Defendant

Both parties

Kim Ho-hoon (prosecution, public trial), status quo, maximum constitutionality (public trial)

Attorney Lee In-bok et al.

Suwon District Court Decision 2012Gohap971-1 (Separation) Decided December 5, 2012

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of legal principles as to admissibility of the written answer by the election commission

In the case of the written answer to the election commission, the election commission must notify the person to be polled who is in the position of the suspect because it has the nature of quasi- investigative agency. The written answer to Nonindicted Party 1 was prepared without notifying the right to remain silent, and thus, it is inadmissible. In addition, since Nonindicted Party 1 is in a relationship with the defendant and his accomplice, the election commission’s written answer to Nonindicted Party 1 as to Nonindicted Party 1 is admissible in accordance with the proviso of Article 313(1) of the Criminal Procedure Act with the statement made by the statement made by the person who made the statement, and it is admissible that the authenticity of its establishment was not proven, and Nonindicted Party 1 made a statement that “the signature and seal was affixed or sealed in detail, and it was signed without confirming the fact or in detail.” Since the written answer was made in accordance with the guidance, explanation, and direction made by the employees of the election commission, it

(2) misunderstanding of facts

Non-Indicted 1 and Non-Indicted 1 did not have a promise to pay the price for the election campaign, and Non-Indicted 1 worked as a volunteer at the time of the election, and became an employee of the National Assembly's office after the election, and only paid a monthly wage in return.

(3) Unreasonable sentencing

The punishment (three million won of a fine) declared by the court below is too unreasonable.

(b) Prosecutors;

(1) misunderstanding of legal principles as to admissibility of a recording file recorded by Nonindicted 1

In the case of recording files recorded by Nonindicted Party 1 before July 3, 2012, which was the first date of the written response of the election commission, the submission by Nonindicted Party 1 was voluntarily made by Nonindicted Party 1, and the reproduction of recording files by an employee of the election commission under the Public Official Election Act is a legitimate exercise of investigative authority. It is difficult to request the election commission which is not an investigative agency to comply with the procedure, such as issuing a seizure list of voluntarily produced articles, preparing a seizure report, etc., and Nonindicted Party 1 did not withdraw the intention of submission of recording files, and even if there were no errors in the procedure, it is exceptionally admitted as evidence

In the case of a recording file recorded by Nonindicted Party 1 after July 3, 2012, Nonindicted Party 1 voluntarily recorded it, and Nonindicted Party 2, an employee of the Election Commission, advise Nonindicted Party 1 on the method of collecting evidence, cannot be deemed as illegally collected evidence.

(2) misunderstanding of legal principles as to the admissibility of Nonindicted 7’s statement

In the case of Nonindicted 7’s statement, it is unfair to reject the admissibility of evidence or value of evidence, as it was made in a particularly reliable state as a third party’s statement containing Nonindicted 1’s statement in accordance with Article 316(1) of the Criminal Procedure Act, since it was made in a particularly reliable state, it is admissible for the Defendant, and at least, the value of Nonindicted 1’s statement as a evidence that can conceal credibility

(3) misunderstanding of facts or misapprehension of legal principles

(A) misunderstanding of facts concerning allowances and reimbursement of actual expenses for election officials

Although Nonindicted 1 did not provide labor as a paid worker, it was erroneous that the lower court recognized the fact that part of labor was provided.

(B) misunderstanding of facts concerning hotel gambling commitments on human rights;

Although there was a promise between the defendant and the non-indicted 1 on the donation of human rights to a hotel, the court below made a mistake of the fact that the court below acquitted him as a different fact-finding.

(4) Unreasonable sentencing

The punishment sentenced by the court below (three million won of fine) is too unhued and unfair.

2. Determination

A. As to the assertion of misapprehension of legal principles regarding admissibility of evidence by the defendant and prosecutor

(1) Part on the Defendant’s assertion of misapprehension of legal principles regarding admissibility of the Defendant’s written reply

First, we examine whether the election commission's failure to give notice of the right to refuse to make statements in investigating Nonindicted Party 1 is illegal.

