Defendant 1 and seven others

Prosecutor

Completion iron

Attorney Lee Tae-tae et al.

Daejeon District Court Decision 2006Gohap15, 26 (Consolidated) Decided July 20, 2006

1. Of the lower judgment, the part of the ancillary facts charged regarding Defendant 8’s establishment, etc. shall be reversed.

The punishment for the crime of violation of the Election of Public Officials and the Prevention of Unlawful Election Act regarding the establishment, etc. of a dead-style association against Defendant 8 shall be determined by a fine of two million won.

Where a defendant 8 fails to pay a fine, he/she shall be confined in a workhouse for a period converted by 50,000 won into one day.

2. All remaining appeals by the prosecutor are dismissed;

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

(1) The Defendants’ act of paying the party membership fees on behalf of the party members constitutes not only the act of contribution to the party members, but also the act of paying the party membership fees in another person’s name, and thus, constitutes a violation of the Political Funds Act. The lower court determined that only the crime of violating the restriction on contribution acts under the Public Official Election Act is established

(2) The "institution, organization, organization, or facility similar thereto" under Article 89 (1) of the Public Official Election Act refers to a large number of continuous organizations with the purpose of election campaign regardless of whether it is equipped with a fixed place of installation. Thus, the (name omitted) meeting established by Defendant 1, etc. is a similar organization of the election campaign office or election campaign liaison office, but it does not correspond to this and constitutes private organizations for election campaign under Article 87 (2) of the Public Official Election Act. The court below erred in the misapprehension of legal principles.

(3) The (name omitted) conference is a private organization for election campaign organized in preparation for a nationwide local election on May 31, 2006, which was from March 2004 to December 2005, and all the process of establishing a meeting (name omitted). If Defendant 8 did not maintain a close relation with his members during the meeting from September 8, 2004 to September 8, 2004, the meeting (name omitted) cannot be formed. Thus, Defendant 8 is liable for establishing a meeting (name omitted) in collusion with Defendant 1. However, the lower court acquitted this part of the facts.

(4) Defendant 8 was aware that Defendant 1 was trying to recruit members of the (name omitted) market candidate in comparison with (name omitted) competition, and thus, Defendant 1 naturally anticipated the fact that Defendant 8 would naturally request support for the re-election of Defendant 8 in the process of recruiting party members, and Defendant 8 was obviously aware of an election campaign in collusion with Defendant 1. Thus, the lower court acquitted Defendant 8 of this part of the facts.

B. Unreasonable sentencing

The sentencing of the court below, which determined that the punishment imposed on Defendant 1 was a fine of KRW 80,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000

2. Determination

A. Violation of the Political Funds Act

(1) Summary of the facts charged

Defendant 1 collected 46 party members per (name omitted) from August 12, 2005 to the 31st day of the following month, and paid 898,000 won in lieu of their respective party members. Defendant 2 paid 120,000 won for six party members; Defendant 3 paid 10,000 won for five party members; Defendant 5 paid 16,000 won for three party members; Defendant 6 paid 80,000 won for four party members; Defendant 4 paid 92,00 won for four party members; Defendant 7 paid 40,000 won for two party members, and contributed political funds under another person’s name, respectively.

(2) recognised facts

According to the evidence duly adopted and examined by the court below, it is acknowledged that the above defendants recruited persons who support them as party members in order to enable them to become candidates for the (name omitted) market (name omitted) party (the (name omitted) party in the fourth local simultaneous elections, and paid the party membership fee instead of party members for those who did not pay the party membership fee.

(3) Determination

Article 2(5) of the Political Funds Act provides that “any person shall not contribute any political fund under the name of another person or under a false name.” This is a provision to ensure transparency in the revenues of political funds, such as party membership fees, support payments, deposits, subsidies, etc., and to prevent any malpractice related to political funds. However, in this case, the purport of the above Defendants’ act of making it difficult to understand any actual contributors by lending any other person’s name or making any contribution using any false name. However, in this case, the above Defendants are not to contribute any political fund to the (name omitted) party membership fees in the name of the unpaid party membership fees, but merely paying any party membership fees in lieu of the unpaid party membership fees. Such act is limited to a contribution act for the unpaid party membership fees and constitutes a violation of the Political Funds Act. This part of the lower court found guilty. Accordingly, this part of the Prosecutor’s conclusion is unreasonable.

