(영문) 서울동부지방법원 2016.12.23. 선고 2016고합298 판결

When the defendant fails to pay the above fine, the defendant shall be confined in the old house for the period calculated by converting 100,000 won into one day.

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

Reasons

Criminal facts

The defendant was elected from the 20th National Assembly member election, which was enforced April 13, 2016, as a member of the National Assembly of the 19th D Party (E).

The National Court Administration has reviewed the relocation of the office buildings from the beginning of the 2000s and made efforts to attract the legal complexes to be newly established in G-gu, H-gu, and I-gu, which are local governments, in the early 200s, in view of the fact that the number of building buildings of the Seoul District Court F Branch Office and Seoul District Court F Branch Office (hereinafter referred to as the "legal complex") increased in 1971 are too old and narrow.

In particular, on July 4, 2003, the National Court Administration established the Gu Residents Countermeasures Promotion Committee (hereinafter referred to as the "Gu Residents Countermeasures Promotion Committee") to maintain F support and F branch offices in G Gu around July 14, 2003, immediately after the investigation of the scheduled site of G and H branch offices in order to select the new site of the new site of the legal support complex, and around September 5, 2003, Hgu also constituted the F Support and F branch Offices Inducement Promotion Committee (hereinafter referred to as the "H district Promotion Committee"), and I also participated in the inducement competition in full scale by leasing the site of the JJ large development restriction district as the new site of the legal support complex.

In addition, around November 2003, the former Committee for Promotion of Measures visited F Branch Office of Seoul District Court, F Branch Office of Seoul District Prosecutors' Office, National Court Administration, and Ministry of Justice's Office of Public Prosecutor's Office to submit a proposal for attracting the legal complex and signature, and visited K on November 24, 2003 and submitted a written application for coal by visiting K on or around November 18, 2003. On November 18, 2003, H-gu Promotion Committee also submitted a written petition for attracting the legal complex and a signature stating a signature of about 150,00 residents of H-gu and a written petition for attracting the legal complex to the National Assembly on or around November 20, 203, and there was a strong competition in attracting the legal complex on both sides by posting a banner for attracting the legal complex within H-gu around November 20, 203.

On the other hand, matters concerning the selection of the new site for the legal support complex was stipulated by the National Court Administration, the Ministry of Justice, a separate agency organized under the Rules of the National Court Office Building Committee, and the National Court Office Building Committee was composed of outside experts in each field, such as construction, civil engineering, urban planning, city policy, and branch of the National Court Administration, the Vice Director of the National Court Office, as the chairperson.

In fact, the selection of new construction sites of this Act was carried out in the way of examining the area and form of the site, size of the budget, location within the jurisdiction, surrounding environment, work environment, accessibility of civil petitioners, such as visiting the site and analyzing data submitted by outside experts and practitioners in each field of the court building construction committee and the local governments wishing to attract.

In such a situation, around December 6, 2003, the Defendant visited the National Court Administration Office on the part of the Defendant, who was an assistant of the Defendant, explained the necessity to maintain the G district of the legal assistance complex, including Gangnam and North Korea balanced development, and explained the necessity to maintain the G district of the legal assistance complex. However, from M, the Defendant only made a theoretical reply to the G residents who want to maintain the financial assistance, but only did not have received the promise to maintain the legal assistance complex, taking into account the position and regional characteristics of G residents who want to maintain the financial assistance into account, as well as that of G residents who want to make a comprehensive decision.

After that, around 204, 5, and 19, the Building Committee of the Court Office decided on the relocation site with the consent of a majority of the N site that has received excellent evaluations in accessibility, site size, and purchase cost. Accordingly, the National Court Administration sent to the relevant agency a letter that the N site was selected as the relocation site on June 7, 2004.

As above, the defendant did not have been determined from M at the time of the interview with M in relation to the procedure for the selection of a site for the legal complex, and only the original answer that "to make a comprehensive determination by taking into account the position and regionality of G residents," and the site selection was a matter of deliberation by the court building construction committee of the court building where external expert members were the main axis and did not have a situation in which K could directly participate. At that time, the above statement of K was a primary and formal answer to the defendant, who is a member of the G Gu, and it was a sensitive time when the Gu, Hgu, and I districts were strongly competing in order to attract the legal complex, and it was not meaningful to maintain the G district of the legal complex.

