[1] Criteria for determining the subject of contribution under the Act on the Election of Public Officials and the Prevention of Election Malpractice

[2] In a case where Defendant A, who is the executive members of the Society Area Council for a Better Tomorrow and the Committee, and Defendant A, B, and Defendant A, who wishes to be a candidate for a foundation election, were delivered to electorates free of charge, the case holding that even if the event for free delivery of the solar flag was carried out at the Council level, the Defendants are the subject of a contribution act under Articles 113 and 115 of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts, and the violation of the Restriction on Contribution is established

[1] The crime of violation of the restriction on contribution under Article 257 (1) 1 of the Public Official Election and Prevention of Election Illegal Act (amended by Act No. 7681 of Aug. 4, 2005) is established only when a person has a personal relation stipulated respectively in Articles 113 (Restriction on Contribution Act by Candidates), 114 (Restriction on Contribution Act by Political Parties and their Family Members), and 115 (Restriction on Contribution by Third Parties). The act of contribution by a person who has no such personal relation is a violation of the pertinent provisions of the Public Official Election and Prevention of Election Illegal Act. However, the subject of contribution under the Public Official Election and Prevention of Election Illegal Act does not necessarily have ownership of or right to dispose of money, valuables, or property benefits subject to contribution, in addition to such personal relation, it shall be determined on the basis of whether the person can be recognized as a social norm by comprehensively taking into account the name of the provision of money, valuables, etc., details of the contribution, or the share of the act of contribution.

[2] The case holding that, in case where Defendant A, who is the executive members of the Better Tomorrow movement regional council and the committee for a Better Tomorrow movement, and Defendant B, who wishes to be a candidate for a foundation election, delivered the gale flag on which Defendant A’s name and contact address are printed with the printed CD to the electorate without compensation, even if the gratuitous delivery event at the above council level was carried out, the Defendants shall be deemed to be the subject of a contribution act under Articles 113 and 115 of the Public Official Election Act (amended by Act No. 7684 of Aug. 4, 2005), and the crime of the contribution-restricted act is established

[1] Articles 113, 115, and 257 (1) 1 of the Public Official Election Act (amended by Act No. 7681 of Aug. 4, 2005) / [2] Articles 113, 115, and 257 (1) 1 of the Public Official Election Act (amended by Act No. 7681 of Aug. 4, 2005)

Defendant 1 and one other

Prosecutor

Kim Sung-sung

Attorneys Cho Jae-chul et al.

Seoul Central District Court Decision 2005Gohap1127 Decided January 12, 2006

The judgment of the court below is reversed.

Defendant 1 shall be punished by a fine for negligence of KRW 1,500,000 and by a fine of KRW 1,000,000, respectively.

In the event that the Defendants did not pay the above fine, the Defendants shall be confined in the Labor House for the period calculated by converting the amount of KRW 50,000 per day into one day.

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

1. Summary of grounds for appeal;

The gist of the prosecutor's grounds for appeal is that the defendants' act of delivering the defendant 1's name who intends to be the candidate of Jongno-gu Seoul Metropolitan Council member and the gaphone with a ballotphone number printed with the handphone number to the electorate constitutes a violation of the former Public Official Election Act and the Prevention of Unlawful Election Act (amended by Act No. 7681 of Aug. 4, 2005, hereinafter "former Public Official Election Act"). However, the court below erred by misapprehending the facts or by misapprehending the legal principles, thereby acquitted the defendants on the primary charges of this case.

2. The primary charges of this case

On the other hand, the facts charged in this case are as follows: "Defendant 1 is the person intending to become the candidate of Jongno-gu Seoul Council member in the fourth local basic council member election, which is scheduled to be held on May 31, 2006 by the chairman of Jongno-gu Council for a Better Tomorrow Movement, and Defendant 2 is the secretary-general of the above Council, and Defendant 2 makes a free distribution of the solar clocks purchased by the Jongno-gu Council as part of the Solar Pung Pung Pung Pung Pung Pung Pung Pung Pung Pung Pung Pung Pak, which is promoted by the Council of Seoul Council for a Better Tomorrow Movement. In order to inform of Defendant 1's name, he shall be distributed a clickle (per 3,000 won per piece) on which his name is printed, and he purchased more than 800 clocks from among them, and delivered them to the electorate by collusion 500 among them."

