Defendant 1 and one other

Prosecutor

Class ¥§§§ 6

Attorney Shin Sung-ho

Daejeon District Court Decision 2008Gohap164 Decided November 12, 2008

The judgment of the first instance shall be reversed.

Defendants are innocent.

1. Summary of grounds for appeal;

misunderstanding of facts and misapprehension of legal principles

2. Determination

A. Ex officio determination

With respect to the facts charged in violation of Article 93(1) of the Public Official Election Act, the prosecutor added "Article 254(3) and Article 40 of the Criminal Act" to the applicable provisions of the same Act, and applied for amendments to the indictment for the addition of facts charged in violation of the Public Official Election Act in advance of election campaign as shown below, and the court permitted this, so the judgment of the first instance court is no longer maintained.

However, despite amendments to indictment, the prosecutor's assertion of misunderstanding of facts and misapprehension of legal principles on the facts charged in violation of Article 93 (1) of the Public Official Election Act are still subject to the judgment of this court, and the following judgment shall be made, and the violation of the Public Official Election Act in advance election added in the trial for the convenience of judgment shall also be judged.

B. Summary of the facts charged

No one may support or recommend candidates or distribute documents indicating a candidate’s name without resorting to the provisions of the Public Official Election Act for the purpose of influencing the election from 180 days before the election day to the election day, and even if the Defendants are not allowed to carry out an election campaign prior to the election campaign period, the Defendants conspired on April 9, 2008, which was prior to the election period for the 18th National Assembly members scheduled to take effect on April 9, 2008, and on March 26, 2008, the 17:30 days before the election period for the 18th National Assembly members of the 18th National Assembly, which was reported as electors in the 19th National Assembly, with Nonindicted Party 1 as the addressee, the contents of support for Nonindicted Party 2 as the candidate for the 18th National Assembly member of the 18th National Assembly in the 19th National Assembly. At the same time, the Defendants sent the documents stating that “Any person who was recorded in the 204th election campaign period prior to the election campaign period for young,” including Nonindicted Party 2.

C. Determination

(1) Determination as to the grounds for appeal by the prosecutor on facts charged in violation of Article 93(1) of the Public Official Election Act

(A) According to the records, on March 25, 2008, Defendant 1 prepared a letter containing the contents of supporting Nonindicted 2 candidates, such as introduction of the pledge to Nonindicted 2 candidates, in order to support Nonindicted 2 candidates in the election of the National Assembly members of the 18th National Assembly on March 25, 2008, according to Defendant 2’s proposal. Defendant 1 sent the above letter to Defendant 2 on March 26, 2008, and Defendant 2 received KRW 1.50,00 from Defendant 2 as a mail delivery fee, and requested the non-indicted 1 and the non-indicted 492 voters who reported to be electors in the ASEAN City/Do election district to send the instant document to the non-indicted 2 as a postal item. However, on March 26, 2008, the ASEAN Election Commission requested the non-indicted 1 to suspend the mailing of the instant document, and upon the suspension of delivery of the document, it cannot be deemed that the document was not delivered to the Defendant 1’s election commission.

(B) Article 93(1) of the Public Official Election Act prohibits an act of distributing, posting, etc. documents, drawings, etc. by unlawful means that influence an election for a certain period prior to the election day. The purport of this provision is to prevent an act of undermining the fairness of election by distributing, in an election campaign, documents, printed materials, etc., such as documents having the nature of an election campaign, in fact, for the purpose of ensuring the fairness and equality of the conditions of a candidate.

Article 93 (1) of the Public Official Election Act refers to the act of delivering the documents, drawings, etc. prescribed in the same Article to many and unspecified persons (see Supreme Court Decisions 2005Do2025, Sept. 29, 2005; 2000Do1696, Jan. 25, 2002). In light of the legislative intent and the meaning of the text and text of the above provision, insofar as documents, drawings, etc. are not delivered to the other party to the act of direct distribution, it cannot be said that the act of distribution was completed merely by delivering documents, drawings, etc. to the party to the act of direct distribution.

Therefore, in the instant case, insofar as the mailing of the instant documents requested by the Defendants was suspended and seized by the post office prior to arrival of the delivery counterpart upon the request of the election commission for the suspension of mailing, the Defendants’ act does not constitute “distribution” prohibited under Article 93(1) of the Public Official Election Act (the Public Official Election Act does not have a separate provision regarding punishment for preparation, conspiracy, and attempted crime against a violation of Article 93(1)), and the judgment of the first instance court which acquitted the Defendants of the instant facts charged is just.

(2) Determination on the facts charged of a prior election campaign added at the trial

Article 254(2) of the Public Official Election Act provides that "Except as otherwise provided for in this Act, a person who commits an act falling under any of the following subparagraphs before the election campaign period shall be punished by imprisonment for not more than two years or by a fine not exceeding 4 million won." The following subparagraphs list methods of election campaigns, and subparagraph 1 provides that "a person who conducts or causes another person to conduct an election campaign using a propaganda facility or instrument or various printed materials, regardless of the name, such as a propaganda tower, a signboard dealing with a poster, a propaganda tower, an advertising board, or any other name," and Article 254(3) of the Public Official Election Act provides that "a person who conducts or causes another person to conduct an election campaign prior to the election campaign period by any means other than those provided for in paragraph (2) shall be punished by imprisonment for not more than one year or by a fine not exceeding two million won." In addition, "other provisions of this Act" provided for in Article 254(2) of the Public Official Election Act refer to cases where separate provisions exist in the Act, and therefore, a separate provision in the Act shall not be punished for violation of Article 2598(6.

Therefore, in the case of this case, the Defendants intended to distribute the pertinent document, which is printed matters, to the electors without following the provisions of the Public Official Election Act, from 180 days before the election day to the election day. As such, Article 254(2)1 of the Public Official Election Act applies to the method of election campaign, which is punished under Article 255(2)5 and Article 93(1)5 of the Public Official Election Act (the prohibition of distributing or posting documents, drawings, etc. by unlawful means), and thus, Article 255(2)5 of the Public Official Election Act can only be applied, and there is no room to apply Article 254(2)1 or 254(3) of the Public Official Election Act. In addition, insofar as the penal provisions under Article 255(2)5 of the Public Official Election Act concerning the method of the initial intended election campaign by the Defendants, the Defendants cannot be punished under Article 255(2)4(2)5 of the Public Official Election Act or Article 254(3) of the Public Official Election Act.

3. Conclusion

Therefore, according to Article 364(6) of the Criminal Procedure Act, the judgment of the first instance is reversed, and it is again decided as follows after pleading.

The facts charged of this case are as stated in Paragraph (b) of Article 2. As such, in determining the grounds for appeal, it constitutes a case where there is no proof of crime as seen in the judgment of the grounds for appeal, and thus, it is pronounced not guilty against the

[Attachment Offense List omitted]

Judges Kim Sang-ok (Presiding Judge)