Defendant 1 and two others

Kim Sung-mun

Attorney Han-gio et al.

Defendant 1 shall be punished by a fine of KRW 5,00,00 for each violation of the Public Official Election Act, by a fine of KRW 2,00,000 for a violation of the Framework Act on the Construction Industry and a violation of the Construction Technology Management Act, and by a fine of KRW 2,00,00 for a violation of each Public Official Election Act.

In the event that the Defendants did not pay the above fines, the Defendants shall be confined in the Labor House for a period of 50,000 won converted into one day.

To order the Defendants to pay the amount equivalent to the above fine.

Defendant 1: (a) a person, who was laid off as a candidate for the prime market at the fourth local elections conducted on May 31, 2006 at the fourth local elections on the local level, was killed, and was selected as a candidate for the prime market on August 12, 1998; (b) a non-indicted 14 Stock Company (the representative director, on May 2, 2001; (c) a non-indicted 15 Stock Company (the representative director, on September 26, 2006, changed from Non-indicted 1 to Non-indicted 16; and (d) a person who jointly operated and operated the above companies on September 1 and 16, respectively; (d) a person who was an employee of the non-indicted 14 Stock Company at the time of the above election; and (e) a volunteer who served as a volunteer at the time of the above election as a member of the non-indicted 14 Stock Company;

1. Defendant 1:

A. In collusion with Nonindicted 4 and 1,

around August 202, 100: (a) 10 persons, including Nonindicted 1, 4, and 12, etc., who aided Defendant 1’s election campaign at the third cafeterias located in the original city at the third 5th local election, gathered together with their meals, and, at the same time, contributed Defendant 1 to the proposal of Nonindicted 4 while carrying out an election campaign; (b) referring to Defendant 1 at the next election market; and (c) the group for assisting in the election campaign (after Defendant 1, 1, 3, the name of “original” or “convenition,” etc. ; (d) decided 15 days every month to manage the 10th election campaign team of Nonindicted 3, the most oldest, from 00 to 10 days every month; and (d) from 10, Nonindicted 4, who is the head of the Gu election campaign team, have the members of the local government participate in the election campaign, and (e) assigned the 5th election campaign team to the members of the local government.

(b)A person wishing to be a candidate in an election of the head of a local government shall not make a contribution to a person, institution, organization, or facility located in the constituency in question, or a person, institution, organization, or facility having relations with the electorate even if outside the constituency in question;

(1) On February 2, 2005, at the office of Non-Indicted 15 Co. 15 located in the Sinsan-dong, Youngju-si, a member of the “original private placement,” made a contribution by having Non-Indicted 1 deliver one food gift sheet to the members in the constituency of the election for the original state market among the members of the “original private placement,” and made a contribution;

(2) On September 2005, 2005, Nonindicted Party 1 made contributions by having Nonindicted Party 1 deliver one food gift tax sheet to the members within the constituency of the election district of the original state market among the members of the “original private placement” at the same place; and

(3) On January 1, 2006, Nonindicted Party 1 made a contribution by having Nonindicted Party 1 deliver one food gift tax sheet to the members within the constituency of the election district of the original state market among the members of the “original private placement” at the same place, and make a contribution;

C. In collusion with Non-Party 1 and the election campaign manager’s identity, no person may have a member carry out an election campaign by taking advantage of an official act within the organization of a professional institution, organization, etc.,

From May 18, 2006 to 30 from May 18, 2006, Nonindicted 2 and 3, the vice head of Nonindicted Company 15, are assigned to the joint team leader of the election campaign team having jurisdiction over the Masan-si, Taedong, Taedong, and Geumdong, and are responsible for the paid election campaign workers allocated to the team, and have them carry out an election campaign by taking advantage of an official act in the above company, respectively;

D. On October 6, 200, in order to jointly purchase 5734.25/22937 shares of Defendant 1’s funds and 73 million won of Nonindicted 1’s funds, among 13-3 forest land and 14-1 forest land of the same 14-3 forest land and 21,086 square meters in Gangwon-do, Seoul Special Metropolitan City through a voluntary auction at the main district court in Chuncheon Special Metropolitan City on October 6, 2000, using Defendant 1’s funds of KRW 80 million and KRW 73 million of Nonindicted 1’s funds. However, on October 4, 2005, the title of the purchase was in the name of Nonindicted 1, 13-3 forest shares and 3527.76462/2937 of forest land among the above 14-1 forest shares, the ownership of the forest and 2608/270 of the forest for the purpose of the election of KRW 1608,08.

