Defendant 1 and one other

Both parties

Cho Jae-chul, Kim Jae-hwan

Attorney above-at-Law

Gwangju District Court Decision 2016Gohap42 Decided September 1, 2016

The judgment of the court below is reversed.

Defendants shall be punished by a fine of KRW 500,000.

In the event that the Defendants did not pay the above fines, the Defendants shall be confined in the Labor House for the period calculated by converting the amount of KRW 100,000 per day into one day.

To order the Defendants to pay an amount equivalent to the above fines.

1. Summary of grounds for appeal;

A. Defendants

1) Legal principles

A) Violation of the method of transmitting automatic broadcast communications text messages and advance election campaigns

The Defendants’ sending text messages (hereinafter “instant text messages”) written in the annexed crime sight table is merely ordinary, ordinary, and social acts and do not constitute an election campaign.

B) Unlawful distribution of documents, etc.

Interpretation that the act of transmitting text messages of this case through automatic broadcast communications constitutes the distribution of documents, etc. by unlawful means under Articles 255(2)5 and 93(1) of the Public Official Election Act is not permitted against the purport of the Constitutional Court’s decision of limited unconstitutionality (see Constitutional Court en banc Decision 2007Hun-Ma101, 2007Hun-Ba8, 2010Hun-Ba8, 2010Hun-Ma173, 191, December 29, 201) provided that “an act of posting text messages or sending e-mails on the Internet homepage, etc.” does not constitute “other similar things” under Article 93(1) of the Public Official Election Act.

C) Illegal receipt of political funds

Since the act of transmitting the instant text messages does not constitute an election campaign, even if Defendant 1 received expenses incurred in transmitting the instant text messages from Defendant 2, it cannot be deemed as an illegal receipt of political funds.

D) Illegal disbursement of election expenses

Of the instant text messages, Defendant 2 was appointed as an accountant in charge of Defendant 1’s election campaign office, and then the transmission of the instant text messages Nos. 61 through 64, totaled 2,121, which was transmitted, cannot be deemed an election campaign. As such, the expenses required therefor do not constitute election expenses. In addition, Defendant 1 did not have conspired and conspired to transmit the instant text messages Nos. 2,121 by Defendant 2.

2) Unreasonable sentencing

The sentence of the lower court against the Defendants (each of 800,000 won by the Defendants) is too unreasonable.

(b) Prosecutors;

The sentence of the lower court against the Defendants is too uneased and unreasonable.

2. As to the distribution of automatic broadcast communications, violation of the method of transmitting text messages, documents by unlawful means, and prior election campaign

A. Summary of this part of the facts charged

Defendant 1 is a person registered as a preliminary candidate in the election district of △△ City on December 15, 2015 with respect to the election of the 20th National Assembly members, and Defendant 2 is a person appointed as a person in charge of accounting from February 3, 2016 while working as a volunteer in the election district of △△ City.

1) Violation of the method of transmitting automatic broadcast communications text messages and distribution of documents, etc. by unlawful means

Where a person works on an election campaign by sending text messages at a time other than the election day, he/she may send such messages by means of automatic broadcast communications using computers and computers shall be limited to candidates and preliminary candidates, but the number of times shall not exceed five times, and no one shall distribute, post, distribute, play, show, or post advertisements, personnel management books, posters, photographs, documents, paintings, printed materials, tape-recordings, or others similar thereto, which include contents supporting, recommending, or opposing a candidate, or which indicate the name of a political party or candidate's name, in order to have an influence on the election from 180 days before the election day to the election day.

그럼에도 불구하고 피고인들은 피고인 2가 피고인 1의 휴대전화번호(휴대전화번호 생략)를 이용하여 선거구민들에게 선거운동성 문자메시지를 전송하기로 공모하고, 피고인 2는 2016. 1. 2. 10:33경 △△시 (주소 생략)에 있는 피고인 1의 선거사무소에서 인터넷 문자발송 사이트인 ‘◁◁◁◁◁’에 접속한 뒤, 선거구민 16명을 상대로 “피고인 1입니다. ○○○와 함께 △△를 살리겠습니다. 새해 복 많이 받으세요”라는 내용의 문자메시지를 전송하는 등 2015. 11. 7.경부터 2016. 2. 12.경까지 별지 범죄일람표 기재와 같이 총 64회에 걸쳐 합계 27,765건의 문자메시지를 전송하는 방법으로 선거운동을 하였다.