B. (Name omitted) The primary charge concerning the establishment, etc. of the Association

(1) Summary of the facts charged

Defendant 1) On March 16, 204, at the time of Non-Party 1’s election (name omitted) Nonindicted Party 1: (name omitted); (1) at the time of 202 election (name omitted); (2) at the time of 2002 election; (3) at the time of 204, the name of Non-Party 1 and 7 members (name omitted); and (4) at the (name omitted) at the (name omitted) Dong 20-dong cafeteria, the name of Non-Party 1 and 1 will be omitted; and (3) the name of Non-Party 1 will be omitted; and (4) the name of Non-Party 1 will be omitted; and (5) the name of Non-Party 1 will be omitted at the time of 1’s election (name omitted); and (5) the name of Non-Party 2 will be omitted; and (5) the name of the Non-Party 1 will have been present at the time of 204 election campaign.

(2) Determination

Article 89 of the Public Official Election Act provides that "no person shall establish or install any new election promotion committee, supporters' association, research institute, counseling center or resting place, regardless of the name thereof, or any similar institution, organization, organization, or facility, on behalf of a candidate except for an election campaign office or election campaign liaison office under Article 61 (1) and (2)." Article 61 (5) provides that "an election campaign office and election campaign liaison office under paragraphs (1) and (2) shall be located in a fixed place or facility." Meanwhile, an election campaign office or election campaign liaison office under Article 61 (1) and (2) of the Public Official Election Act refers to any fixed place, regardless of the name thereof, in which election campaign or other election affairs are handled (see Supreme Court Decision 98Do3169, Mar. 9, 199).

However, in this case, there is no evidence to see that the (name omitted) conference is equipped with a fixed place facility, such as an office, and the facts charged are not premised on it. Thus, the prosecutor’s assertion on this part cannot be accepted.

C. (Sym omitted) The ancillary charge concerning the establishment, etc. of the Association

(1) Summary of the facts charged

Defendant 8 established a private organization (name omitted) for election campaign in collusion with Defendant 1.

(2) The lower court determined that Defendant 1’s establishment of a meeting (name omitted) for the election campaign aimed at the re-marketing of Defendant 8’s (name omitted), but there is insufficient evidence to acknowledge that Defendant 8 conspired with Defendant 1 to establish a meeting (name omitted) in collusion with Defendant 1. However, such determination by the lower court is difficult to accept.

(3) According to the evidence duly admitted and examined by the court below, the following circumstances are recognized.

① Defendant 1 carried out an election campaign for Defendant 8 at an election for the market (name omitted) in 2002. Defendant 8, after being elected as the market, was specially employed by Defendant 1 as a public official in charge of the viewing and health function (name omitted) around July 2002, and had Defendant 1 play a de facto role in communication with the district party office and driving duties, etc.

② Defendant 1, around March 2004, at the election of the market (name omitted) in 2002, ordered Nonindicted 1 to create a meeting by gathering persons who had engaged in election campaign for Defendant 8, and asked them to create a list of those who had engaged in election campaign at the time of election campaign. Defendant 1 also proposed that Defendant 4 and Nonindicted 2, etc., who were on the list, form a meeting.

③ Nonindicted 1 and 14 persons on the above list proposed to explain the above purport and to hold a meeting, and around March 16, 2004, at the (name omitted) restaurant located in (name omitted) Dong (name omitted), Nonindicted 1, 5, 2, 6, 4, and 4 and Defendant 3 were gathered by seven persons, including Nonindicted 1, 5, 2, 6, and 4, and Defendant 3. At this meeting, Nonindicted 1, etc. set forth a rule and discussed the opinions that it is desirable to attend a meeting of Defendant 8.

