209Gohap15 Violation of the Public Official Election Act

1. A;

2. B

Class Kim Ho

Attorney C (for the defendant)

Attorney D (for the defendant A)

April 28, 2009

Defendants are not guilty.

The summary of the judgment against the Defendants is published.

1. Facts charged;

A. Defendant A

The defendant is a person who was elected in the F/Gun G election with no affiliation in the F/Gun that was implemented on the E date.

Except for the cases of providing allowances, actual expenses, and other benefits under the Public Official Election Act, no person shall provide or receive any money, valuables, or other benefits in connection with election campaign regardless of the pretext such as allowances, actual expenses, or compensation for volunteer service.

Nevertheless, around July 31, 2008, the Defendant, at the office of the Defendant, provided money and valuables to B in relation to election campaign, by having J, the wife, transfer KRW 2 million to the K Association account (L) of the Defendant’s election campaign. The Defendant provided money and valuables to B in relation to election campaign.

B. Defendant B

The Defendant was provided with money and valuables in relation to the election campaign, without reporting as a person in charge of the election campaign at the Ma-Myeon, and without reporting as an election campaign worker, etc. who is entitled to receive allowances and actual expenses, and received money and valuables from A in relation to the election campaign.

2. Determination

A. Details of the instant case

The basic facts established before and after the instant case are as follows.

1) From around 200 to the election of a member of the National Assembly run by Defendant A, or the election of a head of F/Gun, Defendant B knew of the election campaign by Defendant A and got the same to each other. On May 2008, Defendant A, who was preparing the F/Gun G election campaign candidate, asked Defendant B to borrow 50 million won from a financial institution to borrow 50 million won from a financial institution. Also, Defendant B asked N who became aware of the similar circumstances as Defendant B, by posting a telephone, to have the credit guarantee when Defendant B received a loan.

2) On May 9, 2008, Defendant B borrowed a total of KRW 32 million in the name of the K Association and KRW 18 million in the name of the N, and Defendant B deposited a check of KRW 30 million in cash and KRW 20 million in cash at around 17:30 on the same day to Defendant A, who was found in the future of the said K Association.

3) After winning the election in the F-Gun G election of the F-Gun, Defendant A received KRW 10,001,040 on June 27, 2008 from the F-Gun Election Commission with a passbook (Account Number: P) registered with the above election commission, and KRW 81,830,430 on July 25, 2008, Defendant A, first of all, paid KRW 50,267,808 on July 29, 2008 with the repayment of principal and interest of KRW 50,267,80 on a deposit account, which was borrowed in Q Q’s name as one’s election manager, and around July 31, 2008, remitted KRW 31 million from the above account to the K-Gun Association account (Account Number: L): around 21:56 on the same day, Defendant A transferred KRW 205,000 to another account of the F-Gun Association (hereinafter referred to as the above account number: 3005,500,000,000.

4) On August 1, 2008, Defendant A, who was the chief secretary, had the Defendant bring 11 million won in cash to Defendant B.

5) Defendant B, at around 17:30 on August 1, 2008, found with N and 32 million won and interest on the 32 million won and interest on the 31 July 31, 2008, the 325,971, total amount of 32,625,971, and the 18 million won and interest on the 352,109,000 won and interest on the 32,625,971, and the 18,000,000 won that were loaned under N and the 3.52,109,000 won (the principal is not repaid).

6) Defendant B deposited 13,021,920 won (i.e., KRW 46,00,000 - KRW 20,000,000 - KRW 12,000,000 - KRW 625,971 won - 352,109) in its own account among the 46,00,000 won received from Defendant A by August 1, 2008.

7) On September 1, 2008, Defendant A had T again bring about KRW 6 million or KRW 7 million to Defendant B (at this time, the amount of the transferred money is the issue of this case).

8) After receiving the above money, Defendant B transferred KRW 12 million from his K Association account to N on the same day, and on the same day, Defendant B repaid KRW 6 million of the remaining principal of the loan in cash and KRW 129,945 of the interest on KRW 18 million from August 1, 2008 to August 31, 2008.

The facts charged that the Defendants received KRW 2 million for the purpose of preserving the election campaign expense on July 31, 2008 are premised on the following facts and judgments. In other words, Defendant A, out of KRW 35 million, remitted to Defendant B twice on July 31, 2008, KRW 32 million,000,000,000, including the principal of loans under Defendant B’s name, and KRW 18,000,000,000,000,000,000,000,000,000 won, should be adjusted to have been fully paid, and as to the portion of the loan under N’s name, KRW 18,00,000,000,000,000,000 won should be separately recognized for the purpose of paying the remainder of the loan to Defendant B on August 11, 2008 and KRW 70,000,000,000,00.

Next, even according to the defendants' statements, it is clear that Defendant B and N received money more than the total amount of principal and interest that Defendant B and N should pay to KN with respect to the above loans of KRW 50 million from the defendants. However, the said money is not paid in advance on the premise of subsequent settlement, but can be recognized as being related to the election campaign expenses that Defendant B, etc. spent.

C. Whether the fact of delivery of KRW 7 million can be recognized or not on September 1, 2008

1) As evidence consistent with the above facts, there are the statements made by N in the police statement and the statement made by the suspect interrogation protocol, as well as the statements made by Defendant B, and the joint statement made by “2 million won of election funds” as well as the joint statement made by Defendant B.

