Defendant

Defendant

Kim Kim

Law Firm International Law Firm, Attorneys Lee Han-seok et al.

Ulsan District Court Decision 2008Gohap245 Decided October 7, 2008

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

In light of the defendant's series of acts, etc., the defendant was aware that the head of infrastructure headquarters of the Ministry of Construction and Transportation committed a promise to abolish the toll on the Ulsan-do Highway (hereinafter referred to as "Ulsan Expressway"), and even without such a promise, the defendant did not have awareness that the abolition promise to abolish the Ulsan-do Expressway was false. Nevertheless, the court below found the defendant guilty of publishing the false facts. The court below erred by misapprehending the legal principles on criminal intent in the crime of violating the Public Official Election Act due to the misconception of facts or the publication of false facts, which affected the conclusion of the judgment.

B. Unreasonable sentencing

The Defendant’s electoral zone as the north-gu in Ulsan Metropolitan City does not use the Ulsan Highway. Moreover, since the Defendant had already shown a higher support rate compared to other candidates prior to the election, it cannot be said that there was a significant impact on the election to publish the fact that the Defendant was promised to abolish the passage of the Ulsan Expressway.

In addition, the defendant obtained 24,135 votes (45.84%) among 52,642 votes in the election of the 18th National Assembly member, which was implemented on April 9, 2008, and won in the election of the 17th National Assembly member, and tried to fill the gap between 10,000 votes and other candidates, and to deal with various problems for the residents of the constituency at the time of holding office as the 17th National Assembly member, and was selected as an excellent member of the inspection by the NGO monitor of the state administration in 202 and in 2006.

Considering such various circumstances, the sentencing of the lower court (the fine of KRW 1.5 million) that declared a fine to invalidate the election against the Defendant is too unreasonable.

2. Determination

A. misunderstanding of facts and misapprehension of legal principles

(1) Facts of recognition

Comprehensively taking account of the evidence duly adopted and examined by the court below and the trial court, the following facts may be recognized:

(A) The Ulsan Highway is a four-lane industrial expressway with the mountain industrial complex located in Ulsan Nam-gu, Ulsan-gun, Ulsan-gun, and it was opened on December 29, 1969, which connects the mountain industrial complex located in Ulsan-do. The tolls of the Ulsan Expressway are KRW 1,400, and the toll revenue is KRW 242% (the base rate for the construction costs is about 464%, and the net profit is about KRW 56 billion).

(B) As a result of the integration of Ulsan Metropolitan City and Ulsan Metropolitan City into Ulsan Metropolitan City, the citizens and social organizations of Ulsan Metropolitan City and the Ulsan Metropolitan City did not properly function as an expressway by changing the Ulsan Metropolitan City to a road in the Metropolitan City. Moreover, the Korea Highway Corporation has claimed to abolish the toll of Ulsan Metropolitan City, which has been 30 years passed since 202, on the ground that the toll revenue of the Ulsan Metropolitan City was very high (Article 10(1) of the Enforcement Decree of the Toll Road Act provides that "A toll road management agency shall set the toll collection period within 30 years pursuant to Article 16 of the Act).

(C) Under such circumstances, from around 2006, Defendant also urged the abolition of tolls of the Ulsan Expressway, and the proposal on July 13, 2007, as well as the above amendment proposed five amendments to the Toll Road Act. In addition, the details of the proposal were 30 years after the completion of the construction of the expressway, including the exemption of tolls, the exemption of tolls on the expressway during the major time period of commuting to and from work, the exemption of tolls on the expressway, the exemption of tolls on the highway, and the exemption of tolls on the highway and the Ulsan Expressway.

