[1] Criteria for determining whether to change disadvantage in the application of the principle of prohibition of disadvantageous change under Article 457-2 of the Criminal Procedure Act

[2] The case holding that it does not constitute a disadvantageous change to a sentence of imprisonment with prison labor on the part of concurrent offenders after combining and examining the case where the defendant requested a formal trial against the summary order and the case where the indictment has been instituted

[3] The meaning of election campaign under Article 58 (1) of the Public Official Election Act and the criteria for its determination

[1] Article 457-2 of the Criminal Procedure Act / [2] Article 457-2 of the Criminal Procedure Act / [3] Article 58-1 of the Public Official Election Act

[1] [2] Supreme Court Decision 2003Do1410 Decided May 16, 2003 / [1] Supreme Court Decision 96Do2850 Decided May 12, 1998 (Gong1998Sang, 1686), Supreme Court Decision 2004Do6784 Decided November 11, 2004 (Gong2004Ha, 2067) / [3] Supreme Court Decision 2005Do301 Decided October 14, 2005 (Gong2005Ha, 1818)

Defendant

Defendant

Law Firm Bupyeong-gu General Law Office, Attorneys Seo Byung-ho et al.

Gwangju High Court Decision 2005No165, 178 decided June 30, 2005

The appeal is dismissed.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

Article 457-2 of the Criminal Procedure Act provides that “No sentence more severe than that of a summary order shall be imposed on a case for which the defendant has requested formal trial.” In applying the principle of prohibition of disadvantageous alteration, it shall not be considered individually and formally, but shall be determined by whether the defendant is practically disadvantageous to the defendant, taking into consideration the entire text of the order. Furthermore, in a case where a case for which the defendant has requested formal trial upon receipt of a summary order and a case for which other cases are concurrent crimes after a consolidation and examination, the punishment notified to the defendant for the relevant case shall not be compared simply with the punishment notified through consolidation and examination, and in a case where the defendant is placed under concurrent crimes after the consolidation and examination, it shall not be compared with the punishment imposed upon the concurrent crimes, but shall be determined whether the concurrent judgment constitutes disadvantageous changes (see, e.g., Supreme Court Decisions 96Do2850, May 12, 1998; 2004Do6784, Nov. 11, 2004).

However, according to the reasoning of the judgment below and the judgment of the court of first instance, the following facts can be revealed. First, the Gwangju District Court rendered a judgment suspending sentence of KRW 1,500,000 on October 14, 2004 in the case where the defendant was notified of a summary order of KRW 3,00,000 on the violation of the Punishment of Violences, etc. Act (at night and joint residence), and the violation of the Local Public Officials Act (at night) and requested formal trial, the defendant was sentenced to a suspended sentence of KRW 1,50,000 for a fine of KRW 1,50,000 on April 27, 2005. The above support was subsequently sentenced to a suspended sentence of KRW 203Da35,36 (Joint), and 78 (Joint) on the defendant's violation of the Act on the Election of Public Officials and the Prevention of Unlawful Election, etc. (at night, KRW 1,000,000 and KRW 20 on the crime of violation of the Local Public Officials Act).

According to the above review, the judgment of the court below is deemed to be a whole and substantial, and it cannot be deemed that the defendant was sentenced to a more unfavorable sentence than that of the summary order with respect to the defendant's attempted violation of the Punishment of Violences, etc. Act (at night and joint residence), and the crime of violation of the Local Public Officials Act (see Supreme Court Decision 2003Do1410, May 16, 2003, etc.). Therefore, contrary to the allegation in the ground of appeal No. 1, the judgment of the court below is not erroneous in the misapprehension of the legal principle of prohibition of disadvantageous alteration under Article 457-2 of the Criminal Procedure

