2018Gohap550 Violation of the Public Official Election Act and the Resident Registration Act

A

Prosecution (prosecution, public trial)

Law Firm Busan, Attorney Park Jae-sung, and Park Jong-young

May 31, 2019

The defendant shall be punished by a fine of KRW 1,500,00,00 for the crime No. 2 as stated in the judgment, and a fine of KRW 300,00 for the crime No. 1 as stated.

When the defendant does not pay each of the above fines, the defendant shall be confined in a workhouse for the period calculated by converting 100,000 won into one day.

The provisional payment of the amount equivalent to each of the above fines shall be ordered.

Criminal facts

1. Violation of the Public Official Election Act

The defendant was elected at the 7th local election of the head of the Busan Metropolitan City B head on June 13, 2018.

No person shall publish false facts about the status, occupation, and career of a candidate, an organization to which the spouse of the candidate belongs, a specific person, or a specific organization, etc. of the place of birth of a candidate, his/her spouse, his/her family relationship, occupation, and career, etc., in favor of the candidate by means of a speech, broadcast, newspaper, communications, magazine, poster, propaganda document, etc. for the purpose of being elected or having another person elected. In addition, a candidate to run in an election for public office shall submit a report on the property subject to registration as of December 31 of the preceding year (hereinafter referred to as "report on the property of a candidate for public office") to the competent election commission. In such cases, the value of a commercial building, an officetel, and other buildings among the property subject to registration shall be calculated separately from the amount of the building and the value of the building, and the value of a building shall be calculated and entered as the highest value among the values publicly notified by the State or a local government as prescribed by the Public Notice of Values Act.

In fact, the Defendant owned the first floor F (47.40m of the site area, 373.65m of the building area, 1,45,722,00 won in total) and G (23.60m of the site area, 186.02m of the building area, 56,439,00 won in total of the site amount and the building value) on the ground of Busan and one parcel E (hereinafter referred to as “E building”) (the total amount of the two sites was 1,712,161,000 won in total, and the building value) on May 24, 2018, the Defendant submitted a registration of property to the B Election Commission located in Busan and Busan, Busan, (hereinafter referred to as “BB Line”) (hereinafter referred to as “E building”) and the total amount of the land price was 38.60m of the building area and the Defendant’s property value was 386,607,608.278.68.

In such cases, a candidate to run in an election for public office, who is obligated to report property pursuant to the Public Official Election Act, etc., notwithstanding the duty to immediately contact the competent election commission and revise the details of false property reported, the Defendant failed to take such measures for the purpose of election, and up to June 13, 2018, posted KRW 387,606,00, which is the total amount of property falsely posted, via the Internet site of the National Election Commission.

In addition, as seen above, the Defendant made book-type election campaign bulletins 25,515 books containing false total property amounting to KRW 387,606,00, and submitted them to the Bade House and the Dong community service center within the jurisdiction of B and B on June 1, 2018, and made them sent to B voters during the period from June 2, 2018 to June 3, 2018. Accordingly, the Defendant published false facts on the Defendant’s property in favor of the Defendant for the purpose of election.

2. Violation of the Resident Registration Act.

No person shall report or apply any false fact with respect to a resident registration or resident registration certificate.

In fact, since March 2013, the Defendant was residing in Busan building (from March 2013 to March 2018, from March 2018, to April 1, 2018, to April 2018) and did not have resided in the building J, Busan L, and F. However, in order to report public official's property after being elected as the head of Busan Office from the 7th local election implemented on June 13, 2018, the Defendant was in need of an accurate resident registration address in detail to report public official's property after being elected as the head of Busan Office. As such, the Defendant did not make a move-in report with K of the above building currently residing and used the former Defendant's resident registration address to report a correction of the resident registration to add F to F by using the fact that the address of the former Defendant is "nonsan L."

Accordingly, the Defendant submitted a resident registration report to the N community Service Center located in Busan in August 27, 2018, to correct the resident registration address to "Masan L building and Fho", and made the revised resident registration on the same day.

Accordingly, the Defendant reported false facts on the resident registration.

