2016Gohap295 Violation of the Public Official Election Act

A

Pursuant to the Constitution of the Republic of Korea (Public Trial), Park Jong-young, Emigration, Lee Jin (Public Trial)

October 27, 2017

Defendant shall be punished by a fine of KRW 1,500,000.

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

To order the defendant to pay an amount equivalent to the above fine.

2,000,000 won shall be additionally collected from the defendant.

Criminal facts

B was elected as a candidate for a D party in the election district of the 20th National Assembly member that was implemented on April 13, 2016, and the defendant was a person who supported the online election campaign of the candidate who belongs to the D party in the above election.

No person shall be provided with money, valuables, or other benefits in connection with election campaign regardless of the pretext, such as allowances, actual expenses, compensation for volunteer service, etc., except for cases of receiving allowances, actual expenses, or other benefits under the Public Official Election Act.

Nevertheless, around March 29, 2016, the Defendant requested B to prepare a campaign bulletin containing B’s campaign promises, election tax-related activities, etc. and post it on B’s Facebook, etc., and received a request from B to transfer KRW 2,000,000 from B to Defendant’s account in the name of the Defendant on March 30, 2016 to actively engage in the online election campaign during the election campaign period.

After that, from March 31, 2016 to April 12, 2016, the Defendant made an online election campaign against B by preparing an election campaign bulletin containing unfavorable information about B, such as "E", "F", "G", "H", "J," "K," "L," "M," "N," "O," "P, Q," and "R," and posting it on B's page, etc.

Accordingly, the Defendant received money and valuables other than those permitted by the Public Official Election Act from B in relation to election campaign.

Summary of Evidence

1. Examination protocol of the accused by prosecution;

1. Investigation report (whether an election campaign worker is registered or confirmed as an election campaign worker - registered election campaign worker);

1. Documents printed out of each mobile analysis report, pagebook posts dated April 11, 2016, the card news, the agricultural association data, and each business bank reply data attached to the above text;

Application of Statutes

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

Article 230(1)7 and 4 of the Public Official Election Act, and Article 135(3) of the Public Official Election Act (Selection of Fines)

1. Detention in a workhouse;

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

1. Additional collection:

The proviso to Article 236 of the Public Official Election Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

1. The scope of punishment by law;

A fine of KRW 50,00 to KRW 30 million

2. Scope of recommendations on the sentencing criteria: A fine of one million won to five million won.

[Types] Type 2 (General Purchase, and Purchase related to Recommendation of Candidates for Political Parties) : Reduction Area (1 million won to 5 million won)

[Special Mitigation] Where money, valuables or benefits provided or received are insignificant;

3. Determination of sentence: Fine of 1.5 million won; and

The act of receiving money and valuables related to election is one of the legislative purposes of the Public Official Election Act, and it is necessary to strictly punish the defendant as impeding the realization of democratic politics through a clean and unfortunate election, which is one of the legislative purposes of the Public Official Election Act.

However, it appears that the defendant had been living without any particular criminal record, except once a fine prior to the instant case, and the fact that the defendant recognized the instant crime and cooperated in the investigation while reflecting the fact that he/she cooperates in the investigation, etc. shall be considered as favorable circumstances for the defendant, and other factors, such as the defendant's age, character and conduct, environment, family relationship, motive and circumstance of the crime, means and consequence of the crime, etc., and the sentence like the order, shall be determined by taking into account

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