Defendant 1 and 22 others

Defendant 1, Defendant 2, Defendant 3, Defendant 22, Defendant 23 and Prosecutor

Yellow Seas (prosecutions) and best trial

Law Firm Lee & 8 others

Chuncheon District Court Decision 2018Gohap53 Decided May 30, 2019

[Defendant 3]

The part of the judgment of the court below against the defendant is reversed.

The Defendant shall be punished by a fine of KRW 700,00 for the violation of the Political Funds Act due to the omission of an accounting report on election expenses among the crimes of KRW 2,00 for the crime of violating the Political Funds Act due to the omission of an accounting report on election expenses and the crime of KRW 2,00 for the crime of violating the Political Funds Act due to a failure to submit the details of election expenses other than the election expenses among the crimes of KRW 2

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

In order to order the provisional payment of an amount equivalent to the above fine.

[Defendant 4]

The part of the judgment of the court below against the defendant is reversed.

The Defendant shall be punished by a fine of KRW 1,00,00 for the violation of the Political Funds Act due to the omission of an accounting report on election expenses, among the crimes No. 2 of the holding, and the crime No. 2 of the holding, and a fine of KRW 300,000 for the violation of the Political Funds Act due to a failure to submit the details of political funds, other than election expenses, among the crimes No. 2 of the holding.

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

50,000 won shall be additionally collected from the defendant.

It shall issue an order to pay the amount equivalent to the above fine and the amount of the additional collection.

[Defendant 1, Defendant 2, Defendant 5, Defendant 6, Defendant 7, Defendant 8, Defendant 9, Defendant 10, Defendant 11, Defendant 12, Defendant 13, Defendant 14, Defendant 15, Defendant 16, Defendant 17, Defendant 18, Defendant 19, Defendant 20, Defendant 21, Defendant 22, and Defendant 23]

Defendant 1, Defendant 2, Defendant 22, and Defendant 23 and Prosecutor’s appeal against Defendant 1, Defendant 5, Defendant 6, Defendant 7, Defendant 8, Defendant 9, Defendant 10, Defendant 11, Defendant 12, Defendant 13, Defendant 14, Defendant 15, Defendant 16, Defendant 17, Defendant 18, Defendant 19, Defendant 20, Defendant 21, Defendant 22, and Defendant 23, respectively.

1. Summary of grounds for appeal;

A. Defendant 1

1) Legal principles

A) Article 59(1)3 and 5 of the Rules on the Management of Public Officials Election provides that a person in charge of accounting shall be paid an allowance of KRW 50,000 in the case of an election campaign worker and KRW 30,000 in the case of an election campaign worker. This goes beyond the bounds of delegation under Article 135(2) of the Public Official Election Act, which is the mother, and goes against the Minimum Wage Act, which is a mandatory provision, and is null and void as it violates the principle of equality by discriminating between

B) The Defendant may be subject to criminal punishment for a violation of the Minimum Wage Act if he/she pays only allowances prescribed by the Rules on the Management of Public Officials Election to a person in charge of accounting and an election campaign worker. As such, in a situation where there is a conflict between the Public Official Election Act and the Minimum Wage Act, one of the laws should be punished by other Acts. Therefore, the Defendant’s responsibility is dismissed because it is difficult

2) Unreasonable sentencing

The punishment of the lower court (eight months of imprisonment) is too unreasonable.

B. Defendant 2

1) Legal principles

Defendant 1 heard that there is no problem with the authoritative interpretation of the election commission from Defendant 1, and divided KRW 10 million into election campaign workers, etc., Defendant 1 works as a senior public official for several hundreds of years, and is a candidate for the head of local government who has opened a local election and opened a local election in accordance with the election law. Thus, Defendant 1 is erroneous that his act was not a crime under the Public Official Election Act, and there is a justifiable reason for misunderstanding, and thus, Defendant cannot be punished pursuant to Article 16 of the Criminal Act.

2) Unreasonable sentencing

The punishment of the lower court (eight months of imprisonment, two years of suspended execution) is too unreasonable.

C. Defendant 3

(1) misunderstanding of facts

A) The part concerning telecoming expenses of 2 million won (election expenses)

(1) Two guest rooms for ○○○○○○○○○○○○ was lent from April 1, 2018 to June 13, 2018 to be used by Defendant 1 and his/her spouse, and thus, it does not constitute election expenses. Nevertheless, the lower court determined that the said guest room was used by the said worker, and thus there is an error of mistake of facts in the judgment of the lower court. Even if the election campaign workers used the above guest room, the period is from May 31, 2018 to June 13 of the same year, which is the election campaign period, and thus, it cannot be deemed that the entire guest room constituted election expenses.

(2) The Defendant did not enter 2 million won in the expenditure account book, and did not instruct Defendant 4 to remit it through an unreported account, and there was no conspiracy to do so. This is a simple business process, and there was no intention to violate the Political Funds Act.

B) 3 million won (other political funds than election expenses) for the campaign speech fee

Defendant 4 did not instruct Defendant 4 to submit the details of disbursement of tuition fees of KRW 3 million to the election commission, and there was no conspiracy to do so. The Defendant did not have intention to violate the Political Funds Act, since it was extremely poor in election campaign as a duty of election campaign, and thus failed to submit the details of disbursement because he did not memory of KRW 3 million.

2) Unreasonable sentencing

The sentence of the lower court (the fine of KRW 500,00,000 on the third and fourth crimes as stated in the judgment of the lower court, and KRW 700,00 on the third-B crime as stated in the judgment of the lower court) is too unreasonable.

D. Defendants 22 and 23 (Definites)

Defendants were not in the election office around 19:00 on June 12, 2018, and received 50,000 won each.

(e) A prosecutor;

1) misunderstanding of legal principles and mistake of facts (not guilty part)

A) Defendant 5, Defendant 6, and Defendant 7

Defendant 2 consistently stated that 200,000 won was divided at the election campaign office at the time of the instant case. Defendant 4 and other election campaign workers stated to the effect that the Defendants were in the election campaign office at the time of the instant case; Defendant 19’s statement to the investigative agency is admissible as it is not illegal collection evidence; thus, Defendant 19’s statement does not constitute evidence of collection; even according to Defendant 19’s court statement, the fact that the Defendants received money and valuables can be recognized; Defendant 5 and Defendant 7’s address was confirmed as close to the election campaign office. As such, it is recognized that the Defendants received an envelope containing KRW 50,000,

B) As to Defendant 1 and Defendant 2

On the grounds stated above A), it is recognized that Defendants conspired to deliver bags containing KRW 500,00 to Defendant 5, Defendant 6, and Defendant 7.

