[1] The purport of Article 12 of the Constitution guaranteeing the right to refuse to make statements as the basic rights of the people, and whether the right to be notified of the right to refuse to make statements is derived from Article 12(2) of the Constitution of the Republic of Korea (negative)

[2] In a case where a member or employee of the election commission did not notify the person concerned of the right to refuse to make a statement at the time of the enforcement of the former Public Official Election Act before the provision on the right to refuse to make a statement to those to be polled was newly established, whether the procedure of investigation is unlawful (negative), and whether the written answer of the election commission prepared and collected in the process is admissible

[1] Article 12(1) of the Constitution declares the principle of due process in Article 12(1) and Article 12(2) of the Constitution provides that “All citizens shall not be advisered and forced to make a statement unfavorable to themselves in criminal cases,” thereby guaranteeing the right to refuse to make a statement as a fundamental right of the people. This is intended to eradicate the coercion and adviser of non-human confession in relation to criminal liability and to guarantee the dignity and value of human beings. However, in the procedure where the right to refuse to make a statement is guaranteed, the right to receive a notification of the right to refuse a statement can not be derived from that of Article 12(2) of the Constitution, and legislative support is required to acknowledge it.

[2] Article 272-2 of the former Public Official Election Act (amended by Act No. 12111, Aug. 13, 2013; hereinafter the same) provides that a member or employee of the Election Commission may ask questions to and investigate relevant persons in relation to the investigation of election crimes, and does not provide any separate provision regarding notification of the right to refuse to make statements. It cannot be said that Article 244-3(1) of the former Public Official Election Act, which provides for notification of the right to refuse to make statements to a suspect, applies to the investigation procedure of members or employees of the Election Commission under the former Public Official Election Act, as a matter of course. Meanwhile, Article 272-2(7) of the former Public Official Election Act (amended by Act No. 12111, Aug. 13, 2013; hereinafter the same applies) provides that “The Act enters into force on the date of its promulgation,” and Article 1 of the Addenda provides that the former Public Official Election Act’s investigation procedure conducted before the election commission’s entry into force of an interview.

[1] Article 12(1) and (2) of the Constitution / [2] Article 12(1) and (2) of the Constitution of the Republic of Korea; Article 272-2 of the former Public Official Election Act (Amended by Act No. 12111, Aug. 13, 2013); Article 272-2(7) of the Public Official Election Act; Article 1 of the Addenda (Amended by Act No. 12111, Aug. 13, 2013); Article 244-3(1), 308-2, and 313(1) of the Criminal Procedure Act

Defendant

Defendant and Prosecutor

Attorney Lee In-bok et al.

Seoul High Court Decision 2013No120 decided May 2, 2013

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. As to the admissibility of the written answer by the election commission against Nonindicted 1

Article 12 of the Constitution declares the principle of due process in Paragraph (1) and Paragraph (2) of Article 12 of the Constitution provides that “All citizens shall not be subject to adviser and shall not be forced to make a statement unfavorable to him/her in criminal cases,” thereby guaranteeing the right to refuse to make a statement as a fundamental right of the people. This is intended to eradicate the coercion and adviser of non-human confession in relation to criminal liability and guarantee human dignity and value. However, in the procedure where the right to refuse to make a statement is guaranteed, the right to be notified of the right to refuse to make a statement can not be derived from Article 12(2) of the Constitution, and legislative support is required to recognize it.

Article 272-2 of the former Public Official Election Act (amended by Act No. 12111, Aug. 13, 2013; hereinafter the same) provides that a member or employee of the election commission may ask questions to and investigate relevant persons in relation to the investigation of election crimes, and there is no separate provision regarding notification of the right to refuse to make statements. Article 244-3(1) of the former Public Official Election Act, which provides for notification of the right to refuse to make statements to a suspect by an investigation agency, does not necessarily apply to the investigation procedure of a member or employee of the election commission under the former Public Official Election Act. Meanwhile, Article 272-2(7) of the former Public Official Election Act (amended by Act No. 12111, Aug. 13, 2013; hereinafter the same shall apply) provides that Article 1 of the Addenda provides that "this Act shall enter into force on the date of its promulgation," and the former Public Official Election Act applies to the investigation procedure of an election commission conducted before the entry into force of a statement.

According to the reasoning of the judgment of the court below, the court below maintained the judgment of the court of first instance that rejected all the defendant's arguments disputing the admissibility of the written response of the election commission prepared by non-indicted 2 and 3, etc., who are employees of the Gyeonggi-do Election Commission under the former Public Official Election Act, and maintained the judgment of the court of first instance that admitted the admissibility of evidence. This judgment of the court below is in accordance with the above legal principles, and even according to the records, there is no evidence suggesting that the Gyeonggi-do Election Commission's employees, etc. aid the defendant to demand money in return for election campaign, induce non-indicted 1 to make a false statement in compliance with the facts charged in this case, or induce non-indicted 1 to make a false statement on the contents that correspond to the facts charged in this case by extracting the statement of non-indicted 1 from selectively and making a statement on the written response, so long as there is no evidence that distorted or distorted

Furthermore, on the premise that Nonindicted 1’s written reply to the election commission’s written reply constitutes the documents stipulated in Article 312(3) of the Criminal Procedure Act, the lower court’s rejection of the Defendant’s assertion that the admissibility of evidence should be denied as long as the Defendant denies the content of the written reply to Nonindicted 1, and that the said written reply may be admitted as evidence pursuant to the main sentence of Article 313(1) of the Criminal Procedure Act is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the requirements to recognize admissibility

B. As to whether money or goods related to election campaign were provided

The lower court: (a) upon investigation conducted by the Gyeonggi-do Election Commission, recommended the registration of Nonindicted Party 1 on behalf of the Defendant for an election campaign, such as having the Defendant carry out an election campaign for KRW 2 million through KRW 3 million, and stated that the Defendant carried out an election campaign for the Defendant; (b) Nonindicted Party 1 did not present a certified copy of Nonindicted Party 1’s labor contract to the election campaign worker for KRW 2,00 through KRW 3,000; (c) Nonindicted Party 1 did not present a certified copy of the daily election campaign for KRW 1,00,00 to the election commission for KRW 2,00; and (d) the Defendant did not present a certified copy of the daily election for KRW 1,00 to the Nonindicted Party 1,00,000 for KRW 7,00 to April 20, 2012; and (d) the Defendant did not present a certified copy of the daily election campaign for KRW 14,000 to the Nonindicted Party 2’s office, and did not present it as his local revenues and receipts.

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the above determination by the court below is just and acceptable, and contrary to what is alleged in the grounds of appeal, there is no violation of the principle of free evaluation of evidence.

2. As to the Prosecutor’s ground of appeal

A. As to admissibility of recording files, etc.

The lower court, on the grounds indicated in its reasoning, determined that the files recording Nonindicted 1’s conversation with Nonindicted 5, the election commission’s employee rejected admissibility of the files copied with Nonindicted 1, Defendant 1, and Nonindicted 6, and further, the record on the basis of the files, the protocol of examination of Nonindicted 1, the protocol of examination of Nonindicted 1 by the prosecution, and the protocol of examination of Nonindicted 1 by the prosecution, are inadmissible.

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles as to the right to investigate election crimes by

B. As to the contribution act promise

원심은, 피고인이 공소외 1에게 ▷▷호텔 사우나 할인권의 제공을 약속하였다는 이 부분 공소사실에 대하여 그 판시와 같은 이유를 들어 범죄의 증명이 부족하다고 보아 무죄를 선고한 제1심판결을 그대로 유지하였다.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle

3. Conclusion

Therefore, all appeals by the defendant and prosecutor are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)