2018Gohap50 Violation of the Public Official Election Act

1. A;

2. B

Madio (prosecution, public trial)

Law Firm Sobio (for Defendant A)

Attorney Yellow-gu et al., Counsel for the plaintiff-appellant

Attorney Yu Han-chul (for the defendant A)

Attorney Kim J-jin (the national election for the defendant B)

May 30, 2019

Defendant A shall be punished by a fine of KRW 700,00, and a fine of KRW 500,000.

In the event that the Defendants did not pay the above fines, the Defendants shall be confined in each Labor House for the period calculated by converting KRW 100,000 into one day.

To order the Defendants to pay an amount equivalent to the above fines.

Of the facts charged against Defendant A, the violation of the Public Official Election Act due to the restriction on contribution acts is acquitted.

The summary of the acquittal part in this judgment shall be publicly notified.

Criminal facts

Defendant A was elected as C/Gun in the 6th local election held on June 4, 2014, and was registered as C/Gun preliminary candidate for the 7th local election on April 23, 2018, and was elected as C/Gun on June 13, 2018.

1. Defendant A

A public official shall not engage in an act of promoting the achievements of his/her employees or electorates who intend to be a candidate or candidate, regardless of the pretext thereof, and no one shall engage in an election campaign by means of any propaganda facility or instrument, various printed materials, broadcast, newspaper, news communications, magazine, other publications, campaign meeting, debate, debate, debate, alumni meeting, neighbors' meeting, other assemblies, information and communications, the establishment of an election campaign organization or private organization, door-to-door visit, or other methods prior to the election campaign period.

Nevertheless, at around March 30, 2018, the Defendant provided meals with nine electorates, such as B, in the E-cafeteria located in Gangwon-do D, and performed 24.1 billion won among the 50 billion won of F Gun, “the site of the G Elderly Community Center was secured”, “the improvement and improvement of the H Do in the future would increase the species of fish installed by improving and improving the H Do in the future”; “the maintenance of the H will be kept well well at the seat of the C-Gun Agricultural Machinery Repair Center”, “the Defendant will install a citizen park at the seat of the C-Gun Agricultural Machinery Repair Center”, “the Defendant will install a second floor parking facility at the seat of the C-Gun Agricultural Machinery Repair Center”, “the Defendant will build a new exhibition and sales site, rest site, film theater, etc. in the vicinity of the customary market”, and “the Defendant plans to implement and implement the projects during the period of his/her service.”

As a result, the defendant promoted the achievements of the defendant who want to be a candidate of C/Gun, and carried out an election campaign before the election campaign period.

2. Defendant B

No one shall make, or have another person make contributions to, an election for a candidate or a person who intends to become a candidate in connection with the election.

Nevertheless, around March 30, 2018, the Defendant, including I, made a liaison with nine electorates, such as I, and sent I, through I, the above A to the meal site. At around 18:00 on the same day, the Defendant made a contribution act for the above A, which intends to be a candidate of the head of the Gun, by calculating KRW 1.20,00 won of the meal cost of nine electorates, to be a candidate of the head of the Gun.

Summary of Evidence

[Defendant A]

1. Defendants’ respective legal statements

1. A witness I and each legal statement of the J;

1. Each police statement of K and L;

1. Each written answer to M, N,O, and P;

1. Identification register and mobile phone description;

[Defendant B]

1. Defendants’ respective legal statements

1. A witness I and each legal statement of the J;

1. Each police statement of K and L;

1. Each written answer to M, N,O, and P;

1. Identification register and mobile phone description;

Application of Statutes

1. Article applicable to criminal facts;

Defendant A: Article 254(2) of the Public Official Election Act (a violation of an election campaign period); Articles 255(1)10 and 86(1)1 of the Public Official Election Act (a violation of an election campaign period); and Article 86(1)1 of the Public Official Election Act (a violation of

Defendant B: Articles 257(1)1 and 115 of the Public Official Election Act

1. Commercial competition;

Defendant A: Articles 40 and 50 of the Criminal Act (Punishments imposed on a violation of the Public Official Election Act due to a heavier illegal election campaign)

