(영문) 울산지방법원 2020.12.22.선고 2020고합312 판결

In the event that the Defendants did not pay the above fine, the Defendants shall be confined in the Labor House for a period of 10,000 won converted into one day.

To order the Defendants to pay an amount of money equivalent to the above fine.

Reasons

The criminal history [Status of the defendant] of the crime

Defendant Yellow-gu was in charge of the duties of the chairperson of the Dong-gu Local Committee of Ulsan-gu Seoul Metropolitan Government (hereinafter referred to as the “Dong-gu Local Committee”) from around July 2018, and was registered as a preliminary candidate on January 13, 2020 at the election of the 21st National Assembly members, but did not register a candidate as a candidate for the election of the 21st National Assembly members, and was in charge of the duties of the chairperson of the Dong-gu Local Committee of Dong-gu from September 2018 (hereinafter referred to as the “Gu-gu Local Committee”). The former metropolitan region of Defendant is a person who registered as a candidate for the Democratic Party in the 7th local election of the 1st National Assembly members of Ulsan-gu Central Committee and registered as a candidate for the 1st National Assembly member from September 2018.

【Criminal Facts】

1. Joint crimes committed by Defendant Yellowdong-gu and Defendant Lee Dong-dong;

A person who intends to be a candidate shall not make a contribution to a person in the election district concerned, or an institution, organization, or facility, or a person having relations with the electorate, or an institution, organization, or facility, even if outside the election district concerned, and no person shall make, or have another person make a contribution for, a candidate or a political party to which he/she belongs, in connection with the election.

Nevertheless, around January 1, 2019, the Defendants purchased yellow grane with the purpose of wearing the members of the Dong-gu regional committees at the events held in the Seogsan-dong, Ulsan-gu, Ulsan-do with the aim of wearing together with the members of the Dong-gu regional committees. Defendant Yellow-dong purchased 70 grane grane (total amounting to KRW 203,00) around December 17, 2018, and divided the above grane to the members of the Dong-gu regional committees, including (Omission) the elector, from around that time to January 1, 2019. Accordingly, the Defendants conspired with the electorate to provide the electorate with a contribution act of KRW 203,000 in total.

2. Defendant Yellowdong-gu;

No person shall install, display, display, post or distribute the name of a political party or the name or photograph of a candidate (including a person who intends to be a candidate) or a banner or advertisement, etc. with a content that can be inferred about the name or name of a political party, in order to influence the election from 180 days before the election day to the election day.

Nevertheless, around October 21, 2019, the Defendant: (a) around 21, 2019, on the shore of the Hyundai Motor Station located in Ulsan-gu, Ulsan-gu; (b) installed an air transport room to reform the prosecution; (c) together, the Defendant cited the scicket stating the content of the “Dong-gu Local Committee of Ulsan Metropolitan City Party, Ulsan Metropolitan City, Dong-gu, etc.” and displayed it to the vehicles and people who run around 13 times in total, as shown in the attached list of crimes, from around that time to November 11, 2019.

As a result, the defendant's 180 days before the election day to the election day.

The advertising materials were posted.

3. A member of the entire metropolitan area of the defendant shall not make a contribution to a person in the relevant constituency, or an institution, organization, or facility, or a person having relations with the electorate, or institution, organization, or facility, even if outside the relevant constituency.

(a) Contributions made by providing merchandise coupons on May 14, 2019;

On May 14, 2019, at around 18:00, the Defendant issued bags containing modern department stores equivalent to KRW 50,000,00 to the President, who is the Chairperson of the Local Committee for Persons with Disabilities, at the sixth Steering Committee held in Ulsan Metropolitan City Office of Ulsan Metropolitan City, Ulsan Metropolitan City.

(b) Contributions made from the provision of meal expenses on May 14, 2019;

At around 19:30 on May 14, 2019, the Defendant provided meals with the operating members present at the sixth Steering Committee as described in paragraph 3(a). On the same day, around 20:26 on the same day, the Defendant paid KRW 150,000, which is the meal expenses, using the Defendant’s business promotion expense card. On June 27, 2019, the Defendant made a contribution due to the provision of meal expenses.

At around 19:00 on June 27, 2019, the Defendant provided meals with the operating members of the Dong-gu local committee in Ulsan Metropolitan City, together with the members of the Dong-gu local committee. At around 20:00 on the same day, around 20:00 on the same day, KRW 300,000 out of the meal expenses was paid by the Defendant’s business promotion expenses card.

