[1] Requirements to exclude the application of Article 38 of the Criminal Act to several crimes prosecuted for concurrent crimes and to sentence a separate sentence

[2] Whether a sentence may be imposed separately where a person in charge of accounting of an election campaign office, etc. is sentenced to the invalidation of election as a concurrent crime under Article 263 of the Public Official Election Act and under Article 265 of the Public Official Election Act (negative)

[3] Whether the "hospitalizement room in a hospital" can be deemed as "a place open to the public where many people visit or gather," where a preliminary candidate or appeal for support is prohibited under the Public Official Election Act (negative)

[4] In a case where the defendant was prosecuted for violating the Public Official Election Act by getting a preliminary candidate for the 5th nationwide local election of the head of the 5th national Dong-si local election and ordering the patient to enter the hospital and asking for support, the case affirming the judgment below which found the defendant not guilty on the ground that the hospital room cannot be deemed as the "place where many people travel or gather" prohibited from prior election by preliminary candidates

[1] Article 38 of the Criminal Code / [2] Article 38 of the Criminal Code, Article 18 (1) 3 and (3), Articles 263 and 265 of the Public Official Election Act / [3] Article 60-3 (1) 2 of the Public Official Election Act, Article 26-2 (1) 2 of the Rules on the Management of Public Official Election / [4] Article 60-3 (1) 2 and Article 254 (2) of the Public Official Election Act, Article 26-2 (1) 2 of the Rules on the Management of Public Official Election, Article 325 of the Criminal Procedure Act

[1] [2] Supreme Court Decision 2004Do606 Decided April 9, 2004 (Gong2004Sang, 855), Supreme Court Decision 2008Do4986 Decided January 30, 2009 (Gong2009Sang, 276)

Defendant 1 and four others

Defendant 1 and one other (Defendant 1, 3, 4, and 5) and the Prosecutor

Attorneys Shin Tae-gil et al.

Seoul High Court Decision 2011No29 decided May 11, 2011

All appeals are dismissed.

The grounds of appeal are examined.

1. As to Defendant 2’s ground of appeal

A. As to the misapprehension of legal principles on the treatment of concurrent crimes under Articles 263 and 265 of the Public Official Election Act

When a judgment is rendered simultaneously with several crimes for which judgment has not become final and conclusive, it shall be punished in accordance with the penal provisions stipulated under Article 38 of the Criminal Act. Thus, in order to exclude the application of Article 38 of the Criminal Act to several crimes indicted for concurrent crimes, and to sentence a sentence different from the above penal provisions, there must be explicit provisions recognizing exceptions (see Supreme Court Decision 2008Do4986, Jan. 30, 2009, etc.).

However, Article 18(3) of the Public Official Election Act provides that "When a person in charge of accounting of an election campaign office, etc. is sentenced to imprisonment or a fine exceeding three million won due to concurrent crimes under Articles 263 and 265 of the Public Official Election Act and under Article 18(1)3 of the Public Official Election Act, the person in charge of accounting, etc. is sentenced to imprisonment or a fine exceeding three million won due to concurrent crimes under Article 263 of the Public Official Election Act and under Article 265 of the Public Official Election Act, and is sentenced to imprisonment or a fine exceeding three million won, the person in charge of accounting of an election campaign office, etc. shall not be separately sentenced to punishment. Therefore, the same provision does not apply to cases where a person in charge of accounting of an election campaign office, etc. is sentenced to imprisonment or a fine exceeding three million won as concurrent crimes under Article 263 of the Public Official Election Act and Article 265 of the Public Official Election Act, such person shall be sentenced to punishment under Article 38 of the Criminal Act.

Therefore, the court below is just in maintaining the judgment of the court of first instance which sentenced Defendant 2 to a single imprisonment with prison labor for concurrent crimes as stipulated in Articles 263 and 265 of the Public Official Election Act, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles as to the treatment of concurrent crimes as stipulated in Articles 263 and 265 of the Public Official Election Act.

B. As to the offering of money, goods, etc. related to the election campaign

Examining the evidence duly adopted by the court of first instance, which maintained the reasoning of the judgment below, in light of the relevant legal principles, the court below did not err by misapprehending the legal principles as to the wages of a political party or by recognizing facts beyond the bounds of the principle of free evaluation of evidence and logical experience.

The Supreme Court decision cited in the ground of appeal is inappropriate to be invoked in this case, unlike the case.

C. Regarding the issue of unfair sentencing

According to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the ground of unfair sentencing may be filed only when the court below rendered a sentence of death penalty, imprisonment with prison labor for an indefinite term or for not less than ten years. Therefore, in this case where Defendant 2 was sentenced to minor punishment, the grounds for deeming the determination of punishment unreasonable are not legitimate grounds for appeal.

2. As to the Prosecutor’s Grounds of Appeal

A. As to the misapprehension of the legal principle as to the place in which advance election campaign is prohibited

The main text of Article 60-3 (1) 2 of the Public Official Election Act permits preliminary candidates to directly use name cards or appeal for support, and the proviso does not allow them to use name cards or appeal for support at subway stations and other open places where many people pass through or gather as prescribed by the National Election Commission Regulations. Article 26-2 (1) 2 of the Regulations on the Management of Public Official Election, which is the National Election Commission Regulations, provides that "in a hospital, religious facility, or theater" is one of the places where many people pass and gather.

However, even if a hospitalization room is established within a hospital, a separate hospitalization room for a small number of patients to be hospitalized is a place where only the hospitalized patient, his/her guardian, or his/her nurse, etc. enters or temporarily resides in the hospital, and thus, such hospitalization room cannot be deemed a place where many people frequent or gather.

Examining the reasoning of the judgment of the court below and the judgment of the court of first instance maintained in light of the above legal principles and the records, it is acceptable that the court below affirmed the judgment of the court of first instance which acquitted Defendant 1 of the facts charged of this case on the ground that the prior election campaign for which Defendant 1 entered the hospitalization room 203 and 202 and complained for the assistance of the patient, etc., cannot be deemed as a public place where multiple visitors frequent or gather, and there is no error of law by misunderstanding the legal principles as to the open place where prior election is prohibited.

B. As to the receipt of money and valuables by Defendant 3, 4, and 5

Examining the reasoning of the judgment of the court below and the judgment of the court of first instance maintained by the court below in light of the records, it is acceptable to maintain the judgment of the court of first instance which acquitted Defendant 3, 4, and 5 of the charges against Defendant 3, 4 on the ground that there was no proof of the crime, and that there was an error of law in violation of the rules of logic and experience and free evaluation of evidence against facts beyond the limits of the principle of free evaluation of evidence.

3. As to Defendant 1’s appeal

Defendant 1 did not submit a statement of grounds for appeal within the statutory period and the petition of appeal does not state the grounds therefor.

4. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)