On May 8, 2006, at the office of the original City/Gu Election Commission located in Dobong-dong, Suwon-si, Seoul Special Metropolitan City on May 8, 2006, to submit a report on the property of a candidate for public election, which lacks the shares remaining in the name of Nonindicted Party 1 among the above school-dong forests, and to post the report on the omitted property on the website of the National Election Commission. At that time, Defendant 1’s property was prepared a approximately KRW 110,00,000 of the book-type election campaign bulletin stating that Defendant 1’s property is KRW 22,10,050,000 and distributed to the original citizens on the basis of the remaining property except the above shares.

E. In collusion with Nonindicted Party 1:

(1) On February 2, 2004, around February 2, 2005, and around February 2, 2006, at the Chuncheon Branch of the Korean Association of Technical Personnel, the fact is not having been in office in Nonindicted Co. 15 even though the class order, who is a construction engineer, was not in office in Nonindicted Co. 15, a false report on the status of retaining technicians, respectively.

(2) The career certificate of construction technology from December 1, 2005 to April 30, 2006, and the career certificate of construction technology from January 26, 2006 to June 30, 2006 to use it respectively in Nonindicted Co. 15;

2. Defendant 2, Defendant 3

Except for the cases of providing allowances, actual expenses, and other benefits under the Public Official Election Act, anyone may not provide money, valuables, or other benefits in connection with election campaign regardless of the pretext thereof, such as allowances, actual expenses, and compensation for volunteer service; in collusion,

On May 19, 2006, at the election office of Defendant 1 located in the original Dong Dong-dong, Defendant 1 provided money and valuables in relation to the election campaign by giving 3,300,000 won to volunteers and non-indicted 13 at the same place on May 24, 2006, each sum of KRW 1,100,000 to volunteers and non-indicted 13 at the same place on the same day.

1. The Defendants’ partial statements in the first trial record;

1. Each legal statement of the witness, Nonindicted 1, 2, 3, Maternity, Nonindicted 10, 11, 9, 5, and 17

1. Some of the records concerning the interrogation of the Defendants to the prosecution

1. Each protocol of prosecutorial statement on Nonindicted 2, 3, 1, 13, 5, Lee Jong-ray, Nonindicted 10, 11, Maho-ho, Nonindicted 4, and 17

1. Account settlement report2 (183 pages of investigation records), volunteer statement hearing report (194 pages of investigation records), deposit list (219 through 225 pages of investigation records), ascertaining the registration status of construction technology certificate (451 pages of investigation records), election campaign bulletin (615 through 626 pages of investigation records), report on the property of the candidate for public election (59 through 641 pages of investigation records), hearing report on the status of non-workers' payment of salaries of towing construction (738 pages of investigation records), statement on the status of non-workers' payment of salaries (739 pages of investigation records), statement on non-workers' benefits (742 pages of investigation records), statement on the purchase of forest and dynamic forest, statement on the purchase of scientific records (752 pages of investigation records), statement on the list of personal records, statement on the receipt of rewards (753 through 754, statement on investigation records of investigation records), statement on the purchase of real estate (753 through 7554, statement on investigation records), statement on the receipt of rewards;

1. Article applicable to criminal facts;

A. Defendant 1

(1) Establishment of private organization: Article 255(1)9, Article 87(2) and Article 30 of the Public Official Election Act, and Article 30 of the Criminal Act

(2) Each contribution act: Article 257(1)1 and Article 113 of the Public Official Election Act;

(3) Election campaigns for each official duty: Articles 225(1)9 and 85(2) of the Public Official Election Act, and Article 30 of the Criminal Act

(4) Publication of false facts: Article 250(1) of the Public Official Election Act

(5) False report on the current status of each engineer: Article 97 Subparag. 1 and Article 23(3) of the Framework Act on the Construction Industry, and Article 30 of the Criminal Act

(6) Lending of each career certificate of construction technology: Article 42-2 subparag. 4 and Article 6-3 of the Construction Technology Management Act and Article 30 of the Criminal Act

B. Defendant 2, 3

The provision of money and valuables related to each election campaign: Article 230(2) and (1)4 of the Public Official Election Act, Article 135(3) of the Criminal Act, Article 30 of the Criminal Act (Provided, That the punishment prescribed in Articles 230(1)4 and 135(3) of the Public Official Election Act shall be imposed on Defendant 3 on the ground that there is no person in charge of accounting's identity.