C) As to Defendant 3 and Defendant 4

According to the fact that the Defendants received two-time education from the election commission, the other disbursement was legally recorded in the accounts, the Defendants were sufficiently aware that election expenses were in violation of the Political Funds Act and could not be properly reported to the election commission, and Defendant 3 instructed Defendant 4 to keep receipts separately from the election commission and not make an accounting report to the election commission.

2) The part on the charge of unfair sentencing (the part on the charge)

It is unfair that the punishment against the Defendants is too uneasible.

2. Determination as to the assertion by the defendant and the prosecutor on the part of the defendant 1

A. Judgment on the misapprehension of the legal principle of the defendant

1) Determination as to the assertion of invalidation under Article 59(1)3 and 5 of the Rules on the Management of Public Officials Election

A) The judgment of the court below

As to the assertion of violation of the principle of statutory reservation, the lower court determined that Article 135(2) of the Public Official Election Act provides that the National Election Commission shall determine the types and amounts of allowances, etc. for the campaign workers, etc., and does not necessarily limit the legislative form to the public notice or established rules, and requires more strict procedures for enactment and amendment compared to the public notice or established rules by the National Election Commission, or that the long-term rules have not been amended, it is difficult to view that the above rules in itself are grounds for its deviation from the delegation scope or for its violation

In addition, the lower court, as to the assertion of violating the Minimum Wage Act, determined that the Minimum Wage Act is superior to the Public Official Election Act, and its validity cannot be readily determined as being denied, regardless of the legislative feasibility, since the restriction on allowances for election campaign workers, etc., as prescribed by the Public Official Election Act and the Minimum Wage Act, may be seen as a legislative policy decision in order to secure the value of the eligibility for election, public interest in election campaign, and self-refluence, etc.

Furthermore, as to the assertion of violation of the principle of equality, the lower court determined that the above rules do not violate the principle of equality on the grounds that the election campaign workers, etc. regulated by Article 135 of the Public Official Election Act are those who handle election affairs for a specific political party or candidate at the election campaign office of a specific political party or candidate and receive allowances through the election campaign office; while the fair election management organization and the cyber fair election management organization established by the election commission to monitor the illegality of elections and support the fair election, are those who handle the election management affairs of the election commission established by the election commission and receive allowances through the election commission.

B) Determination of the immediate deliberation

(1) Determination on the assertion of violation of the principle of statutory reservation

First, the Defendant asserts that Article 135(2) of the Public Official Election Act delegates the provision of allowances and actual expenses for election workers, etc. as relatively easy established rules or public announcements. In other words, Article 135(2) of the Public Official Election Act provides that “the National Election Commission shall determine the kinds and amount of allowances and actual expenses which are permitted to be provided to election workers, etc.” This can be interpreted as “the statutory order of the National Election Commission.” The Rules on the Management of Public Officials Election established by the National Election Commission for the purpose of prescribing matters delegated by the legislative authority stipulated in Article 114(6) of the Constitution and detailed matters necessary for the management of elections by the President, National Assembly members, local council members, and heads of local governments (see, e.g., Constitutional Court Order 2013Hun-Ba5, Apr. 30, 2015). Therefore, even if the National Election Commission prescribes allowances and actual expenses for election workers, etc. through regulations or public announcement, it is difficult to view it as beyond the delegation limits prescribed by the mother Act and public announcement or procedure.

Furthermore, the Defendant asserts that Article 135(2) of the Public Official Election Act delegates to the subordinate statutes that stipulate “amount of allowances and actual expenses meeting the economic reality, such as price level, not in conflict with the relevant statutes.” As seen below, it cannot be said that there is any heat between the Public Official Election Act and the Minimum Wage Act, and there is no restriction on the scope of delegation, such as taking into account the minimum wage and price, etc. under Article 135(2) of the Public Official Election Act. Therefore, it is difficult to deem that Article 59(1)3 and 5 of the National Election Commission Regulations deviates from the scope of delegation under Article 135(2) of the Public Official Election Act, a parent corporation.

Therefore, this part of the defendant's argument is without merit.

(2) Determination on the assertion on violation of the Minimum Wage Act

The purpose of the Public Official Election Act is to contribute to the development of democratic politics by ensuring that elections are held fairly in accordance with the free will of the people and democratic procedures. Article 135(3) of the Public Official Election Act provides only statutory allowances and actual expenses for the election campaign workers, etc. is to prevent unfair and decline elections and to minimize social and economic losses and side effects caused by unlimited and excessive election campaigns and ensure equal opportunities (see, e.g., Constitutional Court Order 201Hun-Ba26, Apr. 25, 2002; Constitutional Court Order 2013Hun-Ba5, Apr. 30, 2015; Decision 2013Hun-Ba55, Apr. 1, 2015). Thus, it is difficult to view that the above restrictions on the minimum wage for election campaign workers under Article 135(2) of the Public Official Election Act and Article 59(1)3 of the Rules on the Management of Public Officials Election, etc. for the purpose of public announcement and notification of the Minimum Wage Act are invalid.

Therefore, this part of the defendant's argument is without merit.

(3) Determination on the assertion of violation of the principle of equality

The principle of equality, in essence, requires different treatment from the same, but it does not mean an absolute equality that denies any discriminatory treatment, but it refers to a relative equality that excludes discrimination without reasonable grounds in the legislative and legal application, and thus, discrimination with reasonable grounds is not in violation of the principle of equality. Here, discrimination without reasonable grounds refers to arbitrary treatment of the same in essence. Whether the same facts are essentially identical should be determined in light of the meaning and purpose of the relevant provision of law (see, e.g., Constitutional Court Order 2012Hun-Ba387, May 30, 2013).

