2019No331 Violation of the Public Official Election Act

A

Both parties

He/she shall file a prosecution, and he/she shall file a prosecution.

Law Firm Pacific

Attorney Kang Dong-dong, Gyeong-young in charge

Suwon District Court Decision 2018Gohap202 Decided January 18, 2019

June 21, 2019:

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant:

The punishment of the court below (2 million won of fine) is too unreasonable.

(b) Prosecutors;

The sentence of the court below is too unhued and unfair.

2. Determination

A. The defendant needs to be taken into account for the following reasons.

1) The Defendant has been promoting policies for the development of Si B after being elected to the B market.

2) The heads of the Si/Gun in other regions, the heads of the Gu in Seoul Metropolitan Government, the members of the Gyeonggi-do Council, and the members of the National Assembly wish to be the Defendant, including a number of B citizens and B City public officials.

3) The defendant has no record of being punished for the same crime.

B. However, there are also circumstances to punish the Defendant with strict punishment as seen below.

1) According to the evidence duly adopted and examined by the lower court, the following facts can be acknowledged.

First of all, the actual status of the defendant's property as of December 31, 2017 is as follows:

A person shall be appointed.

Next, the defendant's wrong property status stated in the report submitted by the defendant at the time of the case is as follows.

A person shall be appointed.

The defendant's omission of property at the time of the report on the property of the candidate in this case is as follows.

A person shall be appointed.

2) The Defendant omitted the entry of active and negative property subject to registration, and in particular, the Defendant omitted the entry of the loans of KRW 2.9 billion, which were executed to the deceased K (the father of the Defendant, who died on November 18, 2018, after the instant report on the property, as his father; hereinafter “the deceased”) and regardless of who actually belongs to anyone, regardless of who is the economic interest of the loans of KRW 2.9 billion, the said loans are deemed as the obligation of the deceased, as the legal obligation of the deceased, and are also recognized as the intention and the purpose of election.

A) According to Article 65(1) and (6) of the Public Official Election Act, a candidate may prepare a book-type election campaign bulletin for the election campaign, and when a candidate submits it to the competent Si/Gun/Gu election commission, the election commission send it to each household within its jurisdiction. According to Article 65(8)1 of the Public Official Election Act, a candidate’s information disclosure data is required for the second page of the book-type election campaign bulletin, and the status of property should be expressed by the candidate, the spouse of the candidate, and his/her lineal ascendants and descendants.

Article 250(1) of the Public Official Election Act provides that a person who publishes or makes another person publish false facts about the place of birth, status, occupation, career, property, personal activity, activity, organization to which he/she belongs, etc. of a candidate, his/her spouse, lineal ascendants or descendants, or siblings in favor of a candidate (including a person who intends to become a candidate) for the purpose of being elected or making another person be elected shall be punished by imprisonment with labor for not more than five years or by a fine not exceeding 30 million won. The act of submitting a false property registration statement to be made public constitutes punishment for the crime of publishing false facts provided for in Article 250(1) of the Public Official Election Act, and the act of making another person disclose the property registration statement by submitting it as part of an application for registration of a candidate under the relevant Act and subordinate statutes (see Supreme Court Decision 2009Do5945, Oct. 29

B) There is no separate provision defining ‘property' under Article 250(1) of the Public Official Election Act. Article 49(4)2 of the Public Official Election Act provides that a person who applies for registration of a candidate shall submit a report on property subject to registration under Article 10-2(1) of the Public Official Ethics Act. As such, the meaning of property subject to registration under the Public Official Ethics Act can be interpreted as the basis of property subject to registration (see Supreme Court Decisions 2009Do5945, Jul. 26, 2018; 2015Do1379, Jul. 26, 2018). Article 10-2(1) of the Public Official Ethics Act provides that a person who intends to be a candidate for an election shall submit a report on property subject to registration under Article 4 of the Public Official Ethics Act to the competent election commission. Article 4 of the Public Service Ethics Act provides that a person, his spouse (including a person in de facto marital relationship), a person who falls under any of his lineal ascendants and lineal descendants (including property owned in a foreign country).

C) The Defendant asserts that the amount of 2.9 billion won loans to C.C. (hereinafter “C.”) is substantially “the Defendant’s vegetable obligation,” and the sentencing of a fine of 1.0 million won or more equivalent to the invalidation of election is unfair. Therefore, this paper examines whether the above 2.9 billion won loans should be legally considered as a person’s obligation.