1. Selection of punishment;

Defendants: Selection of each fine

1. Invitation of a workhouse;

Defendants: Articles 70(1) and 69(2) of the Criminal Act (100,000 won per day)

1. Order of provisional payment;

Defendants: Article 334(1) of the Criminal Procedure Act

Judgment on the Defendant and defense counsel's argument

1. Defendant A’s assertion and judgment

A. Summary of the assertion

1) Violation of the Public Official Election Act due to the violation of an election campaign period

A) Although it is recognized that the Defendant made a statement in the decision at a meeting as stated in the judgment (hereinafter “instant meeting”), the Defendant was given the first answer to the private group B rather than creating the instant meeting. The Defendant merely received questions from the participants in the instant meeting about the status of military administration and gave answers and explanations to them, it does not constitute an election campaign under the Public Official Election Act. Even if the Defendant’s act constitutes an election campaign, it does not constitute an election campaign, it does not constitute an election campaign under the Public Official Election Act.

B) Articles 59 and 254(2) of the Public Official Election Act, which provide that the term of election campaign shall be restricted and punished in cases of violations thereof, are essentially infringing on the freedom of election campaign, and are unconstitutional in violation of the excessive prohibition principle.

2) Violation of the Public Official Election Act due to illegal election campaigns

A) The "public official" who is the subject of Article 86 (1) 1 of the Public Official Election Act does not include a person who wishes to become a candidate.

B) In the course of responding to the question of the participants, the Defendant was merely aware of the C&C’s activity status or activity plan, and the Defendant did not speak about the details of the Defendant’s specific contribution and contribution, and thus, it cannot be deemed that there was no intention to publicize the Defendant’s achievements. Even if the Defendant promoted his own achievements, it constitutes an act that does not violate the social rules, and thus, the illegality is dismissed.

B. Determination

1) Claim on violation of the Public Official Election Act due to violation of the election campaign period

A) Whether the election campaign constitutes an election campaign

(1) Relevant legal principles

An election campaign refers to an act that can be objectively recognized by the intent of promoting the election or defeat of a specific candidate in a specific election. The determination of whether an act constitutes an election campaign ought to be objectively made on the outside, rather than on the inside of the principal, rather than on the outside, rather than on the outside. Therefore, even though an act is not recognized as an act of realizing the intent of such objective in view of objective under the circumstances at the time of the act, it cannot be said that the act was in mind, or that the act was merely an election, or that it was necessary or favorable for promoting the election or defeat. Furthermore, from the perspective of an election-related state agency or legal expert, a determination should be made based on the specific situation at the time of the act, in particular, the general public and the elector’s perspective, rather than on the organic analysis of the relationship between individual acts or focusing on the legal meaning and effect thereof.

The intent of the above purpose is not only to explicitly express methods such as requesting support for a specific election by disclosing the intent to leave the election, but also to the extent that the intent of the intended purpose is easily inferred from an elector’s perspective in light of the objective circumstances at the time of the election. To find the existence of the intent of the above purpose is insufficient solely for the mere reason that the relationship with the election can be inferred or that the elector was motiveed for matters regarding the election, and that the elector is clearly aware of the act in a specific election. Whether the act of the intended purpose is not only the name of the act, but also the form of the act, place, method, etc. should be comprehensively observed and determined. In particular, in light of the fact that the Public Official Election Act regulates a specific act at intervals with the election day, depending on the point that the act was conducted at issue, at a different time from the point of view of the elector’s election, and that the act can be perceived differently from the point of time when the act was conducted at issue, it can be recognized that the act was performed at a certain time beyond 20 days prior to the election.

(2) In the instant case:

Comprehensively taking account of the aforementioned legal principles and the following circumstances revealed by the aforementioned evidence, the Defendant’s act of speaking at a meal space where B, etc. was present on or around March 30, 2018 can be evaluated as having reached the extent that it was clearly recognizable from the general elector’s point of view, as an act committed for the purpose of his election, to the extent that it was objectively recognizable from the general elector’s point of view. Accordingly, the Defendant and the defense counsel’s assertion in this part cannot be accepted.

