Defendant

Defendant and Prosecutor

Freeboard

Attorneys Park Tae-ho et al.

Daegu District Court Decision 2006Gohap132 Decided October 2, 2006

The guilty portion of the judgment of the court below shall be reversed.

Defendant shall be punished by a fine of three million won.

When the defendant fails to pay the above fine, the defendant shall be confined in the workhouse for the period calculated by converting 50,000 won into one day.

One day of detention before the pronouncement of the judgment of the court below shall be included in the period of detention in the workhouse.

Of the facts charged in this case, the violation of the Public Official Election Act due to the provision of money and valuables and the expression of intent to provide money is acquitted.

The prosecutor's appeal against the non-guilty portion of the judgment below (the violation of the Public Official Election Act due to contributions) shall be dismissed.

1. Summary of grounds for appeal;

A. Defendant

(i) mistake of facts or misapprehension of legal principles

The court below erred by misunderstanding the following facts or misunderstanding the legal principles which affected the judgment.

㈎ 호별방문으로 인한 공직선거법위반의 점 중 유죄부분에 관하여

The defendant met Non-Indicted 1 at the place where Non-Indicted 1 was met, and Non-Indicted 17 went to the house of Non-Indicted 2, while accompanying Non-Indicted 17, and returned immediately after dividing Non-Indicted 2 and personnel from the alleyway before the house, but he did not have visited Non-Indicted 3 at the time, and only did Non-Indicted 4 visiting Non-Indicted 4 working in the mathy field on the road after the passage, and it is evident that Non-Indicted 1 and Non-Indicted 4 could not be evaluated as a door door door door door door door door door door door door door door door door door door door as long as the date of door door door door door door door is different, but it is evident that Non-Indicted 1 and Non-Indicted 4 could not be evaluated as a continuous door door door door door door door door door door door door. However, the court below convicted all of the charges on this part

㈏ 선거운동 관련 금품제공 및 금품제공 의사표시로 인한 공직선거법위반의 점에 관하여

The Defendant found the Defendant guilty of this part of the facts charged on the ground of Nonindicted 6’s statement without credibility, even though he did not at all, provided KRW 3 million to Nonindicted 8 at the time and place specified in paragraph (2) of the facts charged in the lower judgment, and provided that he would thereafter provide KRW 7 million.

Do Governor's point of inappropriate sentencing

In light of the circumstances of each of the crimes in this case and the degree of illegality, the punishment of one-year imprisonment sentenced by the court below is too unreasonable.

(b) Prosecutors;

(i) mistake of facts or misapprehension of legal principles

㈎ 호별방문으로 인한 공직선거법위반의 점 중 무죄부분에 관하여

In the door visit under Article 106 of the Public Official Election Act, the term "house" does not mean only a house or a building, but also includes a place that can be seen as an electoral side, so the term "dy field adjoining to a house or a building" is deemed to fall under "house". Since Non-Indicted 5's high field was not only a dry field adjoining to his house, but also a dry field adjoining to his house, the defendant confirmed that he had no way to do so before Non-Indicted 5's house, and then it was between the above high field. Thus, the defendant's visiting the old field of Non-Indicted 5's high field constitutes a door-to-door visit. However, the court below found this part of the facts charged as not guilty because the above high field was open to the public, which affected the conclusion of the judgment by mistake of facts or misapprehension of legal principles.

㈏ 기부행위로 인한 공직선거법위반의 점에 관하여

In full view of the evidence submitted by the prosecutor, including the statements of Nonindicted 9 and Nonindicted 10, the defendant was able to fully recognize the fact that the defendant made a contribution by having Nonindicted 11 or a female under the name of Nonindicted 14, the electorate, who was accompanied by finding the Andong Women's Hospital 501 sick on April 24, 2006, provide an envelope containing money to Nonindicted 14. However, the court below rejected the credibility of the statement made by Nonindicted 9 and Nonindicted 10 without reasonable grounds and acquitted all of the primary and conjunctive facts charged for lack of evidence. The judgment of the court below is erroneous in the misapprehension of legal principles or misapprehension of legal principles.