(ii) advance election campaigns;

The election campaign for the National Assembly member was conducted from March 31, 2016, which was the first day of the election period until April 12, 2016.

Nevertheless, the Defendants conspired as above, and Defendant 2 carried out an election campaign by sending 27,765 text messages on a total of 64 occasions prior to the election campaign period, by means other than those prescribed in the Public Official Election Act.

B. The judgment of the court below

The lower court found all of the charges on this part of the facts charged based on its evidence. The lower court rejected the Defendants’ assertion that “the transmission of text messages of this case does not constitute an election campaign, and Defendant 1 did not conspired with Defendant 2 to commit an election campaign, and the transmission of text messages of this case shall not be subject to Articles 255(2)5 and 93(1) of the Public Official Election Act,” based on the relevant legal principles and detailed circumstances.

C. Judgment of the court below

1) Whether it is an act for the purpose of influencing the election campaign or election

A) Relevant legal principles

(1) Article 59 Subparag. 2 of the Public Official Election Act on the violation of the method of transmitting text messages for automatic broadcast communications provides that “election campaign” is prohibited by sending text messages. Article 254(2) of the Public Official Election Act on advance election campaign prohibits “election campaign” prior to the election period. Moreover, Article 93(1) of the Public Official Election Act on the distribution of documents, etc. by unlawful means prohibits “act to affect the election” that is not subject to the provisions of the Public Official Election Act from 180 days before the election day to the election day. Therefore, in the application of the above provisions, the key issue is to determine the meaning and scope of “election” or “act to affect the election.”

In the election of the Luxembourg representative democracy system, the opportunity to know and inform about candidates for public office should be widely provided through smooth contact and communication between electors and political persons. Moreover, since the formation, expansion, and strengthening of the political support foundation by raising one’s own awareness, the freedom of political activities should be fully guaranteed. In addition, in order to ensure equal opportunity between political parties and those who do not belong to public office, political parties should be widely allowed. In addition, in accordance with the principle of clarity derived from the principle of no punishment without the law, the meaning of election campaign, which is the premise of criminal punishment, should be interpreted clearly and narrowly. Meanwhile, election campaign is closely related to election day, and activities such as election campaign are likely to be perceived as election campaign from the perspective of electors as soon as one’s knowledge is near the election day.

In light of the freedom, process and equal opportunity of such election campaigns, necessity to guarantee the political parties' ordinary political activities, the principle of strict interpretation of penal provisions derived from the principle of no punishment without law, the location of election campaigns in the overall system of the public election law and other individual prohibition regulations, it is reasonable to determine the meaning and scope of election campaigns prohibited under the public election law according to the following specific standards:

In other words, “election campaign” refers to an act objectively recognized by the elector for the purpose of promoting the election or defeat of a specific candidate in a specific election. The determination of whether such act constitutes an act ought to be objectively made on the outside, rather than the internal intent of the person carrying out the act in question. ② In order to presume that the aforementioned act was intended, the mere fact that the relationship with the election can be inferred or that the act was a motive for the election is insufficient, and the objective situation should be based on which the elector clearly recognizes that the act was an act of promoting the election or defeat of a specific election. ③ In the situation at the time of the act, it is recognized that the act at issue from the elector’s point of view is for a specific election, by taking into account various objective circumstances such as prediction or confirmation of the implementation of the specific election, interval between the time and the specific election day, contents and situation of the act, and the relationship between the offender and the candidate. ④ Even if the act was aimed at enhancing the degree of whether the politician is a normal social activity and ordinary political activity, the act is not recognized as indicating the election or defeat of a specific person in the election (see Supreme Court Decision 2016.