As seen earlier, the determination of an allowance for a campaign worker, etc. under Article 59(1)3 and 5 of the Regulations on the Management of Election of Public Officials is based on the peculiarity of an election for public officials, the exclusion of the presidential election and the excessive election campaign, the limit of the election budget, etc., and the fair election management organization under Articles 10-2 and 10-3 of the Public Official Election Act and the cyber fair election management organization are established by the election commission to monitor election malpractice and support a fair election, and manage the election management affairs of the election commission and receive allowances through the election commission, and are completely different from the election campaign workers, etc., and the status of the election campaign workers, etc. is completely different in terms of the fact that the allowances for the campaign workers, etc. do not meet the minimum wage standards even in the case of investment campaign witnesses

Therefore, this part of the defendant's argument is without merit.

2) Determination as to the assertion of denial of liability

In order to determine whether the defendant is likely to expect lawful acts, it is necessary to determine the possibility of expectation from an average person instead of an actor under specific circumstances at the time of the act (see, e.g., Supreme Court Decision 2013Do15616, May 12, 2016). The following circumstances acknowledged by the evidence duly adopted and examined at the original court and the trial, i.e., Article 59(1)3 and 5 of the Rules on the Management of Public Officials Election cannot be deemed invalid in violation of the Minimum Wage Act; ② at the time of providing money and valuables to the election campaign workers, etc. via Defendant 2, the defendant did not file a complaint or accusation against the violation of the Minimum Wage Act; and the election campaign workers do not seem to have referred to the minimum wage at the time, and there was no possibility that additional allowances should be paid to the election campaign workers at the time of the election campaign (see, e.g., Supreme Court Decision 2013Do15616, May 12, 2016).

Therefore, this part of the defendant's argument is without merit.

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

The fact that the defendant is the first offender, the election campaign workers' demand for additional allowances seems to have led to this case in response to the demand for the payment of additional allowances, and the defendant recognized the basic facts in the first instance, which are favorable to the defendant.

However, this case goes against the purport of the Public Official Election Act, which intends to establish the fairness of election by excluding the campaign from being provided money or goods to the person in charge of accounting and election campaign workers in collusion with Defendant 2 in excess of the scope of the provision of allowances, actual expenses, and other benefits. It is significant that the Defendant, as the final subject of benefits from election campaign, committed such an offense even though he has a duty to prevent and crack down on illegal acts in relation to election campaign, and there was an attempt at an investigative agency to use a third party to take the lead of the offense, or to let Defendant 2 make a false statement denying relation with the Defendant, and the Defendant requested the court to provide money or goods directly. This is because it can be evaluated that there is room for avoiding liability by raising Defendant 2. The Defendant received financial support from Defendant 2 in the future, and thus, it is unreasonable to take into account that there is no other special motive that the Defendant would have an adverse effect on the execution of his duties as the head of the local government in the future or there is no other unfair sentencing guidelines after the lower court’s sentencing.

Therefore, the defendant and prosecutor's argument of unfair sentencing is without merit.

3. Determination as to the assertion by the defendant and the prosecutor on the part of the defendant 2

A. Judgment on the misapprehension of the legal principle of the defendant

1) The judgment of the court below

The lower court determined that it is difficult to view that the Defendant made a serious effort to avoid illegality by having his intellectual ability, taking into account the following circumstances: (a) even though the Defendant made a statement that there was no problem in obtaining authoritative interpretation from Defendant 1; (b) the Defendant did not receive official reply by questioning in the form of a direct election commission; and (c) the Defendant’s offering of money and valuables constitutes a well-known common sense for the general public to strictly prohibit the offering of money and valuables in relation to the election; and (d) the Defendant alleged that he sought advice through the attorney-at-law on the day of the instant case, but there was no evidence

2) Determination of the immediate deliberation

A) Article 16 of the Criminal Act provides that an act of misunderstanding that one’s own act does not constitute a crime under the law shall not be punishable only when there is a justifiable ground for misunderstanding. However, if one’s own act is aware that it does not constitute a crime permitted under the law in his/her own special circumstances, he/she shall not be punishable. Whether there is a justifiable reason should be determined depending on whether the actor was unable to recognize the illegality of his/her own act as a result of failure to perform his/her duty even though he/she could have sufficiently known the possibility of recognizing the illegality of his/her act if he/she had failed to perform his/her intellectual ability, and the degree of effort necessary for recognizing the illegality should be determined differently depending on the situation of his/her act, the offender’s awareness ability of an individual, and the social group to which the actor belongs (see, e.g., Supreme Court en banc Decision 2017Do14322, Apr. 19, 2018).

B) Examining the reasoning of the lower court in line with the record and the above legal principles, the lower court’s above determination is just and acceptable. Therefore, the Defendant’s assertion is without merit.

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

The fact that the defendant has no record of exceeding the same criminal records and fines, and the defendant prepared money at the request of the defendant 1 and seems to have been difficult to refuse the request in view of the relationship with the defendant 1, and the fact that the defendant has made a smooth investigation by making a confession late at the investigative agency is favorable to the defendant.

However, Defendant 1’s offering money and valuables to election campaign workers, etc. upon Defendant 1’s request, and it is reasonable to view that Defendant 1, at the time of offering money and valuables, was helpful for personal and business interests in the event that Defendant 1 is elected to △△△△△△△, etc., are disadvantageous to Defendant. In addition to these circumstances, there was no special change of circumstances that may vary in the punishment from this court to this court after the original judgment, and the lower court’s punishment is within the scope of the recommended sentence according to the sentencing guidelines (one to one year and four months), and other factors of sentencing as indicated in the present sentencing procedure, such as Defendant’s age, character and behavior, environment, motive, means and consequence of the crime, and circumstances after the crime, etc., are considered to be too heavy or unreasonable.

Therefore, the defendant and prosecutor's argument of unfair sentencing is without merit.

4. Determination on the assertion by the defendant and the prosecutor as to the part on the defendant 3

A. Judgment on the defendant's assertion of mistake of facts (the part concerning the crime)

1) Determination as to whether a telecomburcing cost of two million won constitutes election expenses

A) The judgment of the court below

The lower court determined that this part of the telecom room 2 was a money required for an election campaign, since it appears that she was mainly used as a rest place of female election campaign workers, or as a lodging place of Defendant 23 and Nonindicted 1, etc., the lower court held that the said telecom room 2 million won was an election campaign.

