2012No369 A. Violation of the Public Official Election Act

B. Violation of the Political Parties Act

1.가. 나. 김00 (XXXXXX-2XXXXXX), 국회의원

- 00 - - - In case of a Si in need of accommodation assistance;

XX apartment - - Dong - heading

2.가. 김□□ (XXXXXX-2XXXXXX), 교수( 사립 )

- 00 - - - In case of a Si in need of accommodation assistance;

XX apartment - - Dong - heading

3 .가. 송△△ (XXXXXX-XXXXXXX), 무직

Residential Chungcheong Nam-gun 00, 00 - - Other

4 .가. 박## (XXXXXX-XXXXXXX), 무직

Residential Chungcheong Nam-gun 00, 00 - - Other

Defendant Kim 00, Kim Jong-tae and Prosecutor

Appellate Board (prosecutions, public trials)

Law Firm continental Aju (Defendant KimOO, Kim Jong-tae)

Attorney Lee Jong-soo, Counsel for the plaintiff-appellant

Law Firm New Year’s (Defendant KimO, Kim Jong-chul)

Attorney Lee Han-hoon

Attorney Song Jae-ho (the national ship for △△△)

Attorney On-site (the national election for defendant Park Park Ma3% Ma3%)

Daejeon District Court Decision 2012Gohap32, 60 (merged) decided September 19, 2012

Judgment

November 21, 2012

All appeals filed by Defendant Kim 00, Kim Jong-tae and the Prosecutor against the Defendants are dismissed.

1. Summary of grounds for appeal;

A. Defendant Kim 00

1) misunderstanding of facts or misapprehension of legal principles

A) On November 21, 201, the violation of the restriction on contribution at a Dozine restaurant on November 21, 201

Although the defendant was in contact with Kim 00 and made an advance election campaign by speaking to the effect that the defendant would defend the support of the defendant, it is recognized that the defendant was engaged in an advance election campaign. However, other than this, the defendant's letter was not aware that he was divided to the participants of the meeting, and that he was unable to memory, and even though he was reported, the court below recognized that the defendant was engaged in an act of making an act of making an act of assisting the defendant's letter expressing his name. The judgment of the court below is erroneous in the misunderstanding of facts or by misapprehending the legal principles on the conduct of donation, which affected the conclusion of the judgment.

B) A violation of the restriction on contribution at a 00 cafeteria on December 7, 2011, etc.

The defendant was in contact with Kim 00 and was engaged in a prior election campaign by attending a meeting of the agricultural management association of the above restaurant, attending a group of the agricultural management association of the above restaurant, conducting personnel affairs, and dividing the name of the defendant. However, although Co-Defendant 00 of the court below did not know that Co-Defendant 100 organized the above group and paid meal expenses, the court below recognized that he made a contribution in collusion with the above 000, the court below erred in the misapprehension of facts, or in the misapprehension of legal principles as to the contribution act and public offering, thereby affecting the conclusion of the judgment.

C) On December 7, 201, 201, the violation of the restriction on contribution at 00 cafeterias, etc.

Although the Defendant recognized the fact that the Defendant made an advance election campaign by informing the head of the Guro group to which the above restaurant is granted, and requesting the support of himself/herself, the Defendant did not have divided the Defendant’s letter, the lower court recognized that the Defendant made an act of making an act of making an investment by delivering the letter to the participants. In so doing, the lower court erred by misapprehending the legal doctrine on the mistake of facts or the omission of a flag, thereby adversely affecting the conclusion of the judgment.

D) The point of establishing a similar institution

Although the defendant did not establish the Gyeyang Ho-ho National Health Center (hereinafter referred to as the "Magyeong National Health Center") for the purpose of election campaign, the judgment of the court below which found him guilty of this part of the facts charged is erroneous in the misunderstanding of legal principles as to "the purpose of election campaign", which affected the conclusion of the judgment.

2) Unreasonable sentencing

Punishment (five million won of fine and two million won of fine) declared by the court below is too unreasonable.

