2013No115 A. Violation of the Public Official Election Act

(b) Violation of the Political Funds Act;

1.A

2.B

Defendants and Prosecutor (Defendant A)

Prosecutions and trials, leapments and leapons, and Eins case (public trial)

Law Firm C (Defendant A)

Attorney D (Defendant B)

Busan District Court Decision 2012Gohap935 Decided February 1, 2013

November 6, 2013

All appeals by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendants

1) Defendant A

A) As to the receipt of erroneous facts (as to the receipt of KRW 3 million on January 31, 2012 and KRW 20 million on February 23, 2012)

The court below found the defendant guilty of this part of the facts charged although he did not receive money from B even though the defendant met on January 31, 2012 and February 23, 2012.

B) Meritorious legal principles (as to receiving KRW 10 million on February 23, 2012)

The defendant received KRW 10 million from E, etc. on February 23, 2012 only from E, etc. It was purely delivered within the meaning of support from E, etc. In order to establish a crime of violating the Public Official Election Act due to the number of gold-related gold, "in relation to the act of recommending a specific person as a candidate" means that the offer of money or goods falls under the case of recommendation of a candidate or the case where the offer of such money or goods can affect any form of recommendation. This legal principle also applies to the case of a crime of violation of the Political Fund Act due to the illegal number of political funds related to public order. The defendant did not have any influence on the recommendation of proportional representative candidates from democratic integration party, and even in the case of B's statement, the defendant did not have any influence on the recommendation of a candidate for proportional representative candidates, thereby affecting the conclusion of the judgment, the court below erred in the misapprehension of legal principles as to the above facts charged, thereby affecting the conclusion of the judgment.

C) Unreasonable sentencing

The punishment of the court below (the collection of penalties of one year, six months of imprisonment, two years of suspended execution, three million won or more) is too unreasonable.

2) Defendant B

The punishment of the court below (one year of imprisonment with prison labor for six months, one year of suspended execution) is too unreasonable.

B. The prosecutor (as to the defendant A)

The sentence of the court below against the defendant A is too unhued and unreasonable.

2. Determination

A. Judgment on Defendant A’s assertion of misunderstanding of facts

1) The portion received at KRW 3 million on January 31, 2012

In full view of the following circumstances acknowledged by the lower court and the evidence duly admitted and examined by the lower court, the lower court’s determination that the Defendant was deemed to have received KRW 3 million upon the request from B on January 31, 2012 to obtain recommendation as a candidate for the National Assembly member of the Democratic Integration Party as a candidate for the proportional representative National Assembly member, is justifiable. Accordingly, the Defendant’s assertion of misunderstanding of facts on this part is groundless.

① B is specifically and consistently stating the circumstances leading up to the provision of KRW 3 million to the Defendant, the process up to the delivery of the said money to the Defendant, and the situation at the time of delivering the said money to the Defendant.

② This part of the facts charged also leads to considerable disadvantages, such as deprivation of eligibility for election as well as impossibility of performing teaching staff, based on the result of the trial, which constitutes a crime against B. However, it is difficult for B to find the reason for false statement by aiding and abetting a criminal fact that does not exist even when taking such risk.

③ G, who served as B’s visa, carried out B with document bags containing money as instructions from B on the day of the instant case, and consistently stated to the effect that B did not have the above document bags, and B did not have the above document bags at the time of going to Seoul, at the time of going to the Busan, at the time of coming to the Busan. According to the G’s statement, B appears to have delivered B with B or the above document bags immediately after receiving the document bags containing money from G. However, G was employed by B on January 15, 2012 through the “Ulle Construction Market.” However, as B was unable to receive proportional representation, it is difficult to view that B did not appear to have been notified of dismissal from B in fact as being close to B, and that B did not have any specific criminal punishment as to the Defendant on the grounds that it could not have any specific criminal punishment as to the Defendant.

④ The statements of H and G are consistent with H’s statement that had withdrawn money to the Defendant, and the fact-finding inquiry and reply to our bank, and the data on the telephone conversations between the Defendant and the Defendant.