B) Determination of the immediate deliberation

Article 119(1) of the Public Official Election Act provides that election expenses are "money, goods, and debts required for an election campaign in question, and all other property values, which are borne by the relevant candidate." According to the fact that it is difficult for a candidate to deem that the expenses incurred for his/her lodging are directly paid for an election campaign, and according to the "Guidance for the Preservation of Election Expenses for the 7th National Simultaneous Local Election" published by the National Election Commission around April 2018, a candidate's accommodation expenses are classified as non-election expenses. Thus, it is reasonable to deem that the candidate's accommodation expenses do not constitute election expenses as provided by Article 119(1) of the Public Official Election Act.

Furthermore, according to the evidence duly adopted and examined at the lower court and the first instance court, the Defendant: (a) leased two guest rooms from Nonindicted 2, which were the head of the ferry business from April 2018 to June 13, 2018; and (b) ordered Defendant 4 to transfer two-month guest rooms to Nonindicted 2 on May 9, 2018 (the Defendant used two-month guest rooms from April 11, 2018 to 200,000,000 to 10,000,0000,0000,0000,0000,000,000: (b) 1 to 20,000,000,0000,000,000,0000,000,000,0000,0000,0000,000,000,000,000) were 1 to 20,000.

Therefore, this part of the defendant's assertion is justified within the above scope of recognition, and the remainder is without merit.

2) Determination as to the assertion that the defendant did not instruct the defendant 4 to submit the details of expenditure or did not intend to do so

A) The judgment of the court below

The court below held that Defendant 4 made a statement to the effect that “The actual accounting affairs were carried out under the Defendant’s specific instructions, Defendant 4’s statement to the election commission that “I would not submit the disbursement statement of KRW 3 million for political funds other than election expenses, or would not comply with the instructions given by Defendant 4 to the effect that I would not enter and transfer the political funds other than election expenses in the expenditure account book while I would like to do so.” While Defendant 4 made a statement to the effect that I would know the facts at the first investigation agency, Defendant 4 made the above statement consistent and clearly at the investigation agency and the court below, and did not find any inconsistency or any act between the statements, and Defendant 4 did not dispute the accounting affairs, and Defendant 4 made a statement that Defendant 4 carried out the passive affairs according to the Defendant’s instructions, and Defendant 4 made a statement that Defendant 4 had mainly carried out the accounting affairs and mainly carried out the said affairs, and Defendant 4 did not have any motive or reason to recognize its credibility in light of Defendant 4’s motive or reason.

Furthermore, the lower court determined that the Defendant’s intentional act was recognized in full view of the following: (a) the Defendant and Defendant 4’s joint criminal conduct part of the crime committed by Defendant 4 specifically instructed Defendant 4 to commit the crime; (b) the Defendant was present at the education of the accountant in charge administered by the election commission along with Defendant 4; (c) Defendant 4 voluntarily asserted that Defendant 4 dealt with the accounting affairs; and (d) the Defendant appears to have dealt with other political funds in compliance with the law and regulations; and (b) the substantial content of the allegation appears to have mainly asserted that there was no purpose of illegal or unlawful law at the time of denying the intention itself.

B) Determination of the immediate deliberation

Taking account of the circumstances described by the lower court, whether the Defendant’s assertion is difficult to accept as follows, it is sufficiently recognized that the Defendant instructed Defendant 4 to submit the disbursement details, etc., and that the Defendant intentionally committed an intentional act on this part of the accounting management, etc.

Therefore, this part of the defendant's argument is without merit.

① The Defendant alleged to the effect that “after entering into a verbal contract with the ○○ Hostel, which was without a contract, it would not immediately be able to register the account immediately after the transfer of the her telecom,” but Defendant 4 stated in the prosecutor’s office and the lower court court’s decision that “ around May 2018, the Defendant confirmed the receipt of remittance of the amount of KRW 2 million from the her telecomtour, and confirmed the Defendant’s accounting registration, but the Defendant called that he would not register the accounts.” Since the above Defendant’s order did not exist, it is difficult to view that the Defendant would have failed to register the accounts later because it was located in the ○○○ Telecomel, and thus, it would be relatively easy to prepare the contract. However, the Defendant did not appear to have made efforts to register the accounts later, considering the fact that the Defendant did not actually complete education from the Election Commission, but did not lawfully accept the Defendant’s assertion that he did not lawfully in detail even if he did not know the details and scale of accounting by leading the accounting affairs.

② The Defendant asserts to the effect that, with respect to the fee of KRW 3 million for a speech fee of KRW 3 million, “the preparation of an education agency contract is May 30, 2018, and receipts, etc. cannot be provided before the payment is made. Therefore, Defendant 4 was unable to instruct Defendant 4 to register the accounts of the education agency contract.” However, in the prosecutor’s office and the court below’s decision, Defendant 4 stated to the effect that “the education agency contract was reported to the Defendant, but the Defendant was not registered, but the Defendant was not required to register the accounts, and the education agency contract was kept separately in accordance with the Defendant’s direction.” The education agency contract was sent to Nonindicted 1, and even if it was remitted, it appears that the Defendant could have sufficiently instructed Defendant 4 to register the accounts, and it is difficult to accept the remaining amount of KRW 3.6 million in the education agency contract as the motive for the Defendant to use and make it open to the public from Nonindicted 1’s employer.

B. Prosecutor's misapprehension of the legal principle and determination of mistake (not guilty part)

1) The judgment of the court below

In order to recognize the facts constituting an offense under Article 49(1) of the Political Funds Act, the lower court determined that: (a) the purpose of concealing revenues and expenditures for election expenses is to be proven without any reasonable doubt, as an excessive subjective element beyond intentionally omitting election expenses; (b) the Defendant received cash payments from Nonindicted 3 at his wife, and made the Defendant 4 deposit without passbook; (c) if the Defendant and Defendant 4 attempted to conceal the revenues and expenditures for illegal purposes, they would have taken the method of directly delivering cash; (b) the total amount of election expenses reported to the election commission was KRW 95,685,459, the above two million won, which is the restricted amount of election expenses, even if being added to the election expenses; and (d) the Defendant and Defendant 4 did not have any specific motive for concealing illegal revenues and expenditures; and (d) the Defendant did not have any reasonable doubt that it was difficult to view that there was any omission and omission of the revenues and expenditures of the election expenses; and (d) the Defendant did not appear to have any reasonable evidence.

