Defendant 1 and one other

Defendants

Duties Management

Attorney Park Dong-dong (for the defendant)

Seoul Southern District Court Decision 2008Gohap387 Decided October 30, 2008

All appeals by the Defendants are dismissed.

1. Summary of grounds for appeal;

A. As to the part of Paragraph (1) of the judgment below, the defendants' assertion of legal principles

The court below erred by misapprehending the legal principles on the following points.

(1) In light of the background, motive and character, time, frequency, number of participants, number of participants, method, object, contents, size, etc. of the instant party members meeting, the instant party members meeting constitutes an interview among party members related to party affairs as stipulated in the proviso of Article 141(1) of the Public Official Election Act, not a party members’ rally prohibited under Article 141(1) of the Public Official Election Act

(2) According to Article 63(1)1 of the Rules on the Management of Public Official Election, in the case of a party members' rally held by the office and training facilities for party members, it is excluded from an assembly subject to a report under Article 141(2) of the Public Official Election Act. Thus, the party members' rally held by the office, etc. of a political party does not constitute a party members' rally restricted under Article 141(1) of the Public Official Election Act. Since the party members' rally was held at Defendant 1's election office, it cannot be deemed that it constitutes a party members' rally prohibited under Article 141

(3) As long as a district party is abolished due to the amendment of the Political Parties Act, a political party that is the subject of a party members' rally prohibited under Articles 256(3) and 141 of the Public Official Election Act shall not be a central party and City/Do party. A party members' meeting of this case was conducted at the level of ○○○○ party members' council without involvement of the Seoul Special Metropolitan City party members' opinion at all. Since the party members' council is not a subordinate organization of the Seoul Special Metropolitan City party under the Political Parties Act, the party members' meeting at the level of ○○ party members' council, which is not a central party and City/Do party, which is a political party organization under the Political Parties Act, cannot be deemed as a party members' meeting under Article 141(1) of the Public Official Election Act. Further, for punishing the Defendants pursuant to Article 256(3)6 of the Public Official Election Act, the acts of adding "party members" to the party members' meeting, other than the subject of acts, or the acts of the Defendants are not explicitly defined in the current Public Official Election Act.

B. Defendant 1’s assertion of misapprehension of the legal principle as to Article 2(2) of the judgment below

① Even in such a case, it is difficult to view the Defendant as constituting an element for the crime of publishing false facts under Article 250(1) of the Public Official Election Act even in such a case, even though the Defendant received a regular degree course, it is merely a mere mistake and did not indicate one year of education. ② Moreover, the Defendant, who first run in an election for public office, was unable to understand various provisions of the Public Official Election Act, and the Defendant believed that ○○○○, a specialized company, should legally process public relations materials, and delegated the Defendant’s production. In the case of promotional materials of preliminary candidates for the Defendant, the Defendant reported to the election commission, and was examined by the election commission, but the Defendant was believed to be the promotional materials lawfully produced by the election commission, and thus all of the Defendant were believed to be the promotional materials legally produced by the election commission. However, the lower court convicted the Defendant of this part by misapprehending the legal doctrine on the establishment of a crime of publishing false facts under Article 250(1) of the Public Official Election Act.

C. Defendants’ assertion of unreasonable sentencing

In view of the fact that a party members’ rally held by the Defendants was held four times each time, 13 to 30 persons were gathered at Defendant 1’s election campaign office. At that time, Defendant 1 merely divided Defendant 1 into the participants and the number of music while introducing himself at that time, Defendant 1’s false contents also merely omitted the entry of the education period, so it is difficult to deem that Defendant 1’s fair judgment on the elector’s voting was exceeded. In light of the degree of violation of the Public Official Election Act and its contents, it appears that Defendant 1 did not have any influence on the elector. Defendant 1 stated the election campaign bulletin and campaign poster in the election campaign bulletin and campaign poster, Defendant 1 did not have any history of being punished for the same crime except for those sentenced to a fine by a violation of the Road Traffic Act, Defendant 2 was the initial offender, and the Defendants were able to repent his mistake in depth, it is unfair to punish Defendant 1 with a fine of KRW 1.5 million, and each fine of KRW 1200,000.

