Defendant

Main iron bars, and trial

Attorney Lee Gi-ia

Defendant shall be punished by a fine of KRW 2,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

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

The Defendant is a person who operates the “△△△ Licensed Real Estate Agent” located in the △△-Eup in Busan-si, and was registered as a preliminary candidate in the election of the 20th National Assembly members in the 20th National Assembly member of Busan-si, which was implemented on April 13, 2016.

No one shall conduct an election campaign by means of propaganda facilities, tools, various printed materials, or other assemblies, except as prescribed by the Public Official Election Act prior to the election campaign period.

Nevertheless, on February 14, 2016, from around 17:05 to 19:20 on the same day, the Defendant had 24 persons, including Nonindicted 3, who attended the opening ceremony of Nonindicted 1’s election campaign office held on the same day, file an election campaign prior to the election campaign period by providing the said 24 persons with a total of KRW 616,00,000 and alcoholic beverages, etc.

1. Partial statement of the defendant;

1. The witness’s respective legal statements in each of Nonindicted 16, Nonindicted 24, and Nonindicted 1

1. Examination protocol of the accused by prosecution;

1. Each prosecutor’s statement concerning Nonindicted 4, Nonindicted 3, Nonindicted 15, Nonindicted 9, Nonindicted 20, Nonindicted 14, Nonindicted 21, and Nonindicted 11

1. Each written answer to Nonindicted 25, Nonindicted 22, Nonindicted 6, Nonindicted 8, and Nonindicted 12

1. Each written confirmation from Nonindicted 7, Nonindicted 18, Nonindicted 5, Nonindicted 2, Nonindicted 19, Nonindicted 17, Nonindicted 10, and Nonindicted 13

1. Food receipt;

1. Details of each currency;

1. Sound recording files;

1. cafeteria CCTV-USB;

1. A written accusation;

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

Article 254(2) of the Public Official Election Act (Selection of Fines)

1. Detention in 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

1. Summary of the assertion

On the day of the instant case, 24 persons who were provided with noise and alcoholic beverages, etc. from the Defendant were gathered in the instant restaurant, and the Defendant only calculated the drinking value, etc. of ordinary persons as calculated, and did not cause any appeal to support Nonindicted 1. Thus, the Defendant’s act does not constitute an election campaign prohibited by the Public Official Election Act.

2. Determination

A. The term “election campaign” under the Public Official Election Act means any active and planned act necessary for, or favorable to, the election or winning of a specific candidate in a specific election, which can be objectively recognized by the intention of promoting the election or defeat. Specifically, when determining whether an act constitutes an election campaign, it should be determined whether the act is accompanied by not only by the name of the act, but also by the mode of the act, i.e., the time, place, method, etc. of the act, by comprehensively observing the manner of the act, i.e., the time, place, method, etc. of the act (see Supreme Court Decision 2008Do6232, Sept. 25, 2008).

B. Comprehensively taking account of the following circumstances acknowledged in accordance with the aforementioned evidence, the Defendant’s act is sufficient to evaluate that the Defendant’s act constitutes an election campaign in accordance with the intention to promote Nonindicted 1’s election in the election of the 20th National Assembly members, and constitutes an election campaign, as follows: (a) the Defendant and Nonindicted 1’s relationship; (b) the closeness between the Defendant and Nonindicted 1’s opening ceremony; (c) the participants’ relationship between the instant restaurant meeting and opening ceremony; and (d) the passage of Nonindicted 1 and the Defendant’s happiness in the instant restaurant; and (b) the Defendant’s act would result in Nonindicted 1’s intention to promote the election of Nonindicted 1 in the election of the 20th National Assembly members. Accordingly, the Defendant and the defense counsel’s assertion are not acceptable.

1) The instant restaurant meeting was held on February 14, 2016 at low time on the day of the opening of the election office of Nonindicted Party 1, which was held on February 16:00, and the restaurant location map was close to approximately 2-3 minutes in the above election office, and immediately after more than half of the participants attended the above opening ceremony, the Defendant went to the instant restaurant. However, the Defendant was in a friendly relationship with Nonindicted Party 1 (the election commission stated that “the Defendant was a friendly relationship with Nonindicted Party 1 and 20 years.” (Evidence No. 16, 25 of the Evidence Record) and Nonindicted Party 1 stated that “the Defendant was friendly with Nonindicted Party 3 at the election commission’s seat of the election office” (Evidence No. 152 of the Record) and that “the Defendant was friendly with Nonindicted Party 1 and Nonindicted Party 3 at the election commission’s seat of Nonindicted Party 1 and Nonindicted Party 1 was friendly with Nonindicted Party 3” (Evidence No. 52 of the instant election campaign Office).

