Defendant

Prosecutor

Park Tae-gi

Attorney Lee Byung-ju

Gwangju District Court Decision 2010Kadan159 Decided November 10, 2010

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

A. Error of mistake

Of the facts charged in the instant case, the lower court acquitted Nonindicted 2 on the ground of violation of the Act on the Exclusion of Illegally Collected Evidence on the ground of the violation of the Agricultural Cooperatives Act due to the provision of money to Nonindicted 2. However, the lower court acknowledged the admissibility of evidence created therefrom in the event that the private person recorded the other party’s conversation as one of the parties to the conversation. In so doing, Nonindicted 3 and Nonindicted 4, who recorded Nonindicted 2’s conversation, are employees of the election commission, not special judicial police officers, and are merely public officials engaged in the election management, not “ investigative agencies,” but “private persons.” The lower court found Nonindicted 2’s arbitraryness in Nonindicted 2’s statement and recorded the statement, not only recognized the legitimacy, reasonableness, and legal interest balance of the means for the purpose, but also did not violate the constitutional principle of proportionality, and thus, the recording on Nonindicted 2 does not constitute an act of infringement of fundamental rights related to the privacy of Nonindicted 2’s privacy, and thus, admitted that the recording was inadmissible and admissible as evidence evidence of the Defendant.

B. Unreasonable sentencing

① As above, there is an error of law that affected the sentencing by not guilty of part of the facts charged in the instant case, and ② the part that the lower court found guilty, i.e., the Defendant’s act of providing four hundred thousand won in total to four members of the instant association, which was sentenced by the lower court, is too unreasonable.

2. Determination:

A. Judgment on the assertion of mistake of fact

(1) Summary of the facts charged by the lower court

The defendant was elected by going out of the election for the president of the ○○ Agricultural Cooperative located in the ○○ Agricultural Cooperative located in the Jeon-nam-gun (hereinafter omitted) in September 16, 2009, and Nonindicted 1 (Co-defendant 1) is the defendant's wife.

No person shall provide money, goods, entertainment, or other property benefits to members, etc. for the purpose of being elected or elected as an executive of a local agricultural cooperative.

From September 11, 2009 to the 15th day of the same month, the Defendant and Nonindicted Party 1 asked Nonindicted Party 2 to support the Defendant in the election of the head of the above association, such as “I am satch with money, I am at hand,” and “I am at hand, I am at hand, I am at hand, I am at hand,” and provided Nonindicted Party 2 with cash of 200,000 won.

Ultimately, in collusion with Nonindicted 1, the Defendant provided KRW 200,00 in cash to one of the above members for the purpose of having the Defendant elected in the above election for the head of the association.

(2) Summary of the judgment of the court below as to the above acquittal portion

The court below found the defendant not guilty on the grounds that among the evidence submitted by the prosecutor, ① the transcript (Evidence No. 50) on Nonindicted 2 is illegally collected evidence, ② the part on Nonindicted 2’s statement (S. No. 53) and the prosecutor’s statement (S. 76) on Nonindicted 2 in the prosecutor’s statement on Nonindicted 2 and the prosecutor’s statement on Nonindicted 2 (S. 76) in the prosecutor’s statement on Nonindicted 2, and the investigation report (S. 67) (S. 67) are secondary evidence obtained on the basis of the above recording, which is an unlawful collection evidence, pursuant to Article 308-2 of the Criminal Procedure Act, and ③ the part on which Nonindicted 2’s statement on the request to investigate the violation of the Agricultural Cooperatives Act (S. 46) and the prosecutor’s statement on Nonindicted 3 (S. 75) are hearsay evidence, and there is no evidence to acknowledge the facts charged under the latter part of Article 310-2 and 316(2) of the Criminal Procedure Act.

(3) Judgment of the court below

A) Exclusion of illegally obtained evidence

Article 308-2 of the Criminal Procedure Act provides that evidence collected in violation of the due process shall not be admitted as evidence, and in principle, the secondary evidence obtained by the investigative agency based on it shall not be admitted as evidence for conviction, as well as those obtained without following the procedure prescribed by the Constitution and the Criminal Procedure Act.

However, in exceptional cases where a violation of the procedure by an investigative agency does not constitute a violation of the substantive contents of due process, and rather, the Constitution and the Criminal Procedure Act to exclude the admissibility of the relevant evidence violates the principles of due process and substantial truth-finding and thereby promoting harmony between the principle of due process and the substantive truth-finding, and thereby promoting criminal justice, the court may use the evidence as evidence for conviction. Therefore, when a court finally determines whether to grant admissibility of the secondary evidence, it should first consider all circumstances related to the collection of the primary evidence, namely, the purport and content of the procedural provision and its degree of violation, namely, the specific details and possibility of violation, the degree of violation, the nature of the right to protect the procedural provision or legal interest, the degree of relation between the defendant and the collection of evidence, and the perception and intent of the investigative agency, as well as the overall and comprehensive consideration of causation or dilution, based on the primary evidence, and all additional circumstances incurred in the process of collecting the secondary evidence again based on the primary evidence (see Supreme Court Decision 2003Do4655, Apr. 26, 2009).

