Defendant

Both parties

Pursuant to the Constitution of the Republic of Korea (Court) and Park Jong-young (Court)

Attorneys Yellow-gu et al. and three others

Seoul Eastern District Court Decision 2016Gohap295 Decided February 15, 2017

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts or misapprehension of legal principles

A) Each evidence that the prosecutor analyzed and submitted electronic information stored in the mobile phone owned by Nonindicted Party 1 and the second evidence that was collected based on that evidence, Nonindicted Party 1’s prosecutor’s statement, which is a secondary evidence, is inadmissible as it constitutes illegally collected evidence for the following reasons.

① In the process of executing a search and seizure warrant (hereinafter “first search and seizure warrant”) as of September 9, 2016, a prosecutor discovered a separate criminal charge not stated in the warrant, but continued to collect evidence in an unlawful manner without obtaining a new warrant, after suspending additional search and seizure.

② Since the first search and seizure warrant was issued with respect to a case involving publication of false facts against the Defendant and Nonindicted 3, if Nonindicted 1, who was the witness of the instant case, discovered a separate suspected fact that could be converted to a suspect during the execution process, the new warrant should be issued and notified to Nonindicted 1, who should have confirmed the witness intention in the digital information search process once again and guaranteed the attorney’s right and right to be present. Nevertheless, the execution of a warrant without going through such procedures constitutes a serious violation of the warrant requirement or due process, and thus, the evidence collected therefrom constitutes illegally collected evidence.

③ The criminal facts stated in the first search and seizure warrant and the facts charged in this case are different from the contents thereof, and there is no subjective relationship between the Defendant and Nonindicted 3, while the subject of the criminal facts stated in the warrant is the Defendant and Nonindicted 1. Moreover, even if the information that can be collected by the warrant is limited to the information on April 11, 2016 and April 12, 2016, the prosecutor collected in a non-discriminatory manner even if it is limited to the information on April 11, 2016 and the information on April 12, 2016. As such, it is unlawful for the prosecutor to collect evidence that is irrelevant to the criminal facts stated in the first search and seizure warrant.

④ On September 23, 2016, after receiving the result of analysis on Nonindicted Party 1’s cell phone, the prosecutor issued a search and seizure warrant (hereinafter “second search and seizure warrant”) as of September 26, 2016, and executed the above warrant on the day Nonindicted Party 1 appeared at the prosecutor’s office for the purpose of investigation into witnesses. At the time, Nonindicted Party 1 signed the warrant on the receipt of the seized object only formally without having actually returned the cell phone, and the prosecutor submitted the results of the mobile analysis acquired in the process of the execution of the first search and seizure warrant as it is, without going through the process of analysis again in the second search and seizure warrant. In other words, the evidence collection process based on the second search and seizure warrant cannot be deemed to have severed the causal relationship with the evidence collection process of the first search and seizure warrant as of October 7, 2016, which constitutes unlawful evidence collection.

B) The prosecutor’s statement and protocol of interrogation of Nonindicted Party 1 regarding Nonindicted Party 1 did not actively grasp the location of Nonindicted Party 1, and thus, it does not constitute “where the prosecutor is unable to attend and make a statement in the official ruling due to any other similar cause” under Article 314 of the Criminal Procedure Act, and (2) it was not proven that the testimony was made in a particularly reliable state because it was not guaranteed, and thus, it is inadmissible.

C) KRW 2 million delivered by the Defendant to Nonindicted 1 is only the payment made by Nonindicted 1 to Nonindicted 1 for the service performed at the Defendant’s event, and for the SNS publicity methods and operational advice, not the delivery in connection with the election campaign.

2) Unreasonable sentencing

The court below's punishment (2 million won of fine) against the defendant is too unreasonable.

(b) Prosecutors;

The sentence of the court below against the defendant is too unjustifiable.