2) The participants arrange the statements of the Defendant and the participants on the developments between the instant restaurant and the instant restaurant as follows.

First of all, Nonindicted 17, Nonindicted 18, Nonindicted 19, Nonindicted 24, Nonindicted 5, and Nonindicted 10 stated that they go to the instant restaurant with Nonindicted 16 or called Nonindicted 16 (hereinafter “Nonindicted 16’s day”). Nonindicted 16 stated that they go to the election commission upon Nonindicted 20’s phone (Evidence No. 105 of the Evidence No. 105 of the Evidence No. 105 of the record). This was that Nonindicted 20’s prosecutorial statement [the Nonindicted 16’s vehicle going to the instant restaurant on board the vehicle, and is a restaurant] and that Nonindicted 16 and Nonindicted 16 and Nonindicted 20 stated that they go to the instant restaurant (Evidence No. 310 of the Evidence No. 310 of the Record No. 316 of the Evidence No. 16) were different from that of Nonindicted 3’s phone No. 16 and the Nonindicted 16’s witness examination.”

Therefore, in light of the Defendant’s friendly relationship, it is difficult to believe the Nonindicted 16’s statement, and in light of the Defendant’s friendly relationship, Nonindicted 16 cannot avoid the possibility that Nonindicted 16 would have gone to the instant restaurant along with the instant restaurant by obtaining a recommendation from the Defendant.

Then, Nonindicted 22 stated that the Election Commission stated that “Nonindicted 20 was urged to go to the instant restaurant” (No. 48 pages of the evidence record), while Nonindicted 20 stated that “Nonindicted 20 went to the instant restaurant in the election commission and the Prosecutor’s Office (“Nonindicted 22” (Evidence No. 127, 308 pages). However, according to the CCTV image and the telephone conversations on the day, Nonindicted 20 was known that Nonindicted 20 entered the instant restaurant at around 17:10, and Nonindicted 22 and the Defendant did not have any telephone conversations between Nonindicted 22 and the Defendant. Meanwhile, Nonindicted 20 appears likely to go to contact with Nonindicted 22. Meanwhile, Nonindicted 13 was recommended to contact Nonindicted 20, Nonindicted 7, and Nonindicted 23 to the instant restaurant.

(13) Non-Indicted 4 and Non-Indicted 2 were provided with meals for the Defendant’s office. Nonindicted 1 and Non-Indicted 3, Non-Indicted 25, Non-Indicted 12, Non-Indicted 6, and Non-Indicted 8, which were located at the same time, went to the restaurant of this case. From among them, Non-Indicted 3 was phoneed by the Defendant immediately before the restaurant, Non-Indicted 12 and Non-Indicted 25 were recommended by the Defendant, and Non-Indicted 6 and Non-Indicted 8 was recommended by Non-Indicted 3. In addition, Non-Indicted 21 was in the Defendant’s office, and Non-Indicted 15 was called “Non-Indicted 1 and Non-Indicted 15 moved to the restaurant of this case’s office,” and Non-Indicted 3 and Non-Indicted 15 stated that “Non-Indicted 4 and Non-Indicted 4 were sent to the Defendant’s office by phone at the election commission.” However, it appears that there was no other evidence for the Defendant to reverse the Defendant’s office record (Evidence 65).

Finally, Nonindicted 11 stated in the prosecutor’s office that “ Nonindicted 3 was milked along with Nonindicted 3 by drinking Nonindicted 3 in the process of going to a restaurant (Evidence No. 379 of the evidence record). According to this, Nonindicted 11 appears to be a restaurant by being solicited by Nonindicted 3, and according to CCTV images, etc., Nonindicted 9 was found to be a fact between Nonindicted 11 and Nonindicted 11.

