2015No43 Violation of the Public Official Election Act

1. A;

2. B

Both parties

Kim Jong-Appellee (prosecutions) and Kim Young-young (Trial)

Law Firm K

Attorney L (for the defendant)

Law Firm AL

Attorney AM (for the defendant)

Daejeon District Court Decision 2014Gohap123 Decided January 8, 2015

May 20, 2015

The judgment of the court below is reversed.

Defendant A shall be punished by a fine of KRW 8 million, and Defendant B shall be punished by a fine of KRW 1 million. In the event that the Defendants fail to pay each of the above fines, the Defendants shall be confined respectively to the Labor House for the period calculated by converting each of the above fines of KRW 1 million into one day.

To order the Defendants to pay an amount equivalent to the above fines.

1. Summary of grounds for appeal;

A. Defendant A

1) Legal principles

Of the facts of the crime of Paragraph 2 of the judgment below, with regard to the part that the defendant provided money and valuables to A, the defendant employed A as a driver and paid a monthly wage in return for performing driving duties, not with regard to an election campaign. Nevertheless, the court below erred by misapprehending the legal principles, thereby finding the defendant guilty.

2) Unreasonable sentencing

The punishment of the lower court (fine 10 million won) is too unreasonable.

B. Defendant B

The court below's sentence (2 million won of fine) is too unreasonable. The prosecutor is too unreasonable.

The sentence of the court below against the defendant A is too unhued and unreasonable.

2. Ex officio determination

The judgment on the grounds for appeal by the Defendants and the public prosecutor shall be examined ex officio.

The lower court determined that the crime No. 2 as indicated in the judgment against Defendant A was a single comprehensive crime. However, it is reasonable to view that each crime of the crime of the crime of the crime of the crime of the crime of the crime of the No. 2 as indicated in the judgment against Defendant A was an act of providing money and valuables in return for election campaign, and all of the acts of offering money and valuables to seven persons are in the relationship of substantive concurrent crimes (see Supreme Court Decision 98Do1432, Apr.

Nevertheless, the court below committed each of the crimes of Article 2 of the judgment of the defendant A as an inclusive crime, and such illegality affected the judgment. Therefore, the part of the judgment of the court below against the defendant A among the judgment of the court below is no longer maintained.

However, even if there is a ground for ex officio reversal in the judgment of the court below on the part of defendant A, the defendant A's assertion of misapprehension of legal principles is still subject to the judgment of this court.

3. Determination on the grounds for appeal

A. Defendant A’s assertion of misapprehension of legal principles

1) The Public Official Election Act provisions and the legal principles pertaining thereto

A) Article 135(3) of the Public Official Election Act provides that anyone may not offer, express an intention to offer, recommend, request, or receive money, valuables, or other benefits in connection with an election campaign regardless of the pretext such as allowances, actual expenses, compensation for volunteer service, etc. Except for cases where allowances, actual expenses, and other benefits are provided pursuant to the Public Official Election Act. Article 120 subparag. 6 of the same Act provides that the operating expenses of a motor vehicle on which a person is on board shall not be deemed election expenses.

In full view of the above provisions, any person shall be punished if he/she offers, expresses, or promises to offer money, goods, or other benefits in connection with the election campaign regardless of the pretext, such as allowances, actual expenses, compensation for volunteer service, etc., but the expenses for the operation of a motor vehicle to be used by a candidate are not included in election expenses regulated under the Public Official Election Act even if they are disbursed in connection with the election. Thus, the act of offering or receiving the expenses in connection with the operation of a motor vehicle to be used by a candidate in the election campaign does not constitute an act of offering or collecting money, goods, etc. related to the election campaign prohibited under Article 135(3) of the Public Official Election Act. Here, the expenses for the operation of motor vehicles include the amount paid by a candidate to a driver of a motor vehicle for the election campaign (see, e.g., Supreme Court Decisions 2005Do2049, May 25, 2006; 98Do1432, Apr. 9,

B) In addition, "in relation to an election campaign" as provided by Article 135 (3) of the same Act means that "in response to an election campaign, motiveing matters concerning an election campaign" is more broad for an election campaign, and even if there was no purpose of influencing the purpose of the election or purpose of the election, it is necessary to regulate the act itself that is likely to infringe on the fairness of the election.