2. Determination

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

1) Determination on the admissibility of the result of Nonindicted Party 1’s mobile phone analysis

A) Facts of recognition

According to the evidence duly admitted and investigated by the court below, the following facts are recognized:

① According to the investigation report as of August 11, 2016, the Defendant made an accusation against the Defendant stating that “The Defendant’s election of the 20th National Assembly member to the 20th Pest North Korea is imminent, on April 11, 2016, the Act was put up for an election again even if the candidates for Nonindicted 4 were to be elected due to a very serious violation of election law,” and that “The Defendant posted a synthetic photograph with the 4 candidates for election campaign and spreads false facts by posting it.” The Prosecutor confirmed that each of the above notices were deleted by accessing the Defendant’s Pest North Korea account, and that the Defendant directly managed the Pest Account.

② On September 6, 2016, Nonindicted 5 appeared at the prosecutor’s office to publish the Defendant’s false information, and stated that “At the time Nonindicted 6 starts election campaign in the Defendant’s election campaign, Nonindicted 6 only made the same content as the Defendant’s page on the Defendant’s page account on the same page. Nonindicted 1 and a person working together with Nonindicted 7 Nonindicted 1, a party on the part of Nonindicted 7’s members, posted a letter of “credit card” according to a specific case. On April 11, 2016, Nonindicted 1 appears to have been written in the form of “credit card news”, and thus, Nonindicted 1 appears to have been written.

③ On September 11, 2016, the Defendant appeared at the prosecutor’s office as the suspect in the foregoing case of publication of false facts, and stated that “The Defendant himself directly managed the individual account for 4,5 years prior to his management, and the page account was different from the individual account and the ID and password, and was rarely managed by the employees, and almost he did not use the pathy. However, there was a case in which the personal account was held in an election. In particular, in the case of a notice on April 11, 2016, the Defendant stated that “the credit card news” was o○○○○○ central party or the SNS of Seoul City/Do Party” and that “the ○○○○○○ branch or the SNS branch of Seoul City/Do Party” was prepared in the case of a notice on April 11, 2016, and that it was ambiguous for whom it was posted to the est account (hereinafter “Investigation Records”).

④ The primary search and seizure warrant issued on September 9, 2016 had the following facts stated therein:

In relation to the election of the 20th National Assembly member, which was held on April 13, 2016, Defendant 1 posted a false statement on April 11, 2016, including that “If the election of Nonindicted 4 candidate for △△△△△△ is held for a very serious violation of the election law, the election shall be held again again. Nonindicted 4 published the fact that Nonindicted 4 candidate is the only regional passport candidate through the statement of the call declaration, and that he sent his opinion to the Central Office of Public Official Election Act (2) in relation to the election of the 20th National Assembly member on April 13, 2016, Nonindicted 3, Nonindicted 32016, Nonindicted 4 posted a false statement on the website of ○○○○○○○○○○○○○○ on April 12, 2016, with the same content as that of the above paragraph, thereby violating the Public Official Election Act.

⑤ According to the investigation report dated September 21, 2016, the prosecutor executed the first search and seizure warrant on September 20, 2016, and seized two mobile phones owned by Nonindicted Party 1. At the time, the prosecutor prepared and issued a seizure list to Nonindicted Party 1 that seized two mobile phones, and Nonindicted Party 1 had already submitted to the prosecutor’s office a written confirmation of witness, such as requisition, etc., to the effect that “The prosecutor does not witness the process of searching, copying, copying, and printing electronic information for the seized mobile phone,” and that “The prosecutor voluntarily submitted a written consent to the digital analysis of two mobile phones.”