(D) Accordingly, the Ministry of Construction and Transportation (the Government Organization Act was wholly amended by Act No. 8852, Feb. 29, 2008; the Ministry of Land, Transport and Maritime Affairs merged with the Ministry of Land, Transport and Maritime Affairs; hereinafter “the Ministry of Construction and Transportation”) requested the Korea Development Institute through the Korea Highway Corporation (KDI) to set the service period from November 5, 2007 to November 4, 2008 to develop the toll road policy direction (the plan to collect the cost of national expressway, the plan to resolve the problems and problems including the management of the toll road, the plan to transfer the toll road to the local government after exclusion from the national expressway), the plan to improve the toll road traffic fare system and the structure. At the time, the Ministry of Construction and Transportation requested the Korea Development Institute (KDI) to take comprehensive measures to improve the toll road traffic fee system and the Act and subordinate statutes, including the improvement plan to improve the toll road system and the Act.

(E) In addition, the Ministry of Construction and Transportation, according to the amendments to the Toll Road Act, 30 years have passed since the construction was conducted or 4 routes (Seoul Metropolitan Area Highway, Ulsan Highway, Gyeongdo Expressway, and 2 roads in South Sea) from the construction costs have collected all the tolls, and it is difficult to accept the amendment of the Toll Road Act at the government entry where the integrated bond collection system is maintained, and in particular, it was difficult to abolish the absolute toll as much as the Gyeongdo Highway could not be abolished.

However, in order to review the above six amendments of the Toll Road Act, most of the National Assembly members belonging to the above sub-committee were friendly toward the passage of the amendment, and the Ministry of Construction and Transportation tried to keep the passage of the above amendment automatically from the expiration of the session due to the expiration of the term of the 17th National Assembly members by mooring the above six amendments to the sub-committee. In the process, the Ministry of Construction and Transportation attempted to actively block the passage of the amendment by allowing the passage of the above amendment to be automatically discarded along with the completion of the session due to the expiration of the term of the 17th National Assembly members. In the process, according to the response data of the Ministry of Construction and Transportation prepared by the members of the Ministry of Construction and Transportation, including Non-Indicted 3 (the Minister at that time retired for the passage of the National Assembly members) of the Vice Minister of Construction and Transportation, Non-Indicted 1 of the Infrastructure Headquarters, and Non-Indicted 4 of the Policy Public Relations Management Office, etc., to share the direction of responding to the question of the National Assembly members.

(F) On February 13, 2008, the persons concerned with the Ministry of Construction and Transportation, including Nonindicted 1, 3, and 4, attended the National Assembly Construction and Transportation Deliberation Committee on the Bill of the Act of the National Assembly held on February 13, 2008 (the chairperson of the sub-committee) and explain the above position of the Ministry of Construction and Transportation as to the question of the members belonging to the above committee including the Defendant, and reply to the purport that it is difficult to accept the legislation of the National Assembly on the amendment of the Toll Road Act, and that if the results of the investigation conducted by the Korea Development and Development Institute on the services of the National Assembly, it would be possible for

(G) On the other hand, with respect to the above reply of the Ministry of Construction and Transportation, the Defendant continued to talk about the issue of abolition of tolls since the past times, and 30 years have passed since all of the construction expenses were collected from the Ulsan Highway, why is to collect tolls that are not provided for in the Act, and in this situation, the Defendant also expressed a question about why it is necessary to result in his service, and made a strong fishing clause.

In addition, at the regular meeting of the above sub-committee, the Defendant demanded the non-indicted 1 to abolish the tolls of the Ulsan Highway to the non-indicted 1 at the meeting room at the time of the meeting of the sub-committee, and the non-indicted 1 responded only to the purport that the "mise review" as in the meeting room, and did not specifically promise the abolition of the tolls of the Ulsan Expressway (the National Assembly’s stenographic record was discussed for about 40 minutes from 18:04 to 18:43 and completed the meeting at around 19:42, but it was recorded that the amendment bill of the Toll Road Act was in the middle of the discussion on the amendment bill of the Toll Road Act or that it was not regularly convened until the completion of the meeting).

(h) Ultimately, the six amendments, including the amendments proposed by the Defendant, were not concluded in the above sub-committee due to the opposition of the Ministry of Construction and Transportation to the Ministry of Construction and Transportation. As a result, the Defendant transferred the amendments to the sub-committee. As a result, the above amendments were entirely discarded on the end of the session.