2. As to the grounds of appeal Nos. 2 and 3

A. According to the reasoning of the judgment below, the court below decided on August 21, 2004 that the Central Headquarters of Non-Indicted 1 (hereinafter referred to as "non-Indicted 1") entered Non-Indicted 8's office for the above 4th anniversary of the adoption of evidence, and decided to prepare a general strike fund for nationwide workers at the National Assembly of Representatives, the Defendant and Non-Indicted 1 and Non-Indicted 2 shall hold a meeting of the Steering Committee of the Major Labor Relations Headquarters around September 13 of the same year to conduct the above resolution, and ordered the members to participate in the general strike through the business trip from 10th of the same month to 14th of the same month, and the co-defendant 10th of the same year to enter the above 4th of the 5th of the 1st of the 1st of the 1st of the 1st of the 20th of the 1st of the 1st of the 1st of the 1st of the 2nd of the 1st of the 2nd of the 5th of the 1st of the 1st of the year.

The defendant asserts that the above two criminal facts are contradictory facts, because it is time and spatially incompatible that the defendant committed two acts at the same time and at the same time.

However, the above ground of appeal is not a legitimate ground of appeal since the defendant asserted that the court below did not appeal as the grounds of appeal, and thus, it did not constitute a legitimate ground of appeal. Furthermore, even in light of the record, it cannot be viewed that there was an error of law such as misconception of facts against the rules of evidence that affected the conclusion of the judgment.

B. An election campaign under Article 58(1) of the Act on the Election of Public Officials and the Prevention of Election Malpractice refers to any active and planned act that is necessary for the election or the defeat of a specific candidate and that is objectively recognized by the intention of promoting the election or the defeat of a certain candidate. It is distinguishable from an act in preparation for an election campaign or ordinary political party activities, which is an internal or procedural preparation for an election campaign in the future. In addition, in determining whether an act constitutes an election campaign, it shall be determined whether the act is an act accompanied by the preparation of an election campaign or ordinary political party activities, by comprehensively observing not only the name of the act, but also the form of the act, i.e., the time, place, method, etc. of the act is conducted, and by comprehensively observing the purpose of promoting the election or defeat of a specific candidate (see Supreme Court Decision 2005Do301, Oct

In light of the above legal principles and records, the court below found the defendant's act of finding facts against the defendant's 11 to be unsatisfyed on October 30, 2004. (1) around October 14, 2004, an interview with the above office of the Navy branch using combined communications and telephone was sent a statement of his support at the Do Governor's candidate's debate on the special election of the Do governor, and confirmed the defendant's 11 candidate to be true. In addition, the court below rejected the defendant's 11 candidate's complaint against the above Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's 11, and there is no error of law by misunderstanding the legal principles as to the above 111 candidate's act of spreading the public opinion against the defendant's 100,000 won.

3. As to other grounds of appeal

A. The defendant argues that another defendant's act was erroneous that his act did not constitute an election campaign pursuant to the law, while the defendant knew that the above act constituted an election campaign.

However, the above ground of appeal also argues that there is an error in the judgment of the court below on the ground that the defendant did not appeal for the reason of appeal, and thus cannot be a legitimate ground of appeal. Furthermore, Article 16 of the Criminal Act provides that "the act of the defendant which the defendant misleads that he did not commit a crime by law shall not be punishable only when there is a justifiable ground for misunderstanding" does not mean a simple legal site, but it means that it does not constitute a general crime but it shall not be punishable in a case where it is recognized that it does not constitute a crime due to an act permitted by law in its special circumstances, and there is a justifiable reason for misunderstanding of misunderstanding (see, e.g., Supreme Court Decisions 95Do1351, Aug. 25, 1995; 2005Do3717, Mar. 24, 2006). In light of the records, it cannot be viewed that the defendant's act constitutes a general crime but it is not a crime permitted by law but a mistake in his special circumstances.

B. Finally, the Defendant alleged that the lower court sentenced the Defendant to a fine of KRW 1,00,000 on account of a violation of the Election of Public Officials and the Prevention of Election Illegal Act violates equity and legal sentiment, but its purport is that the lower court’s sentencing on the above crime is too unreasonable, and it cannot be a legitimate ground of appeal.

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)