④ Around September 21, 2016, the digital siren-type team of the Seoul High Prosecutor’s Office prepared a mobile analysis report on the two mobile phones, and the data contain the following information:

본문내 포함된 표 일시 발신자 수신자 메시지 내용 2016.3.29. 12:46:02 공소외 1 공소외 6 고생이 많으십니다. 피고인 선배님 자료들을 보내주시면 감사하겠습니다. 12:46:56 공소외 1 공소외 6 모든자료들요..^^ 웹하드 있음 알려 주고요 없음 메일이나 다른 것으로요. 12:58:41 공소외 1 피고인 (계좌번호 생략)(공소외 1:농협)입니다. 2016.3.30. 10:03:28 (전화번호 4 생략) 공소외 1 농협 입금 200만 원 03/30 10:03 (계좌번호 생략) 피고인 잔액 2,769,959원 10:04:45 피고인 공소외 1 보냈습니다. 많은 활동 부탁합니다. 이제 2주..!!! 내일부터 네이버 우 중간 박스광고 나갑니다~ 10:05:07 피고인 공소외 1 공약전파 중요합니다!! 10:05:46 공소외 1 공소외 2 피고인부터 하지 10:05:54 공소외 1 공소외 2 쩐 받아옴 10:05:57 공소외 2 공소외 1 오오 10:06:14 공소외 1 공소외 2 현금으로 10:08:44 공소외 2 공소외 1 오오 12:48:28 공소외 1 공소외 6 (이메일주소 생략)으로 자료 보내주시면 감사하겠습니다. 12:52:56 공소외 6 공소외 1 메일전송했습니다. 수고하세요 13:03:26 공소외 1 공소외 6 홍보물 말고 또 참고할만한 자료들 없나요? 카드뉴스 등 홍보에 필요한 것들요 2016.4.11. 21:58:05 공소외 6 공소외 1 [사진] 공소외 8 후보 지원유세하는 박근혜 선대위원장 22:10:29 공소외 1 공소외 6 이 합성사진도요. 2016.4.12. 11:52:01 공소외 1 공소외 6 내용 : △△□ 공소외 4 당선돼도 무효다 (생략) 14:31:27 공소외 2 공소외 1 〈법은 지키라고 있는 겁니다〉 (생략) 14:31:29 공소외 2 공소외 1 이거 올릴께염

B) Relevant legal principles

The Protection of Communications Secrets Act provides that the content of telecommunications acquired through the implementation of communication-restricting measures shall be limited to cases where the crime subject to the provision of communication-restricting measures is investigated or prosecuted or the crime related thereto is intended to prevent such crime (Article 12 Subparag. 1), and this provision shall apply mutatis mutandis to the restriction on the use of communication confirmation data (Article 13-5). Therefore, where the communication confirmation data, such as the telephone details, acquired upon a request for the provision of communication confirmation data, are used to investigate or prosecute the crime, the crime subject to the provision of communication confirmation data shall be limited to the crime subject to the request for the provision of communication confirmation data and the crime related thereto (see Supreme Court Decision 2014Do2121, Oct. 27, 2014). The crime related to the crime subject to the request for the provision of communication confirmation data refers to the crime that has objective relevance to the crimes subject to the request for the provision of communication confirmation data, and the objective relationship between the person subject to the request for the provision of communication confirmation data and the suspect’s personal relevance, etc.

Meanwhile, Article 215(1) of the Criminal Procedure Act provides that "a prosecutor may seize, search, or inspect evidence by a warrant issued by a judge of a district court only if there is a circumstance to suspect that a criminal suspect has committed a crime, if necessary for a criminal investigation, and if it is deemed that such crime is related to the case in question." Thus, the above legal principle applies to cases where "a crime in relation to the suspected criminal fact stated in the search and seizure warrant" is determined.

C) Determination

1) In light of the following circumstances acknowledged by the facts as seen earlier, the instant facts charged constitute indirect evidence or circumstantial evidence to prove the motive, background, means and methods of committing a crime, time and place of a crime, etc. as to the suspected facts stated in the first search and seizure warrant, and thus, ought to be deemed as objectively related to the facts stated in the first search and seizure warrant.