⑤ At the time of the instant crime, the Defendant was known to have a close relationship with the F Representative of the Democratic Integration Party and the I General Planning Group head, and the Defendant was able to receive an official election for proportional representative National Assembly members on the side of the Democratic Integration Party except the Defendant, and was able to assist the Defendant due to the lack of any person who was specially aware on the side of the Democratic Integration Party. B, before the instant crime was committed, went back to Busan at the risk of not having any special relationship with the Defendant prior to the instant crime, and did not have any relation to the Defendant’s personal-friendly visual disability. At the time of the instant crime, the Defendant and B did not undergo an official election examination for the proportional representative National Assembly members of the 19th and 1 to 2 months prior to the Defendant’s interview, and the Defendant stated that “The Defendant received a request from the Prosecutor’s Office to have continued to receive a proportional representative election by telephone” was divided by B’s request for a democratic proportional representative member or for a democratic National Assembly member.

1. The Defendant’s defense counsel asserts that the “B” statement is not reliable in light of the following: (a) he was given and received a document envelope containing money under his table at the restaurant of a particular hotel, an open space; (b) he withdrawn KRW 5 million and reversed his statement that he withdrawn KRW 3 million. However, it is difficult to conclude that delivery of a document bag containing money under his table is natural satisfy; and (c) B made a statement on the process of changing the statement regarding the number of withdrawals within the territory of the Republic of Korea, and it was difficult to conclude that the case was made at the election commission of the Republic of Korea. It was difficult to expect that the Defendant’s information was given to the election commission, and that there was a considerable problem in the Political Funds Act; and (d) it was difficult to expect that it was difficult for the election commission to take into account the circumstances that it was difficult for the Defendant to be informed of the fact that there was a number of times of violation of the B’s statement at the time of the first election of the National Assembly members.

2) The portion received at KRW 20 million on February 23, 2012

In full view of the following circumstances acknowledged by the lower court and the evidence duly admitted and examined by the lower court, the lower court’s determination that the Defendant was provided with KRW 20 million upon the request from B on February 23, 2012 to obtain recommendation as a candidate for the National Assembly member of the Democratic Integration Party as a member of the National Assembly for proportional representation. Accordingly, the Defendant’s allegation of erroneous determination of facts is without merit.

① The Defendant provided KRW 20 million and the process of preparing the said money to deliver the said money to the recipient, and the circumstances at the time of delivering the said money to the Defendant. As seen earlier, B made a very specific and consistent statement. As seen earlier, it is difficult to find the grounds for making a false statement by comparing the criminal facts that were not existed while under the risk of criminal punishment by B.

② The above statements are in accord with the statements made by H and accompanying B on the day of the instant crime with those made by E, J and K, and are consistent with the details of our bank account transactions, etc.

③ The Defendant, while denying the facts of B and D at an investigative agency, did not present any opinion from the court of the court below. (4) The Defendant’s statement at J, E, and K merely asserted that it cannot be direct evidence for the part of 20 million Won. However, both J, E, and K et al., together with the Defendant’s election office in the constituency of the Defendant, the Defendant met the Defendant in the election campaign office in the Defendant’s constituency, and E et al., sent out the envelope containing KRW 10 million to the Defendant, and came out of B and the Defendant only kept in the chairman’s room. (5)

In light of such circumstances and the above, B had sufficient means to offer money and valuables to the Defendant, and around this time, there was no examination of the recruitment of proportional representative National Assembly members of the Democratic Integration Party 15 days prior to that of the time, B was able to help the Defendant as well as B prepared for KRW 20 million prior to that of the instant crime, there is sufficient circumstance and motive that the Defendant and B received KRW 20 million on the day of the instant crime.