The notification of the right to refuse to make a statement to prevent a suspect from being forced to make a statement by guaranteeing the suspect's right to refuse to make a statement effectively. Considering the provisions of the Criminal Procedure Act regarding the notification of the right to refuse to make a statement and the practical meaning of the notification of the right to refuse to make a statement, the status of a suspect subject to notification by an investigative agency should be deemed to be recognized when an investigative agency recognized a criminal charge against a person subject to investigation and started an investigation. Therefore, even if the right to refuse to make a statement is not notified, the admissibility of the evidence of the statement is not denied (see Supreme Court Decision 2011Do8125, Nov. 10, 20

In light of the purport of the above notification of the right to refuse to make statements, the Public Official Election Act and the Rules on the Management of Public Officials Election do not have any provision concerning the notification of the right to refuse to make statements in the investigation of the election crimes committed by members and employees of the Election Commission. Although the role of the election commission is important in the investigation of the election crimes, in addition to the passive duty that should not be forced to make a statement unfavorable to the criminal himself/herself guaranteed by the Constitution, the issue of whether to impose an obligation on the members and employees of the Election Commission to notify the person to be polled of the right to refuse to make statements actively is a legislative policy issue. In this case, the mere fact that Nonindicted 2 and 3, etc., who are employees of the Election Commission, did not notify Nonindicted 1 of the right to refuse to make statements in the course of investigation, do not have any provision regarding the notification of the right to refuse to make statements. Therefore, this part of the defendant's assertion is without merit.

Next, as to whether the authenticity of the written answer is established, Nonindicted Party 1 appears as a witness on the second trial date of the original trial and at the second trial date of the original trial to recognize the fact that the authenticity is established without any objection after reading the written answer in Nonindicted Party 2 and Nonindicted Party 3. As such, this part of the Defendant’s assertion on a different premise is without merit.

Finally, as to the existence of the special character of each written reply, the main text and proviso of Article 313(1) of the Criminal Procedure Act, and Article 313(1) of the same Act, a document written by a person other than the defendant or a person other than the defendant, which has a signature or seal, may be admitted as evidence when it is proved to be genuine by the maker or the person who made the statement at a preparatory hearing or during a public trial, but the document containing the statement of the defendant may be admitted as evidence, regardless of the statement made by the defendant at a preparatory hearing or during public trial, only when it is proved to be genuine by the testimony of the maker or the person who made the statement at a preparatory hearing or during public trial and when the statement is made under particularly reliable circumstances. The term "person other than the defendant" in this context means that the third party does not speak, and all of the co-defendants or co-offenders are interpreted to include, therefore, it is without merit that

(2) Of the prosecutor’s assertion, the part concerning admissibility of the recording file recorded by Nonindicted Party 1

In order to guarantee fundamental human rights, the normative power of the Criminal Procedure Act, which provides specific standards for search and seizure procedures, must be maintained so that the Constitution and the foundation of due process regarding search and seizure and warrant principles can be harmoniously realized. As such, evidence collected without following the procedures prescribed by the Constitution and the Criminal Procedure Act, as well as secondary evidence acquired based on such standards, shall not be admitted as evidence for conviction in principle. However, in determining whether to grant admissibility of seized materials illegally collected, all circumstances related to the procedure conducted in the process of evidence collection by an investigative agency, i.e., intent of the procedural provision and degree of violation, specific degree and possibility of evasion, relation between the right to protect and legal interest of the defendant, degree of causation between the criminal investigation agency and the collection of evidence, and awareness and intent of the investigation agency, cannot be acknowledged as evidence unless it infringes on due process of the investigation agency’s violation of the Constitution and the Criminal Procedure Act, and thus, it cannot be admitted as evidence for conviction of the criminal defendant 201 through the Criminal Procedure Act’s substantive and comprehensive examination of evidence collection.

