Defendant

Both parties

The Kim Jong-won (prosecutions, public trials), and the court of compulsory appearance (public trial)

Law Firm Datho et al.

Daejeon District Court Decision 2018Gohap266 Decided February 20, 2019

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant (De Facto misunderstanding or misunderstanding of legal principles)

Non-Indicted 1’s statement is not reliable as to the date and time and place of receiving money and valuables in the course of investigation, the contents of conversation at the time of receiving money and valuables, the motive for offering money and amount provided, etc., and the defendant’s malicious sentiment is not reliable, such as the defendant’s withdrawal from the Do Council members within the Do Council members, etc. In addition, in light of the fact that the money and valuables received from Non-Indicted 1 are less than 40 million won and the money and valuables are received not less than 10 months prior to the 7-dong local election day, it cannot be deemed that the defendant received money and valuables in relation to the recommendation of Non-Indicted 1 as a candidate for the △△△△ Provincial Council members. Nevertheless, the judgment of the court below guilty of the facts charged that the defendant received money and valuables in relation to the recommendation of a candidate

(b) Prosecutors;

1) misunderstanding of facts or misunderstanding of legal principles (not guilty part)

In light of the period when the Defendant delivered KRW 1 million to Nonindicted 3, the economic situation of Nonindicted 3 was not good at the time, the Defendant did not urge Nonindicted 3 to pay reimbursement, and Nonindicted 3 paid KRW 1 million to Nonindicted 3, the Defendant would contribute KRW 1 million to Nonindicted 3. In addition, if the Defendant consistently stated to the effect that “one million won has been paid to Nonindicted 3, and it may not be returned even if it was not returned from Nonindicted 3,” the Defendant was aware that the Defendant may not receive a refund of KRW 1 million, and thus, a contribution act is established even if the Defendant had some intent to receive a refund of KRW 1 million. Nevertheless, the lower court acquitted the Defendant on the charges of making a contribution, misunderstanding facts or misapprehending legal principles.

(ii)the type of unfair practices;

The punishment (including a fine of four million won) declared by the court below is too unhued and unfair.

2. Determination:

A. Judgment on the defendant's assertion

1) Relevant legal principles

Article 47-2 (1) of the Public Official Election Act, which provides for the prohibition of receiving money or goods related to the recommendation of a political party, "related to the affairs recommended as a candidate" means that the provision of money or goods constitutes a case where the offer of such money or goods falls under the price or case of recommendation of a candidate or where the offer of such money or goods may affect any form in the recommendation of a candidate (see, e.g., Supreme Court Decisions 2008Do1040, May 14, 2009; 2009Do834, Apr. 23, 2009).

2) Determination

In light of the relevant legal principles as seen earlier, in light of the following circumstances acknowledged by the evidence duly adopted and examined by the lower court and the lower court (However, the question and answer to Nonindicted 1, 13, and 18’s list of evidence Nos. 2, and the first and second police interrogation protocol against Nonindicted 1, 13, and 18, are inadmissible as seen earlier; thus, it is reasonable to deem that the Defendant (a party name omitted) received money and valuables from Nonindicted 1 in relation to Nonindicted 1’s recommendation as a candidate for the △△△△△△△△△△△ Provincial Election Council member at the seventh East-si local constituency. Accordingly, the Defendant’s

A) The Defendant started political party activities in the middle of the 1990s, and went to the election of the National Assembly members in 2004, in 2010 and 2014, and (1) in the election of the △△△ City National Assembly members in 2016, and was appointed as the chairman of the Local Committee on △△ City (the name of a political party omitted) around July 2016, and was engaged in political activities. Nonindicted Party 1 went to the election of the △△△ City Provincial Council members, which was implemented on June 4, 2014, but went to the election (the name of a political party omitted) around May 2015, and was sentenced to Nonindicted Party 1 to take charge of political activities as the chairman of the △△ City National Assembly member (the name of a political party omitted). Meanwhile, Nonindicted Party 2 was sentenced to the election of the △△ City National Assembly member on April 21, 2016.

At the time of receiving KRW 450,00 (hereinafter “the instant money and valuables”) from Nonindicted 1, the judgment on Nonindicted 4 was not finalized. However, there was a possibility that the Defendant was a special election of the National Assembly member of △△△△ who was a preliminary candidate, and Nonindicted 1 was trying to leave the said local election under (name omitted) and, Nonindicted 1 was aware that maintaining a friendly relationship with Nonindicted 2 National Assembly members who were the chairman of the (name omitted) △△△△△△△△△△△ branch, would be helpful for receiving (name omitted) the contribution from the election.

