Defendant

Prosecutor

Saryary forest

Attorney Lee Gyeong-min et al.

Incheon District Court Decision 2009 High Court Decision 6102 Decided June 18, 2010

The part of the judgment of the court below against the defendant is reversed.

Defendant shall be punished by a fine of KRW 800,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

The defendant is not guilty of violation of the Fisheries Cooperatives Act due to the demand for the provision of non-regular workers.

1. Summary of grounds for appeal;

A. Legal principles (as to the portion not guilty in the original judgment)

It is reasonable to view that Article 178 of the Fisheries Cooperatives Act does not require any additional election campaign except the limited acts provided for in Article 53 of the same Act in light of the relationship with Article 53 of the same Act, the form of provision, and the meaning of language and text. Nevertheless, the court below acquitted the defendant on this part of the facts charged on the ground that there is no indication that the defendant carried out an election campaign. The court below erred by misapprehending the legal principles on the elements of the crime of demanding a direct provision of office in

B. Unreasonable sentencing

As seen earlier, since the judgment of the court below is erroneous in the misapprehension of legal principles, the judgment of the court below shall be reversed, and a new punishment against the defendant shall be determined, and even if not, the punishment (the fine of KRW 800,000) imposed by the court below shall be too unreasonable and unfair.

2. Determination

A. Ex officio determination

Before the prosecutor's judgment on the grounds for appeal, the prosecutor examined the case ex officio, and applied for changes in the bill of amendment to the Fisheries Cooperatives Act due to the request for the provision of non-regular workers among the facts charged against the defendant. The defendant requested the temporary workers from the ○○○○ Fisheries Cooperatives △△△ branch (1.2 million won a monthly salary, 1.2 million won a year a year) to his own children, and demanded the non-indicted 1, etc. to provide a public position by receiving the promise of employment from the non-indicted 1 and 2. "In this regard, the defendant requested the non-indicted 2 supported by the non-indicted 1 to employ the non-indicted 3 as the defendant's temporary workers from the ○○○ Fisheries Cooperatives △△△△△ branch (1.2 million won a monthly salary, 1.1 year a year a year a year), and requested the non-indicted 1 to provide a public office by receiving the employment promise from the non-indicted 1 to the non-indicted 1, and the remaining part of the defendant's election campaign and the non-indicted 3.

However, the prosecutor's assertion of misapprehension of the legal principle is still subject to the judgment of this court, despite the above reasons for reversal of authority.

B. Judgment on the Prosecutor’s misapprehension of the legal principle

1) Summary of this part of the facts charged

No one shall provide or promise money, etc. or a public or private post to any elector (including a person eligible to enter in the electoral register before preparing the electoral register, who has joined the cooperative) or his/her family member, with an intention to have him/herself or any specific person elected or not to be elected as an executive officer or representative of a district fisheries cooperative or a specific person, and shall not receive money, etc. or request the provision

On February 17, 2009, around 14:20, Non-Indicted 1 asked the Defendant to employ a non-regular worker even in the ○○○○ Cooperative because both the wife and children were hospitalized in the hospital, and the children were extremely in the official book, and Non-Indicted 1 approved the agreement. The non-Indicted 1 approved the agreement.

Accordingly, the Defendant demanded the employment of Nonindicted 3, the Defendant’s child, temporary workers at the ○○○ Fisheries Cooperative Branch (1.2 million won a monthly salary, 1.2 million won a term of office) for the purpose of having Nonindicted 1 elected Nonindicted 2 in election, and demanded Nonindicted 1 to provide a public position by receiving employment promise from Nonindicted 1.

2) The judgment of the court below

The court below found the defendant not guilty under the latter part of Article 325 of the Criminal Procedure Act on the ground that even if based on this part of the facts charged, there is no indication that the defendant made the election of the non-indicted 2 or prevented the candidate from being elected, and there is no other evidence to prove that the defendant carried out an election campaign for non-indicted 2 on behalf of the non-indicted 2.

3) Determination of the immediate deliberation

Article 53(1)3 of the Fisheries Cooperatives Act provides that "any person shall not demand the provision of a position of public corporation for the purpose of getting a specific person elected or not elected as an executive officer by district consultation." Article 178(1)2 of the same Act provides that "any person who conducts an election campaign in violation of the provisions of Article 53(1) shall be punished." Article 53(1)3 of the same Act provides that "The person who conducts an election campaign in violation of the provisions of Article 53(1) shall be punished." Article 53(1) of the same Act provides that "The order and system of arrangement of the relevant provision, and (2) as an excessive main factor in the above provision, "the purpose of causing a person to be elected or not elected." Article 55-4(1)3 of the same Act provides that "No person shall be provided with an additional provision for an election campaign for the purpose of causing an election campaign to be elected or not to be elected as an executive officer of public corporation," and Article 55-4(2)3 of the former Fisheries Cooperatives Act provides that "no person shall be provided with an additional provision for election campaign for the same purpose.".

With respect to this case, there is no indication that the defendant made the election of the non-party 2 or prevented the candidate from being elected, and there is no other evidence to acknowledge this (the defendant made an election campaign for the non-party 4 who is the candidate for the non-party 2 by taking advantage of the status of the non-party 1 as stated in the facts constituting the crime in the judgment below). In the same purport, the judgment of the court below that this part of the facts charged constituted a case where there is no proof of a crime, is just, and there is no error of law of misunderstanding the legal principles as to the crime of demanding a direct provision of office under the Fisheries Cooperatives Act as argued by the prosecutor, and therefore the prosecutor's ground for appeal

3. Conclusion

Therefore, although the prosecutor's assertion of legal principles is without merit, there is a ground for ex officio reversal of the part of the judgment of the court below, and thus, the part of the judgment of the court below against the defendant is reversed under Article 364 (2) of the Criminal Procedure Act without examining the prosecutor's argument of unfair sentencing.

Since the criminal facts and the summary of the evidence against the defendant recognized by this court are the same as the corresponding columns of the judgment of the court below, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

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

Article 178 (1) 3 and Article 53 (5) 1 of the Fisheries Cooperatives Act. Article 178 (Election Campaign for Officers and Selection of Fines)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The crime of this case where the defendant conducted an election campaign against a certain candidate by taking advantage of the status of ○○○○ non-standing director, is likely to harm the objectivity and fairness of election for the president of a district fisheries cooperative, and thus, it is necessary to strictly punish the crime in order to establish a fair election culture.

However, in full view of the fact that the candidate supported by the defendant does not seem to have a significant impact on the election due to his defeat, any crime-free first offender, the degree of involvement in the election campaign is relatively minor, and other various sentencing conditions that are shown in the records and arguments, such as the age, character, family environment of the defendant, and the circumstances before and after the crime, the sentence imposed by the court below cannot be deemed to be light, and thus, the sentence of the court below shall be maintained as it is.

The summary of the violation of the Fisheries Cooperatives Act due to the request for the provision of non-regular workers among the facts charged against the defendant is the same as the above 2-B.1, which constitutes a case where there is no proof of criminal facts as seen in the above 2-B.3, and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the

Judges Seo Gyeong-sung(Presiding Judge)

Note 1) The bottom part is changed.