Defendant

Defendant

Kim Jong-chul

(Attorneys Park Jong-chul et al., Counsel for the defendant-appellant)

Suwon District Court Decision 2004Gohap456 Decided January 13, 2005

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 3,00,000 for a crime of false accusation as stated in the judgment of the court below, and a fine of KRW 5,000,00 for a crime of violation of the Public Official Election and Prevention of Unlawful Election Act as stated in the judgment of

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

The provisional payment of the amount equivalent to the above fine shall be ordered.

The costs of the original judgment shall be borne by the defendant.

1. Summary of grounds for appeal;

A. Grounds for mistake of facts

(1) As to appeal

㈎ 공소외 1의 금품교부 의혹

In order to have Nonindicted Party 2 subject to criminal punishment, Nonindicted Party 2 paid the operating expenses of the number of million won to the district (name omitted) unit of the (name omitted) unit of the (name omitted) unit in which Nonindicted Party 1, who was elected as the candidate of Gyeonggi-do Council in March 9, 2002, was working as the chairperson in relation to Nonindicted Party 2’s recommendation, was admitted as it is, and there was no awareness of the falsity. Therefore, there was no intention to commit a false accusation, and there was no positive proof of the fact that the above accusation was false, and it did not constitute a false accusation, and it did not constitute a false accusation for the purpose of criminal punishment, and it did not constitute a false accusation for the purpose of urging investigation by an investigative agency, and it did not constitute a crime of false accusation. However, the lower court erred by misapprehending the fact.

㈏ 공소외 3의 금품교부 의혹

In the instant accusation, Nonindicted 3 delivered KRW 15 million to Nonindicted 2 in order to obtain the Gyeonggi-do Council member's contribution (name omitted), and Nonindicted 2 stated the fact that Nonindicted 3 arbitrarily used KRW 70 million among them, in light of all the circumstances, such as Nonindicted 4's information, etc., there was no awareness of falsity, and thus there was no intention to make an accusation.

㈐ 공소외 5의 금품교부 의혹

In the instant accusation, the lower court erred by misapprehending the fact that the fact that it is necessary to investigate whether money and valuables were received in the process of raising Nonindicted 5 in the instant accusation does not constitute reporting false facts for the purpose of criminal punishment, even if based on the formal interpretation of phrases, but did not constitute reporting of false facts for the purpose of receiving criminal punishment.

(2) As to the publication of false facts

The contents stated and published by the Defendant in the instant accusation are merely urged the investigation agency to investigate the suspected criminal facts of Nonindicted 2, and there was no “the purpose to prevent the Defendant from being elected,” and there was no awareness that the above contents were false facts, and the Defendant was merely an expression of opinion, not an expression of fact, but an expression of opinion. However, the lower court erred by misapprehending the facts and convicted the Defendant of guilty.

B. The assertion of unfair sentencing

In light of the fact that the Defendant had submitted a written accusation in this case in order to avoid falling short of the Suwon political power and to avoid deceptive corruption, and the fact that Nonindicted Party 2 withdraws the complaint against the Defendant and does not want to punish the Defendant, it is unreasonable for the lower court to sentence the Defendant to imprisonment with prison labor for 6 months against the crime of false accusation, for 6 months against the crime of false accusation, and for 6 months against the crime of violation of the Election of Public Officials and the Prevention of Unlawful Election Act.

2. Determination on the grounds for appeal

A. As to appeal

(1) Part of Nonindicted 1’s suspicion of delivery of money

The criminal intent in the crime of false accusation is not necessarily required to be a conclusive intentional act, and is also sufficient for dolusence. Therefore, the crime of false accusation is established by reporting the fact that the reporting person is not true, and it does not require conviction that the reported fact is false (see Supreme Court Decision 87Do2366, Feb. 9, 198).