1. Defendant 1, a person who wishes to become a candidate for a local council member, is unable to make a contribution to a person in the constituency in question, regardless of the fact that he does not

A. On May 17, 2005, in Ansan-si Loan Do, a member of the Jongno-gu Council for a Better Tomorrow Movement and a member of the Youth Service Team belonging to the Jongno-gu Council for a Better Tomorrow Movement and a contribution act is made by granting to 8 persons, including Nonindicted 1, the electorate, the electorate, an amount of KRW 24,000, a total of which is equivalent to 8,000.

B. From June 1 to March 3 of the same year, the act of contribution is performed by directly delivering to the electorate the sum of KRW 1,350,000,000 to the 4.50 households in Jongno-gu Seoul, Jongno-gu, Seoul, for the 4.50 households in Jongno-gu, Jongno-gu, Seoul and the 4.50 households in Taekdong-gu, and by keeping it in front of the house;

2. Defendant 2 cannot make a contribution on behalf of a person who wishes to be a candidate with respect to the election, notwithstanding that he is unable to do so.

As stated in paragraph (1), for Defendant 1, the person who intends to be a candidate has provided 458 mobile devices to the electorates in order to make a contribution.

3. The judgment of the court below

The court below acquitted the above facts charged on the grounds as follows.

The term "contribution" in the former Public Official Election Act means that one of the parties provides money, valuables, property benefits, etc. to the other party free of charge.

Therefore, only if the above requirements are met, it shall be deemed to be the subject of contribution under the above Act, and on the other hand, Articles 113, 114, and 115 of the above Act are divided into the subject of contribution and the requirements for the restriction on contribution according to the subject of contribution, respectively. The purport of the different provisions is to interpret that, in a case where the subject of contribution is not recognized as the subject of each contribution, and the subject of the contribution is merely the subject of the contribution, the subject of the contribution shall not be punished, even if the subject of the contribution was performed for the subject of the contribution, and that the subject of the contribution shall not be punished separately for the person who actually performed the contribution.

However, the facts acknowledged by the evidence of the Jongno-gu Seoul Metropolitan Council for a Better Tomorrow movement are as follows. Each Gu Council or Dong Council for a Better Tomorrow movement has urged each year to actively participate in the campaign for the Maternity period. Accordingly, around March 2005, Defendant 2, who is the secretary general of Jongno-gu Council, decided to carry out the campaign for a Better Tomorrow free of charge, such as resignation. Accordingly, Defendant 2, as the Jongno-gu Council's operating expenses and the Jongno-gu Council's special membership fees, as well as the post and name of Defendant 1, who is the chairman of Jongno-gu Council for a Better Tomorrow movement, as well as the post and name of Non-Party 2, requested the Jongno-gu Council for the production of the Matern Cases and Macion period in which Non-Party 2's post and name were written, and the Defendants' official election or movement for a Better Tomorrow movement of Jongno-gu Council for a Better Tomorrow life were divided into the position and name of the chairman of Jongno-gu Council for a Better Tomorrow, and the Defendants's action or movement for a Better life.

4. The judgment of this Court

(a) Persons making contributions;

The crime of violation of restriction on contribution under Article 257 (1) 1 of the former Public Official Election Act is established only when the relation relation stipulated in Article 113 (Restriction on Contribution Act by Candidates, etc.), Article 114 (Restriction on Contribution Act by Political Parties and Family Members of Candidate) and Article 115 (Restriction on Contribution Act by Third Parties) is limited. The contribution act by a person who has no relation with each of the above cases shall not be a crime of violation of the corresponding provisions of the above Act.

However, the subject of the contribution under the Public Official Election Act does not necessarily have ownership of or right to dispose of money or other property benefits subject to the contribution, in addition to such status relationship, and should be determined on the basis of whether the person can be recognized as having been in accordance with social norms by comprehensively taking into account the name of the provision of money or other valuables, the details of the public offering or the allocation of the share of the act of contribution, and then the court below's decision and the grounds for appeal by the prosecutor

B. Facts of recognition

The following facts are acknowledged according to the evidence presented in the summary of the evidence.