B) On October 29, 2018, Non-Indicted 1 stated that “I would like to see that I will assist the Defendant in election,” and “I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see the relationship. I would like to see that I would like to see that I would like to see that I would like to see? I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see. I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to receive money later.” I would like to see that I would like to see that I would like to see that I would like to receive money later.

In full view of the above statements made by Nonindicted 1, the purport of the above, is that, if the Defendant, the chairman of the △△△ City local committee, who is the chairman of the △△ City local committee, franchising a friendly relationship while carrying out meals with Nonindicted 2, a member of the incumbent member of the △△△ City political party, the Defendant demanded meal expenses to Nonindicted 1, because he would assist him in receiving future meritorious relations, and Nonindicted 1 also consented thereto and provided KRW 4,50,00

C) On April 22, 2018, the Defendant made a false statement at the election commission of △△△△△, “I am 10,00 won and 10,000 won and 40,000 won and 10,000 won and 10,000 won and 10,000 won and 40,000 won and 10,000 won and 10,000 won and 10,000 won and 10,000 won and 20,000 won and 20,000 won and 10,000 won and 20,000 won and 10,000 won and 20,000 won and 20,000 won and 10,000 won and 20,000 won and 10,000 won and 30,00 won and 10,000 won and 2,00 won.”

In addition to the statement at the police, the Defendant made a statement to the effect that “Nonindicted 1 provided the Defendant with 4,50,000 won for a good falsing fals at the meeting of the chairman of the Do branch of the public prosecution and fals at the meeting of the Defendant.” In comparison with Nonindicted 1’s statement, there is no difference between the Defendant’s statement and the Defendant’s above, as to “Nonindicted 2’s member of the public prosecution and falsing fals at the meeting of Nonindicted 1, who first demanded it,” and there is a expectation that “Nonindicted 1 will be helpful for his fals in the future, and the Defendant provided the Defendant with 4,50,000 won as meal expenses with Nonindicted 2.

D) On June 13, 2018, the Defendant, who was carried out on June 13, 2018, participated in the presidential election for the National Assembly member of △△△△△. On March 9, 2018, the Defendant participated in the presidential election. During the presidential election, a telephone recording file was leaked with a statement that the Defendant would harm the receipt of the instant money and valuables. On April 20, 2018, the online newspaper (name omitted) reporter asked the Defendant to the effect that “Nonindicted 1 asked the Defendant, as the content of the telephone recording file, Nonindicted 2 of the National Assembly member, who was the chairman of the (party name omitted) △△△△△△△△△△ Party, requested the said reporter, “The Defendant did not immediately refuse it, and received the instant money and valuables.”

The above answer made by the Defendant against the reporter regarding the receipt of the instant money and valuables is reliable as it voluntarily responded before the election commission’s accusation and investigation commences. The contents also differ from the Defendant’s respective statements made by the election commission and the prosecutor’s office, Nonindicted 1’s prosecutor’s office and the court of original instance.

E) The Defendant did not engage in any financial transaction other than the instant money and valuables between Nonindicted Party 1 and the Defendant. In light of the political situation where the Defendant and Nonindicted Party 1 were faced at the time of providing the instant money and valuables, the political status and influence of the Defendant and Nonindicted Party 2 member of the △△△△△ Party who was the chairman of the Local Committee on △△△ Party, and the relationship between the Defendant and Nonindicted Party 1, etc., the Defendant and Nonindicted Party 1, at the time of providing the instant money and valuables, etc., the Defendant, who considered that the Defendant had a great political influence over the candidate election in the local community, friendly relations with Nonindicted Party 2 member of the △△△△△ Party, the chairman of the △△△△△ Party, who is the chairman of the Local Committee on the 7th nationwide local election, and it is difficult for Nonindicted Party 1 to find any motive for providing KRW 450,000 to the Defendant. In view of the conversation between the Defendant and Nonindicted Party 1 at the time of offering the instant money and valuables.