Meanwhile, Article 93(1) of the Public Official Election Act limits the acts set forth therein on the premise that “for the purpose of influencing the election” is “for the purpose of influencing the election” as an excessive element other than intentional act. Thus, even if the legislative purpose of the above provision is sufficient without the active desire or conclusive awareness of the purpose, it shall be reasonably determined with the mind that the legislative purpose of the provision is to promote public interest by blocking lawful acts that infringe on the fairness and peace of the election. Whether there exists such purpose should be determined in light of social norms by comprehensively taking into account the social status of the defendant, relationship between the defendant and the candidate or the political party, the motive, process, means and method of the act, details and manner of the act, social situation at the time of the act, etc. (see Supreme Court Decision 2011Do3447, Jun. 24, 2011, etc.).

B) the facts of recognition

According to the evidence duly adopted and examined by the court below, the following facts are recognized:

① 피고인 1은 1987년경부터 ▷▷▷ 기자로 근무해오다가 2007년경 사직한 후 청소년 인재 육성사업, 장학금 지원, 장애인 의수족 지원, 다문화가족 지원, 무료급식 지원 등을 목적으로 하는 □□□□□□포럼을 설립하고 정치·사회활동을 하여 왔다. 피고인 2는 2006년경 ▷▷▷에서 피고인 1과 직장 선후배 관계로 만나 알게 된 후 ▷▷▷를 퇴사하고 2010년경 피고인 1의 권유로 위 포럼의 일을 돕기 시작한 이래 피고인 1을 위한 각종 문자메시지 전송 등의 일을 해왔다. 그리고 피고인 2는 2011년경 공소외 1 유한회사를 설립하여 운영하고 있다.

② Defendant 1 prepared for the 18th National Assembly election campaign around 2008, and continued to engage in political activities in △△△ region, including registration as a preliminary candidate for △△ City election, from around 2012 to the 19th National Assembly election. On December 15, 2015, Defendant 2 completed the preliminary candidate registration for △△△ City election for the 20th National Assembly election. Defendant 2 was a volunteer for Defendant 1, who was the preliminary candidate for the 19th National Assembly election around 2012, and Defendant 1 was appointed as a volunteer from December 15, 2015, who had established the election campaign office as a preliminary candidate for the 20th National Assembly election.

③ 피고인 2는 2011년경 공소외 2 주식회사가 운영하는 인터넷 문자메시지 전송 사이트인 ‘◁◁◁◁◁’에 “아이디: (아이디 생략), 가입자: 공소외 1 유한회사”로 가입한 후, 피고인 1을 위해 피고인 1의 휴대전화번호(휴대전화번호 생략)를 통한 문자메시지 전송을 시작하였다. 피고인이 피고인 2는 위 사이트의 이용에 휴대전화기 명의인의 본인인증 절차가 필요하게 되자 2015. 10. 14. 피고인 1에게 부탁하여 그 명의로 본인인증 절차를 거치기도 하였다.

④ 한편 피고인 1은 위 ‘◁◁◁◁◁’ 사이트를 이용한 이 사건 문자메시지 전송 이외에, 2015. 12. 22. 본인 명의로 공소외 3 주식회사와 인터넷전화(문자) 서비스 이용계약을 체결하고, 해당 서비스에 따라 부여된 전화번호를 관할 선거관리위원회에 신고한 후 선거사무소 자원봉사자 공소외 4, 공소외 5, 공소외 6 등으로 하여금 선거 관련 문자메시지를 전송하도록 하였다.

⑤ △△시 선거구에서는 제18, 19대 국회의원선거에서 연이어 당선된 공소외 7 의원이 현역 국회의원이었는데, 2016. 2. 6. ♤♤♤뉴스에서 실시한 제20대 국회의원선거 △△시 선거구 여론조사 결과, 공소외 7 의원이 선호도 24.5% 혹은 25.3%로 1위, 피고인 1이 선호도 21.5% 혹은 24.65%로 2위를 차지하는 것으로 나타났다. 피고인 1은 ○○○ 의원 등이 주축이 되어 창당한 ‘♡♡♡당’ 창당발기인으로 활동하는 등 제20대 국회의원 선거를 준비하였으나, 피고인 1이 위 여론조사 결과를 공표한 행위를 계기로 이 사건에 대한 관할 선거관리위원회의 고발이 이루어진 후 출마를 포기하였고, △△시 선거구에서 제20대 국회의원으로 공소외 7 의원이 재차 당선되었다.

