2013Gohap207 Violation of the Public Official Election Act

Sus Operation

Park Woo-wons (prosecutions) and public trial;

Attorneys Kim Jin-jin (Korean)

August 23, 2013

The prosecution of this case is dismissed.

1. Facts charged;

No person shall provide any money to an elector with the intention of making another person cast a vote or not cast a vote, or making another person elected or not elected.

Nevertheless, on December 19, 2012, the Defendant issued two bags containing 10,000 won in 10,000 won to the Defendant, who was found in the Jinyang-si around 14:00 on December 11, 2012, for the purpose of getting a candidate to be elected in connection with the special election of the Simsan-si, which was implemented on December 19, 2012.

As a result, the defendant provided money to the elector for the purpose of getting a candidate to be elected.

2. Determination

Since the facts charged in the indictment are meaningful to limit the object to be tried by the court, to specify the scope of defense of the defendant, and to guarantee his/her defense right, Article 254(4) of the Criminal Procedure Act provides that the date, time, place, and method of the crime must be specified and specific facts constituting the elements of the crime (see, e.g., Supreme Court Decision 2009Do5698, Oct. 13, 201).

Article 230(1)1 of the Public Official Election Act provides that a person who provides money to an elector for the purpose of getting elected shall be punished. The crime of violating the Public Official Election Act constitutes a so-called purpose crime requiring "the purpose of being elected separately other than intentional, as an excessive subjective constituent element for the establishment of a crime." The above purpose is premised on the act for a specific candidate. As such, when a prosecutor institutes a public prosecution due to the violation of the Public Official Election Act, he/she shall specify the scope of a public prosecution and specify the facts charged so as to ensure that he/she has the purpose of having a candidate elected, and the indictment without stating the specific purpose shall not be deemed to specify specific facts corresponding to the constituent elements.

The prosecutor stated the facts charged that the defendant provided money to the elector for the purpose of getting the candidate to be elected. This constitutes a case in which the indictment itself does not indicate the purpose of supporting a specific candidate, and thus the indictment procedure is invalid because it does not violate the provisions of law, and thus the indictment procedure is dismissed pursuant to Article 327 subparagraph 2 of the Criminal Procedure Act.

The presiding judge, judge and Dong judge

Judges Kim Jae-tae

Judges Lee Jong-soo