F) On October 29, 2018, Nonindicted Party 1 made a consistent statement at the prosecution to the effect that “The Defendant is meal expenses for Nonindicted Party 2 and unrelated to Gongcheon.” However, Nonindicted Party 1 consistently made a statement to the effect that “The Defendant would be able to drink with Nonindicted Party 2 if he was frighted, and later receive fright at the election.” Nonindicted Party 1’s first statement to the effect that “It is difficult to view that Nonindicted Party 1 was not true to harm the Defendant elected to the National Assembly member,” or that Nonindicted Party 1’s statement to the effect that Nonindicted Party 1 was not consistent on the date and place of receiving money from Nonindicted Party 1 in the process of investigation, conversation, motive and amount of money and valuables provided.” However, Nonindicted Party 1’s statement to the effect that it was difficult to view that Nonindicted Party 1 was frightd to receive money and valuables from Nonindicted Party 1, who was frighted to receive money and valuables from Nonindicted Party 2, and that it was not consistent with the Defendant’s statement that it was provided.

G) It does not seem that the money and valuables in this case are sufficient amount to be considered as a quid pro quo or a case for the public good. However, as seen earlier, ① Nonindicted 1 attempted to enter and leave the local election and go out to the candidate in the local election. Defendant was well aware of this. ② Nonindicted 1 offered 450,000 won to Nonindicted 2 National Assembly members who were the chairman of the △△△△△△△△△ Party with the intention to receive assistance in the local election, and provided them with good faith to themselves, such as meal expenses, and the Defendant also knew that Nonindicted 1 would be able to receive assistance from Nonindicted 2 National Assembly members, and the Defendant and Nonindicted 1 was provided with good faith to the Defendant and Nonindicted 2 National Assembly members on the recommendation of Nonindicted 1,000 won, ③ The Defendant provided 1,000 won or more to Nonindicted 1,000 National Assembly members, based on the proposal that Nonindicted 1 was trying to go out as a political party member for 20 years, and the Defendant and Nonindicted 2 National Assembly members without any political position.

It cannot be deemed that the provision of money and valuables in this case does not relate to the activities recommended as a candidate by the (name of a political party omitted) member solely on the grounds that the defendant claims that the money and valuables received by the defendant are small amount, or that the defendant received money and valuables 10 months prior to the election day of the above local area, or that the defendant decided not to receive a Hun-Ga contribution, or that (name of a political party omitted) the candidate for the local council member was decided by the competition of the party members other than the non-indicted 2 National Assembly members who were the chairman of the

[The original trial adopted and investigated the written answer to Nonindicted Party 1, No. 13, and No. 18 of the evidence list No. 2, even though the Defendant did not consent to the examination of the suspect of the police as evidence, and the written investigation of the suspect of the police by Nonindicted Party 1, No. 13 and No. 18.

The written answer to Nonindicted Party 1 is that Nonindicted Party 1 appeared at the election commission and stated the facts in violation of the Public Official Election Act. Article 272-2(7) of the Public Official Election Act provides for the provision that the public official of the election commission shall notify the person to be polled at the election commission’s investigation procedure of the right to refuse to make statements and the right to assistance of counsel. However, at the time of preparing the written answer to Nonindicted Party 1, the election commission did not notify Nonindicted Party 1 of the right to refuse to make statements and the right to assistance of counsel. ① Article 12(2) and (4) of the Constitution guarantees the right to refuse to make statements and the right to assistance of counsel as fundamental rights of the suspect, etc., and Article 12(1) and (3) of the Constitution of the Republic of Korea provides that the right to refuse to provide statements and the right to refuse to provide assistance of counsel is not limited to the area of due process in criminal procedure, and that the action of all the State’s public authorities, such as legislation and administration, should be legitimate as evidence of the Criminal Procedure Act does not provide for admissibility of evidence.

Nos. 1 and 2 of the police interrogation protocol against Nonindicted Party 1 is prepared by a judicial police officer, who is an investigative agency, other than the prosecutor, with the contents stated by Nonindicted Party 1 as to the defendant's violation of the Public Official Election Act. In addition, not only the interrogation protocol of the defendant prepared by investigation agency, other than the prosecutor, but also the examination protocol of the suspect against other accused or suspect prepared by investigation agency, other than the prosecutor, as evidence of guilt, should be applied to the case where the interrogation protocol of the defendant's suspect prepared by investigation agency, other than the prosecutor, is used as evidence of guilt against the defendant (see Supreme Court Decision 96Do667 delivered on July 12, 196, etc.). Accordingly, insofar as the defendant did not agree to the interrogation protocol of the above suspect interrogation protocol against Nonindicted Party 1 as evidence, each of the above interrogation protocol

As such, the lower court erred by misapprehending the legal doctrine regarding admissibility of evidence, which led to an error in adopting and examining each of the above evidences, but it appears that each of the above evidences was not used as evidence of conviction, and the remaining evidence alone is sufficient to recognize the Defendant’s conviction, and such error does not seem to have affected the conclusion of the judgment, and therefore, it is decided to exclude each of the above evidences.

