(영문) 대전지방법원 2019.5.2.선고 2018고합460 판결

beta

본 영문본은 리걸엔진의 AI 번역 엔진으로 번역되었습니다. 수정이 필요한 부분이 있는 경우 피드백 부탁드립니다.

Cases

Defendant

Prosecutor

Defense Counsel

Imposition of Judgment

텍스트 조절

글꼴

크기(pt)

굵기

줄 간격

자간(%)

무죄집행유예

(영문) 대전지방법원 2019.5.2.선고 2018고합460 판결

공직선거법위반

Cases

2018Gohap460 Violation of the Public Official Election Act

Defendant

1. A;

A person shall be appointed.

Prosecutor

Song-gu (Public Prosecution) and Promotion (Public Trial)

Defense Counsel

Attorney Lee Jae-soo (for Defendant A)

Law Firm New Day (for Defendant B)

Attorney Lee Dong-ju

Law Firm Bernero (for Defendant B)

[Defendant-Appellee]

Attorney Cho Jae-chul (for Defendant C)

Attorney Park Jong-soo (Korean National Assembly for Defendant D)

Imposition of Judgment

May 2, 2019

Text

Defendant A’s imprisonment of one and half years, Defendant B’s imprisonment of one year, Defendant C’s imprisonment of six months, and Defendant C

D Each person shall be punished by a fine of KRW 1, 500, 000.

Defendant D’s failure to pay the above fine, the period of 100,000 won converted into one day; and

shall be confined in a workhouse.

However, with respect to Defendant C, the execution of the above sentence shall be suspended for two years from the date this judgment becomes final and conclusive.

20,007,040 won from Defendant A, 19,492,960 won from Defendant A, and Defendant D

From 1, 900, 000 won shall be collected respectively.

The provisional payment of the amount equivalent to each of the above additional charges to Defendant A and C, and the above fine and additional charges to Defendant D

The provisional payment of the equivalent amount shall be ordered respectively.

Of the facts charged in the instant case against Defendant B, public office due to demand for money or valuables related to election campaign against Party B

The charge of violating the Election Act is not guilty.

The summary of the judgment of not guilty on Defendant B is publicly announced.

Reasons

Criminal facts

Defendant B served as a member of the FH Council and a member of the Assembly, and during the 7th local election, Defendant B participated in the election campaign, such as receiving a report from A on the overall election campaign of the FH National Assembly candidate E, which overlaps with the election campaign at the local constituency (F G constituency) in which he left the local constituency. Defendant A took overall control of the election campaign of C and E from February 2, 2018 to April 30, 2018. Defendant C was elected by going to the election of a member of the FH, and Defendant D was elected by going to the election of a member of the National Assembly. Defendant D promoted from March 12, 2018 to April 30, 2018 through the election campaign office of the FH National Assembly and E, etc. Defendant D’s election campaign.

Except for cases where allowances, actual expenses, and other benefits are provided as prescribed by the Public Official Election Act, no one shall provide or be provided with gold, goods, or other benefits in connection with an election campaign regardless of the pretext such as allowances, actual expenses, or compensation for volunteer service, etc., and the candidate shall not be allowed to make a contribution to any person in the relevant constituency or any person who is related with the electorate, and no one shall solicit any person to make a contribution to the candidate.

1. Joint criminal conduct between Defendant B and Defendant A

On January 2, 2018, Defendants were able to take overall control of C’s election campaign and receive money in return. Defendant B introduced Defendant A as an election campaign expert at around February 2, 2018, and subsequently, Defendant B added KRW 50,000 to the election expenses that he/she is able to use officially with Defendant A and C, while carrying out meals with Defendant A and C on March 2, 2018, as well as the election expenses that he/she is able to use officially. Defendant B prepared for the next name line, and offered the end to A. D. The horses of Defendant B.

Defendant B, at the first election campaign office of FH on April 12, 2018, told Defendant A to the Defendant at the Defendant’s election campaign office of FH, and received 50 million won or more, and Defendant A, at the first election campaign office of FH on April 2018, demanded that Defendant C prepare her her son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s her son’s son’s son’s son’s son’s son’s son’s son

As a result, the Defendants conspired to call for KRW 50 million to C in connection with an election campaign and received KRW 20 million from this.

2. Defendant A

(a) Demand for money or valuables to E;

On March 10, 2018, the Defendant introduced E from B at the election campaign office of FH on March 10, 2018, and tried to control E’s election campaign and received money in return.

On April 11, 2018, the Defendant, at the K apartment parking lot located in FH on April 11, 2018, proposed KRW 100,000,000 to E, who was flickly punished by literature, to the next week. However, E rejected this.

After that, on April 16, 2018, the Defendant expressed the details of the expenses used by B at the 6th local election at the coffee shop in the above election campaign office located in FH, and demanded E to pay in advance any money that may be spent on credit or any money that would be compensated for later time, with the indication that B would have been spent on credit at the 6th local election at the above election campaign office, and requested E to pay in advance the amount of KRW 100 million. After that, the Defendant would make a conclusion by telephone. The Defendant demanded E to pay in money by April 23, 2018.

Accordingly, the defendant demanded KRW 100 million to the election campaign.