The who is a party to a contract constitutes a matter of interpretation of the intent of the party involved in the contract. Interpretation of intent constitutes a matter of interpretation of the party involved in the contract. Interpretation of intent is clearly identifying the objective meaning that the party gave to the act of expressing intent, and in the case where a written form of a contract between the parties as a disposal document is prepared, it shall reasonably interpret the objective meaning that the party gives to the act of expressing intent, irrespective of the party’s inner intent. In such a case, if the objective meaning of the text is clear, barring any special circumstance, the existence and content of the expression of intent shall be recognized (see, e.g., Supreme Court Decisions 2012Da4471, Nov. 29, 2012; 2013Da19830, Sept. 27,

According to the evidence duly adopted and investigated by this court, ① all of the debtor indication column and the confirmation column of the special agreement prepared on May 10, 2017 under C of the Credit Agreement and the confirmation column of the contents of the special agreement are signed and sealed. ② The written mortgage contract prepared on the same day is stated as the debtor K and the debtor K, and attached documents are stated as the document "I accompanying the debtor himself and the debtor K after confirming that he was the debtor," ③ The transfer for security written on the same day is stated as the debtor K and the debtor K, ③ the transfer for security written on the same day, and ④ the above documents are stated as the debtor K and the debtor I, respectively, and the facts written in front of them are acknowledged.

As such, on May 10, 2017, the contents of the credit transaction agreement and the establishment of a right to collateral security and a right to collateral security have been prepared in writing, which is a disposal document, and it is evident that the deceased and the obligor and I were the founders of a right to collateral security. Therefore, barring any special circumstance to recognize otherwise, the parties to the above credit transaction agreement (debtor) should be deemed to be the deceased. As alleged by the defendant, the above loans amount to KRW 2.9 billion were actually used in exchange for the existing business loan of the NF (hereinafter “NF”) of the NF, or the I provided the above loans to CF, or the I paid the above principal and interest of the loan to the KF. However, according to the articles of association of the Association, it can be deemed that the president of the KFF has agreed to pay the above loans to CF after using the above loans. However, in the relationship between the CFF and the standing director of the KFF, it is only the party to the above credit transaction agreement that he provided the above loans to the K.

Therefore, apart from the fact that the economic interest of loans implemented through the above agreement is practically attributed to I, it constitutes a property subject to registration as "the obligation of the principal's lineal ascendant under Article 4 (1) and 4 (2) 3 (e) of the Public Service Ethics Act" and as long as the defendant submitted a false property report and made it open to the public, the crime of publishing false facts under Article 250 (1) of the Public Official Election Act is established.

D) The Defendant, an appellate court, withdrawn all the remaining grounds for appeal, excluding the grounds for appeal that the lower court’s sentencing is unfair, made it clear that it did not dispute the facts charged in the instant case. However, the crime of publishing false facts under Article 250(1) of the Public Official Election Act is a crime with the purpose of causing intentional crimes and exceeding the purpose of getting elected or getting elected, and this is also problematic (Supreme Court Decision 2009Do5945 Decided June 2, 2009), and insofar as the Defendant does not dispute the facts charged in the instant case, it also recognizes all such subjective elements as to the act of making the Defendant submit a false property registration statement about the property subject to registration and disclosing it to the public. Accordingly, in this case, it is recognized that the Defendant was aware that the Defendant actually used the above loans or repaid it to C.C., regardless of whether the Defendant was aware that the Defendant had been aware of the intention to use it, the purpose of “the Defendant’s act subject to reinforcement of his/her obligation” as evidence of the instant case.

3) The Defendant’s omission of the description of the property subject to registration, such as the instant facts charged, is against the legislative intent of the relevant provisions.

A) The legislative intent of the crime of publishing false facts under Article 250(1) of the Public Official Election Act is to ensure the fairness of election by regulating acts that affect the correct judgment of electors by publicly announcing false facts (see Supreme Court Decisions 2009Do5945, supra; 2015Do1379, Feb. 18, 2005). The legislative purpose of the crime is to establish the ethics of public officials that should be provided as servants to prevent public officials from increasing the illegal property of public officials, securing the fairness of performing public duties, and preventing conflicts of interest between public and private interests (see, e.g., Supreme Court Decision 2004Do78, Feb. 18, 2005).

According to Article 49(12) of the Public Official Election Act, the competent election commission shall disclose documents (report on property subject to registration) submitted pursuant to Article 49(4)2 of the same Act to the electorates so that the electors can know. Such candidate information disclosure system is aimed at ensuring the citizen's right to know and the citizen's right to vote by disclosing information about the candidate's occupation, academic background, career, etc. as well as his/her property status, military service records, recent income tax, property tax, aggregate land tax payment and delinquent performance, criminal records, etc. to the elector (see Supreme Court Decisions 2004Da78, supra; 2009Do5945, supra; 2015Do1379, supra). In addition, even if a candidate fails to submit a report on property subject to registration in form, even if he/she fails to register the property, it can be deemed that it actually infringes on the public official's right to know and the right to exercise the elector's right to vote (see Supreme Court Decision 2012Da1274, supra.

B) In light of the above legislative intent, the punishment of the Defendant’s act in this case is that the Defendant’s active property and small property subject to registration are registered and disclosed to the public so that the Defendant may undergo verification and judgment by the right holder, but it is not true registration, thereby affecting the citizen’s right to know, exercise of the right to vote, and the right judgment by the elector.