(i) On February 13, 2008, the Defendant, as the persons related to the above Ministry of Construction and Transportation, requested on several occasions that Nonindicted Party 1, who opened a meeting of the said Ministry of Construction and Transportation, will abolish the tolls of the Ulsan Expressway, stating that “The road has been constructed for at least 30 years since it had been constructed, and that it has already been at the market price.” On several occasions, Nonindicted Party 1, like the reply at the official meeting, requested that “I will examine the tolls of the Ulsan Expressway,” “I will prepare and promote the comprehensive improvement plan based on the results of the research service conducted by the Korea Development Institute,” and “I will prepare and implement the comprehensive improvement plan based on the results of the research service conducted by the Korea Development Institute,” and did not say that I would necessarily abolish the tolls of the Ulsan Expressway Expressway Highway.

(j) The Defendant asked Non-Indicted 5 of the Ulsan Metropolitan City Mayor of Ulsan Metropolitan City to the effect that “I would have the intention to receive the Ulsan Metropolitan City if I will transfer the right to manage the Ulsan Metropolitan City to Ulsan Metropolitan City,” and Non-Indicted 5 of the Ulsan Metropolitan City Mayor responded to the following: (a) the Defendant made a statement that I will receive the right to receive the right to manage the Ulsan Metropolitan City, and (b) Non-Indicted 5 of the Ulsan Metropolitan City.”

(k) On February 14, 2008, the Defendant called Nonindicted 1 to “to publicize the government’s commitment to the abolition of the Ulsan Expressway tolls to local residents,” and Nonindicted 1 respondeded to the effect that “it is difficult for the government to prepare a comprehensive plan to improve the system on the national expressway by the end of 2008, and it is also included in the Ulsan Expressway. Therefore, it is difficult for the government to implement the toll abolition commitment, and that the government promised to prepare a comprehensive plan to promote the local residents’ publicity, and that it is desirable to treat the same for the sake of public relations.”

(l) On February 14, 2008, the Defendant instructed Nonindicted 6 assistant officers to prepare and distribute the news report materials. The news report materials include the specific procedures on the abolition of tolls, such as: “The Defendant, in addition to the fact that the Defendant was promised to abolish the tolls of the Ulsan Highway, he will remove the Ulsan Highway No. 16 of the national expressway in the future through the revision of the Enforcement Decree of the Motorways Act, and take the procedures designated as Metropolitan City roads.” On February 13, 2008, the New Zealand published the news report materials cited the above news report materials in Seoul, the news report company in the Ulsan area including the Gulsan Island, the Gulsan Island, and the U.S. newspaper around February 15, 2008.

(m) After that, as stated in the facts constituting a crime in the judgment below, the Defendant sent promotional materials of preliminary candidates and election campaign bulletins containing the fact that the Defendant had received the toll toll commitments from the Ministry of Construction and Transportation, and discussed the same contents in the broadcast advertisements and candidate broadcast discussions. In particular, in the candidate’s broadcast discussions, the Defendant respondeded to the purport that when he was asked to verify the fact that he did not set specific policies on the abolition of the toll and the transfer of the management right on the Ulsan Expressway under the Ministry of Construction and Transportation, he received such a promise, or that it could not be disclosed under the equity with other local highways under the Ministry of Construction and Transportation.

(Ha) On the other hand, the study on the improvement of the expressway toll system by the Korea Development Institute on Expressway has not yet been completed until now, and the position of the Ministry of Construction and Transportation to prepare comprehensive measures for the overall expressway toll system is not different from the previous one.

In addition, in order to abolish tolls of Ulsan Expressway, it is necessary to revise the Integrated Collection System or transfer the Toll Road Act to local governments in the direction of establishing exceptions, etc. In order to make such policy decisions, procedures such as consultation with relevant ministries and local governments, public hearings and related Acts and subordinate statutes should be followed, but the Ministry of Construction and Transportation has not followed such procedures so far.