2) Determination of the credibility of N’s police statements

N at the police investigation stage, Defendant A stated that Defendant B received the principal amount of KRW 50 million and interest on the principal amount of KRW 1 million, and KRW 2 million in total, KRW 53 million, and KRW 53 million in cash received from Defendant B at the end of July 2008 or on August 1, 2008, and again, Defendant B received KRW 11 million from Te.

However, at the prosecution and this court on August 31, 2008, N consistently stated that Defendant B received 6 million won from T and it was the same on its job and consistently reversed the statement at the police station. In addition, under the following circumstances revealed by the record, the N took the lead of the act of lending the money borrowed from the K union to Defendant A, i.e., lending the money borrowed from the K union, which is the following circumstances, Defendant B, who actually received money from the T on August 1, 2008 and carried out the repayment of the loan, is also Defendant B, and therefore, N could not know the exact amount of money received between Defendant B and T (Finally, N’s statement of the police itself on the amount of money received is also “7 million won”).

In light of the fact that the amount transferred from Defendant B’s account at the time of repayment of the principal amount of KRW 18 million and interest of KRW 130,000,000,000, and the remainder was repaid in cash, N may be deemed to have received at least KRW 6,130,000 from Defendant B’s day, and that at least KRW 6,130,000,000,000,000 were stated to Defendant B as KRW 6,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00

3) As to the part of the metreging in cash on September 1, 200, out of the metreging (Investigation Records No. 283) written in B

As seen earlier, on July 31, 2008 and August 1, 2008, Defendant B deposited approximately KRW 13 million in its own account after paying interest of KRW 32 million and KRW 50 million from the principal of the loan up to August 1, 2008, and deposited KRW 13 million into its own account as it is. On September 1, 2008, Defendant B stated only KRW 12 million from the above account as NA’s loan account in cash and KRW 10 million from August 1, 2008 to KRW 80,000 from August 1, 200 to KRW 10,000 from August 1, 200 to KRW 10,000 from August 208.

Therefore, it is not sufficient to be admitted as evidence to the fact that Defendant A paid a sum of KRW 7 million to Defendant B through T on September 1, 2008.

4) Although there is no indication on the amount of money paid on September 1, 2008 to the Megamoth (in the investigation records No. 280) of TW, the said description is written with respect to “election capital use”, “200 out of 3,500, N-ray 60, private organization, etc.

As to the preparation process of the above domain, T refers to the fact that after the police investigation into Defendant B on the part of Defendant B, it listens to the contents that he made a statement in the police and accepts it as it is. In light of the form of the above domain or the contents of the above domain, it is persuasive and it is difficult to view that the above domain is an expression of objective facts.

5) Ultimately, each of the above evidence cannot be said to be insufficient to believe that the money received by Defendant B on September 1, 2008 is KRW 7 million or is insufficient to be used as evidence to recognize the facts charged in the instant case.

(d) Use of approximately one million won paid in excess;

Meanwhile, according to the Defendants’ statements, Defendant A’s total sum of KRW 52 million paid by Defendant B to Defendant B ( = 31 million + KRW 4 million + KRW 11 million + KRW 6 million). The only amount is the loan principal and KRW 1 million in addition to the K Union’s association’s loan principal and KRW 1 million. Thus, it is necessary to examine whether the said amount is not related to Defendant B’s election campaign.

As to this, the Defendants asserted that Defendant B returned the remainder of KRW 8.70,000 to Defendant A after he repaid the loan interest of KRW 1.3 billion until September 1, 2008 with the above money. On September 13, 2008, Defendant B’s statement in this court was consistent with W’s statement that Defendant B her caused two disputes with Defendant A from the net values of Defendant B opened in MbuV on September 13, 2008, and Defendant B’s statement in this court was submitted by the prosecutor as a lusent evidence of guilt (No. 283 pages of the Investigation Record) was also stated as follows: “The Defendant B paid the interest rate of KRW 870,000,000,000,000,000,000,000,000,0000,000,0000,000,000,000 won.

Therefore, even if Defendant B, even if he was partially recognized that Defendant B had engaged in election campaign by soliciting the support of Defendant A to persons other than election campaign workers at the time of the F-Gun G election, such circumstance alone cannot be deemed as having been paid in excess of KRW 1 million or KRW 870,000,00 which was paid as compensation for election campaign expenses and subsequently returned later. Rather, it is reasonable to deem that Defendant B paid money in advance on the premise that he would make a long-term settlement in the absence of interest on the loan. At least, the Defendants’ assertion cannot be easily rejected.

E. In a false criminal trial, the prosecutor bears the burden of proving the facts charged, and the finding of guilt must be based on the evidence with probative value sufficient to have a judge prove that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt about guilt against the defendant, it cannot be determined in the interest of the defendant. As seen earlier, in full view of all the evidence submitted by the prosecutor, it cannot be ruled out that there is a reasonable doubt as to the probability of the facts that are inconsistent with the facts that the defendant A has paid 2 million won to the defendant B as compensation for election campaign expenses, i.e., borrowed money and its interest.

3. Conclusion

Thus, since the above facts charged against the Defendants constitute a case where there is no proof of crime, it is judged not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment against the Defendants pursuant to Article 58(2) of the Criminal Act

The presiding judge, judge and superior judge

Judges Core Jae-in

Judges Yellow-gu