KRW 60,00,00, such as coffee, at the expressway rest.

As a result, the Defendants conspired to make a contribution to 29 persons such as the above I for the 19th presidential election, including the provision of meals and transportation equivalent to 2,08,928 won. At the same time, the Defendants provided 23 electors such as the above 29 persons, including the above I, who participated in the competition voting, with approximately 51,00 won per capita for the purpose of enabling 23 persons such as the above 29 persons to vote to be elected as a candidate for the H.

2. No competition campaign may be conducted in a manner other than that provided for in the Public Official Election Act in the intra-party competition campaign, which is conducted by giving voting rights to persons who are not party members and party members.

Nevertheless, as described in paragraph (1) of March 25, 2017, Defendant A and C got off a tourist bus to Gwangju Dong-gu Office as stated in paragraph (1) of the same Article, and, in accordance with the contents of the prior recruitment with Defendant B, Defendant A and C had the said 29 participants prepare an application for participation in the competition prepared in advance to the said 29 participants according to the contents of the 19th presidential election campaign, and said Defendant A and C said that they would make it possible for H candidates to be elected as candidates for the 19th presidential election.

As a result, the Defendants conspired to give the right to vote to the party members and those who are not the party members and conducted the competition campaign in a way other than that provided by the Public Official Election Act.

Summary of Evidence

1. Defendants’ respective legal statements

1. Each prosecutor's statement concerning 0 and I;

1. Each statement in the preparation of P, Q, R, S, T, U, V, W, X,Y, Z, AAB, AC, AD, AE, AF, AH, AH, AI, AJ, and AK;

1. A copy of the book, such as a receipt for the lease fee of the current plan for the dispute resolution, the details of the operation of the GPS, the payment status of meal expenses after the Ncafeteria meals, the details of payment of the N-cafeteria meals, the details of payment of the N-cafeteria meals, etc., a list of participants, a list of 34 copies of CCTV in the N-cafeteria CCTV, a transcript of the transcript, a transcript of the document of verification, a copy of the document of receipt and disbursement, a copy of the ledger, and

1. Each investigation report (to hear statements by witnesses who have participated in the competition voting at the C's request, hear statements by witnesses, hear statements by witnesses, hear AM telephone statements by witnesses, confirm whether electors for the mobilization of the intra-party competition in the Gwangju political party area participate in the voting, and confirm whether contact with witnesses is possible);

1. A written accusation;

Application of Statutes

1. Article applicable to criminal facts;

Articles 257(1)1 and 115 of the Public Official Election Act, Article 30 of the Criminal Act, Article 230(7)2 of the Public Official Election Act, Article 30 of the Criminal Act, Article 255(2)3 and 57-3(1) of the Public Official Election Act, Article 30 of the Criminal Act, Article 255(2)3 and 57-3(1) of the Public Official Election Act, Article 30 of the Criminal Act

1. Commercial competition;

Articles 40 and 50 of the Criminal Code (the crime of violating the Public Official Election Act due to the violation of the restriction on contributions by a third party, the crime of violation of the Public Official Election Act due to the provision of profits related to the intraparty competition, and the punishment prescribed in the crime of violation of the Public Official Election Act

1. Selection of punishment;

Each fine for the violation of the Public Official Election Act against Defendant B in relation to each of the violations of the Public Official Election Act against each of the following subparagraphs:

1. Aggravation for concurrent crimes;

(a) Defendant A and C: The number of concurrent crimes resulting from the violation of the Public Official Election Act due to the violation of the Act on Contribution-restricted Act by a third party with a more weighted punishment under the former part of Article 37, Article 38(1)2, and Article 50 of each Criminal Act (to the extent that the total amount of the above two crimes is aggregated)

(b) Defendant B: A concurrent offender (within the scope of adding up the long-term punishments of the above two crimes) determined in the crime of violating the Public Official Election Act due to a violation of the Act on Contribution-restricted Act by a third party heavier than the punishment prescribed in the former part of Article 37, Article 38(1)2, and Article 50

1. Detention in a workhouse;

Defendant A and C: Articles 70(1) and 69(2) of the Criminal Act

1. Suspension of execution;

Defendant B: Article 62(1) of the Criminal Act (General Considerations favorable to the reasons for sentencing below)

1. Order of provisional payment;

Defendant A and C: Article 334(1) of the Criminal Procedure Act

Judgment on the Defense Counsel's argument

1. Summary of the assertion

A. Article 115 of the Public Official Election Act provides that the third party is prohibited from making a contribution in relation to the election, and the above election refers to the 19th presidential election in this case, and the Defendants provided meals, transportation, etc. to elect the candidate as the candidate in the intra-party competition. Thus, the Defendants cannot be deemed to have made a contribution in relation to the presidential election.