1. Selection of punishment;

A. Defendant 1: Selection of each fine for the remaining crimes except for the violation of the Framework Act on the Construction Industry

B. Defendant 2 and 3: Selection of each fine

1. A separate sentence;

Defendant 1: Article 18(3) and (1)3 of the Public Official Election Act

1. Aggravation for concurrent crimes;

Defendants: Articles 37 (former part), 38 (1) 2, and 50 (Defendant 1) of the Criminal Act; Articles 50 (Article 50 (Article 1); Punishment on the violation of the Public Official Election Act due to the publication of false information with the largest punishment; Punishment on the remaining crimes; Punishment on the violation of the Framework Act on the Construction Industry on February 2, 2006; Punishment on the violation of the Public Official Election Act on February 2, 2006; and Punishment on the violation of the Public Official Election Act on Nonindicted 13 with the largest punishment)

1. Detention in a workhouse;

Defendants: Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Defendants: Article 334(1) of the Criminal Procedure Act

1. The point of establishment of private organization;

A. Summary of the assertion

Defendant 1 asserts that “original placement” is merely an organization aimed at promoting friendship among its members, and it is not a private organization for Defendant 1’s election campaign, but did not participate in the establishment of “original placement.”

B. Determination

(1) Whether “original placement” is a private organization

(A) Article 87(2) of the Public Official Election Act [Article 89-2(1) of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189, Mar. 12, 2004)] is a provision for maintaining fairness in election campaign organizations among candidates, and preventing excessive competition and waste due to the difficult establishment of various forms of election campaign organizations. The term "private organization which is prohibited from establishment or establishment in the above provision" means any private organization which is established or established other than a legal election organization for a candidate or a person who wishes to be a candidate, regardless of its name or professing purpose (see Supreme Court Decision 2002Do45, Jun. 25, 2002).

(B) According to the above evidence, the following facts are acknowledged.

① On August 202, 2002, Defendant 1 got out of the election for the prime market, and Nonindicted 1, 4, and 12, who carried out an election campaign for Defendant 1 for Defendant 1, decided to hold a regular meeting from that time on a regular basis upon proposing that Nonindicted 4’s friendship with those who carried out an election campaign for Defendant 1 for Defendant 1, would promote the friendship of those who would have carried out an election campaign for Defendant 1, and regularly defective meetings to support Defendant 1 at the next prime market election.

② Although the above gathering did not formally specify the name, it was called “the meeting of the persons who love Defendant 1” as “original placement” or “voluntary love,” and Nonindicted 4 played a general role as an adviser and Nonindicted 1.

③ Members of the above gathering are non-related persons except that they engaged in an election campaign for Defendant 1 in a local election on 2002.

④ Nonindicted 1 sent food futures sets to the members of “original private placement,” when the Gu administration is ordered from the mix of 2003 to the 2006. On January 2005, Nonindicted 1, 2005, the employees of Nonindicted 14 and Nonindicted 15 were required to accompany the members of “original placement,” when the employees of Nonindicted 14 and Nonindicted 15 were to defolied to the kin bar.

⑤ From September 2005, Nonindicted 1, 9, and 11, a member of “original private placement, recruited the members of the political party of Korea open to be elected at the competition in the election for the purpose of election in 2006, and Nonindicted 11, 13, 7, 5, and 10, a member of “original private placement,” who is the member of “original private placement, performed volunteer service as Defendant 1’s head of the election campaign team at the election in 2006, part of the members of “original private placement,” such as conducting volunteer service as Defendant 1’s head of the election campaign team at the election in 206.