Do Governor's point of inappropriate sentencing

In light of the fact that each of the crimes of this case is serious, the nature of the crime is inferior, and that the defendant does not seem to have shown the circumstances of the opening, such as gathering the relevant persons consistently with the vindication of the defendant, etc., the sentence imposed by the court below is too uneasible and unfair.

2. Determination

A. As to the violation of the Public Official Election Act due to door-to-door visits

(i)Judgment of conviction;

원심이 적법하게 조사하여 채택한 증거들, 특히 원심 법원이 작성한 현장검증조서의 기재, 공소외 1, 2, 3, 4의 각 검찰 진술, 공소외 17의 검찰 및 원심 법정 진술에 의하면, 피고인이 원심 판시 범죄사실 제1항 기재 각 일시에 공소외 1, 2, 3, 4의 집을 방문하여 공소외 1의 집 안에 있는 건조장 앞, 공소외 2의 마당 밖 골목, 공소외 4의 집 마당에서 각각 그들을 만나 인사를 나누면서 지지를 부탁한 사실, 피고인은 공소외 2와 만난 직후 공소외 3의 집을 방문하였으나 그가 부재중이어서 만나지는 못한 사실을 충분히 인정할 수 있는바, 피방문자가 부재중이어서 들어가지 못하거나 피방문자의 거택 대문 밖 등 피방문자측이라고 볼 수 있는 장소에서 선거구민을 만난 경우에도 호별방문죄의 성립에 아무런 지장이 없고( 대법원 1999. 11. 12. 선고 99도2315 판결 , 2002. 2. 25. 선고 99도4330 판결 등 참조), 또한 호별방문이 ‘연속적으로’ 두 집 이상을 방문하여야 성립하는 죄이기는 하지만, 여기에서 ‘연속적으로’라 함은 반드시 호로부터 호로 단절 없이 방문하는 경우에 한하지 않고 2인의 선거구민 집을 일시를 달리하여 방문하는 경우도 포함하는 것이며{일본 대심원 소화 ８년 11월 27일 선고 소화 ８년(れ)제1,432호 판결, 대심원형사판례집 12권 2,129쪽 참조}, 위 각 증거들에 의하면, 피고인이 호별방문을 시작할 무렵부터 농민들의 경작지, 노달리 찜질방, 마을회관, 행사장 등을 찾아다니며 선거구민들에게 인사를 하는 등 인지도를 제고하기 위한 활동을 계속하는 과정에서 위 각 호별방문까지 한 사실을 인정할 수 있어 피고인이 당초부터 두 집 이상을 연속하여 방문할 의사도 가지고 있었다고 판단되므로, 원심판결에 피고인이 주장하는 바와 같은 사실오인 내지 법리오해의 위법이 있다고 할 수 없다.

Judgment on the acquittals

The summary of this part of the facts charged is that “the defendant visited each house for election campaign by finding in the ancient field of Non-Indicted 5 near the Gyeongbuk-gun (Saeong omitted) around 16:00 as of April 2006, and claiming support for himself.”

After finding facts as stated in its holding, the court below found that this part of the facts charged is not guilty on the ground that the location of the ancient field, the degree adjacent to the apartment of Nonindicted 5 (50 meters by direct election, 100 meters by Do newsletter), and the defendant's location and situation of the place of contact with Nonindicted 5, etc., since the above ancient field cannot be seen as an "house" in which visits are prohibited under the Public Official Election Act, it cannot be seen as an open area, and this part of the facts charged cannot be viewed as an "house" that is prohibited under the Public Official Election Act. In light of the records, the judgment of the court below is just, and there is no error of law by mistake of facts

On the other hand, the prosecutor confirmed that the defendant was in the office of Non-Indicted 5 and went to the ancient field after confirming that the defendant was in the office of Non-Indicted 5. However, as seen earlier, even if the visiting person was absent, it does not interfere with the establishment of the crime of door-to-door visit even in the absence of the visiting person, so long as the prosecutor institutes a public prosecution by specifying the ancient field, which is not the office of Non-Indicted 5, as the place for committing the crime, it cannot be seen as an element that could affect the establishment of the crime against the indicted facts itself, and thus, it is not further determined.

