Defendant

Defendant and Prosecutor

In-depths

Gangnam General Law Firm, Attorney Kim Ho-ho

Changwon District Court Decision 2010Gohap8 Decided July 2, 2010

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of facts or misunderstanding of legal principles

(A) The Defendant sent Nonindicted 2, 3, and 4 e-mail to Nonindicted 1 as if he had carried out an election campaign to Nonindicted 2, 3, and 4, but did not actually carry out an election campaign. Each statement made to Nonindicted 2, 3, and 4 in an investigative agency is different from the fact by the investigator’s strong pressure atmosphere, and there is no credibility of the statement written differently from the actual statement.

(B) Unless otherwise, the status or the right to direct and supervise Nonindicted 4 in the head of △△dong Social Welfare Center is only in the representative of △△△△△, or in the head of ○○○ City, and is irrelevant to the Defendant, so the Defendant cannot be deemed to have carried out an election campaign against Nonindicted 4 by taking advantage of the status

(2) Unreasonable sentencing

The sentencing of the lower court (one year of imprisonment with prison labor for four months, one year of suspended execution) is too unreasonable.

(b) Public prosecutor (not guilty or misunderstanding of legal principles);

(1) Violation of each Public Official Election Act on the election campaign against Nonindicted 5, 6, 7, 8, 9, 10, 11, and 12

Nonindicted 5, etc., at the time of the written indictment, made a telephone conversation with the Defendant or made a statement of the mobile phone call and the statement that they had a telephone conversation with the Defendant around the time of the written indictment, which would suffice as supporting evidence for the confession of the Defendant (the content of e-mail sent to the ○○ City Mayor). Moreover, as to Nonindicted 5, 6, 7, 8, and 9 of the aforementioned facts charged, an election campaign cannot be deemed to constitute a case where a public official conducted an election campaign using his status

(2) Violation of each Public Official Election Act, whose content is to participate in election campaign planning

The contents of the e-mail sent by the Defendant are as follows: (a) it is possible to engage in an unilateral act; and (b) it is possible for the ○○ market to make a reply to the Defendant’s e-mail such as “I,” “I,” and “I,” and encourage the Defendant to send e-mail and election campaigns; (c) it can be fully recognized as the participation in planning an election campaign.

2. Determination

A. Judgment on the mistake of facts or misapprehension of legal principles by the defendant

Reinforcement evidence for confession is sufficient if it is sufficient to recognize that the confession of a defendant is true, not a processed one, even though it is not sufficient to acknowledge all or some of the facts constituting an offense, and it is sufficient to prove that the confession of a defendant is true, not a processed one, as well as indirect evidence or circumstantial evidence. In addition, if confession and reinforcement evidence are mutually consistent and it is possible to prove the facts of an offense as a whole as evidence of guilt, it is sufficient to establish evidence of guilt (see Supreme Court Decision 2001Do1897, Jan. 8, 2002).

The court below recognized the facts duly adopted and examined in detail, and judged that the part corresponding to the facts charged in the statement of Nonindicted 2, 3, and 4 in accordance with the contents of e-mail (i.e., the confession), and that Nonindicted 3, who is the head of △△△○○ Tong, was found to be the head of the Dong office to carry out the △△△ Dong personnel affairs, and each of the crimes of this case against Nonindicted 2 and 3 in the same place, and that the defendant was less likely to commit the crime of this case against Nonindicted 4, who is the head of △△△△ Dong, the head of the Dong welfare division, along with the head of △△△ Dong welfare division, was committed on the spot where the crime of this case against Nonindicted 2, 3, and 4, who is the head of △△△△△ Dong, was committed by taking advantage of the status of public official of the head of △△△△ Dong, and thus, it is hard to see that there was an error of law by visiting the defendant's duty to direct or supervise the head of △△△△△△.