(b) Acceptance from C of benefits related to election campaign;

On March 3, 2018, the Defendant: (a) taken a physical card linked to the account in the name of L, 9.5 million won deposited at FH at this election campaign office; (b) additionally received KRW 10 million from C on April 18, 2018; (c) received KRW 9.5 million in total from C; and (d) used the said money as personnel expenses for himself/herself, personnel expenses for election campaign workers D, meal expenses, office operating expenses, etc.

As a result, the Defendant received benefits equivalent to KRW 10,500,000 from C in relation to election campaign.

On April 13, 2018, the Defendant withdrawn money from the account linked to the said card with one e-mail card given by the Nonghyup located in FH M, and paid KRW 1.2 million to D who had attempted to engage in an election campaign in the election affairs lawsuit in FH as personnel expenses, and paid KRW 700,000 to D in the coffee shop where the name in FH M is unknown on April 30, 2018.

Accordingly, the defendant provided D with KRW 1.9 million in relation to the election campaign.

(d) Solicitation for contribution activities related to gold-related funds;

On April 19, 2018, the Defendant came to know that there was an injury in the trial of the Chairman of the Red Cross branch of the Red Cross, which was located in the election district during this cover, and came to know that there was an injury of N, C would pay money under the name of B at the hospital funeral hall.

As a result, the defendant recommended C to become a candidate for the P Council member election to make an act of contribution to B, a electorate.

3. Defendant’s objection

(a) Offering money or goods related to the election campaign to B and A;

As described in paragraph (1) above, the Defendant received money from B and A in connection with election campaign, and around April 12, 2018, the Defendant provided KRW 20 million in cash to A before A’s house located in FH, which was around April 12, 2018.

Accordingly, the defendant provided B and A with KRW 20 million in connection with the election campaign.

(b) Offering A benefits related to election campaign;

On March 3, 2018, the Defendant listened to the speech that the Defendant would request for expenses incurred in election campaign B and A to the borrowed account, and deposited 10 million won in the said account in addition, around April 18, 2018, in connection with the deposit of KRW 9.5 million at the one’s election campaign office located in FH with D’s account deposited in FH.

As a result, the defendant provided A with a total of KRW 10,500,000 in relation to the election campaign.

As described in paragraph (d) above, the Defendant received the note that he would pay the gold money under the name B from A, and on April 19, 2018, the Defendant sent KRW 1,50,000 to E as the funeral hall of a hospital on April 19, 2018, and made the envelope “B, C, and E” and paid the gold money to N who is a resident and the electorate, stating three names.

Accordingly, the Defendant provided N, B, and E, the electorate, with cash amounting to KRW 50,00,00,000.

4. Defendant D

The Defendant received KRW 1.2 million in terms of personnel expenses from A at the election campaign office located in FH around April 13, 2018 while attempting to engage in an election campaign from around March 12, 2018 to April 30, 2018, and received KRW 700,000 in a coffee shop where the name in FH is unknown on April 30, 2018.

As a result, the Defendant received KRW 1.9 million from A in relation to the election campaign.

Summary of Evidence

1. Each legal statement of Defendant C and D

1. Defendant A’s partial statement

1. Legal statement of witness E;

1. Statement to E by each prosecutor's office;

1. The examination record of the suspect by the prosecution against Defendant C;

1. Each reply of Defendant A, C, E, and D

1. A written accusation;

1. A copy of each page bulletin posted on the Kakakao Stockholm, a copy of the content of the Kakao Stockholm conversation, BKaok, and all Kakao Stockholm, etc.;

자료 , 휴대폰 스크린샷 , 입출금 내역조회 , 각 녹취서 [ 피고인 B에 대하여 일부 증거

Each recording book with no capacity (except for Nos. 127, 129, 218 of the evidence list), C, E, B election campaign manager

Data, such as a report on appointment, and data on the calculation of election funds (lists)

1. Inquiry into the current status of interview with prisoners, preparation and reporting of each recording book, each investigation report (Evidence List 127, 129, 143);

144. Each voice file CD attachment against 218.2

Application of Statutes

1. Article 1 of the Criminal Act and the choice of punishment;

A. Defendant A: Article 230(3), 230(1)4, and 135(3) of the Public Official Election Act; Article 30 of the Criminal Act

section 230(3) and 1 of the Public Official Election Act (the demand for money or valuables related to the election campaign under Paragraph (1) of the holding

No. 4, Article 135(3) (the point of a demand for money or goods related to an election campaign of No. 2 of the ruling), public offering

Articles 230(1)7, 230(1)4, 135(3), and 30 of the Criminal Act

section 230(1)7 and 4 of the Public Official Election Act;

Article 135(3) (the point of giving and receiving benefits related to the election campaign in Paragraph 2(b) of the Judgment) and the Public Official Election Act

230(1)4, Article 135(3) (the point of providing money or goods related to election campaign), an election for public office

Articles 257 (2), 113 (2) and (1) of the Act. Article 257 (Recommendation of Contribution Act to the electorates)

(2) Each of the following subparagraphs:

B. Defendant B: Article 230(3) and (1)4 of the Public Official Election Act, Article 135(3) and Article 30 of the Criminal Act

section 230(1)7 of the Public Official Election Act (the fact of demanding money or valuables related to the election campaign under Paragraph (1) of the ruling),

Sub-paragraphs 4 and 4, Article 135(3) of the Criminal Act, Article 30 of the Criminal Act. Article 30 (Acceptance of Money and Valuables Related to Election Campaign in Judgment)