B. As to the violation of the Public Official Election Act due to the offering of money or goods and the expression of intent to offer money

The summary of this part of the facts charged is as follows: "The defendant asked the non-indicted 8, who is the senior kn't in the election office of the defendant on May 2006 at the first floor of the Gyeongbuk-gu (detailed number omitted), in order to accept the closing house in the election office of the non-indicted 8, who is the senior kn't of 10 million won, in order to cooperate with the non-indicted 8, who is the senior kn't in the kn't of kn't of kn't of kn't of kn't, provided 3 million won in the kn't't of kn't' and expressed his intention to provide the remaining 7 million won in the future." The court below found the defendant guilty by taking into account the defendant's partial statement at the court below, the prosecutor's some prosecutor's statement at the Daegu District Court, the

In light of the circumstances at the time of the crime, the statement made by the court below by the defendant and the non-indicted 8 is merely the content of the circumstances at the time of the crime, and the part related to the money is not admissible among the evidence submitted by the prosecutor, and the evidence that the defendant had expressed his intention to provide and provide the money to the non-indicted 8 is the only entry of the copy of the witness examination protocol on the non-indicted 6. The circumstance where the defendant's election office was set up in the defendant's election office and the immediately preceding behavior, whether the non-indicted 6 participated in the non-indicted 7 is not consistent, and the day of the crime is not specified even if the non-indicted 6 was long, it is hard to readily accept the defendant's statement that it was difficult to use the above non-indicted 6's money in consideration of the fact that the defendant's (the name of the company omitted) made a contract with the local cultural property with the non-indicted 6, and that it was hard to accept the defendant's statement that it was hard to use the money without any specific competition.

Therefore, this part of the facts charged constitutes a case where there is no proof of crime and thus, it is not guilty under the latter part of Article 325 of the Criminal Procedure Act. Therefore, the judgment below which found the guilty guilty is erroneous in misconception of facts or misapprehension

C. As to the violation of the Public Official Election Act due to the contribution act

(i) Summary of the facts charged

The summary of this part of the facts charged is as follows: "The defendant conspireds with the public officials of the Ministry of Nutrition 11, and the public officials of the Office of Nutrition 18 on April 24, 2006, and found the defendant to be the 501 room of the Ansan Women Hospital 501 on April 24, 2006, with Non-Indicted 18's instruction, and thereby, the defendant as the elector, Non-Indicted 14, who was the elector, made a contribution act by hanging the envelope containing money to Non-Indicted 14." The summary of the ancillary facts charged is as follows: "The defendant, in collusion with Non-Indicted 18, ordered Non-Indicted 14 to be used for election campaign, and the defendant was given a contribution act in collusion with the non-Indicted 14 on the same date and at the same place, a woman not accompanied by the name of the defendant and the non-indicted 14."

In light of the facts charged by Nonindicted 10 and Nonindicted 2, the lower court held that Nonindicted 10 and Nonindicted 10 were hard to find out that Nonindicted 5 and Nonindicted 10 were non-indicted 1 and that Nonindicted 4 were non-indicted 1 and Nonindicted 2 were non-indicted 5 and that there was no other evidence for non-indicted 1’s non-indicted 5’s non-indicted 1 and non-indicted 2’s non-indicted 5’s non-indicted 1’s non-indicted 6’s non-indicted 1 and non-indicted 10’s non-indicted 5’s non-indicted 6’s non-indicted 1 and the non-indicted 10’s non-indicted 2’s non-indicted 5’s non-indicted 1 and the non-indicted 10’s non-indicted 5’s non-indicted 6’s non-indicted 1 and the non-indicted 10’s non-indicted 2’s non-indicted 5’s non-indicted 1 and the non-indicted 15’s non-indicted 2’s non-indicted.

