In a case where Defendant (the head of a local government) was indicted for violating the Public Official Election Act with the same factual basis as committing an illegal election campaign at the National Assembly member general election at the same time, and was indicted for violating the Public Official Election Act for the same charges after the judgment dismissing prosecution became final and conclusive, in a case where Defendant (the head of a local government) was indicted for violating the Public Official Election Act for the same reason as committing an illegal election campaign at the National Assembly member general election by asking for support for the candidates for Party A and its National Assembly members at the National Assembly members general election by participating in the events organized by the relevant regional friendship group and speaking that Party A should be well-grounded, the case affirming the judgment of conviction in the case of violation of the Public Official Election Act, even in a case where the statute of limitations has not been suspended from the time of the previous prosecution to the time of final and conclusive judgment dismissing prosecution, and the Defendant did not immediately revoke the prosecution, and the prosecution was again instituted on the day when the judgment became final and conclusive, and the Defendant’s statement and statement constitute abuse of the right to prosecution for a specific candidate.

In a case where Defendant (the head of a local government) was indicted for violating the Public Official Election Act in violation of the same facts as committing an illegal election campaign at the time of prior election and at the same time, and again indicted for violation of the Public Official Election Act, on the grounds that the statute of limitations in the case of violation of the Public Official Election Act is suspended at the time of prosecution before the public prosecution pursuant to Article 253(1) of the Criminal Procedure Act, and the public prosecution for the suspension of the statute of limitations has become final and conclusive, on the grounds that it does not constitute a violation of the principle of an indictment only for the following reasons: (a) there is no legal ground to treat the public prosecution for the suspension of the statute of limitations as invalid; and (b) there is no reason to conclude that the prosecution by Defendant did not constitute an abuse of the right to institute a public prosecution for any other reason; and (c) it does not constitute a violation of the right to institute a new public prosecution for the reason that the Defendant did not immediately file a public prosecution for the aforementioned reason; and (d) it does not constitute an abuse of the right to institute a public prosecution.

Articles 60(1)4, 254(2), 255(1)2, and 268(1) of the Public Official Election Act; Articles 249, 253(1), 326 subparag. 3, and 327 subparag. 2 of the Criminal Procedure Act

Defendant

Defendant and Prosecutor

Kim Young-young et al.

Attorney Lee Jong-chul et al.

Jeonju District Court Decision 2016Gohap78 decided May 26, 2017

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts or misapprehension of legal principles

A) The completion of the statute of limitations and the abuse of power to prosecute

The instant public prosecution was instituted on December 15, 2016, which was six months from April 13, 2016, which was the 20th National Assembly member election day, and six months from December 13, 2016. The lower court determined that the statute of limitations had not been expired since the indictment was suspended due to the former District Court’s Seoul District Court’s 2016Rahap29 (hereinafter “transfer”) and the judgment dismissing the public prosecution was rendered on December 7, 2016 in violation of the principle of an indictment only, and that the statute of limitations has not been expired since December 15, 2016, which became final and conclusive. However, the previous public prosecution of the instant case constitutes a case where its illegality, such as violating the principle of trial priority and the principle of trial on evidence, which is to be achieved through the principle of an indictment only, and thus, Article 253(1) of the Criminal Procedure Act does not apply to this case. Therefore, the public prosecution of the instant case after the expiration of the statute of limitations prescribed in Article 268 of the Public Official Election Act.

In spite of the fact that the public prosecutor had sufficient opportunity to correct the significant illegal state of the previous public prosecution, he/she has not cancelled the public prosecution and again failed to institute a new public prosecution. In addition, the public prosecutor again instituted the public prosecution of this case, which constitutes abuse of the right of public prosecution infringing on the defendant's right to a prompt trial.

Nevertheless, the judgment of the court of original judgment which pronounced a conviction instead of the judgment of acquittal or dismissal of public prosecution is erroneous in the misapprehension of legal principles as to mistake of facts and abuse of public prosecution

B) Violation of the Public Official Election Act of March 13, 2016

(1) The assertion that there is no credibility in the statement of Nonindicted 1, etc.

The Defendant, while speaking as the ○○○ market in a bus, made a brief mentioning the situation and situation of the fixed state at the time, and made a statement to the effect that it is difficult for △△△△△△△△△△△△△△△△△△△△△△△△△, and did not state his opinion on support by disclosing and supporting Nonindicted 1, 3, 4, 5, and Nonindicted 6, which are evidence supporting the Defendant’s statement to the effect that △△△△△△△△△△△△△△△△△△△△△ in the bus. The Defendant’s statement in the bus, which is a evidence supporting the Defendant’s statement to the effect that it was supporting the bus, is not an objective fact, but is inconsistent with the statement of other participants present at the time,

(2) argument that the election campaign does not constitute an election campaign

In light of the fact that the defendant was at night 10 o'clocks and 10 o'clocks at the time of speaking, and that 38 persons among the whole participants were seated with the defendant, and 1/10 of 1/10 of 1/10 of o's number of the total participants, the defendant made a speech as a member of the ○○ market and the mountain conference that the defendant directly supported Non-Indicted 2, and the defendant did not make a statement that he would directly support Non-Indicted 2. The Dolsan conference is not an urgent organization for the purpose of enabling Non-Indicted 2 to be elected as a member of the National Assembly, but it is nothing more than an organization for the purpose of enabling Non-Indicted 2 to be elected as a member of the National Assembly. In light of the fact that there is no reason for the defendant to support Non-Indicted 2 at the event of the mountain conference or to oppose Non-Indicted 7 who is another candidate, it cannot be objectively recognized that the defendant was a specific candidate or election campaign for a specific candidate or election campaign.