(C) As can be seen, in light of the fact that “original private placement” was composed of those who engaged in Defendant 1’s election campaign in the local election on 2002, and that the purpose of Defendant 1’s election campaign was to assist in Defendant 1’s election campaign in the local election on 2006, Nonindicted 1 managed the members by sending gifts to the members of “original private placement,” and by having the members participate in the event of the company that is operated with Defendant 1 together with Defendant 1, and that the members of “original private placement” engaged in election campaign for Defendant 1 by recruiting senior members and providing volunteer service on 206, it is reasonable to deem “original private placement” as a private organization for election campaign.

(2) Whether Defendant 1 was involved in the establishment of a “original placement”

(A) In the case of co-offenders who act in collusion with two or more persons, the conspiracy does not require any legal punishment, but is sufficient if there is an implicit communication on the joint execution of the crime directly or indirectly between the accomplices, and even if there is no direct evidence, it can be recognized by the circumstantial facts and empirical rules (see Supreme Court Decision 2005Do2014, Sept. 9, 2005).

(B) According to the evidence as seen earlier, Defendant 1’s act of attending the regular meeting of “original private placement” in which Nonindicted 1 and 4 et al. participate in the election campaign at the local election on a regular basis with Defendant 1’s consent, and there was no long time to gather them periodically. Thus, in light of the purpose of “original private placement,” which is to assist Defendant 1 in the election campaign at the local election on January 1, 2006, the act of Defendant 1’s attending the regular meeting of “original private placement” objectively constitutes an act of contributing to the public announcement of establishment by strengthening the unity of “original private placement,” and the “original private placement,” in which Nonindicted 1 conspired with Defendant 1 to establish the “original private placement,” and the “original private placement,” in which it is reasonable to view that Defendant 1 participated in the election or the exercise of the local election, and Defendant 1 directly participated in the election of the local election.

2. Points for contributions;

A. Summary of the assertion

Defendant 1 asserts that there is no fact that Nonindicted 1 sent gifts to the members of the original friendly group in the Gu administration and the 2006 Gu administration, and even if the gifts were delivered, it cannot be deemed that Defendant 1 made a contribution since Nonindicted 1 merely sent gifts to the members of the friendly group individually, and Defendant 1 did not know such fact. Even if Defendant 1 made a contribution, it is merely a courtesy gift to the members of the friendly group, and it is not unlawful as it does not violate the social rules.

B. Determination

(1) Whether a contribution was made

The non-indicted 1 initially made a list of the persons who will give gifts to Defendant 1, including the customers of the non-indicted 15 corporation, etc., and the list was included in the members of the non-indicted 1’s “original private placement.” After that, the non-indicted 1 made a statement to the effect that he did not present the list of the members of the non-indicted 1’s “original placement.” The defendant 1 also stated that the non-indicted 1 stated the list of the members of the non-indicted 1’s “original placement.” The non-indicted 1 stated that the non-indicted 1’s “the non-indicted 203’s list of those who will give gifts to the Non-indicted 15 corporation,” and that the non-indicted 2’s statement to the effect that the non-indicted 1 and the non-indicted 10’s statement to the prosecution including the non-indicted 2’s “the non-indicted 10’s statement to the non-indicted 16’s credibility of the Gu administration.”

(2) Whether Defendant 1 can be deemed to have made a contribution act

The other party who delivered the gift by Nonindicted Party 1 was a member of the “private placement” to support Defendant 1’s election campaign, and Nonindicted Party 1 did not have any reason to make personal gifts to the members of the “private placement,” and therefore, Defendant 1 received a report from Nonindicted Party 1 on the fact that he received the gift from Defendant 1 to the members of the “private placement,” and allowed him to make a contribution by implied means, even though he was in a situation in which he was aware that he was to receive the gift from Defendant 1, as a matter of course, even though he was in a situation in which he was aware that he was to receive the gift from Defendant 1, and even after that day, Defendant 1 received a report from Nonindicted Party 1 on the fact that he was to make a gift to the members of the “private placement.” In light of these circumstances, it is reasonable to deem

(3) Whether an act constitutes an act that prevents illegality

In a case where it can be seen that a contribution act made by a candidate, etc. is within the scope of social order which has been historically created as a normal living form, there may be cases where illegality can be avoided as it does not violate social rules as a kind of courtesy or official act (see Supreme Court Decision 2004Do6323, Feb. 18, 2005).