1. Publication of false information related to multilateral summits;

On March 31, 2016, the Defendant made a statement at an open conference at one’s election campaign office located on the second floor of Seoul OO building, stating that “after the end of the speech, the Defendant had been frightened with the reporters. The Defendant had been prepared for the past time at the time when he was harvested. At the time when the transfer of the FO building was discussed, the Defendant made a decision to request and maintain MK for the maintenance of the balance between South and North Korea. However, the Defendant was determined to move the FO building to Hgu after one month.”

However, in fact, around December 6, 2003, the defendant visited the National Court Administration Office to explain the necessity to maintain the G district of the legal assistance complex to MK, but there was no decision from the above M., and there was no promise to maintain the legal assistance complex only with the original answer that "to make a decision comprehensively taking into account the position and regional characteristics of G residents," and there was no promise to maintain the legal assistance complex into account.

As a result, the Defendant published false facts about the Defendant’s act in favor of the Defendant for the purpose of winning the 20th National Assembly election in Seoul E election district.

2. Publication of false facts concerning book-type election campaign bulletins;

On March 30, 2016, the Defendant produced a book-type election campaign bulletin for the 20th National Assembly election for the 17th National Assembly election at the same election campaign office as Paragraph 1 of the same Article, and the Defendant stated that “A Assembly members decided to transfer the 17th National Assembly of the Republic of Korea F&M at the 17th National Assembly.” If A did not do so, many sections at the time it could have been observed.” The Defendant stated “A Assembly members who agreed to keep F&M at the 16th National Assembly of the Republic of Korea (M)” at the bottom of the photograph of the interview with K at the time, and distributed a total of 82,959 copies of the above election campaign bulletin to residents in the E constituency from April 2, 2016 through the G-gu Election Commission of the G-gu.

However, on or around December 6, 2003, the defendant visited the Court Administration Office to explain the necessity to maintain G districts of the legal assistance complex to MK, but there was no decision from the above M, and there was no promise to maintain the legal assistance complex in G only with a view to comprehensively considering the position and regional characteristics of G residents.

As a result, the Defendant published false facts about the Defendant’s act in favor of the Defendant for the purpose of winning the 20th National Assembly election in Seoul E election district.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of the witness P, M, Q, R and L;

1. Each prosecutor's protocol of statement against S, T or U;

1. An investigation report (A Council members' book-type reporting on the date of distribution of official gazettes and confirmation incidental to distribution);

1. V (Report on Nov. 24, 2003), V (Report on Dec. 8, 2003), Korean style news article, Korean style news article, Korean style news article, V (Report on April 29, 2004), V (Report on May 19, 2004), V (Report on May 22, 2004), V (Report on May 22, 2004), V (Report on March 31, 201), book-type election news article, book-type election campaign bulletin article, request for cooperation in investigation, response, reply materials (the formation of court office building committee, site selection, etc.)

Application of Statutes

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

Article 250(1) of the Public Official Election Act (Selection of Fines)

1. Aggravation of concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with punishment prescribed in a crime of violating the Public Official Election Act due to distribution of election campaign bulletins heavier than the circumstances)

1. Invitation of 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 argument of the defendant and defense counsel

1. As to the assertion of violation of the principle of an indictment only

A. Summary of the assertion

In the end of the first head of the instant indictment, the Defendant asserted that “the time before the legal complex was transferred in 2017, and that there was no sufficient effort to protect the legal complex during the term of the 16th National Assembly members in the G-gu area, and that the Defendant made a statement as if he/she had received the promise to maintain the legal complex at the time of M on March 13, 2015 at his/her own information inquiry council held on March 13, 2015.” This stated that “The indictment of this case is contrary to the principle of an indictment only because it was not related to the facts charged, and it stated the fact that there was no prejudice to the judge, thereby violating the principle of an indictment only.

B. Determination

The principle of an indictment only shall be submitted when a prosecutor institutes a public prosecution, and it shall not be attached or quoted to other documents or articles that may cause prejudice to the court on the case (Article 118(2) of the Rules on Criminal Procedure). It shall be included in the contents of the principle of an indictment only as ‘Prohibition of entry of other facts' that may cause prejudice to the court as a fact other than the facts required by the law. The violation of the principle of an indictment only shall be specifically determined in the relevant case in light of the type and content of the crime as stated in the facts charged, and the contents of documents or articles attached or quoted in the indictment, and the facts other than those required by the law may cause prejudice to the judge or jury to ascertain the substance of the crime (see, e.g., Supreme Court en banc Decision 2009Do7436, Oct. 22, 2009).

