2016Gohap78 Violation of the Public Official Election Act

A

Kim Young-young (prosecution), the relocation port (public trial)

Attorney B-Law CD Attorney E-at-Law in charge

May 26, 2017

Defendant shall be punished by a fine of KRW 2,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in the Labor House for the period converted into one day.

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

Criminal facts

1. Defendant and G

The defendant of the status as a member of 00 party is a person who was in office as the head of a local government from July 1, 2010 to the head of a local government, and G is a person who was married to the 00 candidate in the 20 election district of the 20th National Assembly member that was implemented on April 13, 2016 and was born.

2. Criminal facts;

No one shall conduct an election campaign except as prescribed by the Public Official Election Act prior to the election campaign period, and the head of a local government who takes office through an election shall not conduct an election campaign.

A. Violation of the Public Official Election Act of March 13, 2016

From March 12, 2016 to March 13, 2016, the Defendant attended the event of the 00 mountain village conference of the “0 mountain village” of the “0 mountain village,” along with G, to carry out an election campaign for the candidates for the National Assembly members belonging thereto, with respect to the 20th total line, and was accompanied by G around March 13, 2016, with the aforementioned 38 electors, who are the members of the said mountain village council boarding the bus, i.e., e., 00 p., 10 p.m., 10 p., 200 p.m. and 20 p.m., 200 p.m. and 10 p.s., 20 p.m. and 38 p.s., who were the members of the said mountain village council, were on board the bus, so that they would help 00 p.m. and actively support 200 p.m.

As a result, the Defendant carried out an illegal election campaign for 00 party and the candidates for National Assembly members belonging thereto, even though they could not carry out an election campaign at the same time prior to the election campaign period.

B. Violation of the Public Official Election Act of March 14, 2016

On March 14, 2016, at 00:0:00, the Defendant attended an event organized by “a private friendship group of 00 :00 local citizens,” which is a private friendship group of 00 :0 :00 H, and G election campaign against the participants of the above meeting, the Defendant criticizes the following: (a) against the participants attending the meeting, 35 people with the right to attend the meeting, namely, 00 :0 :0 :0 with respect to I candidates for the 20 20 :0 :0 :0 :00 :00 : “I and G are 00 :00 : 00 ; and 00 :00 : ;” and (b) stated to the effect that “I may go against the candidate by speaking for the change of political rights that should have been well known.”

As a result, the Defendant carried out an illegal election campaign even though he did not carry out an election campaign at the same time before the election campaign period for the candidates for the 00 party and the National Assembly members G.

Summary of Evidence

1. Partial statement of the defendant;

1. Witness K;

1. The defendant's statement (No. 33) recorded in the CD (Evidence No. 1. 1. The defendant and his defense counsel stated in the CD No. 1. 1. The defendant's statement of the prosecutor's interrogation protocol against the defendant 1. N,O, P, Q, Q, R, T, U, and V among the prosecutor's interrogation protocol against the defendant in the 9th trial records of this court in the case No. 2016Gahap29. The defendant and defense counsel asserted that the recording file contained in the above CD (hereinafter "the recording file of this case") is unlawful since the recording file was recorded in the form of L which was not opened to the scene at the time and is in violation of the Protection of Communications Secrets Act since it was in violation of the aforementioned Act since it was not allowed to be used as evidence for the violation of the Public Official Election Act of March 14, 2016, and the investigative agency arbitrarily reproduced the recording file from L without consent of the tape. The defendant collected the evidence of this case, even if the recording of this case was not voluntarily reproduceded.

As to the first argument, the Protection of Communications Secrets Act provides that anyone shall not record or listen to conversations between other persons that are not open to the public, and the content of a trial acquired in violation of Article 14 of the Protection of Communications Secrets Act shall not be admitted as evidence (Article 14 of the Protection of Communications Secrets Act). In full view of the evidence duly adopted and examined by this court, L shall be deemed as having attended the meeting of the person holding the above 00 hold the meeting (hereinafter “the meeting of this case”) after receiving a proposal from the person holding the meeting of 00 members (hereinafter “private placement”), and attended the meeting of the above 2nd meeting of the 2nd meeting and the second meeting of the above 2nd meeting of this case. At that time, the Defendant cannot be deemed as having obtained a conversation between other persons as an open statement for all the participants who attended the meeting of this case, and thus, the file of this case cannot be deemed as having been opened to the public in violation of the Protection of Communications Secrets Act.