(1) Defendant 1 is the head of Jongno-gu Society Jongno-gu Council for a Better Tomorrow and the head of a resignation Dong-dong, and is the head of the fourth local basic council member election held on May 31, 2006, who wishes to leave the district as a candidate for the members of Jongno-gu Seoul Metropolitan Council, and Defendant 2 is the head of the Jongno-gu Council for a Better Tomorrow Movement and is in practical control over the affairs of the Council as a full-time secretary of the Council

(2) On March 206, Defendant 2 and Defendant 1 provided the opportunity for a Better Tomorrow free distribution event with Defendant 1 at the Jongno-gu Council for Better Tomorrow Movement at the level of Jongno-gu Council for a Better Tomorrow Movement, to inform Defendant 1 of the name of Defendant 1 who resides in the apartment complex located in Jongno-gu, Seoul. On March 29 of the same month, around 2005, the Jongno-gu Council for a Better Tomorrow Movement reported the development of the patriotism campaign at the regular meeting of 2005. On April 20, 2006, Defendant 2 purchased 3,00 won per each of the 5,00 chairperson of Jongno-gu Seoul Metropolitan Council for a Better Tomorrow Movement; on the other hand, Defendant 1 and the Secretariat number 2 of Jongno-gu Council for a Better Tomorrow Movement at the request of the chairman of Jongno-gu Council for a Better Tomorrow Movement; on the other hand, Defendant 2 and the Secretariat number 3 of Jongno-gu Council for a Better Tomorrow without charge from the chairman of Jongno-gu Council for a Better Tomorrow without charge.

(3) On May 17, 2005, Defendant 1 attended the “bridge experience events” held in the meeting of the Society for a Better Tomorrow movement, Jongno-gu Council for a Better Tomorrow, which was held by Defendant 1 on May 17, 2005, and provided young volunteer members free of charge with the dynamics of Defendant 1 and Nonindicted 2 for commemorative goods. Of the members, the electorates residing in the above resignation-dong among the members of the military who received the fluences, are seven persons, except Defendant 1.

(4) In addition, from June 1, 2005 to June 3, 2005, the Defendants, together with the members of the above Council Resignation Committee, issued 450 scambly to the residents of 450 households, who reside in the “Scare apartment of Gyeong-gu, Jongno-gu, Seoul, Seoul, and the “Saeong-gu apartment of Gyeongsung-gu,” either directly or without compensation.

(c) Delivery on May 17, 2005 by Taekkuk Fab

First, in light of the nature of the event and the relationship with Defendant 1 and the person who was provided with the scopic flag at the time of the event, even if the scopic flag was partially delivered to Nonindicted 2 in addition to the scopic flag at the time of the event, it is determined that Defendant 1, who is the head of the Young-gu Youth Service, who is the head of the scopic unit, to leave the scopic flag as Seoul, regardless of the name printed on the scopic machine, was aware that Defendant 1 was provided with the scopic flag, and Defendant 2 was involved in the scopic act in the scopic act. As seen earlier, Defendant 15 was led to the provision of the above scopic flag at the time of the scopic event. Thus, Defendant 13 of the former Public Official Election Act.

(d) The act of delivering the solar flag from June 1, 2005 to the 3th day of the same month;

Then, it seems effective to give the candidate's name and contact number to the electorates in relation to the act of giving a contribution act from June 1, 2005 to the 3rd of the same month. The defendant 1's name and personal hand-on number are attached at the time of delivery to the apartment residents located in the Jongno-gu Seoul election district. The defendant 2's act of offering a free election to the Jongno-gu Council for a Better Tomorrow Movement was second subsequent to 202, and delivery of the name and contact number of the chairman to the 3rd of the election was the first time of the contribution act of the 1st election, and it is not possible to consider that the above act was carried out in terms of the exercise of the Jongno-gu Sports Council for a Better Tomorrow, although the above act was not the first time of the contribution act of the 1th of the 3rd of the 1st election, the defendants' act of offering the name and contact number of the 1st of the 1st election to the 1st of the 3rd of the 1st election campaign.

