Defendant 1 and two others

Defendants and Prosecutor

Lee Sung-sung

Attorney Park Tae-ho et al.

Daegu District Court Decision 2004Gohap69, 732 decided Dec. 29, 2004

The part against Defendant 1 and Defendant 3 in the judgment of the court below and the part against Defendant 2 in violation of the Public Official Election and Prevention of Election Illegal Act in the judgment of the court below shall be reversed.

Defendant 1 shall be punished by a fine of KRW 800,00, and a fine of KRW 1,500,000, respectively.

When Defendant 1 and Defendant 2 fail to pay each of the above fines, each of the above Defendants shall be confined in a workhouse for a period calculated by converting 50,000 won into one day.

10,000,000 won shall be additionally collected from Defendant 1.

Defendant 1 and Defendant 2 shall be ordered to pay an amount equivalent to the above fines.

Of the facts charged in the instant case against Defendant 2, the violation of the Act on the Election of Public Officials and the Prevention of Election Malpractice by offering money or goods related to the election campaign on March 23, 2004 and Defendant 3 are acquitted.

The summary of this judgment against Defendant 3 shall be announced publicly.

Defendant 2’s appeal is dismissed.

The part of the judgment of the court below on the violation of the Act on the Election of Public Officials and the Prevention of Election Malpractice due to the violation of the Protection Regulations, such as the person who reported the election crimes against Defendant 2, and the prosecutor's appeal on the part of defamation among the conviction against Defendant 2

1. Summary of grounds for appeal;

A. Defendant 1

(1) misunderstanding of facts

Although Defendant 1 did not receive political funds from Nonindicted Party 1 as stated in Article 1-A(A) of the facts constituting the crime of the lower judgment, the lower court erred by misapprehending the fact that the said Defendant illegally received political funds from Nonindicted Party 1, thereby adversely affecting the conclusion of the judgment.

(2) Unreasonable sentencing

Considering the fact that there are circumstances to consider the receipt of political funds in light of the relationship between Defendant 1 and Nonindicted 1, and that the primary member of the National Assembly who won the election with less than anyone is to faithfully carry out parliamentary activities based on professional knowledge and social activities experience, the sentence of the lower court that sentenced the fine of KRW 1,500,000, which is invalidated for the election of the above accused, is too unreasonable.

B. Defendant 2 [the part concerning defamation of Article 3-2(2) of the Criminal Act as indicated in the original judgment]

(1) misunderstanding of facts or misapprehension of legal principles

Defendant 2, as stated in Article 3-b (1) (2) of the facts of the crime in the judgment below, stated the fact that Nonindicted 2 and Nonindicted 3 are the informant of the election campaign case related to the election campaign office for Defendant 1. However, since it cannot be deemed that there was a possibility of spreading to the unspecified or unspecified persons on the grounds that he was aware of such fact, Defendant 2 cannot be deemed to have caused public performance, which is a constituent element of the crime of defamation. Even if the contents delivered by the above Defendant are recognized as public performance, it shall not be deemed that the illegality is committed not only for the truth, but also for the public interest of the specific organization of Korea-Japan but also for the public interest of Korea-Japan, and even if there was no specific factual circumstance that may impair the reputation of Nonindicted 4 or defamation, the court below erred by misunderstanding the fact by recognizing that the above Defendant had damaged the reputation of Nonindicted 4 by openly disclosing facts, or by misunderstanding the above legal principles, thereby affecting the conclusion of the judgment.

(2) Unreasonable sentencing

In light of the circumstances of this case, the punishment sentenced by the court below to Defendant 2 is too unreasonable.

C. Defendant 3

(1) misunderstanding of facts or misapprehension of legal principles

Defendant 3 merely received a price for driving as a driver of a vehicle owned by Defendant 1 who was accompanying an election campaign, and did not carry out an election campaign for Defendant 1, the lower court, despite the fact that the said Defendant violated the Act on the Election of Public Officials and the Prevention of Unlawful Election (hereinafter “Public Official Election Act”) by receiving money and valuables in connection with the election campaign, committed an unlawful act that affected the conclusion of the judgment by misunderstanding the legal doctrine.

(2) Unreasonable sentencing

Even if Defendant 3’s act violates the Public Official Election Act, the sentence imposed by the court below is too unreasonable in light of the circumstances of this case.