(A) Since the election of the head of a local government is set on the election day pursuant to Article 34(1)3 of the Public Official Election Act, anyone can objectively recognize and specify the election day. The meeting of this case consists of three months from the election day, and had close close close time with the election day, and the Defendant registered as a preliminary candidate for the head of a Si/Gun on April 23, 2018, which was 25 days after the election day. In light of the point of time of the meeting of this case, Defendant’s career, and post-election, etc., at the time of the meeting of this case, the Defendant, at the time of the meeting of this case, should be deemed to have objectively been perceived as a person who had the intention to run for

(B) There is no fact that the Defendant complained of support directly to the Defendant at the instant meeting. However, considering the language, form, etc. of expression, the statement in the judgment does not merely merely explain the present situation of the military administration objectively, but rather refers to a kind of commitment by comparing the previous Gun with the Defendant, or by listing the contents of the Defendant’s projects being promoted as the head of the Gun, or the projects that the Defendant plans to promote the Defendant’s achievements by carrying out as the head of the Gun. Even though the attending the instant meeting asked the Defendant about the present situation of the military administration, if the Defendant asked the Defendant about his achievements or mentions his commitment without giving an objective explanation about the military administration, it is difficult to view the Defendant’s remarks as a passive act to respond to the question of the attending person. Furthermore, the Defendant did not have any private dialogue with the attending person at the instant meeting, and the Defendant did not mention the Defendant’s achievements or referring to the Defendant’s commitment as indicated in the judgment.

(C) Of the participants of the instant meeting, the remainder except I and B did not have any personal friendship with the Defendant of ordinary peace, and I and B did not notify the rest of the participants of the fact that they had been the Defendant at the instant meeting. Meanwhile, while the Defendant was in office as C/Gun, there were not many cases where he and the Gun meals together with the instant military citizens.

(D) At the time, the participants of the instant meeting knew or predicted most of the fact that the Defendant would be going to run in the next election, and in fact some of the participants knew or predicted that the Defendant would participate in the instant meeting.

B) Whether Article 59 and Article 254(2) of the Public Official Election Act are unconstitutional

If a candidate permits an election campaign without any restriction without a time limit, excessive competition among the candidates becomes difficult to manage an election and make it difficult to prevent the occurrence of fraudulent acts. The prolongedness of unreasonable competition among the candidates causes a lot of social and economic loss due to excessive expenditure and effort, as well as causing unfair economic loss due to the difference in economic power among the candidates, and may bring about the reduction of the opportunity of candidates for young and franking candidates who are unable to prepare enormous election expenses. Thus, the restriction on the period of election campaigns is necessary and reasonable when considering the legislative purpose, contents of restriction, mode of election in Korea, practical necessity, etc. Therefore, it cannot be deemed that the restriction on the period of election campaigns is excessively limited to the extent that the freedom of election campaign is mitigated (see Constitutional Court Order 200Hun-Ma121, Aug. 30, 2001). Therefore, this part of the argument is rejected.

2) As to the violation of the Public Official Election Act due to illegal election campaigns

A) Whether "a person who intends to become a candidate" under Article 86 (1) 1 of the Public Official Election Act does not include "a person who intends to become a candidate"

Article 86 (1) 1 of the Public Official Election Act provides that a public official shall not publicize the achievements of a specific political party or candidate (including a person who intends to become a candidate) to his/her employees or electorates, regardless of the pretext of education or whatever, and the public official among the public officials is excluded from the National Assembly members and their assistants, secretaries, secretaries, secretaries, and members of local councils.