On December 6, 2003, the first head of the instant indictment states the premise facts or indirect facts, such as the Defendant’s “content of the news report around December 8, 2003,” “Contents of the news report materials distribution around March 9, 2004 by the National Court Administration”, “the details of the news report materials distribution at the National Assembly Administration”, and “the details of the statement made at the Assembly of Information, which was held by the Gu Office on March 13, 2015,” and “the details of the statement made by the Defendant at the Assembly of Information,” rather far away from the fact or indirect facts.

However, the crime charged in this case is a crime of violation of the Public Official Election Act due to the publication of false facts, and provides an excessive subjective element such as "the purpose of being elected or to be elected as a requirement for the formation of the crime." The perception of the publication of false facts and the desire or acceptance of such intent in the contents of the crime must be determined through various indirect facts before and after the criminal act is committed because it is difficult to observe the outside. The first head of the indictment in this case can be understood as clearly specifying the facts of the inner elements of the crime more clearly, and even if there are some inappropriate aspects, it is difficult to view that such an entry is irrelevant to the facts charged or makes it possible to interfere with the judge's understanding of the substance of the crime or the defendant's exercise of his defense right. Accordingly, the prosecution in this case cannot be deemed null and void due to its violation of the principle of an indictment only. The above assertion cannot be accepted.

2. As to the assertion that there was no intention to publish false facts

A. Summary of the assertion

At the time of December 6, 2003, the defendant explained that he should maintain the legal development complex in G while talking with K at a friendly atmosphere. M means that "a comprehensive decision should be made taking into account the situation and local characteristics of Gu residents" while indicating the understanding and public sense of the request for the retention of the legal development complex, and "when constructing a new building of a court, it is maintained by the court that "if it is difficult to transfer the building in the future or if the defendant objects to the transfer, it is difficult to transfer the building in the future, it is difficult to do so." The defendant understood that he received a promise from M to help the legal development complex in order to maintain the legal system. Therefore, the defendant did not recognize that the facts published in the judgment were false, and there was no intention to publish false information to the defendant.

B. Determination

In the crime of publishing false facts under Article 250(1) of the Public Official Election Act, as long as it is difficult to know or prove it outside the scope of the crime, the normative determination should be made by comprehensively taking into account all the circumstances, such as the Defendant’s academic background, career, social status, background of publication, timing of publication, and the objectively anticipated ripple effect, based on the contents of the publication, the existence and content of the materials, the source and awareness of the fact alleged by the Defendant, as long as it is difficult to know or prove it out in its nature (see, e.g., Supreme Court Decision 2009Do4931, Oct. 29, 2009).

According to the evidence adopted and investigated by the court, the following circumstances are revealed.

At the time of December 6, 2003, when the Defendant had interviewed with M, G-gu, H-gu, and I-gu, which are local governments that want to attract the legal development complex. In this regard, the G-gu Countermeasures Promotion Committee in which public officials of each local government, political persons, etc. participate, and the H-gu Promotion Committee was organized, and that the Defendant explained the necessity to relocate or maintain the legal development complex and filed a petition to the Seoul Special Metropolitan City and the National Court Administration Administration. Since the Defendant was a member of the National Assembly serving as a constituency for G-gu at the time, he was well aware of the content of the activities of the G-gu Countermeasures Promotion Committee and the overall progress of the competition in the legal development complex such as G-gu and H-gu at the time.

○○ on 2003, 11, 24, the Defendant visited the National Court Administration Office on 2003, 11, and 24, prior to opening a meeting with MM, and submitted a written application demanding the maintenance of the G district of the legal assistance complex. However, at the time, K did not make any decision related to the transfer of 'H'. It did not provide a definite answer as to whether to maintain the G district by making it possible to reflect the opinions of the Gu.

On December 6, 2003, the Defendant explained the necessity and justification for the maintenance of the G districts of the legal assistance complex while conducting the interview with M on December 6, 2003. The articles written by the assistant L, who was present at the time, on December 8, 2003, from the assistant L, were going to the friendly atmosphere, and M was transferred to the friendly position, while M was "I did not make a decision on this issue until the National Court Administration, but did not make a comprehensive decision in consideration of the position and regionality of G residents," it is reported on November 24, 2003.

○ On the other hand, the Supreme Court clarified the official position that the ‘not yet selected in the area prior to the legal development complex' through the news report on March 9, 2004, about three months after the above interview.

