Whether an election criminal and another election criminal falling under the grounds for invalidation of election may be sentenced separately when the criminal is concurrent crimes under Article 38 of the Criminal Act (negative)

When a judgment is rendered simultaneously with several crimes for which judgment has not become final, Article 38 of the Criminal Act should be punished in accordance with the punishment case stipulated under Article 38 of the Criminal Act. As such, Article 38 of the Criminal Act should be excluded from the application of several crimes indicted as concurrent crimes, and the exception should be explicitly acknowledged in order to sentence a separate sentence unlike the above punishment case. Article 18(3) of the Public Official Election Act provides that a separate sentence shall be imposed between other crimes not an election criminal but an election criminal and other election crimes which are not an election criminal, and does not provide that a separate sentence shall be imposed, and this provision does not apply to such crimes. Thus, Article 265 of the Public Official Election Act does not provide that a punishment shall not be imposed separately from other election crimes, and a sentence shall be imposed in accordance with the punishment case stipulated under Article 38 of the Criminal Act, like other concurrent crimes.

Article 38 of the Criminal Act, Articles 18(3) and 265 of the Public Official Election Act

[Plaintiff-Appellant] Plaintiff 2004Do606 delivered on April 9, 2004 (Gong2004Sang, 855)

Defendant

Prosecutor

Busan High Court Decision 2008No223 decided May 28, 2008

The part of the judgment of the court of first instance against the defendant regarding each crime under Articles 1 and 2 shall be reversed, and that part of the case shall be remanded to the Busan High Court.

We examine the grounds of appeal.

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 case of punishment stipulated in 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 punishment, there must be explicit provisions recognizing exceptions (see Supreme Court Decision 2004Do606, Apr. 9, 2004).

Meanwhile, Article 265 of the Public Official Election Act provides that where an election campaign manager, accountant in charge of an election campaign office, or lineal ascendant or descendant or spouse of a candidate is sentenced to imprisonment or a fine exceeding three million won on account of committing a crime by contribution under Articles 230 through 234, and 257 (1) of the same Act in the relevant election, the election of the candidate shall become invalidated. In order to clarify whether the election of the candidate is invalidated if the election campaign manager is indicted as well as the election crime as provided in the above Article 265 of the same Act, it is necessary to separate the punishment of the candidate for the election crime as provided in the above Article 38 of the Criminal Act from that of other election crime, which is irrelevant to the invalidation of the election, and the exception of Article 38 of the Criminal Act should be imposed separately from that of other election crimes. However, Article 18 (3) of the Public Official Election Act provides that separate from that of the election crime and the sentence of the election crime under Article 38 of the same Act shall be imposed.

Unlike this, the court below affirmed the judgment of the court of first instance which sentenced a separate punishment for each crime after reviewing the fact that the violation of the Public Official Election Act due to the provision of money or goods related to the election campaign against the defendant, who is a lineal descendant of the elected, constitutes a reason for invalidation of election as provided in Article 265 of the Public Official Election Act, pursuant to Article 300 of the Criminal Procedure Act, since it constitutes a reason for invalidation of election as provided in Article 300 of the Public Official Election Act. Such judgment of the court below is erroneous in the misunderstanding of legal principles as to the punishment cases of concurrent crimes as provided in Article 38 of the Criminal

Therefore, among the judgment of the court below, the part concerning the crimes of Articles 1 and 2 of the judgment of the court of first instance against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Shin Hyun-chul (Presiding Justice)