Accordingly, the defendant made a contribution amounting to 500,000 won in total to the electorates, etc. three times in total.

Summary of Evidence

1. Defendant Yellowdong-gu and Lee Dong-dong's legal statement;

1. Partial statement of the whole region of the defendant;

(Omission)

Application of Statutes

1. Relevant provisions of the relevant Act on criminal facts and the election of Defendant Yellow-gu: Articles 257 (1) 1 and 113 (1) of the Public Official Election Act, Article 30 of the Criminal Act (a comprehensive violation of restrictions on contribution by candidates, etc.), Article 256 (3) 1 (h) and Article 90 (1) of the Public Official Election Act (a comprehensive violation of restrictions on contribution by candidates, etc.), and Article 256 (3) 1 (h) and Article 90 (1) of the Public Official Election Act (the selection of fines) of the Defendant ○: Article 257 (1) 1 and 115 of the Public Official Election Act, Article 30 of the Criminal Act (a comprehensive violation of restrictions on contribution by a third party,

Article 257(1)1, Article 113(1)(Article 257(1)(Article 257(1)1, Article 113(1)(Article 253(1)(Article 257(2)); Article 257(2)); Article 113(1) of the Public Official Election Act

○ Defendant Yellowdong-gu: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (in the case of concurrent crimes with punishment prescribed in the crime of violating the Public Official Election Act due to heavy contributions)

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (in the case of a person who commits a crime with the largest penalty), the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (in the case of a person who commits a crime by contribution from June 27, 2019, the penalty for concurrent crimes

○ Defendants: Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

○ Defendants: Determination on the assertion of the former metropolitan area and defense counsel under Article 334(1) of the Criminal Procedure Act

1. Summary of the assertion

A. In relation to the contribution act due to the provision of merchandise coupons, since the merchandise coupon is not owned by the entire region of the defendant (hereinafter referred to as "defendants" in paragraphs 1 and 2), but owned by the defendant's interest (hereinafter referred to as "B" in paragraphs 1 and 2) or its ownership relation is not confirmed, the defendant cannot be held liable for this part of the charge.

(b) The fact that the defendant paid each meal expense in relation to the contribution act due to the provision of each meal expense is recognized, but this constitutes a contribution act under the Public Official Election Act as the execution of legitimate business promotion expenses;

As such, the defendant cannot be liable for this part of the crime because he is not guilty.

2. Determination

A. In full view of the following circumstances acknowledged by the evidence in relation to the act of contribution through the provision of merchandise coupons, it is recognized that the Defendant issued merchandise coupons to the Director of the Do governor in an amount equivalent to KRW 50,00 to make a contribution to the electorates, and thus, the Defendant and the defense counsel’s allegation in this part is without merit.

1) The president stated that he/she went out of the us to go to the outside of the us, and that he/she returned to the us with a white envelope, and that he/she was able to go to himself/herself with the above envelope. The statement made by the president is consistent with the investigation agency to the extent that he/she was able to go to himself/herself with the above envelope. The statements made by the president are consistent with the core matters from the investigative agency to this court, and are at the time.

In that it is very specific to describe the case, and unlike the president, it seems that there is no special circumstance to make a false statement against the defendant even when he/she is punished for perjury.

2) The Defendant and the defense counsel asserted that since there is an appraisal that the president has taken place against the Defendant on the date of refusing a request from the Defendant, etc., the Defendant and the defense counsel may make a false statement against the Defendant. However, there is no evidence to deem that the president made a request from the Defendant or refused a request from the Defendant, and that there was a non-prosecution disposition on the violation of the Public Official Election Act by the Defendant, etc., but there was a substantial investigation on the report by the president, and that there was a non-prosecution disposition on the significant portion of the fact. However, the non-prosecution disposition is deemed to have been conducted due to the lack of legal evaluation or evidence, and the non-prosecution disposition is also deemed not to have taken place on the Defendant, etc., and there is no benefit that the president would have obtained a false statement against the Defendant, etc., while the president appears to have suffered disadvantages from each of the political parties belonging to the Defendant after the institution of problems against the Defendant, etc. (No. 7 evidence record No. 1645). 3).

