2017No1433 Violation of the Public Official Election Act

A

Defendant

Oral cases (prosecutions, public trials)

Law Firm (LLC) E

Attorney BA, BB, BC, and BD

Law Firm BE

Attorney BF, BG, H, BI, BJ

Suwon District Court Decision 2016Gohap436 Decided April 26, 2017

August 23, 2017

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts, misunderstanding of legal principles

1) The assertion that there was no false fact or false perception

Under the K Headquarters, five subordinate headquarters was established, and the person responsible for the K Headquarters and the person responsible for each subordinate headquarters were the chief of the headquarters. Therefore, as long as the term "chief of the K headquarters" can be interpreted as "chief of the headquarters belonging to the K headquarters," it cannot be viewed as false facts on the ground that the defendant stated only as "chief of the K headquarters."

Even if it was false, the Defendant received a similar letter of appointment at the time of the instant case several times, and actually used the name of the head of the headquarters in K Headquarters, so there was no awareness that it was false, and there was no purpose of election. Nevertheless, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby recognizing the Defendant to have stated false facts.

2) As part of the activities of the mountain conference that the Defendant had regularly attended from 2008 to 2015, the mountain campaign in this case was planned by the general election and by-elections at the time, and the size of the candidates and City/Do council members and candidates have increased. The Defendant did not make any speech or behavior requesting support in connection with the election except for the speech that “the Defendant is very poor”, and such act does not constitute an election campaign.

Nevertheless, the court below erred by misunderstanding the facts or by misapprehending the legal principles by recognizing the Defendant’s prior election campaign based on the circumstances not stated in the facts charged in the instant case, such as reproduction of video images of the Defendant’s volunteer activities in a mountain bus or contingent speech and behavior in B unrelated to the Defendant.

C. Unreasonable sentencing

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

2. Determination

A. As to the Defendant’s assertion that there was no false fact or false perception, the lower court determined that the Defendant’s statement on the candidate’s promotional materials of the 18th presidential election constituted a false fact, and furthermore, it was aware that there was a false fact, by explaining detailed circumstances in the 6th 5th 5th 5th 8th 16th 16th 16th 16th 16th 200.

A thorough examination of various circumstances acknowledged by the lower court and considering the following circumstances recognized by the evidence duly adopted and investigated by the lower court, the lower court’s judgment is acceptable. Therefore, the lower court’s determination is not erroneous in misunderstanding of facts or misunderstanding of legal principles as alleged by the Defendant. As such, this part of the Defendant’s assertion is without merit. ① The K Headquarters under the Hparty Central Election Countermeasures Committee established K Integration Headquarters, L Public Relations Headquarters, AP Support Headquarters, AP Support Headquarters, Q, and AR as subordinate organizations. Therefore, the expression “K Headquarters” is distinguishable from the name of the K Headquarters L Promotion Headquarters, etc., and thus, it is recognized that the term “the K Headquarters Headquarters” is distinguishable from that of “the K Headquarters Headquarters.”

② From the perspective of general voters who contact with candidates’ promotional materials, the position of 'the head of 'the head of 'K Headquarters' rather than the position of 'the head of 'the head of 'the K Headquarters' is recognized as having a close relationship with the President. As the defendant has such promotional effect, there is sufficient motive to enter 'the head of 'the head of 'the head of 'the head of

③ Within the K Headquarters, it appears that the name “the head of the headquarters” was generally used in the case of the head of the headquarters other than the general head of the headquarters. However, apart from the use of the above name within the H political party, the name indicated in the promotional materials distributed to general electors should be used as accurate official name in the organization of the Central Election Countermeasure Committee of H political parties at the time so that no mistake is possible.

④ In light of the fact that the Defendant, at the time of the 18th presidential election campaign, was engaged in activities as 'K Headquarters L Publicity Headquarters' as well as that the Defendant was stated to be unable to open a long-term one because he received a number of appointments of similar chief executive officers, the Defendant seems to have sufficiently recognized the difference between 'K Headquarters L Publicity Headquarters' and 'the superior head of the K Headquarters' and 'the senior head of the K Headquarters', and had the purpose of being elected in elections.