① The facts charged in the first search and seizure warrant and the facts charged in the instant case are common in that all are related to the Defendant’s act of posting or allowing the Defendant to put a letter on his page while conducting an election campaign for a National Assembly member. However, there is only difference between the former and the latter’s act of posting a false letter on the other candidate, and there is only difference between the latter and the latter’s act of providing money and valuables in return for posting his/her campaign bulletin.

② Around the time when the aforementioned mobile analysis report was prepared, the Defendant denied the Defendant’s preparation and posting of a notice as of April 11, 2016. However, the Defendant’s film account prepared and posted a notice from time to time to time by any third party other than the Defendant. In particular, Nonindicted 1, who was in charge of a notice in the form of “credit card news” on April 11, 2016, was highly likely to have been prepared. Therefore, in order to prove the Defendant’s suspicion of publication of false facts, there was a need to prove additional facts that the Defendant instructed Nonindicted 1 to prepare the said notice or participated in the preparation of the notice.

③ The message as of April 11, 2016, which was directly related to the notice as of April 11, 2016, and April 12, 2016, among the message written in the mobile analysis report, is merely exchanged by Nonindicted 1, Defendant’s election campaign manager, Nonindicted 6, and Nonindicted 2, and it seems insufficient to prove the suspicion of publishing the Defendant’s false information solely on this part. However, in view of the message written in the mobile analysis report received by the Defendant, Nonindicted 1, Nonindicted 1, and Nonindicted 6, etc. prior to that, there is room to view that Nonindicted 1 posted a letter on the Defendant’s campaign campaign to North Korea, upon the Defendant’s instruction or request.

④ Of the message written in the mobile analysis report, the part concerning the fact that the Defendant paid KRW 2 million to Nonindicted 1 constitutes evidence supporting the circumstances in which the Defendant instructed Nonindicted 1 to prepare the election-related bulletin for the purpose of election campaign during the election campaign period. Based on such evidence, it was possible to prove the fact that the Defendant conspired to prepare the bulletin as of April 11, 201, or was aware of at least the content of the bulletin, and that the Defendant allowed to prepare and post it.

2) Furthermore, the facts alleged in the first search and seizure warrant reveal that the Defendant posted a false article on his page in connection with the election campaign. The facts charged in this case are acknowledged since the Defendant offered money and valuables to Nonindicted Party 1 by requesting the publication of the election campaign material to his page in connection with the election campaign, and all of them are the subject of the Defendant’s crime, and their personal relations are also recognized.

3) Meanwhile, as seen earlier, the fact that Nonindicted 1’s right to participate was sufficiently guaranteed in the process of the execution of the first search and seizure warrant is examined. Moreover, even if evidence was found that the status of the person subject to the search and seizure was objectively related to the crime stated in the search and seizure warrant, if such evidence is objectively related to the crime, it is within the scope of the execution of the search and seizure warrant. As long as Nonindicted 1’s right to participate is sufficiently guaranteed in the process of the execution of the first search and seizure warrant, it shall not be deemed that Nonindicted 1 should be issued a warrant with respect to Nonindicted 1, and shall not be deemed that the right to receive the constitutional assistance, or that Nonindicted 1 should be notified, or

4) Ultimately, since the part related to the instant facts charged among the message of the mobile analysis report is related to the publication of false facts against the Defendant and the specific and individual relationship, it cannot be said that the prosecutor’s additional search is suspended or a new warrant is issued on the ground that such part constitutes evidence proving a separate offense other than the publication of false facts. Therefore, the result of analysis on the cell phones seized on the basis of the primary search and seizure warrant and the evidence obtained therefrom do not constitute illegally collected evidence, and therefore, this part of the Defendant’s assertion is without merit.