(o) The infrastructure headquarters established under the Ministry of Construction and Transportation, and is in charge of overall affairs such as construction and maintenance of highways, national highways and general railroads, construction and maintenance of water resources facilities, planning and management of public-private partnership projects, and inter-Korean cooperation projects, or whether the tolls of Ulsan Highway is discontinued is determined by the Minister of Construction and Transportation based on the service results of the Korea Development Institute, through consultation with relevant ministries and local governments, public hearings, etc., and even if the Minister's decision is made, there is a need to revise the Acts and subordinate statutes as follow-up measures. Thus, Nonindicted 1, the head of infrastructure headquarters, did not have any time or position to make such a decision or promise at the time (in the subcommittee, the Minister of Construction and Transportation attended and actively responded with Nonindicted 3, the Vice Minister of Construction and Transportation, in the presence

(p) Generally, among the public officials’ answers to questions by the National Assembly members, the phrase “comfortly review” is a negative position, and the phrase “review” is an intermediate position to punish time when the government policy has not been finalized, and the phrase “affirmative review” is possible in a positive direction, and as long as the government policy has not been determined internally, there are many cases where the public officials’ answer and the public officials’ answer are not a conclusive speech.

(q) Meanwhile, in the election of the 16th National Assembly member, the defendant was elected as the candidate for the 16th National Assembly member, but there were many workers in the north-gu in Ulsan Metropolitan City, Ulsan Metropolitan City, the support rate of the Democratic Labor Party was high, which is the basis of support, and the defendant went out to the 17th National Assembly member candidate for the 17th National Assembly member election (19,952 votes) in 2004, but the number of candidates for the 8th National Assembly member election was elected, but their election was invalidated after being sentenced to a fine of KRW 1.5 million as a violation of the Election of Public Officials and the Prevention of Unlawful Election Act, and the defendant was again elected in the 150,000 won since the election was again elected in the 17th National Assembly member election.

(2) Determination of false facts

Article 250(1) of the Public Official Election Act provides that the term " false facts" means false facts that are inconsistent with the truth and that are sufficient enough to cause the elector to correct accurate judgment on candidates (see Supreme Court en banc Decision 2001Do6138, Feb. 20, 2003, etc.).

(6) The Defendant stated that “Non-Indicted 1 prepared multiple improvement plans, consulted with the relevant ministries, and gathered the bill by the end of 208” in the investigation agency regarding the proposed bill of the Toll Road Act, which was presented at the first session of the Construction and Transportation Committee of the National Assembly on February 13, 208. In light of the fact that Non-Indicted 1 did not receive any promise to abolish the Ulsan Expressway, the Defendant, who is the chairperson of the bill review subcommittee, did not know the fact that Non-Indicted 1 did not know the fact that Non-Indicted 1’s existing bill revision plan was presented to the Defendant on February 14, 2008, and that it was difficult for the Defendant to know that there were no other reasons for the Defendant to know that there was no new bill revision plan from the second session of the Toll Road Act before the second session of the Ministry of Construction and Transportation on February 13, 2008.

On February 13, 2008, as seen above, the Ministry of Construction and Transportation did not have a position to accept the proposed amendment of the Toll Road Act, which was presented to the first meeting of the Construction and Transportation Review Committee of the National Assembly Construction and Transportation, as the Ministry of Construction and Transportation, and the majority of the National Assembly members present in the subcommittee at that time participated in the passage of the proposed amendment, and thus, the relevant persons of the Ministry of Construction and Transportation were trying to actively block the passage of the proposed amendment.

However, it is difficult to understand that Nonindicted Party 1, the head of the Infrastructure Headquarters of the Ministry of Construction and Transportation, promises the abolition of the Ulsan Expressway to the Defendant by the authority of the head of the headquarters, without any practical consultation or feasibility review between relevant ministries, and any discussion with Nonindicted Party 3, who attended the relevant jobs.