C) The text messages Nos. 1 to 21, 24 to 38 attached table of crime sights

Examining the following circumstances based on the evidence duly admitted and examined by the court below in light of the aforementioned legal principles, it is difficult to view the transmission of text messages in this part to the extent that it is clearly recognizable that Defendant 1’s act was an act of promoting an election campaign for the 20th National Assembly member from the relevant elector’s perspective in relation to the 20th National Assembly member, and it is highly probable that Defendant 1 constitutes a social activity that had been ordinarily, formally, and openly harmed through Defendant 2, and thus, it cannot be readily concluded as an act with the aim of influencing the election campaign or election. Therefore, the evidence submitted by the prosecutor alone is insufficient to acknowledge that the transmission of text messages in this part constitutes an act of influencing the election campaign or the election.

① In light of the contents of this part text messages, Defendant 1 is merely a person who has attended the meeting and indicated an auditor, and added words indicating the official language or abstract text messages to Defendant 1, such as “I will be the latter,” “I will be the latter, I will be the latter,” “I will make more efforts to increase,” “I will make more efforts to promote the convenience and welfare of the residents of ○ apartment,” and “I will make very efforts to promote the convenience and welfare of the residents of ○ apartment.”

② The Defendants asserted that the instant text messages were sent to the participants by courtesys after completing the relevant forum or small-scale meeting or event. In light of Defendant 1’s contents, scope, period, etc., there is sufficient room to view that Defendant 1’s text messages was sent to the participants after Defendant 1 attended an event or a meeting of the community as a daily social activity, or that he was sent to the participants by courtesys.

③ On January 22, 2016, text messages sent at the last day of the instant text messages were sent around three months before the election day. Furthermore, the text messages Nos. 1 through 15, and 31 through 38 were sent prior to December 15, 2015, for which the registration of preliminary candidates for the 20th National Assembly election began, there was time interval between the election day and the 4th to five months. Moreover, the text messages in this part were sent to a relatively small number of persons instead of several hundred number of persons.

④ 피고인들에 대하여 선거관리위원회에서 조사한 문자메시지는 2015. 11. 2.경부터 2016. 2. 21.까지 총 127,687건에 이른다. 이는 공소사실에 기재된 문자메시지 건수의 약 4.6배에 해당하는 양이다. 그 내용도 ‘○○모임에서 반갑게 맞아주셔서 감사했습니다’, ‘어제 저녁 ○○모임 너무 멋졌습니다. 제가 회원이라는게 자랑스럽습니다’, ‘야유회 잘 다녀오셨죠? 함께 가지 못했지만 마음은 늘 함께합니다. 사랑합니다’ 등으로 이 부분 문자메시지의 내용과 별다른 차이점이 없다. 다만 선거관리위원회는 ‘효자가 되겠다. 노력하겠다. 열심히 하겠다’와 같은 표현이 부가된 문자메시지 등을 선별하여 고발한 것으로 보이는데, 그러한 문구는 정치적인 목표를 가지고 사회활동을 하는 사람이라면 일반적으로 할 수 있는 의례적인 인사말로 볼 수 있다.

D) Text messages Nos. 22, 23, 39 through 64 of the annexed crime sight table

Examining the following circumstances based on the evidence duly admitted and investigated by the lower court in light of the legal doctrine as seen earlier, the transmission of text messages in this part constitutes an act to clearly recognize that the act was an act of promoting the success from the relevant elector’s perspective in relation to the 20th National Assembly election. Therefore, the transmission of text messages in this part can be deemed as an act to affect the election campaign or election.

① The transmission of text messages in this part was made after December 15, 2015, when Defendant 1 completed the preliminary candidate registration for the 20th National Assembly election △△△△, and Defendant 1 explicitly indicated that Defendant 1 is the preliminary candidate for the election of National Assembly members in the text messages Nos. 39 through 64 attached hereto.