In light of the fact that the other party to the contribution act of this case did not exceed 10 persons, and the donated goods were not valuable goods as food gift tax. However, in view of the fact that the other party to the contribution act is members of the “original private placement”, which is a private organization for Defendant 1’s election campaign, and Nonindicted Party 1 delivered gift to the members of the “original private placement” whenever it comes to be continuously made in the management of the “original placement,” including the non-prosecution portion during the period from the end of 2003 to the Gu administration, and that the donation act of this case is continuously made in the course of the member management of the “original private placement,” it cannot be deemed that the illegality of the contribution act of this case does not violate the social rules. Accordingly, the above argument is without merit.

3. An election campaign by official use.

A. Summary of the assertion

Defendant 1 asserts that Defendant 1 did not have ordered Nonindicted 2 and 3 to conduct an election campaign, and that Nonindicted 2 and 3 did not know that he was conducting an election campaign. Defendant 1 was a major shareholder of Nonindicted Company 15 and did not participate in the management at all, Defendant 1 did not allow Nonindicted 2 and 3 to conduct an election campaign using his official act.

B. Determination

According to the evidence mentioned above, Defendant 1 was a major shareholder holding 65% of the shares of Nonindicted Co. 15 with his wife and Nonindicted Co. 16, and operated Nonindicted Co. 15 with Nonindicted Co. 1 by receiving a report on important matters from Nonindicted Co. 1. Nonindicted Co. 2 and Nonindicted 3, who is an employee of Nonindicted Co. 15, had Nonindicted Co. 1 conduct an election campaign for Defendant 1 according to the direction of the election campaign manager, who is the election campaign manager. Even if Nonindicted Co. 2 and Nonindicted 3 did not work almost during the election campaign period, they started an election campaign for Defendant 1. Although Nonindicted Co. 2 and Nonindicted 3 did not attend the election campaign at the place or election campaign office where Nonindicted Co. 3 are engaged in an election campaign and did not appear to have known that Defendant 1 conspired with Nonindicted Co. 2 and Nonindicted Co. 3 for an election campaign without attending the election campaign, and it seems difficult to recognize that Defendant 1 conspired with Defendant 1’s intention and supervision.

4. The point of publishing false facts.

A. Summary of the assertion

Defendant 1 asserts that Defendant 1 did not omit the above forests and fields for the purpose of election, but omitted the report because he did not know that the above forests and fields were not subject to the report, because he did not have any right to the above forests and fields since he had the title trust of 14-1 forests and fields, such as 13-3 forests and fields, which were the land of the original city, which were the land of the original city, and thus, he did not know that Defendant 1 had any right to the above forests and fields, and even if the property subject to the report is the property subject to the report, Defendant 1 would be favorable to the election.

B. Determination

(1) Whether the above woodland is subject to reporting

According to Article 49(4)2 of the Public Official Election Act, Articles 10-2(1) and 4(1) of the Public Service Ethics Act, a person who applies for the registration of a candidate for a public office shall report his/her property owned by him/her, regardless of his/her ownership. In light of the legislative purpose of the Public Service Ethics Act, the purpose of preventing the unlawful increase of the public official’s property and ensuring fairness in performing public duties and establishing the ethics of the public official as a servant for the public. In light of the legislative purpose of the Public Service Ethics Act, the property trusted to another person by a candidate for a public office under the name of a public office can be construed as included in the property subject to the report, regardless of whether the right to request a return

(2) Whether Defendant 1 omitted a report for the purpose of election

The fact that a candidate to run in an election for public office manages property under a title trust can be sufficiently predicted that the candidate's integrity and morality judgment was affected in the election for public office, and according to the evidence above, Defendant 1 could recognize the fact that he was going to run in a local election even in 2002, and it seems that Defendant 1 had been well aware of the scope of the property to be reported at the time of registration of the candidate to run in an election for public office. Thus, Defendant 1 should be deemed to have omitted the above forest land from the property report for the purpose of election.