(d) A prosecutor;

(1) Violation of the Public Official Election Act due to mistake of facts or misapprehension of legal principles (the part concerning violation of the Public Official Election Act due to the violation of protection regulations, such as reporting

In light of the interpretation of Articles 256(2)4 and 262-2(1) and (2) of the Public Official Election Act for the protection of persons reporting election crimes, etc., where persons reporting election crimes who have suffered or are likely to suffer damage with respect to the report, etc. of election crimes are subject to protection under the above provisions, regardless of whether or not they have taken necessary measures at an investigation agency or an investigation agency, the person may be punished for violation of relevant provisions in cases where he informs other persons of personal information about persons reporting election crimes, etc. who have reported election crimes or facts having knowledge of election crimes that are likely to suffer damage with respect to the report, etc. of election crimes or disclosure or report, etc. to other persons, and even though Defendant 2 can be deemed to have violated the provisions on protection of persons reporting election crimes, the court below did not err by misapprehending the relevant legal principles as to whether there is concern about suffering from damage with respect to the report, etc. of election crimes and by misapprehending the legal principles as to non-indicted 4 under the Public Official Election Act.

(2) The judgment of the court below on the defendant 2 on the grounds of unfair sentencing

In light of the fact that Defendant 2 is the principal offender of the act of offering money or goods related to the election campaign as provided in Article 2-A (A) of the crime in the judgment below, and the sentencing imposed by the court below against Defendant 3 or Nonindicted 5, or that the above Defendant was actively engaged in concealing the facts of the crime committed by Defendant 1 who is the elected in the trial process, etc., Defendant 2,50,000 won, which was sentenced by the court below to the above Defendant guilty, shall be deemed unfair, and it is deemed that the above Defendant’s act of informing Nonindicted 4 of the personal information of Nonindicted 4 who reported the election crime. In light of the above, it is unfair that the court below’s punishment of KRW 50,000, which was sentenced to the crime of defamation in the judgment of the above Defendant, is too uneasible.

2. Determination

A. Judgment on Defendant 1’s assertion

(1) misunderstanding of facts

According to the evidence duly admitted and adopted by the court below, since Defendant 1 was directly provided with KRW 10,00,000 for political funds required for election two times from Non-Party 1 at the time of the decision of the court below without establishing a supporters' association, and it can be sufficiently recognized that he received the contribution of political funds not prescribed by the Political Funds Act, the above Defendant’s assertion of mistake of facts is without merit.

(2) Unreasonable sentencing

The Political Funds Act provides that no one shall receive political funds unless it is prescribed by the above Act, and requires strict law enforcement on the raising and operation of clean and transparent political funds. Defendant 1, as seen earlier, despite the fact that he directly receives 10,00,000 won for political funds not prescribed by the Political Funds Act from Nonindicted 1, it cannot be deemed that the crime of this case is somewhat inappropriate in light of the fact that he denies his criminal act from the investigation stage to the trial, and that there is no good faith. On the other hand, the above Defendant does not constitute a relative as prescribed by the Civil Act under the proviso of Article 30 (1) of the Political Funds Act, but if it appears that he had a significant influence on the provision of political funds from Nonindicted 16 and his father, who appears to be a relative for the first time, and that he would have been aware of the motive for the establishment of the above political funds within 10,000 won for the first time with his own political funds, and that the above amount of money received by the Defendant cannot be deemed to be an unlawful one-year political fund.

B. Determination of misconception of facts and misapprehension of legal principles by Defendant 2 and the prosecutor

(1) Defendant 2 [the part concerning defamation of 3-b. (1) (2) of the facts constituting the crime in the original judgment]

Public performance in the crime of defamation refers to the state in which many and unspecified persons can be recognized, so if there is a possibility that the facts might be disseminated to the unspecified or many unspecified persons even if they are distributed individually. According to the evidence duly examined and adopted by the court below, the following facts are revealed: ① Defendant 2 inspected the investigation records related to his election crime on August 2004 by Defendant 4 and presented them to Nonindicted 4 in a document stating the details in detail; ② Nonindicted 2, in the case of Nonindicted 2, while living in the Dongdong-gu, Daegu City (Administrative name omitted) in the latter part of Nonindicted 4, the chairman was assigned to the chairman; ③ Nonindicted 4, in the case of Nonindicted 4, in the case of Korea, was living in the Dongdong-gu, Daegu City (Administrative name omitted); ③ Nonindicted 4, in the case of Nonindicted 3, as the vice-chairman of Korea City Party, was widely known to a large number of unspecified persons, or there was a possibility that the Defendant was widely known that the Defendant was an informant or an informant of the above election crime.

Furthermore, we examine whether the above defendant's act conforms to the public interest. The above defendant's act of informing the informant of the election crime case related to him to party members as stated in the judgment of the court below is an act corresponding to the personal interest of the defendants and the persons who have the same interest as the defendants and the persons who will be subject to investigation or punishment due to the informed information at home, and it is clear that it is an act contrary to the public interest to establish a fair election culture through punishment of election crimes.