B) Admissibility of evidence of the record on Nonindicted 2

① First, whether the aforementioned Nonindicted 3 and 4, who recorded the content of the question and answer with Nonindicted 2, can be seen as a private person.

The Act on the Persons Performing the Duties of Judicial Police Officers and the Scope of their Duties does not stipulate the staff of the Election Commission as an investigative agency under the Criminal Procedure Act and other related Acts.

However, Article 51 of the Agricultural Cooperatives Act provides that the local agricultural cooperatives shall entrust the election of the head of the cooperative to the Gu/Si/Gun election commission, and Article 272-2 of the Public Official Election Act shall apply mutatis mutandis to the crackdown on and investigation into the violation committed by the Gu/Si/Gun election commission. Article 146-3 (3) of the Public Official Election Management Rule delegated by Article 272-2 (1), (3) and (7) of the Public Official Election Act is an exception to the principle of warrant principle, and where the principle of warrant principle is an exception, it gives the employees of the election commission the authority to enter the place related to the election crime to investigate the election crimes regardless of the intention of the person concerned and enter the place related to the crime to ask questions and investigate the relevant person and record the contents of questions and answers (the related person shall comply with it). Thus, it is not deemed that the employees of the election commission in charge of the investigation of the election crimes, etc. are in the same status

Therefore, this part of the prosecutor's assertion that the recording of Nonindicted 2 is admissible on the premise that Nonindicted 3 and 4 personnel of the election commission are private persons is admissible is without merit.

② Next, we examine whether the admissibility of Nonindicted 2’s recording recording of Nonindicted 3 and 4’s conversation recorded by the employees of the said election commission, who correspond to an investigative agency, can be recognized as evidence.

Article 244-2(1) of the Criminal Procedure Act that provides that an investigation agency may video recording of a suspect’s statement, but in such a case, Article 244-2(1) of the said Act that provides that a person who has a status equivalent to an investigation agency shall also apply mutatis mutandis to the recording of inquiries and answers concerning investigation of election crimes in light of the principle of due process. Therefore, if an employee of the election commission did not notify the relevant person of the recording in advance while recording the contents of conversation with an investigation of election crimes in order to investigate the election crimes, the recording file is inadmissible as evidence collected in violation of due process. However, if the act of violation of the aforementioned procedure does not infringe on the substantial contents of due process, but rather it constitutes exceptional cases where it is deemed that excluding admissibility of evidence would result in a violation

In this case, first of all, as to whether the recording record against Nonindicted 2 was not in compliance with the legitimate procedure, there was no content to acknowledge that Nonindicted 3 and 4 notified of the fact that the above Nonindicted 3 and 4 recorded the contents of questions and answers in the recording book at the time of questioning and answers. In light of the fact that Nonindicted 2 stated in the court of the court below that “the above Nonindicted 3 and Nonindicted 4 had known that they used the recording device at the time of questioning” in the court of the court of the court below, it is not sufficient to recognize the fact of recording, and there is no other evidence to acknowledge it, so the recording record is a evidence collected without following the due process to notify the fact of recording in advance. Next, as to whether the recording record against Nonindicted 2 constitutes an exceptional case where the admissibility of the evidence of the recording record against Nonindicted 2, it is permissible to record the recording by an investigative agency without prior notification, and it is difficult to find any exceptional circumstance to recognize it as violating the purpose of the criminal justice of the above recording as evidence.

Ultimately, the recording of Nonindicted Party 2 is obtained without due process, and its admissibility is denied. Therefore, the judgment of the court below that made the same conclusion is just and the prosecutor's assertion that the recording is admissible on a different premise is without merit.

C) Admissibility of evidence of Nonindicted Party 2’s written statement by the Prosecutor’s Office and investigation report (the regional name “A”)

First, with respect to the prosecutor's statement of non-indicted 2, it cannot be said that the statement constitutes evidence naturally collected on the ground that the investigation was initiated by the prosecutor's office's health room and the record book collected illegally, and that the statement of non-indicted 2's witness on the record was prepared. However, in the course of the preparation of the record, it is a secondary evidence obtained on the basis of the record of the recording through the reproduction of the recording CD.