2) Determination on the admissibility of Nonindicted 1’s prosecutorial statement

A) Whether “other similar reasons” under Article 314 of the Criminal Procedure Act is recognized

According to Article 314 of the Criminal Procedure Act, in order to use the protocol under Article 312 of the same Act or the statement, documents, etc. under Article 313 of the same Act as evidence, a person who needs to make a statement on the court date shall be a person who is unable to make a statement at the public trial due to death, disease, foreign residence, unknown whereabouts, or any other similar cause, and shall be in a particularly reliable state for the preparation of such statement or documents. Furthermore, the requirements under Article 314 of the Criminal Procedure Act, which provides for exceptions to directism and hearsay rule, must be strictly examined. The prosecutor bears the burden of proving the requirements for the admissibility of hearsay evidence. Thus, if the court intends to find that the witness is unknown or is unable to make a statement due to other similar cause, the prosecutor must prove that the witness was unable to appear at the court even if he/she made a full effort to attend the court (see, e.g., Supreme Court Decision 2013Do1435, Apr. 11, 2013).

In light of the following circumstances, which can be recognized by the record, Nonindicted 1’s whereabouts were not known even though Nonindicted 1 made adequate efforts to attend the court, and Nonindicted 1 was aware of the progress of the trial but could not be returned to the court due to the absence of telephone. Thus, this constitutes “when a person who needs to make a statement on the court date is unable to make a statement due to an unknown whereabouts or any other similar cause” under Article 314 of the Criminal Procedure Act.

① The court of the court below summoned Nonindicted 1 who was prosecuted as co-defendant, but ordered the prosecutor to correct the address when the writ of summons was not served due to non-indicted 1’s absence of questioning, and again served the Defendant’s writ of summons to the corrected address, but the delivery was not made due to the absence of questioning, and the subsequent request for detection of location was made, but the location was

② In order to identify the whereabouts of Nonindicted 1 on November 30, 2016, the prosecutor instructed the head of the competent police station and the head of the competent Silsan Police station to investigate the location, but the location was not known. On December 9, 2016, the prosecutor asked Nonindicted 9, the head of the competent police station and the head of the competent Silsan Police station, who is the head of the existing residence of Nonindicted 1, by telephone, about the location of Nonindicted 1. However, Nonindicted 9 asked Nonindicted 9, who is the head of Nonindicted 1, who is the head of the competent place of residence. However, Nonindicted 9 asked Nonindicted 1, a person who is Nonindicted 1, at the latest,

③ On December 12, 2016, for the confirmation of Nonindicted Party 1’s whereabouts, the prosecutor inquiredd whether the details of Nonindicted Party 1’s entry in the name of Nonindicted Party 1 with respect to 3 companies (SK, LGU+, and KT), and confirmed that the mobile phone number (phone 1 omitted) subscribed to SK was the start-down situation, and that the Internet phone number (phone 2 omitted) subscribed to the LGU + the Internet phone number (phone 2 omitted) was “nick or not connected to the Internet.”

④ Nonindicted 2 appeared as a witness in the trial of the political party and testified with Nonindicted 1 around 6:7 p.m. on June 13, 2017, and received Kakakao Stockholm messages on the day of his appearance. Nonindicted 1 also knows that the Defendant was in the instant case. Nonindicted 1’s telephone number is (number 3 omitted). Nonindicted 1’s phone number appears to be (number 3 omitted). However, Nonindicted 1 asked Nonindicted 1 to appear in the court and to give testimony, Nonindicted 1 stated that “I do not know that I would like to do so.”

⑤ The defense counsel filed an application for witness with respect to Nonindicted Party 1 by supplementing Nonindicted Party 1’s address at the place of residence and telephone number at the previous ancient city with the aforementioned “(number 3 omitted)”. However, the witness summons was not served by the addressee’s unknown address, and Nonindicted Party 1 attempted to make a telephone call at the above phone number, but did not receive summons.