C) Of the above, regarding the “liability of KRW 2.9 billion to the deceased’s Association.” However, the Defendant should have used the system of refusal of notification under Article 12(4) of the Public Service Ethics Act, and further refuse to notify the deceased’s property under the name of the holder of the right to know. Nevertheless, as long as the Defendant did not use the system of refusal of notification, it should have been determined by the holder of the right to know that the Defendant reported the deceased’s obligations to the public and stated the details and the content of the lending in his own in the remarks column, and then it should have been verified and determined by the holder of the right to know that the Defendant would have been using the same as that of the deceased’s property under the name of the owner of the right to know and that the Defendant would have been using the same as that of the Plaintiff’s property under the name of the owner of the right to know and that the Defendant would have been using the same as that of the Plaintiff’s property under the name of the owner of the right to know, even if having been using the system.

4) In the instant case, the extent that the Defendant omitted the entry of the property subject to registration is serious.

The Defendant completely omitted 10 statements on obligations falling under the subject property to be registered, and the sum of the values thereof exceeds 4 billion won, and the sum of the value of active property omitted by the Defendant also exceeds 200 million won. The Defendant, as well as the above obligations of the Deceased, did not state the property of himself and her spouse as true.

5) It cannot be deemed that the Defendant’s omission in the statement in the property report has a little impact on the election.

피고인이 위와 같이 재산신고서에 사실대로 기재하지 않음으로써 피고인의 재산은 실제로는 -42,916,000원임에도 37억 8,900만 원으로 신고되었고, 잘못된 피고인의 재산상황은 2018. 5. 24.부터 2018. 6. 13.까지 선거관리위원회 인터넷 사이트와 책자형 선고공보에 기재되어 유권자에게 공개되었다. 피고인의 재산상황과 함께 '빈곤한 B시의 재정과 주민들의 팍팍한 살림살이를 개선하겠다', 'A는 돼지 3마리로 시작하여 5,000마리로 키워낸 사람이므로 꿈을 현실로 만들어 드릴 수 있다', 'C조합장 연임' 등의 내용이 기재된 책자형 선거공보(B시장 예비후보자 홍보물 포함) 84,000여 부가 B시 선거권자들에게 발송되었다(증거기록 281~293면). 또한, 피고인의 재산이 37억 원 이상이라는 내용의 언론보도가 2018. 5. 24.부터 2018. 6. 4.까지 사이에 4회 이상 있었는 데(증거기록 298~325면), 그 언론보도 중에는 '흙수저 출신으로 이모네 땅을 빌려 그곳에서 어렵게 구한 새끼돼지 3마리를 키우기 시작하여, 이후 경제적인 어려움을 극복하고 5,000마리의 가축을 기르는 큰 축산가로 성장해 대규모 축산업을 영위하며 C 조합장에 출마해서 꿈을 이루었다'는 취지의 피고인의 인터뷰 내용도 포함되어 있다(증거기록 302, 325면). 피고인과 배우자, 직계 존ㆍ비속의 재산이 합계 37억 8,900만 원에 이른다는 정보와 오히려 약 4,300만 원의 빚이 있다는 정보는 유권자로 하여금 후보자와 배우자, 직계 존ㆍ비속의 재산상황에 관하여 본질적으로 다른 인식을 가지게 할 정도로 현저한 차이가 있다.

6) The circumstances after crimes should also be considered.

After the candidate registration on May 24, 2018, the Defendant did not correct the above mistake in a period of 20 days from the date of June 13, 2018 to the date of the candidate registration. Rather, the Defendant neglected the Defendant’s awareness that the status of property of the Defendant, during the same period, was disclosed to the right holder and reported to the press on the Internet site and book-type declaration bulletin of the election commission. Even after the commencement of the instant investigation, the Defendant asserted that he/she submitted the report without verifying the statement of his/her property and that he/she was responsible to the election campaign manager, etc.

On the other hand, not only the written application seeking a preference against the defendant, but also the written application demanding a strict punishment against the defendant has been submitted.

7) The statutory penalty for the crime of publishing false facts for the purpose of election prescribed in Article 250(1) of the Public Official Election Act is imprisonment for not more than five years or a fine not exceeding 30 million won. According to the sentencing guidelines, with respect to the "Publication of false facts for the purpose of election", the sentencing of recommending the basic area where all of the factors for mitigation (where the other party is small number or low propagation, where the publication of false facts is less than 10 months and less than 2 million won and less than 8 million won, it is difficult for the court below to take into account the following circumstances in light of the equity between the other candidates who reported their own and their lineal ascendant or descendant's properties, and the sentencing of the sentencing of the defendant at least 2 million won, which is the basic sentencing guidelines set forth in the sentencing guidelines, and the sentencing of the defendant at least 1 million won and not more than 2 million won, which is the minimum sentencing period set in the sentencing guidelines set in the above.

3. Conclusion

Therefore, the appeal filed by the defendant and the prosecutor is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act.

For the same judge of the presiding judge;

Judges Min Il-young

Judges Yang Jin-soo