209No110 A. Violation of the Public Official Election Act

(b) A criminal escape;

(c)a person who has received extradition;

Defendant Kim-○ (Law Firm 1971 Life)

Defendant and Prosecutor who have filed a lawsuit against this State

Prosecutor

변- 호 인 법무법인 ◇◇ 담당변호사 ◆◆◆

Seoul District Court Decision 2008Gohap71 Decided April 1, 2008

Busan High Court Decision 2008Do223 decided May 28, 2008

Supreme Court Decision 2008Do4986 Decided January 30, 2009

April 28, 2009

The part of the judgment of the court below regarding each crime under paragraphs 1 and 2 of the judgment against the defendant shall be reversed.

A defendant shall be punished by imprisonment for not more than four months and by a fine not exceeding 1,500,000 won.

When the defendant fails to pay the above fine, the defendant shall be confined in the old house for the period converted by 50,000 won into one day.

The forty-two days of detention prior to the rendering of this judgment shall be included in the above imprisonment.

However, the execution of the above imprisonment shall be suspended for two years from the date this judgment became final and conclusive.

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

1. Scope of adjudication;

The lower court convicted the Defendant of all the charges of this case. The Defendant appealed against such judgment of the lower court on erroneous facts, misapprehension of legal doctrine, and unfair sentencing, and the prosecutor appealed from each of the charges of this case on the grounds of violation of law and unfair sentencing. The first instance court prior to remand dismissed both appeals, and only the prosecutor appealed against the judgment of the lower court prior to remand. Of the judgment prior to remand, the judgment of the lower court was reversed on the grounds that the lower court erred by misapprehending the legal principles on the punishment of concurrent crimes as provided in Article 38 of the Criminal Act, as to the violation of the Public Official Election Act due to false statement of name, communication and distribution of documents by unlawful means as provided in paragraph (1) of the judgment prior to remand, and the violation of the Public Official Election Act due to the provision of money and valuables related to

Therefore, since the fact that a criminal escape and an aiding and abetting a criminal escape under paragraph (3) of the judgment of the court below was already established, the scope of the trial of the party which was remanded shall be limited to the criminal facts of paragraphs 1 and 2 of the judgment of the court

2. Summary of grounds for appeal;

A. Defendant (1) misunderstanding of facts or misunderstanding of legal principles (as to the crime under paragraph (2) of the judgment of the court below)

In order to send text messages using a web site, the Defendant purchased the right to dispatch and purchase the text messages from the web service provider on credit, and paid the credit amount through Kim △△△△△. Since it is inevitable to purchase the right to dispatch and purchase the text messages from the web service provider to send the text messages using the web site, it cannot be deemed as an act of offering money and goods prohibited under the Public Official Election Act, and even if it constitutes an act of offering money and goods prohibited under the Public Official Election Act, the Defendant did not have any awareness of illegality.

Nevertheless, the court below found the defendant guilty, and there is an error of law by misunderstanding the facts or by misunderstanding the legal principles, which affected the conclusion of the judgment. (2) The sentence imposed by the court below (as to the crime of paragraph (1) above, 4 months of imprisonment, 2 years of suspended execution, and 1.5 million won of fine as to the crime of paragraph (2) above) is too unreasonable.

B. Prosecutor (1) Violation of Acts and subordinate statutes: In a case where a person holding a special status under Article 265 of the Public Official Election Act (election campaign manager, spouse, lineal ascendant or descendant, etc.) is sentenced to a certain punishment or more because he/she committed a crime under Articles 230 through 234, etc., there is a problem that it is necessary to determine whether the election of a candidate is invalidated or not, but Article 18 (3) of the Public Official Election Act provides that a separate examination shall be made and a separate sentence shall be made, notwithstanding the provisions of Article 18 (1) 3 of the Public Official Election Act and other crimes that are different from those of the above special status (defendants, spouse, lineal ascendant or descendant, etc.). This is an interpretation of the law, which affects the conclusion of the judgment, and thus, the court below's decision is unfair.

3. Determination

A. As to the defendant's assertion of mistake of facts or misapprehension of legal principles

살피건대, 공직선거법 제135조 제3항의 ' 선거운동과 관련하여 ' 는, ' 선거운동에 즈음하여, 선거운동에 관한 사항을 동기로 하여 ' 라는 의미로서, ' 선거운동을 위하여 ' 보다 광범위하며, 선거운동의 목적 또는 선거에 영향을 미치게 할 목적이 없었다 하더라도 그 행위 자체가 선거의 자유 · 공정을 침해할 우려가 높은 행위를 규제할 필요성에서 설정된 것이므로, 반드시 금품제공이 선거운동의 대가일 필요는 없고, 선거운동 관련 정보 제공의 대가, 선거사무관계자 스카우트 비용 등과 같이 선거운동과 관련된 것이면 무엇이든 이에 포함된다 ( 대법원 2005. 2. 18. 선고 2004도6795 판결 참조 ) . 피고인이 자신의 아버지 ( 김□□ ) 가 후보자로 출마한 2007. 12. 19. ■■광역시 교육감 재선거와 관련하여 김△△에게 " 김□□ 동문이 ■■교육감에 출마하였으니 많은 지지를 바란다. " 는 취지의 문자메시지를 학교 동문들에게 발송하게 한 행위는 선거운동의 목적 또는 선거에 영향을 미치게 할 목적이 없었다 하더라도 그 행위 자체가 선거의 자유 · 공정을 침해할 우려가 높은 행위에 해당한다고 할 것이고, 따라서 김△△에게 위 문자메시지 발송 비용 보전 명목으로 15만 원을 제공한 행위는 선거운동과 관련한 금품제공행위라고 봄이 상당하다 .