In light of the evidence duly adopted and examined by the lower court and Nonindicted Party 2’s testimony, Nonindicted Party 1: (a) Nonindicted Party 2 was investigating Nonindicted Party 1 on June 2, 201, and Nonindicted Party 1’s instructions regarding the recording of Nonindicted Party 2; (b) Nonindicted Party 8’s recording of Nonindicted Party 1 and Nonindicted Party 2’s instructions to make a recording of Nonindicted Party 2 for ten months; (c) Nonindicted Party 1 and Nonindicted Party 2’s instructions to make a recording of Nonindicted Party 3’s telephone conversations; and (d) Nonindicted Party 1 and Nonindicted Party 2’s instructions to make a recording of Nonindicted Party 1 and Nonindicted Party 2’s instructions to make a recording of Nonindicted Party 3’s telephone conversations; and (e) how Nonindicted Party 2 received the recording of Nonindicted Party 1 and Nonindicted Party 6’s instructions to use the recording of Nonindicted Party 1 and Nonindicted Party 3’s instructions to the effect that it would not be easy for Nonindicted Party 1 to make a recording.

According to the above facts, in the case of the remaining recording files except for Nonindicted 5’s dialogue recording files, it is difficult to recognize the admissibility of evidence of the recording files unless it is recognized that Nonindicted 3 obtained permission from Nonindicted 1 only for copying the recording files with Nonindicted 5, and as such, it is difficult to recognize the admissibility of evidence of the recording files as a whole, since Nonindicted 3 made a different statement between the prosecutor’s office and the court of the original trial, even while Nonindicted 3 made statements in the court of the original trial, and even reversed the time of duplication even while Nonindicted 3 and Nonindicted 2 made statements in the court of the lower trial, the whole investigation process with respect to Nonindicted 3 and Nonindicted 2’s deletion is not recorded, and the transparency and reliability of the investigation process is not ensured. Furthermore, in the case of the recording files with Nonindicted 5, it is difficult to recognize the admissibility of evidence of the recording files as evidence of Nonindicted 2, including the above evidence collection method, which goes beyond the scope of authority of the election commission employees, and it is also difficult to recognize the admissibility of evidence of evidence of the recording and the evidence.

Therefore, this part of the prosecutor's argument is without merit.

(3) Regarding the admissibility of Nonindicted 7’s statement in the prosecutor’s assertion

According to Article 316(2) of the Criminal Procedure Act, when a statement made by a person other than the defendant at a preparatory hearing or on a public trial contains a statement made by another person other than the defendant, it shall be admitted as evidence only when the person making the original statement is unable to make a statement due to death, illness, foreign residence, unknown whereabouts, or any other similar cause and it is proved that such statement was made under particularly reliable circumstances. The term "person other than the defendant" in this context refers to a third party and it includes both co-defendants and co-offenders (see, e.g., Supreme Court Decisions 9Do5679, Dec. 27, 200; 201Do7173, Nov. 24, 201). In addition, the protocol and documents containing a full text statement or a full text statement made by a person other than the defendant are inadmissible as evidence pursuant to Article 310-2 of the Criminal Procedure Act: Provided, That the hearsay statement is admissible as evidence pursuant to Article 316(2) of the Criminal Procedure Act, and its admissibility is admissible as well as evidence only when the person making the original statement or the statement is unknown.

From this point of view, in the case of Nonindicted 7’s statement in the original court and prosecutor’s statement in Nonindicted 7, as well as in the case of Nonindicted 1’s prosecutor’s statement in the prosecutor’s office, insofar as Nonindicted 1, the original person making the original statement, is present in the court of original trial and made a statement in the court of original instance, its admissibility is inadmissible. On the other hand, the prosecutor argues that the court below rejected it even if having value as impeachment evidence, and there is no evidence to acknowledge that the prosecutor applied for it as impeachment evidence and the court of original instance rejected

Therefore, the prosecutor's assertion on this part is without merit.

B. As to the misconception of facts by the defendant and prosecutor

(1) Part of the defendant's assertion of mistake

(A) Whether there exists an undertaking on the settlement of expenses and the payment of prices related to the election campaign

We examine whether there was an agreement between the defendant and non-indicted 1 on the settlement of expenses and the payment of consideration related to election campaign.

