2011No92 Violation of the Public Official Election Act

1. Fixed A (55*******1********) and public officials.

2. KimB (55*******1*******) and franchise instructors.

3.C (67*******1********) and public officials.

Defendants and Prosecutor

Freeboard Kim

Attorney Park Jong-soo, et al., Counsel for the defendant Jeong-A and Jeon-C

Attorney in charge 00

Attorney Kim Young-B

Daegu District Court Decision 2010Gohap588 Decided February 11, 2011

May 4, 2011

The part of the judgment of the court below against the defendant Jeong and KimB shall be reversed.

Defendant Jeong-A and KimB shall be acquitted respectively.

The summary of the judgment on Defendant A and KimB is publicly announced.

All appeals filed by Defendant C and by the Prosecutor against Defendant c are dismissed.

1. Summary of grounds for appeal;

A. Defendant Jeong-A (1) misunderstanding of facts

It was true that he remitted money of KRW 10 million to the upper defendant KimB. However, the upper defendant KimB was a long-standing relative with the defendant and only lent money in a situation where the upper defendant KimB was economically difficult at the time, not in connection with the election campaign. Therefore, the lower court erred by misapprehending the fact that the defendant provided money of KRW 10 million in relation to the election campaign to the upper defendant KimB.

(2) Unreasonable sentencing

The sentence of the court below is too unreasonable.

B. Although Defendant KimB received a remittance of KRW 10 million from Defendant Kim Jong-young, it was merely borrowed from Defendant Kim Jong-sung and did not receive it in connection with the election campaign. Therefore, the lower court erred by misapprehending the fact that the Defendant was provided with money KRW 10 million with the election campaign by Defendant Kim Jong-young.

C. The lower court erred by misapprehending the legal principles on Defendant 3

The draft of the Mama Declaration cannot be deemed as an act falling under the planning and implementation of an election campaign, because it merely helps the preparation of candidate of D, who is a candidate of the Mamama Declaration prior to the election campaign period. Moreover, it is merely an act done by Defendant C in a private position, and it is merely an act done by a public official.

However, the lower court erred by misapprehending the legal doctrine on the act of preparing the draft declaration of the departure of a defendant, taking advantage of his status as a public official, participating in the planning of an election campaign and taking part in the implementation thereof, and thereby having committed an act of using his status as a public official. (2) The lower judgment

The sentence of the court below is too unreasonable.

(d) A prosecutor;

Each sentence of the lower court against the Defendants is too unhued and unreasonable.

2. Determination

A. Determination as to the misconception of facts by Defendant Jeong KimB (hereinafter referred to as “the Defendants” in this paragraph)

(1) From the police to the trial of the party, the Defendants were to transfer KRW 10 million to Defendant KimB in total over three occasions. However, this is merely a loan to Defendant KimB, a high school motive at which Defendant Party A was in an economically difficult situation, and is consistently denying the crime (2) according to the evidence duly adopted and examined by the lower court and the witness Kim Jong-B’s legal statement, according to the following facts and circumstances.

(A) The Defendants, for a period of two years from high school motive, went through without any contact with each other, and around April 2010, the F’s child marriage hall, the motive for high school, was flicked. Defendant A introduced Defendant KimB’s career, etc. to D, who was expected to go to the 5th concurrent local election market, at the beginning of May 2010, as the Musan market, at the beginning of May 2010, to go to the 5th concurrent local election, and Defendant KimB decided to work as the D’s election campaign speechmaker from that time.

(B) Defendant KimB worked as a franchise instructor for an enterprise or a public institution to give a lecture to its employees. Defendant KimB did not have any particular import on the wind to help D’s election tax activities. The monthly rent and public charges of the room room that he had resided are difficult to the extent that it could not be paid properly.

(C) On May 10, 2010, Defendant KimB received KRW 2 million from Defendant Jeong to Defendant KimB’s agricultural bank account from Defendant Kim Jong-B’s agricultural bank account for transportation expenses, etc., and used part of them as transportation expenses, food expenses, and food expenses, etc. from the port of distribution in which Defendant Kim Kim-B resided, and on June 5, 2010.

Upon receiving KRW 5 million from Defendant A to the same account, Defendant A used the same account as repayment (1.5 million won), monthly rent of his residence (1.6 million won), transportation expenses and food expenses, etc.

