Defendant 1 and one other

Defendants

Seoul Kim Jae-in

Law Firm Davia, Attorneys Kim Jong-soo et al.

Chuncheon District Court Decision 2008Gohap12 Decided May 23, 2008

The judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment for eight months.

The ninety-three days of detention before the pronouncement of the judgment below shall be included in the above sentence against Defendant 1.

However, the execution of the above punishment shall be suspended for one year from the date this judgment becomes final and conclusive.

In order to make a speech or interview at an open place to Defendant 1, the violation of the Public Official Election Act due to the use of one motor vehicle and a loudspeaker system attached thereto in excess of one Article, and Defendant 2 shall be acquitted, respectively.

1. Summary of grounds for appeal;

A. Defendant 1

(1) One motor vehicle for a speech or interview and one more loudspeaker systems attached thereto

(A) The Defendant used only a sealed motor vehicle (vehicle number 1 omitted) and a loudspeaker attached to the motor vehicle at the time of the above campaign speech meeting, and the (vehicle number 2 omitted) motor vehicle parked ahead of the above motor vehicle at the time of the campaign speech meeting was not used for the campaign speech or interview, since it was not used for the campaign speech or interview beyond one loudspeaker attached thereto for the campaign speech or interview, it cannot be deemed that the Defendant’s act violated the restriction provisions under Article 79(3)1 of the Public Official Election Act.

(B) In addition, even if the defendant's act violates the above restriction provisions, the defendant used each of the motor vehicles of this case after inquiring the election commission that the use of the motor vehicles would not be problematic. Thus, this constitutes a mistake of law under Article 16 of the Criminal Act.

(2) Violation of the Public Official Election Act and violation of the Act due to assault by an employee of the Election Commission

Although the defendant did not assault or injure the non-indicted 1, the court below found him guilty of this part is erroneous in the misapprehension of legal principles or misconception of facts.

B. Defendant 2

Defendant 1 did not use one motor vehicle for a speech or interview and one loudspeaker system attached thereto. In addition, Defendant 1 did not have conspired with Defendant 1, and Defendant 1 did not recognize the fact that Defendant 1 was to make an election campaign speech by using each motor vehicle of this case at the time of the crime of this case, and Defendant 1 did not have awareness of illegality because he did not know that it was illegal, the court below found Defendant guilty of the error of mistake or misapprehension of legal principles.

2. Determination on the grounds for appeal

(a) Determination as to the violation of the Public Official Election Act due to the use of one motor vehicle for a speech or interview and the loudspeaker system attached thereto in excess of one Article (Defendants);

(1) Summary of this part of the facts charged

The summary of this part of the facts charged is as follows: Defendant 1, in relation to the 17th presidential election conducted on December 19, 2007, is a campaign speechmaker of the Dong/Si/Gun election campaign liaison office for the formation of a candidate's door to the creative Korea; Defendant 2, a campaign speechmaker of the Dong/Si/Gu election campaign liaison office and the Dong/Si/Gun election campaign speechmaker for the realization of the above door-site; Defendant 2, a candidate or campaign speechmaker may use only one motor vehicle for the campaign speech and interview at an open place and one loudspeaker attached thereto for each City/Do/Gu/Si/Gun liaison office; on December 15:20, 207, the Defendants conspired to use only one motor vehicle for each Si/Do/Gu/Si/Gun liaison office; Defendant 1’s campaign speech and interview at the front parking lot of the Dong-gu Seoul Special Metropolitan City, which is located adjacent to the 2nd presidential election; Defendant 1’s campaign speech and interview with an unspecified seal attached to the election commission; and Defendant 1’s front and rear 1’s loudspeaker.

(2) Determination

(A) The judgment of the court below

According to the evidence adopted by the court below, Defendant 2 applied for the issuance of a sign to the said automobile (vehicle number 2 omitted) at an open place on December 2, 2007, and applied for replacement of the said automobile (vehicle number 1 omitted) at around 19:29 on December 8, 2007. Defendant 1 did not have an interview or interview at an open place; Defendant 1 did not have an interview or interview (vehicle number 1 omitted); Defendant 1 did not have an interview or interview on December 15:20, 207; Defendant 1 did not have an interview or interview (vehicle number 1 omitted); Defendant 1 did not have an interview or interview on the front of the Dong-dong Residents' Self-Governing Center (vehicle number 1 omitted); Defendant 2 did not have an interview or interview on the front page of the said candidate’s door-to-door without an interview or interview on the front page number 1 omitted; and Defendant 1 did not have an interview or interview number 1).

(B) Judgment of the court below

However, we cannot accept the above judgment of the court below for the following reasons.