As such, National Assembly members, etc. who are allowed to engage in election campaigns are excluded from those subject to Article 86(1) of the Public Official Election Act, but the head of a local government who is prohibited from election campaigns does not fall under those subject to the foregoing provision (see, e.g., Supreme Court Decision 2011Do3862, Jul. 14, 2011). Article 86(1)1 of the Public Official Election Act focuses on the fact that the public official is "a person who is in a public position, such as a public official, and whose subject is "a person who is in a public position, such as a public official" (see, e.g., Supreme Court Decision 2010Do17828, Apr. 28, 201). Therefore, if a defendant who is a public official under Article 2 of the Local Public Officials Act has committed an act to publicize his/her achievements, it is reasonable to deem that the defendant and defense counsel

B) Whether the act constitutes an act of promoting achievements

(1) Of the 'act of promoting the achievements of a candidate or a person who wishes to be a candidate' under Article 86(1)1 of the Public Official Election Act, the 'business' refers to all social acts that can serve as positive evaluation data in elections (see Supreme Court Decision 97Do320, Apr. 25, 1997; Supreme Court Decision 97Do320, Apr. 25, 1997)

On the other hand, if a local government's expression was made for the purpose of promoting the achievements of "local government", it shall not be deemed that the act constitutes promotion of the achievements of "head of the local government" as it is, but if it is judged that the act is a crime of violation of Article 86 (1) 1 of the Public Official Election Act if it is done in detail after examining various circumstances, such as the place where the words were made, whether the contents of the words correspond to a specific interest issue of residents, whether the contents of the activities of "head of the local government" are directly mentioned, whether the contents of the activities of "head of the local government" are directly mentioned, and the possibility that the residents are able to accept as the achievements of the head of the local government.

(2) In full view of the following circumstances, the Defendant and the defense counsel’s assertion in this part is not acceptable, since the statement made at the meeting of this case had reached the promotion of the Defendant’s achievements as the head of C/Gun.

(A) In the statement of the judgment, the part that "a portion of the debts owed to the Gun of full-time (one's term of office) was repaid is interpreted to the effect that the defendant performed his duties much more successful than that of the Gun as the head of the Gun, rather than an objective explanation on the Gun's own business.

(B) Among the remarks in the holding, the part of the project that the Defendant prepared or scheduled to promote is an expression emphasizing whether the Defendant is promoting the projects of the Category C with positive performance and intent, and the person hearing the statement is not merely aware of the prospect for the pending projects in the Group C, but it is highly likely that the Defendant would have dealt with such outcome, and it is sufficient to have the Defendant think that the Defendant is fit for the next head of the Gun as he well as for the next head of the Gun.

(C) A project that directly affects the lives of the C military residents, such as H maintenance project and the establishment of a citizen center, parking lot, film theater, etc., constitutes a positive evaluation data for the defendant, regardless of whether such a project is publicly known or not.

(D) Article 86(5) of the Public Official Election Act provides that the head of a local government and a public official under his/her jurisdiction shall not publish, distribute, or broadcast campaign materials (including campaign materials using newspapers and broadcasting) to inform local government of the performance of a local government’s project plan and other activities of local government, except in exceptional cases prescribed by relevant statutes, and shall not publish, distribute, or broadcast them more than once every quarter from 180 days before the election day of the relevant local government head to the election day. In determining the character of the Defendant’s speech, the legislative purpose and purpose of the Public Official Election Act, which strictly prohibits acts that affect the election of public officials, etc., to ensure the fairness of election, should be considered

C) Whether illegality is denied

Considering the circumstances as seen earlier, namely, the fact that the instant meeting was held at the time when 3 months remain from the election day, the fact that the Defendant’s act was likely to have influenced the election regardless of how the Defendant’s act was an election, and the fact that Article 86(5) of the Public Official Election Act prohibits the publication of promotional materials informing of the status of activities of local governments from 180 days before the election day to the election day, it is difficult to view that the Defendant’s act constitutes a justifiable act prescribed in Article 20 of the Criminal Act. Accordingly, the Defendant’s assertion

2. Defendant B’s assertion and judgment

A. Summary of the assertion

The meeting of this case was not a contribution act on behalf of the person who wishes to be a candidate, but was merely a private contact with the person who will be a candidate, in the case where the defendant's spouse's illness, and the meeting of this case did not have the awareness that the meeting of this case was about the election or for the person who will be a candidate.