After receiving KRW 3 million from Defendant A to the same account, he/she used the same amount as KRW 8.8 million transferred from G on June 23, 2010 to repay his/her debt to H. The Defendant KimB did not have agreed on the interest at the time he/she received the said money from Defendant A, and Defendant KimB did not specify the due date and paid the tuition fees to Defendant KimB again within several months without specifying the due date.

(D) Defendant KimB did not make an effort to repay the transferred money from Defendant Jeong. After the commencement of the investigation of the instant case, Defendant Jong-B returned KRW 6,100,000,000,000,000,000,000,000,000,000,000,000 won, out of the money that was remitted from Defendant Jong-B. (e) Defendant Jong-B, at the time of the first transfer of KRW 2,000,000 to Defendant Jong-B.

10. Around June 2010, around KRW 100,000 was liable for a loan of KRW 100,000, and around May 26, 2010 was determined by Maamam, and undergone the Maam surgery on August 4, 2010. Defendant KimB became aware of the fact that he was determined by Maamamb around the beginning of June 2010.

(f) Defendant A obtained a loan of KRW 30 million from a financial institution on June 4, 2010, whichever is later.

On the other hand, the Defendants sent KRW 800,00 to Defendant KimB two occasions as seen earlier. (g) On the other hand, from April 28, 2010 to June 2010, Defendant Jeong Jong made a telephone conversation more than 100 times, from around April 28, 2010, which was 10 to June 2010, Defendant Jeong Jong has been sent e-mail an election campaign speech, etc. prepared by Defendant KimB for their election campaign, and Defendant Jung has been sent Ma, N and several times of telephone conversationss during the election campaign period, as well as D candidates, and even if there were no concerns about election campaigning to infringe on the freedom of election. (h) Defendant Jeong kept many materials related to election campaign, such as newspapers, screen, etc. related to the election at its office and residence, and Defendant Jeong had no intention to carry out an election campaign at least 10 years of election campaign at the last 3rd anniversary of the election campaign period.

As above, Defendant A introduced Defendant KimB, one of the motives of the high school for a long time, as his own commercial name, as the market leader, and transferred money more than three times before and after election, Defendant A transferred money to Defendant KimB without specifying the repayment date, even though he did not have any economic leave since he was fully responsible for a considerable amount of debt, Defendant A wired money to Defendant KimB without specifying the repayment date; Defendant A first remitted part of the KRW 2 million, which Defendant A first remitted to Defendant KimB, was actually used as expenses for the election campaign, and Defendant A remitted money with the knowledge that it will be used for such purpose; Defendant A was also used for the election campaign; Defendant A had a telephone call more than 100 times before and after the election campaign period; Defendant A had a telephone call with Defendant B before and after the election campaign period.

In light of the fact that a telephone conversation with D and its election campaignmen has been made several times, and that a promotion resolution has been made to Defendant A on March 26, 2010 with regard to Defendant A, it is true that Defendant A was in need of doubt as to whether Defendant A did not provide money of KRW 10 million to Defendant KimB in relation to the election.

However, in the instant case where both the Defendants were merely a monetary lending and borrowing relationship, and denying the crime, in view of the following facts and circumstances acknowledged by the evidence as seen earlier, it is difficult to view that the facts charged that Defendant Jung offered money and valuables to Defendant Jung-B in relation to election campaign are proven without reasonable doubt.

(A) As to whether Defendant KimB had a reason to make a D’s election campaign speech while taking charge of his financial loss

Defendant KimB’s occupation is an instructor who gives lectures to his employees at an enterprise or a public institution.

As a result, the principal customer is an enterprise or public institution. In this respect, if a candidate who made an election campaign speech by Defendant KimB is elected as a competition market, it is anticipated that the subject of the lecture by Defendant KimB has increased drastically due to D's sponsor, etc. Therefore, Defendant KimB has sufficient reason to lead to D's election campaign speech even if he/she bears monetary losses, such as sacrificeing his/her livelihood during the election campaign period.

(B) As to the financial standing of Defendant Company A

On May 10, 2010, at the time of the first remittance of the money to Defendant KimB, Defendant Jung was liable for the amount of KRW 100 million, and around May 26, 2010, Defendant Jeong was judged Maam and Defendant Jung was given a loan of KRW 30 million from the financial institution on June 4, 2010, the day immediately before Defendant Jeong transferred the money to Defendant KimB, and the above fact that Defendant Jung had not been economically surplused.