2) Determination of the immediate deliberation

The following circumstances are acknowledged based on the evidence duly adopted and examined by the court below and the court below. (1) If the defendant directly ordered the defendant 4 not to register the accounts of the telecom amounting to 2 million won at the end of May 2018, the defendant is also found to have the intention to conceal the election expenses in this part by failing to register the accounts. (2) If the defendant is found to have the intention to do so, it is reasonable to view that he had the intention to do so. (3) The defendant was actually aware of the details and scale of the accounts by actually carrying out the accounting affairs and completed the education from the election commission. (3) The accommodation expenses for the election campaign workers are considered to be election expenses that do not fall under the objects of preservation. (4) It is difficult to deem that the defendant had no motive to conceal this part, or finally reported the election expenses (95,685,4599,000,000 won) even if the defendant did not directly pay the telecombing expenses in cash.

Therefore, this part of the Prosecutor’s assertion is justified only for the part of KRW 216,66, which is recognized as election expenses as stated in Article 4-4(a)(b), and there is no reason for the exceeding part.

5. Determination as to the prosecutor's assertion on Defendant 4

A. Ex officio determination

According to Article 364-2 of the Criminal Procedure Act, where the appellate court reverses the judgment of the court of appeal for the defendant, and the reason for reversal is common to the co-defendant who appealed for the defendant, the judgment of the court below shall also be reversed. The prosecutor's appeal shall not be subject to the principle of prohibition of disadvantageous alteration, and as long as the part against the defendant is pending in this court due to the prosecutor's appeal, it shall be possible to judge ex officio the favorable reason for the defendant. Thus, it is reasonable to say that the above provision applies to the prosecutor's appeal only. Therefore, it shall be recognized as election expenses only 216,666 won out of the telecomburine part which is found guilty for the same reason as the statement in Article 4-1(a)(b). Since the excessive portion does not constitute election expenses, there is a ground for ex officio reversal of the judgment of the court which found the defendant guilty. However, despite the above reasons for ex officio reversal, the prosecutor's misapprehension of legal principles as to the part of innocence, mistake of facts,

B. Prosecutor's misapprehension of the legal principle and determination of mistake (not guilty part)

The purpose of concealing the disbursement of election expenses is also recognized to the defendant, who is a co-principal, to the extent that it is recognized as the purpose of concealing the disbursement of election expenses to the defendant 3, such as the statement in Section 4-b).

Therefore, the prosecutor's allegation in this part is with reason only for the part 216,66 won recognized as election expenses, such as the statement 5-A, and there is no reason for the exceeding part.

6. Determination of the defendants and the prosecutor's assertion on the part concerning the defendants 22 and 23

A. Judgment on the misunderstanding of facts by the Defendants

1) The judgment of the court below

The lower court determined that Defendant 22 received KRW 500,00 from Defendant 2 on June 12, 2018, when taking full account of the following facts as to Defendant 22: (a) Defendant 22 sent and received text messages with Defendant 4 on June 13, 2018, which was the day following the instant crime; and (b) Defendant 4 made a statement to the effect that “Defendant 22 received money from Defendant 22 on June 12, 2018, from Defendant 2, for election campaign workers at the election office.”

In addition, the lower court determined that the Defendant received KRW 50,00 from Defendant 2 on June 12, 2018, in full view of the following: (a) as to Defendant 23, Defendant 14 and Defendant 11 consistently made a statement to the effect that “Defendant 23 had taken the envelope containing cash KRW 500,000 on the day of the instant case; (b) Defendant 19 made a statement to the effect that “each of the Defendant was given the same as “each of the Defendant” on June 13, 2018; and (c) Defendant 4 made a statement to the effect that “Defendant 2 was in the election campaign office at the time when Defendant 2 divided the plastic bags to the election campaign workers from the election campaign office.”

2) Determination of the immediate deliberation

Inasmuch as the court below’s reasoning is closely and closely compared with the records, we affirm this part of the judgment of the court below. Thus, the defendants’ assertion is without merit.

B. Judgment on the prosecutor's assertion of unfair sentencing

Defendants received money and valuables from Defendants 1 and 2 in excess of the allowances and actual expenses prescribed by the Public Official Election Act, and denied the receipt of money and valuables yet.

However, Defendant 22 did not have any history exceeding the same criminal power and fine, and Defendant 23 was the primary offender in favor of the Defendants. In addition to these circumstances, there was no special change of circumstance that the punishment should be different from that of the lower court to this court after considering the following: the Defendants’ age, character and conduct, environment, motive, means and consequence of the crime, and the circumstances after the crime, etc., the lower court’s punishment is too uneasible and unreasonable even if considering all the sentencing factors in the process of the instant pleadings, such as the following circumstances.

Therefore, the prosecutor's assertion of unfair sentencing is without merit.

7. Judgment on the misapprehension of the public prosecutor’s legal principles on Defendant 5, Defendant 6, and Defendant 7, and on the assertion of mistake of facts

A. The judgment of the court below

As to Defendant 19’s statement in an investigative agency, the lower court: (a) deemed that Defendant 19 was in a de facto position of a criminal suspect because of the commencement of an investigation by considering that Nonindicted 1 and Defendant 19 had already been suspected of having committed a crime at the time when the statement of Nonindicted 1 and Defendant 19 was recorded; (b) in an investigative agency to lawfully examine Defendant 19, Defendant 19 must be notified of the right to refuse to make statements; (c) in the presence of an investigative agency as if Nonindicted 1 were in a mixed call, Defendant 19 were in the face of an investigative agency; and (d) recorded Defendant 19’s answer leading to the instruction after having the investigative agency ask questions of the suspect; and (e) it constitutes a case where the investigative agency denies the suspect’s right to refuse to make statements and infringes on the substantive substance of due process, and thus, the lower court determined that the evidence related to the recording of the above currency (i.e., evidence Nos. 24 and 25) was inadmissible as evidence for lack of admissibility of evidence.