(1) Relevant legal provisions and interpretation

Article 79(3) of the Public Official Election Act provides that "A candidate, etc. and social members may use a motor vehicle and a loudspeaker or a portable loudspeaker attached thereto according to the following classifications to make a campaign speech at an open place and interview at an open place" (Article 256(4)8 and Article 79(3)1 of the Public Official Election Act limits the motor vehicle to be used for a presidential election, and the loudspeaker or a portable loudspeaker attached thereto to one unit and one unit for each candidate, City/Do and Gu/Si/Gun election campaign liaison office, respectively, and Article 256(4)8 of the Public Official Election Act provides that a person who makes a campaign speech at an open place or interview in violation of Article 79(3) of the Public Official Election Act shall be punished:

The phrase "using a motor vehicle and a loudspeaker system attached thereto for a speech or interview" under Article 79 (3) of the Public Official Election Act means that a motor vehicle is used as a direct tool for a campaign speech or interview, such as where a loudspeaker is attached to the motor vehicle and a campaign speech or interview is made by appeal for support of a political party or candidate at an open place or an interview is made in a manner of answering questions, and the motor vehicle and its loudspeaker system attached thereto is used as a direct tool for a campaign speech or interview. It does not constitute a case where a campaign speech is made on board another motor vehicle without using a loudspeaker system even though it is parked in the election campaign office to move from the campaign speech place to the campaign speech place.

(2) Judgment

Therefore, it is examined whether the Defendant used a motor vehicle as a direct tool for speech and interview at the time of committing the instant crime and a loudspeaker attached thereto exceeding one unit in violation of the Public Official Election Act.

According to the evidence duly examined and adopted by the court below, it is recognized that the defendant 1 made a campaign speech to appeal for support for the on-site of the candidate who belongs to the creative party by using a loudspeaker system installed in the (vehicle No. 1 omitted) at the front parking lot located in the area of the Seongbuk-dong Residents' Self-Governing Center in the north-dong in the Dong-gu, Dong-si, Dong-si, Dong-si, Dong-si on December 8, 2007, around 15:20.

However, according to the evidence duly adopted and examined by the court below as to whether Defendant (vehicle No. 1 omitted) and a loudspeaker attached thereto were used for a speech or interview as shown in the facts charged in this case other than a motor vehicle, it is found that Defendant 1 parked a motor vehicle (vehicle No. 2 omitted) at the front of the motor vehicle at the time when the above speech was held. The above (Motor Vehicle No. 2 omitted) motor vehicle is marked on December 2, 2007 by Defendant 2 to apply for a sign at an open place for an interview or interview at the Dong-si Election Commission, and the sign of a motor vehicle inspector and a loudspeaker No. 17 (Motor No. 2 omitted) are affixed to a candidate’s campaign speech or interview at the 17th presidential election, and it is found that Defendant 1 did not have any other evidence to support the above candidate’s campaign speech or interview at the open place, or that there is no other evidence to support the above candidate’s campaign speech or interview at the public place.

In addition, even if Defendant 2 applied for the issuance of a sign to the Dong Sea Election Commission for a campaign speech or interview at an open place on December 2, 2007 (vehicle number 2 omitted), and even if the Defendants used a motor vehicle (vehicle number 2 omitted) for a campaign speech or interview from the date of the crime of this case to the date of the crime of this case, as long as the above motor vehicle and its loudspeaker system attached thereto are not used for a campaign speech or interview, such circumstance alone cannot be deemed to conflict with the above provision.

Nevertheless, the court below found the Defendants guilty of violating the Public Official Election Act due to the excessive use of one motor vehicle for a speech or interview and a loudspeaker system attached thereto and one loudspeaker system attached thereto. In so doing, the court below erred by misunderstanding facts, or by misunderstanding the legal principles on the Public Official Election Act, and the Defendants’ assertion in this point is with merit.

(b) Violation of the Public Official Election Act and the violation of an injury caused by assaulting an employee of the Election Commission (Defendant 1);

(1) Details of the victim Nonindicted 1’s statement

From the investigation agency to the court of the court below, the victim non-indicted 1 consistently sought from the defendant 1 to the investigation agency of the court of the court below, and consistently failed to verify whether the defendant 1 was in violation of the Public Official Election Act and to monitor and control the defendant's violation of the Public Official Election Act at the Dong-gu Election Commission's office around 16:30 on December 11, 2007, and to confirm whether the defendant's campaign speech or interview is attached with the approval seal of the election commission, the victim non-indicted 1 expressed that the victim 1 committed an assault by taking advantage of the victim's breath and moving the victim's breath, leading the victim's face before the above office of the above office of the defendant, leading the victim to a parking lot of the above office of the defendant, leading the victim to a drinking face and the chest side of the chest, etc., and thereby, the defendant 1 did not have any violence or injury to the victim.