In the investigation agency, the court below, and the trial court of the Ministry of Construction and Transportation, which was involved in the meeting, Non-Indicted 1, 3, and 4 consistently stated that the defendant only gave an original and reserved answer, such as “to prepare improvement measures for the overall toll system of the expressway,” and “an erroneous examination,” and that there was no specific promise to abolish the tolls of the Ulsan Expressway. In particular, even in the stenographic records dated February 13, 2008 of the National Assembly Construction and Transportation Review Committee of the National Assembly Construction and Transportation Committee, Non-Indicted 1 and other persons related to the Ministry of Construction and Transportation, such as Non-Indicted 1, etc., made a statement to the effect that the tolls would be abolished. In addition, according to the above stenographic records 89 pages of the above stenographic records (No. 106 of the Investigation Record), it is difficult to view the non-Indicted 1’s statement that the non-Indicted 1 would actively review the contents asserted in the legislation of the National Assembly according to the results of the review by the Korea Development and Transportation Institute.” The Defendant’s reply to the purport that the Defendant’s reply was not made.

Therefore, as stated in the facts constituting a crime in the lower judgment, the Defendant’s act of publicity or statement that “the Defendant received the promise to abolish the tolls on the Ulsan Expressway from the Ministry of Construction and Transportation” and publicly announcing the Defendant’s achievements constitutes an act that is inconsistent with the truth and is likely to cause the elector to make an accurate judgment on the candidate so that it can cause the elector to make an accurate judgment on the candidate.

(3) Determination of whether to recognize false facts

In the crime of publishing false facts under Article 250(1) of the Public Official Election Act, it is necessary to recognize that the facts are false as the contents of the constituent elements because they constitute the crime of publishing false facts. The existence of such subjective perceptions is bound to make a normative determination by comprehensively taking into account all the circumstances such as the Defendant’s academic background, career, social status, timing of publication, and expected ripple effect as well as the contents of the publication, as long as it is difficult to know or prove it outside of the country due to its nature, and the content of the publication, the existence or absence of such subjective perceptions should be determined by considering the contents of the fact of publication, the existence and content of the explanation, the source and recognition circumstances of the fact alleged by the Defendant (see Supreme Court Decision 2005Do2627,

The purpose of the revision of the Toll Road Act was to emphasize the fact that the Defendant was bound to transfer the toll road to the Defendant at the time of the abolition of the toll road management plan, and the Defendant, as a matter of course, knew of all the persons involved in the construction and operation of the Highway at the time of the abolition of the plan to improve the toll road management plan. ② The expression of the plan to improve the toll road management plan is a customary term used by the government officials, and there was no such reply regarding the demand of the Defendant for abolition of the toll road management plan, so it would be difficult for the public officials to accept the request for abolition of the plan to abolish the toll road management plan in the direction that the Defendant would not be able to actively implement the plan to abolish the toll road management plan on the following grounds: (i) because the Defendant had been aware of the transfer of the toll road management plan to the Defendant at the time of the abolition of the plan to abolish the toll road management plan to the Defendant; and (ii) it would be difficult for the public officials to use the new toll road management plan as a way to abolish the plan.

