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(영문) 서울고등법원 2016.08.24 2016노2005
공직선거법위반
Text

All of the appeals by prosecutors are dismissed.

Reasons

The sentence of the court below (the suspended sentence of each fine of KRW 500,000) on the summary of the grounds for appeal is too unfilled.

However, the crime of this case was destroyed by a wall for the election of the 20th National Assembly members established by the election management commission of the Defendants.

The fairness of election refers to the guarantee of equal opportunities in the freedom of election and election campaign, etc., and without the fairness of election, it cannot be seen that the genuine freedom of election is guaranteed (see Constitutional Court Decision 2011HunBa1, Apr. 24, 2014, etc.). The poster for election is a major means for the elector to publicize himself/herself by stating his/her photograph, name, symbol, career, political views, platform and policy of the political party to which he/she belongs, etc.

The damage of the defendants is ultimately a violation of the fairness of election, which is the core system of representative democracy, and obstructs the election management of the election commission.

However, the Defendants’ late and reflects their mistakes, and the Defendants did not seem to have committed the instant crime with the intent to influence the election, and the Defendants appears to have committed any contingent crime under the influence of alcohol, and the Defendants did not have any history of criminal punishment, etc. may take into account the circumstances favorable to the Defendants, such as the fact that they did not have any history of criminal punishment.

In full view of the aforementioned circumstances and the various sentencing conditions in the instant case, including the Defendants’ age, sex, environment, motive and background of the commission of the crime, and circumstances after the commission of the crime, the lower court’s sentence is too uneasible and unreasonable.

In conclusion, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act on the grounds that the appeal is without merit.

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