2012No4102 Violation of the Public Official Election Act

A

Defendant

Maximum (Public Prosecution), users (public trial)

Law Firm (LLC) W

Attorney X, Y, Z

Suwon District Court Decision 2012 Gohap321 Decided November 9, 2012

January 25, 2013:

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Error of mistake

Although the Defendant made a telephone call in order to encourage electors to vote, there was no fact that the Defendant conspired with B to provide transportation convenience to electors in collusion with B, or that there was no direction to do so.

B. Unreasonable sentencing

The sentence of the lower court (2 million won of fine) is too unreasonable.

2. Determination

A. As to the assertion of mistake of fact

(1) The lower court determined as follows, on the grounds indicated in its reasoning, as to the Defendant’s assertion (including the same contents of the appeal as they are included in the summary of the grounds for appeal). B received request from the Defendant to inform the electors of the method of voting and the place of voting on the day of voting. Persons who were provided transportation convenience from B became the one with the Defendant or his values G at the time when they were unable to know who the competition preliminary candidate was at the time. On the day of voting day or on the day of voting day, they were the one with the Defendant, or their values G, and they were sent to the above office or its neighboring area on the voting day after hearing the speech that they were sent to the Defendant’s address at the time of voting day or by telephone, and again returned to the investigation agency after voting was carried out. In so doing, the lower court acknowledged that there was no consistency between the Defendant’s testimony and the lower investigation agency at the time of the voting day and the fact that the Defendant did not directly appear to have been aware of the credibility of the voting.

In the co-offender relationship, a public offering does not require any legal form of punishment, but only constitutes a combination of intent to realize a crime through a public offering of more than one person. Although there was no process of the whole conspiracy, if the combination of will was achieved by successively or implicitly through several persons, the public offering relationship is established, and even if there was no direct participation in the execution, even if there was a person who did not directly participate in the conduct, he/she is held liable as a co-principal (see, e.g., Supreme Court Decision 2008Do198, May 8, 2008). Such public offering may be acknowledged by indirect facts which are judged to have considerable relevance by the empirical rule even if there was no direct evidence (see, e.g., Supreme Court Decision 2005Do2014, Sept. 9, 2005). Based on the above legal principles, the lower court’s judgment was recorded and compared with the records, and the lower court determined that there was a public offering of transportation convenience between the Defendant and the Defendant.

[Defendant’s written statement by the police against J, K, and L alleged to the effect that its credibility is nonexistent in light of their age and health conditions at the time. However, considering the fact that each of the above statements made and made a statement that he did not know about the details of his personal experience, it is difficult to accept the above argument (the credibility is high since it was the statement made at the early investigation stage where the time of the crime had not passed since the time of the crime was committed and there was no external meeting or influence). In addition, Defendant asserted to the effect that Q was hospitalized at the hospital in the case of crime in Q, and that there was no difference in the fact that he participated in the light of Q, but the remaining facts except for the part offered by the Defendant in the court of the original trial, all of which were led to the confession (B made a detailed statement about the fact that Q and other senior citizens were born from the police station to the voting place, and that Q also made a detailed statement about the specific circumstances at the time of the crime in the police station’s investigation).

(2) Therefore, this part of the defendant's assertion is without merit.

B. Regarding the assertion of unfair sentencing

(1) The crime of this case is committed by the Defendant in collusion with B for the purpose of enabling the electors to vote in relation to the competition in the 19th general election line E, and is committed by the Defendant in view of the motive and circumstances of the crime, the method and method of the crime, the method and method of the crime, the method and method of the crime, the circumstances after the crime, and the application of the sentencing guidelines of the Sentencing Committee, including the following: (a) the Defendant’s age, character and behavior, the environment, the motive and method of the crime, the degree of participation, the circumstances after the crime, etc., and the fact that the purpose of the Public Official Election Act enacted for the purpose of contributing to the development of democratic politics by preventing any malpractice related to the crime of this case is damaged; (b) the sentence of the lower court is too unreasonable compared to the degree of the Defendant’s responsibility, even if the Defendant’s internal situation is considered.

(2) Therefore, the defendant's assertion on this part is without merit.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The presiding judge and judges shall be appointed.

Judges Kim Gin-ran

Judges Yoon Jong-dae

1) According to the statement of the “written confirmation of admission/discharge” submitted by the Defendant at the trial, Q’s hospitalization period does not include the date of crime.