B. Judgment on the prosecutor's misconception of facts or misapprehension of legal principles

(1) Violation of each Public Official Election Act on the election campaign against Nonindicted 5, 6, 7, 8, 9, 10, 11, and 12

(A) Summary of the facts charged

1) From the end of December 2009 to the end of January 10, 2010, the Defendant asked Nonindicted 5 to help the market owner and carried out an election campaign using his status as a public official for Nonindicted 1 in relation to the election of the head of a basic local government that is scheduled to be carried out on June 2, 2010.

2) From the end of December 2009 to the end of January 10, 2010, the Defendant asked Nonindicted 6 to help the present market in the election of the head of the basic local government that was scheduled to be carried out on June 2, 2010, and carried out an election campaign using his status as a public official for Nonindicted 1 in relation to the election of the head of the ○○ market, which was scheduled to be carried out on June 2, 2010.

3) From the end of December 2009 to January 10, 2010, the Defendant: (a) asked Nonindicted 7 to change the current market in the election of the head of the basic local government that was scheduled to be carried out on June 2, 2010; and (b) carried out an election campaign using his status as a public official for Nonindicted 1 in relation to the election of the head of the ○○ market, which was scheduled to be carried out on June 2, 2010.

4) On January 9, 2010, the Defendant: (a) requested Nonindicted 8 to help the current market in the election at the market; and (b) carried out an election campaign by taking advantage of his status as a public official for Nonindicted 1 in the ○○ City on June 2, 2010 in relation to the election of the head of the basic local government, which is scheduled to be carried out on by the Defendant.

5) On January 7, 2010, the Defendant carried out an election campaign using his status as a public official for Nonindicted Party 1 in relation to the election of the head of a basic local government, which is scheduled to be carried out on June 2, 2010, by demanding to manage 1,000 members to Nonindicted Party 9 well and requesting to change the ○○ market.

6) On January 12, 2010, the Defendant, at around 12:00, expressed Nonindicted 10, 11, and 12 to Nonindicted 10, 11, and 12 in the Gandong cafeteria located in the ○○ City ( Address 1 omitted), asked Nonindicted 1 of the ○○ City to have his achievements, and asked Nonindicted 1 of the ○○ City to have a lot of achievements, carried out an election campaign by taking advantage of his status as a public official for Nonindicted 1 of the ○○ City in relation to the election of the head of the basic local government, scheduled to be carried out on June

(B) The judgment of the court below

1) Of the evidence submitted by the public prosecutor, the statement of statement in each investigation agency of Nonindicted 5, 6, 7, 8, 9, 10, 11, and 12, which is the party to the election campaign of the defendant as stated in the above facts charged, refers to the contents of the defendant as stated in the facts charged, and there is no fact that the defendant had engaged in an election campaign, and it cannot be viewed as evidence consistent with the above facts charged. The e-mail and correspondence of this case are only written answers, which correspond to the above facts charged. However, the e-mail of this case does not anticipate that the defendant would appear to another person before receiving the suspicion of the crime, regardless of them, and it is merely a confession. Since the e-mail of this case is also a confession that the defendant recognizes the facts charged, since there is no evidence to reinforce the above confession, it cannot be viewed as evidence of guilt because it constitutes evidence of days unfavorable to the defendant. Accordingly,

2) In addition, with respect to the election campaign against Nonindicted 5, 6, 7, 8, and 9 among the facts charged above, if a public official uses private relations or simply a public official's status, it cannot be deemed that the case constitutes "using his status as a public official" under Article 85 (1) of the Public Official Election Act. According to these legal principles and records, it appears that both the Defendant was aware of private relations, and there is no evidence that the above person is a public official who has the right to direct and supervise his status or duties as a public official or that the Defendant was engaged in election campaign by taking advantage of his duties as a public official, and there is no evidence that there is no evidence to prove the crime in this respect.

(C) Judgment of the court below

1) As seen earlier, the reinforced evidence of confessions cannot be recognized as a whole or an essential part of the facts constituting an offense, even if it is not sufficient to acknowledge the whole or an essential part of the facts constituting an offense, and it can be indirect evidence or circumstantial evidence. As such, it is examined whether the contents of the mobile phone call and the statement statement submitted by the prosecutor are sufficient as evidence of guilt.