In addition, according to the evidence duly admitted and adopted by the court below, since the court below can sufficiently recognize the fact that the above defendant defames Non-Indicted 4 by openly pointing out specific facts as stated in the court below's decision, it cannot be said that there is an error of misconception of facts or misapprehension of legal principles as to the above defendant's grounds

(2) The prosecutor (the part concerning the violation of the Public Official Election Act due to the violation of the Protection Regulations by the Reporters, etc. of Election Crimes against Defendant 2)

The provisions of Articles 256(2)4 and 262-2(1) and (2) of the Public Official Election Act concerning the punishment of persons who have violated the duty to protect and protect the reporters, etc. of election crimes shall be stated in the court below as stated in the court below. ① Public prosecutor or judicial police officer, etc., ② acknowledged that there are reasonable grounds for recognizing those who have reported election crimes, etc. as being damaged or have concerns over suffering from the damages with respect to the report, etc., ② in preparing the protocol and other documents related to the report, etc. in criminal procedures, etc. as stated in Articles 7 and 9 of the Act on the Protection of Specific Crime Informants, etc. to protect the persons who have reported the election crimes, such as the method prepared by the Act on the Protection of Specific Crimes as stated in Articles 7 and 9 of the same Act.

However, according to all evidence submitted by the court below, it is clear that the police who received and investigated the report of the election crimes by Nonindicted 4 was not taking protective measures as stipulated in the above relevant provisions against Nonindicted 4, and there is no other evidence to prove that such protective measures were taken.

Therefore, in this case where there is no evidence to acknowledge that Nonindicted 4 is the person reporting the election crimes protected under Article 262-2(1) of the Public Official Election Act, the violation of the Public Official Election Act due to Defendant 2's violation of the protection regulations, such as the person reporting the election crimes, constitutes a case where there is no evidence of criminal facts, and thus, it is not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. The judgment below to the same purport is just, and there is no error of law of misunderstanding

C. Judgment on the mistake of facts or misapprehension of legal principles by Defendant 3

(1) Summary of the facts charged

Defendant 3 provided or received money, valuables, or other benefits in connection with the election campaign regardless of the pretext such as allowances, actual expenses, compensation for volunteers, etc., except in a case where allowances, actual expenses, and other benefits are provided or received for an election campaign worker under the Public Official Election Act. However, on March 23, 2004, Defendant 3 received money, valuables, or other benefits from Defendant 1, who was parked in front of the election office of Defendant 1, who was parked in front of the election office of Defendant 1 in Daegu Seo-gu 1 Dong, Seo-gu, Seoul Special Metropolitan City (number omitted and building name omitted), from March 13 of the same year to the above temporary date, from around March 13 of the same year, within the 197-gu Seoul Special Metropolitan City, which is the election district in which Defendant 1 wishes to take place as the driver of the above vehicle, and the electors, such as the senior citizen center in the area, market, and park, through Nonindicted 7, in return for Defendant 1’s election campaign.

(2) The judgment of the court below

The court below found Defendant 2 and Defendant 3 guilty of the above facts charged by applying Articles 230(1)5 and 4, and 135(3) of the Public Official Election Act to Defendant 3 as evidence, based on the following: (a) the statement corresponding thereto in the second written statement prepared by the judicial police assistant; (b) the statement written by Nonindicted 4, 10, and Nonindicted 11; and (c) the second written statement written by the judicial police assistant; and (d) the statement corresponding thereto in the second written statement prepared by Nonindicted 12.

(3) Judgment of the court below

Article 230 (1) of the Public Official Election Act provides that “any person falling under any of the following subparagraphs shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding ten million won” and subparagraph 4 provides that “any person who offers, expresses an intention to offer, or promises to offer money, goods, or other benefits in connection with the election campaign regardless of the pretext, such as allowances, actual expenses, compensation for volunteers, etc. in contravention of the provisions of Article 135 (3)” and subparagraph 5 provides that “any person who receives or expresses an intention to offer such benefits or offices or accepts an intention to offer such things” and Article 135 (3) of the same Act provides that “any person shall not be punished by imprisonment with prison labor for or without prison labor, election campaign liaison office or election campaign liaison office for not more than five years, or any expenses paid by a third party or election campaign manager for election campaign in collusion with another political party or election campaign liaison office, except for cases where such expenses are provided under the provisions of this Act, and such expenses shall not be deemed expenses paid by the candidate or election campaign manager.”