원심이 적법하게 채택하여 조사한 증거들에 의하여 인정되는 다음과 같은 사정, 즉, ① 피고인은 이 사건 고발장에서 “ (당명 생략)당 수원 3선거구 도의원 후보인 공소외 1씨가 (구명 생략) 지구당 운영비로 수천만 원을 넣은 뒤에 후보로 당선되었다는 의혹이 일파만파 커지고 있다.”라는 내용의 수원일보 2002. 5. 2.자 신문기사의 내용을 옮겨 왔으나, 위 신문기사 중에서 “이에 대해 공소외 1 후보는 ‘1년 당비 120만 원과 후보 기탁금만 냈을 뿐이다. 다른 돈은 한푼도 안 냈다. 쓸 돈이 없어서 쩔쩔 맸을 정도’라고 항변했다.”라는 내용의 공소외 1의 반론 내용은 이 사건 고발장에 기재하지 아니한 점, ② 이 사건 고발장의 뒷부분에 “상기 행위는 경선에서의 중립을 요구하는 정당법 31조 및 지방선거에 있어서 후보자의 추천과 관련하여 정치자금을 기부할 수 없는 정치자금에 관한 법률 13조 위반이다.”라고 명시하여 공소외 2에 대한 형사처벌의 필요성을 강조한 점, ③ 피고인은 이 사건 고발장을 작성하기 전인 2004년 3월 초순 일자불상경 위 공소외 1을 직접 만나 위 신문기사의 내용이 허위사실이라는 취지의 답변을 들었음에도 불구하고 이 사건 고발장에 위 신문기사내용을 그대로 기재한 점 등에 비추어 보면, 피고인으로서는 적어도 공소외 1의 금품교부 의혹이 객관적 사실에 반한다는 것을 미필적으로 인식하였다고 인정되고 따라서 피고인에게 위 부분 공소사실 관련 무고죄의 범의가 있다고 할 것이므로, 피고인의 주장은 받아들이지 아니한다.

On the other hand, the defendant alleged to the effect that he was innocent because he was informed of the contents of the newspaper articles through the accusation of this case and urged the investigative agency to investigate the facts and did not have the purpose of having the non-indicted 2 receive criminal punishment. However, in the crime of false accusation, the purpose of having the criminal punishment or disciplinary punishment for the crime of false accusation is sufficient if there is a perception that another person would be subject to criminal punishment or disciplinary punishment for the crime of false accusation, and it does not require that the result would occur. As long as the defendant submitted a written accusation to the investigative agency, such perception would have been recognized. As such, the purpose of the defendant's accusation does not require that the defendant be punished for the defendant's client, and it is merely for investigating the truth, and it cannot be said that the defendant has no intention to commit a crime without doubt (see Supreme Court Decision 90Do260

(2) The suspicion of delivery of money by Nonindicted 3

The court below duly adopted and examined the following circumstances: ① The defendant delivered KRW 150 million to Nonindicted 2 in order to obtain the contribution of the Gyeonggi-do Council member (name omitted), and Nonindicted 2 arbitrarily used KRW 70 million among them, and ordered Nonindicted 6 to the chief of the bureau because it was used for the election. ② Nonindicted 4 relied on Nonindicted 4’s statement; ② Nonindicted 2, in the local election in June 2002, there was an unreasonable appraisal about Nonindicted 2’s exclusion of himself and assistance to others; ③ Nonindicted 4 was sufficiently able to make a statement by exaggeration without any basis related to Nonindicted 2; ③ Nonindicted 4 did not have direct evidence about Nonindicted 4’s money and valuables, and Nonindicted 4’s assertion that Nonindicted 4 did not give and receive at least KRW 70 million among them, and Nonindicted 2 did not give and receive the money and valuables in sequence through Nonindicted 47 and Nonindicted 8; ④ Defendant’s assertion that there was no objective accusation by Nonindicted 3, despite his intention to do so.

(3) The suspicion of delivery of money by Nonindicted 5

Since the crime of false accusation is established when a person reports false information contrary to objective truth with the intention of having another person subject to criminal punishment or disciplinary disposition, it does not constitute a crime of false accusation if the reported content is merely an expression of opinion with the content of value judgment, evaluation desire, and prosecution.

However, the Defendant stated in the instant accusation related to Nonindicted 5’s delivery of money and valuables that “it is necessary to investigate whether Nonindicted 2 received money and valuables during the process of soliciting Nonindicted 5, through Nonindicted 6.” The above contents do not indicate the fact that “the receipt of money and valuables was made,” but rather are merely an expression of opinion with the Defendant’s desire and conjection that “it is unclear whether there was any receipt of money and valuables,” and thus, this part of the facts charged cannot be deemed to constitute a crime of false accusation.