④ Defendant 8 received a report that there was a request from Defendant 1 to attend the above gathering, and around September 8, 2004, Defendant 1 attended the second meeting with Defendant 1, and decided to regularly gather the name of the meeting (name omitted) and the name of the meeting at that meeting four times a year. The Defendants stated in this second meeting at the court of the original instance that the Defendants elected the president and the general secretary at the second meeting, and Nonindicted 5 stated that he temporarily set the president and the general secretary at the first meeting at the prosecutor’s office, but the second meeting was elected at the second meeting. Defendant 8 participated in several times thereafter.

⑤ In addition to the non-indicted 7, who is the chief secretary of the secretary general of the non-indicted 8 and the defendant 1 and 8, the (name omitted), the non-indicted 8 and the non-indicted 3, the defendant 9, and the non-indicted 1, 4, and the non-indicted 5 of the (name omitted) side of the (name omitted), the non-indicted 3, the non-indicted 12, the non-indicted 6 of the (name omitted) side of the non-indicted 11, the (name omitted) side of the non-indicted 12, the non-indicted 6 of the (name omitted) side of the non-indicted 14 (name omitted) side of the non-indicted 14 (name omitted of the non-indicted 6) side of the non-indicted 15 (name omitted) side of the non-indicted 14 (name omitted) side of the non-indicted 15) side of the non-indicted 2, the non-indicted 16 side of the non-indicted 2.

6. (Name omitted) Members of the Board of Audit and Inspection, except that they engaged in election campaign for Defendant 8, did not have any special connection, and there were several meetings, but they were not aware of the names of other members other than the members they knew at the time of entry. (name omitted) Some of the members of the Board of Audit and Inspection stated that they were given the public prosecutor’s notice that they would make efforts for the re-election of Defendant 8 market. In addition, (name omitted) members of the Board of Audit and Inspection sent 191 members for each period of time (name omitted) when they publicize Defendant 8 as they need for the re-election of Defendant 8 to the neighbors. Meanwhile, there is no special reason to establish a friendship group such as Defendant 1 (name omitted) meeting in addition to Defendant 8’s election purpose.

(4) In a criminal trial, the conviction should be based on evidence with probative value sufficient for a judge to have a reasonable doubt that the facts charged are true, and if there is no evidence to form a conviction, the defendant's interest should be determined by the profits of the defendant even if there is a doubt that the defendant is guilty. However, such conviction should not be necessarily formed by direct evidence, but can be formed by indirect evidence unless it violates the rules of experience and logic. Even if indirect evidence does not have full probative value as to the facts of crime, if it is determined that there is a comprehensive probative value that can not be established by the whole evidence alone in a case where indirect evidence is considered comprehensively (see Supreme Court Decision 2001Do4392, Nov. 27, 2001). In particular, in a case where a crime is committed closely between the conspiracys, such as a conspiracy of a crime, it should be inferred by taking account of indirect evidence unless the confessions make a confession.

However, Defendant 1, who was specially employed as a public official while conducting an election campaign for Defendant 8 and was virtually employed as a public official by Defendant 8, is difficult to find reasons to create a friendship gathering by gathering persons who carried out an election campaign solely for Defendant 8. Since the (name omitted) meeting was a meeting of those who carried out an election campaign for Defendant 8 for Defendant 8, and mainly carried out activities for Defendant 8 such as recruiting members for a certain period of time for Defendant 8, Defendant 8 should be viewed as a meeting for the re-market of the market. (name omitted) At the first meeting, only seven persons who did not reach the majority of those who participated in the election campaign and want to participate in that meeting, and there was a discussion to the effect that Defendant 8’s specific procedures for the establishment of a meeting, such as the name of the meeting or the election of officers, were continuously carried out at the second meeting. Defendant 8 and the chief of the office and the chief of the office of the non-indicted 7, and the latter participated in that meeting even after Defendant 8 participated.