In full view of the above provisions, the expenses paid for the operation of a motor vehicle by a candidate for the election of a National Assembly member in the election campaign process shall not be included in the election expenses regulated by the Public Official Election Act, as well as the remaining election-related expenses as provided by Article 120 (1) through (5) of the Public Official Election Act. Thus, the act of offering or receiving the expenses in connection with the operation of a motor vehicle by a candidate in the election campaign process does not constitute an act of offering or receiving money, goods, etc. related to the election campaign prohibited by Article 135 (3) of the Public Official Election Act, and the expenses for the operation of a motor vehicle shall also include the amount of money paid by a candidate to a driver for the election campaign (see Supreme Court Decision 98Do1432, Apr. 9, 199).

However, according to the evidence found guilty by the court below and the records of this case, Defendant 3 did not provide any other money or goods to Defendant 1 for an election campaign on March 13, 2004 by introducing Nonindicted 9, which was the head of the election campaign headquarters for Defendant 1, and employed by Defendant 1 as the driver of the (vehicle number omitted) on the 11st day of the same month, and did not provide any other money or goods to Defendant 1 at the request of Defendant 1, who was carrying the above vehicle on the 11st day of the election campaign, and did not provide any other money or goods to Defendant 3 at the above 1st day of the election campaign. However, according to the opinion of Nonindicted 3 on March 13, 204, it does not mean that the above money or goods were provided to Defendant 1 and its execution expenses on the 1st day of the election campaign, and it does not mean that the above money or goods were provided to Defendant 1 for an election campaign for more than 70,000 won per day.

Nevertheless, the court below found the defendant guilty of this part of the facts charged, which is erroneous in the misapprehension of legal principles and misconception of facts.

D. Determination on the grounds for common reversal against Defendant 2 (the guilty part of the violation of the Public Official Election Act in the judgment of the court below against Defendant 2)

Of the facts charged against Defendant 2, the court below found Defendant 2 guilty by applying Articles 230(1)4 and 135(3) of the Public Official Election Act, and Article 30 of the Criminal Act to Defendant 2 as evidence of conviction in collusion with Defendant 2 to provide Defendant 3 with KRW 800,00 in connection with the election campaign at the place as stated in Article 2-3(1)(1) of the above Act. The court below found Defendant 2 guilty by applying Article 230(1)4 of the Public Official Election Act, Article 135(2) of the same Act, and Article 30 of the Criminal Act to Defendant 2. The reasons for reversal due to misapprehension of legal principles as stated in Article 2-3(3) of the above 2-3(3) of the judgment of the court below and errors of facts are common to the Public Official Election Act under Article 2-1(1) of the same Act, which is a co-defendant. Thus, the prosecutor's remaining portion of the facts charged in the judgment of the court below cannot be affirmed.

E. Determination on the assertion of unfair sentencing by Defendant 2 and the prosecutor (the part concerning defamation of Article 3-2(1)(1)(2) of the facts constituting the crime of the lower judgment against Defendant 2)

In full view of the following circumstances: (a) Defendant 2 notified Nonindicted 4 of the fact that the informant who provided the proviso to investigation in relation to the election crime of Defendant 1 by the candidate; (b) the above Defendant’s age, character and conduct, intelligence and environment shown in the record; (c) motive, means and consequence of the instant crime; and (d) the circumstances after the crime, etc., the sentence imposed by the court below on the crime of defamation as stated in the judgment of the court below is appropriate; and (d) it cannot be deemed that it is unreasonable or unreasonable because it is brut or unreasonable, the Defendant’

3. Conclusion

Therefore, Defendant 2’s appeal is dismissed pursuant to Article 364(4) of the Criminal Procedure Act on the grounds that there is no ground for appeal, and the part of the judgment below on the violation of the Public Official Election and Prevention of Unlawful Election Act due to Defendant 2’s violation of the Protection Regulations, such as the person reporting election crimes against Defendant 2, and the prosecutor’s appeal as to the part on the crime of defamation among the guilty part of the judgment below against Defendant 2 is dismissed pursuant to Article 364(4) of the Criminal Procedure Act on the grounds that the appeal by Defendant 1 and Defendant 3 is well-grounded, and the part on the above Defendants among the judgment below’s appeal is reversed pursuant to Article 364(6) of the Criminal Procedure Act on the grounds that each of the judgment below against Defendant 2 is reversed, and the part on the violation of the Public Official Election and Prevention of Unlawful Election Act among the guilty parts against

Defendant 1, on April 15, 2004, was elected by releasing him as a candidate for Hanna Party in the 17th election district in Daegu-gu, Daegu-gu, and Defendant 2, as Defendant 1’s wife, who was in charge of the financing and enforcement of Defendant 1’s election campaign office;

