208No381 A. Violation of the Public Official Election Act

(b) A criminal escape;

1. A. O. ○

Non-existence of residence Hanam-gun:

Reference domicile Cheongbuk-gu Office: Omission

2. (a) b. ○○○, and a public official;

Non-existence of residence Hanam-gun:

6. Omission of the title of registration:

Defendants and Prosecutor

○ Kim

Attorney Lee ○-soo (Apon for Defendant O’s O’O)

Law Firm ○ (private ships for Defendant ○○)

Attorney Park ○, Lee In-bok

Daejeon District Court Decision 2008Gohap77, 148 (Joint) and 162 (Concurrent) decided July 21, 2008

ix) Judgment

September 12, 2008

1. Of the judgment of the first instance court, the part on Defendant ○○ and the part on Defendant ○○’s violation of the Public Official Election Act shall be reversed respectively.

Defendant O○ shall be punished by imprisonment with prison labor for not less than one year and four months, and by imprisonment for not more than two years.

The 153-day detention days prior to the pronouncement of the judgment in the first instance shall be included in the above sentence against Defendant ○○, and the 75-day penalty against Defendant ○○, respectively.

Of the facts charged in the instant case, the Defendants’ violation of the Public Official Election Act following the provision of money and valuables to Ma○○, No. 126, No. 136, 142, 146, and Ma○○○, among the facts charged in the instant case, shall be acquitted.

2. Of the judgment of the court of first instance, the appeal by the defendant ○○○ and the prosecutor’s appeal as to the escape of the defendant ○○○ from the crime are dismissed, respectively.

1. Summary of grounds for appeal;

A. The part of the Defendants’ violation of the Public Official Election Act (1) Defendant OOO: Sentencing (2) misunderstanding of facts during sentencing

(1) Criminal facts of the first instance judgment

Although Defendant ○○ and the electorate expressed the intent to offer money and valuables to Defendant ○○ and the electorate, the Defendants’ invitation is not a specific and practical public offering, but a comprehensive abstract public offering, and there is no fact that there was no involvement in the provision of the money and valuables.

② No. 3-C. 3-2 of the facts constituting the crime in the first instance judgment, since the Military Saemaeul Movement Council did not have a preparatory meeting in relation to the "voluntary Kim Flag event" in 2007, the Defendant attended the preparatory meeting and appealed for support to the female president on November 2007.

facts may not be found.

(B) The prosecutor in charge of sentencing (3) the prosecutor in charge of sentencing: the sentencing division and police officer (in respect of the defendants, the prosecutor);

B. The part concerning Defendant ○○’s escape of the crime (1) Defendant Maximum ○○ (misunderstanding of facts)

Defendant 1 did not know of the fact that he received money and valuables from Defendant 1 at the time when he met the new ○○ and Kim Mandong on February 25, 2008, and the fact that Defendant 1 knew about the fact that he received money and valuables from Defendant 1, and the fact that he only told ○○○ and told her to the effect that he would not receive the phone if he had annoyeded, and that he could not receive the phone if he had annoyed, and that he would not end up the escape. Defendant 1 did not intend to escape. Defendant 1 did not follow the direction of Defendant 1, but rather, even if Defendant 1 was determined to have the largest ○○, this is merely a unilateral misunderstanding.

(2) Prosecutor: Sentencing; Sentencing;

2. Judgment on the Defendants’ violation of the Public Official Election Act

A. The part concerning the criminal facts of the judgment of the court of first instance as to the defendant ○○'s allegation of mistake of facts (1)

제1심은 그 채용증거들에 의하여 피고인 오○○의 금품살포행위 및 이, 유◎ ◎, 강○○의 현대주류상사를 통한 선거자금의 조달, 피고인 최○○과 현대주류상사와의 관계, 이 사건 연기군수 재선거 과정에서 이루어진 피고인 최○○ 측의 조직적 · 계획적인 선거운동 등에 관한 사실을 인정한 다음, 피고인 최○○이 이, 유◎◎, 박◎ ◎에게 현대주류상사의 지분을 이전하였다고 주장하는 2006. 12. 이후에도 직 · 간접적으로 현대주류상사에 대하여 실질적인 지배력을 행사하였던 것으로, 피고인 오○○ 및 이, 유◎◎, 강○○ 등과 공모하여 조직적으로 금품을 살포하는 등 불법선거운동을 함에 있어서 그 지휘 · 감독자로의 역할을 한 것으로 봄이 상당하다고 판단하였다 .

