[1] The meaning of "where the provisions of the main sentence of Article 254 (2) of the former Act on the Election of Public Officials and the Prevention of Election Illegal Acts are different from the provisions of the Act"

[2] A relationship between a penal provision on the establishment of private organizations under the former Public Official Election and Prevention of Unlawful Election Act and a penal provision on prior election campaigns using private organizations

[3] The case holding that a person who intends to become a candidate cannot be punished for a violation of Article 254 (2) 4 of the former Act on the Election of Public Officials and the Prevention of Unlawful Election Act, in case where he only established a private organization by going through the awareness of the mountain conference prior to the election campaign period, and there is no other act that can be evaluated as being included in or not absorbing the establishment of a private organization by using the pertinent private organization

[1] The main sentence of Article 254 (2) of the former Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 7189 of Mar. 12, 2004) refers to a case where there is a separate penal provision concerning an act falling under any subparagraph of Article 254 (2) of the same Act. Thus, if a separate penal provision is provided in the same Act, it shall not be punished as a violation of Article 254 (2) of the same Act.

[2] If a person who intends to become a candidate in an election had been involved in establishing a private organization, even if the establishment of a private organization itself constitutes an election campaign, there is a separate penal provision under Articles 255(1)14 and 89-2(1) of the former Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 7189 of Mar. 12, 2004), with respect to such act, the said candidate cannot be punished for a violation of Article 254(2)4 of the same Act. On the contrary, the said candidate may not be punished for a violation of Article 254(2)4 of the same Act, and on the contrary, only if it is acknowledged that the said candidate had engaged in a separate election campaign or had another person engage in an election campaign that is included or not absorbing in the establishment of a private organization by using the private organization in question, it may be punished for a violation of Article 254(2)4 of the same Act.

[3] The case holding that in a case where a person who intends to become a candidate has established a private organization by going through the propagation of the mountain conference prior to the election campaign period, and there is no further act that can be evaluated as falling under a separate election campaign that is included in or cannot be absorption into a private organization by using the pertinent private organization, it cannot be punished as a violation of Article 254 (2) 4 of the former Act on the Election of Public Officials and the Prevention of Election Malpractice (amended by Act No. 7189 of March 12, 2004)

[1] Article 254(2) of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of March 12, 2004) / [2] Articles 89-2(1), 254(2)4, and 255(1)14 of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of March 12, 2004) / [3] Articles 89-2(1), 254(2)4, and 255(1)14 of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of March 12, 2004)

[1] Supreme Court Decision 96Do837 delivered on June 9, 1998 (Gong1998Ha, 1921), Supreme Court Decision 97Do856 delivered on June 9, 1998 (Gong1998Ha, 1926), Supreme Court Decision 2002Do45 delivered on June 25, 2002 (Gong2002Ha, 1866), Supreme Court Decision 2004Do4049 Delivered on November 11, 2004 (Gong2004Ha, 2065)

Defendant

Defendant

Attorney Lee In-bok et al.

Seoul High Court Decision 2004No1875 delivered on December 14, 2004

The judgment below is reversed and the case is remanded to Seoul High Court.

1. Summary of the judgment of the court below

The summary of the facts charged of this case is that Co-defendant 1 will take advantage of the name of the defendant and the head of the Si/Gun, who will not take place on April 15, 204. Co-defendant 2 will take advantage of the name of the defendant and the head of the Si/Gun's mountainous village election campaign, and will offer the defendant's election campaign to the 10th election campaign for the defendant and the head of the Si/Gun's mountainous village election campaign. Co-defendant 2 will take advantage of the name of the defendant and the head of the Si/Gun's mountainous village election campaign for the first time. Co-defendant 3 will take advantage of the name and the head of the Si/Gun's mountainous village election campaign for the second time. Co-defendant 1 will take advantage of his mountainous village election campaign for the second time. Co-defendant 2 will take advantage of the name and the head of the Si/Gun's mountainous village election campaign for the second time and will take advantage of the defendant's election campaign for the second time. The defendant will establish the court below's election campaign committee.

