In a case where Defendant, a spouse of Party A, who was elected to Provincial Council members upon going to the 7th local election of Dong-si local government, was indicted for violating the Public Official Election Act on the ground that he provided a contribution act by providing one swine to the organization of Party B located in the constituency concerned for the purpose of holding a goter day before two years and one month have passed from the election day of the above election, the case holding that Defendant A was guilty on the ground that, in full view of all the circumstances, the Defendant’s spouse came to the extent that he could objectively recognize that he had an intention to run for the above election at the time of the contribution act, and the Defendant’s contribution act does not violate the social rules,

Defendant, who was the spouse of Party A elected to Provincial Council members after going out of the 7th local election of Dong-si local government, was prosecuted for violation of the Public Official Election Act on the ground that he made a contribution by providing Party B with one swine by providing the organization located in the constituency concerned for the purpose of holding the relevant day before two years and one month from the election day of the said election.

The case affirmed the defendant's spouse Gap was guilty on the ground that Gap's act of donation was objectively recognized as having intention to run a local election for the 7th local council at the time of donation, and it did not violate the defendant's social rules, in full view of all the circumstances such as Gap's act of donation, Gap's act of withdrawing from the 5th local council member to the 5th local council member's election for the 6th local council member, and withdrawing from the 6th local council member's election for the 6th local council member without charge; Gap joined Byung political party prior to the contribution act of donation; Byung was elected as the candidate for the 7th local council member's election for the 7th local council member; Eul did not regularly contribute pigs at the 7th local council member's election for the 7th local council member; after Eul joined the political party, Gap's act of donation was objectively recognized as having intention to run a candidate for the 7th local council member at the time of donation; and Gap's act of donation was not contrary to the social rules.

Articles 113(1), 257(1)1 of the Public Official Election Act, Article 20 of the Criminal Act

Defendant

Kim & Lee, et al.

Law Firm Ho, Attorney Ha Young-young

Defendant shall be punished by a fine of KRW 800,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

On June 13, 2018, the Defendant was the spouse of Nonindicted Party 1 who was elected as the Governor of Jeollabuk-do, after going to the election district of ○○○○ Military Council member of Jeollabuk-do at the 7th nationwide local election.

A candidate (including a person who intends to become a candidate) and his/her spouse shall not make contributions to persons in the relevant constituency or institutions, organizations, or facilities.

Nevertheless, around 09:30 on May 7, 2016, the Defendant provided one-month-old swine at the market price to the △△○○○-Gun Federation of △△ Special Tourist Zones (the president Nonindicted 2) located within the election district of ○○○○-gun (the name omitted) for the purpose of holding a tourist day, and made a contribution.

1. Partial statement of the defendant;

1. The prosecutor’s statement concerning Nonindicted 2

1. Each written answer (Nonindicted 2, Nonindicted 1)

1. A written accusation;

1. Investigation report (the currency of the chief of the department in △△ Military Association);

1. Data submitted by defense attorneys, such as a career certificate, etc., resident general meeting data, ballot counting status, output of the list of elected persons, articles and family relation certificates

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 257(1)1 and 113(1) of the Public Official Election Act (Selection of Fine)

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Summary of the assertion

A. It cannot be deemed that Nonindicted 1, the spouse of the Defendant, was in the position of “a person who wishes to become a candidate” at the time of the instant contribution act.

B. The Defendant’s act of donation in this case ought to be deemed to be dismissed as its illegality is not contrary to the social rules.

2. Determination

A. Whether the Defendant’s spouse Nonindicted 1 is “a person who intends to become a candidate” at the time of contribution.

(1) The term "person who intends to become a candidate" in Article 113 of the Public Official Election Act includes not only the person who is scheduled to run in an election but also the person who is objectively recognizable that he/she has an intention to run in an election in light of his/her status, contact, or speech and behavior as well as the person who is definitely expressed externally, such as punishment for an activity to obtain a candidate from a general elector, but also the person who is likely to objectively recognize that he/she has an intention to run in an election (see Supreme Court Decision 2005Do774, Dec. 22, 2005).

(2) Examining the following circumstances acknowledged by the evidence duly adopted and examined by the court in light of the legal principles as seen earlier, it is reasonable to view that Nonindicted 1, the Defendant’s spouse, had an intention to run in the 7th local election nationwide at the time of the instant contribution act, to the extent that it could objectively be recognized. Accordingly, this part of the Defendant and the defense counsel’s assertion is rejected

(A) At the 5th nationwide local election, Nonindicted Party 1 went out of the 5th nationwide local election to the ○○○ Military constituency of the Jeollabuk-do Council member without charge, and 2 out of 5 candidates were elected. At the 6th national local election, Nonindicted Party 1 went out of the 5th national provincial election, and went out without charge, resulting in a minor difference between the winner and the votes obtained at 2.89% (486 marks).

