(영문) 울산지방법원 2021.2.9. 선고 2020고합363 판결

Defendant shall be punished by a fine of KRW 900,000. If the Defendant fails to pay the above fine, the Defendant shall be confined in a workhouse for a period of one hundred thousand won converted from one day.

shall order the provisional payment of the amount equivalent to the above fine.

Reasons

Criminal History Office

The defendant is a person who was elected as the head of Ulsan-si in the 7th local election held on June 13, 2018.

A public official shall not publicize the achievements of a specific political party or candidate (including a person who intends to be a candidate) to the personnel under his/her control or the electorate, regardless of the pretext of education or whatever. Nevertheless, the defendant held a "one-year commemorative event with the head of Ulsan-gu, who held office as the head of Ulsan-gu, and the defendant posted the major projects and achievements he/she held as the head of Ulsan-gu, and posted them together with photographs, etc., in order to publicize the defendant's achievements.

1. Holding records and photographs around July 1, 2019;

From July 1, 2019 to July 15, 2019 of the same year, the Defendant held a photo film with the first floor of Ulsan-gun Office of U.S., U.S., U.S., the first floor of U.S., U.S., U.S., the first floor of U.S., U.S., U.S., the first floor of U.S., U., U.S., 1, to “record the last one year of U.S., U., U.S., U.S.,” and began to be gird in the upper half of U.S., U.S., U., U.S., U., U.S., and 38 staff members including the U.S. head of U., U.S., etc., immediately and appropriately prepared on the spot and snow removal work.” The Defendant, along with the content that the Defendant directly inserted the pictures, could minimize the inconvenience of residents.

2. Distribution of promotional books around July 1, 2019;

On July 1, 2019, the Defendant distributed 2,00 copies of the promotional books printed in the same manner as the photographs shown in paragraph (1) to the 1st floor of the Ulsan-Gun Office, and to the 12 Eup/Myeon public service centers in the jurisdiction of the 12 Eup/Myeon public service center, thereby allowing its employees and the general public to bring about.

3. Mobile display of records, photographs and photographs on July 22, 2019.

From July 22, 2019 to August 2, 2019, the Defendant: (a) transferred and exhibited the printed matters displayed in the first floor of the Gyang-gu Seoul Special Metropolitan City administrative welfare center located in Seoyang-gu Seoul Special Metropolitan City, Seoyang-do from July 7, 2019 to the same year from May 7, 200; and (b) made it possible for its employees and Gun residents to view them. Accordingly, the Defendant promoted the Defendant’s achievements that the Defendant intended to become a candidate in the election of the head of Ulsan-gu Seoul Special Metropolitan City, to the employees and the electorate

Summary of Evidence

(Omission)

Application of Statutes

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

Articles 255(1)10 and 86(1)1 of the Public Official Election Act and each fine shall be selected. 1. Concurrent penalty

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (the maximum penalty for concurrent crimes prescribed in the Public Official Election Act of July 22, 2019)

1. Detention in a workhouse;

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

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judgment on the argument of the defendant and defense counsel

1. The summary of the argument 1) At the time of holding and distributing the records and photographs as indicated in the facts charged in the instant case, the Defendant did not correspond to “a person who wishes to be a candidate”, and even if the Defendant is a candidate, the holding and distributing the promotional books should be considered as part of the normal military activities as part of the promotional activities of the Ulsan Group. Moreover, the Defendant did not know the details of the persons holding and promoting the records and photographs, and the Defendant did not arbitrarily engage in it, and the public official in charge did not have a criminal intent in violation of the Public Official Election Act. Accordingly, the Defendant cannot be held liable for the charge of violating the Public Official Election Act.

2. Relevant principles;

A. The term "person who intends to become a candidate" under the Public Official Election Act includes not only the person who is scheduled to run in an election but also the person whose candidate is expressed externally by his/her intention to run in an election, such as an application for success in a political party or punishment for activities to obtain a candidate's recommendation from a general elector, but also the person who can objectively recognize that he/she has an intention to run in an election in light of his/her status and behavior subject to contact (see, e.g., Supreme Court Decisions 2004Do7360, Jan. 13, 2005; 2008Do10365, Jan. 15, 2009). In addition, even if he/she is a person with an intention to run in an election, he/she is sufficient, and his/her intention is not required to run in an election, and thus, he/she could not externally object him/herself as the candidate was not publicly expressed (see, e.g., Supreme Court Decisions 9Do657569, Jul. 26, 19797

