Do 2017 Do 10724 A. Violation of Public Official Election Act

(b) Act on Promotion of Use of Information and Communications Networks, Protection of Information, etc.;

Violation (Defamation of Honor)

(c) Damaging one example in publications;

D. Violation of the Political Funds Act

1. (a). (c) A

2. (a) d. B

3. A. C

4. (a) D. D

5. (a) E;

6. (a) d. F

7.(a)(d) G.

8. A. D. H

9. (a) d. I

10.(a) J

11. (a) K

12. A. L.

Defendant A, B, C, D, F, G, H

I and Prosecutor (as to Defendant)

Attorney M in charge of legal affairs (Attorney N, O) (Defendant B, C, D, E, F, G, H, I);

J, K For purposes of K

Gwangju High Court Decision 2017No125 decided June 22, 2017

June 19, 2018

all appeals shall be dismissed.

The grounds of appeal are determined.

1. As to Defendant A’s grounds of appeal

On September 21, 2015, the lower court determined that: (a) Defendant A’s 20th election of the National Assembly member of the Republic of Korea was prohibited; (b) published an article on Q Q’s Internet homepage around September 21, 2015, and Q’s newspaper around September 22, 2015; and (c) distributed Q’s newspaper on which the said article was published; and (d) rejected the allegation of the grounds for appeal by the said Defendant.

Examining the reasoning of the original judgment in light of the relevant legal principles and evidence duly adopted in the judgment of the court below, there is no error in the misapprehension of the legal principles as to the crime of publishing false facts under the Public Official Election Act, or the purpose of preventing the winning of the election, by violating the logical and empirical rules, as alleged in the grounds of appeal.

2. As to the grounds of appeal by Defendant B, C, D, F, G, H. I

A. Political funds prohibited under Article 45(1) of the former Political Funds Act (amended by Act No. 14074, Mar. 3, 2016; hereinafter the same) refer to all money, etc. provided to a person who engages in political activities for the purpose of carrying out political activities. Here, political activities refer to the activities of exercising a strike or power surrounding the acquisition and maintenance of power.

In addition, a person who has contributed or received political funds under Article 45(1) of the former Political Funds Act and a person who has contributed or received them are in the so-called necessary co-offenders relationship. Such co-offenders relationship is premised on the premise that the actors are committing an act in fluence with each other. If each of the acts constitutes a constituent element of a crime, it is only subject to punishment, but does not necessarily have to be committed against all of the co-offenders. Even if a crime committed by a person who has contributed political funds is not established, if a person who has contributed to political funds receives political funds with the intent to receive political funds by means not stipulated in the Political Funds Act (see Supreme Court Decision 2017Do3449, Nov. 14, 2017, etc.).

B. For the following reasons, the lower court determined that Defendant B, from August 13, 2015 to September 21, 2015, Defendant C, etc., transferred KRW 7 million in total to Defendant C, D, F, H, and I deposited KRW 3,90,000,00 in the accounts for the instant policy seminars from Defendant C, etc., and that Defendant C, C, F, H, and I donated or donated political funds to Defendant B, which were not provided for in each political law, for the purpose of raising the public prosecution against the violation of each political law, and sentenced Defendant B, who was not guilty, to be convicted of Defendant B’s election campaign for the purpose of improving the 2nd election campaign of the Republic of Korea and the 2nd election district of the National Assembly member of the Republic of Korea from around December 202 to around December 12, 2011.

C. In addition to the reasoning of the original judgment, comprehensively considering the following circumstances after being informed by the evidence duly adopted by the lower court’s judgment, the amount deposited in the instant forum membership fee account in the name of the expense for holding the instant policy seminars is deemed to have been substantially reverted to Defendant B. In other words, ① only the extremely small number of members among the instant forum members deposit money in the name of the expense for holding the instant policy seminars, and the said deposited money is deemed to have been used only as the expense for holding the said policy seminars without mixing it with other membership fees in the instant forum membership fee account. ② In light of the fact that even if the members are not members of the instant forum, it is difficult to view that only Defendant B deposited money in the form of the instant forum membership fee for holding the instant policy seminars was reverted to the instant account.

D. Therefore, although some of the reasoning of the court below is insufficient, the above conclusion of the court below is acceptable. It violates the legal principles of logic and experience without fulfilling all necessary deliberation, such as the argument of the grounds of appeal, and thereby deviating from the limitation of the free evaluation of evidence, or receiving political funds, political funds, and political funds under Article 45 (1) of the former Political Funds Act, additional collection under Article 45 (3) of the same Act, establishment of necessary co-offender relations, and the recruitment of joint principals, and judgment of inconsistency or inconsistency with the reasoning.

No error, such as deprivation of duty, shall be made.