3) As such, most of the participants went to a restaurant directly or indirectly by the Defendant. The Defendant stated at the election commission that “the cafeterias present at the opening ceremony are terminated and all the cafeterias present at the cafeterias are closed” on the day of the instant case (Evidence No. 19 pages) and that “the cafeterias present at the cafeterias became to go to the cafeterias in the instant case” (Evidence No. 19 pages), and all the participants were either the electorates in the ○○ City of ASEAN established after the instant case or those who have been affiliated with the cafeterias. There was some friendly relationship among them, not all the cafeterias, and the cafeterias did not exchange the cafeterias, such as drinking, drinking, drinking, drinking, and drinking, and having the Defendant attend the cafeterias in cash, and the Defendant did not visit the cafeterias to the cafeterias to the extent that they did not know that there was a number of persons who did not know about the fact that there was a 16th of the Defendant’s personal information from the Defendant and Nonindicted Party No.

4) CCTV installed in the restaurant of this case contains a meeting at the time. The video contains a meeting. When Nonindicted 1 1 am tired for election campaign and am 16 am close to the restaurant of this case, Nonindicted 1’s hand am aground. Nonindicted 1’s hand am on the side, which the Defendant sent Nonindicted 1’s am aground, to the lower am aground, and Nonindicted 1 was seated down later by Nonindicted 1’s hand am a stop. Although the Defendant did not actively introduce Nonindicted 1 as a preliminary candidate, it appears that Nonindicted 1 was able to be able to attend the restaurant at least to inform 1 as a preliminary candidate, and the Defendant’s statement of the election commission of this case also conforms with Nonindicted 3’s statement [this case’s 4 minutes after the Defendant’s statement at first 23 pages, but 4 minutes after the Defendant’s statement at 436 minutes after the Defendant’s am aground (Evidence evidence No. 436 of this case’s record].

5) Examining the monetary content between the Defendant and Nonindicted Party 1, Nonindicted Party 1 may know the fact that Nonindicted Party 1 called the Defendant at around 17:28, immediately before the instant restaurant on the day of the instant case. In addition, according to Nonindicted Party 11’s statement (Evidence No. 79 of the Evidence Record) at the election commission, Nonindicted Party 1 said that “I have come to go to the surrounding commercial building because I would have come to go to go to the front place because I would go to go to the front place.” As seen earlier, Nonindicted Party 1’s uniforms for election campaign and collected points between the restaurant, Nonindicted Party 1 consulted with the Defendant in advance to introduce himself to the participants of the instant restaurant.

6) While Nonindicted 16 considered that Nonindicted 16’s act was approved, the Defendant released KRW 1 million on the day of the instant case, and Nonindicted 1 took personnel affairs to the participants at the instant restaurant twice, and calculated all the meals in cash (Evidence No. 21 of the Record). Furthermore, Nonindicted 9 attempted to take the instant restaurant first to calculate part of the meals while taking the instant restaurant, and Nonindicted 11 did not calculate it. In addition, after being examined by the Election Commission, Nonindicted 11 did not calculate it. In addition, when Nonindicted 1’s statement of the Election Commission (Evidence No. 162 of the Evidence No. 162 of the Record), it appears that the Defendant, from the beginning, considered that “The Defendant was bread with the money inside the instant restaurant for internal friendship, she was boomed with the money for internal friendship.”

C. Furthermore, considering the following circumstances: (a) Article 254 of the Public Official Election Act prohibiting a prior election does not stipulate the existence of a constituency as an element, unlike Articles 113 and 115 of the same Act prohibiting a contribution act; (b) Article 254 of the same Act provides that an election is held fairly in accordance with the free will of the people and democratic procedures; and (c) the legislative intent of the Public Official Election Act to prevent any malpractice related to an election is to ensure that a constituency is not yet determined, if the election district was to promote an election or defeat in an area anticipated to be determined, regardless of whether the list of the election district for the National Assembly member exists; (c) the Defendant made a contribution on behalf of Nonindicted 1 who intends to leave the election for the 20th National Assembly member; and (d) Nonindicted 1 appears to have not been determined as a preliminary candidate for the election district of this case at the time of the election district of this case, in view of the fact that the election district of this case was newly established before the election district of the 20th National Assembly member was established.