C) Violation of the Public Official Election Act of March 14, 2016

(1) The assertion that the recording file is illegally collected evidence

The lower court: (a) the recording file contained in the CD (No. 33) adopted as evidence supporting this part of the facts charged (hereinafter “the recording file of this case”) was collected based on the recording file that the police submitted from male on March 16, 2016 (hereinafter “the first recording file”) and the recording file that was submitted from male on his/her name unrecognized male on March 24, 2016 (hereinafter “the second recording file”); (b) the recording file was a male person; (c) Nonindicted 8, the first recording file submitted to the police, etc. on April 15, 2016; and (d) Nonindicted 1 and the second recording file was collected based on the recording file that was collected by the police, and thus, it cannot be admissible as evidence of this case, in light of the fact that the recording file was inadmissible as evidence collected by the police, and thus, the first recording file was not admissible as evidence of this case.

The court below determined that the causal link between the collection of the recording file of this case and the procedural illegality of the collection of the recording file of this case even if the collection of the recording file of this case was illegally collected, but the causal link between the collection of the recording file of this case was dilution or cut off; ① the investigative agency obtained the recording file of this case from the first and the second recording file of this case; ② the investigative agency conducted two investigations on the witness of this case with the non-indicted 8 in order to correct its illegality; ② the investigation agency submitted the cell phone of this case from the non-indicted 8 who refused to submit the cell phone to the non-indicted 8 in order to correct its illegality; and ③ the investigation procedure still proceeds illegally without correcting the existing errors; ③ the act or data of other third party than the first and second recording file of this case does not exist; ④ If the investigation method is recognized as legitimate, the court below did not err by misapprehending the legal principles on exclusion from collection of the recording file of this case as a whole, or by misunderstanding the legal principles on exclusion from collection of evidence of this case.

(2) argument that the election campaign does not constitute an election campaign

In light of the fact that the Defendant only expressed his opinion on the current domestic political situation at the time, and there is no explicit statement in supporting Nonindicted 2, and that the △△△△△△△△△ Group at the time at issue “the meeting of this case” (hereinafter “the meeting of this case”) is a meeting consisting of the young party members in the ○○ area, and the Defendant was aware of the young party members at the time at the time, and Nonindicted 2 candidates were attending the above place and did not know of the fact that he participated in the personnel affairs, the Defendant did not have any act for the specific candidate or the specific political party’s election, or for the election or the defeat of the specific political party. The Defendant’s speech or behavior does not have any active and planned act that is necessary for and favorable to the election or defeat of the specific candidate and the specific political party, and rather, it cannot be deemed an election campaign for a specific candidate merely because it is a courtesy personnel for the meeting or event of this case or a speech of the legitimacy.

2) Unreasonable sentencing

The punishment of the court below (2 million won of fine) is too unreasonable.

(b) Prosecutors;

The sentence of the court below is too unhued and unfair.

2. Judgment on the mistake of facts or misapprehension of legal principles by the defendant

A. Determination as to the completion of the statute of limitations and abuse of the power to prosecute

1) The judgment of the court below

According to the evidence and records duly adopted and examined by the court below, the 20th general election was implemented on April 13, 2016, and the defendant was prosecuted on June 17, 2016 on the same facts as the facts charged in the instant case (hereinafter referred to as “former public prosecution”). The court rendered a judgment dismissing the prosecution in accordance with Article 327 subparag. 2 of the Criminal Procedure Act on the ground that the public prosecution of the case before December 7, 2016 violates the principle of an indictment only and the procedure for indictment is invalid due to the violation of the provisions of law. The above judgment becomes final and conclusive on December 15, 2016, and the prosecutor brought the public prosecution of this case on December 15, 2016.

However, Article 268(1) of the Public Official Election Act provides that the statute of limitations for the crime under this Act shall expire six months after the relevant election day. This is only applicable to the special provision on the "period of the statute of limitations" under Article 249 of the Criminal Procedure Act, and unlike the special provision on the "Suspension of the statute of limitations" under the Public Official Election Act. Thus, Article 253(1) of the Criminal Procedure Act provides that the suspension of the statute of limitations shall apply to the general provision. Article 253(1) of the Criminal Procedure Act provides that the statute of limitations shall cease to run on the institution of a public prosecution and shall run from the time a judgment dismissing a public prosecution or a judgment dismissing a violation of the rule on the principle of an indictment only does not provide any exception for the grounds for the rejection of a public prosecution. Accordingly, even if a public prosecution has been rejected on the grounds that the indictment procedure of the previous case violates the provisions on the principle of an indictment only becomes invalid, it is reasonable to deem the statute of limitations to run from June 17, 2016.