B) Whether the “ particularly reliable state” under Article 314 of the Criminal Procedure Act is acknowledged

The purpose of Articles 312(4) and 314 of the Criminal Procedure Act is to exceptionally recognize admissibility of evidence only when it is proved that there is little room for false intervention in the contents of the statement or the preparation of the protocol or documents, and specific external circumstances warranting credibility or voluntariness of the contents of the statement, etc. to recognize admissibility of evidence in accordance with Article 314, i.e., to recognize admissibility of evidence only when it is proved that there is no obvious procedural error in the preparation process of the statement or protocol, or there is no specific circumstance to doubt the voluntariness of the statement, etc., in the presence of a judge, and where there is a special circumstance that makes it difficult to accomplish the above principles due to the death of the person making the statement, etc., while adopting the principle of direct cross-examination and the hearsay rule as the basic principle that the formation of a conviction against the substance of the case must be conducted through evidence examination guaranteed by the Constitution in the presence of a judge. However, even if it does not go beyond the cross-examination, it should not be deemed as constituting evidence 2016.

The court below duly adopted and examined the following circumstances: ① Nonindicted 1 appears to have been subject to criminal punishment on the part of the National Assembly members belonging to Pyeongtaek○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○”).

C) Sub-decision

Therefore, since each prosecutor's statement and each protocol of interrogation of Nonindicted Party 1 in the prosecution are admissible as evidence in accordance with Article 314 of the Criminal Procedure Act, the above assertion by the defendant against this is without merit.

3) Whether two million won or more delivered by the defendant was delivered in connection with the election campaign

A) Relevant legal principles

The crime of violation of Articles 230(1)4 and 135(3) of the Public Official Election Act is subject to the punishment of offering money, valuables, or other benefits in connection with an election campaign or expressing an intention to offer them or promising to provide them. The punishment is not limited to offering money and goods during the election campaign period as prescribed by the above Act. “In relation to an election campaign” under Article 135(3) of the Public Official Election Act includes “in relation to an election campaign,” which is more broad than “for an election campaign,” and even if there was no purpose of influencing the purpose of the election or the election, the act itself is established in the need to regulate the act that is likely to infringe on the freedom and fairness of the election. Thus, the provision of money and goods does not necessarily need to be the consideration for an election campaign, and it includes what is related to the election campaign, such as the consideration for providing information related to the election campaign, and expenses for persons engaged in the election campaign (see, e.g., Supreme Court Decision 2010Do910, Dec. 23, 20).

B) Determination

According to the evidence duly adopted and examined by the lower court and the trial court, the Defendant was registered as the preliminary candidate for the Daejeon Do○○○○○○○○○○○○○○○○○ on December 2015, and opened the event of the North contact on January 12, 2016. At the time, Nonindicted Party 1 was in charge of planning and public relations of the North contact, and Nonindicted Party 1 was recognized to have sent the Defendant the “working related to SNS” data on February 2, 2016.

However, in light of the following various circumstances acknowledged by the above evidence, even if there are some mixing of the proceeds for Nonindicted Party 1 to help North Korea contact with Nonindicted Party 1 before the election of the 20th National Assembly member, it is reasonable to view that the main nature of the proceeds was paid in relation to the election campaign in the 20th National Assembly member election.

① At the prosecution twice, Nonindicted Party 1 appeared at the prosecution, and stated to the effect that “Defendant 1 was a candidate for △△ △△ △△ Do in making an online election campaign upon requesting a low phone call around March 30, 2016, referring to what she attempted at the time of the preliminary candidate of the Daejeon △△ Do,” or “2 million won was paid in return for an online election campaign, and the Defendant did not talk about the cost related to the North Do Do Do Do Do Do Do Do and Do Do Do Do Do.” The above Nonindicted Party 1’s statement was added to Nonindicted Party 1’s statement to the effect that it was difficult for the North Do Do Do Do Do and Do Do Do Do.” The content of the online election campaign and it was consistent with objective evidence, such as the content of the message and financial transaction.”