B. Defendant Kim Jong-chul

1) misunderstanding of facts or misapprehension of legal principles

A) On December 2, 2011, the violation of the restriction on contribution at a 00 restaurant on December 2, 201

The Defendant, as a matter of course, was in contact with the △△△△△△△, and was able to assist the Defendant Kim 00 at the meeting of the above restaurant, and was engaged in a prior election campaign. However, the Defendant did not know that the △△△△△△△△ was divided the son, and was not aware that the △△△△△△ was unable to memory, and was not aware that the △△△△△ was responsible for the meal expenses of the above group, and did not receive a report, the lower court recognized that the Defendant issued a letter of resignation and made a contribution act in collusion with the △△△△△△△△△△△△△△△△△△△△△△△△△, and that he did not know that the △△△△△△△△△△△ was responsible for the payment of the food expenses.

B) On December 12, 201, at 00 cafeterias on December 12, 201, the violation of the restriction on contributions, etc.

The Defendant was in contact with the members of the Gyeyang △△△△△△△ to attend the meal group of the members of the members of the said cafeteria, and was engaged in prior election campaign upon the request of the members of the said △△△△△△△△△△△△△△△ to help and help on his her son, but in addition, the Defendant did not know that the △△△△△△△△△△△△ was divided his her name and was unable to memory, and did not know that the △△△△△△△△ was responsible for the payment of the meal expenses of the above group, and was reported, the lower court recognized that the Defendant provided the △△△△△△△△△△△△△△△△△△△△△△△△△△△△△, and did not receive a report on this, the lower court erred

2) Unreasonable sentencing

The punishment (three million won of fine) declared by the court below is too unreasonable.

(c) Prosecutors;

원심이 피고인들에게 선고한 형(피고인 김00 벌금 500만원 및 벌금 200만원, 피 고인 김□□ 벌금 300만원, 피고인 송△△ 벌금 500만원, 피고인 박 ## 벌금 200만원) 은 너무 가벼워서 부당하다.

2. Judgment on the misunderstanding of facts or misapprehension of legal principles regarding Defendant Kim 00 and Kim Jong-chul

(a) Basic facts

In full view of the evidence duly adopted and examined by the court below and the court below, the following facts can be considered.

1) Relationship between the Defendants and the relevant persons

Defendant Kim 00 was elected by entering the 19th National Assembly election commission group and the Cheongyang-gun election commission as a candidate for the new one, and Defendant Kim Jong-chul is the spouse of Defendant Kim 00.

Defendant Song △△△△, around June 201, listened to the question that Defendant Kim 00 was getting out of the designated area and engaged in activities, and decided to do the work for the first time with Defendant KimO and Defendant Kim 00 at the office of the Central White Campaign Headquarters, using the establishment of the Central White Campaign Headquarters and the office of the Secretary General of the Central White Campaign Headquarters, and operated as Defendant Kim 00's severe weather alerts.

피고인 박 ## 은 전 부여군 청소년수련원장으로 2011. 8경 계백운동본부의 회원 에 가입하였고, 계백운동본부 상임부위원장의 직함을 갖고 있었으며, 피고인 김OO와는 고향인 부여군 초촌면의 선후배 사이이다.

The mediation 00 is the 00 branch head of the federation, which is a group of agricultural management that gives unfair president and interest to the members of the newly granted military party, and Kim 00 is the head of the council of members of the assigned military council as a group of high-income friendly group with Cho 00 and assist or assist the activities of defendant Kim 00 from October 201.

As a part of the military branch of Defendant Kim 00, Park Jong-O prepared the articles of incorporation for the establishment of the Winter Campaign Headquarters for the purpose of Defendant Kim 00 and carried out the registration affairs. After its establishment, he was in the position of the Secretary-General of the Winter Campaign Headquarters and promoted the activities under the name of Defendant Kim 00 in the name of the National Election Commission. On August 201, 201, he was urged by the Election Commission to ask the election commission about and guide the day he was promoted. However, upon being given a warning by the Election Commission, he suspended the activities under the position of the Director-General of the Winter Campaign Headquarters and performed the Kim 00.

2) Establishment of Defendant Kim 00’s Republic of Korea

Defendant Kim 00 established the Winter Campaign Headquarters, and took the ceremony of opening the office on July 12, 201, and rendered the ceremony of opening the Cheongyang Office on October 27, 201. The establishment and operation funds of the Winter Campaign Headquarters were mostly borne by Defendant Kim 00, and the members of the Cheongyang-yang electorate, who are the relevant electoral electors, did not receive membership fees.