Furthermore, with respect to Defendant 4’s statement, the lower court determined that Defendant 4’s statement was merely the purport that the Defendants considered the Defendants at the election office at the time of the instant case, and that the Defendants did not have received a plastic bag from Defendant 2, so the above statement alone is insufficient to prove this part of the facts charged, and that the evidence submitted by the prosecutor alone cannot be deemed as having been proven without any reasonable doubt that the Defendants received a plastic bag containing KRW 500,000 from Defendant 2 at the election office at the time of the instant case.

B. Judgment of the court below

The reasoning of the judgment below is as follows: (a) Defendant 19 and Defendant 4 made a statement at the trial court to the effect that “the defendants were given money at the election campaign office at the time,” and Defendant 11 made a statement at the trial court to the effect that “the defendants were not memoryd as to whether they were in the election campaign office at the time”; (b) other statements at the trial court and investigation agency of the court below as evidence by the prosecutor and Defendant 12 were merely a statement to the effect that the defendants were considered in the election campaign office; (c) the address of the sending base station at the time of the case of Defendants 5 and 7 (the defendant 5 was at around 738 meters away from the election campaign office and about 259 meters away from each election campaign office and the sending base station at around 259 meters away from each election campaign office) and that each of the above defendants received KRW 500,000,000 as evidence submitted by the prosecutor without any reasonable evidence.

Therefore, prosecutor's assertion is without merit.

8. Determination on the prosecutor's assertion of unfair sentencing on the part of the defendant 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21

The Defendants received money and valuables from Defendant 1 and Defendant 2 in excess of the allowances and actual expenses prescribed by the Public Official Election Act, and Defendant 19 demanded the payment of additional allowances, which led to the occurrence of this case, are disadvantageous circumstances against the Defendants.

However, the Defendants confession, Defendant 8, and Defendant 17 do not have the same criminal history, and the rest of the Defendants are the primary offenders, and Defendant 9 and Defendant 14 are relatively old. In addition, in light of these circumstances, there is no special change in circumstances that would vary from the original judgment to the court, and there is no special change in circumstances that would vary in the punishment from this court to this court. In addition, considering all the sentencing factors in the instant pleadings, including the Defendants’ age, character and conduct, environment, motive, means and consequence of the crime, circumstances after the crime, etc., the sentence of the lower court is too unreasonable.

Therefore, the prosecutor's assertion of unfair sentencing is without merit.

9. Conclusion

Therefore, among the judgment below, there are some grounds for appeal by the defendant 3 and prosecutor as to the part of the judgment of the court below as to the part of the judgment of the court below, and there are grounds for ex officio reversal as to the part of the judgment of the court below as to the part of the conviction against the defendant 4, and the prosecutor's appeal as to the part of the acquittal as to the part of the judgment of the judgment of the court below as to the acquittal against the defendant 3 and the defendant 4. Since the part of the judgment of the judgment of the court below as to the acquittal against the defendant 3 and the prosecutor's defendant 3 and the defendant 4 should be determined as a single punishment, and the part of the acquittal against the defendant 4 should be reversed in relation to the whole crime

Furthermore, the appeal filed by Defendant 1, Defendant 2, Defendant 22, and Defendant 23 and the prosecutor’s appeal filed by the Defendant 1, Defendant 2, Defendant 5, Defendant 6, Defendant 7, Defendant 8, Defendant 9, Defendant 10, Defendant 11, Defendant 12, Defendant 13, Defendant 14, Defendant 15, Defendant 16, Defendant 17, Defendant 17, Defendant 18, Defendant 19, Defendant 20, Defendant 21, Defendant 22, and Defendant 23 are entirely dismissed pursuant to Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

1. Defendant 4

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

Nevertheless, on June 12, 2018, the Defendant was issued an envelope containing KRW 500,00,00 from Defendant 1 and Defendant 2 at the election campaign office of Defendant 1 established on the second floor of ○○ ○○ ○○○ Baur, located in Gangwonwon ( Address 1 omitted) around 19:0.

Accordingly, the defendant received money in relation to election campaign beyond the scope of payment of allowances, actual expenses, and other benefits provided under the Public Official Election Act.

2. Defendants’ co-principal conduct

(a) Violation of the Political Funds Act by making any false accounting report, etc.;

The person in charge of accounting shall not fail to make an accounting report in violation of the provisions of Article 40 (1) through (4) of the Political Funds Act, or shall not submit the current status of property holdings, the amount of revenue and expenditure of the political fund and its details, the statement showing the revenue and expenditure, receipts, evidential documents, the copy of deposit passbooks, or submit a false statement, forgery, alteration or omission of the accounting report on the election expenses without justifiable grounds.

Nevertheless, around May 9, 2018, Defendant 3 instructed Defendant 4, an accountant in charge of accounting, to transfer the election expenses KRW 2 million to the proprietor of the ○○○ Youth room using Defendant 1 and two campaign workers as rest areas. Defendant 4, upon Defendant 3’s instruction, wired KRW 2 million to Nonindicted 2, the head of the ○○ Youth room, in which the election campaign office located in the Republic of Korea, located in the Republic of Korea Agricultural at the same time and at the same time ( Address 2 omitted).

In addition, around May 30, 2018, Defendant 3 prepared a contract with Nonindicted 1, an election campaign worker, to pay KRW 6.6 million to Defendant 1’s campaign speech reception training for Defendant 1 candidate, etc., and ordered Defendant 4 to keep separate receipts, etc. on the details of the accounting report, leading Defendant 4 to the contract. On June 2, 2018, Defendant 3 transferred KRW 3 million to Nonindicted 1, an election campaign worker, as a consideration for the campaign speech reception training for Defendant 1’s candidate.

After all, the Defendants, while making an accounting report to the election commission of △△-gun located in the Gangwon-do ( Address 3 omitted), around June 25, 2018, omitted to KRW 216,66 of the election expenses out of the above expenses, and failed to submit the details of the disbursement of KRW 3 million of the said political funds.