2) The instant e-mail changed by the Defendant that he did not request the Defendant to promote and serve as Grade 6 police officer, and only 5 public officials of Grade 5 were issued with the head of △△ Dong acting on behalf of the head of △△△, who is the personnel authority, and that he sent eight times during the short period from January 6, 2010 to the 12 of the same month, the Defendant stated that he did not falsely state that he did not have any content of his election campaign. However, if the Defendant stated that he did not have any content of the instant e-mail that he had any content of the instant e-mail that he did not have any influence on the Defendant’s election campaign, it would be difficult for him to find that he had any content of the instant e-mail that he did not have any influence on the Defendant’s election campaign, and that he had any content of the instant e-mail that he did not have any influence on the Defendant’s 2,000 persons nationwide, it appears that he did not have any influence on the Defendant’s 1’s e-mail.

3) The court below erred in finding that there is no evidence to prove this part of the confession. However, the conclusion that there is no evidence to prove a crime due to lack of evidence to prove the confession is legitimate, and the prosecutor's assertion in this part is without merit.

(2) Violation of each Public Official Election Act, whose content is to participate in election campaign planning

The court below recognized the facts of the judgment in detail and found guilty of this part of the facts charged by considering the evidence duly admitted and adopted. Unlike the prosecutor's above assertion, the court below's determination that this part of the e-mail has no evidence to acknowledge the answer of the ○○ market as to this part of the e-mail is just and acceptable (However, there is a fact that the ○○ market replys to e-mail as "I, I, I, I," but it is irrelevant to this part of the facts charged), and there is no error of law by mistake of facts or misunderstanding of legal principles which affected the conclusion of the judgment. Thus, the prosecutor's above assertion is without merit.

C. Prosecutor's determination on the ancillary charges

(1) Summary of the conjunctive charge

Notwithstanding the fact that no one is entitled to carry out an election campaign prior to the election campaign period, the Defendant carried out an election campaign with respect to Nonindicted 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 prior to the election campaign period, as described in paragraph (b) (1) (a), prior to the election campaign period.

(2) Determination

Since the part against Nonindicted 2, 3, and 4 as to the primary facts charged is affirmed, it is not necessary to determine the conjunctive facts charged. The ancillary facts charged against Nonindicted 5, 6, 7, 8, 9, 10, 11, and 12 are identical to the primary facts charged. However, as seen earlier, as to the same issue as to whether the Defendant carried out an election campaign against Nonindicted 5, etc. prior to the election campaign period that did not use the public official status, the prosecution was added for the violation of the Public Official Election Act on the ground that the election campaign was carried out prior to the election campaign period that did not use the public official status. As seen earlier, it is a case where there is no proof of a crime due to lack of supporting evidence for the confession of the Defendant, thereby not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, even if the lower court acquitted the Defendant as to the primary facts charged against the Defendant, and even if the prosecutor filed an appeal, and added the ancillary facts within the scope of identity

D. Determination on the Defendant’s assertion of unreasonable sentencing

This case has some favorable circumstances, such as that the e-mail in the ○○ market was illegally leaked by a third party hacking, and that there is no previous conviction, etc. However, the opening of election by a public official is bound to be connected to a personnel abolition group, such as reduction in the organization of a public official, debate, etc. In the end, the opening of election by a public official is unlikely to be subject to administration in accordance with the law and principles, and the administration is likely to distort by a candidate's individual or a part-time public official, and it is highly necessary to prevent any intervention of a person in a public position. In this case, the defendant carried out an election campaign against the head of the head of the head of the head of the head of the head of the Tong or the head of the competent agency by using the status of the ○○○○○ City, one who has the appointment authority, for the purpose of the ○○○ City, and the contents of the election, which is reported to the ○○ City, and the degree of illegality is inappropriate.

3. Conclusion

Therefore, since the appeal by the defendant and the prosecutor is without merit, they are all dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Yong-open (Presiding Judge)