The members of the Gyeyang Bag Movement Headquarters, except Defendant Kim 00, who is the president, had only one of the Defendant 1, who actually held the office of the secretary general, and the secretary general, did not pay a salary as a pure volunteer service worker.

The activities of the Central White Campaign Headquarters were in the stage of attracting members and holding meal meetings, and there was no event that meets the purpose of establishment (Security Education and Service Activities). The office of the Central White Campaign Headquarters was used as the office of the sub-lease, the office of the Council of Members of Cheongyang-gun and the Election Affairs Office in the form of sub-lease during the election period, and its substance was fatal.

3) Defendant Kim 00’s letter publishing commemorative association

Defendant KimO-O was a member of the Youth Training Center in the line of "B" on November 8, 2011, as well as the title "doctrine, overcoming the Doctrine and desire," and the Publication Memorial was present at the Youth Training Center. Defendant Kim Jong-O opened a single publication commemorative meeting.

4) A summary of activities before and after the registration of preliminary candidates for the National Assembly members of Defendant Kim 00 ( December 13, 2011)

On July 12, 2011, Defendant KimO established the Gyeyang Campaign Headquarters with the help of Defendant Song △△△△△△, and re-insign the advertisement for inviting members of the Gyeyang Campaign Center in the newspapers on August 18, 201, after the opening of the hall, and developed the activities under the name of the Gyeyang Campaign Headquarters in the center of the activities of inviting members.

Meanwhile, around August 201, Defendant Kim 00 conspired with the Chairperson of the Council for the Council for Council Members of Hanyang-gun and Chungcheongnam-gun Council for Council Members of Hanyang-gun and appointed him to the Chairperson on September 19, 201, and used the office of the Council for Council Members of Hanyang-gun as the office of the Council for Council Members of Cheongyang-gun.

Defendant Kim 00, including November 8, 201, held a two-time meeting for the publication commemoration of the Korean War, and prepared various event sites, meetings, etc. with the executor according to the fake, and prepared for the election by means of personnel management.

B. Issues

1) As to the violation of each restriction on contribution

피고인 김00, 김□□은 사전선거운동을 한 사실은 인정하면서도 위 각 기부행 위제한 위반의 점에 관하여는 다투고 있는바, 이 부분 공소사실을 유죄로 인정하기 위 해서는 위 각 기부행위의 장소에서 피고인 김00의 자서전 배부 등 기부행위가 이루어 졌는지, 누구에 의하여 기부행위가 행하여졌는지, 자서전 배부 등 기부행위 사실을 피 고인 김00, 김□□이 인식하였는지, 자서전 배부 내지 식사비 지급과 관련하여 피고인 김00와 피고인 조00 및 피고인 김□□과 피고인 송△△, 박 ## 사이에 공모관계를 인 정할 수 있는지 등이 밝혀져야 할 것이다.

2) As to the establishment of a similar institution

In order to find the guilty of this part of the facts charged, it is problematic whether Defendant Kim 00 can recognize the purpose of election campaign in relation to the establishment of the Gyeyang Campaign Headquarters. It is necessary to clarify what scope of the criteria the purpose of election campaign is or not, and the scope of the election campaign that can be included as an election campaign.

C. Relevant legal principles

1) In relation to co-offenders who jointly process two or more persons in a crime, the conspiracy does not require any legal punishment, but is a combination of intent to realize the crime by combining two or more persons in a crime. Although there was no process of the whole conspiracy, the conspiracy relation is established if the two or more persons jointly participate in the conspiracy in order or impliedly, and even if there was no direct participation in the conspiracy, even if there was no direct participation in the conduct, the conspiracy relation is established between the two or more persons, and even if there was no direct participation in the conduct, they shall be held criminal liability for the act of another person as a co-principal, and such conspiracy may be recognized by the circumstantial facts and empirical rules without any direct evidence (see, e.g., Supreme Court Decisions 2004Do7511, Jan. 27, 2005; 2002Do868, Jun. 28, 2002).

