(영문) 춘천지방법원 2016.7.20.선고 2016고단113 판결

Defendant A was elected as a candidate for the head of the association at the 18th D's election of January 28, 2016, which was implemented on January 28, 2016; Defendant B, as the head of the association of the former D's association, is a person who conducts an election campaign for Defendant A for whom a candidate who was elected as a candidate for the above election is working as the head of the association at the time when he/she works as the head of the association. The election campaign period for the 18th D's election is from January 15, 2016 to January 27, 2016.

An election campaign may be carried out only by a candidate from the day following the deadline for the registration of candidates to the day before the election day, and no person shall visit electors to door for an election campaign, and a candidate may conduct an election campaign in public places during which many people pass or gather to and from the length of the election campaign to the elector or appeal for support for an election campaign not exceeding 9cm wide and 5cm wide, and he/she shall not conduct an election campaign in violation of the method of such distribution.

1. Defendant A and Defendant B

On December 2, 2015, prior to the election campaign period, the Defendants visited the house of F, which is the member of the said forestry cooperative, Gangwon-do, for the election campaign in order of the first half of the election campaign period, and Defendant A issued to F a name tag stating Defendant A’s photograph, name, and brief personal records, etc., and Defendant B asked F to become a candidate for the president of the cooperative at once. Defendant B called, “F for a long time. A is a person who worked for the president of the forestry cooperative. At the same time, when the head of the cooperative is in Korea, he was a person who worked for the president of the cooperative.”

As a result, Defendant A conspired with B to visit one member of the said forestry cooperative for an election campaign, and carried out an election campaign in collusion with B when it is not an election campaign period in violation of the method of distributing name cards, and Defendant B carried out an election campaign in collusion with A that is not a candidate by the same method.

2. Defendant A

On December 2, 2015, the election campaign period for the first time, which was prior to the election campaign period, the Defendant: (a) visited H’s house, a member of the said forestry cooperative, Gangwon G, to deliver one copy of the name cards stating the Defendant’s photograph, name, summary, etc. to H; and (b) at once asked H to be a candidate for the president of the cooperative; and (c) at that time, when the election campaign is not during the election campaign period, as shown in the attached crime list (1) around that time, the Defendant carried out an election campaign in violation of the method of distributing the name cards to three members of the association.

3. Defendant B

From January 4, 2016 to January 8, 2016, the Defendant, even if not a candidate, issued to K, for an election campaign, a copy of the name that includes A’s photograph, name, and brief personal history, etc., from the J-ro Party located in the Gangwon-do for the election campaign, at least 12:30 days prior to the election campaign period, the Defendant served as a candidate for the head of the association at the time when the head of the association is in the Republic of Korea, and carried out an election campaign at around that time, even if he is not a candidate, as described in the attached Table of Crimes (2).

Summary of Evidence

1. Defendants’ legal statement

1. Each police statement on H, L, M, K, N,O, P, Q, R, and F;

1. Report on internal investigation (the results of theS visit investigation), investigation report (related to the refusal of the document of statement with the signature and seal), investigation report (the results of the U counterpart investigation), investigation report (the results of the V counterpart telephone investigation);

1. List of partners;

Application of Statutes

1. Article applicable to criminal facts;

Defendant A: Articles 66 subparag. 1, 24(2) (main sentence) of the Act on Commissioned Elections by Public Organizations, Etc. (hereinafter referred to as the “Entrusted Election Act”); Articles 66 subparag. 7, and 30 (the fact that an election campaign was conducted in violation of a method of distributing name cards; Article 30 of the Criminal Act is added, inclusive); Article 66 subparag. 11, and 38 (the fact that an election campaign was conducted in violation of a method of distributing name cards; Article 30 of the Criminal Act is added, inclusive) of the Act on Commissioned Elections by Public Organizations, etc. (hereinafter referred to as the “Entrusted Election Act”); Article 30 of the Criminal Act is added, inclusive, Article 30 of the Criminal Act)

Defendant B: Articles 66 subparag. 1 and 24(1) of the Commissioned Election Act (the point of election campaign by a person who is not a candidate, and the part jointly used with A shall be added, inclusive, Article 30 of the Criminal Act)

1. Formal concurrence (Defendant A);

Articles 40 and 50 of the Criminal Act

1. Selection of punishment;

Selection of Fines

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

Reasons for sentencing

1. Defendant A

Around November 2003, the Defendant’s mistake is against the Defendant, and there is no record of special criminal punishment except for a fine of KRW 1.5 million for the crime of the Road Traffic Act. Considering the number of members of each of the instant crimes, some of the following circumstances are considered: (a) considering the number of all members of the instant association, a minor number of members of each of the instant crimes is considered.