1. Scope of punishment by law: A fine not exceeding four million won;

2. Application of the sentencing criteria;

【Determination of Punishment】

Election, violation of an election campaign period, illegal election campaign, type 1 (Violation of an election campaign period)

【Special Person under Guard】

Where a crime has been committed for an unspecified number of unspecified or many other parties or repeatedly for a considerable period;

【Recommendation Area and Scope of Recommendations】

Aggravation, 1 million won to 3 million won

3. Determination of sentence: Fines of two million won;

The Defendant carried out a prior election campaign for the election of a candidate who was friendly. Such a crime is an unfavorable sentencing factor that is likely to impair the fairness and transparency of the election and interfere with the free decision-making of the voters. The date and time of the crime in this case was when the election day was over two months, the number of participants may not be determined, and that the Defendant did not have any attitude to deny and reflect the crime.

However, the defendant has no record of punishment for election crimes, and the facts that the crime of this case is likely to have no particular influence on the result of election shall be considered as factors of sentencing in favor of him, and the punishment shall be determined as ordered in consideration of the age, occupation, character and conduct, environment, family relationship, circumstances after the crime, and all of the factors of sentencing specified in the arguments of this case, such as the circumstances after

1. Summary of the facts charged

No one may make a contribution on behalf of a candidate or a person who wishes to be a candidate, or a person who has relations with the electorates even if he is outside the constituency concerned. Nevertheless, as stated in the judgment, the Defendant made a contribution on behalf of a person who wishes to be a candidate by having 23 persons, including Nonindicted 3, who are the electorates in question, and Nonindicted 4, who are related to the electorates in question, appeal for support to the said 24 persons, including Nonindicted 1, and Nonindicted 4, who are related to the electorates in question, and by providing the said 24 persons with a total amount of 616,00 won and alcoholic beverages.

2. Claims by the defendant and defense counsel;

The act of contribution under the Public Official Election Act is premised on the existence of a valid constituency. However, the schedule of election district for National Assembly members under the attached Table 1 of Article 25(2) of the former Public Official Election Act (amended by Act No. 11485, Oct. 2, 2012; hereinafter the same shall apply) has ceased to have effect after December 31, 2015 according to the Constitutional Court’s decision. The constituency of election district for National Assembly members of the 20th National Assembly, which was enforced on April 13, 2016, became final and conclusive on March 2, 2016, and there was no constituency at the time of the instant case. Therefore, the Defendant’s act does not constitute a contribution act prohibited under the Public Official Election

3. Determination

A. Article 112(1) of the former Public Official Election Act provides that "the term "contribution" in this Act refers to an act of offering money, goods, or other property benefits, or an expression of intent or promising to offer such benefits to a person in the relevant constituency, an institution, organization, facility, or an elector, or a meeting or event of an institution, organization, facility, or an elector outside the relevant constituency, or to an institution, organization, or facility, even if outside the relevant constituency," and the above provision also applies to the amended Public Official Election Act. In addition, anyone is prohibited from making, or having another person make, a contribution to an election for a candidate (including a person who intends to become a candidate) or a political party to which he belongs (Article

B. In light of the fact that the above "election district" is expected to be decided in the future and the defendant's act was charged with a contribution act. However, in full view of the relevant provisions of the Public Official Election Act and the principle of interpretation of penal laws and regulations, it is reasonable to interpret that the "relevant election district" under Article 112 (1) of the former Public Official Election Act refers to the election district stipulated in the Table 1 of the Public Official Election Act of Article 25 (2) of the same Act.

1) Although the Public Official Election Act does not have the definition of “relevant constituency” regardless of whether it was before or after the amendment, Article 20(3) provides that “the local constituency National Assembly member and the local constituency local council member shall be elected by uniting to the constituency of the relevant National Assembly member,” and considering that the name and zone of the local constituency National Assembly member are prescribed in attached Table 1 of Article 25(2) of the former Public Official Election Act, it is interpreted that the term “relevant constituency” in the election of the local constituency National Assembly member refers to each local council member defined in attached Table 1 above.

2) Article 112(4)1 of the Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of March 12, 2004) prohibits only the act of contribution from 180 days before the election day to the election day, but thereafter the amended Public Official Election Act prohibits the act of contribution at all times. Accordingly, if it is interpreted that the election district or the election district to be established in the future is not the existing election district under the Public Official Election Act at the time when the act of contribution was made, but the election district to be established in the future at the time when the act of contribution was made, the person who wishes to be a candidate for the election of a National Assembly member is subject to the prohibition of contribution under the circumstances where it is possible to define or change the election district to be going to the future for the period of four years after the immediately preceding election, and the punishment of an act is determined by future legislation. Such interpretation cannot be allowed as contrary to the principle of no punishment without law.