5. Conclusion

Therefore, since the facts charged in this case against the Defendants are found guilty, the judgment of the court below which acquitted the Defendants is erroneous by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.

Therefore, under Article 364(6) of the Criminal Procedure Act, the judgment of the court below shall be reversed, and it shall be decided again by the oral proceedings as follows (as seen in the front and rear of the facts charged in this case, as long as the court found the defendant guilty of not guilty or a single comprehensive act of contribution as of May 17, 2005 among the facts charged in this case, the remaining facts charged, i.e., seven acts of contribution during the same day, shall also be reversed and judged again).

Defendant 1 is the chairman of Jongno-gu Council for a Better Tomorrow Movement who wishes to be the Seoul Jongno-gu candidate in the fourth local basic council election, which was scheduled on May 31, 2006, as the chairman of Jongno-gu Council for a Better Tomorrow Movement. Defendant 2 is the secretary-general of the above Council. Defendant 2, as part of the Matern Life Movement Council promoted by the Jongno-gu Council for a Better Tomorrow Movement, has distributed a scopic free distribution of the scopic machine purchased by the Jongno-gu Council for a Better Tomorrow Movement, to distribute the scopic machine (per 3,000 won per opening) with his name printed in his outcopic area to inform the names of Defendant 1, and to purchase 800 scopic machine scopics from among them, and put up 500 scopic scopic scopic scopic s to the electorate to deliver them to the electorate.

1. Defendant 1 cannot make contributions to a person who wishes to become a candidate for a local council member, notwithstanding that he does not have the right to make contributions to the person in the constituency concerned.

A. On May 17, 2005, in the Ansan-si Loan Do, a "nsan-si event for a Better Tomorrow movement" was held with young volunteer members belonging to the Jongno-gu Council for a Better Tomorrow movement along with members of the Jongno-gu Council for a Better Tomorrow movement, and a contribution act is made by providing seven persons, including Nonindicted 1, etc. residing in the Jongno-gu constituency for the defendant's Jongno-gu Council with the total sum of 21,000 won

B. From June 1 to March 3 of the same year, the act of contribution is performed by directly delivering to 450 apartment residents in the above constituency the sum of KRW 1,50,000,000 for 1,350,000 from the "Scare apartment of Gyeonghee-dong, Jongno-gu, Seoul Metropolitan City" and the "Masung-Pak apartment" located in Jongno-gu, Jongno-gu, Seoul, to 450,00 won, or by keeping it

2. Defendant 2 is unable to make a contribution on behalf of a person who wishes to be a candidate with respect to the election, notwithstanding that he is unable to do so.

For Defendant 1, the person who wishes to be a candidate, as described in paragraph 1, provided 457 persons in the election district and provided 457 persons in the election district to make a contribution.

Each fact in the ruling,

1. The defendants' statements corresponding to the above part in the court of the trial

1. In the first trial record of the court below, each statement corresponding to the defendants' part is written.

1. In the second trial record of the court below, the statement corresponding to the witness non-indicted 1's partial statement

1. Each protocol of examination of suspect as to the Defendants prepared by the public prosecutor, which corresponds to this;

1. Statements consistent with the registered matters of a preliminary candidate with respect to Defendant 1;

1. Each statement corresponding to the letter of confirmation prepared by Nonindicted 3 through 15

All of the facts in the judgment can be recognized, and all of the facts in the judgment are proven.