As a result, the Defendants conspired to omit the accounting report on election expenses without any justifiable reason, and failed to submit the details of political funds disbursement.

(b) Violation of the Political Funds Act by entry of account books, unreported accounts, and expenditures of unreported accounts;

The accountant in charge shall keep an account book in connection with the election expenses and enter matters concerning the revenues and disbursements of all political funds, and in the case of paying political funds in the election expenses, they shall be made through the deposit account reported to the competent election commission

Nevertheless, around May 2018, Defendant 3 instructed Defendant 4, as stated in Section 2-A(a), to transfer the franchise license fee of KRW 2 million to Defendant 4 and to the election commission, Defendant 3 shall not enter the details in the account book. Defendant 4, as described in Section 2-A(a), shall transfer the amount of KRW 2 million to Nonindicted 2 of the franchise business owner on the same date, and did not enter the details of expenditure for KRW 216,666 among the election expenses in the account book.

As a result, the Defendants conspired to do not go through the deposit account reported in relation to the election expenses of KRW 216,66,00, and did not enter matters concerning the disbursement of political funds, which are election expenses, in the account book.

3. Defendant 3

Revenues and expenditure of political funds of a candidate for an election for public office may be made only by a person in charge of accounting, and where political funds are disbursed, they shall be made through the deposit account reported to the competent election commission.

At around 18:55 on June 2, 2018, the Defendant transferred KRW 3,00,000 to the Defendant’s agricultural bank account, instead of the deposit account reported to Nonindicted 1, the election campaign workers, to Nonindicted 1, the Defendant was not in charge of accounting, and around June 29, 2018, remitted KRW 40,000 to Nonindicted 3’s agricultural bank account, not the deposit account reported through Nonindicted 3, Defendant 1’s wife, instead of the deposit account reported through Nonindicted 3, the election campaign workers, respectively.

Accordingly, the defendant did not go through a deposit account reported even if he is not a person in charge of accounting and disbursed political funds.

[Defendant 3]

1. The defendant's oral statement in court;

1. Defendant 4’s oral statement in the original trial

1. The prosecutor’s statement concerning Nonindicted 5

1. Each investigation report (the sequence 91, 265 of the evidence list);

1. A training agency contract, one book on the expenditure of political funds, a receipt of political funds, a receipt of political funds, a receipt of political funds (election expenses, other than election expenses), receipt, and other evidential documents, the details of transactions by Nonindicted 1, the passbook 1, the details of deposit account transactions by Nonindicted 2, the head of Tong 1, the head of Mour business, the statement of deposit account transactions by Nonindicted 2, the written confirmation of transfer (transfer of KRW 3 million), the statement of transfer results (transfer of speech allowances of KRW 4 million), the statement of remittance results (deposit of KRW 400,000), the statement of transactions (deposit allowances of KRW 4 million), the statement of transactions (deposit allowances of KRW 20,000), Defendant 3's entry and withdrawal transactions by agricultural cooperatives;

[Defendant 4]

1. The defendant's oral statement in court;

1. Each investigation report (the sequence 91, 265 of the evidence list);

1. A training agency contract, one book of expenditure of political funds, one copy of the account book, the receipt and disbursement of political funds, the receipt and disbursement book of political funds, the receipt and disbursement book (election expenses in charge of election expenses), the copy of the receipt and other evidential documents, Nonindicted 1 transaction statement, the passbook 1 transaction statement, Nonindicted 2’s deposit transaction statement of the head of the Mour business, the deposit slip of the Mour business, the written confirmation of transfer (transfer of KRW 3 million), the statement of transaction statement (deposit of KRW 3 million), the statement of deposit payment (deposit of KRW 2 million), the statement of deposit payment (deposit of KRW 3 million), the statement of deposit payment (deposit to Nonparty 2), and the details of Defendant 3’s deposit and withdrawal transactions

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

○ Defendant 3: Articles 49(1), 40(1), 30(1) of the Political Funds Act, Article 30 of the Criminal Act (the omission of accounting reports on election expenses), Article 46 subparag. 5, 40(1) and (3) of the Political Funds Act, Article 30 of the Criminal Act (the failure to submit details of disbursement of political funds other than election expenses), Articles 49(2)3 and 36(2) of the Political Funds Act, Article 30 of the Criminal Act (the disbursement of election expenses not via the reported deposit account), Articles 49(2)5 and 37(1) of the Political Funds Act, Article 30 (1) of the Criminal Act, Article 47(1)8, and Article 36(1) of the Political Funds Act (the omission of accounting reports on election expenses), Article 47(1) and (3) of the Political Funds Act, Article 47(1) of the Political Funds Act, Article 47(1)9(2) and (3) of the Political Funds Act other than the deposit Account.

○ Defendant 4: Article 230(1)7 and 4 of the Public Official Election Act; Articles 135(3) (the receipt of money and valuables related to election campaign); Articles 49(1) and 40(1) of the Political Funds Act; Article 30 of the Criminal Act (the omission of accounting reports on election expenses); Articles 46 subparag. 5, 40(1) and (3) of the Political Funds Act; Article 30 of the Criminal Act (the failure to submit details of disbursement of political funds outside of election expenses); Articles 49(2)3 and 36(2) of the Political Funds Act; Article 30 of the Criminal Act (the receipt of money and valuables related to election campaign); Articles 49(2)5 and 37(1) of the Political Funds Act; Article 30 of the Criminal Act (the receipt of money and valuables related to election campaign); Article 30 of the Political Funds Act

1. Commercial competition;

○ Defendant 3: Articles 40 and 50 of each Criminal Act. (Punishment of a violation of the Political Funds Act due to extra-election expenses not charged to a person in charge of accounting, and a violation of the Political Funds Act due to extra-election expenses and disbursement of political funds not in a deposit account reported, and punishment provided for the violation of the Political Funds Act due to extra-election expenses and disbursement of political funds, the nature of which is more severe.)

