Defendant

Book-keeping (prosecutions) and Kim Jong-ran (public trial)

Attorney Lee Il-ho et al.

Defendant shall be punished by a fine of KRW 1,000,000.

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

In order to order the provisional payment of an amount equivalent to the above fine.

On December 15, 2015, the Defendant registered as a preliminary candidate to leave the election district of the 20th National Assembly member in Gyeonggi-do, ○○ City, Gyeonggi-do.

1. Preliminary election campaigns;

No one shall engage in any election campaign except for the methods prescribed in the Public Official Election Act before the election campaign period.

Nevertheless, on April 19, 2015, prior to the election campaign period of the 20th National Assembly member, the Defendant distributed approximately 300 copies of the name cards indicating the appeal for the election of the National Assembly member, to carry out an advance election campaign, on the front of the vehicles parked in the △△△ apartment underground parking lot located in △△△△△△, located in the 20th National Assembly member, including the Defendant’s career, including the Defendant’s career, on the front of the vehicles located in the △△△△ apartment underground parking lot located in the 20th National Assembly member.

2. Contributions;

A person who intends to be a candidate for a National Assembly member shall not make a contribution to a person in the relevant constituency or an institution, organization, or facility, or a person having relations with the electorate even if such person is outside the relevant constituency, or an institution, organization, or facility.

Nevertheless, on October 18, 2015, the Defendant: (a) purchased two banners for public relations (a.7m., 3m., 1.3m.) to guide the schedule and contents of the event in order to publicize the events at the △△△△ Police Association, which was scheduled to hold on October 24, 2015, at the ○○○○ City ( Address 2 omitted); and (b) installed a vehicle number of the Defendant’s (vehicle number omitted); (c) installed it on the truck vehicle, from that time to October 24, 2015, the Defendant promoted the above event in such a way as to operate the cargo vehicle with the amount of KRW 50,000 from a day-to-day ○○○ City to a day-to-day 50,000 for an amount equivalent to the oil price.

As a result, the defendant provided a person who wishes to be a candidate for the election of a National Assembly member and a related organization with the electorate with a property interest of 150,000 won.

1. Partial statement of the defendant;

1. Examination protocol of the accused by prosecution;

1. Each police protocol on Nonindicted 2, Nonindicted 3, Nonindicted 4, and Nonindicted 5

1. A report on internal investigation (Attachment of photographed output), internal investigation report (the attachment of data, the name of the defendant), internal investigation report (the local newspaper or press report), and internal investigation report (the hearing of the statement by the telephone of Nonindicted 2 (the staff of senior official));

1. A vehicle installation banner, a heat forest music book, or a leaflet (police creative 70 weeks commemorative);

1. Inspection of the register of motor vehicles:

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

Article 254(2) of the Public Official Election Act (the point of a prior election campaign, the selection of a fine), Article 257(1)1, Article 113 (the point of contribution and the selection of a fine)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (within the scope of the sum of the long-term punishments for the crimes above two crimes prescribed in the Public Official Election Act due to an act of contribution with heavier punishment)

1. Detention in a workhouse;

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

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. The gist of the assertion (paragraph (2) at the time of sale);

The defendant's publicity of the music conference held by the non-indicted 1 Association and the △△△△○ Association is not an act of courtesy as provided by Article 112 (2) 2 (f) of the Public Official Election Act or an act of relief and charity as provided by Article 112 (2) 3 (g) of the same Act, but an act of donation prohibited under the Public Official Election Act. Even if it constitutes a contribution act, illegality is excluded as a justifiable act that does not violate the social rules

2. Determination

(a) Relevant legal principles;

Article 113 of the Public Official Election Act limits all contributions made by local council members, etc.; Article 112(1) of the same Act comprehensively provides for the types of contributions subject to punishment; Article 112(2) of the same Act limits the exceptions; and Article 112(1) of the same Act does not apply to the acts of providing money, goods, etc. falling under Article 112(2) of the same Act as ordinary or official acts or ordinary political party activities by the National Election Commission and its decision based on Article 112(2) of the same Act; provided that the acts of offering money, goods, etc. falling under Article 112(1) of the same Act do not fall under the elements for constituting crimes under Article 257(1) of the same Act, which punish the violation of the prohibition of contributions by local council members, etc.: Provided, That even if the contribution act does not fall under the ordinary or official acts or ordinary political party activities under Article 112(2) of the same Act, if it can be deemed that they are within the scope of historical social order, it should be justified (see Article 209(60).

B. As to the assertion that the act of donation prohibited under the Public Official Election Act is not prohibited

Article 112(2)2(f) of the Public Official Election Act provides that "the act of a religious person to donate money (including the provision of goods) to a church, church, temple, inspection, etc. of his/her usual meeting shall not be deemed a donation act as a courtesy, and subparagraph 3(g) of the same paragraph provides that "the act of offering money or goods to events, such as a supporters' association, etc. to assist a State agency, local government, or relief and charity organization, the disabled, a person who has rendered distinguished services to the State, a person who has rendered distinguished services to the State, a senior citizen without dependents, a person who is disabled, a ties, a person who is victims, or a recipient under the National Basic Living Security Act, etc." shall not be deemed a donation

그런데 피고인은 단지 ○○시 ☆☆동 소재 ◎◎◎◎교회 신도일 뿐, 열린음악회를 개최한 공소외 1 사단법인이나 ◇◇◇◇연합과는 평소 아무런 관계가 없었고(수사기록 제399쪽), 위 단체가 개최하는 행사를 대신 홍보해 주는 행위를 공직선거법 제112조 제2항 제2호 마.목 에서 정한 “통상의 예에 따라 헌금하는 행위”에 해당한다고 보기도 어렵다. 또한 열린음악회를 개최한 공소외 1 사단법인 및 ◇◇◇◇연합을 공직선거법 제112조 제2항 제3호 사.목 에서 정한 “구호·자선단체”라고 볼 수도 없다. 따라서 피고인 및 변호인의 이 부분 주장은 받아들이지 않는다.

C. As to the assertion that illegality is excluded

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by this court: (a) the Defendant did not have any usual relationship with Nonindicted Incorporated Association 1 or △△△△△ Group, which was held an open music meeting; (b) the Defendant first contacted the president of Nonindicted Incorporated Association 1, who held an open music meeting with Nonindicted Incorporated Association 4, and proposed to change his position as a director to promote the open music meeting; and (c) the Defendant demanded the Defendant to look at the society at the open music meeting instead of promoting the open music meeting to Nonindicted Incorporated 4; and (d) the Defendant appears to have promoted the open music free of charge by viewing the society at the open music meeting, it is difficult to view the Defendant’s act of promoting the open music meeting as a justifiable act that does not violate the social rules. Accordingly, this part of the Defendant and the defense counsel’s assertion is rejected.

The crime of this case is an act that damages the purpose of legislation of the Public Official Election Act in order to promote the fairness of election by making a prior election campaign in violation of restrictions under the Public Official Election Act or by making a contribution act. Furthermore, even if the defendant had been punished twice prior to this case, he violated the Public Official Election Act again even though he had been punished as a violation of the Public Official Election Act

However, it shall be considered that the value of the contribution act is relatively small amount, the defendant's resignation from the position of a preliminary candidate has no influence on the result of the election, etc. taking into account favorable circumstances, and taking into account the defendant's age, character and conduct, environment, motive, means and consequence of the crime, and circumstances after the crime, etc., the punishment as ordered shall be

Judges Hong Pung-Do et al. (Presiding Judge)