② 별지 범죄일람표 22, 23, 41 내지 45, 55 내지 60번의 문자메시지에는 ○○○와 함께 △△를 살리겠다거나 ○○○ 신당의 창당발기인으로 참여한다는 등의 내용이 기재되어 있는데, 당시는 제20대 국회의원선거를 앞두고 ○○○ 의원의 ‘♡♡♡당’이 호남 지역에서 상당한 지지를 얻을 것으로 예상되고 있는 때였으므로, 위와 같은 내용이 기재된 문자메시지는 일반 선거인들의 입장에서 제20대 국회의원선거 예비후보로 등록한 피고인 1이 제20대 국회의원선거에서의 지지를 호소하기 위하여 전송한 것임을 어렵지 않게 알 수 있었을 것으로 보인다.

③ The text message No. 39 No. 20,441 was sent to all members of the above forum. The text message No. 39 was sent to Defendant 1, who appears to have been aware of the activities of Defendant 1, could have easily known the purport of Defendant 1’s petitioning for support by receiving such text message from Defendant 1.

④ The text messages Nos. 40 and 46 No. 40 and 46 are contents promoting that, when Defendant 1 elected, changes will occur in the development of △△ in the Internet car page operated by the Defendants.

(5) The text messages No. 47 through 63 No. 47 are the contents that may attract interest according to a specific position, religion, joining party, etc. and appeal to the relevant elector, etc.

(6) The text messages listed in [Attachment 64] Nos. 64 are the contents that Defendant 1 requests support from 2,069 persons who publicize the public opinion poll that Defendant 1 is able to do. The publication, etc. of such public opinion poll may directly affect the judgment of the voters.

3) Whether the Defendants’ public offering and the application of Articles 255(2)5 and 93(1) of the Public Official Election Act are made

In the case of transmitting text messages Nos. 22, 23, 39 through 64, which are recognized as acts to influence election campaigns or elections, the determination of this part of the judgment below (Article 255(2)5 and Article 93(1) of the Public Official Election Act) is sufficiently justified. Thus, the defendants' assertion in this part is without merit.

4) Sub-determination

Ultimately, among the instant text messages, the transmission of text messages Nos. 22, 23, 39 through 64 in the table of crime committed in the annexed sheet of crimes can be recognized as guilty of distributing automatic broadcast communications text messages in violation of the method of transmitting text messages, documents by unlawful means, etc., and prior election campaign. On the other hand, there is insufficient evidence to find guilty as to the remaining parts, and therefore, the Defendant’s assertion of misapprehension of legal principles as to text messages Nos. 1 through 21, 24, and 38, which are the remaining parts

3. As to the illegal acceptance of political funds

A. Summary of this part of the facts charged

정치자금법에 의하지 아니한 방법으로 정치자금을 기부하거나 기부받아서는 아니됨에도 불구하고, 피고인들은 2015. 11. 7.경부터 2016. 2. 12.경까지 피고인 1의 위 선거사무소 등에서 별지 범죄일람표 기재와 같이 총 64회에 걸쳐 합계 27,765건의 문자메시지를 전송하며 소요된 경비 1,248,792원을 피고인 2가 운영하는 공소외 1 유한회사 명의 계좌를 통해 위 ‘◁◁◁◁◁' 사이트 가상계좌에 충전된 금액으로 충당하게 하였다.

As a result, Defendant 2 contributed political funds in a way that is not governed by the Political Funds Act, and Defendant 1 received political funds by the same way.

B. The judgment of the court below

As seen earlier, the lower court found the entire act of transmitting text messages of this case as an election campaign, and found Defendant 2 guilty of this part of the facts charged, which Defendant 1 donated and received by Defendant 1, based on the evidence at that time.

C. Judgment of the court below

1) Relevant legal principles

Article 45(1) of the Political Funds Act does not prohibit any person engaged in political activities from receiving all money, etc. provided by means that are not provided for in the Political Funds Act, but only “the act of receiving money, etc. provided for political activities, which is objectively anticipated to be disbursed as expenses required for political activities” (see Supreme Court Decision 2012Do12394, Oct. 30, 2014).