Meanwhile, each of the crimes in this case is a violation of the Act on Elections, a prior election campaign prohibited by the Act on Elections, a door-to-door election campaign, and a method of election campaign. The contents of each of the crimes are diverse, and the number of times is not many. In particular, some of the crimes are committed in advance in a way that is not allowed within the original election campaign period, or by using its social status or influence with B that it is impossible to carry out an election campaign due to any of the former heads of cooperatives. The nature of each of the crimes in this case is serious. Since each of the crimes in this case harms the fairness of the election that should be carried out in accordance with the free will of the members and democratic procedures, it is highly likely to be criticized (the prior election campaign is an act detrimental to the purpose of the Act on Elections which guarantees equal opportunity among the candidates, and in particular, it is more serious that the name of the members of the association (in the event of an election seeking support through door-to-door visits, B, Q. 7) who are visited by the head of the association.

In light of the above circumstances and the Defendant’s age, character and conduct, environment, and motive, means, and result leading to each of the instant crimes, the circumstances after the crime, and all the circumstances leading to the sentencing specified in the records and arguments, the punishment as ordered shall be determined.

2. Defendant B

There are extenuating circumstances such as the Defendant’s confession of crime and reflects the Defendant’s mistake in depth, and the Defendant is aged and has no record of criminal punishment except punishment for a violation of the Forestry Cooperatives Act once.

On the other hand, each crime of this case is committed by a non-candidate against the Commissioned Election Act, and in particular, since each crime of this case is committed prior to the election campaign period where it is impossible for all candidates to engage in an election campaign, in light of the circumstances such as the circumstances prior to the election campaign period where it is deemed that the defendant used his social status or influence as the former president of the association, and the nature of the crime is heavy). Since each crime of this case harms the fairness of the election to be committed in accordance with the free will of the members and democratic procedures, it is highly likely to be criticized, and the election of the president of the association is relatively less likely to have a significant impact on the

The punishment shall be determined as ordered in consideration of the above circumstances, and the character, conduct and environment of the defendant, and the motive, means, and consequence of each of the crimes in this case, the circumstances after the crime was committed, and the ambiguous circumstances that form the conditions for sentencing as shown in the records and arguments in this case.

Part of innocence (Defendant A)

1. Violation of the method of election campaign, violation of the method thereof and prior election campaign against U;

A. Summary of the facts charged

On December 2, 2015, prior to the election campaign period, Defendant A visited the community hall located in Gangwon AD for the election campaign at the end of the election campaign period and delivered name cards to U.S. members. Defendant A carried out an election campaign other than the election campaign period in violation of the method of distribution of name cards as stated in the criminal facts of the judgment.

B. Determination

Even based on all evidence submitted by the prosecutor, U does not have any evidence to acknowledge that U is a member of the D Association. Rather, according to each entry in the investigation report (U counterpart investigation results) and the list of members of the D Association, U can find facts that U is not a member of the D Association.

Thus, this part of the public prosecution under the premise that U is a member of the DDR should be examined further on the remainder of the public prosecution without any further examination, or when there is no proof of criminal facts.

2. Violation of the method of election campaign relating to the distribution of name cards Nos. 2, 3, and 5 in the judgment of the court;

A. Summary of the facts charged

Defendant A carried out an election campaign in violation of the method of distributing name cards, such as the list of crimes (1) Nos. 2, 3, and 5 in the judgment.

B. Provisions of law

Article 66 subparagraph 7 of the Commissioned Election Act provides that "any person who conducts an election campaign in violation of the specification or method of distribution of a name tag under Article 30 shall be punished by imprisonment with prison labor for not more than two years or by a fine not exceeding 20 million won, and the main text of Article 30 provides that "any candidate may conduct an election campaign in a manner that he/she directly gives him/her any name tag for an election campaign of not more than nine centimeters in length at a public place where several persons pass or gather during the election campaign period or appeal for support."