④ 피고인의 변호인은 2012. 2. 16. B, E, J, K의 통화내역상 발신기지국 위치 자료 등을 근거로 당일 이들이 서울 서초구에 위치한 대한안마사협회 중앙회장실에 있 을 수는 없다고 보이므로 2012. 2. 23. 피고인에게 돈을 건넸다는 진술들 역시 허위일 가능성이 높고, B가 소지한 가방의 크기를 고려할 때 2,000만 원이 든 서류봉투를 접 지 않고 가방에 넣었다는 B의 진술은 믿기 어렵다고 주장한다. 그러나, ① 이 사건이 발생한 지 약 6개월이라는 상당한 시간이 경과한 후에야 관련자들에 대한 수사가 이루 어진 점, B나 K이 특별한 계기 없이 E 등과 2012. 2. 16. 모였다고 진술함에 따라6) 이 후 J, E7) 이 이와 같이 진술한 것으로 보이는 점 등에 비추어 이들이 모인 날짜를 정확 하게 기억하기는 어려워 보이는 점, ㉡ B, E, J, K이 2012. 2. 23. 피고인을 만나기 전 에 모인 사실에 대하여는 일관되게 진술하고 있는 점 , ㉢ 당심의 검증결과 및 이 사건 당시 B가 가지고 있던 가방의 크기가 A4 용지보다 조금 더 큰 크기였다는 이 사건 범 행 당시 B와 동행한 L의 증언 등에 비추어 2,000만 원이 든 서류봉투를 접지 않고 가 방에 넣었다는 B의 진술이 사실과 부합하지 않는다고 보기 어려운 점, ② B, E, J, K 이 모인 날짜나 2,000만 원이 든 서류봉투를 가방에 넣는 방법에 대한 부분은 지엽적 인 사항에 불과한 점 등을 고려해 볼 때, 피고인의 변호인이 주장하는 위와 같은 사유 만으로 B, E,J, K의 진술이 신빙성 없다고 보기 어렵다.

⑤ 피고인의 변호인은, B가 피고인에게 이 사건 공소사실과 같이 돈을 제공하 였다면 B가 2012. 3. 1. 경 피고인을 만날 때8)나 비례대표 국회의원 공천에서 탈락한 이후 피고인에게 돈을 돌려달라고 요구하였어야 할 것인데 그렇게 하지 않았다는 것은 피고인에게 돈을 주지 않았다는 반증이 된다는 취지로 주장하나, '2012. 3. 1. 피고인을 만날 때는 공천신청을 반드시 할 것으로 결심하고 있었고, 섣부르게 돈을 돌려달라고 하면 감정을 상하게 해서 공천심사에 어떤 방해요인이 생기지 않을까 해서 돌려달라는 이야기를 하기 어려웠다. 공천에 탈락한 이후에는 우선 기다렸고, 다음으로 M도 피고 인과 같은 쪽에 있으니 괜히 돌려달라고 했다가 체면을 구기고 우스워질 것 같아 포기 하고 잊어버리려고 노력했다. 돈을 줬다가 공천도 못 받고 돈도 못 돌려받았다고 하면 피고인이 주변사람과 모의해 정신병자 취급을 하지 않을까 두려웠기도 했다.'는 B의 변소가 설득력 있는 점 등에 비추어 피고인의 변호인의 위 주장 역시 받아들이기 어렵

6) Defendant’s defense counsel argued to the effect that it is difficult to accept KRW 20 million from this case’s party executive officer for a long time. However, it was difficult to accept the Defendant’s defense counsel from this case’s party executive officer for a long time. However, the Defendant’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense of Nonparty B, J, K, and the date of the crime of this case’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense of KRW 10 million from this case’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s 20 million from this case’s defense.

B. Judgment on Defendant A’s assertion of misapprehension of the legal principle

1) First, the following circumstances acknowledged by the evidence duly admitted and investigated by the court of first instance as to the character of KRW 10 million that the Defendant received from E, etc., namely, ① have consistently offered the above money in the course of discussions with E, etc. to be elected as a member of the National Assembly for proportional representation for the Democratic Integration Party. In fact, when issuing the above money to the Defendant, E, etc. has made a statement that he requested the Defendant to be elected as a member of the National Assembly for proportional representation for the Democratic Integration Party, ② E, J, and K provided the Defendant with support money of KRW 10 million, but the Defendant and the Defendant received KRW 10,000,000 from the Democratic Integration Party with B, including but not limited to KRW 10,000,000,000,000 from the Defendant and the Defendant received KRW 10,000,000,000 from the investigation agency.

2) In addition, the following circumstances acknowledged by the evidence duly adopted and examined by the court below and the trial court as follows: the above money was prepared; the circumstances before and after the above money was received; and the defendant was fit for the proportional representative members of the National Assembly from disabled persons; the defendant was known as having a considerable relation to the National Assembly members of the Democratic Integration Party at the time of the crime of this case; the defendant did not have any influence on the recommendation of the candidate for the National Assembly members; the defendant's act of receiving the above money constitutes a candidate for the above 20th anniversary of the fact that the defendant's act of receiving the money from disabled persons; the defendant's act of receiving the money from the National Assembly members at least 10th of January 31, 2012 and the defendant's act of receiving the money from the candidate for the National Assembly members at least 0th of the National Assembly members of the National Assembly can not be seen as a candidate for the above 20th of the Political Fund Act's recommendation; and the defendant's act of receiving the money from the candidate for proportional representative members of this case.