살피건대, ① 피고인은 공소외 1로부터 통행료 폐지를 약속받은 시기에 관하여, 처음 경찰조사 시에는 소위원회 회의를 마친 후 저녁식사 자리에서 약속받았다고 진술하였고, 검찰 1회 조사 시에는 소위원회 도중 정회 시간에 약속받았다고 진술하였다가(속기록에는 정회하였다는 기록이 없다) 경찰조사 시와 진술이 다르다는 추궁에 정회 시간 및 저녁식사 자리에서 모두 약속을 받았다고 진술하였고, 공소외 5 울산광역시장에게 전화를 건 시간도 저녁식사 전이라고 진술하다 당심에서 저녁식사 후라고 진술하는 등 그 구체적 시기 등에 대하여 진술이 엇갈리고 있는 점, ② 피고인은 소위원회 회의 시, 정회 시, 저녁식사 시 모두 거듭하여 공소외 1에게 통행료 폐지를 요구하였고, 그 다음날 보도자료를 배포하기 전에도 공소외 1에게 폐지방침을 다시 확인하였다는 것인바, 만일 피고인이 건설교통부 또는 실무책임자인 공소외 1로부터 피고인의 진술과 같이 소위원회 정회 시간에 구체적 약속을 받았다고 생각하였더라면 국회의원이자 건설교통위원회 법안심사소위원장의 지위에 있던 피고인이 이와 같이 계속적으로 요구하거나 보도자료 배포 전 재차 확인을 하지는 않았을 것으로 보이는 점, ③ 소위원회 회의 당시 울산고속도로 등 통행료 폐지와 관련하여 한국개발연구원에 연구용역을 의뢰한 외에는 아무런 준비나 대책이 없었던 건설교통부 관계자들은 즉각적인 답변은 하지 않은 채 ‘검토 중( 공소외 1은 ‘어쨌든 적극적으로 검토하겠다’는 답변을 1회 한 바 있다)’이라는 취지의 대답으로만 일관하였을 뿐 구체적인 답변을 회피하였고, 피고인 스스로도 정부 입장을 추궁하는 공소외 9 위원에게 정부 입장은 예산이 소요되는 부분은 무조건 반대하는 취지라고 설명하기도 하여, 한국개발연구원의 구체적 연구결과가 나오기 전에는 통행료 폐지나 감면에 소극적인 건설교통부의 입장을 잘 알고 있었는데, 그러한 상황에서 건설교통부의 실무책임자가 공식회의석상이 아닌 정회시간 혹은 회의종료 후 사석에서 내부적인 실무협의나 검토도 없이 정부의 정책방향과 배치되게 중요정책에 관한 구체적 약속을 한다는 것도 납득하기 힘든 점, ④ 피고인이 소위원회 종료 후 울산광역시장 공소외 5에게 전화한 내용 역시 ‘울산고속도로의 관리권을 울산광역시로 넘겨주면 받을 의향이 있나’는 것인데, 이는 건설교통부 관계자들로부터 울산고속도로의 관리권 이양 내지 이를 전제로 한 통행료 폐지를 약속받았다는 것을 배경으로 하기보다는, 구체적으로 약속을 받지는 않았지만 피고인의 노력으로 관리권이 이양될 경우를 상정한 표현으로 보이는 점, ⑤ 피고인은 소위원회 개최 다음날인 2008. 2. 14. 보도자료를 내기 위해 공소외 1과 통화하는 과정에서 공소외 1로부터 재차 ‘정부에서 2008년 말까지 전국 고속도로에 대한 제도개선 종합대책을 마련할 계획이니까 거기에 울산고속도로도 포함해서 검토하겠다’는 종전과 같은 답변을 들었고, 아울러 ‘그렇기 때문에 통행료 폐지를 약속하였다고 지역주민들에게 홍보하는 것은 곤란하다’는 취지로 당부받은 점, ⑥ 피고인이 건설교통부 관계자로부터 일관된 원론적인 답변만 듣고, 구체적 보도자료를 내겠다는 피고인의 발언에 대하여 공소외 1로부터 위와 같이 통행료 폐지를 홍보하지 말라고 당부받았으며, 피고인의 진술에 의하더라도 법 개정 혹은 시행령 개정, 관리권 이양 등 통행료 폐지의 구체적 절차에 관하여는 아무런 구체적 언질을 받지 못하였음에도, 보도자료 내지 예비후보자 홍보물에서 고속국도법 시행령 개정을 통해 울산고속도로를 울산광역시도로 지정하거나 고속도로 관리권을 울산시로 이관한다는 등의 구체적인 방법까지 적시하며 홍보한 점, ⑦ 소위원회에 참석한 국회의원 대다수가 유료도로법 개정안 통과에 호의적이었으나 이를 수용할 수 있는 입장이 아니었던 건설교통부 관계자들이 그 개정안 통과를 적극 저지하는 과정에서, 여러 국회의원들의 거듭된 제도 개선요구에 대하여 한국개발연구원의 연구 결과에 따라 종합적으로 검토하겠다는 입장을 밝히면서 건설교통부 관계자 특히 실무책임자인 공소외 1이 ‘검토하겠다’는 말보다는 좀더 긍정적인 ‘적극’ 또는 ‘잘’ 검토하겠다는 취지의 말을 반복하였다고 하더라도, 그러한 다급한 입장에 있던 건설교통부 내지 실무책임자가 국회의원들의 요청에 떠밀려 좀더 긍정적인 대답을 하는 상황인 이상, 말 그대로 건설교통부가 곧바로 긍정적인 방향으로 정책추진이 가능한 경우라고 보기 어려울 뿐만 아니라 그러한 구체적인 약속까지 한 것으로는 보기 어려운 점, ⑧ 공소외 1이 건설교통부 기반시설본부장으로 실무책임자이기는 하나 그 당시 건설교통부 최고책임자로 차관인 공소외 3이 참석하였으므로, 피고인으로서는 공소외 1이 그러한 약속을 하였다고 믿었다면 당연히 차관인 공소외 3에게도 확인을 하거나 이야기를 하였을 것으로 보이나, 공소외 3은 회의 도중 공소외 1로부터 울산고속도로 통행료 폐지에 관하여 의논을 하거나 보고를 받은 바가 없고, 또 회의 도중이나 피고인 바로 앞에 앉아 저녁식사를 할 때에도 피고인이나 공소외 1이 그러한 내용의 이야기를 하는 것을 들은바 없다고 진술하고 있는 점, ⑨ 관련 부처 공무원이 ‘검토하겠다’고 답변한 뒤 실제로 그러한 국회의원의 제도 개선요구가 실현된 경우도 없지는 않으나, 이는 그 개선요구를 검토하여 경제성, 타당성이 있다고 인정되어 그 개선요구를 실행한 것에 불과할 뿐 그러한 답변을 할 당시에 이미 그러한 개선요구를 실행하겠다고 약속한 것으로는 볼 수 없는 점, 그 밖에 피고인의 학력, 경력, 지위 내지 통행료 폐지 약속 공표로 인한 파급효과 등을 종합하면, 피고인이 원심 판시 범죄사실 기재와 같이 보도자료 등을 통하여 ‘피고인이 건설교통부로부터 울산고속도로 통행료 폐지 약속을 받았다’고 홍보 내지 진술할 당시 그 내용이 허위라는 점을 인식하고 있었다고 넉넉히 인정할 수 있다.