B. Determination

Article 115 of the Public Official Election Act provides "in relation to the election" is sufficient if the relevant election is related to the election, regardless of whether it is an election campaign for the relevant election or not (see, e.g., Supreme Court Decision 2012Do15497, Apr. 11, 2013).

In full view of the circumstances as seen earlier, namely, the fact that the instant meeting was held at the time when 3 months have not passed from the election day, and the participants could have easily known the relationship with the election, among the participants of the instant meeting, that there was no private friendly relationship with A except the Defendant and I, and that A did not have any private friendly relationship with A in addition to his achievements at the instant meeting and mentioning the commitments in the future, it is reasonable to deem that the Defendant’s act of paying the food at the instant meeting constitutes an act related to the election and constitutes a contribution act for A for a person who is to be a candidate, and the Defendant did so.

Therefore, the defendant and defense counsel are not accepted.

Reasons for sentencing

1. Defendant A

(a) Scope of applicable sentences under law: Fines of 50,000 to 6 million won; and

(b) the reference sentencing criteria;

Since the violation of the Public Official Election Act due to the violation of the election campaign period and the violation of the Public Official Election Act due to illegal election campaign are in a mutually competitive relationship, the sentencing guidelines were not applied, but the sentencing guidelines were referred to below the sentencing guidelines prescribed by the Public Official Election Act due

[Determination of type] Election Crimes 04. Violation of the method of election campaign in violation of the election campaign period.

[Specially Convicted Persons] Reduction element: Where the degree of violation of the election campaign methods is minor;

[Recommendation Area and Scope of Recommendations] Reduction Area, Fine of 500,000 to 900,000 won

(c) Determination of sentence;

The punishment shall be determined as ordered by comprehensively taking into account the following circumstances, the defendant's age, character and conduct, environment, and the circumstances of all the sentencing shown in the argument of the instant case, such as the background of the instant crime.

1) The Defendant violated the Public Official Election Act in order to prevent any over-heat of the election campaign and secure equal opportunity for election campaign by attending the instant meeting prior to the election campaign period in a position of a public official who is required to maintain political neutrality, thereby going against the public official’s trust in the political neutrality of public officials, and cannot avoid any corresponding responsibility.

2) However, in weighing the criminal responsibility of the accused specifically, the following circumstances recognized by the above evidence should be considered comprehensively:

(A) The Defendant did not actively and led the instant meeting, but was invited to the instant meeting prepared by B, and was led to the instant crime while referring to the answer to several questions from the meeting, and the status and plan of C military.

(B) Since it is difficult for the participants of the instant meeting, other than the Defendant, to see that the instant meeting was for the sole purpose of the Defendant’s election campaign, not only for the Defendant’s election campaign, but also for the purpose of friendship, etc. In addition, considering the number, organization, and relationship of the participants at the instant meeting, it is difficult to view that there was a particular impact on the actual election by the Defendant’s speaking at the instant meeting.

(C) Although it was not accepted the assertion of the Defendant and the defense counsel that the “person who wishes to be a candidate” does not include the “public official” as the subject of Article 86(1)1 of the Public Official Election Act, there are strong academic and practical views that the punishment of this part is unfair in terms of legal interpretation or legislation, and there are cases where the lower court rendered a verdict of innocence for the said reason. Accordingly, even if the normative power of the above provision is recognized, various opinions of academic circles, etc. may be sufficiently taken into account in assessing the punishment for committing a crime and criticism.

(D) The Defendant has no record of committing any crime, and there is no fear of recommitting a crime.

2. Defendant B

(a) Scope of applicable sentences under law: Fines of 50,000 to 10 million won; and

(b) Scope of recommendations based on the sentencing criteria;

[Determination of type] Election 02. Violation of prohibition and restriction on contribution acts

[Special Sentencing] Reduction element: where money or other valuables provided or benefits are extremely minor;

[Recommendation Area] Reduction Area, Fine of KRW 500,000 to KRW 3 million

(c) Determination of sentence;

1) The instant crime damages the fairness and transparency of the election by making an act of donation to enable the Defendant to win the candidate he supports.