3) The Defendant sought to find out the way on which he had known that he had been lost before us, but did not find it, and went to us without finding it. At this point, he reported that he had a certain bag, and demanded that he had a certain bag, and he had a certain bag, and demanded that he had a certain bag, and that he had a different bag, and that he had a certain bag, and the head of Do Do Do Do Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y ACT Y Y Y ACT Y Y Y Y Y Y Y YY YY YY Y Y YY YY YY YY Y YY Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y YY Y ACT ACT ACT YYYYYY YY YY Y YYY Y

4) Even if a gift certificate was owned by the Hen Director, the Defendant and the B B were the content of the statement, namely, that is, the Defendant took the above envelope from this page (Evidence No. 1, No. 12, No. 6, No. 1283 of the Evidence Records), and the Defendant made a statement (Evidence No. 6, No. 1279 of the Evidence No. 6 of the Evidence No. 1, No. 1279 of the Record) that he was the disabled, and the Defendant took the gift certificates on his book, and thereafter, he issued the gift certificates to the Governor (Evidence No. 651 of the Evidence No. 151 of the Evidence No. 6, No. 1237 of the Evidence No. 5 of the Record), and that the Defendant did not appear to have been able to have known that the Defendant had a gift certificate on his book No. 28 of the Act, based on the circumstances that the Defendant stated that the Defendant had a gift certificate No. 30 of the 2000 of the Record No. 248.

B. In full view of the following circumstances acknowledged by the evidence in relation to the act of contribution due to the provision of meal expenses, it is recognized that the Defendant provided each meal expense to the electorate, etc. on May 14, 2019 and June 27, 2019.

1) First of all, in relation to the provision of meal expenses for the person on May 14, 2019, the president stated that at the time of the termination of the sixth Steering Committee of the Ulsan Metropolitan City Party at the time, the head of the Ministry of Health and Welfare provided meals together with the operating members present at the committee at that time, including the Defendant, in the “mar restaurant in the vicinity of the office of the Ulsan Metropolitan City Party, Ulsan Metropolitan City Party,” which conforms to the statement of B (Evidence No. 2, No. 410).

2) The Kim Witness stated to the effect that: (a) the Defendant, who was well aware of the meal at the above temporary location, was affiliated with the operating committee members, and the Defendant had been living together with the above persons before the end of the meal of the operating committee members; (b) the Defendant stated to the effect that such statement was first made before the end of the meal of the operating committee members; (c) it is difficult to believe that it is inconsistent with the purport of the Defendant’s statement by the head of the permitting branch, Lee I, and Kim Witness’s investigative agency as seen earlier, that is, whether the Defendant was present at the meeting of the operating committee at the time and whether the Defendant was a meal at the mother restaurant (Evidence No. 2, No. 491 of the Evidence No. 2, No. 491 of the Record). In this regard, the Defendant paid the amount for business promotion expenses, and did not make a contribution act by paying the meal expenses of the operating committee members at the time of the above temporary location. However, in addition to the above circumstances, the Defendant’s assertion that the above Defendant did not clearly accept the Defendant’s right to be present at 167 U.

4) Next, in relation to the provision of meal expenses as of June 27, 2019, the Director stated to the effect that he prepared the above temporary meal site for the purpose of unity with the Steering Committee, especially for promoting friendship among female members of the Steering Committee, and that this was consistent with each of the statements made by Co-defendants, Haba, and Kim Jong-dong (No. 2nd 320 of the evidence evidence record of the laver statement) and the contents of the message posted to Co-Defendants 1, 201, the contents of the message posted to the Organization Kakao Kao Stockholm room of the Steering Committee in Ulsan-dong District, Ulsan-gu, Seoul-do, and the content of the message posted to Co-Defendants 2, 320.

5) The Defendant asserts that, upon receiving a request from the head of the Heungwon that the local economy is likely to grow, it was allowed to attend a kind of conference to discuss the pending issues, etc. of the Dong-gu Busan Metropolitan City, Ulsan Metropolitan City, with local residents, etc., and that, in fact, there was a division of talks about the above meal space, such as the ‘local economic invasion problems caused by the current heavy Heavy Industries and Realization of Industry,' and ‘sledo development issues related to the Dong-gu, Ulsan Metropolitan City, Ulsan Metropolitan City', the payment of part of the above meal cost is only the execution of reasonable business promotion expenses. However, the head of the Heungwon, Co-Defendant 2, 2, and this statement that the above meal space was not a simple meeting or a single meeting, and that it was a mere meeting or a single meeting (5 rights 1241 pages of evidence evidence record of Eul's statement). Although the head of the He prepared for the head of the Dong-gu, Seoul Metropolitan City, and it was difficult to accept the above discussion with the head of the local economy.