(3) As to the compensation for expropriation

Defendant 1 knew on November 20, 2006 that the above forest will be expropriated from the prosecution for the first to second years, and stated that he was aware of the fact that the compensation was paid around March 2006. In addition, as long as the report was omitted on both the forest under title trust with Nonindicted Party 1 and the fact that part of the forest was expropriated and the compensation was paid, the establishment of the crime does not affect regardless of whether he was aware of the fact that the forest was partially expropriated and the compensation was paid.

5. False report on current status of holding technicians and lending career records of construction technology;

A. Summary of the assertion

Defendant 1 asserts that, since Nonindicted Co. 1 was entirely managed by Nonindicted Co. 15, Defendant 1 did not know about the false report on the current status of affiliated engineers or the lending of construction technology records.

B. Determination

Defendant 1, along with Nonindicted Co. 1, received a report on important matters while operating Nonindicted Co. 15, and according to the aforementioned evidence, Nonindicted Co. 1 reported that Defendant 1 was leased career certificates from Defendant 1 due to lack of career experience personnel necessary for comprehensive construction license around May 201, 201, and Defendant 1 impliedly accepted this fact, and Nonindicted Co. 1 knew that Defendant 1 was silent about lending career certificates, etc., and filed a false report on the current status of possession of career engineers, such as this part of the facts charged, in light of these circumstances, Defendant 1 and Nonindicted Co. 1 can be recognized as a public recruitment relationship on lending career records of construction technology, etc. Accordingly, the above assertion is not acceptable.

6. As to offering money or goods related to the election campaign

A. Summary of the assertion

Defendant 2 and 3 asserted that there was no intention to provide money or goods in relation to election campaigns, with the knowledge that moving-out vessels, who are volunteers, have leased the vehicle, and they have remitted 1.1 million won as vehicle rental expenses.

B. Determination

According to the above evidence, the above defendants remitted 1.1 million won to the above defendants without confirming whether or not the above defendants had provided a vehicle in relation to the election of the E-ray, Non-Indicted 5, and Non-Indicted 13. The E-ray and Non-Indicted 4, 11, 500,000 won which actually provided a vehicle in relation to the election can be recognized as having a substantial difference between the E-ray and Non-Indicted 5, and 1.1 million won which are paid to the E-ray and Non-Indicted 13 as rent and the E-ray and Non-Indicted 5, and 1,100,000 won which were paid to the above defendants. In light of these circumstances, the defendant 2 stated that he provided money and valuables to the above defendants even though he was aware that the E-ray did not lend a vehicle at the investigative agency (the prosecutor's examination report against Defendant 2, Nov. 10, 206).

1. Defendant 1

A. Violation of the Public Official Election Act

The establishment of private organizations and contributions related to the election are acts that undermine the transparency and fairness of the election and undermine the right choice of voters, and the publication of false information for the purpose of election is an act that makes it impossible for voters to make reasonable judgment by providing distorted information about candidates. An act of allowing election campaigns by taking advantage of official acts is an act that is likely to avoid regulations on the methods of election campaigns under the Public Official Election Act and infringe on the political freedom of persons in a certain relationship, and all of the violations of each of the Public Official Election Act are likely to be subject to criticism. Defendant 1 again committed a violation of each of the Public Official Election Act even though he had been sentenced to a fine of KRW 90,000 due to the violation of the Public Official Election and Prevention of Unlawful Election Act in 202.

However, in relation to the establishment of private organizations, Defendant 1 did not actively intervene in the process of establishing the “original private placement,” and in light of the size, composition, organization level, activity details, etc. of “original placement,” Defendant 1 appears not to have been highly likely to cause irregularities in relation to election. As to the contribution act, Defendant 1 did not directly instruct the members of the “original placement,” but took part in the crime in passive means to approve it, and Defendant 1 did not direct the election campaign directly to Nonindicted 2 and Nonindicted 3 with respect to the election campaign using official activities. In light of the fact that Defendant 1 did not directly instruct Nonindicted 1 and the election campaign manager to direct the election campaign in accordance with the implied agreement with Nonindicted 1 and the election campaign manager, it appears that Defendant 1 did not directly lead each of the acts in violation of the Public Official Election Act, but did not intend to use the order of each of the instant election campaign in favor of the candidate, as well as to the extent of using it in favor of the candidate.