Summary of Evidence

1. Defendant's legal statement;

1. Witnesses and each legal statement in P;

1. A report on the property of a candidate for public election;

1. A reply to the list of candidates, ballot counting results by unit of ballot counting, open data on candidate information, official gazettes, materials on election campaign bulletins, submission of election campaign bulletins, book-type election campaign bulletins and reports on the current status of submission of election campaign bulletins, 1. Reporting expenses table on each property, the methods of preparing related Acts and subordinate statutes and property registration statements, the calculation sheets and requests for cooperation in investigation;

1. Personal record cards;

1. Full certificates of each registered matter, each regular statement of taxation, the tax of the Gu office and output of the internal transmission network, the certificate of tax payment of local tax, the certificate of taxation by each local tax item, each payment record, each tax cadastre, and each register of executive buildings;

1. Records of each recording (the dialogue between the defendant and Q real estate, between the defendant and R, and between the defendant and the defendant);

1. Photographss of each e-mail closure, caps of text messages, and photographs of building in building owned by the defendant;

1. Resident registration statement;

1. The details of monthly rent contract, each certified copy of resident registration, each certified copy and abstract of resident registration, and each transfer household inspection;

1. Application of Acts and subordinate statutes to each accusation (Tparty Busan Metropolitan City Party, Busan Metropolitan City B Election Commission, U);

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

Article 250(1) of the Public Official Election Act (the publication of false facts), Article 37 subparag. 3-2 of the Resident Registration Act (the point of reporting false facts about the registration of the citizen), and selection of each fine.

1. Article 18 (3) and 18 (1) 3 of the Public Official Election Act (the punishment against a violation of each Public Official Election Act and the punishment on a violation of the Resident Registration Act shall be imposed separately);

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Mutually Violating the Public Official Election Act)

1. Invitation of 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] Article 10-2 (1) of the Public Official Election Act provides that a person who applies for registration of a candidate shall submit a report on the property subject to registration under the provisions of Article 10-2 (1) of the Public Service Ethics Act, and the competent constituency election commission shall make such documents available to the electorate (see Article 49 (4) 2 and (12) of the Public Official Election Act). Article 4 of the Public Service Ethics Act provides that a person who intends to be a candidate for an election of the head of a local government shall submit a report on the property subject to registration under Article 4 of the same Act as of December 31 of the preceding year to the competent election commission and the competent election commission shall disclose the candidate's report at the time of public announcement of the candidate's registration (see Article 10-2 (1) of the Public Service Ethics Act). Article 49 of the Public Official Election Act provides that the candidate's disclosure of the candidate's property right to file a false report on the candidate's property registration without delay, in light of the legislative purpose of the Public Official Election Act.

Furthermore, the crime of publishing false facts is also established by willful negligence (see, e.g., Supreme Court Decision 9Do5190, Feb. 26, 2004). The defendant's assertion that the total amount of his property was falsely posted on the Internet site of the National Election Commission around May 27, 2018, as stated in its reasoning, at the time of the submission of the report on the property of the public official without making efforts to confirm such possibility, the defendant's total amount of property was 1.4 billion won and 7 billion won, and the total amount of property was 1.5 billion won and 8 billion won and 1.5 billion won and 8 billion won and 1.6 billion won and 5 billion won and 1.8 billion won and 1.6 billion won and 8 billion won and 1.6 billion won and 5 billion won and 1.6 billion won and 5 billion won and 1.8 billion won and 5 billion won and 800 billion won and 1.3 billion won and 1.8 billion won and 3.00 billion won and 3.

As above, the defendant's intent to commit each violation of the Public Official Election Act can be sufficiently recognized.

Reasons for sentencing

1. The scope of punishment by law;

(a)Violation of each Public Official Election Act: a fine of KRW 50,000 to KRW 45 million; (b)Violation of the Resident Registration Act: fine of KRW 50,000 to KRW 30 million;

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

A. Violation of each Public Official Election Act;

[Determination of Punishment] Election / 03. Publication of False Information and Slanders against Candidates / [Type 2] Publication of False Information for Election Purposes

【Special Convicted Person】

[Recommendation Area and Scope of Recommendations] Basic Area, Fine of 2 million won to 8 million won

[Scope of the recommended punishment according to the criteria for handling multiple crimes] A fine of KRW 2 million to KRW 12 million, and a violation of the Resident Registration Act: Sentencing is not applied.

3. The act that a candidate for public office does not faithfully report the details of his own property by regulating the acquisition of property using public office, thereby preventing public officials from increasing their illegal property and promoting fairness in the performance of public services, as well as hindering free and fair election by impeding the correct judgment of electors on the economic life of a candidate for public office. The defendant received 10,617 votes (47.195%) from the head of B's holding that the total amount of 70 billion won of the 70 billion won of the 70 billion won of the 700 million won of the 700 million won of the 500 million won of the 700 million won of the 500 million won of the 7000 won of the 500 million won of the 196th of the 196th election report (the 700 billion won of the 196th election report) and that the average 700 million won of the 100 million won of the 700 billion won of the 7000 billion won of the 2 election report.