(2) Each of the following subparagraphs:

Article 257(1)1 of the Public Official Election Act, Articles 113(1)1 of the Public Official Election Act

(the occupation of contribution act with respect to electorates) and the selection of each imprisonment;

(d) Defendant D: Article 230(1)7 and 4 of the Public Official Election Act, Article 135(3) of the Public Official Election Act, Article 135(3);

(a) Defendant A: the former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act (the preceding part of Article 37, Article 38(1)2, and Article 50 of the Criminal

The penalty for concurrent crimes prescribed in the crime of violation of the Public Official Election Act No. 2 of the judgment hotly)

(b) Defendant B: Money and other valuables under the former part of Article 37, Article 38 (1) 2, and Article 50 (Money and Valuables Punishment heavier than Punishment)

Punishment for concurrent crimes in violation of the Public Official Election Act due to demand)

(c) Defendant C: the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act. Article 50 (Concurrent Punishment)

The penalty provided for in the crime of violation of the Public Official Election Act No. 3 (A) of the significant judgment shall be the weight of concurrent crimes

1. Necessity;

Defendant D: Articles 70(1) and 69(2) of the Criminal Act

1. Suspension of execution;

Defendant C: Article 62(1) of the Criminal Act

1. Additional collection:

Defendant A, C, and D: each proviso to Article 236 of the Public Official Election Act

1. Order of provisional payment;

Defendant A, C, and D: Article 334(1) of the Criminal Procedure Act

Judgment on the defendants' and defense counsel's arguments

1. Determination as to Defendant A, C, and their defense counsel’s assertion

A. Summary of the defendant C and his defense counsel

In view of the violation of the Public Official Election Act due to the issuance of the check card in the name L L in Article 3-B, the sum of KRW 1,9.5 million was deposited in the bank account linked to the Defendant’s above e-mail card, among which the money actually used by Defendant A was KRW 12,807,040, and the remaining amount was returned. Thus, the profits offered to Defendant A are KRW 12,807,040,040.

B. Summary of the defendant A and his defense counsel

From the above Postal Card Account, the actual profits earned by Defendant A out of KRW 12,807, and KRW 040 shall be limited to KRW 8 million that was withdrawn under the pretext of personnel expenses, and the remainder was used for or returned to Defendant C’s above election campaign expenses. Accordingly, the profits that Defendant A received from Defendant C are KRW 8 million.

C. Determination

1) In light of the following facts acknowledged by the evidence duly adopted and investigated by this court, it shall be deemed that Defendant A received a bank account in which KRW 9.5 million was deposited from Defendant C, and Defendant A received an additional deposit of KRW 10 million, and Defendant A acquired the right to dispose of KRW 10,500,000,000, and each part of this case committed a violation of the Public Official Election Act.

Therefore, even if Defendant A returned the above physical card containing some money without using the above KRW 10,500,000,000, to Defendant C, this is a situation after the crime was completed, so it cannot be deducted from the profits that Defendant A provided the amount that Defendant A did not actually use, such as the Defendants’ assertion.

A) Defendant A received the above e-mail card from the Defendant and received the password, and then settled the e-mail freely by using the above e-mail card and withdrawn the e-mail from the bank account.

B) Defendant A did not obtain a prior confirmation from Defendant C with respect to the use of the above physical card, and even did not verify the use of the said physical card even after Defendant C received the said physical card from Defendant A.

C) As the balance is insufficient in using the above physical card, Defendant A called Defendant C to additionally deposit the amount of KRW 10 million. Defendant C paid KRW 10 million to Defendant C without asking the Defendant A about the purpose of use, the reason why the amount of KRW 10 million was calculated, and the previous deposit amount of KRW 9.5 million.

D) Defendant C did not specifically designate the purpose of the money deposited in the said account from the prosecution, and stated to the effect that Defendant A would be aware of and used for the purpose of using the money deposited in the said account. Defendant C stated to the effect that Defendant A will be entrusted with the right to dispose of the deposited money.

2) In addition, except where allowances, actual expenses, and other benefits are provided under the Public Official Election Act, no person may provide or receive money, valuables, or other benefits in connection with the election campaign (Articles 135(3), 230(1)4, and 7 of the Public Official Election Act), so long as the act of offering KRW 1,95 million using a borrowed account does not constitute an act of offering allowances, actual expenses, or other benefits under the Public Official Election Act, even though Defendant A actually used some of the above KRW 1,95 million for the election campaign for KRW 1,9.5 million, it does not affect the establishment of the crime of violating the Public Official Election Act.

3) Accordingly, Defendant A, C, and their defense counsel do not accept their arguments.

2. Determination as to Defendant B and the defense counsel’s assertion

A. Summary of the argument

1) The first head of the facts charged in the instant case states that “the person involved in an election campaign, such as ordering the Defendant to report the entire election campaign of E and C in accordance with A,” which is not a studio. Therefore, this is merely an expression that leads to a wrong prejudice on the side of the prosecution without objective evidence, and thus, it is contrary to the principle of an indictment only.

2) The Defendant did not conspired with A to commit an offense. In addition to election expenses officially usable to C, the Defendant did not call that KRW 50 million should be prepared, and the Defendant did not instruct A to receive KRW 50,000,000,000,000,000,000,000,000 was not known. The Defendant did not know that A received KRW 20,000 from C.