① Although the due process prescribed in relation to Nonindicted 3 and 4 should be observed in light of the principle of the rule of law as it recognizes the exception of the principle of the rule of law regarding the investigation of employees of the election commission, it is very important that the above Nonindicted 3 and 4 did not notify the recording in advance while recording the contents of conversation with Nonindicted 2. ② According to the contents of the recording and the statement of Nonindicted 2 in the court below at the time, the above Nonindicted 3 and 4 were recorded at night, which were recorded at night (75 years old) around September 19, 209, and were recorded by Nonindicted 2 in the prosecutor’s office without questioning, and Nonindicted 2 did not have to comply with the due process of law regarding the investigation of employees of the election commission. In light of the fact that “The above Nonindicted 3 and 4 did not know about the above Nonindicted 3 and the defendant assigned money to the prosecutor’s office,” it appears that the record was admissible as evidence collected by Nonindicted 2, which appears to have been collected by the investigation agency.

Next, the above investigation report is to confirm the contents of the word "((?) in the recorded CD conversation" and thus it is not admissible as the secondary evidence obtained based on the recording record as seen above.

Therefore, the judgment of the court below that denied the admissibility of evidence of the prosecutor's statement and investigation report (the regional name "A" of the contents of dialogue) on Nonindicted 2 is justifiable, and the prosecutor's assertion that all of the secondary evidence based on the record is admissible is without merit.

D) Admissibility of evidence of the part on which Nonindicted 2’s statement was entered in the prosecutor’s protocol against Nonindicted 3 and the request to investigate the violation of the Agricultural Cooperatives Act.

The court below held that since Non-Indicted 2 made a full statement and made a statement in the court of the seventh trial of the court below, it is inadmissible under Articles 310-2 and 316 (2) of the Criminal Procedure Act. The judgment of the court below is justified.

E) Sub-decisions

As examined above, except for the evidence which is inadmissible, the statement in the prosecutor's statement on Nonindicted 3 (excluding the part in which Nonindicted 2's statement is inadmissible as above) and the statement in the prosecutor's statement on the violation of the Agricultural Cooperatives Act (excluding the part in which Nonindicted 2's statement is inadmissible as above) can only be acknowledged that Nonindicted 3 received anonymous information on election crimes related to the Defendant and visited and examined the house of Nonindicted 2, and there is insufficient evidence to acknowledge the above facts charged. Thus, there is no other evidence to acknowledge it (In conclusion, Nonindicted 2 stated in the court of the court below that “ Nonindicted 1, who is the wife of the Defendant, paid money with the mixed, is the same as that of the Defendant, and the Defendant does not memory,” and the facts charged constitute a case where there is no evidence to prove the crime.

Therefore, the court below is just in holding this part of the facts charged as not guilty under the latter part of Article 325 of the Criminal Procedure Act, and there is no error of law as alleged by the prosecutor in the judgment below, and therefore the prosecutor's above assertion is without merit

B. Determination on the assertion of unfair sentencing

(1) First, the Prosecutor’s assertion that the lower court erred by not guilty of part of the facts charged in the instant case and thereby adversely affecting the sentencing is justifiable as seen above.

(2) Next, the part found guilty by the lower court, namely, that the Defendant’s act of providing four hundred thousand won in total to four members of the agricultural cooperative association, which was deemed unfair, should be punished strictly against the Defendant for the purpose of establishing a fair election culture, on the argument that the sentence imposed by the lower court is too unfortunate. The instant crime was committed against Nonindicted 5, who was a candidate for the election of the head of the agricultural cooperative association, provided the Defendant to Nonindicted 6, 50 million won, 50 million won to Nonindicted 7, and 20 million won to Nonindicted 8 before the election.

However, the funds provided to the above non-indicted 5, 6, and 7 at the time when the immediately preceding defendant was put to the defendant, provided the same amount as the funds paid to the defendant as a marriage congratulatory, and the funds provided to the above non-indicted 8 appears to have been provided to the effect that the above non-indicted 8, who was employed as an employee in the distribution and distribution of the defendant operated, was an attitude to pay for the expenses necessary for the purchase of cleaning machines, etc., which led to the crime of this case. There are some circumstances considering the circumstances leading to the crime of this case. The result of the crime of this case does not have a significant impact on the election, the defendant acknowledged the mistake while leading to the confession of the crime of this case, the defendant did not have the same criminal record, and all the sentencing conditions as shown in the records and arguments of this case including the defendant's age, character, and environment. Thus, the prosecutor's assertion is without merit.

3. Conclusion

Therefore, the prosecutor's appeal is without merit and it is dismissed under Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition by the court below (However, the "Rules for Election of Public Officials" in Article 2 (2) 1 of the Rules for Election of Public Officials shall be dismissed as the "Rules for Management of Election of Public Officials", and the contents of paragraphs (5) and (6) shall be entirely deleted, and it shall be corrected ex officio).

Judges Park Gi-chul (Presiding Judge) Lee (Presiding Judge)