When the core evidence related to this is Nonindicted Party 1’s statement, and Nonindicted Party 1’s statement about the content and meaning of the conversation emitted from the recording file is excluded, the relevant major statements can be said to be three times, and the relevant contents are mentioned in the following order, and the credibility of the statement is examined.

On July 3, 2012, upon receipt of an investigation from the Election Commission, Nonindicted Party 1 stated that “(Nonindicted Party 1) ought to take face at a meeting one time in the post-line relationship between the Defendant and elementary school, but did not have a genetic relationship at ordinary times. On June 2011, Nonindicted Party 1 again refused to communicate with the Defendant at a meeting. On the other hand, Nonindicted Party 1 stated that: (a) the Defendant was able to assist in election campaign; (b) the Defendant introduced the Defendant to the persons related to the National Federation of the National Federation; and (c) the Defendant was able to support the Defendant while visiting the election campaign; (d) the respondent was able to receive monthly salary at the skiing site; and (e) the Defendant was 200-3 million won, and (e) the Defendant was 10-60-160-16-200-610-6000-600-600-600-1610-600-1610-2.

공소외 1은 2012. 9. 20. 검찰에서 조사받으면서는, ‘피고인은 예전부터 알고 있었고 10년 전부터 향우회나 모임에서 보고 인사를 하는 관계였고, 공소외 6은 예전부터 알고 지냈는데 피고인보다는 자주 보고 같이 밥도 먹는 관계였다, 2012. 5.경 피고인이 수원 ◁◁구에서 출마한다는 사실을 알게 되어 피의자(공소외 1)가 피고인이 있는 ○○○○연구소 사무실에 찾아가 국회의원 나오시면 사람도 많이 필요하고 할 텐데 도울 수 있으면 돕겠고 축구에 관해 자원봉사를 해 줄 수 있다고 말을 하였는데 피고인이 그럴 수 있으면 알아서 하라고 하여 2012. 6.경부터 선거운동을 하였다, 피고인을 위해 자원봉사로 선거운동을 하면서 피의자는 한 달에 약 30~40만 원 정도를 썼고 그 때부터 피고인에게 자주 돈을 달라고 하였다, 피의자는 조기축구회 일정을 파악하고 운동장에 찾아가 피고인이 국회의원선거에 출마한다고 말하였는데 피고인과 동행한 것은 아니다, 피의자는 2011. 말경 보좌진 임명이나 다른 일자리 등을 기대하면서 피고인에게 스키장에서 200~300만 원 정도 받았다고 말한 적이 있다, 피의자가 2011. 6. 말경 피고인에게 기름 값을 포함하여 65만 원 정도를 달라고 하였는데 피고인은 자원봉사를 하기로 하지 않았냐면서 돈을 주지 않았다, 피고인의 형 공소외 6을 찾아가 영수증을 보여주면서 돈을 달라고 하였더니 자원봉사자인데 돈을 못 준다고 하여 영수증을 신경질적으로 주고 왔다, 2012. 1.경 모바일경선 모집인원이 공소외 9에 크게 앞서 대세가 피고인에게 왔다는 말이 있었는데 피의자도 선거사무소에서 여러 사람과 이야기 하던 중 대세가 피고인에게 왔으니 이제 돈 안 써도 되겠네라고 말한 적이 있다, 200만 원 상당의 월급 또는 활동비 보전을 약속받은 사실이 없다’라고 진술하였다.

On November 12, 2012, Non-Indicted 1 testified as a witness at the court of the court below on witness, it stated that “The witness was refused to request that only KRW 600,000,000,000, which was 60,000 from June 201 to 12, 200, the witness was engaged in volunteer service with scambling with scams by using the money of the witness, provided volunteer service without receiving money, and provided volunteer service with scambling upon request of scams, so it was possible to expect scamblings or employees of the National Assembly.”