Therefore, the grounds for appeal by the defendant who asserts mistake of facts against the judgment of the court below which found the defendant guilty of this part of the facts charged are justified

B. As to the publication of false facts

(1) The suspicion of delivery of money by Nonindicted 5

In order to establish a crime of publishing false facts provided for in Article 250(2) of the Act on the Election of Public Officials and the Prevention of Election Malpractice, a false fact shall be published first of all. Here, a false fact shall be published in accordance with the truth, and if it is sufficient for the elector to have the accuracy of a candidate to the extent that it can misleads the accurate decision on the candidate, it shall not be applicable only to an expression of opinion, the mere value judgment or evaluation of which is merely an expression of opinion, and in distinguishing a statement from an expression of opinion, it shall be determined in consideration of the ordinary meaning and usage of language, the context in which the expression in question is used, the possibility of proof, and the social situation in which the expression was made (see Supreme Court Decision 2003Do5279, Nov. 28, 2003).

However, in the instant accusation related to Nonindicted 5’s delivery of money and valuables, the Defendant stated that “it is necessary to investigate whether Nonindicted 2 received money and valuables during the process of raising Nonindicted 5,” and the aforementioned stated contents are merely an expression of opinion with the Defendant’s desire, conjecture, etc. to the effect that “it is unclear whether there was any receipt of money and valuables,” rather than an expression of the fact that “the receipt of money and valuables was made,” and thus, this part of the facts charged cannot be deemed to constitute a crime of publishing false facts.

Therefore, the grounds for appeal by the defendant who asserts mistake of facts against the judgment of the court below which found the defendant guilty of this part of the facts charged are justified

(2) The remaining portion of publication of false facts

㈎ 사실의 적시가 없었다거나 허위의 인식이 없었다는 주장에 대하여

The court below acknowledged the following circumstances based on the evidence duly adopted and investigated by the court below, namely, the defendant's suspicion of delivery of money and valuables in the number of the non-indicted 1's million won stated in the complaint of this case, the suspicion of preferential supply by non-indicted 3-150 million won, the suspicion of preferential supply by non-indicted 9 corporation established by the non-indicted 2, and the suspicion of non-indicted 2's transfer of interest coupons related to folklore delivery, etc. seems to include not just a simple value judgment or opinion but a specific fact. The defendant only prepares the above facts in the complaint of this case based on the local newspaper or the contents of non-indicted 4's report, but did not undergo a particular confirmation process. The defendant did not accept the defendant's assertion that there was any additional material supporting the truth of the accusation other than the defendant's investigation agency's information (the contents of non-indicted 4's information are reversed by the investigation agency) or non-indicted 4's information (the contents of non-indicted 4's information of this case are also reversed by the investigation agency).

㈏ 당선되지 못하게 할 목적이 없었다는 주장에 대하여

The crime of publishing false facts under Article 250(2) of the Act on the Election of Public Officials and the Prevention of Election Malpractice requires an excessive subjective requirement, “the purpose of preventing a candidate from being elected.” The purpose of this article is to recognize that a person is not required to actively express or desire to be elected, as in the case of a general purpose crime, and that a person is unable to be elected. The purpose of this article is to be flexible and exclusive, and it is irrelevant to other purposes.

However, the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, i.e., (i) if the defendant submitted the instant accusation in order to eliminate the underdeveloped reality of Suwon political power and the flexible corruption as his own assertion, the defendant is not entitled to accept the defendant's allegation on March 9, 2004, where the 17th National Assembly member was imminent, despite the absence of any reason to cause unnecessary misunderstanding by choosing an urgent period of election. (ii) The defendant simply submitted the instant accusation to an investigation agency, and (iii) the defendant distributes the accusation to the party who entered the court, and furthermore, posted the accusation via the Internet, etc., in light of the fact that the defendant was aware that Nonindicted Party 2 was unable to be elected in the 17th National Assembly member.

3. Conclusion

Therefore, since the defendant's grounds for appeal on "the suspicion of delivery of money by non-indicted 5" and the assertion of mistake of facts concerning the publication of false facts are with merit, the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act without further determination on the grounds for appeal claiming unfair sentencing, and the following is again decided after oral argument.