In full view of the above circumstances, Defendant 8 can be sufficiently recognized that at least Defendant 1 consented to the formation of a meeting and the establishment of a private organization for his election campaign for the re-marketing of the market in collusion with Defendant 1. Nevertheless, the lower court determined that there was no evidence to acknowledge that Defendant 8 had established a meeting in collusion with Defendant 1, and the prosecutor’s assertion pointed out this point is with merit.

(d) Election campaign for local public officials;

(1) Summary of the facts charged

Defendant 8 conspired with Defendant 1 to conduct an election campaign by inviting 652 electors residing at (name omitted) the time when Defendant 1, a local public official, to participate in an election campaign.

(2) Determination

Article 58(1) of the Public Official Election Act defines “an act to be elected or not to be elected” as “an act to be elected or to be elected”, and stipulates that an act to prepare for a candidate (proviso 2 of the same paragraph) and ordinary political party activities (proviso 4 of the same paragraph) shall not be deemed an election campaign, and Article 144(1) of the Public Official Election Act provides that “a political party shall not recruit party members or distribute the application forms for joining the political party during the election period.” Thus, in principle, an act to recruit party members during the election period excluding the election period shall be interpreted as an ordinary political party activity and does not constitute an election campaign as a matter of principle. Therefore, Defendant 8’s act to recruit party members in preparation for the election (name omitted) candidate at the (name omitted) market, and an act to recruit party members during the election period does not constitute an election campaign under the Public Official Election Act as an ordinary political party activity.

In the instant case, Defendant 8 received a report from Defendant 1 to invite a certain period of time, and then received a report on the result of the recruitment of the fixed term party members. However, there is no evidence that Defendant 8 had Defendant 1 conduct an election campaign for the re-election of Defendant 8 at the time of recruiting the fixed term party members, or that Defendant 1 could have conducted such election campaign in collusion with Defendant 8. Accordingly, the Prosecutor’s assertion on this part cannot be accepted.

D. As to the assertion of unreasonable sentencing

(1) Defendant 1

Defendant 1 was aware of the illegality of the act of paying the party membership fee while recruiting the party members in preparation for Defendant 8’s intraparty competition, and as a local public official, Defendant 1 carried out an election campaign with the invitation of the electors to enter the political party and carried out an election campaign with the recommendation of the electors for a fair election by emphasizing only private-friendly relationship with Defendant 8, and established a private organization that is a significant obstacle to the realization of the fair election. In addition, upon the commencement of investigation due to his occurrence of his crime, Nonindicted 17 should destroy evidence. The Defendant’s act is likely to undermine the transparency and fairness of the election and cause harm to the election of the party membership fee, and should be punished strictly as it is likely to distort the public from the process of election by creating the source of support fund by means of paying the party membership fee in return for the party membership fee.

However, the Defendant did not directly provide money and valuables to the general electorates, and the purpose of committing the act of soliciting the party membership fees and paying the party membership fees was to have Defendant 8 elected as a candidate in the intraparty competition (name omitted). As a result, Defendant 8 was elected as a candidate for the (name omitted) market (name omitted) without going through the intraparty competition, and the purpose of committing this part of the crime was not achieved. Moreover, the crime of establishing a private organization was committed before the local election in 2006, which was discovered before the local election in 2006. Furthermore, the Defendant did not have any particular criminal record and was able to repent his mistake in depth. Considering the above circumstances, considering the Defendant’s age, character and conduct, environment, motive and means of the crime, method, and circumstances after the crime, etc., the sentence of the lower court cannot be deemed to be unfair because the sentence is too unfeasible.