According to the mobile phone calls of the Defendant, Nonindicted 16, 19, and 20 on the day on which Nonindicted 11 committed the crime, Nonindicted 11 was able to have continued a telephone within the vehicle moving after the opening of the telephone at the Seocho-gu Sluri-ri in nutrition, and according to the mobile phone calls of the Defendant, Nonindicted 16, 19, and 20, it can be confirmed that Nonindicted 11 can arrive at the Ansan Women Hospital sufficiently at the time of the occurrence of the crime. Thus, the judgment of the court below that Nonindicted 11 cannot arrive at the Ansan Hospital at the time of the crime. However, it is erroneous in the judgment of the court below that the above telephone within the vehicle in which Nonindicted 11 moved, or that the Defendant arrived at the Dong Women Hospital in speed of 30 to 40 minutes, unless there is any evidence to conclude that the Defendant arrived at the Dong Women Hospital in speed of 30 to 40 minutes, the above assertion by the prosecutor cannot be accepted.

3. Conclusion

Therefore, without further proceeding to decide on the assertion of unfair sentencing, the prosecutor's appeal against the acquittal portion (the violation of the Public Official Election Act by contribution act) of the lower judgment is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act. Since the Defendant's appeal against the conviction portion of the lower judgment is partly reasonable, it is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts constituting a crime and evidence against the defendant acknowledged as a party member is identical to the corresponding part of the judgment of the court below, except that the indication "1." as the first head of the second head of the judgment of the court below, 8 through 14, 16, 3, 1 through 6, and the second head of the court below's second head of the court below deleted "1." and that the second head of the court below visited "."

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

In general, Article 255(1)17 and Article 106(1) of the Public Official Election Act (Selection of Fines)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Calculation of days of detention;

Article 57 of the Criminal Act

The defendant has made many efforts for the development of the ordinary community by running school foundations, etc.; there are no particular criminal records; there is an attitude against his wrong behavior; considering favorable circumstances such as the fact that the most severe statutory penalty among the portion pronounced guilty in the court below, was changed not guilty; while the third-party election in the nation-wide, many applicants for the election of nutrition group with the population of less than the population, and the election crisis has been formed. The defendant returned to several Eups and Myeons in nutrition group over a long period from one year before the election day to the election day before the election day; while continuing activities for raising guidance, the defendant will congested the election crisis and interfere with the election process by reducing the illegal visits of the door-to-door culture of this case; the period, target and target area of the violation; the number of such violations; the surrounding circumstances of the election campaign and the fact that the election campaign of this case cannot be easily affected by the circumstance that the defendant's election campaign of this case, such as the circumstance that the election campaign of this case and the local characteristics of the election order of this case, etc. do not affect the election campaign of this case.

1. Violation of the Public Official Election Act due to door-to-door visits to Nonindicted 5

The summary of this part of the facts charged is as described in the above 2-A. The court below found the defendant not guilty under the latter part of Article 325 of the Criminal Procedure Act since it constitutes a case where there is no proof of crime as seen in the same paragraph. However, as long as the court found the defendant guilty of violation of the Public Official Election Act due to door-to-door visits to non-indicted 1, 2, 3, and 4 in the judgment related to the crime of universality, the court below

2. Violation of the Public Official Election Act due to offering money or goods related to election campaigns and expressing intent to provide money or goods;

The summary of this part of the facts charged is the same as that of the above 1-b., which constitutes a case where there is no proof of crime as stated in the same paragraph, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act

Judges Cho Jin-jin (Presiding Judge)