1. Selection of punishment;

Selection of each fine

1. Handling concurrent crimes;

○○ Defendant 3: Article 18(3) and 18(1)3 of the Public Official Election Act (i.e., violation of the Political Funds Act due to the omission of accounting reports on election expenses, violation of the Political Funds Act due to the disbursement of election expenses not via a deposit account reported, violation of the Political Funds Act due to the failure to enter in an account book for election expenses, violation of the Political Funds Act due to failure to submit the details of election expenses, and violation of the Political Funds Act due to non-election expenses and other political expenses

○ Defendant 4: Article 18(3) and 18(1)3 of the Public Official Election Act (the crime of violating the Public Official Election Act, the crime of violating the Political Funds Act due to the omission of accounting reports on election expenses, the crime of violating the Political Funds Act due to the disbursement of election expenses not via the reported deposit account, the violation of the Political Funds Act due to the omission of accounting books on election expenses, and the violation of the Political Funds Act due to the failure

1. Aggravation for concurrent crimes;

○ Defendant 3: the former part of Article 37, Articles 38(1)2, and 50 of the Criminal Act [1] Articles 30 [2] (1) and 38(1)2, and 50 [3] of the Political Funds Act; (2) Violation of the Political Funds Act due to an omission of an accounting report on election expenses in the reported deposit account; (3) Violation of the Political Funds Act due to an omission of an accounting report on election expenses; and (4) Violation of the Political Funds Act due to an omission of an accounting report on the most hot election expenses; and (4) concurrent crimes of concurrent crimes against the crime of violating the Political Funds Act due to an omission of an accounting report on the election expenses; (4) Violation of the Political Funds Act due to an omission of an election expenses and other political funds disbursement without a person in charge of accounting

○ Defendant 4: the former part of Article 37, Articles 38(1)2 and 50 (Violation of the Public Official Election Act, Violation of the Political Funds Act due to the omission of an accounting report on election expenses, violation of the Political Funds Act due to the disbursement of election expenses not via the reported deposit account, violation of the Political Funds Act due to the disbursement of election expenses not via the reported deposit account, between the violation of the Political Funds Act due to the failure of an account book for election expenses, and

1. Detention in a workhouse;

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

1. Additional collection:

Defendant 4: proviso of Article 236 of the Public Official Election Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Defendant 3

Although the Defendant, as an election campaign manager, is in overall responsible for election affairs and is in a position to handle election affairs in accordance with the procedures prescribed in the Public Official Election Act and the Political Funds Act, he committed the instant crime.

However, considering the fact that the defendant has no record of crime in the same way as the defendant's favorable circumstances, the defendant's age, character and conduct, environment, and the circumstances of the crime in this case shall be determined by comprehensively taking into account all the conditions of sentencing as shown in the arguments in this case.

2. Defendant 4

The Defendant, as a person in charge of accounting, has a duty to enforce and manage political funds in a transparent and strict manner and to observe the procedures prescribed in the Public Official Election Act and the Political Funds Act, but neglected such duty to do so, thereby preventing the Defendant from committing the violation of each Political Funds Act as indicated in the judgment, and received money and valuables from Defendant 1 and Defendant 2 in excess of the allowances

However, considering the fact that all of the crimes of this case are recognized by the defendant, the fact that the defendant has no penalty power, etc., in favor of the defendant, the circumstances favorable to the defendant shall be considered, and the conditions of all the sentencing specified in the arguments of this case, such as the defendant's age, character and conduct, environment, and circumstances of the crime of this case

1. Summary of the facts charged (defendants 3 and 4)

(a) Violation of the Political Funds Act by making any false accounting report, etc.;

The accountant in charge shall not fail to make an accounting report for election expenses without any justifiable grounds, or make a false entry therein, forge, alter or omit it.

Defendant 3, around May 9, 2018, instructed Defendant 4, an accountant in charge of accounting, to transfer KRW 2 million used for Defendant 1 and two rest rooms of the ○○○○○○ Telecom, which are used as election expenses, to Defendant 1 and election campaign workers. Defendant 4, upon Defendant 3’s instruction, remitted KRW 2 million to Nonindicted 2, the head of the ○○○ Telecomel business, in which the election campaign office is located, at the same time and on the same date, at the ○○○○○○○○○○ Telecom, which is located at the same time.

On June 25, 2018, the Defendants made an accounting report to the election commission of △△-gun located in Gangwon-do ( Address 3 omitted) and omitted the election expenses of KRW 2 million.

Accordingly, the Defendants conspired to fail to make an accounting report on election expenses without any justifiable reason.

(b) Violation of the Political Funds Act by entry of account books, unreported accounts, and expenditures of unreported accounts;

The accountant in charge shall keep an account book in connection with the election expenses and enter matters concerning the revenues and disbursements of all political funds, and in the case of paying political funds in the election expenses, they shall be made through the deposit account reported to the competent election commission

Nevertheless, around May 2018, Defendant 3 instructed Defendant 4, as stated in subparagraph 1-A(a), that Defendant 3 should not record the details in the account book, in which Defendant 4 remitted to Defendant 4 the payment of KRW 2 million using the telecom, which is election expenses, to the election commission, and reported to the election commission. Defendant 4, as described in subparagraph 1-A(a), wired the above KRW 2 million to Nonindicted 2 of the mother telecoming business owner on the same date and on the same date, did not record the details of the disbursement in the account book.

As a result, the Defendants conspired to disburse political funds for election expenses not through the deposit account reported in connection with the election expenses of two million won, and did not enter matters concerning the disbursement of political funds for election expenses in the account book.

2. Determination

For the same reasons as stated in subparagraph 4-A(1)(b) of the part of judgment, the part concerning KRW 1,783,34, which is not election expenses, in each of the facts charged, shall be pronounced innocent under the latter part of Article 325 of the Criminal Procedure Act, because it falls under a case where there is no proof of crime. However, inasmuch as it is found that the charge of violating the Political Funds Act due to the omission of accounting report on KRW 216,66, election expenses in relation to one of such crimes, violation of the Political Funds Act due to the disbursement of election expenses not via the reported deposit account, violation of the Political Funds Act due to the omission of

Judges Kim Jae-sung (Presiding Judge)

1) In the event that the judgment of the court below is reversed on behalf of the defendants who filed the appellate brief, the case where the reason for reversal is common to co-defendants who did not submit the appellate brief, see Supreme Court Decision 2000Do2626 delivered on December 8, 200, which held that the judgment of the court below should be reversed on the co-defendants.