2) However, since the participants of the instant group except A, who participated in the instant group, had difficulty in harming the final meals, the group of this case was not solely intended for A’s election campaign, but was partially intended for friendship, etc., and the amount of the Defendant’s donation was not significant. The Defendant, who was sentenced two times in 1983 and around 192, did not have any past record of criminal punishment other than that sentenced to a fine, and did not have any past record of the same crime, shall determine the sentence as ordered by the order, taking into account all the various circumstances, such as the Defendant’s age, character, character, environment, family relationship, and circumstances after the crime, which are the condition of sentencing

Parts of innocence

1. Summary of the facts charged

A National Assembly member, a local council member, the head of a local government, the representative of a political party, a candidate, or a candidate who intends to be a member of the National Assembly, a local council member, a representative of a political party, or a person who intends to be a candidate shall not make contributions to a person, institution, organization, or facility located outside

Nevertheless, around August 18, 2017, the Defendant: (a) received a request from S, the head of the R C military branch office, the C military branch office located in Gangnam Q, to provide budget support so that the chairperson and general affairs of the 124 senior citizens' centers belonging to the C military can enter into one and two advanced studies; (b) sent the above S a request for the extension of the workshop capacity of senior leaders; (c) responded to the purport that the budget support would be provided; (d) around August 25, 2017, the Defendant sent the military subsidy request following the opening of the C military branch office for senior citizens to the C military branch office; (e) on August 31, 2017, the Defendant sent the budget support of KRW 20 million to the C military branch office to the C military branch office; and (e) on August 31, 2017, transferred the budget support to the 160,000 members of the C military branch office, including those related to C military 18,2017.

2. Determination

A. Interpretation of Article 113(1) of the Public Official Election Act

1) Article 113(1) of the Public Official Election Act provides that a member of the National Assembly, a local council member, the head of a local government, the representative of a political party, or a candidate (including a person intending to become a candidate) shall not make a contribution to a person, institution, organization, or facility located outside the relevant constituency, or a person, institution, organization, or facility located outside the relevant constituency, and shall not make a contribution to the institution, organization, or facility (hereinafter referred to as “instant provision”), thereby comprehensively prohibiting the act of contribution by the head of a local government (hereinafter referred to as “instant provision”). The facts charged in this part are as follows: (a) Defendant A, the head of a local government, has made a contribution to 186 persons, such as the elderly belonging to the C-Gun Senior Party, and persons related to the RCR branch, who are 18.6 million won,

2) A local government as a juristic person has a separate legal personality from the head of the local government. In other words, the head of the local government, who is an administrative agency representing the affairs of the local government, has a dual status as a potential candidate for the next election.

A local government is obligated to carry out affairs concerning the promotion of welfare of residents, in particular, the protection and welfare of older persons, children, mentally and physically handicapped persons, juveniles, and women, and where a local government establishes and supports a budget for the residents, the head of the local government shall execute the budget as the representative of the local government. However, due to the dual status of the head of the local government, there is room for doubt as to whether the execution of the budget constitutes an act of donation by the head of the local government as a potential private person, regardless

In full view of the Constitution and the Local Autonomy Act, which widely recognizes the autonomy of the local government by having the local government manage the affairs concerning the welfare of the local residents and manage the property thereof, and establish the regulations on autonomy within the scope of statutes, and the purpose of the Constitution and the Local Autonomy Act and the general legal principles that the principle of statutory reservation is mitigated unlike in the case of indivative administrative actions, it should be careful to regard the local government’s ordinary budget execution for the performance of affairs of the local government as the act of making an individual contribution to the local government head. In addition, if the local government’s budget execution act performed as the representative is deemed to be easily regarded as the act of making an individual contribution to the local government head, it may result in the decline of administrative actions such as the execution

Of course, in cases where the incumbent head of a local government conducts so-called 's prior administration which is difficult to be considered as a rational budget execution because it is likely that the local government should bear financial burden, and the other party's right holder who receives benefit from the provision of such benefit is likely to be affected by the candidate's judgment and choice. However, Article 86 (1) of the Public Official Election Act separately regulates the prohibition of an act that affects the election by using the position of the incumbent head of a local government, and Article 86 (2) of the Public Official Election Act separately regulates the prohibition of an act that affects the election.