B. Judgment on the violation of the principle of an indictment only

1) The principle of an indictment only shall, in principle, be placed on the bill of indictment when a public prosecutor institutes a public prosecution, and it shall not be attached or quoted any documents or other things that may cause a court’s prejudice on the case (Article 118(2) of the Regulation on Criminal Procedure). The so-called “Prohibition against entry of other facts” is included in the contents of the principle of an indictment only as “Prohibition against entry of other facts.”

The issue of violation of the principle of an indictment only shall be specifically determined in the relevant case based on the criteria for the contents of documents and other articles attached or quoted in the indictment, and whether the facts recorded in the indictment, other than those required by law, may hinder a judge or juror from understanding the substance of the crime (see Supreme Court en banc Decision 2009Do7436, Oct. 22, 2009).

2) In light of the above legal principles, whether the standard of violation of the principle of an indictment only may hinder the judge from understanding the substance of the crime by causing the judge’s prejudice, or whether the content as stated in the facts charged is not true. Therefore, even if the defendant and the defense counsel’s assertion is not the content stated in the prosecutor’s office, but there is no objective evidence as to the content thereof. Even if the facts charged against the defendant B can be one of the reasons for not guilty, such circumstance alone cannot be viewed as a statement that may cause a court’s prejudice.

3) Furthermore, the elements of the crime of violating the Public Official Election Act do not go through the Public Official Election Act to receive money, valuables, or other benefits in relation to the election campaign, or to demand the provision thereof. The summary of the charge against Defendant B is that Defendant B and C demanded money in connection with the election campaign in collusion with Defendant A, and received money from Defendant B. Therefore, in order to clarify whether Defendant B and Defendant A are recruited, the relationship between Defendant B and Defendant A needs to be expressed to a certain extent.

4) Ultimately, this part of the indictment cannot be accepted by the Defendant and the defense counsel, because it is difficult to view that the above written contents of the indictment in this case make a judge open to prejudice the substance of the crime, and it is difficult to view that the judge has a trouble in understanding the substance of the crime.

C. Determination on whether the defendant was involved in the crime

Comprehensively taking account of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by this court, the defendant and the defense counsel do not accept this part of the claim, as stated in Paragraph 1 of the judgment below, since it is determined that the defendant conspired with A to demand KRW 50 million in connection with an election campaign, and received KRW 20 million from C.

1) A made a statement from an investigative agency to this court to that of “A” to the effect that “C was receiving KRW 50 million.” From the investigative agency to this court, C also made a statement to the purport that “C,” the election expenses from the Defendant were KRW 40 million to KRW 50 million, and the election expenses were also KRW 40 million to KRW 50 million, and the election expenses were also included in KRW 50 million to KRW 50 million. A made a statement to the purport that “A was 20 million among them.”

2) In the same way as C, E requested money from A understood to the effect that it should deposit money in the official election expenses account, and it would have rejected the demand as C reconcing to the effect that A would pay a separate amount of money. If the Defendant only talks about the official election expenses, such as the Defendant’s assertion, C appears to have shown a similar reaction. However, C did not appear to have expressed an attitude to ask the user of money or deposit money in the official election expenses account.

In light of C’s attitude and the statement of this Court, it seems that there was a prior understanding between Defendant, A, and C on the above KRW 50 million.

3) When the Defendant talks that A will speak to the truth to an investigative agency, the Defendant continued to meet this, while giving 10 million won defense counsel fees, and asked A to provide 50 million won necessary for A’s business. On this, the Defendant asserted that his relationship with A was unsatisfying, and that he was prepared to bring about as a secretary for Cheongdae-man at the time, and that he did not want to go to go to the old number, and that he did not want to go to go against it.

However, in light of the overall context of the above dialogue, in light of the amount that the defendant intended to provide to A, the defendant's attitude at the time of the conversation, etc., it is difficult for the defendant to easily believe the above argument, and eventually, the above amount presented by the defendant seems to be in consideration of preventing A from making a statement about the public relations with the defendant in an investigative agency.

4) On October 7, 2018, when the Defendant made a telephone conversation with A, the Defendant: (a) found that he/she will talk about the truth that he/she is about to do so; (b) requested that he/she be able to do her her her her her her her her her her her her her her her, and that A would her her her her her her her her her her her her her her her her her her her she shes about

5 ) 피고인은 구속영장 영장실질심사가 있었던 2018 . 11 . 5 . 09 : 12경 구치소로 면회 온 처 U과 동생 V에게 ' 내가 진술을 좀 바꿀게 하나 있어 . 방 ( 차석 ) 의원한테 돈을 달라 고 해서 재형이 그거 차리는 거 도와주려고 했거든 . 그거는 내가 없다고 했는데 그거를 얘기해야 될 것 같아 . 방 ( 차석 ) 의원한테 선거자금을 달라고 한 거지 . 그걸 재형이가 알 고 있어 . 조사받을 때는 부인했는데 오늘 적부심 가서 이야기를 하려고 한다고 변호사를 만나서 말씀드려 . 5 , 000만 원 받아서 재형이 주려고 했었어 . 나는 방 ( 차석 ) 의원한테 5 , 000만 원 달라고 한 것도 잊어먹고 있었거든 . 근데 2 , 000만 원을 받아놨더라고 , 내가 캠프 나오면서 다 돌려주라고 했는데 그걸 지금까지 챙기고 있었더라고 ' 라는 취지로 말 하였다 .