The first instance court acknowledged the whole facts charged as above against the defendant, and further, the defendant's act constitutes Articles 255 (1) 14 and 89-2 (1) of the former Public Official Election Act (amended by Act No. 7189, Mar. 12, 2004; hereinafter "Public Official Election Act"), which punishs a person who has established a private organization, and the court below maintained the first instance court's decision that the defendant should be punished as a violation of each of the above Public Official Election Act since the crime of violation of each of the above Public Official Election Act constitutes a substantial concurrent crime as provided in Article 37 of the Criminal Act, and since the crime of violation of Article 255 (1) 14 and Article 89-2 (1) of the Public Official Election Act (amended by Act No. 7189, Mar. 12, 2004; hereinafter "Public Official Election Act"), which increased the punishment for a crime of violation of Article 254 (2) 4 of the Public Official Election Act.

2. The judgment of this Court

A. As to the establishment of private organizations

In a criminal trial, the formation of a conviction shall not be necessarily formed by direct evidence, but may be based on indirect evidence, and indirect evidence shall not be individually or separately assessed, and indirect evidence shall be evaluated in a comprehensive manner with mutual relation with each other in all respects, and the probative value of evidence shall be left in accordance with logical and empirical rules, while it shall be left in a judge's free judgment, its judgment shall be consistent with logical and empirical rules, and the degree of the formation of a conviction to be found guilty in a criminal trial shall not be enough to have reasonable doubt. However, it is not necessary to exclude all possible doubts, and it shall not be allowed to dismiss it by causing a suspicion with no reasonable ground to believe that there is probative value, which goes beyond the bounds of the principle of free evaluation of evidence. The term "reasonable doubt" refers to a reasonable doubt as to the probability of facts inconsistent with the facts in accordance with logical and empirical rules, and it shall not be included in 2014 or 2040, which shall be based on abstract evidence or 204.

In addition, in relation to co-offenders who are jointly engaged in a crime, a public conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no process of conspiracy, if there was a combination of intent to do so in order or implicitly through several persons, a public conspiracy relationship is established, and even if there was no direct participation in the act of conspiracy, even if there was a person who did not directly participate in the act of conspiracy, he/she shall be held criminal liability as a co-principal for the act of another person, and such conspiracy may be recognized by the circumstantial facts and empirical rules without direct evidence (see Supreme Court Decisions 2002Do868, Jun. 28, 2002; 2004Do482, Apr. 27, 2004, etc.).

After compiling the evidence adopted, the court below found the facts as stated in its reasoning, and found that the defendant had established the mountain village development forum (hereinafter referred to as the "Ocheon branch mountain village development forum"), such as the defendant and co-defendant 1, co-defendant 2, co-defendant 3, co-defendant 4, and co-defendant 5 of the court below, the defendant and co-defendant 1, and co-defendant 2 of the court below's decision to establish the election district of the court below on October 13, 2003, the 10th election district of the court below was established as the 10th election district of the defendant and the 10th election district of the court below, and there were no errors in the rules of evidence in finding that co-defendant 1 and the above co-defendant 2 participated in the election of the above 10th election district of the court below as the 10th election district of the defendant, and there were no special reasons to recognize that the above co-defendant 1 and the above co-defendant 2 were established as the above election district of the 17th election district of the defendant.

B. As to the establishment of a violation of an election campaign period

However, the court below held that the defendant's act constitutes Article 255 (1) 14 and Article 89-2 (1) of the Public Official Election Act concerning illegal election campaign; on the other hand, since Article 254 (2) 4 of the Public Official Election Act concerning the violation of the election campaign period, the defendant's act constitutes a violation of Article 254 (2) 4 of the Public Official Election Act concerning the violation of the election campaign period, the defendant should be punished as a violation of Article 254 (2) 4 of the Public Official Election Act; and further, the defendant's violation of each of the above public Official Election Act maintains the judgment of the first instance court