In a case where it is deemed that a prosecutor voluntarily exercised his/her right to institute a public prosecution and gives substantial disadvantage to the defendant, the effect of the institution of public prosecution can be denied as it is deemed abuse of the right to institute a public prosecution. Here, arbitrary exercise of the right to institute a public prosecution is not sufficient simply by negligence in the course of performing his/her duties and at least by negligence (see Supreme Court Decision 9Do577, Dec. 10, 199, etc.).

Meanwhile, a judgment dismissing public prosecution is a formal judgment that acknowledges a public prosecution as unlawful on the grounds of procedural defect and terminates a lawsuit without an substantive judgment, and thus, the judgment dismissing public prosecution becomes final and conclusive on the grounds that res judicata effect applies to the judgment dismissing public prosecution, and thus it is possible for a prosecutor to institute a new prosecution by supplementing the defective conditions or defects even after the judgment dismissing public prosecution becomes final and conclusive, and where a judgment dismissing public prosecution becomes final and conclusive on the grounds that the entries in the facts charged are contrary to the principle of an indictment only, the prosecution again instituted after having violated the principle of an indictment only (see Supreme Court Decision 2010Do18090, Apr. 28, 201).

In light of the above legal principles, when the public prosecutor was sentenced to the dismissal ruling on the previous public prosecution, it is difficult to view that the prosecutor considerably deviatess from the discretion of prosecution or has any intention to do so by arbitrarily exercising the authority of prosecution, even if the public prosecutor instituted the public prosecution in this case, and thus, it is difficult to view that the prosecutor has any intention to do so.

2) The judgment of this Court

In light of the above circumstances, the court below's determination on this part is just and it does not constitute abuse of the right of prosecution, and there is no error of law that affected the conclusion of the judgment by misunderstanding facts or misunderstanding legal principles as alleged by the defendant, which affected the conclusion of the judgment, on the ground that there is no legal ground to treat the indictment as invalid due to the violation of the principle of an indictment only, unlike the case where the indictment is invalid due to other reasons, and the defendant's immediate dismissal of prosecution as to the previous indictment does not revoke the prosecution immediately after the judgment was issued and the judgment became final and conclusive.

B. Determination as to the violation of the Public Official Election Act of March 13, 2016

1) Part of the assertion that the statement by Nonindicted Party 1, etc. is not reliable

(A) The part concerning the statement by Nonindicted Party 1

The Defendant and Nonindicted Party 1, who was accompanied by the bus boarding by Nonindicted Party 2 (hereinafter “instant bus”), made a statement at the prosecution, the first instance court, and this court as follows. Nonindicted Party 1’s statement is generally consistent and detailed, and the Defendant directly made in the instant bus (the “△△△△△△△△△△ Party is difficult.” There are many retired persons from the bus. They will not leave the bus. They will not change the same person who left the △△△△△△ Party. They will not leave the bus.” (The “△△△△△△△ Party support the △△△△△△△△△△△ Party and support Nonindicted Party 2 candidates). In addition, the part of the Defendant’s statement on Nonindicted Party 1’s intention (the △△△△△△ Party and Nonindicted Party 2 candidate support the △△△△△ Party and Nonindicted Party 2 candidate) is persuasive as it was based on the circumstances in which the Defendant made the statement first and last, the circumstances of Nonindicted Party 2’s remarks and the details of Nonindicted Party 2’s statement, election campaign, etc.