3. As to the grounds of appeal by the public prosecutor

A. The part on the establishment of the forum in this case, which is a private organization for the remaining defendants except the defendants A and L, and the election campaign in the name of the organization and the prior election campaign using the mountain conference belonging thereto, and the part on the election campaign in the name of the remaining defendants except the defendants L, through the policy seminars in this case and the prior election campaign in this case

The lower court, citing the following reasons of the first instance judgment, maintained the judgment of the first instance, which acquitted Defendant on the charge of violation of the Public Official Election Act in this part arising from the establishment of the forum in this case and its activities, as it is deemed insufficient to prove the lack of evidence, and rejected the Defendant’s assertion on the grounds of appeal disputing this. In other words, ① the aforementioned Defendant’s activities conducted through the forum in this case before approximately 1 year and 6 months from the 20th election day of the National Assembly member, was conducted from around 1 year and 6 months before the 20th election day, and the Defendant’s activities that led to the 20th election day of the National Assembly member in this case did not appear to have been predicted. ② In the process of the Defendant’s activities, it is difficult to view that Defendant B’s activities were conducted for the purpose of the election of the National Assembly member in this case, and that Defendant B’s activities were not for the purpose of the election of the National Assembly member in this case, and that Defendant B’s activities were not for the purpose of the election of this case.

Examining the reasoning of the original judgment in light of the relevant legal principles and records in the judgment of the first instance, the lower court did not err by violating the logical and empirical rules, as otherwise alleged in the grounds of appeal, thereby exceeding the bounds of the attention of free evaluation of evidence or by misapprehending the legal principles on election campaign, etc.

B. On June 2, 2015, the part on the prior election campaign by Defendant K and L, other than Defendant K and L, to hold a meeting for opposing the transfer of telegrams.

citing the following reasons of the judgment of the court of first instance, the court below maintained the judgment of the court of first instance which found it difficult to see that it was proven without any doubt as to the facts charged in violation of the Public Official Election Act, and rejected the allegation of the grounds for appeal by the public prosecutor disputing it. In other words, on June 2, 2015, the meeting against the transfer of poles was held in order to inform the residents of reasonable suspicions about the transfer of preference in front of the building of the P Assembly member, and it appears that it is within the scope of the freedom of expression of the R military citizen organization. ② Even if such an act may affect the P candidate as a result, it cannot be concluded that it is an act to promote the P's abortion.

Examining the reasoning of the original judgment in light of the relevant legal principles and records in the judgment of the first instance, the lower court did not err by violating the logical and empirical rules, as otherwise alleged in the grounds of appeal, thereby exceeding the bounds of the attention of free evaluation of evidence or by misapprehending the legal principles on election campaign, etc.

C. Part on Defendant B’s prior election campaign by visiting the military event site

citing the reasoning of the judgment of the court of first instance, the court below maintained the judgment of the court of first instance that found the facts charged against the violation of the Public Official Election Act as not guilty, on the ground that the act of dividing the participants and the persons who participated in each event of this case by Defendant B was merely an ordinary social activity or political activity of a politician, and did not constitute an advance election campaign, and rejected the Prosecutor’s appeal on the grounds of appeal disputing this part.

Examining the reasoning of the original judgment in light of the relevant legal principles and records in the judgment of the first instance, the lower court did not err by violating the logical and empirical rules, as otherwise alleged in the grounds of appeal, thereby exceeding the bounds of the attention of free evaluation of evidence or by misapprehending the legal principles on election campaign, etc.

D. The part on Defendant B’s publication of false facts

The court below maintained the judgment of the court of first instance which judged not guilty on the facts charged against the violation of the Public Official Election Act on the ground that it is difficult to view that the evidence submitted by the prosecutor alone offered to Defendant B for the crime of publishing false facts by Defendant A, without any reasonable doubt, and rejected the Prosecutor’s allegation of the grounds for appeal against this part of the judgment.

Examining the reasoning of the original judgment in light of the relevant legal principles and records in the judgment of the first instance, the lower court did not err by violating the logical and empirical rules, such as the allegation of the grounds of appeal, thereby exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal principles on public offering, etc. in relation to accomplices.

E. The part on the purchase for illegal use, such as publication of false facts of Defendant L and newspapers

The court below maintained the judgment of the court of first instance that acquitted Defendant L on the ground that it is difficult to view that the facts charged against the violation of each public official election law by each part of this case that Defendant L conspired to commit the crime of publishing false facts, and provided Defendant A with money, valuables, etc. for the election campaign were proven without any reasonable doubt, and rejected the Prosecutor’s appeal on this ground.

Examining the reasoning of the original judgment in light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the purpose of the election campaign under Article 97(1) of the Public Official Election Act by violating the logical and empirical rules, as otherwise alleged in the grounds of appeal.

F. The guilty part

The Prosecutor appealed against the entire judgment of the original court, but there is no statement in the petition of appeal or the reasoning of appeal as to the guilty portion.

4. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jung-hwa

Justices Park Sang-ok

Chief Justice Lee Ki-taik