Examining the reasoning of the judgment of the court of first instance in comparison with the records, the above judgment of the court of first instance is just and acceptable, and it cannot be said that there was any error by mistake of facts as to the contents of the conspiracy, as alleged by the defendant ○○, as alleged by the defendant ○. (2) The part concerning the crime No. 3-C. of the

The first instance court held that with respect to the statements made at the investigation agency of the new ○○○ and the court of first instance, which correspond to this part of the facts charged, the new ○○ was in the currency of the measure-won Eup around November 1, 2007. At that time, the head of the women’s association of the measure-won, the head of the women’s association, the head of the women’s association of the previous Myeon, the head of the women’s association of the women’s association of the previous Myeon. After September 27, 2007, the letter of confirmation by the ○○○ was not in the official exercise of the Saemaul Movement Council itself, in light of the contents of the statement.

27. After the date, it seems that the Saemaeul Movement Council of the Republic of Korea did not hold a monthly meeting. In full view of the fact that ○○ was the president of the Saemaul Movement Association of the Republic of Korea and the fact that ○○ was in a pro rata relationship with Defendant ○○ as the president of the Saemaul Movement Association of the Republic of Korea, and that Defendant ○○ was actively and actively engaged in the election campaign, the statement of ○○○ was deemed to be reliable and found guilty of this part of the facts charged.

제1심이 유죄의 근거로 들고 있는 이유들과 신○○가 당심에서도 제1심 법정과 같은 취지로 증언하고 있는 점, 당심 증인 박◆◆과 정○○은 새마을운동협의회 연기군 지회가 ' 사랑의 김장담그기 행사와 관련하여 별도의 준비모임을 가진 적이 없고 2007. 9. 27. 이후에는 위 연기군지회 자체의 공식행사는 없었다고 증언하고 있으나 , 이는 위 연기군지회 차원에서 공식적인 준비모임을 하지 않았다는 것에 불과한 것으로 봄이 상당한 점 등을 종합하여 보면, 제1심이 이 부분 공소사실을 유죄로 판단한 것은 정당한 것으로 수긍할 수 있다 .

B. Ex officio determination (1) We examine ex officio the Defendants’ violation of the Public Official Election Act due to the provision of money and valuables to ○○○, No. 126, No. 136, 142, 146, among the facts charged in the instant case.

In addition to the confession of Defendant O○○, there are copies of the resident list, Kim Man, and parts of the domestic currency content investigation company of Defendant O○○, etc.

① According to the certified copy of the trial records of the first instance court (Seoul District Court Decision 2008Da235, 241, 242, 247) and the appellate court (this Court Decision 2008No355, 358, 359, 362) on the violation of the Public Official Election Act, ○○○, etc., it is denied that no money or valuables have been provided from ○○○, etc. consistently. ② Defendant ○○, who appeared as witness of the first instance court and the appellate court, stated that money or valuables were provided to ○○○○, etc. prior to the offer of money or valuables to ○○○○, etc., and written a resident registry stating the number of money or valuables provided to ○○○, etc., but it is difficult to conclude that the money or valuables were actually provided to ○○,000, etc., without being provided to ○○,000, etc., even if there was no fact subsequent to the provision of money or valuables to ○○○, etc.

In addition, in light of the above statements by Defendant OO○, part of the confessions made by Defendant OO○, which recognized the provision of the instant money and valuables, which constitutes the facts charged, is difficult to recognize credibility.

In addition, each domestic currency content inquiry by ○○○ and ○○○ is merely a document to verify the fact that the statement made several times from November 2007 to December 2 of the same year, and it is insufficient as evidence to prove this part of the charges.