본문내 포함된 표 ◎ 검찰 진술 “피고인이 ‘지금 △△△△△당이 어렵다. 탈당한 사람들이 많다. 정치를 하면서 탈당을 하면 안 된다. △△△△△당을 탈당한 사람들같이 변절하면 안 된다’라고 말하였다. 당시 공소외 7 의원이 △△△△△당을 탈당했는데, 이를 겨냥해서 말하는 것 같았다.” “결국 피고인이 △△△△△당을 지지해달라고 한 것이 아닌가요?”라는 물음에 “피고인이 직접적으로 △△△△△당을 지지해달라고는 하지 않았으나, 연결시켜 생각해보면 △△△△△당을 지지해달라는 말이기는 하지요. 그래서 제가 속으로 ‘아따 저 양반이 교묘하게 말하네’라고 생각했다.”라고 답변하였다. “확실히 기억하는데, 피고인이 공소외 2 후보를 지지하는 발언은 하지 않았다. 대놓고 공소외 2 후보를 지지하는 발언을 하지는 않았지만, 듣는 사람의 입장에서는 같은 당원인 피고인이 공소외 2 후보를 지지하는 것처럼 보일 여지가 많았을 것이다.” “피고인이 발언한 다음 공소외 2가 그 뒤를 이어서 선거운동복을 입은 채로 발언을 한 것인가요?”라는 물음에 “네, 공소외 2가 ‘제가 ○○시민을 위해서 한 번 열심히 일해보고 싶다, 도와주시면 좋겠다’고 진술하였다.”라고 답하였다. “피고인이 이번 국회의원 선거에서 △△△△△당을 찍어달라고 말하지는 않았지만 △△△△△당을 지지해달라고 홍보한 것은 맞다. 그러고 나서 공소외 2 후보가 ‘지역 사회를 위해 일할 기회를 달라, 도와달라’고 말한 것도 맞다.” ◎ 이전 사건의 제1심법정 진술 “피고인이 버스 안에서 ‘△△△△△당이 어렵다. 탈당한 사람들이 많다’라고 발언했나요?”라는 물음에 “예.”라고 답하였고, “피고인이 ‘정치를 하면서 탈당을 하면 안 된다’는 말도 했었나요?”라는 물음에 “예.”라고 답하였다. “피고인의 발언이 끝난 다음에 뒤이어서 공소외 2 후보가 발언했고, 공소외 2는 ○○을 위해 한 번 일해보고 싶다고 말했다.” “피고인이 특별히 공소외 2나 △△△△△당을 직접적으로 지지해달라는 발언을 하지 않았다.” “피고인의 발언을 듣고 나서 피고인이 공소외 2를 지지한다 생각을 했다.” ◎ 이 법정에서의 진술 “피고인은 ‘△△△△△당이 정통 야당인데, 같이 뭉쳐 있으면 좋을 텐데, 쉽게 말해서 탈당하니까 그 점에 대해서 아쉽다’고 말했다.” “증인은 검찰과 제1심법정에서 ‘피고인이 △△△△△당이 어렵다. 탈당한 사람이 많다. 탈당을 하면 안 된다. △△△△△당을 탈당한 사람들같이 변절하면 안 된다’라고 말했다고 진술했는데, 위 진술은 모두 사실인가요?”라는 물음에 “예, 그렇습니다.”라고 답하였다.

(B) The part concerning the statement by Nonindicted 3

In the prosecution, Nonindicted 3, who was boarding the bus of this case, stated that “The Defendant did not speak that Nonindicted 2 was supported by Nonindicted 2, and that Nonindicted 2 took the words of △△△△△△△△△△△△,” but the Defendant was the secretary of △△△△△△ in the presidential process of “in the process of introducing Nonindicted 2 candidates,” and that he did not have any one-day ceremony at that time, he was formed by the △△△△△△△△△△△△△△△△△△△△, and the Defendant followed the Defendant, and Nonindicted 3 tolded.”

As to the part of the statement made by Nonindicted 3 to the effect that “the Defendant introduced Nonindicted 2 candidates,” at the prosecution, Nonindicted 9, who was responsible for managing passengers aboard the bus of this case, asserts that it is difficult to believe Nonindicted 3’s above statement because Nonindicted 9, who was not the Defendant, introduced Nonindicted 2, and Nonindicted 9, introduced Nonindicted 2.

In the previous first instance court and this court, Non-Indicted 3 consistently stated, “The defendant did not speak that he supported Non-Indicted 2 and the △△△△△△△△△△ is not memory.” On the other hand, as to the part of the prosecutor’s statement to the effect that “the defendant introduced Non-Indicted 2,” Non-Indicted 3 stated in the previous first instance court court and this court as follows.

본문내 포함된 표 ◎ 이전 사건 제1심법정에서의 진술 “‘피고인은 공소외 2가 ☆☆비서관을 한지도 몰랐다고 말한 것 같다. 이번에서야 알았다고 말한 것 같다. 피고인이 지금은 한배를 탔다는 말을 했다’고 검찰에서 진술했는데 그 내용이 맞다.” “피고인이 공소외 2를 버스 안에 있는 사람들에게 소개시켜 주었나요?”라는 물음에 “그런 사실 없죠. 혼자 말씀하면서 그런 말씀을 한 것이지 마이크를 주면서 공소외 2를 소개시킨 적은 없죠.”라고 답하였다. ◎ 이 법정에서의 진술 “‘피고인이 공소외 2 후보를 소개하면서 김대중 대통령 때 ☆☆비서관을 했고 그때는 일면식이 없었는데 △△△△△당이 만들어지면서 지금은 한배를 탔다고 말하였다’는 검찰 조서 부분에 대해 그렇게 진술한 적이 있는가요?”라는 물음에 “검찰조서에 그렇게 되어 있으면, 그때 당시 기억에는 아마 맞을 것 같다. 피고인이 말한 후 마이크를 놓으니까 공소외 2가 마이크를 집으면서 자연스럽게 이루어졌기 때문에 소개한 것으로 인식을 해서 검사에게 그렇게 진술했다. 피고인이 마이크를 들고서 다음에 공소외 2 후보자 말씀하라고 얘기하거나 소개한 적은 없었다. 대놓고 공소외 2 후보자라고 말하지는 않았다.”