In full view of the evidence duly adopted and examined by this Court as to the second argument, the judicial police officer recognized the fact that K voluntarily received and copied the L-owned mobile phone in this case with L-owned consent on April 15, 2016, and thus, it cannot be deemed that the recording file itself voluntarily copied without L-owned consent.

As to the third argument, it is unclear whether the initial recording file (Evidence No. 163,167) collected before collecting the recording file of this case was lawfully collected with L’s consent. However, even if the initial recording file was illegally collected without L’s consent, as seen earlier, it is recognized that the recording file of this case was lawfully collected with L’s consent. Thus, insofar as the circumstance that it is deemed that the recording file of this case was collected with the unlawful condition of collecting the initial recording file, it is reasonable to view that the causal relationship between the initial unlawful act of collecting the recording file and the collection of the recording file of this case was either dilution or cut off (see, e.g., Supreme Court Decision 2012Do1361, Mar. 14, 2013). Therefore, it cannot be deemed that the recording file of this case was an unlawful collection evidence based on the illegally collected evidence.

Therefore, all of the arguments in this part by the defendant and his defense counsel are not accepted) 1. Seizure Report (including the submission of reports on the site of the meeting of the 00 Mapo Forum), 1. Report on internal investigation (related to the submission of the list of members and non-members), internal investigation report (related to the submission of the list of members and non-members), internal investigation report (related to the submission of voluntary seals and temporary return mobile phone photographs), internal investigation report (related to the attachment of digital evidence analysis data), list of members present at the meeting of 1.00 Mana, Jeju-do Hansan and the lerarabal, etc.

Application of Statutes

1. Article applicable to criminal facts;

Considering Article 254(2) of the Public Official Election Act (each prior election), Articles 255(1)2 and 60(1)4 of the Public Official Election Act (each illegal election) 1. Articles 40 and 50 of the same Act (the crime of violating the Public Official Election Act due to each prior election and the crime of violating the Public Official Election Act due to any illegal election), 1. Selection of a fine for selective election due to any heavier punishment (the punishment prescribed for the crime of violating the Public Official Election Act due to any heavier punishment), 25(1)2 and 50 of the same Act, among concurrent crimes, Article 37(1)2 of the Criminal Act, Article 38(1) of the same Act and Article 69(2)1 of the same Act, the statute of limitations under Article 334(1) of the Criminal Procedure Act should not be applied to the case where the statute of limitations has expired on the grounds that the summary of the legislative purpose of the public prosecution in the case is the expiration of the statute of limitations under Article 268 of the Public Official Election Act.

B. Determination

According to the evidence and records duly adopted and examined by this court, the court ordered the dismissal of prosecution in accordance with Article 327 subparagraph 2 of the Criminal Procedure Act on the ground that the prosecution of the case before December 7, 2016 violates the principle of an indictment only, and thus the prosecution procedure becomes null and void due to the violation of the law. The above judgment becomes final and conclusive on December 15, 2016, and the prosecutor brought the prosecution of this case on December 15, 2016.

However, Article 268(1) of the Public Official Election Act provides that the statute of limitations for the crime under this Act shall expire at the expiration of six months after the relevant election day. This is limited to the special provision on the "period of the statute of limitations" under Article 249 of the Criminal Procedure Act, and unlike the special provision on the "suspension of the statute of limitations" under the Public Official Election Act. Thus, Article 253(1) of the Criminal Procedure Act shall apply to the suspension of the statute of limitations. As such, Article 253(1) of the Criminal Procedure Act provides that the statute of limitations shall be suspended from the institution of a public prosecution and shall begin from the time when a judgment dismissing a public prosecution or a judgment dismissing a violation of the principle of the principle of the indictment only becomes final and conclusive due to the violation of the provisions of Acts and subordinate statutes. Accordingly, even if a judgment dismissing a public prosecution was rendered on the grounds that the procedure of the indictment in the previous case is invalid due to the violation of the principle of the indictment only, the statute of limitations shall be deemed suspended from June 17, 2016.

Therefore, we cannot accept this part of the argument of the defendant and his defense counsel.