2) The subject of an act violating the restriction on contribution is sufficient if it is assessed as a contribution person in full view of various circumstances, and it is not necessarily required to be an owner of ownership or right to dispose of the provided goods. A person who is not recognized as the subject of an act of contribution under Articles 113 through 115 of the Public Official Election Act, in collusion with the subject of an act of contribution, etc., shall be punished under the relevant Act depending on his/her status (see, e.g., Supreme Court Decision 2007Do9507, Mar. 13, 2008).

3) The main sentence of Article 89(1) of the Public Official Election Act is a provision to maintain the fairness of election campaign organizations among candidates and to prevent excessive competition and waste due to the establishment of various forms of election campaign organizations. Whether a certain institution, organization, or facility constitutes a similar institution prohibited under this Article is determined by the existence or absence of the purpose of election campaign. Thus, if it is not established for the purpose of election campaign for a specific candidate, it does not violate the prohibition of this Article. Here, election campaign refers to any act directly or indirectly necessary and beneficial for a specific candidate to make him/herself elected or not to be elected. Election campaign preparation is not included in this section, but if a person who wishes to be a candidate establishes an organization, etc. for the purpose of influencing the electors by exceeding the number of the members of the internal election preparation, it constitutes a milk institution as provided in the above Article (see, e.g., Supreme Court Decisions 2004Do7511, Jan. 27, 2005; 2006Do3275, Jun. 30, 2006).

Preliminary election campaign means an active and planned act that is objectively recognized for the purpose of promoting the success or defeat of a specific candidate among all acts necessary or favorable to obtain or obtain a vote for the purpose of winning an election of a specific candidate in a specific election before the election campaign period, or all acts necessary and unfavorable against him/her for the purpose of defeating a specific candidate, and ordinary and ordinary ordinary acts are excluded here, and whether he/she constitutes ordinary and ordinary acts shall be determined in light of social norms, comprehensively taking into account various circumstances, such as the social status of the offender and the other party, his/her relationship, and the motive, method, and form of the election, etc. (see Supreme Court Decision 2011Do3862, Jul. 14, 201).

The purpose of "purposes that affect electors" is not required to be actively or accurately aware of the purpose, but to be satisfied only with dolusent perceptions. Whether the purpose was the purpose should be reasonably determined in light of social norms by comprehensively taking into account various circumstances, including the social status of the defendant, the relationship between the defendant and the candidate or political party, the motive and details of the act, the method and method of the act, the details and manner of the act, the social situation at the time of the act, etc. (see, e.g., Supreme Court Decisions 2007Do175, Jun. 15, 2007; 2008Do11857, May 28, 2009).

D. Determination on Defendant Kim 00’s assertion

1) Violation of restriction on contribution, etc.

In full view of the evidence duly adopted and examined by the court below and the court below, the following offices can be recognized.

A) Regarding 00 restaurants dated November 21, 201

① The branch00 decided to hold a female-friendly meeting at the above time, at the same place, and contacted his relative Kim 00 before the day he can hold the above meeting, and notified the above meeting of the fact.

② Defendant Kim 00 attended the above restaurant meeting after receiving the communication of Kim 00, divided the participants into the conference and distributed the conversation to the participants while serving in the meeting.

③ Defendant Kim 00 at the time of distribution of his letter of commitment read the letter of commitment as a well-known letter of commitment (Woo 00 statement).

④ At the time of the completion of the above restaurant conference, women who are considered as the principal place of the restaurant opened an entrance and opened out of the restaurant, approximately 3 and 4 minutes after the opening of the entrance, and from around 3 and 4 minutes after the opening of the cafeteria, some of the participants were in the cafeterias, and they took the cafeterias. Defendant Kim00’s Habs, Ha was in the cafeterias, and Defendant Kim O was in the cafeteria, followed out of the cafeterias, and followed Defendant Kim O opened the cafeteria with 1st son (the result of the lower court’s inspection of the video taken out by 00 staff members of the election management council).