In addition, as long as there is no evidence to prove this part of the facts charged, this part of the facts charged against the Defendants should be pronounced not guilty on the ground that there is no proof of crime, and there is an error of misunderstanding the facts in the judgment of the court of first instance which found them guilty. (2) If so, the part of the judgment of the court of first instance concerning this part of the facts charged should be reversed, and since the judgment of the court of first instance considers this part of the facts charged and the remaining violation of the Public Official Election Act by the defendants to be concurrent crimes under the former part of Article 37 of the Criminal Act, the part concerning the violation of the Public Official Election Act by the defendants and the last part of the judgment of the court of

3. Judgment on Defendant ○○○’s escape of the criminal

A. The first instance court, upon ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s assertion of mistake, stated the following circumstances, i.e., the lower court consistently with the facts constituting an offense in the judgment at the time of the investigation agency and the first instance court. ii) the lower court actively engaged in an election campaign for the purpose of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s election, which had been aware of the fact that he had been arrested and detained on the 20th day.

In addition, on February 25, 2008, the first instance court found it impossible to use its employed evidence, i.e., ① to find out whether ○○○○ was out of Indonesia on or after February 28, 208, and ② On February 28, 2008, ○○○○, who participated in the illegal election campaign conducted by ○○○ was detained by her father’s 29th day following the day on which her husband’s her husband’s her husband’s her husband’s 0th day and her 7th day after his her 0th day after his her 8th day after his her her 0th day after his her her 0th day after his her 1st day after his her 0th day after his her 0th day after his her 0th day after his her 0th day after his her 1st day after his her 20th day after his her 3th day after his her her 1st day after his her her her 1st day after his her her her election.

Examining the reasoning of the judgment of the first instance court in light of the above legal principles and records, the fact-finding and judgment of the first instance court are just and acceptable, and there is no error of mistake of facts as alleged by the defendant ○○○.

B. Determination of the Prosecutor’s argument on sentencing and light of judgment

When the investigation of the illegal election campaign conducted in the process of the extension/election of the instant case was conducted, Defendant ○○ and Kim Man-man, an important suspect. The crime of the criminal escape of the instant case is likely to be subject to criticism in that not only the nature of the crime itself but also Defendant ○’s crime, which can be deemed as the principal offender, was committed by interfering with the State’s legitimate criminal justice function.

However, it does not seem that the ○○○○○ actively provided the escape fund, etc. However, it is judged that the motive would ultimately lead to the crime of escape of this case in order to conceal the crime of the ○○○○○.

In full view of these circumstances, comprehensively taking into account all the sentencing conditions, including the Defendant’s age, character and conduct, environment, motive and background of the crime, and circumstances after the crime, the first instance sentence, which sentenced the Defendant to the maximum ○○○ who was sentenced to six months of imprisonment, is deemed unreasonable.

4. Conclusion

Therefore, the appeal by Defendant ○○ and the prosecutor as to the escape of the offender in the judgment of the first instance court are dismissed in accordance with Article 364(4) of the Criminal Procedure Act on the grounds that all of the appeal by Defendant ○○ and the prosecutor are without merit. Since the part concerning Defendant ○○ and the part concerning Defendant ○○○’s violation of the Public Official Election Act among the judgment of the first instance court on the grounds of ex officio reversal as seen earlier, the decision on the allegation of unfair sentencing by Defendants and the prosecutor is reversed in accordance with Article 364(2) of the

Criminal facts and summary of evidence

The summary of the facts charged against the Defendants’ violation of the Public Official Election Act and the evidence thereof are as follows: (a) except for the facts charged with providing money and goods to ○○○○, No. 126, No. 136, and No. 142, and No. 146, no. 146, which was found not guilty by the court of first instance, on the grounds that the amount of money and goods provided by the Defendants is the same as the corresponding column of the judgment of the first instance court in addition to changing the amount of money and goods provided by the Defendants to KRW 2,522,00,000.

