2016No2409 Violation of the Public Official Election Act

1. A;

2. B

Defendants

Lee Jong-sik (Court) (Court of Justice) (Court of Justice)

C. Law Firm

Attorney D, L, M, N, andO (for the defendant)

P Law Firm

Attorney Q, R and S (for the defendant)

Incheon District Court Decision 2016Gohap357 Decided July 22, 2016

December 7, 2016

The judgment of the court below is reversed.

Defendant A shall be punished by a fine of KRW 800,00, and Defendant B shall be punished by a fine of KRW 700,000. In the event that the Defendants did not pay each of the above fines, the Defendants shall be confined in the workhouse for the period calculated by converting each of the above fines of KRW 100,000 by one

An order to pay an amount equivalent to each of the above fines shall be issued.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misunderstanding of legal principles 1) The outside of the front entrance of the subway J Station does not constitute “the premises of the subway station” where distribution of name cards is prohibited under Article 60-3 of the Public Official Election Act. Therefore, Defendant A, who is a spouse of a person who was a preliminary candidate at the time, is entitled to distribute name cards for the preliminary candidate at the outside of the front entrance of the J Station of the said subway station, constitutes an election campaign permitted under the Public Official Election Act. Nevertheless, the lower court erred by misapprehending the legal doctrine on the premise that the outside of the front entrance of the said subway J Station constitutes “the premises of the subway station” under the said Public Official Election Act, on the premise that Defendant A’s direct distribution of name cards from the outside of the front entrance of the subway J Station of the said subway station constitutes a violation of the Public Official Election Act.

B. Unreasonable sentencing

The punishment sentenced by the court below to the defendants (the fine of 1.2 million won, the fine of 1.1 million won, the fine of 1.1 million won) is too unreasonable.

2. Determination

A. The summary of the facts charged is that Defendant A was a preliminary candidate for the 20th National Assembly member E-election and was the spouse of G elected, and Defendant B was not a designated person to distribute name cards to the F Party H female president or preliminary candidate or his spouse.

Each person designated from among the spouse of a preliminary candidate and persons accompanying him/her, may directly use name cards of a preliminary candidate or appeal for support from a preliminary candidate, but shall not engage in such conduct in inside ships, regular passenger trains, electric trains, aircraft, the terminal premises thereof (including subway stations), and the theater of a hospital religious facility in the hospital.

Nevertheless, from around 06:44 to 07:10 on March 21, 2016, the Defendants filed for the support of G preliminary candidates with many unspecified voters, and divided approximately 131 name cards (9cm x 5cm) containing the political party to which G preliminary candidates belong, name, photograph, personal history, etc., and distributed printed matters in collusion with the Defendants in order to influence the election, instead of the provisions of the Public Official Election Act.

B. The judgment of the court below

1) Defendants’ assertion at the lower court

The Defendants asserted the same purport as the grounds for appeal in the lower court.

2) In light of the records in this part of the judgment of the court below, in light of the following facts: (a) the CCTV screen (50 to 58 pages of the evidence) is established after the CCTV screen was cut in which Defendant A distributed name cards inside the front entrance of the J Station; (b) the Defendants cut out the CCTV screen (61,62 pages of the evidence record) taken before the front entrance of the J Station; (c) J Station, as a ground station, may be set up within the subway station through the entrance immediately from the sidewalk; (d) the door door outside the front door of the J Station where the Defendants distributed name cards to the front door of the J Station; (b) the front door of the J Station where the Defendants distributed name cards to the front door of the front door of the K Station, which is separate from the general news report by the general news report; and (c) the Defendants’ distribution of name cards to the front door from the front door of the J Station to the front door, the management entity of the J Station’s entrance cannot be seen as the management entity of the said subway station.

1) Relevant laws and regulations

The main text of Article 60-3 (1) 2 of the Public Official Election Act permits a preliminary candidate to directly use name cards or appeal for support, and the proviso does not allow a preliminary candidate to use name cards or appeal for support at the premises of subway stations and other open places where many people pass through or gather as prescribed by the Rules of the Central Election Management Commission Regulations. Article 60-3 (2) of the same Act provides that the spouse of a preliminary candidate may directly use the name cards of a preliminary candidate or appeal for support from a preliminary candidate in order to conduct an election campaign for a preliminary candidate. Meanwhile, Article 26-2 (1) 1 of the Regulations on the Management of Public Officials Election, which is the National Election Commission Regulations, provides that "the inside of a preliminary candidate and the terminal premises thereof (including subway stations)," and Article 26-2 (1) 2 of the same Act provides that "the hospital, the theater, and the religious facilities" are places where many people pass or gather, respectively.

