2017Do15062 Violation of the Public Official Election Act

A

Defendant and Prosecutor

C. Law Firm

Attorney D

Seoul High Court Decision 2017No1332 Decided September 1, 2017

December 7, 2017

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

Examining the evidence duly adopted and examined by the lower court and the first instance court, the lower court is so decided as per its holding.

For the reasons of this, the violation of the Public Official Election Act due to the prior election campaign among the facts charged of this case

Recognition of guilty of violation of the Public Official Election Act due to an election campaign by a person who is unable to engage in an election campaign

The judgment below is justifiable. Contrary to the principle of free evaluation of evidence against logical and empirical rules.

It did not err by exceeding the bounds or by misapprehending the legal principles on election campaigns in the Public Official Election Act.

In addition, the sentencing discretion in violation of the principle of balanced criminal punishment or the principle of accountability in the judgment of the court below.

The assertion that there is an error in violation of the limitation of unfair sentencing constitutes the assertion of unfair sentencing.

According to Article 383 subparagraph 4 of the Criminal Procedure Act, death penalty, imprisonment with or without prison labor for life or for not less than ten years.

An appeal on the grounds of unfair sentencing shall be allowed only in the case on which the court rendered a ruling.

In this case where minor punishment has been pronounced, the argument that the amount of punishment, including the above argument, is unreasonable.

No legitimate ground of appeal may be a ground of appeal.

2. As to the Prosecutor’s Grounds of Appeal

A. As to the violation of the Public Official Election Act (the primary charge) by a third party's contribution act

For the reasons indicated in its holding, the lower court, based on the third party’s contribution act among the facts charged in the instant case

It is deemed that the violation of the Public Official Election Act (main charge) constitutes a case where there is no proof of crime

The judgment of the first instance that acquitted was affirmed as it is.

In light of the relevant legal principles and records, the above determination by the court below is justifiable.

The meaning of "the relevant election district" under Article 112 (1) of the Public Official Election Act shall be determined by misunderstanding the legal principles.

No error affecting the conclusion of the judgment.

B. As to the violation of the Public Official Election Act (Preliminary Facts) due to purchase and inducement of understanding

(1) Violation of the Public Official Election Act due to purchase and inducement of understanding among the facts charged in the instant case (preliminary public prosecution)

The summary of the point is that any person is elected or will not be elected or will not be elected.

No money or goods, vehicles, horses, entertainment, or other property benefits shall be provided to a person;

The Defendant, on February 29, 2016, was a preliminary candidate for the Seoul FF Party in the 20th National Assembly election.

10 persons, including L-gu electorate Q, in the election campaign office of H, for the purpose of getting the H registered as such to be elected.

(1) have been introduced as the executive officer of the H Election Countermeasures Headquarters and appealed for support to H;

An elector shall pay 293,00 won for meals after moving to a nearby restaurant.

It is that entertainment has been offered to the people.

(2) The lower court, based on its stated reasoning, held public office in relation to the election of the local constituency National Assembly member.

In the case of the elector referred to in Article 230 (1) 1 of the Election Act, the local constituency for the relevant local constituency shall be premised.

person who has the effect of an act of purchase becomes a candidate or intends to become a candidate; and

It should be deemed that only the elector of local constituency is included, and the time when the defendant provided meals is provided.

Article 25 (2) [Attachment] of the former Public Official Election Act (Amended by Act No. 14073, Mar. 3, 2016)

[1] The Constitutional Court's ruling of inconsistency with the Constitution becomes null and void for each constituency district for the National Assembly

Money, goods, etc. provided as the scope of the area included in the constituency is not specified.

It could not be known whether the elector was the elector in the constituency in question, and in such a situation as there was a statutory blank.

Punishment of the act of offering money, goods, etc. to the elector is against the principle of no punishment without law.

The Court rendered a not guilty verdict on the ground that it cannot be permitted.

(3) However, the lower court’s determination is difficult to accept for the following reasons.

(A) Article 230(1)1 of the Public Official Election Act provides that the elector shall be deemed to be the party who is the other party to the purchase.

Before preparing a list, a person eligible for entry in the electoral register shall be included;

The person who is eligible on the electoral register at this time shall be the record date for the preparation of the electoral register.

(1) The current status and age of resident registration shall not be limited to electors in the relevant constituency;

(1) An elector as above in determining as at the election day on the basis of various circumstances;

It is reasonable to view that if a person is eligible to be a person, he/she shall be a person eligible to be entered in the electoral register (alternative).

Supreme Court Decision 2005Do2245 Decided August 10, 2005 and Supreme Court Decision 201Do3824 Decided June 24, 201

[Reference]

In addition, the meaning of the " elector" who is the other party to the above purchase, and the legislative intent of the above provision is denied.

If such acts distort the individual's free will of election due to economic interests, etc.,

Considering that the fairness of an election is guaranteed, determination shall be made on the basis of an election day.

to be the elector in the election to be affected by the purchase at the time of the

An elector who is the other party to a number of crimes falls under the category of elector, and the constituency is demarcated at the time of the purchase.

It should be deemed that there should be no valid constituency.

(B) The reasoning of the lower judgment and the evidence duly adopted and examined by the first instance court and the first instance court

According to the reasoning, Q, etc., the party to whom the defendant offered entertainment, has already reached the age of 19 at the time of the offer.

Resident registration in Seoul AK in which both H as sights intend to go out at the 20th election of National Assembly members.

section 23(3) of this title.

Therefore, in determining whether Q et al. was based on the above election day, unless there are special circumstances.

be the elector in the area where H in which the defendant intends to be elected can be the elector in an election.

Inasmuch as there is sufficient room to regard Q et al. as a person eligible for entry in the electoral register.

An elector who is the other party to a purchase as provided in Article 230 (1) 1 of the Public Official Election Act shall be deemed to be an elector.

It is reasonable to view it.

And according to the decision of the Constitutional Court at the time of offering the entertainment, the election district for local constituencies

A state in which specific election districts to be elected by Q, etc. have not yet become final and conclusive as they have become invalid;

Even if they were, they cannot be viewed differently.

(C) Nevertheless, the court below held that the " elector" under Article 230 (1) 1 of the Public Official Election Act is an elector.

under the premise that the constituency must be specified at the time of the purchase.

In other words, this part of the public prosecution for the reason that whether Q et al. receiving entertainment is the elector is not known.

In so determining, the lower court acquitted the Defendant on the room. In so determining, Article 230(1)1 of the Public Official Election Act

In so determining, the lower court erred by misapprehending the legal principles as to the meaning of the “ elector” as prescribed in the subparagraph, thereby adversely affecting the judgment.

(c)

3. Scope of reversal

On the grounds delineated earlier, the part of the lower judgment’s acquittal which was the ancillary charge and inducement for understanding.

As long as the violation of the Public Official Election Act should be reversed, a third party donation, which is the primary charge, shall be made.

The part of the violation of the Public Official Election Act due to the act is to be reversed together. Furthermore, this part is original.

No violation of the Public Official Election Act or election campaign due to a prior election campaign which is found guilty shall be carried out by the court.

The relationship between the violation of the Public Official Election Act and the concurrent crimes under the former part of Article 37 of the Criminal Act.

The judgment of the court below should be reversed in its entirety, since one sentence should be sentenced.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion.

It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jae-chul

Justices Go Young-young

Chief Justice Cho Jae-hee

Justices Kim Jong-il