However, the above KRW 100 million debt is limited to the retirement allowance and mutual aid money of Defendant Jeong-A as well as the defendant Jeong-A was punished against his wife who is a public official, and the defendant Jeong-A was holding real estate and lease deposit claims to a considerable extent. The above debt seems not to have been much enough to have been subject to financial pressure in reality due to the above debt. Even if the defendant Jeong-A received the above judgment around May 26, 2010 and required medical expenses, even if the medical expenses were to be incurred, such circumstances do not change significantly, taking into account the expected amount of the operating expenses and the balance remaining in the account of the defendant Jeong-A, and the amount of money remitted to KimB, as seen below.

Meanwhile, in light of the fact that Defendant A loaned KRW 8 million to Defendant KimB on June 4, 2010 and remitted KRW 30 million to Defendant KimB on two occasions, and that the amount of the loan and the amount remitted to Defendant KimB was divided into two occasions and remitted part of the loan, it is natural to view that Defendant A gave money upon Defendant KimB’s request while he was in custody for the purpose of giving money to Defendant KimB, rather than having received the loan for the purpose of giving money.

(C) As to the method of paying money

Defendant Jeong-A transferred money from 30,000 won to 30,000 won in total from 30,000 won to 10,000 won in total, and it is difficult to view such payment method to ordinary persons who receive money for illegal purposes. Moreover, Defendant Jeong-B’s balance at the time of transfer from 10,000 won in KRW 9,00,000,000 to 30,00 won in total from 20,000 won in the time of transfer to 10,000 won in KRW 1,20,000 in June 5, 2010, at the time of transfer to 10,000 won in KRW 30,000,000,000 from 20,000 won in total to 30,000 won in accordance with the empirical rule, and in light of the fact that Defendant Jung-B had been able to return money from 20,000 won in total to 8,00.

In the telephone conversation with the prosecution investigator, the J stated that Defendant KimB lent money to the prosecution investigator without any special purpose, and that there was several occasions of money transactions. K first lent money to Defendant KimB at the time of the telephone conversations with the prosecution investigator without any special purpose, and Defendant KimB borrowed money without any receipt of a loan certificate between her her friend and her friend. Interest did not mean, and the principal was her friend, and the principal was her friend at the time of the call. The Defendant KimB did not receive money until November 18, 2010 at the time of borrowing money from Defendant Jeong. However, in light of the situation where Defendant KimB was close to each other at the time of borrowing money from Defendant Jeong, it is difficult to find that Defendant KimB borrowed money from any other person than Defendant Kim Jong-B’s fri, Defendant Jeong-B and his her friend, G, and J.K., and there was no particular data to find that it could be easily or otherwise difficult to find it.

Meanwhile, Defendant KimB’s failure to agree on interest at the time of receiving money to Defendant Jeong-B’s remittance. However, in light of the above K’s statement, it is insufficient to view this point as a circumstance to deem that it is not a borrowed money in the money transaction between relatives. In addition, the Defendants stated to the effect that Defendant KimB promised to make a full payment after several months, although they did not specify the specific period of payment, the degree of promise is not different from that of the said K’s monetary transaction, and thus, it is insufficient to view that the said money’s nature is not a reason to deny that it is a borrowed money.

In addition, in light of the above Defendants’ statement as to the period of repayment, it is difficult to view that the circumstance was unique to the Defendant’s failure to demand payment prior to the commencement of the investigation of the instant case. (E) Defendant KimB’s motive to receive money from Defendant KimB, Defendant KimB’s transfer of the money to the user of the money that he received from Defendant Jeong at the time when he first received KRW 2 million from Defendant Jeong, Defendant KimB demanded transportation expenses necessary for entering the port and mountain. The purpose of the above Defendants’ request for delivery of KRW 5 million at the time of transfer, and the said money was that there was no special use at the time of receiving KRW 3 million. Furthermore, considering the Defendants’ actual use of the said money was as seen earlier. In full view of these circumstances, it is insufficient to conclude that Defendant Cho Jong offered KRW 2,000,000,000 to Defendant Jung without compensation, even if it was necessary to use the money for election campaign at the time of the first 2 million won transfer to Defendant Jung at the time of the instant investigation.

