[1] Whether the head of a Gun's payment of cash under the pretext of honorariums to police officers, reporters, etc. in the Gun constitutes a contribution act under the Public Official Election Act (affirmative)

[2] The case holding that where the head of a Gun paid cash as a honorarium to police officers, reporters, etc. within the jurisdiction of the Gun for business promotion expenses organized in the military budget, the above money and valuables payment act cannot be deemed as an ordinary or official act that does not violate the social rules in light of the amount of donation and the other party to the contribution act

[1] Even if the amount paid by the head of the Gun to the police or reporters within the jurisdiction of the Gun was paid through budget execution plan and execution procedure in the business promotion expenses organized in the military's budget, it is clear that the payment does not fall under the "act of offering money and goods pursuant to the Acts and subordinate statutes" under Article 112 (2) 4 (a) of the Public Official Election Act or the "act of offering money and goods pursuant to the ordinances of the relevant local government" under Article 112 (2) 4 (b) of the Public Official Election Act. In addition, even if the business promotion expenses are budget items of the nature that the executor has broad discretion in relation to the purpose, it is obvious that the head of the Gun pays cash as a reward for the police's cooperation or the reporter's publicity, it constitutes a customary act under Article 112 (2) 2 of the Public Official Election Act, other duties than those stipulated in Article 112 (4) 4 of the Public Official Election Act, and acts and courtesy acts under the National Election Commission Regulations established based on Article 25 (5) of the Public Official Election Act.

[2] In a case where the head of a Gun paid cash for expenses for business promotion organized in the military budget to police officers, reporters, etc. in the Gun under the pretext of honorariums, the case holding that the above money and valuables payment act cannot be deemed as an ordinary or official act that does not violate the social rules in light of the amount of donation, the other party to the contribution, etc.

[1] Articles 112(2), 113, and 257(1)1 of the Public Official Election Act / [2] Articles 112(2), 113, and 257(1)1 of the Public Official Election Act

[1] [2] Supreme Court Decision 2004Do6323 Decided February 18, 2005, Supreme Court Decision 2005Do2014 Decided September 9, 2005 (Gong2005Ha, 1646) Supreme Court Decision 2006Do2104 Decided June 30, 2006

Defendant

Defendant and Prosecutor

Kim Dong-ju

Attorney Kim Jae-hoon

Daegu District Court Decision 2006Gohap620 Decided November 15, 2006

All appeals by the defendant and the prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

(1) Fact-finding or misunderstanding of legal principles

The court below erred by misunderstanding the following facts or misunderstanding the legal principles which affected the judgment.

(A) The Defendant paid encouragement money to police officers, reporters, etc. for the smooth implementation of military administration with its own plan based on the “implementation plan for business promotion expenses” and “Disbursement resolution” and the budget lawfully set by the Ministry of Government Administration and Home Affairs’s directives and established rules. This does not constitute a contribution act under the Public Official Election Act, since the act of a local government falling under the “act of providing money and valuables in accordance with its own business plan and budget by the State agency or local government” under Article 112(2)4(a) of the Public Official Election Act or “an act of providing money and valuables in accordance with the relevant local government’s ordinances that specifically define the object, method, scope, etc. in its own business plan and budget, or an act of providing money and valuables in accordance with the pertinent local government’s ordinances, which can be evaluated equally

(B) The payment of encouragement money to the police, etc. is to maintain a ties with related agencies, and was made by the Defendant’s full-time officer or the head of a nationwide local government in accordance with the practice that used business promotion expenses similar thereto. Thus, it constitutes a courtesy act under Article 112(2)2 of the Public Official Election Act.

(C) Even if the Defendant’s act does not constitute either an official act or a formal act under the Public Official Election Act, it is reasonable to view that the Defendant’s act constitutes a kind of formal act or an official act, which is within the scope of social order created historically, as a kind of ordinary living form, as far as it is committed for the proper performance of military affairs, and thus, constitutes a sort of formal act or an official act

(D) In compliance with relevant regulations, the Defendant only disbursed business promotion expenses equivalent to those used by the full-time officer, and thus, the Defendant cannot be deemed to have an intention to establish the elements of Articles 257(1)1 and 113(1) of the Public Official Election Act.

(2) The point of unfair sentencing

In light of the circumstances leading up to each of the crimes in this case, the fact that the defendant has contributed to local communities and the State while living public office for 34 years, and the fact that the defendant has been elected due to the degree of tension, etc., the punishment of fine of KRW 2 million sentenced by the court below is too unreasonable.

(b) Swords;

In light of the fact that the amount of donation exceeds KRW 38,200,000, there is a large amount of history of the same kind of crime, and that the defendant does not seem to have the opening, such as the defendant's consistent defense, etc., the sentence imposed by the court below is too uneasible and unfair.