The interpretation of penal provisions must be strict, and excessively expanded or analogically interpreted in the direction unfavorable to the defendant is not allowed as it is against the principle of no punishment without the law, and even if activities that assist in election activities or political party activities indirectly or in fact in accordance with the principle of strict interpretation, such nature itself does not basically include activities that have private meaning in political activities (Article 2(3)3 of the Political Funds Act stipulates that activities, such as native folks society, alumni society, relatives' society, alpine society, common interest society, etc., such as native folks society, alumni society, alpine society, etc., etc., and private expenses, such as membership fees of private groups, etc., and other financial support expenses, shall not be included

2) Determination

The transmission of text messages No. 22, 23, 39, 64 No. 22, 23, 39, can be seen as an act to influence the election campaign or election. Therefore, the expenses required therefor are political funds.

On the other hand, the transmission of text messages Nos. 1 through 21, 24, and 38 cannot be deemed as an act to influence the election campaign or election, and as seen earlier, there is sufficient room to view that Defendant 1’s money constitutes a social activity that had been ordinarily, formally and openly harmed through Defendant 2, and thus, it cannot be concluded that the money required for this constitutes a political fund as “money that is objectively anticipated to be disbursed as expenses incurred in political activities” and the evidence submitted by the prosecutor alone is insufficient to conclude that the money used to transmit text messages constitutes a political fund.

원심이 적법하게 채택·조사한 증거들에 의하면, 위 ‘◁◁◁◁◁’ 사이트에서 문자메시지 전송 서비스를 이용하는 데 필요한 비용은 단문의 경우 1건 당 17원, 장문의 경우 1건 당 50원인 사실을 인정할 수 있다. 그러므로 이 부분 공소사실 중 별지 범죄일람표 순번 1 내지 21, 24 내지 38번 문자메시지 전송에 소요된 비용 93,590원(단문 4,120건 70,040원 + 장문 471건 23,550원) 부분은 이를 유죄로 인정할 수 없고, 유죄로 인정되는 부분은 나머지 문자메시지 23,174건(27,765건 - 4,591건)에 소요된 비용 1,155,202원(1,248,792원 - 93,590원) 부분에 한정된다.

Therefore, the defendant's assertion of misapprehension of the legal principle as to the part which was found innocent in the court below is justified.

4. As to the unlawful disbursement of election expenses

The facts charged are pertaining to KRW 106,050,00, which is the sum of KRW 61 through 64,121, the number of offenses Nos. 61 through 64, which was transmitted after Defendant 2 was appointed as the person in charge of accounting. As seen earlier, the transmission of this part of the text messages can be seen as an election campaign. As such, the disbursement of the expenses required therefor constitutes the disbursement of election expenses.

Meanwhile, Defendant 1 also asserted in the lower court that he denied the solicitation and solicitation of the instant crime, and the lower court rejected the Defendants’ assertion on the grounds of detailed circumstances in the items 2-b(b) and (d) of the judgment in question. In addition to the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court, Defendant 1 may sufficiently recognize the fact that Defendant 1 conspired and conspired to commit this part of the crime. Therefore, this part of the Defendants’ assertion on the misapprehension of the legal doctrine is without merit.

① 피고인 1은 피고인 2가 위 ‘◁◁◁◁◁’ 사이트에 개인적으로 가입하여 피고인 2의 비용으로 문자메시지를 보내고 있다는 사실을 알고 있었고, 앞서 본 바와 같이 그 사이트에서 문자메시지를 보내는 데에 인증절차를 진행해주기도 하였다.

② 피고인 1은 위 ‘◁◁◁◁◁’ 사이트의 문자메시지 발송 업무와 선거관리위원회에 신고한 인터넷 서비스를 이용한 문자메시지 발송 업무를 별개로 관리하면서 서로 혼선이 빚어지지 않도록 그 담당자도 서로 달리 지정하였던 것으로 보인다.

③ 피고인 1은 2015. 11.경부터 자신의 주거지에서 위 ‘◁◁◁◁◁’ 사이트에 직접 접속해왔고, 이 부분 문자메시지 전송을 전후한 2016. 2. 6.경 2016. 2. 10.경 및 2016. 2. 17.경에도 위 사이트에 접속하였다.

