The case holding that it is unreasonable to render a judgment on the merits when the statutory penalty for the charges charged is an administrative fine only.

According to Articles 52(3) and 168(2) of the Election of National Assembly Members Act, an administrative fine of not more than 5,000 won is imposed on an act violating it. The facts charged that the Defendant made a speech without reporting a speech right for the purpose of winning a specific candidate at that time do not include any facts that constitute a crime even if the above facts are true, and thus, the prosecution should be dismissed by Article 328(1)4 of the Criminal Procedure Act.

Articles 168 and 52 of the Election of National Assembly Members Act, Article 328 of the Criminal Procedure Act

Defendant

Prosecutor and Defendant

Seoul District Court Incheon District Court (71 High Court Decision 114)

The judgment of the court below is reversed.

Defendant shall be punished by a fine of 30,000 won.

When the above fine is not paid, the defendant shall be confined in a workhouse for the period calculated by converting 500 won into one day.

Of the facts charged, the public prosecution on the part that the defendant made a speech at the private speech place of the candidate Nonindicted Party 1 held in the Dong Mancheon Station square on May 12, 1971 is dismissed.

The gist of the grounds for appeal by the prosecutor is that the amount of the punishment imposed by the court below against the defendant is too unfasible and unfair, and the summary of the grounds for appeal by the defendant is that the defendant himself has no false information as to the non-indicted 2, who is a member of the National Assembly at the time of the original decision, and there is no false information as to the non-indicted 2.

First, the court below's reasoning of appeal that there was an error of mistake of facts in the judgment of the court below is sufficient to acknowledge each crime at the time of original judgment, and it cannot be found that there was any error in the evidence or other mistake because the court below's evidence duly examined and adopted is sufficient to acknowledge each crime at the time of original judgment.

Before proceeding to decide on the grounds for appeal by the prosecutor, the part of the facts charged in the instant case that the Defendant made a speech at the campaign speech meeting of Nonindicted Party 1, which was held at the Jung-gu, Jung-gu, Incheon Special Metropolitan City on May 11, 1971, at around 30, 1971, for the purpose of getting the candidate Nonindicted Party 1 to be elected in the first district candidate for the new citizen game game, without reporting the campaign speechmaker.

According to Articles 53(3) and 168(2) of the Election of National Assembly Members Act that the prosecutor claims the above facts charged, the prosecutor imposes a fine for negligence not exceeding 5,00 won on the act of violation.

Therefore, since the above facts charged by the prosecutor do not contain any facts sufficient to constitute a crime, the court below should have dismissed the prosecution by the prosecutor on this part.

Nevertheless, the judgment of the court below which sentenced a single punishment on the ground that there is a relation between the 2nd crime and the 2nd crime cannot avoid reversal.

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act, and it is again decided as follows after pleading.

The criminal facts that a member acknowledged against the defendant are the same as the criminal facts at the original time, and the evidence relationship is the same as the above of the reasoning of the judgment below, and therefore, it is cited in accordance with Article 369 of the Criminal Procedure Act.

Since the court below's judgment falls under Article 162 (1) of the Election of National Assembly Members Act, the defendant is selected from the prescribed penalty and the defendant is punished by a fine not exceeding the prescribed amount. In case the defendant does not pay the above fine pursuant to Articles 69 (2) and 70 of the Criminal Act, the defendant shall be confined in the workhouse for the period calculated by converting 500 won into one day.

Although the Defendant alleged that the crime was true and solely for the public interest, and thus, it cannot be punishable under Article 162(2) of the Election of National Assembly Members Act, the Defendant’s assertion that the criminal facts in the judgment are false is as seen in the judgment of the grounds for appeal. Therefore, the Defendant’s allegation is groundless.

Finally, with respect to the part of the facts charged by the prosecutor's charge that "a speech was made at the election campaign speechmaker's individual campaign speechmaker's meeting held at around 1:30 on May 12, 1971 without a campaign speechmaker's report for the purpose of having a candidate for non-party 1 who is a candidate for the new political party No. 1", as seen in the above grounds for reversal, even if the same facts are true, it does not include any facts sufficient to constitute an offense, so the prosecution of the prosecutor on this part is dismissed in accordance with Article 328 (1) 4 of the Criminal Procedure Act.

It is so decided as per Disposition for the above reasons.

Judges Man-Operation (Presiding Judge)