In front of the examination of the quality of a warrant at the time, there is no reason to make the defendant's statement to his wife and his/her mother, so the above defendant's statement is highly reliable.

6) On April 2018, A ceased to engage in the election campaign of E and C, and became aware that the Defendant was provided KRW 20 million from the Defendant, and the Defendant returned the said money to C. Accordingly, A returned the said money to C.

If A, like the Defendant’s assertion, requests and receives money from A without the knowledge of the Defendant, it seems that there is no reason to inform the Defendant of the fact. Moreover, even if the Defendant heard the fact that he received money from A, the Defendant did not ask the Defendant to tree A or receive money.

Reasons for sentencing

1. Defendant A

(a) The scope of punishment by law: Imprisonment for not less than one month but not more than ten years and not more than six months;

(b) Scope of recommended sentences according to the sentencing criteria;

1) Class 1 crime (Violation of the Public Official Election Act due to the demand for money and valuables in Paragraph 1 of the holding)

[Determination of Type] Purchase and W. [Type 2] General Purchase of Election Crimes

[Special Aggravations] Aggravations: If money or other valuables or benefits provided or received are provided or received in a large amount, the place;

In the case of the Si, the request for recommendation, or mediation:

[Recommendation and Scope of Recommendations] Special Priority Area, Imprisonment with prison labor for not less than 10 months but not more than 3 years and not more than 9 months;

2) Class 2 (Violation of the Public Official Election Act No. 2 of the holding)

[Determination of Type] Purchase and W. [Type 2] General Purchase of Election Crimes

[Special Convicts] Reductions: In the case of a promise or acceptance of an expression of intent

In the event of a large amount of money or other valuables provided or received, instructions shall be given or received;

In the case of solicitation or solicitation:

[The scope of recommendations and recommendations] Aggravation, imprisonment for not less than 10 months but not more than 2 years and not more than 6 months;

3) Class 3 crime (Violation of the Public Official Election Act due to the acceptance of money and valuables in Paragraph 1 of the holding)

[Determination of Type] Purchase and W. [Type 2] General Purchase of Election Crimes

[Special Aggravations] Aggravations: Where money or other valuables or benefits provided or received is a large amount.

[The scope of recommendations and recommendations] Aggravation, imprisonment for not less than 10 months but not more than 2 years and not more than 6 months;

4) The scope of recommendations according to the standards for handling multiple crimes (the upper limit of crime 1 + the upper limit of crime 2/2)

+ 3 Crime Limits 1/3: Imprisonment with prison labor for not less than 10 months but not more than 5 months;

The Defendant demanded money and valuables for an election campaign against the candidate first going to run in the election, received money and valuables in fact, and recommended money and valuables or benefits to the electorate, and paid personnel expenses to the unregistered election campaign workers. Each of the instant crimes is heavy in that it is an act that impairs the purpose of legislation of the Public Official Election Act prohibiting the offering of money and valuables related to the election campaign, demanding or receiving demand for money and valuables, and making contributions to the electorate, in order to ensure that the election is held fairly in accordance with the citizens’ free will and democratic procedures, and to prevent illegal election. The degree of the Defendant’s participation in the crime is excessive. The aggregate amount of money and valuables or benefits requested by the Defendant exceeds KRW 150 million,00,000,000, and the sum of money and valuables or benefits actually received by the Defendant reaches KRW 39,50,000.

However, all of the crimes of this case are recognized by the defendant, and there is no record of criminal punishment against the defendant.

Considering the above circumstances, the punishment as ordered shall be determined by comprehensively taking into account the following factors, such as the defendant's age, character and conduct, environment, motive, number and result of the crime, circumstances after the crime, etc., and various sentencing conditions in the records and arguments of this case, such as the circumstances after the crime.

2. Defendant B

(a) The scope of punishment by law: Imprisonment for not less than one month but not more than ten years and not more than six months;

(b) Scope of recommended sentences according to the sentencing criteria;

1) Class 1 crime (Violation of the Public Official Election Act due to demand for money and valuables in Paragraph 1 of the holding)

[Determination of Type] Purchase and W. [Type 2] General Purchase of Election Crimes

[Special Aggravations] Aggravations: If money or other valuables or benefits provided or received are provided or received in a large amount, the place;

In the case of the Si, the request for recommendation, or mediation:

[Recommendation and Scope of Recommendations] Special Priority Area, Imprisonment with prison labor for not less than 10 months but not more than 3 years and not more than 9 months;

2) Class 2 crime (Violation of the Public Official Election Act due to the acceptance of money and valuables in Paragraph 1 of the holding)

[Determination of Type] Purchase and W. [Type 2] General Purchase of Election Crimes

[Special Aggravations] Aggravations: Where money or other valuables or benefits provided or received is a large amount.