2. Determination on the grounds for appeal

A. As to the assertion that an interview constitutes a temporary interview between party members

According to the provisions of Article 141(1) of the Public Official Election Act, a political party shall not hold a party member training meeting, etc. for the party members within a constituency in which an election is being held or for the party members who are the electorates, regardless of the pretext, such as unity, training, training, education, or whatever, from 30 days before the election day to the election day, and in exceptional cases, the interview between the party members temporarily conducted for liaison, instruction, etc. with respect to party affairs shall not be deemed a party members' rally. Here, the term "party affairs"

In light of the records, the court below and the court below comprehensively reviewed and reviewed various evidence duly examined and adopted by the court below. Defendant 1 conspired with Defendant 2 on February 5, 2008 and was recruited as a candidate for the National Assembly member in the 18th National Assembly election at around March 8, 2008 (19 pages, evidence records, 4 pages, 658). Defendant 2 joined the 000 party and worked as the secretary general of the 000 party members council from November 2007 to the 000 party members council (4 rights of evidence records, 110 pages), and Defendant 2 conspired with Defendant 2 to contact with the party members or to inform Defendant 2 of the holding of the meeting through contact with each party members at the 180 party members council at the 000 party meeting within the 184th party election day (200 party members at each of the election districts at the 00 party members council within the 184th party members meeting as stated in the judgment of the court below).

Furthermore, according to the evidence above, Nonindicted Party 1, an employee of the election commission, made a statement to the effect that Defendant 1 had a conversation with the present party members at the site of this case held on March 25, 2008, and that it had been for more than one hour (Evidence 2, 63, 64, 265 pages), and Nonindicted Party 2, an official of the election commission, ○○○○○○○○○○○ Party’s party members at the site of the above assembly, made a statement to the effect that it was difficult for Defendant 1 to view that there was an interview with the present party members at the 20th election commission’ meeting for the purpose of reflecting the difficulties of the present party members at the 1st election commission, and that Nonindicted Party 3, who had been present at the 1st election commission meeting at the 20th election commission meeting at the 1st election commission meeting at the 20th election commission meeting at the 1st election commission meeting at the 1st election commission meeting at the 20th election commission meeting at the same time (Evidence 20th election of this case).

(2) As to the assertion that it does not constitute a party members' rally prohibited under the Public Official Election Act

According to the provisions of Article 141 of the Public Official Election Act, in principle, a party members' rally cannot be held within the constituency in which an election is in progress or for the party members who are electors, regardless of the pretext thereof from 30 days before the election day to the election day (paragraph (1)), while a party members' rally may be held for the period of 31 days before the election day. In this case, the holding of a party members' rally shall be reported to the competent election commission as prescribed by the Public Official Election Act (paragraph (2). However, in the case of a party members' rally held at the office, etc. of a political party as prescribed by Article 63 (1) 1 of the Rules on the Management of Public Official Election, etc. exceptionally, it is permitted to hold a party members' rally without reporting to the competent election commission by 31 days before the election day. Article 63 (1) 1 of the above Rules on the Management of Public Official Election merely provides for the cases of a party members' rally which is held without reporting to the competent election commission by 31 days before the election day.