6) Meanwhile, only on the ground that any act of offering money or goods is conducted in the form of expenditure of business promotion expenses and such act of offering money or goods has been disbursed in accordance with the purpose and procedure of the organization, cannot be excluded from the concept of contribution act because it constitutes an act of offering money or goods under the statutes or municipal ordinances stipulated in Article 112(2)4 (a) or (b) of the Public Official Election Act (see, e.g., Supreme Court Decision 2007Do7205, Nov. 16, 2007). The rules on the execution of business promotion expenses of local governments provide that where the other party to the execution of business promotion expenses falls under a person subject to contribution under Article 112(1) of the Public Official Election Act (Article 4 of the above rules). Further, in addition to the fact that the defendant executed business promotion expenses in the name of the local council in relation to the provision of the above meals, it is reasonable to view that even if the defendant spent business promotion expenses in the form of execution of the business promotion expenses, it does not fall under the

Reasons for sentencing

The crime of this case is an unfavorable circumstance to the Defendants, such as the following: Defendant Yellow-gu and Lee Dong-dong, and Lee Dong-dong, and the crime of this case was committed in a manner that the Defendants provided a stimul to the electorate who is the mother of the event in a way consistent with the rule, thereby impairing the fairness of election and the purpose of legislation of the Public Official Election Act in order to guarantee the free decision-making of the voters; and the crime of this case is not less complicated; Defendant Yellow-gu, which posted advertisements more than 13 times on the road with a large dynamic population and appears to have been exposed

However, the Defendants showed the attitude of recognizing and opposing the Defendants’ mistake, the benefit provided by the Defendants is relatively minor, and the contribution act was made not later than one year and three months before the election day, and Defendant Yellowdong-gu did not go to the 21st National Assembly election, and the Defendants’ contribution act and posting of advertising materials by Defendant Yellowdong-gu did not have any particular influence on the election, and the Defendants did not have any criminal records and identical power. In addition, the Defendants’ age, character and conduct, environment, background, means and consequence of the crime, and the circumstances after the crime were committed, etc., are considered as favorable to the Defendants. In full view of all the sentencing conditions as shown in the instant records and arguments, the sentence is determined as per Disposition.

○ Formerly Metropolitan Area of Defendant

1. Scope of applicable sentences under law: Fines of 50,000 to 15 million won;

2. Scope of recommended sentences according to the sentencing criteria;

(a) Crimes under subparagraphs 1 through 3 of the Public Official Election Act;

[Determination of Punishment] Violation of Prohibition of and Restriction on Contribution Act / [Class 1] Reduction element of Contribution Act : Where money or other valuables or benefits provided are extremely minor.

[Recommendation Area and Scope of Recommendations] Reduction Area, Fine of 500,000 to 3 million won

(b) Scope of recommendations based on the standards for handling multiple crimes: Fines of 500,000 to 5,000 (the upper limit of the first crime + the upper limit of the second crime + 1/2 of the upper limit of the third crime + 1/3 of the upper limit of the third crime);

3. Determination of sentence: A fine of one million won;

Along with the fact that money and valuables provided by the defendant to the electorates and benefits are relatively minor, and that the defendant is the first offender, etc. are favorable to the defendant.

However, the circumstances are unfavorable to the Defendant, such as the consistent reasoning that the Defendant was unable to obtain, and the fact that the Defendant denies his criminal act, appears to have never shown, and that the Defendant, a local council member, made a contribution act three times, and the liability for the crime is not less than that against the Defendant. In addition, comprehensively taking account of all the sentencing conditions as shown in the instant records and arguments, such as the Defendant’s age, character and conduct, environment, background, means and consequence of the crime, and the circumstances after the crime, etc., the punishment is determined as ordered

Judges

The presiding judge, judge, Dong-gu

Judges Nam-tae et al

Judges Han Young-young

Note tin

1) Supreme Court Decision 2005Do4177 Decided June 27, 2006 determined as a single comprehensive crime according to the purport of the Supreme Court Decision, etc.

2) In relation to each part of meal expenses, the Supreme Court determined that each single crime was a single comprehensive crime according to the purport of Supreme Court Decision 2005Do2014 Decided September 9, 2005, etc.