B. Determination on the assertion that it does not constitute an advance election campaign

As to the defendant's assertion to the above purport at the court below, the court below acknowledged that the defendant was engaged in a prior election campaign with the intention to be elected in the election of the 20th National Assembly member in the 20th National Assembly member by explaining detailed circumstances in the 10th to 12th National Assembly member.

In light of the following circumstances acknowledged by the evidence duly adopted and examined by the court below and the court below, the court below's decision is just, although there are parts irrelevant to the facts charged, as alleged by the defendant's defense counsel, and the judgment of the court below is just. Therefore, it cannot be said that there was an error of misunderstanding of facts or misunderstanding of legal principles as alleged by the defendant. Thus, this part of the defendant's assertion

① Around 2008, the Defendant organized a 0 mountain conference to engage in political activities, and served as the president of the said mountain conference prior to the local election in 2010. V, who was in charge of the overall plan for the instant mountain activities and the progress thereof, worked as the president as the chief of the office of general affairs of the Hparty G Party Commission, the Defendant, who was working as the president, carried out an election campaign by aiding and abetting the Defendant in the election of the National Assembly members of the 20th National Assembly that was in force on April 13, 2016. The number of persons who participated in the mountain activities at the end of the 20th mountain conference in 2014 was only 40-50, and the number of persons who participated in the ordinary mountain activities is more than 50, while the number of persons who participated at the end of the instant election was more than 500.

② Of the number of the persons attending the instant mountain activities, a considerable number of the persons who were not H party members or 0 mountain conference members, and were aware of the instant mountain activities in general mountain activities. Of these, Z, AA, AB, and AF made a statement that the instant mountain activities were considered as a rally or election campaign in front of the election of the National Assembly members, not a simple mountain conference group. In particular, Z made a statement that “the Defendant is a member of the National Assembly, and it was well known that it would be a member of the National Assembly.” On April 13, 2006, Z, AA, AB, and AF made a statement that “The Defendant was well asked for the election of the National Assembly members.”

③ From the time when G and P were the same constituency, B took a lot of election campaign with the Defendant from the time when G and P took place. However, even after the completion of the instant mountain activities, B merely introduced the Defendant as “I introduce the Defendant as “I introduce the Chairperson A of the HP-P-affiliated Party Council Chairperson A, which is a small amount of HP-based HP cooperative,” and led the participants to protect the name of the Defendant.

④ The Defendant, upon introduction as above, made a speech to the effect that he will easily request the election of a member of the National Assembly, and returned to the restaurant, and asked the participants to see the restaurant. It was particularly called that the participants actively responded to the Defendant by entering two arms in order to make the name of the Defendant, or by making two arms in order to put them up, or by bringing them up. (6) Even if the Defendant did not directly talk with the fact that he would be able to support the election of a member of the National Assembly, the election of a member of the National Assembly at the time of the instant mountain, and that the number of electors residing in G and P was not just a simple mountain member, but also a large number of members residing in G and P, it is objectively different from the Defendant’s attempt to participate in an election campaign to participate in the election of a member of the National Assembly.

C. Determination on the assertion of unfair sentencing

Defendant’s failure in the 20th election for National Assembly members, resulting in the crime of this case, seems to have a significant impact on the election result, is the circumstances favorable to the Defendant.

However, the instant crime was committed by the Defendant with false career in the campaign material and distributed it to voters, and it was carried out in a way that is not permitted under the Public Official Election Act. The act of publishing false information was carried out through the campaign material with strong radio wave at the time of ten days prior to the election of the 20th National Assembly members, and the amount of the distributed promotional material is not substantial. The Defendant had already been punished for the same kind of crime, even if he had already been punished for the same crime, has committed the instant crime. This is disadvantageous to

In full view of such circumstances and all other circumstances as the Defendant’s age, character and conduct, environment, motive, means and consequence of the commission of the crime, the lower court cannot be deemed unfair because it is too unreasonable for the lower court to have sentenced a sentence that is lower than the lower limit of the recommended sentence according to the sentencing guidelines set by the Sentencing Committee. Therefore, the Defendant’s above assertion is groundless.

3. Conclusion

Therefore, the defendant's appeal is dismissed as there is no reason.

The presiding judge, Kim Gung-gi

Judges Lee Jin-hee

Judges Choi Ki-won