2. Determination:

A. Judgment on misconception of facts or misapprehension of legal principles

(1) The assertion that there is no possibility of constituting an act in the course of performing his duties (or equivalent act) or a formal act, and the argument about the denial of illegality

(A) Article 113 of the Public Official Election Act prohibits the act of donation of the head of a local government in accordance with Article 112(1) of the Act on the Election of Public Officials provides that the types of the act of donation subject to punishment under Article 112(2) of the Act on the Election of Public Officials shall be limited to cases where the act of offering money or goods falling under Article 112(1) of the Act on the Election of Public Officials is not considered as an act of donation, courtesy, relief, charity, shipping, or official duties. In light of the method of the provision of this Act, insofar as the act of offering money or goods falling under Article 112(2) of the Act on the Election of Public Officials does not fall under the act of courtesy or official duties, it constitutes a constituent element of Article 257(1)1 of the Public Official Election Act punishing the act of donation of the head of a local government on the basis of Article 113 and Article 112(2) of the Act on the Election of Public Officials.

(B) According to the evidence duly examined and adopted by the court below, it is acknowledged that the defendant provided or expressed an intention to provide business promotion expenses up to 38.2 million won in cash to police officers, reporters, military council members, and local public officials within Cheongdo-Gun 5 times from May 2, 2005 to February 23, 2006, as stated in the facts of the crime in the judgment below. Even if the amount delivered to the police or reporters was paid through the execution plan and execution procedure in the business promotion expenses organized in the budget of Cheongdo-Gun, the payment does not constitute "money and valuables pursuant to Acts and subordinate statutes" under Article 112 (2) 4 (a) of the Public Official Election Act or "money and valuables pursuant to ordinances of the relevant local government" under Article 112 (2) 4 (b) of the Public Official Election Act or "the act of offering money and valuables pursuant to ordinances of the relevant local government" under Article 112 (2) 5 (b) of the Public Official Election Act, even if the head of the Gun has broad discretion for the purpose of the act, etc.

(C) Furthermore, as to whether the Defendant’s act of courtesy or an official act does not violate social rules and thus, it is reasonable to examine whether the illegality of the act is early terminated, i.e., the following circumstances acknowledged by the evidence duly investigated and adopted by the court below, i., ① provide or expressed an intention to provide a considerable amount of cash of 10,000 to 55 times within a short period of 10 months, and the amount exceeds 38,200,000 won in total; ② The other party to the contribution act of the police or reporter was able to have a significant impact on election or formation of public opinion; ② The contribution act of the Defendant to the police or reporter was inevitable and frequent at the time of its operation, public relations in the region, or cooperation with related agencies; ③ the donation of this case constitutes a violation of the National Finance Act Article 17 of the Local Finance Act, Article 5(2) of the Act on the Regulation of Donations and Use of Donations (the same Act as the former Act), and the National Police Agency’s instructions and regulations 2.

(2) The assertion as to the absence of intention

According to the evidence duly examined and adopted by the court below, the defendant, as the final decision-taking authority on the execution of business promotion expenses, approved a letter of budget execution related to the contribution act in this case with the specific purpose and amount, and ordered the person directly or in practice to execute the business promotion expenses. Thus, it is difficult to view that the defendant did not have awareness of the elements of Article 257 (1) 1 and Article 113 (1) of the Public Official Election Act at the time of the execution of the business promotion expenses. Thus, the defendant'

B. Determination on the assertion of unfair sentencing

The defendant, while holding office as Cheongdo head of Gun, has seriously harmed the fairness of election by providing more than 5 times a year to those who may have an influence on election or formation of public opinion, such as reporters, police officers, military council members, and local public officials, etc., with a large amount of money not meeting their intended purposes. In light of the timing, period, frequency, method, purpose, amount of violation, influence of persons subject to a fine of 80,000 won, even though the defendant had a history of being sentenced to a violation of the past Public Official Election Act, it appears that the degree of illegality was very significant; the defendant committed each crime of this case; the defendant appeared to have been sentenced to a fine of 80,000 won due to a violation of the past Public Official Election Act; there is a need to take strict measures against illegal or lawful election campaign; the defendant's attitude of taking into account the fact that there is no way to introduce regulations on the restriction on contributions to the local community; and the defendant's behavior and behavior that had been committed before his/her growth was conducted.

C. Ex officio determination

Meanwhile, Article 7 of the Addenda to the Public Official Election Act, which was amended and enforced on August 4, 2005, provides that the former Public Official Election Act and the former Public Official Election Act shall apply to the acts conducted before August 4, 2005, which are the former laws, in applying penal provisions to the acts conducted before the enforcement of the Public Official Election Act. Thus, the former Public Official Election Act and the former Act shall apply to some acts conducted before August 4, 2005. However, the lower court erred by applying Article 257 (1) of the Public Official Election Act, which is not Article 257 (1) of the former Public Official Election Act but Article 257 (1) of the former Public Official Election Act, but as long as the statutory penalty of the new Act and the former Act are the same, the lower court’s error does not constitute an error affecting the conclusion of the judgment (see Supreme Court Decision 2003Do3692, Jul. 15, 2005).

3. Conclusion

Therefore, since the appeal by the defendant and the prosecutor is without merit, all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Cho Jin-jin (Presiding Judge)