3) In addition, the prosecutor asserts to the effect that it is not unreasonable to determine whether a constituency to be determined in the future constitutes a contribution act, as it is generally expected and necessary to prohibit and punish it for a fair election. However, since a constituency is determined by taking account of a large number of political and social factors, the interests between the political forces are sharply conflicting and determined, it is difficult to view that a constituency to be determined in the future can be easily expected from the people’s standpoint. Even if it is anticipated that a certain degree of change is possible or even if there is little change, the possibility of “for example,” should not be considered as the basis for punishing a constituency as long as it is unlikely to clearly determine the degree of such change. Furthermore, it is extremely difficult to predict how the constituency at the time of the act is to be determined in accordance with the Constitutional Court’s ruling of inconsistency with the Constitution

4) Meanwhile, Article 24-2(1) of the former Public Official Election Act provides that “The National Assembly shall determine the local constituency for the National Assembly member by one year before the election day.” As seen earlier, even if the term “relevant constituency” under Article 112(1) of the former Public Official Election Act refers to the local constituency for the National Assembly member demarcated pursuant to the attached Table 1 of Article 25(2) of the former Public Official Election Act, it cannot be deemed that there is a gap in punishment because it is determined whether the election district for the next election is a contribution act based on the election district for the near one year period, and it is reasonable to determine whether the election district is a contribution act based on the existing election district prior to the amendment of the election district for the National Assembly member for the remaining one year after the election day.

For this reason, the prosecutor asserts that the election district can be changed whenever an election is held, and that there is a difference to the extent that the demarcation of the constituency is delayed, but it is not limited to the election of the 20th National Assembly members. In the event that the change of the constituency is scheduled but the definition of the constituency is delayed due to conflicts of interest, etc., the act of contribution before the election district is inevitable to be made without the absence of the election district. However, as the National Assembly does not comply with the legal provisions enacted by itself, it is difficult to accept in the same way as our Constitution and the principle of interpreting penal laws by expanding the punishment gap caused by the failure to define the constituency as an unclear concept "election district to be finally determined."

5) In the event that the “election district concerned” is interpreted as an existing election district, there is a blank space in which a contribution act prohibited before the election district is not punishable if it was made between January 1, 2016 and March 2 of the same year, the period for the vacancy. However, such a problem arises at all times when the Constitutional Court decides that the law is unconstitutional, as in the instant case, and the Constitutional Court issued a provisional order while rendering a decision of inconsistency with the Constitution, and the National Assembly did not amend the law within that period.

In addition, Article 3 of the Addenda to the Public Official Election Act amended on March 3, 2016 stipulated a transitional measure for the determination of local constituency for the National Assembly member, but it is only a provision that prevents the gap in the procedure of registration of preliminary candidates, etc., and it cannot be interpreted that a contribution act between January 1, 2016 and March 2, 2016 can be punished on the basis of the principle of no punishment without law and no punishment without law.

C. However, on October 30, 2014, the Constitutional Court decided that the list of the election district for the National Assembly members attached to Article 25(2) of the Public Official Election Act (amended by Act No. 11374, Feb. 29, 2012) does not conform with the Constitution, and that the said list of the election district for the National Assembly members continues to apply until the legislative amendment was made (the Constitutional Court en banc Decision 2012Hun-Ma190, Oct. 30, 2014; 2012Hun-Ma192, 211, 262, 325, 2013Hun-Ma781, 2014Hun-Ma53, 2014; 2014Hun-Ma53, Dec. 31, 2015). Accordingly, the National Assembly did not confirm the new list of the election district for the National Assembly members and thus, the Defendant’s act was invalid from 1316th to 2016.

4. Conclusion

Thus, since this part of the facts charged is not a crime, the defendant should be acquitted pursuant to the former part of Article 325 of the Criminal Procedure Act. However, as long as the court found the defendant guilty of a crime of violating the Public Official Election Act due to prior election campaigns in a mutually competitive relationship, it shall not be sentenced separately from the disposition

Judges Yoon Don-do (Presiding Judge)