In full view of the above circumstances and the Defendant’s age, character and conduct, environment, family relationship, motive and background of the crime, means and consequence of the crime, various sentencing conditions as shown in the arguments, including the circumstances after the crime, the punishment as ordered shall be determined.

The acquittal portion

1. Summary of the primary facts charged

The defendant was elected at the 7th local election of the head of the Busan Metropolitan City B head on June 13, 2018.

No one shall publish false facts as to the place of birth, family relation, status, occupation, career, etc. of a candidate, organization to which the spouse of the candidate or his/her lineal ascendants or descendants belong, support from a specific person or a specific organization, etc., in favor of the candidate by means of a speech, broadcast, newspaper, communication, magazine, poster, propaganda document, etc. In addition, the candidate to run in an election for public office shall submit a property report on the property subject to registration as of December 31 of the preceding year to the competent election commission. In such cases, the value of commercial buildings, officetels and other buildings among the property subject to registration shall be calculated separately from the amount of the building and the value of the building, and the site value shall be calculated and stated as the “individual X (m)” under the Act on the Public Notice of Values of Real Estate", and where it is impossible to verify the above value, the actual market price shall be stated.

For the purpose of election, the Defendant submitted a report on the property of the candidate to run in an election for public office on May 24, 2018, and the facts are as follows: (a) the Defendant was holding the first floor F (47.40 square meters in the site area; 373.65 square meters in the building area; (b) the aggregate of the site amount and the building value) and G (23.60 meters in the site area; (c) and 186.02 meters in the building area; and (d) the aggregate of the site amount and the building value (c) but (d) the Defendant did not file a report on the property of the candidate to run in an election for public office on May 24, 2018, and reported that the total amount of the Defendant’s property was 387,606,000 won in the aggregate of the site value and the building value was 1,660,000 won in the Internet site of the National Election Commission to 387,607,5.

2. Determination

A. The negligence, which is a constituent element of the relevant legal doctrine, refers to the negligence that is a requisite for liability as a constituent element of the crime, fails to recognize the facts that constitute the constituent element of the crime by neglecting the normal attention of the normal person, and such negligence

A punishment shall be imposed only where there is a provision, and a special provision in the nature of a penal provision shall be clear and clear (see, e.g., Supreme Court Decision 83Do2467, Dec. 13, 1983).

In the crime of publishing false facts under Article 250(1) of the Public Official Election Act, it constitutes the elements of the crime of publishing false facts, and therefore, it is necessary to recognize that the facts are false as the content of the actor’s intentional act. As long as it is difficult to know or prove it outside due to its nature, the existence or absence of such subjective perception should be determined on a normative basis by comprehensively taking into account all the circumstances such as the Defendant’s academic background, career, social status, process of publication, timing of publication, and its objectively anticipated ripple effect (see, e.g., Supreme Court Decision 2005Do2627, Jul. 22, 2005).

B. Determination

Examining the following circumstances acknowledged by the evidence adopted by the court in light of the legal principles as seen earlier, it is difficult to deem that the evidence submitted by the prosecutor alone was insufficient to deem that the Defendant was aware that the total amount of the Defendant’s property recorded therein was false at the time when the report on the property of the candidate for public office was submitted on May 24, 2018, as stated in the aforementioned facts charged (as seen earlier, even if the Defendant delegated the head of the election campaign office 0 to prepare and submit the report on the property of the candidate for public office, such circumstance alone cannot be deemed to have been deemed to have had a comprehensive intention on the Defendant as to the above 0 well-known act without any separate legislative measure for the reason that the real necessity of punishment exists (i.e., the actual actor’s negligence is evaluated as having the intention and causing a result contrary to the principle of liability).

1) On May 24, 2018, there is no ground to deem that the Defendant was aware that the total amount of the property was unreasonably and insufficiently written due to the omission of a part of the real estate in the report by the time the report on the property of the candidate for election of public officials was submitted on the B

A) On May 23, 2018, at around 09:27, the Defendant received a phone from the Ra in charge of B Line, to the day before the due date, to undergo a preliminary review of the candidate registration document. On the same day, the Defendant visited B Line in the morning on the same day and provided a detailed explanation on the method of property reporting.