In light of the above statements made by Nonindicted 3, the meaning of the part that “the Defendant introduced Nonindicted 2” made by Nonindicted 3 to the prosecution is that the Defendant was informed the bus winners of the fact that he was the career of Nonindicted 2 and the candidate of △△△△△△△△△△ Party, and it does not appear to the purport that the Defendant directly asked Nonindicted 2 to the bus passengers or after completing Nonindicted 2’s remarks, and that the Defendant introduced the passenger to the passenger by transferring the microphones to Nonindicted 2. Therefore, this part of the statement made by Nonindicted 3 is not inconsistent with the statements made by Nonindicted 9. In addition, the statement made by Nonindicted 3 is clearly distinguishable from the statement made by the Defendant himself, and its contents are consistent. Therefore, the part of the above prosecutor’s statement made by Nonindicted 3 is reliable.

(C) The part concerning Nonindicted 4’s statement

In the prosecution, Nonindicted 4, who was boarding the bus of this case, made a statement to the effect that “The Defendant made it difficult for the Defendant to take the front of the election and resign from the △△△△△△ Party.” On the other hand, Nonindicted 4 made a statement to the effect that “the Defendant did not make all the related stories related to Nonindicted 2,” and that “the Defendant was unable to hear the statement to the effect that he would not take any political action.” In addition, Nonindicted 4 made another statement to the effect that Nonindicted 2’s location and attitude at the time when the Defendant made the statement, Nonindicted 2’s statement to the effect that he support the bus, Nonindicted 2’s response after the Defendant’s statement, Nonindicted 4 actively made a statement to the effect that “The Defendant did not have any other part of Nonindicted 2’s statement to the effect that he was supported by the Defendant,” and that he did not have any other part of Nonindicted 2’s statement to the effect that “the Defendant was supported by △△△△△△ Party.”

However, with respect to the statement written in the prosecutorial statement, Nonindicted 4 made a statement to the effect that “The Defendant made it difficult for the Defendant to take up the election and resign from the △△△△△△△△△△△△△△△△△△△△△△△△△△”, Nonindicted 4 made a statement to the effect that “Although the Defendant made it difficult for the Defendant to take up the election inside the bus and resign from the election of the △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, it did not call that the Defendant would help the △△△△△△△△△△△△△△△△△△△△△△△△△△△△

본문내 포함된 표 ◎ 이전 사건 제1심법정에서의 진술 “검찰 진술조서에 ‘피고인이 △△△△△당을 도와달라. 열심히 해보겠다’고 발언한 것으로 기재된 것은 검사가 ‘피고인이 이런 말을 하지 않았느냐’고 자꾸 물어서 대답만 한 것이라고 진술하였으나, 실제로는 피고인이 △△△△△당을 도와달라고 말하지는 않았다. ‘▽▽▽당과 갈라져서 안타깝다’는 말만 했다.” “피고인이 ‘선거를 앞두고 △△△△△당을 탈당한 사람들이 많아서 당이 어렵다. △△△△△당을 도와달라’고 말한 것을 기억하나요?”라는 물음에 “도와달라고는 안했다. 피고인이 공소외 2 후보의 지지를 부탁하거나 언급한 사실은 없다.” ◎ 이 법정에서의 진술 “검찰에서 조사받을 때 검사가 ‘피고인이 선거를 앞두고 △△△△△당을 탈당한 사람들이 많아서 당이 어렵다. △△△△△당을 도와달라. 열심히 해보겠다고 말하지 않았느냐’고 하기에 엉겁결에 대답만 하였다. 하지만 피고인이 △△△△△당을 도와달라는 말은 하지 않았다. 피고인이 버스 안에서 △△△△△당을 지지해달라거나 △△△△△당의 후보를 지지해달라는 말을 한 적은 없다.”

However, in light of the fact that Nonindicted 4 recognized the authenticity of the entire prosecutor’s statement statement in the previous first instance court, and Nonindicted 4 made a statement in the prosecutor’s office by clearly distinguishing the Defendant’s direct statement and the part that the Defendant did not hear from the prosecutor’s office, and confirmed the part that the Defendant told that △△△△△△△△△△ Party was attempted, it is difficult to easily understand the changed contents of the statement, and the Defendant made a statement in the prosecutor’s office to the effect that △△△△△△△△△△ Party was supported by the bus.” The other parts of the statement are consistent with the prosecutor’s office and the previous first instance court and the previous court, and thus, the statement in Nonindicted 4’s prosecutor’s office may be reliable.

(D) The part concerning Nonindicted 5’s statement

In the prosecution, Nonindicted 5, who was boarding the bus of this case, stated that “Nonindicted 5, who was in the front of the election of this case and in the △△△△△△△ branch, resigned from the office and left the office, is difficult to support the △△△△△△ branch in the future.” In addition, Nonindicted 5 stated that “Nonindicted 2 participated in the Jeju-do tour with the election campaign uniform, and the Defendant, who is the ○○ market, was attending the event, and made a speech to support the △△△△ branch?” as “I do not know what Nonindicted 2 was the highest director of the ○○ City, the head of the △△△△△△△△ branch, and that Nonindicted 2, who was in the place of the election campaign, was the Defendant’s statement that “I would not know about the △△△ branch,” and the purpose of Nonindicted 5’s statement that “I would like to have been able to accept the Defendant’s statement that Nonindicted 2, who was the Defendant’s candidate for the election campaign.”