(B) The Defendant stated that Nonindicted Party 1 promised not to leave the election again after Nonindicted Party 1’s election 2 fell from the election. However, Nonindicted Party 1 did not publicly declare that the election does not take place again. On March 26, 2018, Nonindicted Party 1 made an article in the Seoul Special Self-Governing City, Seoul Special Self-Governing Province, and the Seoul Special Self-Governing City, △△△△△△△△△△△△ Group on the same day as Nonindicted Party 1 made a statement that “It was not a failure if he did not give up the two Do Council members’ failure.” Meanwhile, on May 14, 2018, Nonindicted Party 1 made a statement to Nonindicted Party 1 as “I had been evaluated as having made a campaign for an anticipated other than the previous election and had been prepared continuously.”

(다) 공소외 1은 2015. 4. 20. 새마을운동○○군지회장으로 취임하여 활동하였고, 이 사건 기부행위를 하기 직전인 2016. 3. 25. ◎◎◎◎◎당에 가입하였으며, 제7회 전국동시지방선거에서는 ◎◎◎◎◎당 전라북도의회의원 후보로 재출마하여 당선되었다.

(D) Although Defendant or Nonindicted Party 1 did not participate in the instant contribution act upon Nonindicted 2’s request, the president of the Association of the Association of the Special Tourist Zones, and thereafter did not participate in the instant contribution act, the Association of the Special Tourist Zones on Dol terms was held on March 30, 2017 to 40 members present at the meeting of the residents’ general meeting and distributed printed materials stating “non-party 1 pigs support” to 40 members present at the meeting. Accordingly, a large number of residents or the members of the Association of the Association of Dol terms and conditions, who participated in the event of Dol terms and conditions, were to have a sense on Non-party 1, and the awareness of Non-party 1 was to have been improved at ○○-gun Dol.

B. Whether it does not violate social rules

(1) Even if it constitutes a contribution act under the Public Official Election Act, if it can be deemed that it is within the scope of social order which has been historically created as a kind of formal or official act, and thus, its illegality may be avoided. However, if it is acknowledged that it is illegal for such reason, it shall be careful (see, e.g., Supreme Court Decision 2010Do14720, Feb. 24, 201).

(2) Examining the following circumstances acknowledged by the evidence duly adopted and examined by the court in light of the legal principles as seen earlier, the illegality of the Defendant’s act of donation in this case cannot be deemed to be avoided as it does not violate social rules. Accordingly, this part of the Defendant and the defense counsel’s assertion is rejected.

(가) 피고인과 공소외 1은 □□□관광특구연합회가 매년 개최한 어버이날 행사에 정기적으로 돼지를 기부하지는 않았는데, 공소외 1이 ◎◎◎◎◎당에 가입한 직후 처음으로 시가 미상의 3개월령 돼지 1마리를 기부하였다.

(B) Nonindicted 3 stated at the investigative agency that “The average weight of the three-month-old pigs is about 38-42 km, and the price of the three-month-old pigs is expected to exceed KRW 16-170,000 at the time of 2016. At present, she currently ships three-month-old pigs to KRW 167,000.”

(C) At the event of the Dog Special Tourist Zone Federation held, the number of participants in the Dog Special Tourist Zone Association appears to have been the residents of ○○○○○ group, who contributed to the Defendant. After that, the Dog Special Tourist Zone Federation held a residents’ general meeting and distributed printed materials stating “Nonindicted 1 swine support” to 40 members who attended the meeting.

1. Scope of punishment by law: A fine not exceeding 10 million won;

2. Scope of recommended sentences according to the sentencing criteria;

[Determination of Punishment] Violation of Prohibition of and Restriction on Contribution Act in Election Group ‘(Contribution Act)'

[Special Mitigation] Where provided money or goods or benefits are extremely minor, the other party’s affirmative demand is acceptable;

[Determination of the recommended territory and the scope of recommendations] Special mitigation area, fine of KRW 500,000 to KRW 3 million

3. Determination of sentence: Fines of 80,000 won;

The Defendant, as a spouse of Nonindicted Party 1, who is anticipated to take out the election of the Jeollabuk-do Council member, donated one swine to an organization located in the constituency under the name of Nonindicted Party 1, and made many residents share it. As a result, the legislative intent of the Public Official Election Act to guarantee the fairness and transparency of the election and the free decision-making of voters was damaged, so the Defendant’s liability for the offense is not easy.

However, in response to the request for contributions by organizations, the Defendant contributed 1 head of 3 months-old pigs to be used as food for the events in the region where the organization was passively in response to the request for contributions, and the value thereof is relatively minor. The contribution act in this case was made two years and one month before the election day, and during which the Defendant or Nonindicted Party 1 did not have an influence on the result of the election because the Defendant or Nonindicted Party 1 did not engage in an election, it appears that the result of the election would not have a significant influence on the election because the Defendant or Nonindicted Party 1 did not engage in an election, the Defendant’s primary offender is considered as favorable circumstances for the Defendant, and the Defendant’s primary offender shall be considered as normal circumstances, and all the sentencing conditions

Judges Park Jong-young (Presiding Judge)