B) Since then, the Defendant performed the duty to prepare and submit a property report in the election for public offices to 0. At the time, the Defendant added to 0 an explanation to the Defendant that the address of the Defendant-owned building 5 and 9th floor of the E-building 9 and underground 1st floor were divided into 2 rooms, wherein the address of the Defendant-owned building and 5th floor of the E-building 9 was written in the paper A4, and other vehicles owned by the Defendant’s financial institution was informed.

C) However, after pointing out the election campaign workers W and private reasons, at around 13:00 on the same day, the above W and P had been in charge of preparing the report on the property of the candidate for public election, and had been in charge of preparing the said report on the property of the candidate for public election, and the above W and P had been in charge of preparing the report on the property of the candidate for public election. P around 15:00 on the same day: (a) around 15:00, the V visited B Line and explained about the method of filing the report; and (b) was issued a land cadastre based on the copy of the report on the E-building K & H of the building and the E-building, which had been issued in advance by the 0’s spouse (for the E-building X of the above certified copy of the register, not the Defendant’s ownership, the copy of the report on the E-building F and H was not issued. P investigated into the information on the property other than real estate by telephone or Internet, and prepared the report on the property of the candidate for public election.

D) On the same day, P returned to the election office at around 20:00, and P sent the draft report on the property of the above candidate for public office to 0 as a mail. This confirmed changes in the Defendant’s Y Bank deposit and loans, and reflected this in P, and instructed P to supplement the draft. Accordingly, P subsequently sent the draft to P, in accordance with the foregoing direction, the copy of the register on the building that is not the Defendant’s ownership was issued. The notice was also made to the effect that P was “the request for review”.

E) Nevertheless, without finding out the omission of E.M. F and G heading in the E. building, the Defendant’s seal was affixed after correcting only a part of the draft written report on the property of the candidate for election of public officials, which was received on the said mail, and on May 24, 2018, submitted on the Bline the report on the property of the candidate for election of public officials prepared after the above lapse.

F) The Defendant and his objection made a statement or assertion to the effect that, in conformity with this law, the Defendant and the investigative agency to the effect that “the Defendant did not request the Defendant to review the report or that there was no report from the date the Defendant was entrusted with the preparation of the report on the property of the candidate for public election to the date the report was submitted to the B-line.” In fact, there was no evidence to verify that the Defendant reviewed the report or received the report on the matters in the process of preparing and submitting the report on the property of the candidate for public election as seen above.

2) On May 27, 2018, the Defendant seems to have recognized that the total amount of his/her property stated in the report on the property of a candidate for public election was underfinitely underfinite, unlike the real estate.

A) On May 27, 2018, the Defendant made a statement at the prosecutor’s office to the effect that “The Defendant directly entered the Internet site of the National Election Commission to confirm that the assets are too low, and that the total amount of the assets was reported to KRW 387,606,000.” On the other hand, the Defendant made a statement to the effect that, on the other hand, the Defendant sent a telephone to this effect, and that, on the other hand, the Defendant respondeded to the same effect as it reported at the published price because 0 was reported at the published price (see, e.g., evidence record 596 pages).

B) On May 27, 2018, at around 21:36, the Defendant: (a) sent a phone to this, and, (b) read, “whether or not the assets have been left outside of the place of residence?” (c) In doing so, the Defendant was aware of the developments leading up to calculating the total amount of assets recorded in the report on the property of the candidate for public election (see, e.g., evidence records).

3. Conclusion

Thus, since this part of the facts charged constitutes a case where there is no proof of a crime, the defendant should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, but as long as the defendant is found guilty of a violation of the Public Official Election Act under paragraph (1) of the facts charged in the preliminary

The presiding judge, lowest judge

Judges

The judge's netization

1) As to the method of calculating the “4 billion won in total of the assets indicated in the above individual record card at the prosecution,” approximately KRW 40-5 billion in the value of the real estate;

The total value of other property is about KRW 50-6 billion, excluding approximately KRW 1.8 billion from approximately KRW 1.8 billion, and the total value of the property is about KRW 30-4 billion.

4 billion won was stated in the statement (see, e.g., evidence records 579 pages). The publicly notified value of the real estate as alleged by the Defendant was stated in the statement.

In the event that the transaction value is 50% and the above statement is calculated in the same manner, the total amount of the Defendant’s property is about KRW 12-1.7 billion (=public notice price of real estate)

approximately KRW 20-2.5 billion + Other property value of approximately KRW 1 billion - approximately KRW 1.8 billion 1.8 billion loan obligations.