On May 19, 2004, the Director-General of the National Court Administration shall be the chairperson of the National Court Administration, the Director-General of the National Court Administration shall be the Vice-Chairperson, the Director-General of the National Court Administration shall be the Director-General of the Ministry of Justice, the Prosecutor-General of the Office of Justice, the Director-General of the Office of Court Administration, the Director-General of the Office of Court Administration shall be the Director-General, and the Director-General of the Office of Justice, the Prosecutor-General of the Office of Justice, the Director-General of the Office of Public Prosecution, the Director-General of the Office of Construction, the Director-General of the Office of Construction, the Office of Construction, the

In this court, M, a party to which ○○ had held an interview with the Defendant, did not accurately memory the Defendant’s specific remarks, but at the time, there was an opinion that it is difficult to maintain the G Gu within the court at the time, and there was an opinion that the Defendant should transfer the legal complex to H, so it was true that there was no promise to maintain the legal complex to G and that there was no promise to do so, and that there was a friendly and atmosphere, and that there was a good view to consider the proposal. However, it was possible to see that there was no promise to maintain the legal complex beyond the ordinary virtue, but the content of M’s statement is consistent with the contents of the statement as of December 8, 2003, which was reported by the article, and that there was no decision of the Supreme Court on the maintenance of the legal complex from before the interview to March 2004, and therefore, it should be deemed that the content of M’s statement was supported by the law building committee at the time of its deliberation.

On March 5, 2004, the Defendant continued an interview with M, and attended the meeting of the Gu Countermeasures Promotion Committee, which was held on March 5, 2004, and discussed the future implementation plan. At the above meeting, the Defendant’s opinion differs from K and K judges on the statement that “the other participants wish to move” and “the prosecutor want to move,” and the Defendant appears to have expressed his opinion that he will be able to support the National Court Administration’s decision because the visit with the specific plan is G districts at the request of the F Support Center at least 10,00 square meters at the time. However, in light of the overall contents of the meeting, since all the participants did not seem to have been able to reach a decision on the Gu’s G of the Legal Support Complex on the premise that it is unclear whether it is a legal tool or not, the Court Administration Office has to accept the present site as a negative measure by referring to traffic inconvenience and noise problems, but it seems that our people have to have been able to have an interest in the situation or efforts to keep the site in the Gu.”

In the above conference, not only the above statement of the defendant's opinion that "the defendant would be affirmed by the Court Administration," but also the statement of the other participant's "the situation at which the other participant will consent to the cancellation of the surrounding natural landscape district, including the site that is being secured by G at present in G," was made to the effect that "the other participant may not know about the inside question," and "the other participant shall receive documents that may bring about effects". In this regard, the above meeting has been discussed with the awareness that "in spite of the fact that there is an internal speech received from K or from the working person of Seoul, it cannot be viewed as an "agreement" or "decision" beyond simply expressing a favorable position.

In light of the fact that the Defendant published, “MK requested or decided to maintain the F branch law,” and “K (M) agreed to maintain the F branch law.” The prior meaning of the word “decision or promise used by the Defendant,” “ upon receipt of” and ordinary language laws, and the fact that K, as the head of an organization in charge of the court’s administrative affairs, is highly likely to accept that K can exercise the power of decision-making regarding the transfer or retention of the court from the perspective of ordinary people who are not well aware of the internal decision-making structure in which the selection of the site of the court office is made by the court building committee, as the head of the organization in charge of the court’s administrative affairs, from the perspective of ordinary people who are not well aware of the internal decision-making structure in which the site of the court office is made by the court building committee, the fact that the Defendant published is not simply a fact that the Defendant received a promise to help from the individual, but it is a content that the Defendant received an official promise or decision regarding the legal complex from the head of the National Court Administration Office’s number of Korea before the Defendant’s domestic affairs.

○ The Defendant is a legal expert who had served as a judge for ten years after graduating from the law school. On December 6, 2003, when MM had been interviewed, the Defendant had already been engaged in political activities for eight years as a member of the National Assembly. At the time of each of the instant publication, the career of political activities was up to twenty years. In light of the Defendant’s academic background and career, as well as the Defendant, who had been well aware of the court’s official position on the selection of the site for the law school and the procedure of decision-making by the court, while working as a member of the G measure promotion committee before and after the above interview, it is difficult to view that the Defendant had understood the horses as “K’s promise or decision on the maintenance of the legal school.” Moreover, even if the Defendant had been aware that each of the instant promise was made before and after the above interview, it appears that the Defendant had not been aware that it had been made at the time of the above decision-making of 204 H.