The main text of Article 254(2) of the Public Official Election Act provides that "any person who commits an act falling under any of the following subparagraphs before the election period shall be punished by imprisonment with prison labor for not more than two years or by a fine not exceeding four million won, except as otherwise provided in this Act" provides that "a person who conducts an election campaign or makes another person conduct an election campaign by establishing an organization or forming a private organization for the election campaign" under subparagraph 4 of Article 254(2) refers to a case where there is a separate penal provision as to an act falling under any of the subparagraphs of Article 254(2) of the Public Official Election Act. Thus, if there is a separate penal provision under the Public Official Election Act, it shall not be punished as a violation of Article 254(2) of the Public Official Election Act (see Supreme Court Decisions 96Do837, Jun. 9, 199; 97Do856, Jun. 9, 198; 200Do414, Jun. 25, 2002>

However, Article 255 (1) 14 of the Public Official Election Act provides that a person who establishes or establishes a private organization or other organization in violation of Article 89-2 (1) shall be punished by imprisonment for not more than three years or by a fine not exceeding six million won. Article 89-2 (1) of the Public Official Election Act provides that "any person who intends to become a candidate in an election shall not establish or set up a private organization or other organization for a candidate (including a person who intends to be a candidate) such as research institute, club, native folks society, alpine society, early rising club, early rising club, external group of a political party, regardless of its name or professed purpose." Thus, if a defendant's act was done at the establishment of the private organization as mentioned above, even if the act itself constitutes an election campaign, such act constitutes an election campaign, it shall not be punished for a violation of Article 255 (1) 14 and Article 89-2 (1) of the Public Official Election Act, and it shall not be punished for a violation of Article 254 of the Public Official Election Act.

In the process of establishing a private organization as stipulated in Article 89-2 (1) of the Public Official Election Act by taking advantage of the appearance of 'Korea Mountain Association' at the above line tourist hotel on November 18, 2003, but Co-defendant 1 of the court below, Co-defendant 1 of the court below, etc., made a contribution for the defendant who wishes to be a candidate by providing the members of the mountain conference with heavy meals and roas, etc., so it can be deemed that Co-defendant 1 of the court below did an election campaign separate from the establishment of a private organization by using a private organization. However, even though Co-defendant 1 of the court below and Co-defendant 1 of the court below did not prosecute the defendant as a contribution act and did not prosecute him, even according to the record, it cannot be deemed that the defendant directly made a contribution act, or that he did not commit an election campaign in collusion with Co-defendant 1 of the court below, etc., and therefore, it cannot be viewed that the establishment of the organization or constitutes an election campaign.

Therefore, the defendant's act of establishing a private organization by taking the appearance of "Korea Mountain Association prior to the election campaign period" is deemed to be an election campaign by itself, and such act constitutes "a case where the defendant conducts an election campaign by forming a private organization or makes another person do so prior to the election campaign period" under Article 254 (2) 4 of the Public Official Election Act. However, as to such act, there is a separate penal provision under Articles 255 (1) 14 and 89-2 (1) of the Public Official Election Act, and this constitutes "a case where the main sentence of Article 254 (2) of the Public Official Election Act provides other provisions under this Act", it cannot be punished as a violation of Article 254 (2) 4 of the Public Official Election Act.

Nevertheless, the court below maintained the first instance judgment that determined punishment through aggravated concurrent crimes on the ground that the defendant's act constitutes not only Article 255 (1) 14 and Article 89-2 (1) of the Public Official Election Act but also Article 254 (2) 4 of the Public Official Election Act, and also Article 254 (2) 4 of the Public Official Election Act is a violation of Article 254 (2) 4 of the Public Official Election Act. Furthermore, the defendant's violation of each of the above Public Official Election Act constitutes substantive concurrent crimes, thereby maintaining the first instance judgment that determined punishment through aggravated concurrent crimes. The judgment of the court below is erroneous in the misapprehension of legal principles as to the violation of Article 254 (2) of the Public Official Election Act, and it is obvious that

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)