1. Defendant 1:

No one is entitled to contribute or receive political funds unless they are prescribed by the Political Funds Act, and, in the case of a candidate or preliminary candidate for an election of a National Assembly member in a local constituency, a support fund among political funds may only be provided or received through a supporters' association:

Around March 25, 2004, at the election office of the defendant in the fifth floor of the defendant's election office in Taegu-gu, Daegu-ro (numbered and building name omitted), he received cash of KRW 2,00,000,000 delivered from non-indicted 1 to the effect that he would use it for election campaign funds, and received cash of KRW 8,000,000 delivered to the same purpose at the same place on March 31 of the same year, and received a contribution of political funds in a manner that is not prescribed by the Political Fund Act;

2. Defendant 2:

A. Unless allowances, actual expenses, or other benefits are provided or received for an election campaign worker under the Public Official Election Act, in collusion with Nonindicted 7, who is an election campaign manager, even though they are not provided or provided with money, valuables, or other benefits in connection with the election campaign regardless of the pretext such as allowances, actual expenses, and compensation for volunteer service, etc.;

around 12:30 on April 16, 2004, at the entrance stairs of the above election office from March 30 of the same year to the above temporary date, 20 female election campaign workers by each Dong are appointed or managed in the position of the head of women's department, encourage them to carry out an election campaign, and manage six female telephone campaign personnel, etc., and to Nonindicted 5, who assisted Defendant 1's election campaign, in relation to the election campaign, 1,000,000 won in cash in consideration of the price for the election campaign through Nonindicted 7, through Nonindicted 7;

B. After the person in charge of accounting was appointed and reported, the election expenses cannot be paid unless the person in charge of accounting is the person in charge of accounting

On April 19, 2004, the above election office paid KRW 5,000,000,000 for promotional materials of the preliminary candidate, who requested the design (trade name omitted) to the design company, through Nonindicted 10, who was in charge of promoting the candidate during the election campaign period, to Nonindicted 11, the representative of the design (trade name omitted) through Nonindicted 10, thereby paying the election expenses.

The summary of the evidence recognized by this court is the same as the corresponding part of the judgment of the court below, and thus, it is cited by Article 369 of the Criminal Procedure Act.

1. Relevant Articles of the Act and selection of species;

A. Defendant 1

Illegal political funds: Article 30 (1) of the Political Funds Act (Selection of Fines) comprehensively

B. Defendant 2

(1) Offering money or goods related to election campaign: Article 230(1)4, Article 135(3), and Article 30 of the Criminal Act (Selection of Fines)

(2) Election expenses are paid by a person in charge of accounting: Articles 258(2)1 and 127(3) of the Public Official Election Act (Selection of Fines)

1. Separation of concurrent crimes (Defendant 2);

Article 18 (3) of the Public Official Election Act (In regard to each crime on the market, punishment shall be imposed separately from the crime of defamation as stated in the original judgment)

1. Aggravation of concurrent crimes (Defendant 2);

Article 37 (Aggravation within the scope of Aggregate of Maximum Amounts of Punishment for the Crimes of Violating the Public Official Election Act due to Provision of money or goods related to election campaigns, which are heavier than punishment, and Article 38 (1) 2 and Article 50 (Aggravation of Punishment within the scope of Punishment

1. Attraction in a workhouse;

Articles 70 and 69(2) of the Criminal Code

1. Collection (Defendant 1);

Article 30 (3) and (1) of the Political Funds Act

1. Ad hoc payment order:

Article 334(1) of the Criminal Procedure Act

Of the facts charged against Defendant 3 and the summary of the violation of the Public Official Election Act due to provision of money and valuables to Defendant 2 on March 23, 2004 among the facts charged in the instant case against Defendant 2, Defendant 2: “Defendant 2 conspired with the Western rate on March 23, 2004, Defendant 1’s election campaign to Defendant 3, who was parked in the front of the election office of Defendant 1, who was parked in the fiveth floor of the Daegu Seo-gu 1 Dong-dong (Sgu and building name omitted) building on March 23, 2004, and on March 13 of the same year from March 13, 200 to the above temporary date, Defendant 2 provided the above vehicle’s election campaign to Defendant 3 by means of giving money and valuables to the senior citizens in the Daegu-gu, Seoul Special Metropolitan City, market, park, etc., and Defendant 2 provided money and valuables to Defendant 300 won for election campaign under the name of Defendant 2, as seen in the above Criminal Procedure Act.”

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

Judges Cho Jin-jin (Presiding Judge)