However, with respect to the prosecutor’s statement, Non-Indicted 5 did not state in the part of the prosecutor’s statement that “the people who had been in the party △△△△△△△△△ branch have left the election and left the election, and have to actively support △△△△△△△△△△” in the previous first instance trial court and in this court, “The Defendant was at a place where it is difficult for him to become the wind that he left the election and left the election and left the election of △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△ branch.” The statement was changed to the purport that “The investigator should actively support △△△△△△△△△△△△△△△△△ branch.”

However, in the previous court of first instance, Nonindicted 5 recognized the authenticity of the prosecutor’s statement in the previous court of first instance, and signed and sealed the seal on the statement, “I will not have any entry or any error different from the fact,” and the defense counsel asked “I will be able to read the protocol and seal it?” The contents of the changed statement are likely to easily understand the changed statement, and the Defendant made a statement to the effect that I support △△△△△△△△△△△ branch in the bus,” and the part of Nonindicted 5’s statement in the prosecutor’s office appears to be reasonable reasoning. As such, Nonindicted 5’s statement appears to be reliable.

(E) The part concerning Nonindicted 6’s statement

While Nonindicted 6, who was on board the bus of this case, made a statement at the prosecutor’s office to the effect that “Nonindicted 6 made it clear that the Defendant would support △△△△△△△△ Party. The end of support is clearly memoryed in the machine, and that he supported △△△△△△△△ Party while making the statement that he was retired from the office, the Defendant argued that such a statement made by Nonindicted 6 is clearly contradictory to Nonindicted 9’s legal statement (such as Nonindicted 6, who was another participant in the bus at the time when the said statement was made by Nonindicted 6, that he would be against Nonindicted 7). However, Nonindicted 6 said statement made the statement that the Defendant would support △△△△△△△△△△△ Party, and thus, it does not conflict with the above statement by Nonindicted 9. In addition, the above statement is consistent with Nonindicted 4 and Nonindicted 5’s prosecutor’s statement as well as the above statement made by Nonindicted 6.

(f) Sub-decisions

Therefore, the judgment of the court below based on the statement of non-indicted 1 et al. cannot be deemed to have erred in mistake of facts, and this part of the defendant's assertion

2) Part of the assertion that the election campaign does not constitute an election campaign

The Defendant also asserted the same purport as the grounds for appeal in the lower judgment. The lower court, on March 13, 2016, concluded that the Defendant and Nonindicted 2 made a statement to the effect that the Defendant was able to support △△△△△△△△△△△△△△△△ in the instant bus, which was returned to ○○○ City, after having finished the Jeju-do mountainous conference event on March 13, 2016, and that Nonindicted 2 made the Defendant first made a statement within the instant bus, and Nonindicted 2 made a statement at the time of election campaign uniform, and that Nonindicted 2 was able to have been able to support △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, which was a candidate boarding the instant bus, and that Nonindicted 1, Nonindicted 6, Nonindicted 4, Nonindicted 5, and Nonindicted 3 did not directly made a specific statement to the effect that he was able to support △△△△△△△△△△△△△.

The court below's aforementioned determination is just in light of the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, where the act of supporting or opposing a specific political party or candidate mentioned directly or indirectly in favor of and opposing a specific policy is recognized as the purpose of supporting or opposing a specific political party or promoting the success or defeat of a specific candidate (see Supreme Court Decision 2011Do9243, Oct. 27, 201).

① On March 12, 2016, the Defendant sent 320 people attending the △△△△△△△△△△△△△△△△△△△△, which started from ○○○○○, along with Nonindicted Party 2, at the ○○○○○○, on March 12, 2016, and arrived at Jeju-do at around 5 p.m., on March 13, 2016, the Defendant made a statement against the participants of the event who were in charge of occupation-typeing at the Jeju-do restaurant. At the time Nonindicted Party 2 called Nonindicted Party 2, at the time of election campaign, the Defendant and Nonindicted Party 2 called Nonindicted Party 2 to support themselves. On March 13, 2016, the Defendant and Nonindicted Party 2 returned to their respective guest rooms, and participated in the event participants. The Defendant took charge of Nonindicted Party 2’s election campaign.

② In the instant bus, not only the members of the △△△△△△△△△ Group but also the non-member and persons who are not members of the non-member of the non-member of the △△△△△△△△△ Group, the Defendant was fully able to support the non-party 2 who are candidates for the △△△

③ The Defendant’s act of supporting △△△△△△△△△ Party to the persons attending the instant meeting appears to be aimed at not only at the election of candidates belonging to a specific political party but also at obtaining votes from a specific political party in the 20th general election.