(3) As to the assertion that the Defendants cannot be punished for holding the instant party members’ rally

공직선거법 제256조 제3항 에서 특정 정당의 중앙당이나 시·도당을 의미하는 정당만을 처벌하도록 규정하고 있으므로, 이 사건에서 ○○○당의 중앙당이나 서울특별시당과 무관한 피고인들에 대하여는 이 사건 당원집회의 개최를 이유로 처벌할 수 없다는 취지의 피고인들의 주장에 관하여 살피건대, ① 공직선거법 제141조 제1항 에 의하면, ‘정당은 선거일 전 30일부터 선거일까지 소속당원의 단합·수련·연수·교육 기타 명목 여하를 불문하고 선거가 실시중인 선거구 안이나 선거구민인 당원을 대상으로 한 당원수련회 등 당원집회를 개최할 수 없다’고 규정하고 있고, 이에 위반할 경우에는 공직선거법 제256조 제3항 에서 ‘정당의 당해 당부에 대하여는 1천만 원 이하의 벌금에 처하고, 당해 당부의 간부 또는 당원으로서 위반행위를 하거나 하게 한 자는 2년 이하의 징역 또는 400만 원 이하의 벌금에 처한다’고 규정하고 있음과 아울러 같은 항 제6호 에서 ‘ 공직선거법 제141조 제1항 의 규정에 위반하여 당원집회를 개최한 자’를 처벌하도록 규정하고 있는데, 위와 같이 공직선거법이 ‘제9장 선거와 관련 있는 정당활동의 규제’에서 제141조 가 규정한 당원집회의 금지 등 일정한 내용의 정당활동을 규제하고 있는 이유는, 이러한 정당활동은 통상적인 정당활동에 속한다고 볼 수 있는 것들임에도 선거운동의 방법과 횟수 등에 대하여 엄격한 제한을 가하고 있는 공직선거법의 다른 조항들의 실효성을 확보하기 위한 것으로서 이러한 행위가 선거운동의 제한을 회피하는 탈법수단으로 악용될 가능성을 사전에 차단하기 위한 것이라고 보이는 점, ② 공직선거법 제256조 제3항 제6호 에서 공직선거법 제141조 제1항 을 위반하여 당원집회를 개최한 정당에 대하여 당해 당부뿐만 아니라 당해 당부의 간부 또는 당원으로서 위반행위를 한 자를 처벌한다고 명시적으로 규정하고 있고, 또한 당원집회를 개최한 자를 처벌하는 것으로 규정하고 있는데, 이러한 규정을 두고 있는 이유는 정당이란 원래 양벌규정과 같은 특별한 규정에 의하여 벌금형을 과하는 것 외에는 일반적인 범죄능력이 없어 형사처벌을 할 수 없으므로, 위 규정에 따라 정당을 처벌함과 아울러 정당 구성원이 그 업무와 관련하여 개최한 당원집회에 있어서는 정당 구성원의 행위를 정당의 행위로 보아 실제 당원집회를 개최한 행위자도 처벌함으로써 선거가 국민의 자유로운 의사와 민주적인 절차에 의하여 공정히 행하여지도록 하고, 선거와 관련한 부정을 방지함으로써 민주정치의 발전에 기여함을 목적으로 하는 공직선거법의 입법목적을 달성하기 위한 것이라고 해석되는 점, ③ 현행 공직선거법상 정당의 의미를 명시적으로 규정한 조항이 없고, 현행 정당법에 의하면 ‘정당이라 함은 국민의 이익을 위하여 책임 있는 정치적 주장이나 정책을 추진하고 공직선거의 후보자를 추천 또는 지지함으로써 국민의 정치적 의사형성에 참여함을 목적으로 하는 국민의 자발적 조직을 말하는 것’으로 규정하고 있으며( 제2조 ), 정당의 구성에 관하여 ’정당은 수도에 소재하는 중앙당과 특별시·광역시·도에 각각 소재하는 시·도당으로 구성한다‘고 규정하고 있는데( 제3조 ), 공직선거법 제141조 에서 말하는 정당의 의미를 반드시 정당의 구성에 관하여 규정한 정당법 제3조 의 ’중앙당‘이나 ’시·도당‘으로 한정하여 해석할 아무런 법적 근거는 없는 것으로 보이는 점, ④ 또한 현행 정당법 제37조(활동의 자유) 제3항 에서 ’정당은 국회의원지역구 및 자치구·시·군, 읍·면·동별로 당원협의회를 둘 수 있다‘고 규정하고 있고, 검사가 당심에서 제출한 ○○○당의 ‘지방조직운영규정’ 제24조에 의하면, 당원협의회는 “1. 당원들의 자발적인 지역활동 지원, 2. 시·도당 주관 당원교육 및 당원집회 등 지원, 3. 지역 현안 파악 및 건의, 4. 당세 확장 활동, 5. 기타 시·도당 요청사항 지원 등의 활동”을 할 수 있도록 규정하고 있으며, 명시적으로 당원협의회가 당원들을 소집하여 집회를 개최하는 등의 행위를 금지하는 내용은 없는 것으로 보여 ( 피고인 2도 당심 제3회 공판기일에서 당원협의회가 수행하는 당세확장 활동에 대하여는 시·도당의 승인 없이 가능하다는 취지로 진술하고 있다), 당원협의회가 주관하는 당원집회도 정당의 활동인 것으로 볼 수 있다고 할 것인 점, ⑤ 만일, 피고인들의 주장과 같이 공직선거법 제141조 제1항 및 제256조 제3항 에 규정하고 있는 정당의 의미를 정당의 중앙당이나 시·도당으로만 좁게 해석한다면, 중앙당이나 시·도당의 개입 없이 정당의 당원들이 당원집회를 명목으로 개최하는 각종 모임이나 집회를 허용할 수 밖에 없는데, 이러한 당원집회를 통하여 이루어지는 탈법적인 선거운동 등 공직선거법을 위반하는 행위를 방지하는 것이 사실상 어려워지는 문제가 발생할 수 밖에 없는 점 등을 앞서 인정한 사실과 종합하여 보면, 이 사건에서 피고인들이 ○○○당의 당원들을 소집한 다음에 이 사건 당원집회 참석자들에게 피고인 1이 자신을 소개함과 아울러 제18대 국회의원선거에서 피고인 1에 대한 지지를 요청하는 발언을 함으로써 ○○○당의 간부 내지 당원인 피고인들이 공모하여 공직선거법 제141조 제1항 이 금지하는 당원집회를 개최하였다고 인정할 수 있으므로, 피고인들의 이 부분 주장도 이유 없다.