Since money and valuables are determined, it does not necessarily need to be the price for the advance campaign, and it includes what is related to the election campaign, such as the cost for providing information related to the advance campaign, and the cost for the election campaign of persons engaged in the election affairs (see Supreme Court Decision 2010Do910, Dec. 23, 2010).

2) The judgment of the court below

After compiling the adopted evidence, the court below found the facts as stated in its holding, and found that A was guilty of this part of the facts charged on the ground that A was not merely a driver related to Article 120 subparag. 6 of the Public Official Election Act, but also a driver and an unregistered election campaign worker, and that part of the money A received from the defendant was the remuneration for labor, and that it was reasonable to view that some of the money constitutes an election campaign-related activity.

3) Determination of the immediate deliberation

A) According to the court below's and the evidence adopted and examined by the court below, the monthly average wage of KRW 2,065,95 is equivalent to the monthly average wage of KRW 2,065,95 for the year 2013, and the defendant's monthly average wage of KRW 1,670,000 ( KRW 1,500,000) for this three-month period is recognized. Thus, we affirm that the monthly average wage of KRW 3 months received from the defendant of this case does not extend to the monthly average wage of KRW 2013 for the year 2013.

However, considering the above circumstances, in addition to the circumstances duly adopted by the court below, considering the following circumstances, which are additionally acknowledged by the evidence adopted by the court below, namely, AA received orders from the election office if it is removed from the name of the defendant's vehicle, and supplemented them. Even if most of the money paid to A was paid by the defendant to A, it is reasonable to say that AA is included in the amount of compensation in terms of the name of compensation for helping AA to carry out an election campaign.

B) The judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as alleged by the defendant and his defense counsel.

B. Defendant B’s assertion of unreasonable sentencing

The defendant, in collusion with A, etc. who has left the election of a City Council member of the City Council, made 800 copies of the leaflet on which A supports and recommends the simultaneous local election day, and distributed them to the members of the Korean Council in which the defendant is the head. The legislative intent of the Public Official Election Act prohibiting the distribution of documents by unlawful means is prescribed in the Public Official Election Act.

Since it is intended to ensure the fairness of election by regulating election campaigns by an evasion of law in the procedural aspect that is not determined by the due process, the defendant who has violated it should be held liable corresponding to it.

However, in full view of the following factors: (a) the Defendant divided his mistake into depth and reflects; (b) the Defendant has no criminal history of the same kind; (c) the Defendant has to consider the sentencing equality 1 in sentencing with co-defendants who were punished by the instant crime; and (d) the Defendant’s age, character and conduct, environment, circumstances of the crime, circumstances after the crime, etc.; and (b) all the sentencing conditions specified in the instant argument, such as the Defendant’s age, character and conduct, circumstances after the crime, and the result of the application of sentencing guidelines by

4. Conclusion

A. The part against Defendant A

The part of the judgment below against the defendant is reversed under Article 364(2) of the Criminal Procedure Act without examining the defendant's and the prosecutor's allegation of unfair sentencing, and the part against the defendant is again decided as follows. (b) The part against the defendant B is also decided as follows:

Since the appeal by the defendant is well-grounded, the part of the judgment of the court below against the defendant is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

Criminal facts and summary of evidence

The summary of the facts constituting an offense and evidence recognized by this court is the same as the statement in each corresponding column of the reasoning of the judgment below, and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

A. Defendant A: Articles 255(2)5 and 93(1) of the Public Official Election Act, Article 30 of the Criminal Act (including the distribution of documents under the law), Articles 230(1)4 and 135(3) of the Public Official Election Act (including the provision of money and valuables related to election campaigns, and the provision of money and valuables related to election campaign against A), and each fine is selected