C. Determination as to the violation of the Public Official Election Act of March 14, 2016

1) Part on the assertion that the recording file is illegally collected evidence

(A) Whether the evidence of the first and second recording files is illegally collected

원심이 적법하게 채택하여 조사한 증거들에 의하면, 공소외 8은 2016. 3. 14. ◁◁◁◁◁ 식당에서 피고인의 발언을 자신의 휴대폰 녹음기능을 통해 녹음한 사실, 공소외 8은 자신이 피고인의 발언을 녹음하였다는 것을 알고 찾아온 성명불상자에게 위 녹음을 들려준 사실, 한편 공소외 8의 휴대폰에 녹음된 녹음파일을 자신의 휴대폰에 저장하여 보관하고 있던 성명불상자는 그 녹음파일을 재생한 상태에서 ○○경찰서 첩보수집 담당경찰관의 휴대폰의 녹음기능을 활성화시켜 자신의 휴대폰 위에 올려놓은 상태로 녹음하게 한 사실, 첩보수집 담당경찰관은 2016. 3. 16. ○○경찰서 지능팀장 공소외 10에게 위와 같이 수집한 녹음파일(‘1차 녹음파일’)을 건네준 사실, 2016. 3. 23. ▷▷▷ 방송국에서 1차 녹음파일과 일부 다른 내용의 녹음파일이 방송되자, 첩보수집 담당경찰관은 2016. 3. 24.경 성명불상자로부터 다시 녹음파일(‘2차 녹음파일’)을 제공받아 공소외 10에게 건네준 사실이 인정된다.

On the other hand, as to whether Non-Indicted 8 made a reproduction of a recording file stored in his/her cell phone to a person in the name disorder, he/she made a statement in the court of first instance of the previous case, that “I would like to make it difficult to suppress the police in question” to question “I would like to make it difficult to keep him/her in mind,” and on the other hand, he/she made a statement in the question “I would like to get out of it, I would like to get out of it, I would like to get out of it?” and “I would like to get out of it? I would like to get out of it before submitting a mobile phone? I would like to answer that “I would like to get out of it?” and “I would like to give him/her a mobile phone before submitting it to a police officer?”

In full view of the above recognized facts and the statements made by Nonindicted 8, it is not clear whether the unsatisfyer of the original sound recording file stored in Nonindicted 8’s mobile phone with the consent of Nonindicted 8 was made by reproducing the original sound recording file that was stored in Nonindicted 8’s mobile phone.

(B) Whether the recording file of this case was illegally collected

In full view of the following circumstances acknowledged by the evidence duly admitted and examined by the lower court, even if the recording file was collected without Nonindicted 8’s consent, it can be recognized that the causal link between the absence of consent and the collection of the recording file of this case was dissolved or cut off due to the involvement of the recordinger in the absence of consent and the absence of consent of the recordinger in the collection of the first and second recording file and the middle of the collection of the original recording file of this case, even if the recordinger voluntarily submitted while consenting to the reproduction of the original recording file. Accordingly, the Defendant’s assertion on this part cannot be accepted.

① The act of a person in distress who obtained the primary and secondary recording files without Nonindicted 8’s consent is deemed to have occurred in the process of hearing the original recording file by Nonindicted 8 by notifying Nonindicted 8 of the fact that Nonindicted 8’s remarks were recorded by the Defendant to the person in distress. As such, the degree of infringement of Nonindicted 8’s privacy or the intention of freedom is not excessive.

② 공소외 8은 2016. 4. 14. 20:35경 경찰관 공소외 10으로부터 참고인 조사를 받으면서 원본 녹음파일을 삭제하였다고 진술하였고, 같은 날 23:31경 다시 참고인 조사를 받으면서 휴대폰을 임의로 제출하기 어렵다고 말하면서 그 제출을 거부하였고, 공소외 10이 사본만이라도 제출해달라고 하자 공소외 10의 휴대폰에 블루투스 기능을 이용하여 녹음파일을 전송하는 것에 동의하였다. 공소외 8은 다음 날인 2016. 4. 15. 20:58경 ○○시 ♤♤지구대 앞에서 공소외 10에게 휴대폰을 임의제출하면서 원본 녹음파일에 대한 복제를 동의하였고, 공소외 10은 압수조서를 작성한 다음 원본 녹음파일을 CD에 복제하여 이 사건 녹음파일을 취득하였다. 피고인 및 변호인은 원심법정에서 공소외 8의 휴대폰에 저장되어 있던 원본 녹음파일과 증거목록 33번 CD에 복제된 이 사건 녹음파일의 동일성을 인정하였다.

③ The police officer Nonindicted 10 appears to have not committed any unlawful coercion, such as intimidation, coercion, etc., while voluntarily receiving a witness investigation process or a cell phone, and there is no evidence to acknowledge that the investigative agency used the forced method in a superior position. Rather, Nonindicted 8, who expressed his intention that Nonindicted 8 does not want to voluntarily submit a mobile phone, was aware that he did not seize a recording file and completed the investigation by examining the witness.