B. Article 86 of the Public Official Election Act provides that "election campaign" is prohibited when an act that is likely to affect an election even if it does not reach an election campaign is prohibited for public officials or other persons who are in a public position, and the concept of "act that affects an election" rather than "election campaign". Thus, the term "commercial act" among "act that does not require the purpose of election campaign and where such act is committed by public officials or other persons, etc., and where such act is done by public officials or other persons, etc., which is one of the types of acts that influence an election," "act that promotes the achievements of candidates or those who wish to be candidates" under Article 86 (1) 1 of the Public Official Election Act, is reasonable to interpret that it is all social acts that can serve as positive evaluation materials in the election in light of the above legislative intent, etc. (see, e.g., Supreme Court Decisions 97Do320, Apr. 25, 199; 203Do2932, Mar. 25, 2004).

In addition, where the contents related to the local government head who intends to be a candidate or a candidate are mixed with the contents of the local government's project promotion performance, etc., if the posted contents are mixed with the contents of the posted contents, it shall be deemed that Article 86 (1) 1 of the Public Official Election Act is established if it is deemed that the posted contents constitute a crime of violation of Article 86 (1) 1 of the Public Official Election Act if it is deemed that the contents of the posted contents constitute a matter of interest of the residents, whether the contents of the posted contents constitute a matter of interest of the local government, whether or not the local government head has contributed to the activities of the local government, whether or not the name, photograph, statement, etc. of the local government head, the size and form of the local government head included in photographs, the size of the comments posted by the residents, and the possibility of accepting them as the achievements of the local

3. Determination

A. In light of the above legal principles, it is reasonable to view that the following circumstances acknowledged by the evidence duly adopted and investigated by the court as to whether the defendant constitutes a "person who intends to become a candidate" falls under the category of "a person who wishes to become a candidate" as a person who reaches the extent that the defendant could objectively recognize that the defendant had an intention to run for an election by the electors of Ulsan-gun.

1) From around 2010 to 2018, the Defendant was engaged in political activities for a period close to about 10 years up to 20 years, based on the Ulsan-gun, such as going to be a candidate for the head of Ulsan-gun or a candidate for the member of the National Assembly in the nationwide election or election of the National Assembly.

2) The Defendant stated at an investigative agency that “I would be able to leave again if you have the opportunity. I would like to do so again. I would like to think that I would be elected to the head of local government for the first time after halog halog (Evidence No. 6, 2034 pages)” (Evidence No. 6, 2034 pages), and then I would not externally express my intention that I would not go to the head of Ulsan-si candidate in the national provincial election.

3) The head of a local government is able to hold office in the three-year period (Article 95 of the Local Autonomy Act) and considering the circumstances seen earlier, most of the electors in the region where the Defendant would have expected to resume to the head of Ulsan Gun.

4) The 8th nationwide local election is scheduled to be held in 2022, and there is time interval between the time when and about 3 years have passed from the time when the recording photographic book was held and publicized books were distributed, but if the defendant does not fall under the candidate solely on the ground that there remains a considerable period from the election day, the head of local government can bring about a result that the head of local government can publicize him without any restriction in order to influence the election with the intention to leave the next election and to influence the election. Such circumstance alone does not include the defendant who wishes to become a candidate.

B. In light of the aforementioned legal principles, it is reasonable to view that the Defendant’s act of holding and distributing promotional books to the extent that the Defendant’s act constitutes the promotion of the Defendant’s achievements is an act of promoting the Defendant’s achievements, in light of the following circumstances acknowledged by the evidence duly adopted and examined by the court.

1) The records of this case, in itself, was held to commemorate the Defendant’s appointment of the head of the U.S. head of the U.S. head of the U.S., and the distribution of promotional books is to publicize the records of this case, and are identical to the contents of the records of this case.

2) The records of this case and the publicity books contain contents that correspond to the official review of the residents of Ulsan-gun, such as the jobs of Ulsan-gun and the safety of the residents of Ulsan-gun. The almost all photographs posted before the records of this case have emerged excessively, and each photograph is also positively assessed by the defendant as the head of Ulsan-gun for one year.