(b) Violation of the Framework Act on the Construction Industry and Construction Technology Management;

Defendant 1, in collusion with Nonindicted 1, filed a false report on the current status of affiliated engineers on three occasions and borrowed career records of construction technology from two persons, but Nonindicted 15 Co. 1 was mainly managed by Nonindicted 1, and Defendant 1 participated in the aforementioned act to the extent that Nonindicted 1 consented to such act. In light of these circumstances, the punishment as ordered shall be determined.

2. Defendant 2, 3

An act of offering money or goods without following the provisions of the Public Official Election Act in relation to election campaign shall be determined as ordered by taking full account of all the circumstances, including the acts likely to undermine the transparency and fairness of election, the circumstances leading to the crime in this case, the degree of participation in the crime in this case, and the fact that there is no record of punishment for the same kind of crime.

1. Summary of the facts charged

Of the facts charged against Defendant 1, the summary of the part that published false facts by omitting the claim against Nonindicted Party 1 at the time of reporting the candidate’s property is that Defendant 1 published false facts by means of omission in the report of property for the purpose of election, such as omitting the claim against Nonindicted Party 1 in the return of property for the purpose of election. Since September 2004, Defendant 1 published false facts by means of omission in the report of property for the purpose of election.

2. Determination

According to each prosecutorial statement against Nonindicted 17 and 1 and the fourth prosecutorial interrogation protocol against Defendant 1, Defendant 1: (a) Defendant 1’s wife Nonindicted 16-5 and Nonindicted 16 were the owner; (b) KRW 50 million out of the sales price of the main complex building constructed on the ground as the contractor for Nonindicted 15 was deposited into the account in the name of Nonindicted 15; (c) KRW 256 million was deposited into the first bank account; and (d) the remainder amount of KRW 246 million was deposited into the agricultural bank account; and (e) KRW 256 million was paid to Nonindicted 16 to Nonindicted 15; and (e) KRW 246 million was paid to Nonindicted 16 to the owner of the building; and (e) KRW 240 million was paid to Nonindicted 16 to the owner of the new building in the name of Nonindicted 15 and KRW 56 million was paid to the owner of the building on the ground.

However, Nonindicted 17, an employee in charge of accounting of Nonindicted Co. 15, stated to the effect that, although Nonindicted Co. 15 and Nonindicted Co. 1 sold the construction work of Nonindicted Co. 15 at the expense of Nonindicted Co. 15, the construction of a new building by creating the same type as that of receiving construction from Nonindicted Co. 16 or an individual from Nonindicted Co. 1, was used to sell the land and buildings together. During that process, it was not clearly handled whether the owner of the cost incurred in the purchase of the land and the owner of the profit accrued from the sale of the land and the building is either Defendant 1 or Nonindicted Co. 1, or Nonindicted Co. 15, etc., the name of Nonindicted Co. 1 was acquired with the funds of Nonindicted Co. 15. While Nonindicted Co. 1 purchased the land using Nonindicted Co. 15’s funds, Nonindicted Co. 1 and the owner of the profit accrued from the sale of the land and the building was not in dispute between Nonindicted Co. 15 and the private Co. 15’s funds.

In light of these facts, it is difficult to view that Defendant 1 possessed a claim against Nonindicted 1 on the sole basis of the fact that part of the proceeds from the sale of the land and building in the stage of Defendant 16’s wife, as seen earlier, was accounted for as the repayment of the construction price obligation to Nonindicted 15 Stock Companies. Even if such a claim was made, it is difficult to deem that Defendant 1 was aware of the existence of the claim and intentionally omitted it. There is no evidence to prove that Defendant 1 published false facts as to the claim amounting to KRW 244 million against Nonindicted 1.

Thus, this part of the facts charged constitutes a case where there is no proof of a crime and thus the innocence should be pronounced pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, inasmuch as the court found the defendant guilty of violating the Public Official Election Act due to publication of false facts in relation to the facts charged

Judges Go Young-gu (Presiding Judge)