Therefore, in order to see the "place where the distribution of name cards is prohibited" under the proviso of Article 60-3 (1) 2 of the Public Official Election Act, it falls under the place prescribed by the Rules on the Management of Public Officials Election, and at the same time, it is the place where many people frequent or gather.On the other hand, examining the places listed in the Rules on the Management of Public Officials Election, it is an open place where many people frequent or gather in terms of their use relationship, disclosure, accessibility, etc., but it is not a place where the boundary is unclear because the relevant place is completely disclosed to many people and it is difficult to specify the scope of users, but a place where the boundary is clearly identified.

2) Review of the instant case

Whether the outer entrance of the subway station of this case constitutes "the premises of the subway station" under the proviso of Article 60-3 (1) 2 of the Public Official Election Act shall be determined in light of the ordinary and objective meaning of the phrase "the premises of the subway station" and the legislative intent and form of the provision of the above Public Official Election Act.

First, this study examines the ordinary and objective meaning of "the premises of the subway station". The premises refer to specific activities such as "the inside of the sunken building, facility or site", "the inside of the stopping place or the base of a vehicle", 5) the fence, fence, etc., to the extent that anyone other than the person concerned is unable to freely enter and leave the subway station", and their prior meaning is not significantly different from that of the subway station. Thus, if there is a fence, fence, boundary display, etc. which covers the boundaries of the subway station, it is reasonable to view that the fence, fence, and boundary display, etc. are included in the subway station in accordance with the common and objective meaning of "the inside the subway station".

Next, the legislative purport and form of the above provision of the Public Official Election Act are examined. The main text of Article 60-3 (1) 2 of the Public Official Election Act (including the persons prescribed in paragraph (2) of the same Article) is generally permitted to distribute the name cards of preliminary candidates (hereinafter referred to as "preliminary candidates, etc.") to the public places where many people pass or gather prescribed in the proviso. It seems to be aimed at preventing inconvenience to the general public using the relevant place. However, in light of the legislative purport and form of the above provision of this case and the delegation provision of this case, it is not possible to extend the place to which the distribution of name cards is prohibited without permission, and further, the specific facts of this case are not set up in the 6th floor space of the public prosecutor's office near the 2nd floor of the instant case (see, e.g., Supreme Court Decision 200Do44448, Jun. 1, 2007).

Examining the specific facts in the instant case in light of the ordinary and objective meaning of the phrase “in the subway station” and the legislative purport and form of the delegation provision of the instant provision, the outer entrance of the J Station cannot be deemed to fall under “the premises of the subway station” as provided in Article 60-3(1)2 of the Public Official Election Act. In the instant subway station buildings, the boundary signs such as fences or fences are not installed in addition to the installation of “entry door”. Thus, according to the ordinary and objective meaning of “in the premises of the subway station,” it is difficult to readily conclude that the Defendants’ right to manage the outer entrance of the J Station as “the premises of the subway station” and the outer entrance of the subway station as “the premises of the subway station,” and thus, it is difficult to readily conclude that the Defendants’ act of distributing the outer entrance of the building in question constitutes “the premises of the subway station” under the premise that the act of distributing the outer entrance of the building in question constitutes the basic principles of statutory interpretation, such as “the act of distributing the outer entrance of the building in question.”

Therefore, the judgment of the court below which found Defendant A guilty of the act of distributing 84 name cards directly from the front door of the subway station and the front door of the subway station was erroneous by misapprehending the facts, or by misapprehending the legal principles on "in the subway station premises" under Article 60-3 (1) 2 of the Public Official Election Act, and thereby adversely affecting the conclusion of the judgment. The Defendants’ assertion pointing this out has merit

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act as the defendants' appeal is well-grounded, and it is again decided as follows.

[Grounds for multi-use Judgment]

Criminal facts

Defendant A was a preliminary candidate for the 20th National Assembly election E., and was a spouse of G elected, and Defendant B is a person who does not fall under the F Party H Women’s Chairperson or a person prescribed in each subparagraph of Article 60-3(2) of the Public Official Election Act.

No one shall post, post, display, or run an advertisement, letter of personnel management, poster, photograph, document, drawing, printed matter, or sound or visual tape, or any other similar things, showing the name of a political party or candidate, in order to influence an election, from 180 days before the election day to the election day: Provided, That the same shall not apply to a place in which many people pass or gather, a ship, regular passenger vehicle, electric car, or aircraft, inside its terminal, its terminal facilities, religious facilities, or any other similar things.