한편 공소외 1의 선거운동과 관련된 주변 사정에 있어서는, 원심이 적법하게 채택하여 조사한 증거들에 의하면, ① 공소외 1은 피고인의 초등학교 후배로서, 4, 5년 전 호남향우회 체육대회에서 피고인을 알게 되었으나 공소외 1이 피고인을 위한 선거운동을 하기 전까지는 자주 만나는 관계는 아니었던 사실, ② 공소외 1은 수원시에서 오랜 기간의 축구클럽활동을 통해 상당한 인맥을 쌓아왔었고, 2010. 6. 2. 지방선거 무렵에는 아는 사람을 따라 산에 다니다가 산악회장이던 △△△당 수원시장 예비후보 공소외 10을 위해 선거운동을 하기도 하였으며, 2008.경부터 겨울에 곤지암리조트, 양산리조트 등 스키장에서 총괄업무를 하였고, 2011. 2.경 스키시즌이 끝난 후 스포츠마사지 업소를 준비하여 시작하였으나 영업이 부진하여 별다른 수입이 없었던 사실, ③ 공소외 1은 선거운동원으로 등록하지 아니한 채 2011. 6.경부터 2012. 4. 11. 선거일까지 사이에 수십 회에 걸쳐 축구연합회 임원들을 비롯한 지인들에게 피고인에 대한 지지를 호소하고 당내 경선을 위한 모바일 경선 선거인단 등록을 권유하는 등의 방법으로 선거운동을 하는 한편 피고인에게 수원시 ◁◁구 내 축구대회 일정을 보고하기도 하고 자신의 축구단체 인맥을 이용하여 피고인으로 하여금 위 축구대회에서 축사를 하게 하거나 참석자들과 인사할 수 있도록 소개하고 그 자리에서 피고인을 수행하기도 한 사실, ④ 공소외 1은 피고인의 지지를 호소하기 위해 자신이 식대를 부담하면서 주변의 지인들과 수십 회에 걸쳐 식사를 하기도 한 사실, ⑤ 공소외 1은 위와 같이 지출한 식비의 영수증에 그 지출 경위나 같이 식사한 사람 등을 기재하여 정리하였던 사실(영수증 숫자는 2011년에는 7월 8장, 8월 8장, 9월 9장, 10월 9장, 11월 9장, 12월 5장, 2012년에는 1월 4장, 2월 5장, 3월 4장, 4월 4장), ⑥ 공소외 1은 2011. 가을 무렵 처와 이혼하면서 전세보증금 2,800만 원 전부를 위자료 명목으로 처에게 주었고 2011. 12.경 아들 공소외 11이 군대에서 휴가를 나왔다가 수도요금 미납으로 집에 단수가 된 사실을 알고 공소외 1에게 이사를 가자고 말하자 공소외 1은 ‘지금은 선거운동 중이니 선거가 끝난 후에 이사를 가자, 돈을 받아야 하는데 돈이 오고가면 선거법에 걸려서 받지 못하고 있다’라고 말한 주10) 사실, ⑦ 공소외 1은 국회의원선거가 끝난 후 지인들에게 피고인으로부터 활동비를 받지 못해 힘들다는 말을 여러 차례 하였던 사실, ⑧ 이후 공소외 1은 우연히 알게 된 공소외 12의 조언에 따라 선거운동 대가를 지급받기 위해 피고인이나 피고인의 형 공소외 6과의 통화내용을 녹음한 사실 등이 인정된다.

In full view of the above, Non-Indicted 1’s statements at the prosecutor’s office and the court of the court below that Non-Indicted 1 requested volunteer service on the ground that Non-Indicted 1 appeared to be well aware of the election or politics before and after the election or politics, and that it was between Non-Indicted 1 and the defendant and the elementary school, it is not persuasive, and Non-Indicted 1’s statements at the court of the court below that Non-Indicted 1 requested volunteer service by finding the defendant, even though Non-Indicted 1 was in a very difficult situation in economy, and even at the house at which Non-Indicted 1 was living in, even though the tap water was cut down at his own expense, it is not persuasive. On the other hand, Non-Indicted 1’s statements at the election commission on July 3, 2012 at the election commission, are consistent with the above-mentioned relationship between Non-Indicted 1 and the defendant, Non-Indicted 1’s very high value in connection with Non-Indicted 1’s river construction at several times, 11’s surrounding form and 1’s receipt and behavior.