2. Determination as to the assertion of abuse of power to prosecute

A. Summary of the assertion

Although the public prosecutor was fully aware of the illegality of the previous public prosecution of this case, the public prosecutor did not immediately correct it and take a new measure of prosecution. The public prosecutor again filed the public prosecution of this case after the judgment of dismissing the public prosecution of this case was sentenced. This constitutes abuse of the public prosecution right which infringes on the defendant's right to a prompt trial.

B. Determination

In a case where it is deemed that a prosecutor voluntarily exercised his/her right to institute a public prosecution and seriously deviates from his/her right to institute a public prosecution by giving substantial disadvantages to the defendant, the validity of the institution of public prosecution can be denied as an abuse of the right to institute a public prosecution. Here, a arbitrary exercise of the right to institute a public prosecution is not sufficient simply by negligence in the course of performing his/her duties, and at least with any intention not to do so (see, e.g., Supreme Court Decision 9Do577, Dec.

On the other hand, a judgment dismissing public prosecution is a formal judgment which acknowledges a public prosecution as unlawful on the grounds of procedural defects and terminates a lawsuit without an substantive judgment, and thus, the judgment dismissing public prosecution does not have res judicata effect, and thus, a prosecutor may re-prosecution a public prosecution by supplementing the defective litigation conditions or defects even after the judgment dismissing public prosecution becomes final and conclusive, and where a judgment dismissing public prosecution becomes final and conclusive on the grounds that the entries in the facts charged are contrary to the principle of an indictment only by the indictment only, the public prosecutor is lawful (see, e.g., Supreme Court Decision 2010Do18090, Apr. 28, 201).

In light of the above legal principles, when the public prosecutor was sentenced to the dismissal judgment on the case in which the public prosecutor did not take any particular measures as to the previous public prosecution, the above assertion by the defendant and the defense counsel cannot be accepted inasmuch as it is difficult to view that the prosecutor considerably deviatess from the discretion of prosecution or has any intention to do so by arbitrarily exercising the authority to institute a public prosecution or by giving substantial disadvantage to the defendant.

3. Determination as to each of the facts constituting a crime in the judgment. The summary of the argument is that the defendant made a personnel statement within the bus returned to March 13, 2016 and that he made a statement as referred to in paragraph 2-b in the meeting of this case on March 14, 2016. However, there is no statement that the defendant appealed to support G, a candidate for the National Assembly member belonging to 000. The defendant's statement is merely a social or ordinary political activity, and it does not constitute an election campaign for the election of a specific candidate prohibited under the Public Official Election Act, even if it is deemed that it is a statement that appeals to support 00.

B. Determination

(1) Under the legal principles of the Public Official Election Act, an election campaign is an act to be elected or to prevent another person from being elected (Article 58(1) of the Public Official Election Act), first, an act relating to a specific election is an act related to a specific election, second, an act for a specific political party (including a preparatory committee for the formation of a new political party) or a candidate (including a person who intends to be a candidate), third, an act directly or indirectly necessary or favorable to an election or defeat, and must meet the requirements such as an act to be elected or to have another person elected or not to be elected (see, e.g., Constitutional Court en banc Decision 201Hun-Ba26, Apr. 25, 2002)

Therefore, “election campaign” stipulated in Articles 254 and 255 of the Public Official Election Act refers to all acts that are necessary or favorable for a particular political party or candidate’s election or obtained votes or defeat and that can objectively be objectively recognized as an intention to promote an election or defeat. Specifically, in determining whether an act constitutes an election campaign, it should be determined whether an act is accompanied by not only the name of the act, but also the form of the act, i.e., the time, place, method, etc. of the act is performed, and whether the act is accompanied by the intention to promote an election or defeat of a specific political party or candidate (see, e.g., Supreme Court Decisions 2002Do315, Apr. 27, 2004; 2004Hun-Ba1, May 14, 2004).

(2) According to the evidence duly adopted and examined by this court, the following facts can be acknowledged.

1) On March 13, 2016, the Defendant and G have completed the Jeju-do Marasan events of the “00 Mountain Team” at around 21:00, and they are on board as the bus (j) returned to 00 o’clock from a wooden port to 00 o’clock.

2) In the bus above, G made the Defendant’s first speech and made the Defendant’s speech, G was at the time of election campaign uniform.

3) N in the above bus was on board the prosecution’s office “It is difficult for the defendant to have a 00 party. There are many people who have resigned from the prosecution. They should not leave the country while carrying out politics.