② The election campaign period for the 20th National Assembly member was from March 31, 2016. The Defendant, on March 29, 2016, sent the account number of Nonindicted Party 1 to Nonindicted Party 1 on March 30, 2016. The Defendant sent KRW 2 million to the above account on March 30, 2016. In light of the fact that the time when the Defendant contacted Nonindicted Party 1 and transferred KRW 2 million to Nonindicted Party 1 was two months after the time when the contact was held, and that it was two months before the election campaign period for the 20th National Assembly member, it is natural to deem that the above KRW 2 million was paid in relation to the election campaign rather than the period for the 20th National Assembly member election.

③ 피고인은 2016. 3. 30. 공소외 1에게 200만 원을 송금하면서 ‘보냈습니다. 많은 활동 부탁합니다. 이제 2주...!!!, 공약 전파 중요합니다.’라는 메시지를 보냈다. 공소외 1은 2016. 3. 29. 공소외 6에게 피고인에 관한 자료를 요청하는 한편, 2016. 3 30. 피고인으로부터 200만 원을 송금 받은 이후 공소외 2에게 카카오톡으로 ‘피고인부터 하지, 쩐 받아옴’이라는 메시지를 보내기도 하였다. 위 각 메시지 내용에 비추어 보면, 피고인과 공소외 1은 위 200만 원이 선거운동의 대가로 교부되었다는 사실을 충분히 인식하였던 것으로 보인다.

④ On March 12, 2016, the Defendant: (a) transferred KRW 3 million to Nonindicted 10,000 to Nonindicted 10 in return for the Defendant’s fostering of the Defendant who urged Nonindicted 1 to participate in voting; and (b) transferred money to Nonindicted 10, such as entering the “udio public relations” in the remarks column, it appears that the money remitted in the remarks column was simply indicated as a title. However, the Defendant stated Nonindicted 1 as a “sns” in the remarks column while remitting KRW 2 million to Nonindicted 1; and (c) thus, the said KRW 2 million in relation to the SNS public relations should be deemed as the cost paid to Nonindicted

⑤ Nonindicted 11, who was present as a witness in the trial of the political party, stated that “The Defendant tried to case Nonindicted 1 in connection with the North exchange at the event, but Nonindicted 1 said that he was unable to participate in the event on a certain level.” However, Nonindicted 1 did not submit any objective data that corresponds to the fact that the Defendant was scheduled to pay Nonindicted 1 the price for the provision of the services related to the North exchange, and Nonindicted 11’s speech to the same purport from the Defendant was the commencement of the investigation of the instant case. Considering that Nonindicted 11 was inter-friendly with the Defendant, which was known for not less than 30 years, the said statement alone cannot be deemed to have planned to pay KRW 2 million in return for the provision of services related to the North exchange from the date of the Defendant to Nonindicted 1, despite of the circumstances described in (i) to (iv).

B. Determination on the grounds of unfair sentencing by both parties

In the money paid by the Defendant, there are circumstances to consider: (a) Nonindicted 1’s partial nature of the consideration for Nonindicted 1’s aiding and abetting the Defendant’s proceeding; and (b) the Defendant has no criminal record, other than the one sentenced to a fine once due to drunk driving.

However, the crime of this case is that the defendant provided money and valuables in relation to the election campaign of the 20th National Assembly member, and such act is contrary to the purpose of legislation of the Public Official Election Act to maintain the fairness of election from the election campaign of the 20th National Assembly member, and thus, the nature of the crime is not weak. The amount of money and valuables provided by the defendant in relation to the election campaign is not 2 million

In full view of such circumstances and other circumstances as the scope of sentencing guidelines for the enactment of the Supreme Court sentencing guidelines, Defendant’s age, character and conduct, environment, motive, means and consequence of the crime, etc., the sentence imposed by the court below is too heavy or unreasonable, and thus, the Defendant and the prosecutor’s allegation in this part are without merit.

3. Conclusion

Therefore, the appeal filed by the defendant and the prosecutor is dismissed.

Judges Kim Il-sung (Presiding Judge)