Therefore, according to the statement at the election commission of Nonindicted Party 1 and the relevant evidence duly adopted and examined by the court below, it can be sufficiently recognized that the Defendant agreed to pay the election campaign expense or the price to Nonindicted Party 1 on or before June 201 and requested the election campaign.

(B) Whether the benefits amounted to 4 million won under the name of the election campaign is related

원심이 적법하게 채택하여 조사한 증거들에 의하면, ① 피고인은 2012. 5.경 공소외 1을 지역사무소의 유급사무원으로 채용하기 위해 국회의원 지역사무소 직원들을 통하여 서류 작성 등의 업무를 처리한 사실, ② 피고인은 공소외 1이 국회의원 지역사무소에 출근하지 않자 사무국장 공소외 5를 통하여 공소외 1에게 지역사무소의 출근을 종용한 사실, ③ 공소외 1은 공소외 6에게 ◁◁구 내 축구단체의 개최 일정을 보고하거나 주말 축구대회 장소에서 피고인을 수행하기도 한 사실 등이 인정된다.

However, the court below duly adopted and examined the following circumstances: (i) the defendant did not confirm or discuss the intention of Nonindicted Party 1 when employing Nonindicted Party 1 as a paid employee of the local office; (ii) there was no consultation on the duties, working conditions, benefits, etc. of Nonindicted Party 1; and (iii) the defendant did not request the submission of a certified copy of resident registration in the course of employing Nonindicted Party 4 as a paid employee of the local office, or submit it to the election commission via Nonindicted Party 5, the secretary general of the local office, for the reason that he did not demand the preparation of a labor contract; (iii) the defendant did not cooperate with the Defendant and Nonindicted Party 5; (iv) the defendant did not demand the submission of the above documents on June 2012 and July 1, 2012; and (v) the defendant did not demand the payment of the above documents to the head of the local office for the election campaign to the extent that he did not immediately leave the office’s work at the local level; and (v) the defendant did not demand the payment of the above.

(C) Therefore, this part of the Defendant’s assertion on a different premise is without merit.

(2) Prosecutor's erroneous assertion

(A) The part concerning misconception of facts concerning allowances and reimbursement of actual expenses for the election officer

This part of the facts alleged by a prosecutor in mistake of facts is not about the mistake of facts affecting the judgment, and thus cannot be an independent ground for appeal, and it overlaps with the judgment on the mistake of facts in the preceding part of the defendant's assertion of mistake of facts, and thus, it shall not

(B) The part of the assertion of misconception of facts concerning the hotel letter or the gift commitment of human rights.

이 부분 공소사실의 요지는, 피고인은 2011. 12. 29.경 ‘♤♤♤ - ◈◈◈ ◈◈◈’ 식당에서 공소외 1로부터 수원 ◁◁구 축구연합회 임원 등을 상대로 한 선거운동에 필요하니 피고인이 운영하는 ▷▷호텔 사우나 할인권 30장을 제공해 달라는 요구에 응하여 피고인과 위 할인권 제공을 약속하고, 2012. 6. 초순경 및 2012. 7. 17.경 공소외 1이 위 약속의 이행을 독촉하자, 다시 위 사우나 할인권을 제공할 것을 약속하였다라고 함에 있다.