B. Defendant B: Articles 255(2)5 and 93(1) of the Public Official Election Act, Article 30 (a) of the Criminal Act, and the selection of lending type

1. Aggravation for concurrent crimes;

Defendant A: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (limited to concurrent crimes with punishment prescribed in the Public Official Election Act due to the provision of money and valuables related to election campaign-related to election campaign-related to I with the largest sentence)

1. Detention in a workhouse;

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

1. Order of provisional payment;

1. Defendant A: Fine of 8 million won

The Defendant made 800 copies of the front section of the recommendation for the support of the Defendant in collusion with the Round-ro B, etc., and distributed them to the members of the above church, and solely paid 2.34,00 won to six election campaigners in addition to the allowances and actual expenses prescribed in the Public Official Election Act, and paid to AA in addition to the remuneration for driving duties.

The legislative purpose of the Public Official Election Act prohibiting the act of receiving money or valuables related to election campaign is to prevent the election campaign by excessive election campaign if it is allowed to provide profits in relation to election campaign, and if benefits are provided to election campaigners, election campaign is carried out for the benefit of election campaigners, which makes it difficult to carry out a fair election, so it is to prevent it.

In light of the fact that each of the crimes of this case committed by the defendant is aimed at ensuring the fairness of election by regulating election campaigns under the evasion of law, thereby impairing the purpose of legislation of the Public Official Election Act that strictly prohibits acts of receiving money or goods related to election campaigns in order to realize a clean and clean election, and that the amount of money or goods provided by the defendant to election campaigners, etc. is relatively large, the sentence of punishment equivalent to the invalidation of election should be imposed on the defendant. However, in light of the fact that the defendant's act of providing money or goods in relation to the late movement is divided and reflected in depth, 2.340,00 won in total paid by the defendant to election campaigners is in many aspects of compensating actual expenses for election campaign workers. The most of the money paid by the defendant to AA is the consideration for conducting election campaign, and there is no particular criminal records other than the one-time prior to the punishment, age, character and conduct of the defendant, motive for the crime, etc., the sentencing guidelines and sentencing guidelines set by the Criminal Procedure Committee shall be comprehensively determined in consideration of the sentencing guidelines and sentencing criteria set for the defendant.

2. Defendant B: A fine of one million won.

The presiding judge and the second judge

Judges Gangseo-do;

Judge Choi Jong-il

1) The co-defendant C et al. of the lower court was sentenced to a fine of KRW 500,000,000, and the lower judgment became final and conclusive.

2) [Determination of type] Violation of the method of an illegal election campaign in violation of the election campaign period for the election campaign group (type 2).

【Special Convicted Person】

[Scope of Recommendation] Fines of KRW 700,000 to KRW 2 million (Basic Area)

3. 1. The scope of applicable sentences by law: Fines not exceeding 45 million won;

2. Application of the sentencing criteria;

(a) A violation of the Public Official Election Act due to the provision of money or valuables related to each election campaign;

[Determination of Penalty] General Purchase (Type 2) of Waste Water and Inducing for Understanding of Election Crimes Group:

【Special Convicted Person】

[Scope of Recommendation] Imprisonment of six months to one year and four months (Basic Area)

B. Violation of the Public Official Election Act due to the distribution of documents in accordance with the unlawful method

[Determination of Type] Violation of the method of election campaign in violation of the election campaign period for the election campaign group (Type 2)

【Special Convicted Person】

[Scope of Recommendation] Fines of KRW 700,000 to KRW 2 million (Basic Area)

(c) Scope of modified sentence of punishment: Imprisonment with prison labor from June to May 10 (the maximum of sentence among concurrent crimes that are set forth in the upper limit of sentence for basic crimes); and

1/2 and 1/3 of the upper limit of the scope of punishment for high crimes, the second higher limit of the scope of punishment, respectively.