3) In full view of these circumstances, it is reasonable to deem that the head of a local government is an administrative agency that represents the local government in principle when the budget is executed with the resolution of the local council, and it is not an act of making an individual contribution to the local government. However, in exceptional circumstances where the head of a local government is deemed to have an act of affecting the local government’s election campaign or election by utilizing budget items, such as reserve funds and special activity expenses, which are not subject to prior control by the local council, beyond the ordinary procedure, method, and contents, and in exceptional circumstances where the head of a local government is deemed to have an act of affecting the local government’s election campaign or election by utilizing the local government’s budget, such act may be interpreted as an act of making contributions by the head of a local government

(b) Fact of recognition;

According to the evidence duly adopted and examined by this court, the following facts can be acknowledged.

1) Since around August 18, 2014, S has been responsible for the president of the RCR branch of an incorporated association. Around August 18, 2017, S requested that the Defendant, the head of the relevant Gun, be sought to support the budget every year so that the RCR branch of the incorporated association (hereinafter referred to as “C military branch”) can implement the advanced field trips conducted for the president of the center for senior citizens, including the general affairs of the center for senior citizens, as well as the general affairs of the center for senior citizens.

2) The Defendant arranged the contents of S’s request and prepared and delivered the following domains (hereinafter “the domains of this case”).

No. : The date and time at which a request for extension of a workshop is made to strengthen the capacity of senior citizens' leaders: November 2017 (2 days): Seoul (R) number of persons: 20 current persons (120 persons No. 100).

3) On August 25, 2017, S sent the instant note to C-Gun Branch Secretariat T. On the part of C-Gun Branch Secretariat, T sent a letter of request for military subsidy to the senior leader's workshop (hereinafter referred to as "the workshop in this case") under the name of C-Gun Branch C-Gun Branch, as follows. Of the detailed event plan, S included a lecture and debate including 14:30 -15:20 on the daily schedule of the first class, 15:30 - 16:20 on the daily schedule, 15:30 - 16:30 - 16:20 on the daily schedule, and 16:30 - 17:20 on the daily schedule.

○ Date and time: from November 16, 2017 to January 2, 2017, the 17th place of lecture: 140 persons’ budget 20 million won.

4) At the time, U, who had been in office as the head of the residents’ living and the head of the elderly welfare division, received a public notice and made the public notice available to the head of the residents’ living division, the person in charge of the planning and audit office budget, the head

5) Meanwhile, at the time of the first revised supplementary budget compilation of C group C group, the event room cost compensation items (items No. 301-09) for the operation of the elderly welfare event among the elderly welfare promotion projects (items No. 301-09) was organized in the budget of the "work site for the strengthening of the ability of the elderly leader" and received the resolution of C group C group on August 3, 2017. On August 31, 2017, U prepared a plan for securing the budget of the senior leader's workshop with the contents of the "work for strengthening the ability of the senior leader" as the items of the "work for strengthening the ability of the senior leader", which included two million won in the previous budget, which was formulated in the "20 million won," and was approved by the head of the residents' life division, the head of the Gun, and the plan was reflected in the second revised supplementary budget bill and was resolved by the C group on September 22, 2017.

6) The workshop of this case was conducted as of December 14, 2018 to 15, and the number of participants was changed to 186 persons. C military branch requested C military forces to send a letter of application for travel expenses to the participants on November 29, 2017, and C military forces determined and paid payment of KRW 18 million for the total of KRW 18 million (1.80,000 per 1,000 won for each person) on December 5, 2017, and thereafter, 1.5 million for travel expenses for 15 persons who did not participate in the workshop of this case were returned on December 18, 2017 and returned on March 14, 2018.