The phrase “the same person who resigned from the 00 party should not be changed.” At the time, I left the 00 party, which was the same as leaving the 00 party. Although I was not able to speak in support of the G candidate, there was a lot of room for the same defendant, who is the same party member, to be seen as supporting the G candidate from the standpoint of the person who was sees. In addition, I stated to the effect that “I would be able to see only one time for 00 citizens. I would see that I would be able to do so.”

4) The O, who was on board the bus, stated in the prosecution that “the Defendant was able to support the said bus 00 party,” and stated to the effect that “the horses to support are unsatisfy and unsatisfy.”

5) P boarding the bus is difficult for the prosecution to take place the “Defendant to leave the election because there are many people who have left the election.”

A statement was made to the effect that “I have made a statement to the effect that I would be able to support the 00 party in the future,” and that I would like to say that I would be able to see the 00 party.”

6) Q boarding the bus at the prosecutor’s office stated that “The defendant was at the place where it is difficult for the people who had been at the front of the election to leave the election and leave the election to leave the election for 00 days. In the future, the defendant must actively support the more 00 party.”

Even if the market head, who is the highest 00 City Mayor, made a statement to support 00 party in an event where many people gather and knew about the face of the candidates in the election campaign uniform, it would be acceptable to accept the 00 market as a request to support the candidates rather than having expressed personal correspondence. In short, the idea that the Defendant’s horses should be heard the Defendant’s horses, and that he would be pushed about the candidate.”

7) The R, which was on board the bus, stated in the prosecutor’s office that “the Defendant introduced a candidate for G, who was “The Defendant was a national defense secretary at the time of 00 President, and at that time, did not have a 00 party which was created, and later was on board the ship at present.”

8) The Defendant made a statement at the prosecution to the effect that “The future is our future that should be well-grounded,” etc., on a bus, the Defendant made a statement to the effect that he would support the 00 party, and that he would not be asked for a candidate. However, he would not be able to give a son’s body on a bus 00 party, and that he will be able to support the 00 party, including not only the G candidate, but also the other places.”

(B) The above facts are as follows: (a) the Defendant’s speaking at the same time was 1 month prior to the 20th National Assembly member X elected at the same time as the local constituency National Assembly members and political party proportional representative National Assembly members; and (b) immediately after the confirmation of the strategic contribution to G, which is the preliminary candidate from 00 to 000, the Defendant was on board G in the election campaign uniform; (b) the Defendant was on board the bus such as G and made the above statement; and (c) the Defendant did not directly request the Defendant to directly support G; (d) however, the Defendant’s speaking to the effect that it was sufficient to accept the Defendant’s request to support the 00 party in the above situation to the effect that it would change support the G; (b) the Defendant’s speaking may be sufficiently recognized as an act accompanying the purpose of promoting a specific political party and specific candidate’

(3) According to the evidence duly adopted and examined by this court, the following facts can be acknowledged.

1) At the instant meeting, G made a statement to appeal for support of oneself, and immediately after leaving the place, the Defendant appeared late after the instant meeting.

2) The Defendant made the following remarks at the instant meeting.

◦지금 우리 00의 상황이 3파전이에요. 기득권을 가지고 있는 I의원, 그 다음에 우리 지역의 0000 00당 G후보, 그리고 00의 3선 군수를 한 무소속 J후보.

◦그렇기 때문에 00에서 표를 갈라먹을 사람은 지금 I후보하고 G후보. 그러니까 3파전이지만 잘못하다가는 00한테 뺏길 수도 있어요. 그래서 이런 시점에서는우리 G후보가.

◦우리가 과감하게 한번 힘을 모아서 이번 총선에서 좌우간 00당이 그래도잘 되어야 정권교체의 희망이 있는 것이지.

◦한때는 호남 쪽에서 00 당이 40% 지지가 넘었어요. 그러니까 그쪽으로따라가면 그냥 국회의원 한 번 더 할 생각 하고, 그냥 탈당하고 떠난 사람들이 지금코빠치고 있지 않습니까. 이런 정치인들은 정치할 자격이 없어요. 이런 것은 우리가 용납해서는 안된다고 봅니다.

◦이번 총선에서 우리 00당의 힘이요. 그리고 이것이 정권대창출 하고.

