208No520 Violation of the Public Official Election Act

Hu00, Political Parties

Residence

Reference domicile

Defendant and Prosecutor

In-depths

Attorney Lee E-hoon

Daegu District Court Decision 2008Gohap49 Decided October 28, 2008

Judgment

March 12, 2009

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 1,500,00.

When the defendant fails to pay the above fine, the defendant shall be confined in the old house for the period converted by 50,000 won into one day.

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

1. Summary of grounds for appeal;

A. Part of the prior election campaign against the defendant (1) (A) in mistake of facts

On March 16, 2008, the first instance court found that the defendant was engaged in a prior election campaign in collusion with Kim○-○, on the ground that the △△△○, the president of △△△ branch of the New Zealand, was only prepared and carried out independently, and the defendant was ordered or reported to do so. Thus, the lower court recognized that the defendant was engaged in a prior election campaign by in collusion with Kim○-○. (b) The office fixtures and documents of the △△△△△△ Group (hereinafter referred to as the "AAAAI") located on the second floor of the building located in the building located in the 646-dong-dong-dong, Chungcheongnam-dong, Chungcheongnam-do, the second floor of a similar agency used by the head of the lower court, the Defendant’s personal office-based △△△△△△ Group, or the Defendant’s election campaign office for the National Assembly members of the National Assembly, and even if the defendant was aware of the fact that the △△△△△ branch, the president of the AA Union, was actually employed by the head of the defendant.

(2) Unreasonable sentencing

In light of the fact that the defendant has been living public office for a long time and does not actively intervene in the plan and implementation of regular activities, punishment sentenced by the court below is too unreasonable.

B. Prosecutor (1) misunderstanding of facts or misunderstanding of legal principles

In providing alcoholic beverages, food, and transportation to 409 persons who participated in mountain activities on March 16, 2008, the lower court determined that it was impossible for the Defendant to recognize the facts of the conspiracy despite his conspiracy with Kim 00, or erred by misapprehending the legal doctrine on co-principals.

(2) Unreasonable sentencing

The sentence sentenced by the court below is too uneasible and unfair.

2. Determination

A. Judgment on the Prosecutor’s misunderstanding of facts (1) Summary of the facts charged

The summary of the facts charged as to the defendant's violation of the Public Official Election Act due to the defendant's contribution act is as follows: the defendant, in collusion with Kim ○, on March 16, 2008: around 00, 14 tourist buses posted by Kim ○ on six occasions, including the electorate in front of the AAgu, Nam-gu, Chungcheongnam-do, and about 08, 00: 00 to have 532 participants in the Marisansan City, including the electorate in front of the AAgu, and to gather 500: 0,000, around 0: 00 to 30,000,000, 16,000, 16,000, 16,000, 3,000, and 16,00,000, and 3,000,000,00,000,00,00,00,00.

(2) The judgment of the court below

The court below acknowledged that the defendant, as a full-time representative of the Aapperson established on December 5, 2006, participated in the 18th mountain village conference, frequently, but did not participate in the 18th mountain village conference, but did not participate in the 20th mountain village conference at the time of the 18th mountain village conference, but only the participants of the 200 mountain village council, that the Aapperson Association was subject to the rules of the 2007 mountainous village council, and that the 3rd local council was appointed as the head of the △△△ local council, and that the defendant did not have any reason to establish the 3rd local council and did not directly participate in the 3rd local council for the production and operation of the 4th local council for the 10th local council for the 10th local council for the 2nd local council for the production and operation of the 4th local council for the 10th local council for the 1st local council for the 2nd local council for the 2nd local council for the production and operation of the 4th local council for the new local council for the 2nd local council for the use.

However, according to the evidence duly adopted and examined by the court below, it is difficult to accept the above decision of the court below in the following point, and it is hard to accept the judgment of the court below. ① The defendant was dismissed after having applied for a recruitment as a candidate for a local election to be held in May of the same year on or around April 2006, and then became a full-time representative, joint representative, adviser, advisory member, executive member, office director, etc. ② The AA Union has a full-time representative, joint representative, joint representative, advisory member, office director, general meeting, executive director, etc.; the defendant represents the above organization as a full-time representative and presides over the overall affairs, presides over the steering committee, and Kim ○○-○ was entrusted with the practical affairs of the above organization (including financial affairs) as a secretary general. ④ The AA Union was established around December 5 of the same year and became a full-time representative.

2. From around 10 every month, the defendant was holding a mountain village and registered as members with membership fees of 10,000 from participants in the mountain village. The above mountain village was a major means of securing the members of the AA. The above mountain village village was held under the name of the New Daily Association, but it was not held under a separate organization called the AA branch of the New Zealand or the AA branch of the IA branch of the IA branch of the New Zealand, but it was not a separate organization of the IA branch of the IA branch of the IA branch of the IA branch of the IA branch. Further, the defendant was not informed of the fact that 10,000 won or less than 10,000 won, and the defendant was present at the IA branch of the IA branch of the GI branch of the GI branch of the Dong branch of the Dong branch of the Dong branch of the Dong branch of the Dong branch of the Dong branch of the Dong branch of the 10th day before the date of entry into the II branch of the Dong.