C. Determination

The prosecutor has instituted a public prosecution on the premise that Defendant A was given a name tag at a place other than a public place in which many people come to and gather, and this part of the prosecution is examined.

The list of crimes (1) Nos. 2 in the holding as a place for distribution of name cards is the front of the community hall, the center for senior citizens, the center for senior citizens, the center for senior citizens, and the platform of the bus platform are the open place where many people pass through or gather in the outside, and the center for senior citizens is able to pass through or gather in the outside, so it is the open place where many people pass or gather.

If so, this part of the prosecution is not a crime or there is no proof of a crime.

3. Conclusion

Therefore, each of the facts charged should be pronounced not guilty pursuant to Article 325 of the Criminal Procedure Act. However, as seen earlier, each of the facts charged is found guilty as to the violation of the Commissioned Election Act by each public organization, etc. in the holding that a single comprehensive crime or an ordinary concurrent crime with the above facts charged. Thus, each of the facts charged in this part shall not be pronounced not guilty separately

Judges

Ethrhesion

Note tin

1) If there is no concern about substantial disadvantage in the exercise of the defendant's right to defend, law to the extent that the facts charged are identical.

It does not violate the principle of no accusation even though it was recognized differently without modification of indictment procedures by the member.

In the complaint, "the defendants" are written in collusion, and in light of the provisions of the law written in the indictment, the contents of the subsequent withdrawals, and so forth.

The defendant A appears to have meaning in collusion with B, and the defendant A and his defense counsel committed in connection with the investigation agency from the investigation agency to this court.

Since there is no concern about actual disadvantage in Defendant A’s exercise of the right of defense, correction is made as above.

2) As seen earlier, the Defendant stated “in collusion,” and in light of the legal provisions written in the indictment, etc., the Defendant B is the Defendant A.

The defendant B and his defense counsel can be seen as "in collusion with others", and the defendant B and his defense counsel shall make a confession from the investigative agency to the law of this court to commit the crime.

Since there is no concern about substantial disadvantage in the exercise of the right of defense of the deceased B, it shall be corrected as above.

3) Supreme Court Decision 2009Do14558 Decided July 8, 2010

4) In light of the facts constituting the crime under Paragraph (1) and Paragraph (3) of the crime, the prosecutor shall substitute Defendant B for the part of election campaigned by persons other than the candidate

The prosecution seems to have been instituted only.

5) The Defendant determined that there is no time to conduct an election campaign for all areas at the time of the police investigation, and the Defendant was not well aware of the members.

Y.(Y.), Z, AAB, and J, all members of the 17th election campaign in the above area are commenced promptly, and all members of the 17th election campaign in the above area.

The circumstances in which the police officer stated that he/she carried out an election campaign (218 pages, 219 pages, 271 pages, 279 pages), H and L, which are their wife, are "the defendant" at the time of the police investigation.

In light of the circumstances stated, etc. that the N was a member of another member who resides in the back of his/her house at the time of visiting the back of his/her house, exceeding the criminal facts;

It is highly likely that an illegal act has been committed.

6) From 2003 to 2012, it was employed as the president of the partnership (it is the immediately preceding president of AC, the president of the partnership who was employed as a candidate at the time, and 223 pages of investigation records).

7) W is a person who had resided in the same Dong and Ri as Q and who was a director at the time to another place.

8) The list of crimes (1) as indicated in the holding was accompanied with another one at the time of entry.

9) At the time of the police investigation, the Defendant issued to 14 persons, including 6-7 members of the AD, 2-3 members of the Z, and 3-4 members of the AAJ, all of whom:

Illegal conduct exceeding the criminal facts in light of the circumstances (235 pages, 236 pages, etc. of investigation records) stated that the election campaign was carried out, such as appeal for support.

There is a large room that the status has been lowered.

10) The investigative agency provides that a single statement from the beginning of the investigation to the present court shall be distributed by the defendant (the length9cm 5 cent breadth).

There was no investigation or assertion as to whether the defendant violated the foregoing provision, and the name that the defendant actually distributed is in accord with the above provision.