Therefore, the defendant's assertion of mistake of facts is without merit.

C. Determination on the assertion of unfair sentencing by Defendants and prosecutors

1) The need to regulate the receipt of money and valuables related to the candidate recommendation

The act of receiving money and valuables related to the recommendation of a candidate for a political party in the election for public office is under the influence of the right of the political party from the recommendation stage of the candidate to a political party, making it impossible for the members to recommend a candidate through free and reasonable decision-making process in accordance with the internal democratic procedures of the political party, and concentrating on the specific right holders with the opportunity to be recommended as a candidate for a political party in the election for public office, thereby depriving the members of various social classes of the opportunity to be recommended as a candidate for a political party, thereby hindering the development of a genuine representative democratic state representing the will of the political party, and therefore, it is necessary to strictly regulate it.

2) The part of the defendant A (the defendant and the prosecutor)

The crime of this case, based on the fact that the defendant, who had brought about the proportional representative member of the Democratic Integration Party from the disabled, was well-known to have a considerable close relationship with the leader of the Democratic Integration Party, was given a large amount of money and valuables under the pretext of solicitation for the election of proportional representative members of the National Assembly, and the nature of the crime is grave, and the amount of money and valuables received reaches 33 million won in total, and the defendant's refusal of the crime from the investigative agency to this court, and the defendant did not seem to have a reflective light, etc., which are disadvantageous to the defendant.

However, it seems that the defendant actively demanded money and valuables related to 10 million won received from Kim Byung-ho, etc. first of all, it seems that the nature of support for the defendant is also included, and that the crime of this case seems not to have any particular influence on the actual result of the crime of this case due to B's omission in the document examination stage, the defendant has contributed to the human rights of the disabled, and the defendant has faithfully performed parliamentary activities at the time of the 17th National Assembly member's employment, and there is no criminal record, etc. are favorable to the defendant.

In full view of the overall circumstances, such as the Defendant’s age, character and conduct, environment, and circumstances after the crime, etc., the lower court’s sentence cannot be deemed as excessively heavy or excessively unreasonable. Therefore, the allegation of unreasonable sentencing by the Defendant and the prosecutor is without merit.

3) Defendant B (Defendant)

The fact that the defendant repents his mistake, surrenders himself to the election commission, and appears to have actively cooperated with the prosecution investigation. As seen earlier, it appears that the crime of this case appears to have little substantial impact on the process of Gong100,00, and that there was no criminal record any previous criminal record or any heavier criminal record than the suspension of execution, etc. are favorable to the defendant.

However, the crime of this case provides a defendant with a total of KRW 33 million by actively approaching A for his own public service and, at the same time, providing a total of KRW 33,00,000,000 for the political funds related thereto, and the nature of the crime is not less weak, the amount provided to A was not smaller than the amount provided to A, and through A, the head of the National Democratic Integration Party at the time was about to talk with A, and other various conditions of sentencing as shown in the argument of this case, including the defendant's age, character and behavior, environment, and circumstances after the crime, etc., are comprehensively taken into account. Thus, the defendant's assertion of unfair sentencing is without merit.

3. Conclusion

Therefore, the appeal filed by the Defendants and the public prosecutor is dismissed in accordance with Article 364(4) of the Criminal Procedure Act.

(Presiding Judge)

Mack Tae

has already been fixed

1) Investigation records 2238 pages

2) B was immediately examined by the election commission on August 19, 2012 on the following day after an anonymous informant or telephone call was made on August 18, 2012.

3) 155 pages of the trial records

(iv) 2238 pages, 2239 pages of investigation records;

5) B, at the time of the instant case, was unaware of the fact that the Defendant had affixed the document bags containing KRW 20 million to the Defendant, and even thereafter, B did not have any money to the Defendant.

It is advantageous to the defendant, such as making a statement that the prosecutor's question whether the decision will be made or not shall not be able to answer the witness's question.

At the same time, the statement is made by the two persons who made a statement (297 pages, 298 pages of the trial records).

6) 170 pages of the trial records

7) 228 pages, 268 pages of the trial records

8) B met the Defendant on March 1, 2012 at the female will, and at the time, was aware that the Defendant was supporting M.

19) Investigation records 1399 pages