◦이제는 00당으로 이렇게 해서 균형을 잘 잡고 그러면서 균형 발전 하고또 남북관계도 새로운 길을 열고 이것이 지금 우리가 꼭 해야 할 일이다. 저는 이런생각이 들어서 더 여러분한테 간곡히 호소합니다.

3) The Defendant also stated at the prosecutor’s office that “Ieado is be hond with the inside of the arms, and the inside of the arms is 00 square meters’ support remarks.” The Defendant stated to the effect that “Ieado’s support is the 00-party support remarks. However, G was registered as a candidate because G was able to support the 00 party support the 00 party support.”

(B) The above facts are as follows: (a) the time when the Defendant made the above remarks was 1 month prior to the 20th National Assembly member X elected at the same time as the local constituency National Assembly members and political party proportional representative National Assembly members; and (b) the strategic contribution to G was finalized; (b) the Defendant’s remarks were made immediately after G complained of support for himself at the instant meeting; (c) the Defendant’s performance fee and G election campaign situation office was deemed to have made several telephone calls at the instant meeting; and (d) the Defendant appears to have known that G was present at the instant meeting; (b) the Defendant did not directly request the Defendant to support G and not speak, but it appears to the effect that the candidate I resigned from the 00 constituency to 00 electors should not be elected; and (d) the Defendant’s remarks were sufficiently different in view of the fact that the 00 electors who participated in the instant meeting were the voters, and that it was reasonable to recognize that the Defendant’s attitude to support the Defendant’s election was a specific candidate.

(4) Accordingly, we cannot accept the above argument of the defendant and his defense counsel.

Reasons for sentencing

1. The scope of punishment by law;

The sentencing criteria for a fine of 50,000 won and less than 9 million won are applied. Each prior election campaign is subject to the crime of violation of the Public Official Election Act [decision of type] due to each prior election campaign, the violation of the Election Act and the illegal election campaign period, the first [the scope of punishment] and the same criminal record [the scope of punishment] [the scope of punishment] a fine of 1 million won or a fine of 3 million won or more due to each illegal election campaign, or the violation of the Public Official Election Act [the decision of type] due to the violation of the Public Official Election Act due to each illegal election [the decision of type] group of election crimes, the violation of the election campaign period, the illegal election campaign, the second type [the special person] and the same criminal record [the scope of a fine of 1 million won or a fine of 4 million won or more due to a fine of 1 million won or more due to a majority of crimes: the scope of sentence for a fine of 1 million won or more due to a prior election campaign (the crime of violating the Public Official Election Act and the public official election Act are not subject to the sentencing criteria for the defendant.

In particular, the defendant is the head of a local government, the head of a local government is responsible for local pending issues in the regular contact with the local residents while the head of a local government is in a position to direct and supervise the public officials under his/her direct and indirect relationship with the electors. If the head of a local government engages in election campaign in favor of or disadvantageous to a specific political party or candidate by using such status, authority, function and influence, the fairness and equity of election should be considerably damaged.

Although the Defendant, at the time of the instant case, who had been in the incumbent 00 market and had been engaged in a political party activity for a long time, appears to have been more well aware of the legislative purpose of the Public Official Election Act, the Defendant’s act continued to disappear and to support a specific political party or candidate, and such act of the Defendant appears to have been committed in a more prudent and continuous manner than having been committed by contingency to a friendly opportunity. In particular, inasmuch as the Defendant again committed the instant crime even though there was a criminal conviction of the same kind of fine, which was punished for the violation of the Public Official Election Act in relation to the election of 00 market election elected in 2010, there is no possibility of criticism in that the Defendant committed the instant crime, even though

However, under the circumstances favorable to the defendant, the fact that the defendant did not directly use the expression requesting G support, a considerable number of persons present at the scene of the crime of this case were party members of the political party to which the defendant belongs, and as a result, G cannot be deemed to have significantly affected the result of the election, etc. In addition, considering the defendant's age, character and behavior, environment, family relationship, motive and circumstance of the crime, means and consequence of the crime, circumstances after the crime, etc., and various sentencing conditions shown in the records and arguments, such as the defendant's age, character and behavior, environment, family relationship, motive and circumstance of the crime, etc.

Judges Park Jong-soo

Judges Oh Young-young

Judges Kim Dong-dong