(2) Whether the victim's statement was reliable

In light of the following: (a) the victim’s above statements are consistent as well as the victim’s above statements; (b) the victim, who is a public official of the Election Commission, did not peep his motive to make a false statement; (c) the situation at the time of the crime of this case as stated in Nonindicted 2, 3, 4, 5, and 6’s statements; and (d) the Defendant’s behavior patterns are most consistent with the victim’s statements; (b) the victim’s above statements are deemed to be reliable; and (c) the victim’s above statements are insufficient to reverse its credibility only by Defendant 2’s trial statement at the trial of the witness, and by the statement of this court’s verification protocol

(3) Sub-decisions

In full view of the evidence duly admitted and examined by the court below on each of the statements made by the victim in the investigative agency and the court below at the court below, it is sufficient to acknowledge this part of the facts charged against Defendant 1. Thus, this part of the allegation by Defendant 1 is rejected.

3. Conclusion

Therefore, Defendant 2’s appeal is reasonable, and Defendant 1’s appeal is with reason for violating the Public Official Election Act due to the excessive use of one motor vehicle for speech and interview and one loudspeaker system attached thereto among the facts charged in the instant case. However, the lower court’s judgment should be reversed in its entirety as long as the lower court found Defendant 1 guilty of both the facts charged as to this part of the facts charged and the remaining facts charged, and sentenced to one punishment by treating them as concurrent crimes under the former part of Article 37 of the Criminal Act. Accordingly, the lower judgment shall be reversed in its entirety pursuant to Article 364(6) of the Criminal Procedure Act, and it shall

Defendant 1 is a campaign speechmaker of the East Sea Election Campaign liaison Office in order to present a candidate’s door to the 17th presidential election conducted on December 19, 2007;

2007. 12. 11. 16:30경 동해시 천곡동 문예회관길 3에 있는 동해시선거관리위원회 사무실에 찾아가, 위 선거관리위원회 지도계장인 피해자 공소외 1(남, 46세)이 피고인들에 대하여 공직선거법위반행위 여부를 감시·단속하며 피고인이 사용하는 연설·대담용 자동차에 선거관리위원회 검인표지가 부착되어 있는지 여부를 제대로 확인하지 않았다는 이유를 빌미로 삼아 피해자에게 “당신 이리 나와 봐. 야 이 새끼야！ 뭐가 잘못됐냐? 확인을 해봐. 선거법도 모르는 개새끼들아！ 쌍놈의 자식들 다 죽여 버리겠다.”라고 욕설을 하고 고함을 치면서 피해자의 멱살을 잡고 위 사무실 앞 주차장으로 끌고가 주먹으로 그의 얼굴과 가슴 부위 등을 수회 때려 선거관리위원회 직원을 폭행함과 동시에 그에게 약 2주간의 치료를 요하는 경부염좌, 우측 관골부·비배부·하악부 등의 다발성좌상 등을 가하였다.

1. The defendant 1's partial trial and the court below's legal statement

1. Each of the original judgments rendered by Nonindicted 1, 2, 3, 4, 5, and 6

1. Part of the protocol of interrogation of Defendant 1 by the prosecution (including Nonindicted 1’s statement)

1. Each prosecutor’s statement concerning Nonindicted 1

1. A written diagnosis of injury;

1. Article applicable to criminal facts;

Article 244(1) of the Public Official Election Act (the use of violence against employees of the Election Commission) and Article 257 of the Criminal Act

Article 1 (Bodily Injury)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (Punishments on Crimes of Violating Public Official Election Act due to Violence against Employees of Election Commission with Heavy Punishment)

1. Selection of punishment;

Imprisonment Selection

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 Conditions in favor of the Defendant Considered in the Grounds for Sentencing below)

Defendant 1’s crime of this case is that the victim, who is an employee of the Election Commission, is dissatisfied with the duty of supervision of the victim’s illegal election, and violence is exercised against the victim, and the defendant’s act is seriously detrimental to the purpose of legislation of the Public Official Election Act, which especially protects election workers for the smooth execution of election affairs, and thus, strict punishment is required against the defendant as it is not appropriate. However, there are circumstances that can be taken into account the circumstances in which the defendant assaults the victim, the degree of the victim’s injury is not serious, the victim’s injury is not serious, and the crime is committed contingent in the course of protest against the victim, and all of the sentencing conditions shown in the argument of this case, such as the defendant’s age, character and behavior, family environment, etc.

Of the facts charged in the instant case, the Defendant conspired, around December 15:20, 207, to the effect that “the Defendant made a speech at an open place using two motor vehicles such as a sealing (vehicle number 2 omitted), sealing (vehicle number 1 omitted), and two loudspeaker systems attached thereto, which are attached thereto, for a speech or interview, and a speech at an open place,” shall be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, since it constitutes a case where there is no proof of crime, as seen earlier.

It is so decided as per Disposition for the above reasons.

Judges Park Jong-nam (Presiding Judge)