Defendant

An authorized state (prosecution) and Kim Gi-ri (Trial)

Attorney Kim Tae-tae

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 a workhouse for the period converted into one day.

On June 4, 2014, the defendant registered as a candidate for the ○○○○ Military Election in the 6th nationwide local election that was implemented on June 4, 2014 and won the election.

No person shall publish false facts concerning the place of birth, status, occupation, career, property, personality, act, conduct, affiliated organization, etc. of a candidate in favor of the candidate by means of a speech, broadcast, newspaper, communication, magazine, poster, propaganda document, etc. for the purpose of being elected or having another person elected.

In fact, the defendant did not pay 4,520,000 won in 2010, and 3,928,000 won in income tax in 2013, and 4,520,000 won in total. The defendant's lineal ascendant Lee ○ was in arrears in income tax 285,00 won in 2013.

Nevertheless, around May 19, 2014, the Defendant prepared the Defendant’s election campaign bulletin to be distributed to the electorate in relation to the above Gun in the Defendant’s election campaign office of ○○○○-gun (location omitted) and the △△△△△△△△△△△△△△△△△△△△△△△, stating that the Defendant’s election campaign bulletin to be distributed to the electorate in relation to the above Gun was “data on Information Disclosure of Candidates” in Section 3. of the “data on Information Disclosure of Candidates” in Section 2 of the election campaign bulletin, “no matter pertinent” in the column of column of column of column of column of column of column of column of column of column of section 2 of the election campaign bulletin, and submitted the election campaign bulletin to the △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, on May 24,

As a result, the Defendant published false facts about the candidate’s career in favor of the candidate for the purpose of winning the ○○○ head of the 6th nationwide local election.

1. Defendant's legal statement;

1. The prosecutor’s statement concerning Nonindicted 1

1. Each police protocol on Nonindicted 3, Nonindicted 4, and Nonindicted 2

1. Investigation reports (Attachment of book-type election campaign bulletins, Internet printed materials, etc., and the original of book-type election campaign bulletins);

1. A written accusation;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 250(1) of the Public Official Election Act (Selection of Fines)

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Summary of the assertion

Article 250(1) of the Public Official Election Act refers to the career, academic background, degree, reward and punishment of a candidate, and the “career” refers to the performance and ability of a candidate. Article 65(8) of the Public Official Election Act also stipulates that “performance in arrears” means the performance and ability of a candidate. Article 65(8) of the Public Official Election Act also stipulates “performance in arrears” as subparagraph 3, and “career, etc.” as separate items by item

Therefore, since the “performance in arrears, etc.” is not included in “career, etc.”, punishing a person who enters false statements into “performance in arrears, etc.” shall be construed as excessively expanding and interpreting penal provisions, and shall not be permitted in violation of the principle of no punishment without law.

2. Determination

Article 250(1) of the Public Official Election Act provides that "A person who has published or had another person publish or have another person publish false facts (including cases where a candidate's spouse, lineal ascendant or descendant, career, property, personal activity, act, activity, organization to which he/she belongs, etc. are not published in the manner provided for in Article 64(1) in cases where he/she publishes academic background) in favor of a candidate by means of a speech, broadcast, newspaper, communication, magazine, poster, propaganda document, or other means for the purpose of being elected or having another person be elected, and a person who holds a propaganda document containing false facts for the purpose of distributing a propaganda document shall be punished by imprisonment for not more than five years or by a fine not exceeding 30 million won." In this context, "career, etc." refers to "career, academic background, degree, award, or punishment" of a candidate (Article 64(5) of the Public Official Election Act), and Article 250(1) of the Public Official Election Act refers to matters that affect the fair performance of a candidate or private ability, etc.

However, it is reasonable to view that the “performance in arrears” of a lineal ascendant, which is likely to achieve a candidate himself/herself and a candidate’s living community or share his/her living sphere, is included in the “social behavior” or “performance” of a candidate. Therefore, such inclusion in “career, etc.” cannot be deemed as an unduly analogical and expanded interpretation of penal provisions contrary to the principle of no punishment without the law. Therefore, the defense counsel’

1. The scope of punishment by law: Fines not exceeding 30 million won;

2. Scope of recommendations according to the sentencing criteria;

[Type] Election crime group, publication of false facts, and publication of false facts for the purpose of election (Type 2)

【Special Convicted Person】

[Recommendation Form] Basic Area: Fine of 2 million won - 8 million won

[General Mitigation] Voluntary Maternity

[General Persons] Crimes of Candidates

3. Determination

[Opinion of the Prosecutor] A fine of one million won

[Judgment] Fines 2 million won

The purpose of the Public Official Election Act is to contribute to the maintenance and development of democratic politics by ensuring that public elections, which are the basis of democratic politics, are held fairly in accordance with the free will of the people and democratic procedures and by preventing any malpractice related to the election. Therefore, strict punishment is required for election campaigns in violation thereof.

The crime of this case is to be published by means of sending 26,084 copies of the election campaign bulletin containing false facts as to the fact of delinquency by mail to unspecified persons. The election campaign bulletin is not only the content of the candidate’s pledge but also the data that contain essential information related to the election, such as the property status, military service status, and tax payment details, and is delivered to all electors. It is a material that significantly affects the candidate’s choice, and the details of tax delinquency among the contents of the election campaign bulletin are sensitive information that can evaluate the candidate’s quality. In light of the fact that the defendant can be deemed to have significantly impeded the judgment of the electorate, and that the defendant has a history of being punished by a fine for violation of the Election of Public Officials and the Prevention of Unlawful Election Act around 202, the defendant needs to be punished corresponding to the liability for such crime.

However, after the election campaign bulletin was sent, the case of publishing false facts was reported through the press due to the press’s opinions on the party candidates, and the publication of false facts was published in each voting district and each polling station, etc. shall be considered as favorable circumstances for the defendant. In addition, the punishment shall be determined within the scope of recommended punishment according to the sentencing guidelines, comprehensively taking into account the defendant’s age, family relation, character and conduct, environment, the background and result of the instant crime, circumstances after the crime, etc.

Judges Cho Young-chul et al. (Presiding Judge)