In addition, in full view of the evidence duly examined and adopted by the court below, it is reasonable to deem that the defendant was aware that the above provision of money and valuables was not allowed under the Public Official Election Act. Therefore, this part of the prior defendant's assertion is without merit.

B. When a judgment is rendered at the same time with respect to the prosecutor’s assertion of violation of laws and regulations, a punishment shall be imposed in accordance with the case of punishment under Article 38 of the Criminal Act. Thus, in order to exclude the application of Article 38 of the Criminal Act to several concurrent crimes indicted as concurrent crimes, and to sentence a sentence different from the above punishment, there must be express provisions recognizing an exception (see Supreme Court Decision 2004Do606, Apr. 9, 2004).

Meanwhile, Article 265 of the Public Official Election Act provides that where an election campaign manager, accountant in charge of an election campaign office, or lineal ascendant or descendant or spouse of a candidate is sentenced to imprisonment or a fine exceeding three million won on account of committing a crime of contribution under Articles 230 through 234, and 257 (1) of the same Act in the relevant election, the election of the candidate shall become invalidated. In order to clarify whether the election of the candidate becomes invalidated if the election campaign manager is indicted as well as the election crime as provided in the above Article 265 of the same Act, it is necessary to separate from the sentence of other election crimes unrelated to the invalidation of the election. However, according to the above legal principles, the exception of Article 38 of the Criminal Act is not prescribed separately from the sentence of the election crime under Article 38 of the same Act, and the sentence of the election crime under Article 18 of the Public Official Election Act is not applicable separately from the sentence of the election crime under Article 38 of the same Act.

On the other hand, the court below sentenced a separate punishment for each crime after separately examining the facts of violation of the Public Official Election Act and the pleading pursuant to Article 300 of the Criminal Procedure Act on the grounds that the violation of the Public Official Election Act due to the provision of money and valuables related to the election campaign against the defendant who is a lineal descendant of the elected person constitutes grounds for invalidation of election as provided in Article 265 of the Public Official Election Act. Such judgment of the court below is erroneous in the misunderstanding of legal principles as to the punishment cases of concurrent crimes as provided in Article 38 of the Criminal Act, which affected the conclusion

4. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act without examining the defendant and the prosecutor's allegation of unfair sentencing, and the following is again decided after oral argument, on the grounds for reversal of the crimes in Articles 1 and 2 of the judgment of the court below.

Criminal facts and summary of evidence

The summary of the facts of the crime and the evidence of the defendant under paragraphs (1) and (2) of the judgment of the court below against the defendant recognized by this court is the same as the corresponding section of each corresponding column of the judgment of the court below.

Application of Statutes

1. Article applicable to criminal facts;

Article 253 of the Public Official Election Act and Article 30 of the Criminal Act comprehensively include communication with false names under paragraph (1) of the judgment of the court below.

- Distribution of documents, etc. by unlawful means under paragraph (1) of the judgment below: Article 255(2)5 and Article 93(1) of the Public Official Election Act, Article 30 of the Criminal Act, comprehensively

- The provision of money and valuables related to election campaign under paragraph (2) of the decision of the court below: Articles 230(1)4 and 135(3) of the Public Official Election Act

1. Commercial competition;

Articles 40 and 50 (No. 1 of the judgment of the court below) of the Criminal Act (No. 1 of the Public Official Election Act due to the "communication with false names" as stated in paragraph (1) of the judgment of the court below and the violation of the Public Official Election Act due to the "distribution of documents, etc. by unlawful means": Punishment on the violation of the Public Official Election Act due to the "the more severe

1. Selection of punishment;

A violation of the Public Official Election Act under paragraph (1) of the judgment below: Imprisonment;

1. A violation of the Public Official Election Act under paragraph (2) of the judgment below: Fines;

1. Aggravation of concurrent crimes;

The former part of Article 37 and Article 38 (1) 3 of the Criminal Act (the first and second violations of the Public Official Election Act as indicated in the judgment of the court below)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (General Considerations favorable to the entries in the Grounds for Sentencing of Decision of the court below)

1. Order of provisional payment;

It is so decided as per Disposition for the reasons under Article 334(1) of the Criminal Procedure Act.

Judge Yoon-man of the presiding judge

Judges Kim Jae-hee

Judges Chocheon-ho