The defendant, in relation to the 17th National Assembly election conducted on April 15, 2004, was a person who was left as a candidate for the 17th National Assembly election without any authority in Suwon-si (former name omitted);

1. On March 9, 204, Nonindicted Party 1: (a) Nonindicted Party 2 was issued 0,000 won to Nonindicted Party 3, and Nonindicted Party 3 was issued 0,000 won for the above 7th election, and Nonindicted Party 2 was issued 0,000 won to Nonindicted Party 5, and Nonindicted Party 3 was issued 0,000 won on May 2, 2002 to Nonindicted Party 1; and (b) Nonindicted Party 3 was issued 0,000 won for the above 4th election, and Nonindicted Party 1 was issued to Nonindicted Party 4,000 won for the purpose of receiving the said 7th election, and Nonindicted Party 4,000 won for the purpose of receiving the said 7th election, and Nonindicted Party 2 was issued to Nonindicted Party 3,000 won for the purpose of receiving the said 7th election of the said 0th election of the said Seoul Party 3,000 won for the purpose of receiving the said 1st election of the said 3rd Party 4.

2. 2004. 3. 9. 피고인의 위 사무실에서, 피고인과 같은 선거구에서 출마할 예정인 위 공소외 2가 당선되지 못하게 할 목적으로 위 고발장에 위 ①, ② 기재와 같은 허위의 사실을 기재하고, ③ 사실은 수원시 등 관공서에서 보도블록 교체공사를 위하여 보도블록을 납품받고자 할 때에는 조달청에 구입의뢰를 하고 조달청은 다시 경기도콘크리트공업협동조합에 물품구입의 의뢰를 하여 위 조합에서 내부규정에 따라 업체별 배정비율, 생산자와 수요자와의 거리 등을 고려하여 납품업체를 선정하고 있으며, 특히 위 공소외 2가 설립한 공소외 9 주식회사는 2002년 10월부터 11월까지 수원시청에 조립블록 48,600원 가량 외에는 납품한 사실이 없음에도 불구하고, 고발장에 “2002. 6. 13. 지방선거로 공소외 10이 시장이 된 후 10월, 11월부터 수원터미널에서부터 비행장까지를 비롯한 수원시내 일대 멀쩡한 보도블록을 교체하였으며 전국 지방단체장들의 3분의 2가 (당명 생략)당인 상황에서 공소외 2가 그 국회의원이라는 직위를 이용해서 전국적으로 얼마나 많이 팔아 먹었겠는가?”라고 기재하여 위 공소외 2가 수원시에 압력을 행사하여 보도블록을 납품받도록 하였다는 취지로 허위사실을 기재하고, ④ 사실은 위 공소외 2가 제16대 국회의원으로 활동하면서 수원시장인 공소외 10의 부탁으로 수원시와 농협의 공동투자로 설립된 주식회사 효원에서 생산한 민속주 ‘불휘’가 군부대 및 대한항공 등 비행기에 납품할 수 있도록 판촉활동을 해 왔으나 이와 관련하여 금품을 수수하는 등 이권에 개입한 바가 전혀 없음에도 불구하고, 고발장에 “수원시와 농협의 공동투자로 불휘라는 고가의 민속주를 만들었는데 공소외 2가 공항납품과 군납을 도왔다고 하며 신의원( 공소외 2)의 이권개입이 있었을 것이라고 하였다. … 그 과정에서 부정이 있었을 가능성이 있으므로 철저히 조사해야 할 것이다.”라는 취지로 민속주 ‘불휘’의 납품과 관련하여 금품을 수수하는 등 개인적인 이익을 취득한 것처럼 허위의 사실을 기재한 후, 2004. 3. 10. 위 제1항 기재와 같이 수원지방검찰청에 위 고발장을 제출, 접수하게 하고, 수원지방법원 기자실에서 법원출입기자들에게 위 고발장을 배부하고, 2004. 3. 11. 시간불상경 및 같은 달 12. 13:51경 피고인의 사무실에서 컴퓨터를 이용하여 수원일보 홈페이지에 (필명 생략)라는 필명으로 위 고발장 전문을 게재함으로써 제17대 국회의원 선거에서 후보자가 되고자 하는 위 공소외 2에게 불리하도록 동인에 관하여 허위의 사실을 공표하였다.

Since the corresponding column of the judgment of the court below is the same as the corresponding column of the judgment below, it shall be quoted by Article 369 of the Criminal Procedure Act

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

(a) Unauthorized occupancy: Article 156 (Selection of Fine) of the Criminal Act;

(b) The publication of each false fact: Article 250 (2) of the Act on the Election of Public Officials and the Prevention of Election Malpractice, inclusive.