[The scope of recommendations and recommendations] Aggravation, imprisonment for not less than 10 months but not more than 2 years and not more than 6 months;

3) Scope of recommendations according to the standards for handling multiple crimes (the upper limit of crime 1 + the upper limit of crime 2/2)

Imprisonment for not less than 10 months but not more than 5 years;

As a member of the former Si Council, the Defendant recommended the candidate to leave the election of the Gu Council member of the local constituency in which he had managed, and then demanded money and valuables for election campaign and actually received money and valuables from the candidate who first left the election. The crime of this case is heavy in that the crime of this case is an act damaging the purpose of legislation of the Public Official Election Act that strictly prohibits the demand for money and valuables and the conduct of receiving money and valuables relating to the election campaign in order to ensure that the election is carried out fairly in accordance with the free will of the people and democratic procedures, and prevent the irregular election. Considering the status of the Defendant, the amount of money and valuables requested by the Defendant is larger than 50 million won, and the amount of money and valuables actually received by the Defendant through A is equal to 20 million won. The Defendant denied his participation in the crime of this case and did not reflect the mistake.

However, the defendant seems to have no substantial benefit from the crime of this case, and there is no record of criminal punishment against the defendant.

3. Defendant 2

(a) Scope of applicable sentences under Acts: Imprisonment for not less than one month but not more than seven years and not more than six months;

(b) Scope of recommended sentences according to the sentencing criteria;

1) Group 1 (Violation of the Public Official Election Act No. 3(A))

[Determination of Type] Purchase and W. [Type 2] General Purchase of Election Crimes

[Special Escopics] Reduction element: A passive crime by de facto pressure, etc.; the other party;

If a person complies with an affirmative demand;

Aggravations: Where money, valuables or benefits provided or received are large amount;

[Recommendation and Scope of Recommendations] Reduction Area, Imprisonment with labor for not less than one month but not more than 10 months;

2) Class 2 (Violation of the Public Official Election Act No. 3(b) of the holding)

[Determination of Type] Purchase and W. [Type 2] General Purchase of Election Crimes

[Special Escopics] Reduction element: A passive crime by de facto pressure, etc.; the other party;

If a person complies with an affirmative demand;

Aggravations: Where money, valuables or benefits provided or received are large amount;

[Recommendation and Scope of Recommendations] Reduction Area, Imprisonment with labor for not less than one month but not more than 10 months;

3) Group 3 (Violation of the Public Official Election Act No. 3(C))

[Decision of the type] Violation of the prohibition and restriction on the contribution of election crimes [No. 1]

[Special Convicted Persons] Reduction element: Where money or other valuables provided or benefits are extremely minor;

Aggravations: Crime of Candidates

[The scope of recommendations and recommendations] Basic Field, Imprisonment with labor for not less than one month, but not more than ten months;

4) The scope of recommendations according to the standards for handling multiple crimes (the upper limit of crime 1 + the upper limit of crime 2/2)

+ 1/3 of the maximum limit of crimes of Type 3: Imprisonment with prison labor for not less than one month but not more than June 10.

(c) Determination of sentence: Imprisonment with prison labor for not less than six months and two years of suspended sentence; and

The Defendant, upon going through the election of the Gu council members, offered money and valuables for election campaign campaign campaign campaign to the elector and provided a borrowed account to the elector, and made contributions to the elector. The crime of this case is heavy in that the crime of this case is an act that impairs the legislative intent of the Public Official Election Act that prohibits the demand for money and valuables related to the election campaign and the conduct of receiving money and valuables in connection with the election campaign in order to ensure that the election is carried out fairly in accordance with the free will of the people and democratic procedures, and to prevent the illegal election. In particular, there is a high possibility of criticism in that the Defendant, who is the candidate, directly committed the crime of this case, is the maximum amount of money and valuables or benefits provided by the Defendant.

However, the Defendant appears to have consistently complied with the demand for active money and valuables by a member B and a member of the former Council who recommended him/her to leave his/her election campaign in the first place of election. The Defendant was engaged in volunteer activities in a long time community, and the amount contributed to the electorate is not significant. The Defendant has no record of criminal punishment.

4. Defendant D

(a) The scope of punishment by law: Fines of not less than 50,000 won but not more than 30 million won;

(b) Scope of recommended sentences according to the sentencing criteria;

[Determination of Type] Purchase and W. [Type 2] General Purchase of Election Crimes

[Special Sentencings] Reductions: Compensation for actual expenses or consolation for election campaigns at a cost.

Where minor money, goods, etc. are provided or received;

[Recommendation and Scope of Recommendations] Reduction Area, Fines of one million to five million won

The Defendant, without being registered as an election campaign worker, received personnel expenses in connection with the election campaign. The crime of this case is an act that damages the purpose of legislation of the Public Official Election Act that severely prohibits the act of receiving money or goods in connection with the election campaign in order to ensure that the election is carried out fairly in accordance with the free will of the people and democratic procedures and prevent illegal election.

However, since the registration of election campaign workers is conducted on the candidate side, it seems difficult to hold the defendant accountable for not registering the defendant as election campaign workers only to the defendant. The influence of the result of the election on the crime of this case appears to be insignificant, and the criminal records of the defendant are criminal punishment.

(2).

The acquittal portion

1. The summary of the facts charged of the violation of the Public Official Election Act regarding Defendant B’s demand for money and valuables to Defendant B, Defendant A and Defendant A were able to take overall control of election campaign for Defendant E on March 3, 2018, and were willing to receive money in return. The Defendant at the election campaign office of Defendant C located in FH on March 10, 2018, called “A is in charge of trust and good faith of election B” and introduced “A” to E.

After that, the Defendant’s election affairs jointly used by E and C in FH on April 4, 2018.

In the lawsuit, "A was fluored with 100 million won, so I received the instructions."