Nevertheless, from around 06:44 to 07:10 on March 21, 2016, the Defendants sought support from G preliminary candidates to many unspecified voters, and divided the name cards (9cm x 5cm) containing the political parties to which G preliminary candidates belong, names, photographs, personal history, etc., and Defendant B, along with Defendant A, claimed support from the front door of the JJ Station, divided the name cards (9cm x 5cm x 5cm) including the names of political parties to which G preliminary candidates belong, names, photographs, personal history, etc. into six parts of name cards (9cm x 5cm) including the name cards (9cm x 5cm) in which G preliminary candidates belong to the unspecified number of voters. Accordingly, in order to have an effect on the election, the Defendants conspired with each other, and distributed printed matter under the Public Official Election Act instead of the provisions, and instead distributed printed matter under Chapter 47 (41+6-47).

Summary of Evidence

The summary of the evidence of the above crime is the same as that stated in the corresponding column of the judgment of the court below, and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

Articles 255(2)5, 93(1), and 60-3(1)2 of the Public Official Election Act, and Article 30 of the Criminal Act

1. Invitation of a workhouse;

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

1. Order of provisional payment;

1. The scope of punishment by law: a fine not exceeding 4 million won;

2. Scope of recommendations according to the sentencing criteria;

[Determination of Punishment] Type 2 of Election Campaign in Violation of the Election Campaign Period for Election Campaign (Method of Election Campaign against such Method)

【Special Convicted Person】

[Determination of the recommended territory, scope of recommendations] Basic area, fine of not less than 700,000 won but not more than 2 million won

3. The instant crime committed by the sentence decision was committed by the Defendants in collusion to distribute the name cards in the subway station, and Defendant B, who was not in a position to directly distribute the name cards of the preliminary candidate, distributed the name cards of the preliminary candidate. This act may cause inconvenience to those who use the subway station or pass around the subway station. Although the Defendants were aware of the provisions related to the Public Official Election Act and were obliged to engage in election campaigns, the instant crime was committed. Such circumstances are disadvantageous to the Defendants.

On the other hand, the amount of the name tag distributed by the defendants is relatively large, the violation is committed once, the defendant A has no record of criminal punishment, there is no criminal record other than the fine in the case of the defendant B, and there is no criminal record for the same kind of crime in the case of the defendant B.

In addition to the above circumstances and the scope of recommended sentence according to the sentencing guidelines of the Supreme Court Sentencing Committee, the sentencing conditions in this case, including the defendant's age, character and conduct, environment, circumstances and results of the crime, etc., shall be determined as ordered by considering all the sentencing conditions in this case.

Of the facts charged in the instant case against the Defendants, “the portion of the charge that directly distributed name cards (9cm x 5cm) including the political party to which the G preliminary candidate belongs, name, photograph, personal history, etc. (9cm x 5cm) by Defendant A complaining of the support of the G preliminary candidate to the unspecified number of voters outside the front entrance of the subway J Station of the subway” should be acquitted on the Defendants under the former and latter parts of Article 325 of the Criminal Procedure Act, since it constitutes either a crime or a case where there is no proof of a crime, as prescribed in Article 2-3(c) of the said Act, since it constitutes a case not having committed a crime or there is no proof of a crime. However, as seen earlier, as long as Defendant A was convicted of

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

The judge of the presiding judge;

Judge Guo- Provision

Judges Choi Ki-won

1) The Defendant’s defense counsel withdraws the mistake of facts and misapprehension of legal principles as to the act of distributing Defendant B’s name on the second trial date.

had been.

2) The prosecutor is based on the premise that Defendant B is not a designated person to distribute name cards to those who are accompanying the spouse of the preliminary candidate.

A public prosecution was instituted against the distribution of name cards within the subway station. However, the lower court distributed name cards to anyone in the premises of the subway station.

An offense against the violation of the place of distribution of name cards without the procedure of modification of indictment on the ground that the Defendants’ exercise of their right to defense is not hindered.

Only fact is recognized.

3) The lower court’s fact-finding with respect to this part is erroneous as seen earlier.

(iv) the Standard Korean Language Classification of the National Institute of Korean Language;

5) On April 20, 2007, D. 207, D. D. 2007

6) On January 5, 201, 201, NAV knowledge white paper, architectural language compilation committee, modern architectural-related terms compilation committee, sexual design book, and modern architectural-related terms compilation committee.

7) Supreme Court Decision 2011Do6311 Decided August 18, 2011

Even if a small number of patients are hospitalized, a separate hospitalization room shall be a doctor and nurse to cure the hospitalized patient, his/her guardian, or the patient.

Since such a room is a place of entry or temporary residence, it cannot be said that such a room is a open place where many people come to and gather;

The Supreme Court held to the effect that the content of the decision should not be extended interpretation of the above Public Official Election Act provision.

I seem to appear.