Application of Statutes

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

A. Defendant ○○: Article 230(1)1 of the Public Official Election Act; Article 30 of the Criminal Act (money and goods)

Article 255(1)17, Article 106(1)(a) of the Public Official Election Act, Article 255(1)(a)(a) of the Public Official Election Act, Article 254(3) of the Public Official Election Act, Article 30 of the Criminal Act (a) of the Criminal Act, Article 30(b) of the Criminal Act (a) of the Act on the Election of Public Officials

B. Defendant ○○○: Article 254(3) of the Public Official Election Act (the point of prior election campaign, the choice of imprisonment), Article 230(2) and Article 230(1)1 of the Public Official Election Act, Article 30 of the Criminal Act (the point of expression of intent to provide or offer money or goods, the choice of imprisonment), Article 151(1) of the Criminal Act (the escape of a criminal, the choice of imprisonment)

1. Aggravation for concurrent crimes;

Article 37 of the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (In the case of paragraph (1) of the crime of the first instance, which is the most severe punishment and punishment, the penalty for concurrent crimes committed in accordance with the Public Official Election Act following the provision of money to ○○○ as stated in No. 55 of the annexed Table of Crimes)

1. Inclusion of days of detention in detention;

Article 57 (Number of Days under Detention before Imposition of Appeal)

Under representative democracy in which the participation of the people in the political for the reason of sentencing is basically made through elections, the fairness of election is a minimum condition to be secured for the realization of national sovereignty and democracy. In other words, the success of representative system depends on whether the election system is fairly operated or not. Above all, in order to secure the fairness of election, it is necessary to prevent the source of the risk of election campaign that causes distortion of the will of the people and the fall of the election climate.

In addition, each ticket is the most poor crime that substantially undermines the fairness of election, and in particular, it is necessary to punish it.

In the re-election of this case, the Defendants carried out a prior election campaign and an illegal election campaign for the purpose of having Defendant ○○○ elected, and spread money and valuables to the electorates. This is very serious violation of the purpose of legislation of the Public Official Election Act to establish a fair and clean election culture. In particular, the Defendants distributed money and valuables in a systematic and planned manner based on the residents list prepared in advance, and the amount of money and valuables distributed reaches KRW 2,522,00,00, and the number of residents related to the spread amount of money and valuables reaches KRW 2,522,00, there is a high possibility of social criticism in that the act of spraying money and valuables was considered to have influenced a considerable election.

The re-election in this case became final and conclusive after the previous head of the Gun had been sentenced to the invalidation of election due to the violation of the Public Official Election Act. In the trial process, the Defendants actively proven the violation of the Public Official Election Act. Nevertheless, the Defendants committed an unlawful act without chest in the re-election process of this case. Accordingly, the Gun residents were elected by their head of the Gun, and the Gun residents became subject to criminal punishment. In this regard, it is inevitable to punish the Defendants.

However, on the other hand, in the case of Defendant ○○, there are favorable factors for sentencing, such as: (a) having committed a mistake in the case of Defendant ○○; (b) voluntarily resigned from office by dividing his office; and (c) having donated the real estate owned by Defendant ○○ at the expense of a special election; and (d) having no other unlawful purpose such as opening the right of interest.

In light of the above circumstances, the Defendants were sentenced to the same sentence as the orders in relation to the instant violation of the Public Official Act by comprehensively taking account of all the sentencing conditions, such as the Defendants’ age, character and conduct, environment, criminal record, motive and background of the crime, and circumstances after the crime.

무죄부분 피고인들의 이 사건 공직선거법위반의 공소사실 중 유○○, 김◎◎, 박○○, 임○○에 대한 금품제공에 따른 공직선거법위반의 점의 요지는 『 피고인들은 이, 유◎◎ , 강○○과 공모하여 2007. 12. 19. 실시되는 연기군수 재선거에서 피고인 최○○이 당선되게 할 목적으로 2007. 10. 경부터 같은 해 12. 경 사이에 선거구민인 유○○, 김◆ ◆에게 각 현금 10만 원, 박○○, 임○○에게 각 현금 20만 원의 금품을 제공하였다 .

is the same.

This part of the facts charged constitutes a case where there is no proof of a crime for the same reason as stated in the above 2-B-2-2, and thus, a judgment of innocence is rendered under the latter part of Article 325

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

Judges Kim Sang-hoon

Judges already

Judges Dokman