(2) Defendant 8

The defendant is in the position of the market (name omitted) and the crime of soliciting party members in collusion with the defendant 1, who is his subordinate employee, is not less complicated in that he committed the crime of soliciting party members. However, as seen above, the purpose of soliciting party members was not achieved, and there is no significant influence on local elections in 2006. In addition, the relationship between the defendant 1, who was taking office in the (name omitted) market around 2002 and was employed as a public official by the defendant 1, who was engaged in his election campaign, and the defendant 1, who was not allowed to recommend party members in the status of a local public official, cannot be ruled out that he committed the crime of this case. In addition, considering the above circumstances, considering the defendant's age, character and behavior, environment, motive, means, method, and circumstances of the crime, etc., the sentence against the defendant in violation of the Local Public Officials Act is too unfair.

(3) Defendant 2, 3, 4, 5, 6, 7

In light of the fact that the above Defendants recruited party members upon Defendant 1’s request and paid the party membership fee on behalf of the party members, and distorted the people’s opinions regarding the election. However, in the case of some Defendants, the amount of the party membership fee paid by the Defendants is relatively small, and in the case of some Defendants, the party membership fee that was paid by the Defendants thereafter was received from the persons who failed to pay the party membership fee. Moreover, the Defendants received the party membership fee that was paid by the Defendants after the fact that there was no particular criminal record and are in depth divided into their lives. Considering these circumstances, the sentence of the lower court cannot be deemed unfair, given that the sentence imposed by the Defendants is too uneasible.

(4) The Prosecutor’s assertion on this part cannot be accepted.

3. Conclusion

Therefore, the prosecutor's appeal on the remainder of the facts charged in relation to the establishment, etc. of the (name omitted) association against Defendant 8 is dismissed as there is no ground for appeal by the prosecutor, and only the part on the ancillary facts are reversed and decided as follows.

Defendant 8 agreed to establish a private organization for the election campaign with Defendant 1. Accordingly, around March 204, Defendant 1 asked Nonindicted 1 to “the meeting of persons who had engaged in the election campaign for Defendant 8 market at the time of election for 202 (name omitted)” and suggested that the list of those who had engaged in the election campaign for Defendant 8 at the time of election for 202 (name omitted) be delivered at the time of election for 15 (name omitted); Defendant 4 and 2 attend the meeting at the time of 00 (name omitted omitted); on the other hand, around 16 (name omitted); 2) the name of the above Nonindicted 1 et al. at the time of election for 10 (name omitted); and (3) the name omitted at the time of 2) the name omitted at the time of 15 (name omitted); and (4) the name omitted at the time of 2) the name of each of the above Defendants present at 15 (name omitted; 2) the name omitted; and

1. Statements of Defendants 8 and 1 in the trial records of the third and seventh trial of the first instance;

1. Among the sixth trial records of the first instance court, some of the statements of the witness Nonindicted 5 and Nonindicted 1 in the nine trial records are written.

1. Some statements made by the prosecution concerning the defendants 8, 1, 3, and 4 in each protocol of suspect examination of the prosecution;

1. Each statement in the prosecutor’s statement concerning Nonindicted 13, 3, 1, 5, 7, 4, 14, 11, 12, 8, 2, 6, and 10

1. Relevant Article of the Act and the choice of punishment for the crime;

Articles 255(1)11 and 87(2) of the former Public Official Election and Prevention of Election Illegal Act (amended by Act No. 7681 of Aug. 4, 2005) (elective Selection of Fines)

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

The Public Official Election Act strictly prohibits the establishment of a private organization and the conduct of election campaign by using it, and the establishment of a private organization is bound to take place in the establishment of a public election campaign. Although Defendant 8 was elected at the (name omitted) election campaign conducted after the instant election, the circumstances leading up to the illegal election in addition to the recruitment of party members through the members of the (name omitted) association were not revealed, Defendant 8 was a major criminal act that created such private organization for the election campaign. However, Defendant 8 did not recognize that Defendant 1, who is a subordinate employee, was all responsible for the error. The punishment for the violation of the Public Official Election Act was set at KRW 2 million in consideration of the various circumstances that are the conditions for sentencing.

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

Judges Kang Il-won (Presiding Judge)