Defendant

Prosecutor

Park Woo-chul

Jeonju District Court Decision 2010Ma134 decided January 13, 2011

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

In full view of the fact that the Defendant, as the chairman of the local committee of ○○○ City and △△△ City, is in the position of overall control over the political affairs of the ○○○○○○○○ branch in the area of △△△ City, held a preparatory meeting to hold the party members’ rally on August 11, 2009 (hereinafter “△△ branch”), the members of the local committee state the above office as the “party members’ office”, and the contents of the banner from the above office and the structure of the above office, etc., the Defendant was found guilty of the facts charged in the instant case that the Defendant used the office of △ branch as the party members’ office of the △ branch for the operation of the City/Do party subordinate organizations. However, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby affecting the conclusion of the judgment.

2. Determination

A. Summary of the facts charged in this case

Although anyone is unable to establish an office of the party members council, etc. for the operation of subordinate organizations of the City/Do party, the Defendant, as the chairperson of the △△△△ City local committee of ○○ City, Jeollabuk-do, Jeollabuk-do, established a telephone, facsimile, computer, and conference room, etc. at the office of △△△△ branch located in △△△△△△ City (hereinafter omitted), from May 6, 2008, and then, active members of the △△△△ branch were gathered from the △△△ branch, who proposed to hold a meeting on the contents of the party members consultation at the ○○○ City, Jeollabuk-do City, or made contact from the △△ branch, and used the above office as the office of the party members council, etc. for the operation

B. The judgment of the court below

The lower court acquitted the Defendant on the grounds that the evidence submitted by the prosecutor alone is insufficient to recognize that the Defendant had established an office of the party members council, etc. for the operation of subordinate organizations of the City/Do party, and that there is no clear evidence to acknowledge otherwise.

C. Judgment of the court below

(1) The following facts are acknowledged according to the evidence duly adopted and examined by the court below.

(A) On April 9, 2008, the Defendant went away from the 18th National Assembly member election, which was implemented on April 9, 2008, to the △△ City constituency. From May 2008, the head of the △△△ City Regional Committee, which belongs to ○○○ Party, is in charge of the chairman of the relevant regional committee. According to Article 67 of the party constitution, etc., the regional committee is a party member council belonging to the relevant region, and the chairman of the regional committee is in charge of the duties of representing the regional committee

(나) 피고인은 자신의 비용으로 2008. 5. 6.경 △△시 (이하 생략) 소재 건물의 3층 부분 294.62㎡에 △△아카데미라는 명칭의 사무소를 설치하고, 사무소 운영에 필요한 물적·인적 시설과 ‘농촌사회복지사업 연구 및 시행’을 목적사업으로 정한 △△아카데미의 정관까지 마련하였으나, 현재까지 사단법인 설립을 위한 주무관청의 허가를 받거나 설립등기를 마치지 않았다(피고인은 2009. 12. 16. 검찰에서, ‘피고인이 사단법인 설립을 위하여 전라북도측과 협의를 하였으나 주무과 선정을 위하여 사단법인의 목적을 명확히 해달라는 요청을 받았고, 그 후 2009. 4.경 재·보궐 선거, 노무현 대통령 서거 정국, 연이은 김대중 대통령 서거 정국, 2009. 10.경 재·보궐 선거에 따른 당 업무로 바빴던 관계로 사단법인 설립 추진 업무가 잠시 중단된 상태’라고 진술하였다).

(C) In the office of △△ City, the office of △△ City stated in the name of the regional committee of △△△△ City, that “MB music Act - the mobile phone lobbbbbbbb, the mobile phone lobbbbbb, wp w w k w w w w k w k w k w k w k w k k w k w k w k w k w k k w k w k k w k k k w k w k w k w w k w k in the position of Nonindicted Party 1 and the head of the public service center as the standing adviser belonging to the local committee of △△ City. Nonindicted Party 2 was on November 25, 2009 at the office of △△ City.” However, there was no specific fact that Nonindicted Party 2 had any work related to the ○○ Party.

(D) Nonindicted 4 and Nonindicted 5, etc., who belong to ○○○○ Party, stated at the prosecutor’s office to the effect that “The regional party system was abolished, and the party office is being used as the party members’ council office.”

(E) On August 13, 2009, the ○○○○ Party planned to hold the “Phool for the invalidation of the source of the Press Act” at the former Viewing Meeting. However, on the day on which the said Pool was held, the Defendant decided to hold a regional party members conference at a morning and encourage its members to participate in the said Pool. Accordingly, on August 11, 2009, around 17:00 for the preparation of the party members rally, 20 persons, such as the City/Do Council members belonging to ○○○○ Party, Nonindicted 2, etc., at the ○○○○○○○ Party’s office, were discussed regarding the progress of the event of the Pooling Party and the party members, the burden of expenses, and the provision of transportation convenience.

(F) On the other hand, from May 6, 2008, from which △△△ Academy office was established, it was not revealed as to whether a meeting of the party members council, such as the instant facts charged, was held in addition to the meeting of the countermeasures set forth in the above paragraph (e) to the present office, and if held, how the specific contents of the meeting were discussed.

(2) The burden of proof for the criminal facts prosecuted in a criminal trial shall be borne by the prosecutor, and the conviction shall be based on the evidence of probative value, which makes the judge sure that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is a suspicion of guilt against the defendant, it shall be determined with the benefit of the defendant (see Supreme Court Decision 2002Do6110, Feb. 11, 2003, etc.).

According to the above facts, the office of △△ branch does not have specific activities other than the preparation activities as an incorporated association. On the other hand, at the office of △△ branch, members belonging to the local committees of △△ branch work in the office of △△ branch were posted under the name of △△ branch, and the countermeasures were held prior to the promotion of the participation of the △△ branch in the △△△ branch in the △△ branch, and some of the ○○ branch members of the City/Do council stated that the office of △ branch is used as the party members council office of △ branch, which is prohibited by the proviso of Article 37(3) of the Political Parties Act. However, in light of the purport of the proviso of Article 37(3) of the Political Parties Act, it is difficult to recognize that the above office of △ branch was an office of △ branch for the establishment and operation of the △ branch council or other material activities of the △ branch for the purpose of preventing any side effects that occurred from the establishment of the △ branch.

Therefore, since the facts charged in this case are when there is no proof of crime, the prosecutor's above assertion is without merit.

3. Conclusion

Therefore, the prosecutor's appeal of this case is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Yong-ran (Presiding Judge)