5. Conclusion

Of the facts charged in the instant case, the Defendants’ appeal on the violation of the Public Official Election Act, each of the text messages Nos. 1 through 21, 24, and 38, and the violation of the Political Funds Act due to the illegal acceptance of political funds is with merit. However, since the lower court recognized all of the facts charged in the instant case as guilty and sentenced to one punishment by each of the Defendants, the lower judgment is entirely reversed and the judgment of the lower court is reversed, and it is again decided as follows through pleadings.

Defendant 1 is a person registered as a preliminary candidate in the election district of △△ City on December 15, 2015 with respect to the election of the 20th National Assembly members, and Defendant 2 is a person appointed as a person in charge of accounting from February 3, 2016 while working as a volunteer in the election district of △△ City.

1. Violation of the method of transmitting automatic broadcast communications, text messages, and distribution of documents, etc. by unlawful means;

Where a person works on an election campaign by sending text messages at a time other than the election day, he/she may send such messages by means of automatic broadcast communications using computers and computers shall be limited to candidates and preliminary candidates, but the number of times shall not exceed five times, and no one shall distribute, post, distribute, play, show, or post advertisements, personnel management books, posters, photographs, documents, paintings, printed materials, tape-recordings, or others similar thereto, which include contents supporting, recommending, or opposing a candidate, or which indicate the name of a political party or candidate's name, in order to have an influence on the election from 180 days before the election day to the election day.

그럼에도 불구하고 피고인들은 피고인 2가 피고인 1의 휴대전화번호(휴대전화번호 생략)를 이용하여 선거구민들에게 선거운동성 문자메시지를 전송하기로 공모하고, 피고인 2는 2016. 1. 2. 10:33경 △△시 (주소 생략)에 있는 피고인 1의 선거사무소에서 인터넷 문자발송 사이트인 ‘◁◁◁◁◁’에 접속한 뒤, 선거구민 16명을 상대로 “피고인 1입니다. ○○○와 함께 △△를 살리겠습니다. 새해 복 많이 받으세요”라는 내용의 문자메시지를 전송하는 등 2015. 12. 16.경부터 2016. 2. 12.경까지 별지 범죄일람표 순번 22, 23, 39 내지 64번 기재와 같이 총 28회에 걸쳐 합계 23,174건의 문자메시지를 전송하는 방법으로 선거운동을 하였다.

2. Preliminary election campaigns;

The election campaign for the National Assembly member was conducted from March 31, 2016, which was the first day of the election period until April 12, 2016.

Nevertheless, the Defendants conspired as described in paragraph (1) and carried out an election campaign by way of transmitting a total of 23,174 text messages over 28 occasions, as indicated in Nos. 22, 23, 39, and 64 from December 16, 2015 to February 12, 2016 at Defendant 1’s above election campaign office, etc.

Accordingly, the Defendants conspired to carry out an election campaign in a way other than that prescribed in the Public Official Election Act before the election campaign period.

3. Illegal receipt of political funds;

No political fund shall be contributed or received in any way other than that provided for in the Political Fund Act.

그럼에도 불구하고 피고인들은 2015. 12. 16.경부터 2016. 2. 12.경까지 피고인 1의 위 선거사무소 등에서 별지 범죄일람표 순번 22, 23, 39 내지 64번 기재와 같이 총 28회에 걸쳐 합계 23,174건의 문자메시지를 전송하며 소요된 경비 1,155,202원을 피고인 2가 운영하는 공소외 1 유한회사 명의 계좌를 통해 위 ‘◁◁◁◁◁' 사이트 가상계좌에 충전된 금액으로 충당하게 하였다.

As a result, Defendant 2 contributed political funds in a way that is not governed by the Political Funds Act, and Defendant 1 received political funds by the same way.

4. Illegal disbursement of election expenses.

Where a person in charge of accounting receives and disburses political funds, he/she shall do so through the deposit account reported to the competent election commission, and in such cases, only one deposit account shall be used to disburse political funds.

