2014Gohap298 Violation of the Public Official Election Act

A

For the purpose of transfer (prosecution) and for the purpose of public trial (public trial)

Attorney B

January 15, 2015

Defendant shall be punished by a fine of KRW 4,000,000. Where the Defendant fails to pay the above fine, the Defendant shall be confined in the workhouse for a period calculated by converting KRW 100,000 into one day.

The provisional payment of the amount equivalent to the above fine shall be ordered.

Criminal facts

On June 4, 2014, the Defendant, as the chief executive officer of the 'D Mountain Association' in 405 of the window of Changwon-si (hereinafter referred to as the 'D Mountain Association'), was established and operated substantially from 2008, performed the role of the chief executive officer of the G preliminary candidate election campaign at the election of the F Party G candidate, which was opened in the election of the Do governor, in the course of the competition in the party competition.

In the intra-party competition for which voting rights are granted to any party member and any person other than a party member, the political party may conduct a competition campaign only by installing an election campaign office or posting banner, etc. at the said election campaign office, by any candidate for the competition taking his name, photograph and other matters necessary for public relations into consideration or appeal for support 9cm in length, by not more than 5cm in width and not more than 5cm in width, by sending only one kind of publicity materials prepared by any candidate for the competition in the political party and holding a joint speech meeting or a joint debate meeting in the political party

Nevertheless, the Defendant directed H and I, who is an employee of the Do governor of the Do Council operated by the F Party, to analyze and report the tendency of representatives to participate in the local public opinion and competition election for G preliminary candidates and to the members of the Do Council on April 14, 2014, in order to ensure that the F Party is elected as candidates by obtaining a high support rate of G preliminary candidates at the competition lines (in a way of granting voting rights to party members and non-party members) in the F Party for the election of the Do governor candidate, which will be carried out on April 14, 2014, and tried to send text messages that support and publicize G preliminary candidates by means of automatic broadcast communications.

Accordingly, at around 13:14 on February 7, 2014, the Defendant directed H and non-literal, the director general of the D Mountain Association, etc. at the D Mountain Association office, to 148 persons including D Mountain Association members, including the members of D Mountain Association, and requested to frequently submit public opinion trends in local areas.-D General Director A sent text messages containing D Mountain Association A using "K, which is the site of mass text transmission of D Mountain Association, which is a site of D Mountain Association, in which the Defendant subscribed under the name of the Defendant," and then sent them by means of automatic broadcast communication using the above website to promote and support G preliminary candidates for five times from that time to February 22, 2014, as shown in the attached list of crimes.

Accordingly, the Defendant conducted a competition campaign in violation of the intraparty competition campaign method.

Summary of Evidence

1. Defendant's legal statement;

1. Each prosecutor's protocol of statement concerning I and H;

1. Schedule for the promotion of competition at the heads of the F Party metropolitan organizations, and the composition and operational status of the D Mountain societies;

1. Each investigation report (including attached data);

Application of Statutes

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

Articles 255(2)3 and 57-3(1) of the Public Official Election Act (amended by Act No. 2510, Feb. 1, 201)

1. Detention in a workhouse;

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

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judgment on the argument that the statute of limitations has expired

1. Summary of the assertion

The statute of limitations for the crime of violating the Public Official Election Act is "six months after the relevant election day" in accordance with Article 268 (1) of the Public Official Election Act, and the "relevant election day" in the crime of violating the Public Official Election Act concerning the intra-party competition refers to the day of the intra-party competition. Therefore, the public prosecution of this case filed after six months from April 14, 2014, which is the day of the intra-party competition, has already expired.

2. Determination

The fundamental issue of how to determine the scope and period of the statute of limitations is that the legislative body is related to legislative policies that should be specifically determined in consideration of various circumstances, such as the history and culture of Korea, relationship with the criminal justice system, status of crimes, people's values or legal sentiment, in particular, the legal stability of society and citizens and the necessity of punishing criminals. Therefore, in principle, the determination of how to determine the statute of limitations system belongs to the wide range of discretion of the legislators, and therefore, it cannot be said that the legislative discretion violates the Constitution unless it is arbitrarily exercised in violation of the Constitution.

However, the main text of Article 268(1) of the Public Official Election Act provides that "the prescription of a public prosecution against a person who violates the Public Official Election Act shall expire six months after the relevant election day (six months after the date of the act in case of a crime committed after the election day)." This provision provides a kind of special provision that sets the statute of limitations against a person who violates the Public Official Election Act shall be strictly interpreted in order to promptly treat him/her as a person who violates the Public Official Election Act and promptly resolve the unstable state caused by his/her election and promote the prompt legal stability of the interested parties, such as the elected, and it is necessary to do so. The provision of the above Act provides that "the relevant election day" is limited to "the relevant election day" and the same provision does not distinguish him/her from other provisions of the Public Official Election Act, and it is reasonable to interpret that the single statute of limitations is applied uniformly to all election offenders without exception, and it means the voting day of this case which is directly related to the election crime, regardless of whether before or after the election day (see Seoul High Court Decision 200Do16168, Dec. 26, 208, 20008.

Therefore, the defendant and his defense counsel's assertion that the statute of limitations for the crime of this case has expired at the time of the prosecution of this case cannot be accepted.

Reasons for sentencing

1. Application of the sentencing criteria;

[Determination of Punishment] Type 2 (Violation of Methods of Election Campaign) of Election Campaign in Violation of the Election Campaign Period for Election Campaign and Unlawful Election Campaign (Aggravated Punishment) (Aggravated Punishment)

[Recommendation and Scope of Recommendation] Aggravation, one million won to four million won

2. Determination of sentence: The crime of this case by a fine of KRW 4,00,000 was committed by the Defendant using the D mountain conference operated by him to analyze and instruct the representatives to participate in the local public opinion and competition for G preliminary candidates or send text messages to the members to participate in the competition with the aim of having the F Party E-Do governor elected G in the intraparty competition. The election campaign was conducted in a manner not prescribed in the Public Official Election Act. In light of the fact that the Public Official Election Act strictly limits the methods of the intraparty competition campaign in order to ensure that the fair election is held in accordance with the citizen’s free will and democratic procedure, the Defendant’s responsibility is not less easily, and the fact that the Defendant committed the crime of this case in a planned and systematic manner is disadvantageous to the Defendant.

On the other hand, the fact that the defendant himself is dead, and the defendant seems to have sent the letter of this case only to the members of the D Mountain Association, and that the defendant has no record of being punished for the same kind of crime is favorable to the defendant.

In each of the above circumstances, the sentencing conditions as shown in the arguments of this case, such as the age, character and conduct, environment, motive, means and consequence of the crime of this case, the circumstances after the crime, etc., and the scope of recommended sentencing guidelines, shall be determined as per the order.

The presiding judge, judge and senior citizens;

Judges Cho Jong-soo

Judges Yellow Jin-jin

A person shall be appointed.