C. In the instant case:

In full view of the following circumstances recognized based on the above facts and evidence, it is reasonable to deem the instant support act as an act of budget execution by a local government, not an individual, and the evidence submitted by the prosecutor alone is insufficient to recognize that there is a special reason to regard the above support act as an individual’s contribution act.

1) Article 4(1) of the Welfare of Older Persons Act provides that "the State and local governments are responsible for promoting the health and welfare of older persons and for formulating and promoting policies therefor." Article 5(1) of the R Support Act provides that "the State or local governments may fully or partially subsidize RR for expenses incurred in its organization and activities or provide support necessary for the performance of its duties with respect to R within budgetary limits." In addition, Article 4(3) of the CGun Welfare Promotion Ordinance enacted by the CGun Council provides that "the head of a Gun may provide subsidies to organizations, institutions, etc. that implement elderly universities and classes, senior citizens' culture and leisure programs." Considering the contents of the above relevant provisions in light of the general legal principles on the mitigation of statutory reservation of the administration of benefits, it is sufficient legal basis for CGun to provide support to the R-gun Branch of an organization as prescribed by the above Ordinance.

2) The instant workshop compilation was conducted through a review by the head of the elderly welfare division, the head of the residents’ living division, and the head of the Gun, and the final head of the Gun, thereby normally required administrative procedures to obtain approval from the head of the Gun. The instant budget compilation was made by a resolution without an official issue, and the transparency and fairness of the budget compilation was sufficiently secured.

3) The instant revised supplementary budget compilation and C group’s resolution related to the workshop were made on August 1, 2017 and around September 9, 2017, and this is difficult to recognize the relevance with the increased election at intervals of time from around nine months before the election day. As to this, it is insufficient to recognize the evidence presented by the prosecutor alone, although the Defendant, in advance, instructed the head of the elderly welfare division or the head of the residents’ living division to compile the budget of the instant workshop, or participated in the process of drafting the plan.

4) Although the Defendant was engaged in personnel affairs by boarding a vehicle prior to the start of the workshop, since the Defendant, including the Defendant, a number of Council members, Provincial Council members, and the former head of the Gun, etc., including the Defendant, attended the workshop at the same time and participated in the course of personnel affairs, such circumstance alone alone cannot be deemed that the participating party could be recognized as a contribution act by the Defendant’s individual.

5) In light of the case of support by other local governments for field trips programs, etc. similar to the characteristics of the workshop in this case, the budget for the workshop in this case does not seem to have been specially excessive or exceptional. Meanwhile, although U.S., a working person, prepared a plan for securing the workshop budget in this case on August 31, 2017, and selected the budget item as an event event expense compensation item (budget No. 301-09) (budget No. 301-09), it is difficult to view that the head of a local government knew of all such detailed budget items even if he/she recognizes defects in the selection of the above budget item, and solely on such circumstance, it cannot be readily concluded that the compilation of the budget is based on the local government’s budget merely on the form of performing his/her duties.

6) At the time of the initial request for the workshop budget of this case, the schedule of lectures and discussions was included, but the series of discussions was deleted as a result of the postponement of the workshop of this case, and only a part of the lecture was made. However, whether the plan was faithfully implemented at the time of the budget request and compilation is carried out under the responsibility of the C-Gun branch, and it is merely an ex post facto circumstance after the compilation of the budget. Therefore, as long as the evidence submitted by the prosecutor alone is insufficient to deem that the Defendant instructed the Defendant to omit the schedule of lectures and discussions from the beginning or he was aware of it, the act of compilation of the budget itself cannot be deemed as an act of donation by the Defendant under the Administrative Law, apart from the issue such as whether there was a reason for recovery of subsidies under the Administrative Law.

3. Conclusion

Thus, this part of the facts charged constitutes a case where there is no proof of crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of this part of the judgment is publicly announced under Article 58(2

The judge identity date of judge;

Judges Lee Sung-sung

Judges Park private-public;