As seen above, in full view of the situation of attracting competition in the legal complex before and after the interview with the defendant, the official position of the court, the statement of M in this court as the party to the interview, the decision-making procedure inside the court as to the selection of the legal complex site, the contents of the discussions made by the Ggu Countermeasures Promotion Committee in which the defendant participated after the interview, the facts published by the defendant, the education and experience of the defendant, and the timing of publication, etc., it can be recognized that the defendant, at least after recognizing that it was false that he was ordered or decided to retain the legal complex in Ggu on December 6, 2003. This part of the defendant and the defense counsel cannot be accepted.

Reasons for sentencing

1. The scope of punishment by law: Fines not exceeding 45 million won;

2. Scope of recommendations according to the sentencing criteria:

[Determination of Type] Publication of False Information, and Prohibition of Candidates for Election (Publication of False Information for Election Purposes) Type 2

[Special Convicts] Reduction element: Where the degree of publication of false facts is weak;

[Determination of the recommended territory, scope of recommendations] Reduction area, fine of KRW 700,000 to KRW 3 million

3. Determination of sentence;

m. Unfavorable circumstances

The defendant, who was a candidate for the election of public officials, published false facts to voters twice, is a crime that causes interference with the correct judgment by having the voters evaluate the candidate's ability or past achievements, thereby impairing the fairness of election.

○ Each of the instant publication by the Defendant was carried out in the form of official speech or printing it on the official election campaign bulletin distributed at a multilateral conference that expresses the finish of the gathering, not by means of interest and contingent, but by means of official speech at the multilateral conference that expresses the finish of the gathering.

4. favorable circumstances

In light of the overall contents of the Defendant’s election campaign bulletin and the location of the instant false information before and after the publication of the instant false information at the multilateral conference, the Defendant did not have emphasized that the Defendant was promised or decided to retain the legal complex in GG by K as an important outcome. The Defendant emphasized it as its main assertion focusing on the argument that the future development plan on the remaining site after the transfer of the legal complex was faithfully prepared, while emphasizing that in the process, the Defendant was subject to the promise or decision regarding the retention of the previous legal complex.

○ It is also difficult to view that the Defendant appeared as the main issue among the candidates in the election of the 20th National Assembly members of the National Assembly in December 2016 whether the Defendant received the promise or decision on the preservation of the legal complex from K around December 2003. The Defendant and the competing candidates mentioned that the legal complex was transferred to another place by using the expression such as “a person who deducted the legal complex from the election campaign bulletin, etc.” in the process of election campaign bulletin, etc. However, in light of the entire contents of the election campaign bulletin or the entire discussions conducted between the candidates, the main issue between the candidates is not to hold responsibility for the failure to maintain the previous legal complex because the site was related to the development plan after the transfer of the legal complex. The decision on the transfer of the legal complex to H was made around 12 years before the date of the publication of this case on May 2004, the Defendant had already received an assessment of the Defendant’s political responsibility in the election of the National Assembly members of the Republic of Korea in two years before the election of the National Assembly members of the Republic of Korea.

○ It is difficult to assess that the Defendant’s act of publishing each false fact in this case has a significant impact on the decision of voters in the actual election. Examining the results of the public opinion poll conducted before and after the act of publishing each false fact in this case was conducted on March 22, 2016, the Defendant’s support rate was 0.2% prior to the Z candidates in the public opinion poll conducted on March 30, 2016, and the Defendant’s support rate was 0.2% prior to the Z candidates. In the public opinion poll conducted on April 3, 2016, the Defendant appears to have reached 12.9% prior to the Z candidates. In the public opinion poll conducted on April 6, 2016, the Defendant appeared to have reached 2.7% or 6.3% subsequent to the Z candidates’ respective act of publishing each false fact in this case, and there is no significant difference in the Defendant’s voting ratio that each of the changes in the election of the National Assembly members in this case did not affect the result.

○ The Defendant had no record of punishment for violating the Public Official Election Act or other Acts while engaging in political activities for about twenty years.

In full view of all other reasons for sentencing indicated in the arguments and records of the case, the sentence of punishment equivalent to the invalidation of election is deemed to be too heavy, and thus, the sentence shall be determined as ordered.