Therefore, as stated in the facts of the crime in the judgment below, the defendant published false facts that "the defendant received a promise to abolish the tolls from the Ministry of Construction and Transportation" through the news report materials, etc., and the defendant was aware that such contents are false. Therefore, the defendant's assertion of mistake of facts and misapprehension of legal principles is without merit

B. The assertion of unfair sentencing

It is recognized that the defendant was first elected in the election of the 18th National Assembly member with a large number of votes in the election of the 18th National Assembly member.

However, in light of the legislative intent of the Public Official Election Act and the public consensus that the election should be settled by preventing any malpractice related to the election, punishment for election crimes need to be strict. The Public Official Election Act invalidates the election where a candidate is sentenced to a fine exceeding one million won due to a violation of the Public Official Election Act. While such circumstances are one of the factors for sentencing, it is also necessary to have the legislative intent to invalidate the election even if a minor offense corresponding to one million won is committed according to general standards, the issue of abolition of the tolls of the Ulsan Expressway is the most important interest of the U.S. citizens, and the publication of false facts that the defendant received the abolition of the election plan is not likely to have an interest in the abolition of the election campaign because the residents in the constituency of Ulsan Metropolitan City do not frequently use the U.S. Expressway Expressway Expressway, and there is no strong influence on the election campaign by the local residents as one of the main reasons for the abolition of the election campaign plan and the abolition of the election campaign plan by the local residents.

3. Conclusion

Therefore, the defendant's appeal of this case is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Jung-gu (Presiding Judge)