(4) As to the assertion that the crime of publishing false facts against Defendant 1 is not established

In light of the records and records, the defendant's act of publishing this part of the educational courses is not subject to the provision of Article 250 (1) of the Public Official Election Act. It is recognized that he/she sent or distributed promotional materials of a preliminary candidate, preliminary candidate, or candidate's name without the entry of a foreign educational course corresponding to the regular educational background (16 pages, 19 pages, 57 pages). According to the provision of Article 250 (1) of the Public Official Election Act, the defendant's act of publishing this part of the educational courses is not subject to the provision of Article 250 (1) of the same Act, and the defendant's act of publishing this part of the educational courses is not subject to the provision of Article 250 (2) of the same Act, and it is not subject to the provision of Article 64 (1) of the same Act, and if he/she publishes any false educational background, such as the name of a foreign candidate or his/her spouse, lineal ascendant or descendant, property, personality, organization to which he/she belongs.

Next, as to whether the defendant had an intention to publish false facts or a crime of publishing false facts under the Public Official Election Act constitutes the elements of the crime, it is necessary to recognize that the facts were 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 of such subjective perception should be determined normatively by comprehensively taking into account all the circumstances such as the defendant's academic background, career, social status, circumstances of publication, the time of publication, and the objectively anticipated ripple effect, etc. (see Supreme Court Decision 2005Do2627, Jul. 22, 2005). Since the intent of the crime includes not only the conclusive intentional intent but also the so-called intentional intent to recognize the occurrence of a result and to allow it, it also includes the so-called intentional intention to do so under Article 250 (1) of the Public Official Election Act (see, e.g., Supreme Court Decision 209Do9590, Apr. 29, 2006).