Therefore, even though the facts charged that the defendant, in collusion with Kim○, provided alcoholic beverages, food, and tourist bus transportation in excess of the amount of money that has been paid in excess of 10,000 won as membership fees to the electorates and the electorates residing in the north of AAA Si from among the participants in the instant mountain activities, the court below acquitted the defendant of this part of the facts charged on the ground that it is difficult to deem that the defendant conspired to make a contribution with Kim○, which affected the conclusion of the judgment by misunderstanding the facts.

B. Judgment on the Defendant’s assertion of mistake of facts (1) part of the prior election campaign

위 제2항 가목 ( 3 ) 에서 본 바와 같은 AA연합의 창립경위, AA연합에서의 피고인과 김○○과의 관계, AA연합이 산행을 실시한 목적에 원심 이 적법하게 채택하여 조사한 증거에 의하여 인정되는 다음과 같은 사실, 피고인이 김○○으로부터 이 사건 산행에 대하여 수시로 보고 받고 산행참가자들의 집결지인 영천휴게소까지 따라가 산행참가자들이 탑승한 관광버스에 올라 산행 참가자들에게 피고인이 AA연합의 상임대표임을 밝히고 인사를 하면서 " 저도 상임대표로서 당연히 따라가야 되는데 4월 9일 총선에 쫓아다 니다 보니까 오늘 하루 통째로 시간내기가 어려워서 이렇게 인사만 드립니다. 제가 한나라당 공천신청을 했는데 밥주걱 쥔 사람 위주로 갑디다. 결국은 현역 쪽으로 공천이 떨어져 버렸고, 저는 공천을 못 받았습니다. 못 받았는데 저 여기서 주저앉아야 됩니까 ? 저 때문에 일을 도와주시는 분들이 수도 없이 많은데 총선을 불과 20여일 앞두고 공천을 못 받았다고 걷자 소리를 할라니까 차마 말이 안 나옵니다. 그래서 못 무도 고라고 4월 9일 끝까지 가고 시민공천을 받아 가지고 저도 한나라당에서 열심히 일하면 안 됩니까 ? 저도 당원으로 열심히 뛰겠습니다. 우리 회원들 많이 도와주십시오. " 라고 말하여 자신에 대한 지지를 호소한 사실 등에 비추어 보면, 피고인은 김○○과 공모하여 이 사건 산행을 이용하여 선거구민들에게 자신에 대한 지지를 호소하는 사전선거운동을 직접 하였다고 할 것이어서 이 부분 주장은 이유 없 ( 2 ) 유사기관의 설치 등 금지위반 부분

According to the evidence duly admitted and examined by the court below, as shown in the facts of the crime in the judgment below, the defendant's organization and facilities of the AA Union in collusion with Kim○-○, can be sufficiently recognized as being used for the defendant, who is a preliminary candidate for the 18th election of the National Assembly member of the 18th National Assembly. Thus, this part of the

3. Conclusion

Therefore, the prosecutor's appeal against the acquittal portion of the judgment of the court below is well-grounded, and the above facts charged against the defendant should be sentenced to a single punishment in relation to concurrent crimes under the former part of Article 37 and Article 40 of the Criminal Act. Thus, without examining the prosecutor's and the defendant's assertion of unfair sentencing, the whole judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows

Criminal facts and summary of evidence

The summary of the facts constituting a crime and evidence recognized by this court is as follows: 1. on the 2nd 11th 11th th th th th 2 of the facts constituting a crime of the judgment of the court below, the Defendants’ prior election campaign and the violation of the prohibition against acts of donation by Defendant Kim 00, the 5th th 12th th th th th th th election campaign, and the 13th th th th th th th st th th, and the 15th th th th th th th th th th, "the Defendant was a preliminary post officer," and the th th th th th th th th th th th th th "for the Defendant" added the statements corresponding thereto in the prosecutorial statement against the 00th th th th th 15th th th th th 2 of the judgment of the court below, except the corresponding parts of the court below.

Application of Statutes

1. Article applicable to criminal facts;

Article 254(3) of the Public Official Election Act, Article 30 (a) of the Criminal Act, Article 257(1)1 and Article 113 of the Public Official Election Act, Article 30 of the Criminal Act, Article 255(1)13 and the main sentence of Article 89(1) of the Public Official Election Act, Article 30 of the Criminal Act (a similar institution's occupation for a similar institution)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (the violation of the Public Official Election Act due to an election campaign in advance, the violation of the Public Official Election Act due to a contribution act, the punishment imposed on the violation of the Public Official Election Act due to a more severe contribution act)

1. Selection of punishment;

Selection of each fine

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Concurrent Crimes with Punishment prescribed in the Violation of the Public Official Election Act due to Cumulative Contributions)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

The act of the defendant who provided alcoholic beverages, food and transportation to the electorates, etc. while conducting an election campaign for the election campaign of a National Assembly member for the reason of sentencing under Article 334(1) of the Criminal Procedure Act by using an organization of AAAAAAAAAA and conducting an election campaign on the pretext of mountain activity, is not less than the nature of the crime. However, the act of the defendant who provided alcohol, food and transportation to the electorates, etc., on the other hand, Kim○○ was not aware of the illegality of the above mountain activity by the defendant et al., and the person who led the mountain activity was not the defendant, but was Kim 00; the crime of this case by the defendant et al. in the election of a National Assembly member of the Republic of Korea does not seem to have a decisive influence on the election of the National Assembly member of the Republic of Korea; the defendant did not have any criminal record; and

Judges of the presiding judge: - - – - Other

Judges Lee Jae-deok

judge Kim Jong-he——