(영문) 부산지방법원 2014.11.28.선고 2014고합567 판결

Defendant shall be punished by a fine of KRW 1,500,000. 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.

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

Reasons

Criminal History Office

The Defendant was elected in the election of the Busan Metropolitan Council members implemented on June 2, 2010, and thereafter was elected in the E-election of the Busan Metropolitan Council members implemented on June 4, 2014 to the F Party.

At around 2009, the Defendant served as the president of the Council, from August 1994 to February 1996, the Defendant was appointed as a part-time lecturer and a full-time lecturer at HH University as a part-time lecturer and a full-time lecturer at HH University. On March 1, 2010, the Defendant was appointed as an assistant professor at the above school’s hotel management division at the above school on leave of absence on July 1, 2010, and was in the position of the above “head of the school” corporation and “head of the employment support center.”

No person shall publish any false fact about the candidate's career, etc. in favor of a candidate (including a person who intends to become a candidate) by means of a speech, broadcast, newspaper, communications, magazine, poster, publicity document, or any other means with the intention of getting elected or getting elected, and shall also publish any false fact in connection with the intra-party competition.

1. From October 2013 to early November 2013, the Defendant distributed approximately KRW 40,000 of the Defendant’s report on the parliamentary affairs of the Busan Metropolitan Council member to the electorate in the constituency of Busan E, etc., the Defendant stated that the Defendant “the president of the IOC in relation to the fact that the Defendant served as the president of the said Council” in the above report on parliamentary affairs career column, and ② the fact that the said school did not have trade department in the above school, and the Defendant was temporarily retired from the office of the head of the corporation and the head of the Employment Support Center, even if the said school was in the status of the above school’s hotel management and professor, and the Defendant was completely in the position of the head of the corporation and the head of the Employment Support Center.”

As a result, the defendant published false facts about the defendant's career in favor of the defendant who intends to be a candidate for the purpose of election.

2. From March 28, 2014 to May 14, 2014, the Defendant distributed approximately KRW 5,000 of the Defendant’s name cards for preliminary candidates to the electorates in the districts of Busan E, etc., the Defendant entered the name cards “the chairperson of the Council” and “the professor of the NH University (the head of the trade department, the head of the legal entity, and the head of the employment support center)” in the back of the name cards as stated in the above Paragraph 1. Accordingly, the Defendant published false facts about the Defendant’s career in favor of the Defendant who wishes to be a candidate for the purpose of election.

3. On April 2014, the Defendant entered about 600 copies of the Defendant’s promotional materials in the constituency of Busan E, etc. as “the Chairperson of the Council” and “the professor of the National H University (the Department of Trade, the Head of the Corporate Office, and the Head of the Employment Support Center) affiliated with the aforesaid promotional materials in the career column of the above promotional materials, as described in paragraph (1).

As a result, the defendant published false facts about the defendant's career in favor of the defendant who intends to be a candidate for the purpose of getting elected in connection with the intraparty competition.

Summary of Evidence

1. Defendant's legal statement;

1. Statement to J police officers;

1. A copy of name cards, competition campaign material, and parliamentary report;

1. Readings, such as the H University website, and documents verifying the facts related to the career records of preliminary candidates, and documents and materials to be submitted by the E-ray official;

1. Application of Acts and subordinate statutes to each investigation report (attached to data submitted by the A, attaching documents of the G Council, attaching documents of the K Council, specifying the period and place of crime, and conducting an investigation into the positions of the department, corporation head, and the head of the Employment Center of the suspect A);

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

Article 250(1) of the Public Official Election Act (the publication of false facts for the purpose of the election, the selection of fines), Article 250(3) and (1) of the Public Official Election Act (the publication of false facts for the purpose of the election and the selection of fines)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (the penalty and penalty heavier than the penalty and penalty provided for in paragraph (2) of the same Article in the crime of violation of the Public Official Election Act)

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

[Scope of Punishment] Fine of 50,000~ 45,000,000

[Determination of Punishment] Each election crime, publication of false facts, election campaigned for the purpose of election (the publication of false facts for the purpose of election) - Types 2 (the publication of false facts for the purpose of election) (the publication of false facts for the purpose of election): A crime of violating the Public Official Election Act by publicly announcing false facts for the purpose of election: A crime of violating the Public Official Election Act by publicly announcing false facts for the purpose of election of the same kind of previous crimes (including fines) (including aggravated factors): A crime of publishing false facts for the purpose of election of the party, where there are substantial majority or high spreading of the other party,

[General Sentencing] Each serious reflective factor, and a candidate's committing a crime (aggravated factor)

【Scope of Recommendation】

-Violation of the Public Official Election Act through the publication of false facts for each election purpose: Fine of 5,00,000 won 15,000,000 won (the upper limit of the sentence range recommended in the sentencing guidelines shall be increased to 1/2 because there are more than two special aggravation areas, and there are more than two special vacations);

-Violation of the Public Official Election Act based on the publication of false facts in the intraparty competition for the purpose of election: Fines of 5,000,000

[Scope of revised punishment] 1/2 (Administrative Fines 7,500,000) of the upper limit of punishment for concurrent crimes is added to 1/3 (Administrative Fines 7,500,000) of the upper limit of punishment, and 1/3 (Administrative Fines 3,33333) of the two concurrent crimes are added to 1/3 (Administrative Fines 3,3333,333) of the upper limit of punishment. The crime of this case is likely to have been committed by the Defendant for a significant number of reasons that the Defendant had no record of election campaign since 1,50,00 won or 25,83333 [3] of the candidate’s election. It appears that the Defendant had no record of election campaign from 00 to 300,000 won, such as a candidate’s report, promotional materials, or candidate name, and that the Defendant had no record of election campaign since 20,000 won or more of the candidate’s election campaign, and thus, it can be considered that it would be desirable that the Defendant had no record or model.