In addition, the perception of illegality in the establishment of a crime is sufficient to recognize that the crime is against social justice and sound reasoning, and it is not necessary to recognize the specific provision of the law. Thus, even if the defendant had knowledge that his act constitutes a crime stipulated in a specific law, it cannot be said that the defendant did not have any awareness of illegality (see Supreme Court Decision 86Do2673 delivered on March 24, 1987). Such a reason is merely a mere legal site, and it cannot be deemed that there is a justifiable reason (see Supreme Court Decision 95Do1891 delivered on December 12, 195).

In light of the records, the court below and the court below comprehensively examined and reviewed the evidence that the defendant had lawfully examined and adopted the draft of education. The defendant, while holding an interview with a person in charge of ○○○○○ for the production of his election campaign material, appears that the defendant would have known that the period of study is one year (21 pages, 42 of the trial records) as stated in paragraph (2) of the court below's decision, the defendant offered the draft of public campaign material produced based on the contents of the interview with the defendant (21 pages, 42 of the trial records), and the defendant did not add the period of study to the draft of the above curriculum, and the defendant decided to use the draft (1 right of evidence records, 16 pages, 167 pages, and 167 pages). In addition, if the defendant had already been aware that the defendant had not been aware of a foreign educational background corresponding to the public election campaign material used in the above public election, it is recognized that the defendant had not been aware that he had been given the production period of the above curriculum, and it had not been given a new term of study.

C. As to the Defendants’ assertion of unreasonable sentencing

In this case, the Defendants conspired four times to hold a party members' rally, and Defendant 1 published false information in a way that does not state the period of education in a foreign curriculum corresponding to the regular academic background in the campaign materials of preliminary candidates, etc., and thereby violated the Public Official Election Act. This act by the Defendants led to the Defendants’ free will and democratic procedure to ensure that the election is carried out fairly in accordance with the procedures, and the purpose of legislation of the Public Official Election Act, which aims to contribute to the development of democratic politics by preventing any malpractice related to the election, is damaged, and thus, the Defendants need to

Although Defendant 1 has no record of being punished for the same crime, Defendant 2 was first offender, and the purpose of prohibiting all party members' rally in principle from 30 days before the election day is high, it is necessary to realize the legislative purpose of the Public Official Election Act, which is fair in election, by blocking in advance the possibility of abuse of the party members' rally by means of avoiding various election campaigns or acts of contribution prohibited by the Public Official Election Act through party members' rally, and thereby preventing the possibility of abuse of the restrictions under the Public Official Election Act. Furthermore, it is necessary to provide accurate judgment data about candidates, etc. in order to ensure that the elector can vote fairly and fairly. If false data on candidates are provided, it is likely that the elector's fair and accurate decision would mislead, and it is also necessary to ensure that accurate information about the candidate's career, etc. is delivered to the elector through the election campaign bulletin, etc., and prevent false information from being published.

In addition, the Defendants held a party members' rally four times in a planned and organized manner, focusing on the party members residing in the constituency to which Defendant 1 would run, with the different time for each Dong (Dong) in the constituency. In the 18th National Assembly election, the difference between the valid votes of Defendant 1 and the second-ranking candidate is merely 342, and it is difficult to conclude that the Defendants did not actually affect the result of the instant election due to the instant crime, etc., taking into account the circumstances leading to the instant crime, means and results, the circumstances leading up to the instant crime, other Defendants’ age, character and conduct, intelligence, and environment, etc., even if considering all the circumstances alleged by the Defendants, the sentence imposed by the lower court is appropriate and too excessive, and thus, the Defendants’ assertion on this part is not justified.

3. Conclusion

Therefore, the appeal by the defendants is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, since all of the appeals by the defendants are without merit. It is so decided as per Disposition.

Judges Park Hong-woo (Presiding Judge)