④ Collection of the instant recording file was conducted one month after the date of collection of the first recording file.

2) Part of the assertion that the election campaign does not constitute an election campaign

The Defendant also asserted the same purport as this part of the appeal by the lower court. In light of the fact that △△△△△△△△△△△△△△’s remarks were made at the instant △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△ Nonindicted Party 7 with the right to vote, and Nonindicted Party 11 affiliated with △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△ Nonindicted Party 2’s remarks at the instant △△△△△△△△△△△△△△△△△△△△ Nonindicted Party 2’s election, the Defendant’s remaining before and after the instant △△△△△ Nonindicted Party 2’s election, and the Defendant’s remaining at the same time, it would be difficult to see our candidate 2.

In light of the circumstances revealed by the court below, such as the circumstances acknowledged by the evidence duly adopted and examined by the court below, i.e., the Defendant’s remarks in the instant restaurant at the time, among the participants, there were a large number of members, not only the members of the instant meeting, but also members, and the Defendant’s support for △△△△△△△△△△ Party to the persons attending the instant meeting can be seen as not only the election of the candidates belonging to a specific political party but also the election of the candidates belonging to a specific political party at the 20th general election of National Assembly members, and also the election for the election of Nonindicted Party 2, who are the candidates belonging to △△△△△△△△△△△△△△△△△△△△△△△△△△△△△

3. Determination on the assertion of unreasonable sentencing by the defendant and prosecutor

Under today's representative democracy, elections play a key role in realizing the principle of national sovereignty by granting the democratic legitimacy to the representatives elected, so the request for fairness in elections is very important and inevitable. In order to ensure the fairness of such elections, Article 9 of the Public Official Election Act provides that public officials and other persons required to maintain political neutrality shall not exercise unfair influence on elections or perform other acts that affect the result of elections, and Article 60 (1) of the Public Official Election Act provides that those prohibited from election campaigns, such as public officials, are restricted. This is to thoroughly prevent the entry of public officials in the process of free and open decision-making by voters.

The Defendant is a local public official elected in the ○○ City, who is the head of a local government, and is unable to carry out an election campaign under Article 60(1)4 of the Public Official Election Act. The head of a local government is responsible for day-to-day contact with local residents while representing the relevant local government and supervising its affairs. On the other hand, the head of a local government is in a position to direct and supervise public officials under his/her direct or indirect relationship with the electorate. If a public official is engaged in an election campaign in favor of or disadvantageous to a specific political party or a specific candidate by using such status or authority, function and influence of duties and influence, the fairness and equity in the election should be seriously undermined. Therefore, even if the Defendant is a political party, even if he/she has the freedom to engage in political activities, the obligation to build up the election to be borne by the head of a local government is more emphasized and priority. While the fairness of the election to be obtained due to the election of the head of a local government is very significant and important,

Nevertheless, the Defendant, who is a current ○○ City, did not simply express his opinion on the current situation and situation of a fixed country in a private position at the △△△△△ meeting where many people other than the affiliated △△△△△△△ parties participate, but rather, actively carried out an election campaign with the intention of obtaining votes from △△△△△△△△△△△△△△△△△ Party and the election of candidates belonging thereto in the status of the ○○○ City. As such, the Defendant violated the duty of neutrality as provided in the Public Official Election Act, thereby impairing the fairness of the election by making an election campaign for the election of

In addition, the Defendant and Nonindicted 2 on board the Jeju △△△△△△△△△ Group after the event of the Dorasan mountain conference at the Dorasan mountain conference, and returned to the guest rooms of each of the following persons, while personnelizing the participants of the event, and made a statement in support of the △△△△△△△△△△△△△△. During the total period of the National Assembly members’ election, the Defendant acknowledged that he and Nonindicted 2 made a statement supporting the △△△△△△△△△△△△△△△△△△△. The instant crime, which appears in the extension of the above act, is deemed to have been committed by incidental means to the opportunity.

In particular, even though the Defendant had been sentenced to a fine of KRW 80,000,00 in cash due to the violation of the Public Official Election Act that provided two persons with meals for the purpose of requesting the support of the Defendant in connection with the election of ○○○ Market in 2010, the possibility of criticism is not small in that it again leads to the crime of violating the Public Official Election Act. Therefore, it is inevitable to punish the Defendant corresponding to his responsibility.

However, considering the Defendant’s age, character and behavior, environment, family relationship, motive and background of the crime, means and consequence of the crime, circumstances after the crime, etc., as well as various sentencing conditions indicated in the record and pleadings, it is not recognized that the sentence imposed by the lower court is too heavy or unreasonable. Accordingly, the Defendant’s and the prosecutor’s assertion of unfair sentencing are without merit. The grounds for unfair sentencing are without merit.

4. Conclusion

Therefore, the appeal filed by the defendant and the prosecutor is without merit. Thus, each appeal filed by the defendant and the prosecutor is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Yellow Jin-gu (Presiding Judge)