C. The crime of violation of the Public Official Election Act due to the violation of the contribution-restricted act by a third party and the crime of violation of the Public Official Election Act due to the provision of profits related to the intraparty competition are prohibited and punished. The latter is a special relation with the former, since the purpose of election as a candidate in relation to the intraparty competition is the element of "the purpose of election as a candidate in relation to the intraparty competition". Thus, the facts of the judgment No. 1 are established

2. Determination

A. Whether the act of offering profits in the judgment was conducted "as to the election of the President"

1) Article 115 of the Public Official Election Act provides that "no one shall make, or have another make, a contribution to an election for a candidate or a political party to which he belongs, in connection with the election." The term "election" in the above provision is sufficient if it is related to the election in question, such as motive for, or borrowing of, the relevant election, even though it is not an election campaign for the election in question (see, e.g., Supreme Court Decision 96Do405, Jun. 14, 1996).

2) Comprehensively taking account of the various evidence duly adopted and examined by this court, it can be sufficiently recognized that the defendants secured a large number of electors supporting H candidates in the G party competition and offered meals and transportation convenience to participants for the purpose of selecting them as candidates for the presidential election. Considering the purport of Articles 1, 7, and 47 of the Public Official Election Act, the above intra-party competition is limited to the 19th presidential election, and ultimately, it can be viewed as related to the above election. Thus, it is reasonable to view that the defendants offered meals, etc. to the participants in the above intra-party competition as "act of providing meals, etc. to the participants in the above intra-party competition" and constitutes a contribution act prohibited by Article 115 of the Public Official Election Act (see, e.g., Supreme Court Decision 2007Do1720, May 5, 2007).

B. Determination as to the relation of acceptance of crime

1) The purchase and inducement by interest under Article 230 (7) 2 of the Public Official Election Act, in order to recommend or elect candidates for public offices through democratic procedures, is a provision prohibiting acts of offering money, goods, etc. to competition candidates, competition electors, and witnesses in the intra-party competition. However, the crime of violating the restriction on contribution under Article 257 (1) 1 of the same Act is likely to contribute to creating a foundation for supporting a candidate or to be associated with a purchase act, and if such act is allowed, it is likely that the election itself would go through the process of raising funds of candidates or their supporting groups rather than being given an opportunity to evaluate the candidate's water, knowledge and policies. As such, the above two crimes are different from each other's legislative purpose and legal interest, and there are many differences in the specific elements of the act, such as the subject of contribution or donation, the contents and methods of the act, etc., and the relation with Article 230 (7) 2 and Article 257 (1) 1 of the Public Official Election Act.

2) Therefore, since the Defendants’ act of offering profits constitutes separate constituent elements, each of which satisfies the respective constituent elements, the Defendants’ act of offering profits constitutes a crime of violating the Public Official Election Act due to the violation of the restriction on contribution by a third party and the crime of violating the Public Official Election Act due to the provision of profits related to the intraparty competition is in a mutually competitive relationship (see Supreme Court Decision 2002Do6033, Apr. 8, 2003).

Reasons for sentencing

1. Reference to the sentencing criteria;

[Determination of Punishment] Violation of Prohibition of and Restriction on Contribution Act for Election 1 (Contribution Act)

【Special Convicted Person】

[Scope of Recommendation] Defendant B: Imprisonment of one month to ten months (Basic Area)

Defendant A and C: fine of one million won to five million won (basic area)

2. Determination of sentence;

The main contents of the instant crime are as follows: (a) inviting 29 participants in the competition campaign to assist the H candidate who was going through the intraparty competition in the 19th presidential election; and (b) providing them with approximately KRW 2.230,000 for meals, transportation means, and other property benefits. This is an offense contrary to the legislative purpose of the Public Official Election Act to prevent confusion by preventing the excessive competition of the intraparty competition campaign; (c) preventing the excessive competition of the intraparty competition campaign; and (d) preventing confusion by the election of the 19th presidential election. In particular, even though the Defendants led the overall crimes of this case and bear all the expenses, Defendant B led other Defendants to make a false statement during the investigation process, thereby inducing other Defendants to make a false statement.

However, the above acts of the Defendants did not affect the result of the intra-party competition, including private tourism elements unrelated to the offered property interests, and at the time, the Defendants did not fully recognize that the act of offering benefits was illegal. Also, Defendants A and C did not have any previous conviction, and all the Defendants are responsible for and against their rush behavior.

In addition to these various circumstances, the sentence shall be determined as ordered in consideration of the circumstances shown in the records and pleadings, such as the defendants' age, character, conduct and environment, motive and consequence of the crime, and circumstances after the crime, and the execution of the sentence against the defendant B shall be suspended.

Judges

The presiding judge and judges;

Judges Sung Jae-in

Judges' Index

Note tin

1. (2,233,00 won: 31) X 29 persons;

(ii)[2,233,00 won - 213,000 won (livering expenses of a road to be landed) - 425,000 won (blocks of a road to be landed) : 31 persons;

3) Each of the crimes of No. 1 in the holding against the Defendants does not present a separate processing method in the sentencing guidelines, but the sentencing guidelines refer to the recommended sentence based on the violation of the Public Official Election Act due to the violation of the restriction on contribution by a third party with the largest punishment.

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