2017Gohap724 Violation of the Public Official Election Act

A

Kim Jong-ok (prosecutions) and public trial

Attorney B (Korean National Assembly)

September 29, 2017

Defendant shall be punished by a fine of KRW 700,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

Criminal facts

1. Violation of the prohibition of photographing ballot papers;

No one shall photograph ballot papers in the polling stations.

At around 11:00 on May 9, 2017, the Defendant taken the 19th presidential election campaign in the D community service center located in Jongno-gu Seoul Metropolitan Government, and the ballot papers recorded in the EE Party F using the Kameral function of the cell phone machine in his possession.

2. No elector who infringes on the secrecy of voting shall disclose the ballot papers on which he/she marks;

At around 13:00 on May 9, 2017, the Defendant infringed on the confidentiality of voting by disclosing the ballot papers on which he/she puts his/her voting in the manner of posting the ballot papers taken, such as paragraph (1), in the vicinity of the Jongno-gu Seoul Metropolitan Government G Building and by posting them in the seal program (ID:H).

Summary of Evidence

1. Defendant's legal statement;

1. One copy of a photograph of voting paper and Internet Nene map;

1. Each investigation report (report on confirmation of a suspect's voting fact, hearing of suspect's telephone statement, reporting accompanied by Niber guidance);

Application of Statutes

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

Articles 256(3)2(g) and 166-2(1) of the Public Official Election Act (the taking of ballot papers), Articles 241(1) and 167(3) of the Public Official Election Act (the disclosing of ballot papers) and the selection of fines for negligence.

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (the aggravation of concurrent crimes with punishment prescribed in a crime of violating the Public Official Election Act due to the disclosure of heavy voting papers)

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 Defense Counsel's argument

1. Summary of the assertion

Articles 241(1) (limited to Article 167(3)) and 256(3)2(g) (hereinafter “each of the instant penal provisions”) of the Public Official Election Act, which are penal provisions for each of the crimes in the judgment, are penal provisions that punish the disclosure of ballot papers on which the elector himself/herself puts, and the act of taking ballot papers in the balloting booth is punished by prohibiting each of the above acts even though it is likely that such act would disrupt the order of election or interfere with the election. This is against Articles 10, 21, and 37(2) of the Constitution by essentially infringing upon the freedom of general behavior and the freedom of political expression of electors.

2. Determination

Each of the penal provisions of this case is justifiable as a provision to maintain the secrecy of voting and the order in the voting process to ensure free and fair election. If an elector easily photographs ballot papers in the polling booth using mobile phone functions and allows them to be disclosed to the Internet, SNS, etc., the propriety of the means is also recognized as it prevents the disclosure of ballot papers taken or recorded in the polling booth because it is likely to lead to an act of ticketing or an illegal election campaign on the election day. In addition, the elector is prohibited from disclosing the ballot papers taken or recorded in the polling booth in accordance with each of the penal provisions of this case, and it is impossible for the elector to take or disclose the ballot papers in a way other than taking or recording his voting papers in a way other than taking the vote papers, and even though the restriction of behavior that makes it impossible to take or disclose to the elector's ballot papers due to the above provision, it is achieved public interest guaranteed by the democratic legitimacy of the organization of the constitutional institution by fair and free election.

Therefore, each of the penal provisions of this case cannot be deemed as essentially infringing on the freedom of general behavior or political expression of the elector.

Sentencing 1)

1. The scope of punishment by law: A fine not exceeding nine million won;

2. Determination of sentence;

The instant crime is committed in the balloting booth by photographing the ballot papers on which the Defendant’s vote was put in the cell phone camera in the balloting booth, and posting the photograph thereof in the Sone Star Program when the voting is in progress. This is an act that damages the purpose of the Public Official Election Act to maintain the secrecy of voting and to ensure fair and peaceful voting procedures, and should be strictly regulated in that the voting papers indicated are likely to spread widely through SNS.

However, in order to clearly record the fact that the defendant exercised his voting right in the presidential election, the defendant has posted a photograph of the ballot papers on which he puts his vote in order to ask questions about which candidate cast his vote, and it seems that the defendant has no intention to have a conclusive perception of illegality or an intention to influence the election, and there is no criminal record.

In addition to these circumstances, the punishment as ordered shall be determined in consideration of the various circumstances shown in the records and pleadings, such as the age, character, conduct and environment of the defendant, motive and consequence of the crime, and the circumstances before and after the crime.

The presiding judge and judges;

Judges Sung Jae-in

Judges' Index

1) The sentencing criteria are not set.