(F) As to whether Defendant A had followed the election of the candidate D, and the relationship between Defendant A and Defendant KimB

Defendant Party A, after and after the election campaign period of Defendant KimB and the election campaign period, had been 100 or more telephone conversationss with D candidates and their election campaigners several times, had been retained by many election-related data, such as newspaper and screeners, etc., related to the election of the light market in his office and residence, and on March 26, 2010, the fact that the promotion of Defendant Party A was passed by the promotion of the official in charge of Defendant Party A at approximately 10 years from the last official of the term of office of D market around March 26, 2010 is as seen above. In light of these, Defendant Party Party A appears to have been aware that D candidates were elected, and therefore, it is possible that Defendant Party A provided advice through telephone for his election.

However, a public official is natural in a modern democratic society that enables support for a specific candidate from a private point of view, and there is no submission of any evidence to prove the fact that Defendant Jeong used his status as a public official and used his status as a public official, beyond supporting the D candidate, and the officer in charge of promoting the NIS seems to require a ten-year period. At the time of the resolution of the promotion of the Defendant Jeong’s Party’s work performance, Defendant Jeong’s work performance point was first, and there was no submission of any evidence that the D candidate unfairly participated in the election campaign. Even if Defendant Jeong delivered KRW 2 million with the knowledge of the use of the D candidate as election expenses, it is difficult to find that the aforementioned evidence was insufficient to acknowledge that Defendant Jeong’s campaign performance or transfer of money to the above public official for reasons of lack of evidence to acknowledge that it was an ordinary motive for Defendant Jeong to lend money to the above public official in relation to the election campaign.

Therefore, the judgment of the court below that found the Defendants guilty of this part of the facts charged is erroneous and adversely affected the conclusion of the judgment, and each appeal by the Defendants is justified.

B. The act of participating in the planning of an election campaign or in the implementation of such planning (1) based on the misapprehension of the legal principles of Defendant BC (hereinafter referred to as “Defendant”). The act of participating in the planning of an election campaign or in the implementation of such planning can be construed as an act of participating in the formulation of all plans for the efficient implementation of an election campaign or directly engaging in, or guiding and guiding the implementation of, an election campaign, because it does not result in the election or obtained votes of a specific candidate, or the election campaign aimed at a defeat or defeating. Meanwhile, the prohibition of such act by a public official is to prohibit a public official from participating in the planning of an election campaign or in the implementation of such planning, even if it is not in the preparation of an election campaign, because it is impossible for a public official to take part in the planning of an election campaign or in the implementation of such planning. In addition, it is reasonable to deem that the act of preparing an election campaign without using his status as a public official is a public official if he uses various information obtained through his duties (see, e.g., Constitutional Court Decision 2005Hun-Ba334, Jun.

(2) From this perspective, we examine whether the Defendant’s act constitutes an act of participating in the planning of an election campaign or in the implementation of such planning by taking advantage of his status as a public official.

According to the evidence duly adopted and examined by the court below, the defendant prepared a draft of the Mapo Declaration for D on May 4, 2010 using the computer of his office in the Busan Planning and Budget Office, and sent it by e-mail to M on May 6, 2010, M amended part of the draft of the said Mapo Declaration, from May 10 to May 13, 2010, sent D's e-mail to reporters, from May 10 to May 13, 2010; D's 2000 Gamsan City Planning and Budget Declaration was signed on May 11, 201; the defendant entered the 200 Gamsan City Planning and Budget Declaration; the 4th Gamsan City Planning and Budget Declaration was prepared on May 11, 2010 ; the defendant entered the 4th Gamsan City Planning and Planning and Construction of the Mamsan Urban Park; the 2nd Gamsan Urban Park was established on the basis of the candidate's attitude.

In light of the above facts, it is reasonable to view that the Defendant’s preparing and sending of the draft Mapo Declaration constitutes “an act of participating in the planning of an election campaign or in the implementation of such planning by taking advantage of his status as a public official,” in full view of the following circumstances, i.e., ① the Defendant’s preparing and sending of the draft Mapo Declaration at the time two weeks prior to the election campaign period; ② the Defendant’s preparing and sending of the draft Mapo Declaration constitutes an act of preparation, not an election campaign itself, but an act of election campaign; ② the report through the candidate’s Mapo Declaration and the press is an essential element for the election campaign; ③ the Defendant’s work accumulated in the process of performing his official duties and information appears to have contributed to the preparation of the draft of the Mapo Declaration at the ordinary level.”