1. Exclusion from aggravated concurrent crimes concerning other crimes against the violation of the Act on the Election of Public Officials and the Prevention of Election Malpractice;

Article 18 (3) of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts (excluding the violation of the Election of Public Officials and the Prevention of Election Illegal Acts and the crime without accusation and the punishment shall be

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Bearing litigation costs;

Article 191(1) and the main sentence of Article 186(1) of the Criminal Procedure Act

The Defendant’s crime of this case was committed in front of the 17th National Assembly election, raising suspicions of receiving money and valuables from Nonindicted 2, who is a candidate for the other party, and raising suspicions about the entry of Nonindicted 2 into interest, and disclosing false facts about Nonindicted 2 to an investigation agency. Such crime is serious harm to the basic election order, and requires strict enforcement of law for a clean and fair election culture, and it is also important that Nonindicted 2’s act was committed, such as a defeat in the said election campaign.

However, Nonindicted 2, who is the largest victim of the instant crime, does not want to withdraw the Defendant’s complaint against the Defendant and punish the Defendant. In the trial, the Defendant acquitted the Defendant on some criminal facts at the court below, and Nonindicted 4’s perception that Nonindicted 2 was the internal complainant of the instant crime, which caused the instant crime in his desire to distort the illegal corruption related to the provision of money and valuables in the discretionary power. In addition, the Defendant’s age and character, criminal records, criminal records, motive, circumstance and consequence of the instant crime, the circumstances after the instant crime, and impact on the election, etc., shall be determined by taking into account all the circumstances attached to the pleadings and the sentencing indicated in the records of the instant case, such as the Defendant’s age and character, criminal records, and the motive, circumstance

1. Of the facts charged against the Defendant, in preparing a written accusation against the Defendant against the victim non-indicted 2, who had been going to go to the election of the National Assembly member with the intention of having the victim non-indicted 2 go to go to the election of the National Assembly member after receiving (name omitted) from the office of the Defendant at the office of the defendant on March 9, 2004 (name omitted) in Suwon-si, the third floor of the building (name omitted), which is located in the same constituency of the Defendant, for the purpose of criminal punishment, at the office of the defendant, the above non-indicted 2: (a) Notwithstanding the fact that the above non-indicted 2 received money and valuables from the above non-indicted 5 as the candidate at the third floor of the 3rd Dong-si, which was implemented on June 202, the defendant submitted to the Seoul High Prosecutors' Office for the investigation of whether there was any money and valuables from the above non-indicted 5, and (b) the above non-indicted 2 submitted 1 to the above Seoul High Prosecutors's Office on 1, 5.

The facts charged in the above part of the facts charged constitute a case where there is no proof of facts constituting the crime for the reasons as stated above, and thus, the acquittal should be pronounced pursuant to the latter part of Article 325 of the Criminal Procedure Act, but as long as the court found the defendant guilty of the non-guilty crime which was prosecuted due to such a single crime,

2. Of the facts charged regarding the publication of the false facts in this case against the defendant, "the defendant was prepared at the above office of the defendant on March 9, 2004 with the purpose that the above non-indicted 2 who is scheduled to withdraw from the same constituency as the defendant was not elected, the fact that the above non-indicted 2 submitted the above accusation to the defendant's office on June 10, 2002, which was executed around June 2002 by the above non-indicted 2 as the candidate for the non-indicted 5 in the third Dong-si local election, and did not receive the money and valuables from the Dong-si local council member, although there was no fact that the money and valuables were received from the defendant, the above non-indicted 2 stated in the accusation stating that "the above non-indicted 5 was received from the above non-indicted 5 as if the illegal political funds were received in relation to the candidate's recommendation, and submitted and received the above accusation to the non-indicted 2 on March 10, 2004, the above accusation was published on the defendant 214 and 314.

Since the facts charged in the above part of the facts charged constitute a case where there is no proof of criminal facts for the reasons as mentioned above, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, but as long as the court found the defendant guilty of violating the Public Official Election Act and the Prevention of Unlawful Election Act in the judgment which was instituted as a single comprehensive crime,

It is so decided as per Disposition for the above reasons.

Judges Lee Dong-Smoking (Presiding Judge)