A, at around April 11, 2018, at the K Apartment parking lot located in FH, on the direction of the above defendant, "E was prepared for 100 million won, in which a literature, "E, her sentence, was fluenced," but he refused to do so until the next week. He stated that "A is refusing to demand this money to the defendant." And the defendant stated to the purport that "I will accept only the amount equivalent to the cost that is ultimately preserved for that year," and ordered A to receive money from E.

After that, A is as described in paragraph (a) of Article 2 of the Criminal facts stated in the judgment from April 16, 2018 to April 23, 2018.

They demanded several money to be paid.

As a result, the Defendant conspired with A to demand KRW 100 million to E in relation to election campaign.

2. Determination

A. In light of the following facts, there is room to view that the Defendant conspired with A to demand KRW 100 million to E.

1) Although A denied this part of the first facts charged, it stated that A consistently received instructions from the Defendant and demanded KRW 100 million to E after the confession by the prosecution.

2) Before the Defendant introduces A to E, the Defendant was in a very closely-friendly relationship with A, and the Defendant issued A instructions on the election campaign of E even after introducing A to E.

3) On April 11, 2018, A demanded that E for the first time between 08:20 to 08:40,000 won. On the same day, at around 10:42 of the same day, A sent the Defendant a Kakao Stockholm message.

4) On the day or following day A demanded money to B, or on the following day A and the Defendant made multiple telephone conversationss, and A sent the said message to this effect that this would no longer participate in the election campaign, and A sent the said message to the Defendant. The Defendant sent to A a message to the effect that the Defendant would have no office in the office.

5) When the Defendant talks to the purport that A will speak to the truth to an investigative agency, the Defendant continued to meet this, while giving 10 million won defense counsel’s expenses, and offered 50 million won necessary for A’s business.

B. However, the facts charged in a criminal trial should be proven by the prosecutor, and the judge should be found guilty with evidence having probative value, which leads to the genuine conviction of the facts charged to the extent that there is no reasonable doubt. Thus, if there is no such evidence, even if there is a suspicion of guilt against the defendant, it cannot be determined with the benefit of the defendant (see Supreme Court Decision 2008Do10572, Apr. 9, 2009, etc.).

In full view of the following circumstances, it is difficult to readily conclude that the evidence submitted by the prosecutor alone was in collusion with A to require KRW 100 million to E by the victim, and it cannot be ruled out that A alone requested KRW 100 million to E.

1) Direct evidence corresponding to this part of the facts charged is only a statement of A that demanded KRW 100 million to E by receiving instructions from the Defendant. However, in light of the following circumstances, the above statement of A is difficult to believe as it is.

A) In order to acknowledge a person’s statement alone, evidence should be admissible, and there should be credibility enough to exclude a reasonable doubt. Whether such credibility exists should be determined by comprehensively taking account of the reasonableness, objective reasonableness, consistency before and after the statement itself, whether he/she is a human being, and whether he/she has an interest in the statement (see, e.g., Supreme Court Decisions 2010Do14487, Apr. 28, 201; 2013Do19866, Jun. 26, 2014). However, as a person directly demanding E to have a KRW 10 million, whether A becomes an accomplice who simply delivered the Defendant’s instructions to the Defendant, depending on whether the Defendant was involved in the Defendant’s criminal act, and whether A has an interest in leading to the criminal act.

B) Furthermore, around October 1, 2018, A denied this part of the facts charged to the effect that when being investigated by the first election commission around October 1, 2018, only the violation of the Public Official Election Act due to the solicitation of the act committed during the period, and that there was no demand for KRW 100 million to the said person. However, A appears to have been aware of the fact that C was investigated by the Election Management Commission on October 3, 2018 and delivered KRW 7 million to himself/herself, it would not be able to avoid punishment, and after that time, he/she recorded conversations with the surrounding person, including the victim, and prepared and kept files in which the end of the instant case was recorded in his/her Nowon-gu and USB, etc., and that at the prosecution on October 29, 2018, C recognized the instant facts charged and the Defendant’s demand for money and valuables was made in accordance with the direction of the Defendant.

Examining the process of a change in A’s statement, the possibility of making a statement to the effect that A is responsible for lowering the level of punishment on the premise that A was unable to be punished, cannot be ruled out.

C) The gist of the statement in A’s investigative agency and this court’s statement is that the Defendant received money in advance because he had talked about E, he demanded money from E according to his instructions, and delivered to the Defendant that he refused, and the Defendant instructed the Defendant to receive money again.

However, according to the statement of E, the Defendant appears to have no means to demand direct money other than that the official election expenses amount to KRW 50,000,000. If the above statement of A was made, the Defendant made a false statement to the effect that, although the Defendant did not have any talk about money other than the official election expenses in advance, the Defendant allowed or attempted to make a statement twice or E in advance. In light of the relationship with the Defendant at the time, as seen earlier, as seen earlier, and as seen earlier, the Defendant made a false statement to A, it is difficult for the Defendant to find reasons for the Defendant to make a false statement only with respect to this part. In this respect, the above statement of A was not unreasonable.