3) Of course, even if it is natural for the defendant to participate in various events of the Ulju-Gun Office as the head of Ulsan-Gun Office, the appearance of the defendant can be confirmed from almost all pictures of the Ulju-Gun Office as seen earlier, and in light of the fact that the defendant's activities are emphasized, and considerable part of the explanation of each photograph appears to be a coloring for the defendant's active military activities, it seems that from the perspective of Ulju-Gun residents, rather than simply recognizing the defendant as having participated in various events or as an opportunity to obtain information about the activities of the Ulju-Gun Office through the records of this case or as an opportunity to obtain information about the activities of the Ulju-Gun Office, it would be more likely to accept the above various events and military activities with the defendant's personal ability. In full view of all the following circumstances acknowledged by the evidence duly adopted and examined by the court as to whether the defendant had committed a violation of the Public Official Election Act, it is reasonable to deem that the defendant intended to have held the records of this case and distributed them to the electorate, etc.

1) The Defendant, as the head of Ulsan-gu, reported the specific contents to be posted before the recording photo of this case from Kim Jong-sung, Lee Jong-seok, etc., a staff member in charge of the instant archives, and finally approved the Defendant as the head of Ulsan-gu.

2) The Defendant asserted that only approved only at the request of the public official in charge, and that he did not specifically know what the content was entered in the archives, the Defendant alleged that he did not know. However, according to the 1st anniversary of the 7th anniversary of the Kim Jong-Un, a document prepared around June 13, 2019, the 1st anniversary of the 7th anniversary of the 26th day of the 201st day of the 2019, the 1st day of the 1st day of the 26th day of the 1st day of the 2019, the 1st day of the 1st day of the 1st day of the 201st day of the 2019, the 1st day of the 1st day of the 200th day of the 20th day of the 20th day of the 1st day of the 3rd day of the 3rd day

3) In addition, it is recognized that there is considerable budget for the holding of the archives and the publication and distribution of the public relations reporters, and even if based on the statement of Kim Jong-Un, the event such as the archives of this case was first set, and thus, the defendant, who is the final approving authority, could not be deemed to have arbitrarily decided the specific contents of the public official in charge. Thus, the defendant's assertion that he did not know the specific contents of the archives of this case and the public relations reporters is difficult to believe.

4) The Defendant stated at an investigative agency that he did not publicize himself, or that he instructed the public official in charge not to violate the Public Official Election Act (No. 5 of the evidence record No. 1566 of the record), with respect to the distribution of the recording pictures and promotional books of this case (No. 6 of the record No. 2049 of the record). Even if the Defendant’s statement is based on the Defendant’s statement, the Defendant merely received a brief report from the public official in charge, stating that the distribution of the recording pictures and promotional books of this case is likely to violate the Public Official Election Act, and that there is no problem" from the public official in charge. It appears that the Defendant did not directly confirm it or ask the public official in charge of the above report (No. 6 of the record No. 2049 of the record No. 2050 of the record No. 2049 of the record No. 2050 of the record). In light of

1. Reasons for sentencing: The scope of applicable sentences by law: Fines of 50,000 to 9 million won by each party;

2. Scope of recommended sentences according to the sentencing criteria;

(a) Crimes of subparagraphs 1 through 3 (Violation of the Public Official Election Act);

[Determination of Punishment] Election 04. Violation of the Act on Election Campaign in Violation of the Election Campaign Period

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, Fine of 700,000 to 2 million won

(b) Extent of recommendation according to the standards for handling multiple crimes: Fines of 700,000 to 3.66 million won (the upper limit of the first crime + the upper limit of the second crime + 1/2 + the upper limit of the third crime + 1/3);

3. Determination of sentence: Fines of KRW 900,000;

The crime of this case is a situation unfavorable to the defendant, where the defendant, who is the head of local government, holds a photographbook to publicize his achievements without complying with the Public Official Election Act, and distributes promotion books containing the same contents. The crime of this case is not less than less than less than less than less than less than less than less than less than less than less than less than less than less than less than less than less than less than less than less than less than less than less than less than less than less than more than less

However, the fact that the instant crime was not committed at the time close to the election, the fact that the content of the record company development and promotional book includes the matters concerning the military administration activities of the Ulsan-gun Office, and that the Defendant did not have any record beyond the fine and has no record of the same kind, etc., shall be considered as favorable to the Defendant. In addition, the Defendant’s age, character and behavior, environment, motive for committing the crime, circumstances after committing the crime, etc., and the various sentencing conditions as indicated in the instant records and arguments shall be

Judges

The presiding judge, judge, Dong-gu

Judges Nam-tae et al

Judges Han Young-young

Note tin

1) We examine the arguments additionally made by the defendant and his defense counsel after the closing of argument to the extent necessary.

Attached Form

A person shall be appointed.