1. Provisions of applicable Acts to criminal facts;

A. Defendant 1: Each of them is subject to Article 257(1)1 and Article 113 of the former Public Official Election Act.

B. Defendant 2: Each of them covers Article 257(1)1 and Article 115 of the former Public Official Election Act.

1. Aggravation of concurrent crimes;

Defendants: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (In addition to punishment prescribed in the crime of violation of the former Public Official Election Act due to a contribution act from June 1, 2005 to June 3 of the same month, each of which is significant)

1. Invitation of a workhouse;

Defendants: Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Defendants: Article 334(1) of the Criminal Procedure Act

Judgment on Defendants’ assertion

The Defendants asserted that Defendant 2’s phone calls to Nonindicted 16 of the Jongno-gu Election Commission employees of the Jongno-gu Election Commission that “the distribution of solar instruments in the name of Defendant 1 of the chairman of the Jongno-gu Council for a Better Tomorrow Movement is in violation of the Election Act.” At that time, the Defendants asserted that there was a justifiable reason to believe that the instant contribution act does not violate the Election Act, as the Defendants asserted that there was a justifiable reason to believe that the instant act did not violate the Election Act.

However, in light of the following circumstances acknowledged by the record, that is, Defendant 2, for the first time at the prosecution investigation, stated that Defendant 1 was in violation of the Election Act to distribute the solar organ under Defendant 1’s name; and that there is a statement that offering money and valuables by indicating the official title or name of the person who wishes to be a candidate in the book issued by the National Election Commission is prohibited under the Election Act, it is difficult to believe that Defendant 2’s assertion that Defendant 2 responded to the purport that Defendant 1 did not violate the Election Act after questioning from Defendant 2 about whether the election commission’s act of distributing the solar organ under Defendant 1 violates the Election Act.

In addition, even if the defendants' assertion is made, the employees of the Election Commission asked that the act of donation in this case does not violate the Election Act on the premise that the act of donation in this case was ordinarily committed in the Jongno-gu Council for a Better Tomorrow Movement. According to the evidence above, the act of donation in this case was second subsequent to 2002, and the act of donation in this case was delivered in the name of the chairperson during the Taekdongdongdongdongdongdongdongdongdongdongdongdongdongdongdongdongdongdongdongdongdongdongdongdongdongdongdong Council. Thus, the act of donation in this case cannot be deemed as a business normally committed in the Jongno-gu Council for a Better Tomorrow Movement.

In light of the above legal principles and the above, Article 16 of the Criminal Act provides that an act of misunderstanding that one's act does not constitute a crime under the laws and regulations shall not be punishable only when there are justifiable grounds for misunderstanding. However, it is generally accepted that one's act constitutes a crime, but in his own special circumstances, it does not constitute a crime under the laws and regulations, and if there are justifiable grounds for misunderstanding of misunderstanding of misunderstanding of misunderstanding of misunderstanding of misunderstanding of misunderstanding of misunderstanding of misunderstanding of misunderstanding of misunderstanding of misunderstanding of misunderstanding of misunderstanding of misunderstanding of misunderstanding of misunderstanding of misunderstanding of misunderstanding of misunderstanding, it shall not be punishable (see Supreme Court Decision 2000Do1696, Jan. 25, 2002).

Of the primary facts charged in the instant case, the part of the facts charged that “the Defendant, at the loan limit of Ansan-si on May 17, 2005, made a contribution by granting 24,000 won to 8 persons, including Non-Party 1, the electorate, etc., for an eight total sum of eight hundred won during the dramatic period to eight persons, including the electorates, while holding the right to a Better Tomorrow in a loan for a Better Tomorrow movement,” and the part of the ancillary facts charged in the instant case that “the Defendant issued the same time and place as above, and carried out an election campaign before the election campaign period.”

Each of the above facts charged pertains to Defendant 1’s delivery of a stimulious flag to the electorate residing in Jongno-gu Seoul Metropolitan City, which is the Seoul Jongno-gu constituency. According to the records, from among the persons who have been delivered with a stimule in the above “stimulation of a stimule” event, it is recognized that all of the above residents are eight persons and Defendant 1 among the eight persons are included. The candidate himself/herself cannot be a party to contributions and advance election, and there is no other evidence to prove that he/she had a stimule while being delivered with a stimule in the above “stimule of a stimule” event.

Therefore, the judgment of not guilty under the latter part of Article 325 of the Criminal Procedure Act is based on the case where there is no proof of a crime. However, as long as the remaining facts charged in relation to a single comprehensive crime, that is, seven acts of contribution by the same date, are found guilty, the judgment of not guilty shall not be rendered separately.

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

Judges Hong-il (Presiding Judge)