(영문) 창원지방법원 2015.11.5.선고 2015노1872 판결

The prosecutor asserts that the punishment sentenced by the court below (two years of suspended execution, 60 hours of community service, and 1.2 million won of additional collection) is too unhued and unreasonable.

2. Ex officio determination

A. Relevant legal principles

1) Under Article 82 of the former Attorney-at-Law Act (amended by Act No. 4544 of Mar. 10, 1993), the purpose of confiscation or collection is to deprive a criminal or a third party of money and other valuables or other benefits and prevent them from holding unlawful profits. Thus, in a case where money and other valuables are distributed under the pretext of solicitation in connection with cases or affairs handled by a public official jointly by several persons, only the money and other valuables actually received from each person shall be individually confiscated or collected additionally. In addition, in a case where a part of the money and other valuables received under the pretext of solicitation is provided to a public official concerned as a bribe in relation to solicitation in accordance with the purport of actual acceptance of the money and other valuables, the benefit of the part shall not be actually accrued to the defendant, and only the remaining money and valuables except the part shall be confiscated or collected additionally (see Supreme Court Decision 93Do1569 of Mar. 12, 193).

2) The necessary confiscation or additional collection under Article 13 of the Act on the Aggravated Punishment, etc. of Specific Crimes is aimed at depriving the offender of the pertinent property acquired by the offender and preventing him from possessing unlawful profits. This is also the same as Article 6 of the Act on the Aggravated Punishment, etc. of Specific Crimes against Public Officials. As such, in a case where receiving money and other valuables from the public official to arrange matters belonging to the duties of the public official, and providing them to the relevant public official in connection with solicitation or providing them with some of such money and valuables as a bribe in accordance with the purport of receiving some of such money and valuables, the benefits of the part shall not substantially belong to the offender, and thus, shall be confiscated or collected additionally. Even if a person who received money and valuables in relation to arranging matters belonging to the duties of the public official delivers part of such money and valuables under the pretext of solicitation to another intermediary, it is planned to use it as at the time of receiving the money and valuables as at the time of receiving it, and if it is used as expenses according to the independent judgment of the offender, it shall not be collected from the offender (see Supreme Court Decision 90.

B. Determination

The necessary confiscation or collection under Article 60 of the Act on Commissioned Elections of Public Organizations, etc. also aims to deprive the criminal or a third party of money and other valuables or other benefits and prevent the criminal from holding unlawful profits. Therefore, if part of the money and valuables received under the pretext of the criminal or a third party to make a solicitation related to the election is provided to the elector in connection with the solicitation in accordance with the purport of actually receiving the money and valuables, the benefit of the part is not actually reverted to the defendant, and it is reasonable to view that only the money and valuables except

However, the court below and the court below requested that the defendant support for himself at the election of the head of the association around 11:00 on September 4, 2014, which can be identified by the evidence duly adopted and investigated by the court below, i.e., the defendant requested D to do so, i.e., the defendant at the election of the head of the association, and the defendant is scheduled to do so, i.e., E, F, and G, and i., that he would have requested that he request the defendant to provide support for him at the election of the head of the association, i.e., 300,000 won, and 20,000 won, excluding 300,000 won, and 10,000 won, excluding 10,000 won, 300,000 won, and 10,000 won, which was actually used by the defendant for the above E, F, G, and G, and 20,000 won.

3. Conclusion

The judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act without examining the prosecutor's assertion of unfair sentencing, and the judgment below is reversed, and the following is again decided after oral argument.

【Discretionary Judgment】

The summary of facts constituting an offense and evidence. The facts constituting an offense recognized by this court and the summary of the evidence are as stated in the respective corresponding columns of the judgment below (Article 369 of the Criminal Procedure Act). Application of statutes

1. Article applicable to criminal facts;

Article 58 subparag. 3 and 1 of the Act on Commissioned Elections for Public Organizations, Etc. (the receipt of money for an election campaign, the choice of imprisonment with labor), Article 58 subparag. 1 of the Act on Commissioned Elections for Public Organizations, Etc. (the provision of money for a prior election campaign, and the choice of imprisonment with labor)

2. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

3. Additional collection:

It is recognized that the defendant's reason for sentencing under the proviso of Article 60 of the Act on Commissioned Elections of Public Organizations, Etc. recognizes his mistake and reflects his fault, and the defendant has no record of being punished in addition to the punishment of each fine due to the violation of the Road Traffic Act around 1979 and the violation of the Road Traffic Act around 2008.

However, in the process of an election for the head of a cooperative, the act of receiving money and valuables from a person who intends to become a candidate and offering such money and valuables again to another elector is a crime which seriously undermines the fairness and transparency of the election. In particular, the first time of the election for the head of a cooperative throughout the country, which was enforced on March 11, 2015, the act of spreading money and valuables throughout the country, etc. In order to ensure the fairness and transparency of the nationwide elections to be implemented in the future, the sentence is inevitable in the election crimes related to the money and valuables in this case, and the fact that the defendant cannot be deemed to have committed a little amount of money and valuables in the election crime as 1.2 million won in total, all other circumstances, including the defendant's age, character, occupation and environment, occupation and environment, family relationship, the circumstances and result of the crime in this case, and the circumstances after the crime, etc., shall be considered as unfavorable to the defendant. It is decided as per Disposition.