먼저, 2011. 12. 29. 기부행위 약속의 점 관련 공소사실에 부합하는 증거로는, 공소외 1이 2012. 7. 3. 선거관리위원회에서 한 ‘피고인이 현장에서 ▷▷호텔 사우나 연간이용권 30장을 주기로 약속하였다’라는 취지의 진술 및 2012. 8. 9. 선거관리위원회에서 한 ‘모임 참석자들 중 공소외 13, 14씨가, 축구연합회 임원들이 30여명 가량인데 그들에게 ▷▷호텔 사우나 이용권을 제공해 줄 것을 요구하여, 피고인이 준다고 하였다’라는 취지의 진술, 공소외 1의 업무 수첩 중 2012. 1. 부분에 ‘▷▷호텔 70% 회원권 ◁◁구 임원용(30여명)’이 있으나, ① 공소외 1은 제2회 검찰 조사에서, 피의자(공소외 1)가 ‘축구협회 임원들에게 사우나 티켓을 구해주면 좋겠다’라고 말하자 피고인이 ‘그래 무슨 말인지 알겠어’라고 답하였는데, 피의자는 피고인이 주는 것으로 생각하였다는 취지로 진술하였고, 그 이후 진술에서는 ’피고인이 제공을 명시적으로 승낙한 것은 아니었다‘ 또는 ’피고인이 해줄 수 없다고 대답하였다‘라고 진술한 점, ② 공소외 13은 검찰 조사에서 ’사우나 이용권에 관하여는 이야기를 나눈 사실이 없다‘라고 진술한 점, ③ 공소외 15는 검찰 조사에서 ’▷▷호텔 사우나에 대한 언급은 없었다‘라고 진술한 점, ④ 공소외 14는 검찰 조사에서 ’호텔 사우나 회원권에 관하여는 아무런 이야기를 하지 않았다‘라고 진술한 점 등에 비추어 보면 공소외 1의 선거관리위원회에서의 진술은 진실에 반하는 것이거나 과장된 것이라고 할 것이고 공소외 1의 업무 수첩에 기재된 메모 역시 피고인의 승낙을 전제로 한 것이라 단정하기 어렵다.

Next, each of the recording files of Nonindicted 1 and Nonindicted 6, June 4, 2012, and each of the recording files of Nonindicted 1 and Defendant’s telephone conversations on July 17, 2012, are recorded as evidence that seem to correspond to the facts charged in relation to the act of contribution around the beginning of June 2012 and around July 17, 2012. However, each of the above evidence is admissible as evidence as seen earlier, and there is no other evidence to prove the above facts.

Therefore, the court below found the defendant not guilty under the latter part of Article 325 of the Criminal Procedure Act because each part of the facts charged constitutes a case where there is no proof of crime, and the prosecutor's assertion

C. As to the assertion of unreasonable sentencing by the defendant and prosecutor

The Defendant’s crime of this case is an element of sentencing favorable to the Defendant, in which there is no past record of punishment other than the fine two times, and there is no record of crime regarding election. However, the Defendant committed the crime of this case, after promising Nonindicted 1 to pay for the election campaign activity or consideration, registered Nonindicted 1 as a paid clerk at the local office of the National Assembly member after the election, with the payment of the money under the name of salary, and thus, harming the expectation of the people who are able to open a fair election. The amount of the money provided to Nonindicted 1 is not less than 4 million won, and the amount of the money provided to Nonindicted 1 is not less than 4 million won. Since the election of the Republic of Korea is at the most border of our people, the sentencing guidelines of the Public Official Election Act and the Supreme Court Sentencing Guidelines of the Public Official Election Act are imposing a relatively strict responsibility for the election of the Republic of Korea. If a candidate who is to implement the meaning and intention of the people, it is necessary to take responsibility corresponding thereto, and considering the motive, means and result of the crime of this case, the Defendant’s age, home character and circumstances.

Therefore, this part of the defendant and prosecutor's assertion is without merit.

3. Conclusion

Therefore, since the defendant and prosecutor's appeal are without merit, they are all dismissed under Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Dong-ok (Presiding Judge)

Note 1) 121 pages of the trial records

Note 2) The trial records 396~397, 405 pages

Note 3) Evidence records 1391 pages

Note 4) Evidence 435 pages

Note 5) 391, 395, 397 pages of the trial records

Note 6) 405 pages of the trial records

Note 7) 3-4 pages of the examination of Nonindicted Party 2 in the trial of the party.

Note 8) 17 pages of the Protocol of Examination of Witnesses against Non-Indicted 2 in the trial of the party, and 1416 pages of evidence

9) 429 pages of the trial records

Note 10) Evidence Record 1202 pages