C. Determination on the prosecutor’s appeal against Defendant Jeon-C and the argument on unreasonable sentencing by Defendant Jeon-C

The Defendant has served in good faith for about 17 years as a public official, and has no record of criminal punishment prior to the instant case, and has led to a confession. In this respect, the sentence of deprivation of the status of a public official can be deemed harsh. However, the Public Official Election Act aims to ensure the fairness of elections by thoroughly not being able to attract public officials or public officials.

Despite the strict prohibition of an act affecting the election by taking advantage of the status of a public official, the Defendant invested considerable effort and time based on the know-how and information accumulated during his/her work as a public official, and participated in the election process by assisting D in the preparation of a broadcast debate answer document for D candidates, such as preparing a document to use it as materials for media promotion. The Defendant asserted to the effect that he/she has been forced to do so upon M’s request, but even according to his/her statement, it was well known that the Defendant’s act was clearly prohibited as a public official’s participation in the election, and that there was no direct and indirect request from D candidates, and thus, it is not very important to take into account the motive thereof. In addition, given that he/she did not have a considerable influence on the election, given that he/she has given assistance related to media promotion or reporting that has a large percentage in modern elections, the Defendant’s age, character and conduct, the circumstances leading to the crime, etc., of this case, the Defendant’s punishment is too unfair or unreasonable.

3. Conclusion

Therefore, since both the appeal by the formerC and the appeal by the prosecutor against the formerC is without merit, all of them are dismissed under Article 364(4) of the Criminal Procedure Act, and since each appeal by the defendant Jeong and KimB is with merit, without examining the allegation of unfair sentencing by the defendant Jung and the prosecutor, the part of the judgment below against the above Defendants among the judgment below under Article 364(6) of the Criminal Procedure Act is reversed, and it is again decided as follows through pleading.

1. Facts charged;

Defendant Jung-A shall be the head of the transportation administration team at the time of the Gyeonggi-do Viewing and Viewing (as of July 19, 2010) and Defendant KimB (as of July 19, 2010).

6.2. Persons registered as election campaign workers on May 19, 2010, while serving as the 5th election campaign speechmaker for the national and local elections;

A. Defendant A

On April 2010, the defendant wanting to take the "D's election campaign speechmaker from defendant KimB, the motive of high school," and the defendant KimB introduced defendant KimB to D on May 2010, thereby working as the election campaign speechmaker. In relation to the performance of defendant KimB's election campaign speech, the defendant KimB's election campaign speechmaker's election campaign speechmaker's duty should have taken place in the port of distribution (the KimB's residence) and competition (the defendant KimB's residence) from the person.

On May 10, 2010, the Defendant transferred KRW 2 million to the Defendant’s Agricultural Cooperative Account (00 - 000 - 0000 - 0000 - 000) from the Defendant’s Agricultural Cooperative Account at 00 Doo-si, Busan Special Metropolitan City around 00, to the Defendant’s Agricultural Cooperative Account at 00- 0000, and transferred KRW 5 million around June 5, 2010 by the same method as KRW 10 million around June 20, 2010.

As a result, the defendant provided money in addition to the allowances and actual expenses stipulated in the Public Official Election Act in relation to the D's election campaign.

B. Defendant KimB

The Defendant received a total of KRW 10 million through three times in relation to the Defendant’s election campaign in D, by the foregoing means as above, on three occasions.

As a result, the defendant received money in addition to the allowances and actual expenses under the Public Official Election Act in relation to the D's election campaign.

2. Determination

Inasmuch as there is no evidence to find the Defendant guilty of this part of the facts charged as seen in the part of the judgment on the mistake of facts by Defendant Jeong KimB, the latter part of Article 325 of the Criminal Procedure Act shall be sentenced to not guilty of Defendant Jeong KimB, and the summary of the judgment against the above Defendants shall be announced in accordance with Article 58(2) of

Judge Lee Jin-man

Judges Lee Young-chul-

Judges Choi Sung-sung -