B. Judgment on the Prosecutor’s argument

1) misunderstanding of facts or misapprehension of legal principles

In full view of the facts and circumstances acknowledged by the evidence duly admitted and examined, the lower court found the Defendant not guilty of this part of the facts charged that the Defendant made a contribution, based on the evidence submitted by the prosecutor, on the ground that it is difficult to view that the Defendant did not lend KRW 1 million to Nonindicted 3, but it was proven without reasonable doubt, and that there is no other evidence to acknowledge this otherwise.

Considering the facts and circumstances as determined by the court below, and considering the following circumstances acknowledged by the evidence duly adopted and investigated by the court below and the court below, the above judgment of the court below is just and acceptable, and there is no error of misunderstanding of facts or misunderstanding of legal principles as alleged by the prosecutor. Therefore, the prosecutor's above assertion is without merit.

A) The Defendant borrowed KRW 1 million from Nonindicted 5 to delivered it to Nonindicted 3. The Defendant, Nonindicted 5, Nonindicted 3, and Nonindicted 6, from the investigative agency to the original trial, stated in detail and consistently, the motive, process, etc. of lending money to Nonindicted 3, to the effect that “The Defendant, Nonindicted 5, Nonindicted 3, and Nonindicted 6, considering the circumstances of Nonindicted 6, and explained Nonindicted 3 to Nonindicted 5, and borrowed KRW 1 million to Nonindicted 3, and lent KRW 1 million to Nonindicted 3.

B) The Defendant did not have any particular income from around 2015 to 2018. Considering the economic capacity of the Defendant in light of the details of the Defendant’s property declaration, details of account transactions, etc., it is difficult to readily conclude that the Defendant, while borrowing KRW 1 million from Nonindicted 5 to Nonindicted 3, offered such income free of charge.

C) On April 22, 2018, the Defendant stated that “I want to lend to Nonindicted 3. I would like to do so. I would like to do so, if you want to do so, you will be good, and there are many efforts to do so, so that I would like to do so during that match, and I would like to think that Nonindicted 3 would have been able to do so under the pretext of aiding and abetting, even if I would have received money from Nonindicted 3,” and on June 21, 2018, the Defendant stated that “I would not have been paid money to Nonindicted 3 for 10 years only because I would not have been able to say that I would have been able to receive money from Nonindicted 3, who would have been able to do so.” In addition, I could not be said to have given the Defendant’s statement that I would not have been able to say that I would have been able to do so with Nonindicted 3’s view that I would not have been able to do so.”

2) The assertion of unreasonable sentencing

In a case where there is no change in the conditions of sentencing compared to the lower court, and the lower court’s sentencing does not deviate from the reasonable scope of discretion, it is reasonable to respect such a case (see Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

The crime of this case is an act that damages the legislative intent of the Public Official Election Act, which limits the receipt of money and valuables related to the public order, in order to enhance the fairness of the recommendation of a candidate for a political party and the transparency and morality in the operation of a political party, and to prevent the influence of the financial authority from the candidate recommendation stage to the original source, thereby guaranteeing a fair election.

However, considering the following as a whole: (a) the amount of money and valuables received by the Defendant is not a large amount of KRW 4.50,000; (b) the said KRW 4.50,000 was returned to Nonindicted Party 1; and (c) Nonindicted Party 1 appears to have not actually affected the candidate recruitment for △△△△△ Provincial Council members because it was not a candidate for △△ Provincial Council members 7th nationwide elections; and (d) other factors of sentencing as indicated in the instant pleadings, including Defendant’s age, character and conduct, environment, and circumstances after the crime, etc., the lower court’s sentencing appears to have been made within the reasonable scope of discretion; and (b) considering that the Defendant denies criminal facts that occurred in the trial, it is unreasonable to maintain the

Therefore, the prosecutor’s assertion of unreasonable sentencing is without merit, since the sentence of the court below is too uneasible and unreasonable.

3. Conclusion

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

Judge Jeon Soo-young (Presiding Judge)

Note 1) A party name, whether before or after the change of the party name, is currently called “(political name omitted)”. The same shall apply hereinafter.