2) At the time when E appeared as a witness in this Court and received the first demand from A for money from April 11, 2018, E thought that he was an accomplice with A. At the time, he saw that he was the accomplice with A. At the time, he saw that he was the accomplice with A. When he demanded money or explained election expenses, he saw that he would not have caused inconvenience to himself, and that he would not have made if A demanded money on his own will. However, this statement was difficult to believe that he was guilty of this part of the prosecutorial office solely on the basis of the following:

A) On September 26, 2018, E first raised a problem concerning the instant case through articles written on Pest north, and the F-Metropolitan City H Election Commission accused the instant case to the prosecutor’s office following the investigation of the persons concerned. However, E stated to the effect that “A was not able to be aware of whether “A would demand money to a new person on the Defendant’s order” was written, and the said election commission did not present a statement to the effect that “A was an accomplice and an accomplice.” Accordingly, the said election commission filed an accusation against only A with the prosecutor.

B) On May 9, 2018, E sent the Defendant a Kakao Stockholm message to the effect that he/she would wish to gather as the chairperson of his/her election countermeasures. If, on April 11, 2018, the Defendant considered that he/she was a accomplice A from the time he/she requested money from A around April 11, 2018, he/she would have not invited the Defendant as the chairperson of his/her election countermeasures, even if he/she would have reduced to the demand of A’s money at the end of April 2018, and would not have any more campaigned with A.

C) When undergoing an investigation by the prosecution, E only made a statement to the effect that “A was unable to comply with the demand of money,” and it did not make a statement to the effect that “A was not the same as A’s intent in light of its attitude, inconvenience, and color, as in this Court, that it was not the same.

D) In this Court, E stated in its purport that “I think I would naturally be an accomplice in view of the relationship between the defendant and the accomplice, which can be known in various aspects,” which seems to be E’s thoughts or trends.

3) A around April 11, 2018: (a) around 10:42, the fact that around 10:42, the Defendant sent the Kakakao Stockholm message to the Defendant; (b) on the date A demanded money; or on the following day, A and the Defendant made several telephone conversationss.

However, in light of the fact that C and E took overall control of the election campaign, and the Defendant became the chairman of X Y preliminary candidate on March 25, 2018, he handled the election campaign, etc. at any time, according to the direction of the Defendant, and exchanged with the Defendant on the election campaign, etc., at any time after he handled the election campaign, according to the direction of the Defendant. In light of the above fact alone, it cannot be deemed that the aforementioned fact alone constitutes an collusion for the crime.

In particular, each currency content (Evidence 82-85 No. 82 of the evidence list) is merely the currency content on April 11, 2018, April 16, 2018, April 2018, April 23, 2018, April 23, 2018, April 25, 2018, or April 26, 2018, and it cannot be confirmed that the currency content of the whole period for the election campaign except each of the above days has not been submitted. Thus, as long as it cannot be compared with the currency or frequency on the day other than the above days, it is insufficient to conceal a conspiracy with the Defendant and A as to this part of the facts charged, only with the above currency content.

4) On April 23, 2018, upon sending A a message to the effect that E would no longer participate in an election campaign, and sending A a message to the effect that the Defendant who received the message from A sent the message to A would have an office. As seen earlier.

However, the above message is written only to the effect that “I will know about the election campaign without A’s help,” and it does not contain any conflict arising from A’s demand for money or election expenses. Therefore, it is difficult to deem that the Defendant sent A a message to the effect that “I would know the fact that I would like to know about the fact that I would like to know about the fact that the Defendant sent A the above message. Rather, there is sufficient room to interpret the fact that the Defendant introduced A to E and attempted to help the election campaign, and that E would have attempted to help the Defendant to help the election campaign.

5) On October 7, 2018, the Defendant, while making a telephone conversation with A around October 7, 2018, talked to the effect that A would be able to her true and true, and there was no her flish talk about E “only her flish, and her flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish flish.

6) On November 5, 2018, at around 09: 09: around December 12, 2012, the Defendant stated that the wife U and Dong V, who had met with the detention house, did not talk about E. In light of the above dialogue, the Defendant appears to have not known that the interview with the outside person was recorded. In light of the above dialogue, the Defendant: (a) the Defendant demanded money to the wife and Dong son and attempted to conceal the crime of demanding money to B; and (b) the Defendant attempted to conceal the Defendant’s criminal act of demanding money to B. Rather, it is natural to view that the Defendant only received money from the wife and Dong son.

3. Conclusion

This part of the facts charged constitutes a case where there is no proof of criminal facts, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of this part of the judgment against the defendant under Article 58 (2) of the Criminal Act is

Judges

Judges Kim Yong-chul

Judges Shin Young-young

Judges Kim So-young

Note tin

1) The prosecutor's charge of this part of the facts charged is that the defendant has a physical card of KRW 9.5 million deposited from C and additionally has a KRW 10 million deposited thereafter.

H. 1, 9.5 million won received money or valuables, but such an act is not received a "money or valuables" but received a "profit".

the election campaign, when comparing the facts constituting the crime of receiving money and the facts constituting the crime of receiving profits, money, or other benefits.

There is no difference in the basic facts that the defendant exceeded the identity of the facts charged, and the defendant also bears the charge as stated in this part of the facts charged.

Since the fact-finding is recognized, it cannot be viewed that there is any disadvantage to the defendant's defense (see Supreme Court Decision 2003Do7828, Feb. 1, 200).

Without the process of modifying the complaint, the charge was revised ex officio.

2) In the same purport as each week 1), the facts charged was revised ex officio.

참조조문