그럼에도 불구하고 피고인들은 공모하여 피고인 2가 회계책임자로 선임된 2016. 2. 3.경부터 2016. 2. 12.경까지 총 4회에 걸쳐 문자메시지 2,121건을 발송하며 소요된 경비 106,050원을 공소외 1 유한회사 명의계좌를 통해 위 ‘◁◁◁◁◁' 사이트 가상계좌에 충전된 금액으로 충당함으로써 선거관리위원회에 신고된 계좌(금융기관명 및 계좌번호 각 생략)를 통하지 아니하고 정치자금을 지출하였다.

The summary of the evidence recognized by this court is the same as the corresponding column of the judgment of the court below, and it is also cited by Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Article 256(3)1 (b), the proviso to Article 59 subparag. 2 of the Public Official Election Act, Article 30 of the Criminal Act ( comprehensively including the violation of the method of transmitting automatic broadcast text messages), Articles 255(2)5 and 93(1) of the Public Official Election Act, Article 30 of the Criminal Act ( comprehensively including the transmission of text messages by unlawful means), Article 254(2) of the Public Official Election Act, Article 30 of the Criminal Act ( comprehensively including the delivery of text messages by wrongful means), Article 45(1) of the Political Funds Act, Article 30 of the Criminal Act, Article 49(2)3 and 36(2) of the Political Funds Act, Article 30 of the Criminal Act ( comprehensively including the receipt of and receipt of political funds), Article 49(2)3 and 36(2) of the Political Funds Act, Article 30 of the Criminal Act ( comprehensively included expenses for election expenses)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (Punishments stipulated in the Public Official Election Act due to the transmission of text messages by means of the most severe method of crime, between the crimes of violation of each Public Official Election Act, between the crimes of violation of each Political Fund Act, and punishment prescribed in the Political Fund Act due to the excessive receipt of political funds)

1. Selection of punishment;

Selection of each fine

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes against the crime of violating the Political Funds Act due to illegal acceptance of and acceptance of heavier political funds (to the extent that the amount of the above two crimes is added up)]

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

The crime of this case committed by the Defendants in collusion with the Defendants in violation of the Public Official Election Act by sending text messages via automatic broadcast communications 23,174 items a total of 28 times prior to the election campaign period, and by directly appropriating the relevant expenses from the account that was not reported to the election commission, thereby violating the Political Funds Act by receiving political funds and making an unlawful disbursement of election expenses. In light of the method, period, repetition, etc. of the crime, the nature of the crime is not easy. The Defendants committed the crime of this case, thereby impairing the legislative purpose of the Public Official Election Act and the Political Funds Act, which aim to guarantee equal opportunities for public office candidates and to secure the fairness and transparency of the election. In addition, Defendant 1 had the same kind of power that was sentenced to a fine of KRW 500,00

However, it is difficult to view that the number and frequency of text messages sent by the Defendants are large quantities in light of the total number of voters of the election district in △△△ City. Some text messages were sent to the members, etc. who attended the branch or meeting, and the number of simultaneous transmission was merely a number of times, and thus, did not reach the degree of violation. Furthermore, Defendant 1’s renunciation of the election campaign for the 20th National Assembly member, and thus, did not have a significant impact on the result of the instant crime. Moreover, there is no history of criminal punishment heavier than a suspended sentence, against the Defendants.

In addition, in consideration of the age, character and conduct of the Defendants, the circumstances of the crimes, and the circumstances after the crimes, all the sentencing conditions specified in the pleadings of the instant case shall be determined as ordered.

Of the facts charged in the instant case, the fact that text messages Nos. 1 through 21, 24, and 38 are in violation of each of the Public Official Election Act and the violation of the Political Funds Act due to the illegal reception of political funds constitutes a case where there is no proof of crime as seen in Articles 2-3 (c) and 3-3 (c) and thus, a not-guilty verdict should be pronounced pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as the conviction of the violation of the Political Funds Act due to the violation of each of the Public Official Election Act and the

Judges Noh Jeong-ju (Presiding Judge)

Note 1) The attached Form 1 below shall be invoked in the attached Form of the lower judgment.