⑤ 지00는 피고인 김00의 출판기념회에서 자서전을 구입하여 집에 보관하다 가 식당에 가지고 와서 참석자들에게 배부하였다고 진술하였다가(선거관리위원회에서 의 진술), 출판기념회에서 자서전 10권을 샀다가 2권을 가져오고 나머지 8권을 당원협 의회 사무국장 김00에게 맡겼고, 필요할 때 나누어 줄 수 있도록 가져와 달라고 부탁 하였다 , 위 식당 모임의 2, 3일 전에 김00에게 자서전을 가져와 달라고 말하였는데, 아무런 연락도 없이 피고인 김00가 보좌관과 함께 왔고, 피고인 김00의 옆자리에 앉 아있던 보좌관이 가방에서 자서전을 꺼내더니 "사무국장님이 보내서 가져왔다"라고 말 하였다고 진술하였다(2012. 5. 17.자 검찰에서의 진술).

④ Defendant KimO stated that the prosecution did not know whether Park 00 was taking a cafeteria at the above cafeteria meeting, and that it was not the principal page itself (a statement made by the prosecutor's office on May 24, 2012). On the second day of the court below's trial, Defendant KimO made several female participants who did not receive a private person but want to receive a private person before the boys, and that they were talked between the head of the party members' council, the head of the secretariat of the party members' council, Kim00 and the women who were in charge of women's meetings, and that they brought a self-contest through the assistant, and that they were distributed through the women.

7) Although the KimO sent a door to 00, which, in turn, would be a contribution act that free of charge, brought a letter to the above restaurant for Defendant Kim 00's publicity, he did not immediately refuse it but sent it to Defendant Kim 00. However, he stated that the above fact was not reported to Defendant Kim 00 (a statement at the court of the trial), this is inconsistent with the above statement of Defendant Kim 00.

B) Regarding 00 cafeteria dated 7, 201

① Article 100 of the Korean Agricultural Management Association (hereinafter referred to as the "Federation") was requested by the members of the Federation to create a group of meals for the members of the Association, and Defendant Kim 00 was notified that he would be present at the above group.

(2) The Federation shall decide to hold the above meal group and sent text messages to the members, stating "Korea-do Council Kim 00 chairperson of the Korea-do Council Kim 00 chairperson to attend the meeting."

③ For the above meal group, Kim 00 offered a reservation to the above restaurant under the name of the Winter Campaign Headquarters, and at the time of the meeting, at the place of meal, a notice was given in the name of the chairman of the Gyeyang-gu branch and the meeting of the chairman. However, after that, the pre-contracted, which was recorded as the Winter Campaign Headquarters, was changed into a tourist construction work, and the name of 00 was added.

④ As to the above gathering, it is argued that the federation promoted the above gathering for the purpose of having the difficulties of the federation due to the 00 secretariat membership problems or the scambling problems, etc., but the above union0 was not aware of such facts at the time of the above gathering, but the above union did not notify the participants of the above restaurant that he was scambling at the time of the above gathering, and that the above group did not inform the participants of the fact that scambling was scam at the above restaurant, and that it did not inform the participants of the fact that scambling was scambling at the above restaurant, etc. (Evidence record 1189 page).

⑤ While paying the meal expenses of the above meal group himself/herself, there is no money due to the lack of money on the day of the meeting, and then calculated the money exceeding 400,000 won in cash at the restaurant three days after the date of the meeting and made a statement that he/she did not receive the receipt (However, there is doubt as to when the meal expenses are actually calculated or not (in other words, the statement at the prosecutor’s office of May 18, 2012 and the statement at the seventh trial of the court below). He/she stated that he/she did not have sufficient amount of economic circumstances and that he/she was in a hostile state (the statement at the prosecutor’s office of May 18, 2012 and the statement at the seventh trial of the court below). He/she held the above meeting to be held by the members of the above meeting in excess of 400,000 won without any other motive or purpose to make it clear that he/she paid the meal expenses in excess of 400,000 won.

④ Defendant Kim 00 stated that, at the place of the above meal gathering, she was able to say that she was boomed, that she was trying to keep the same degree only at the original office (a statement at the prosecutor’s office of May 24, 2012) and that she was well aware of the fact that she was to pay meal expenses in the place of the above meal gathering (around May 24, 2012), most of the participants did not know that she was she was boomed. Defendant Kim O was able to stay in the above restaurant because she was not informed of the fact that she was to pay meal expenses in advance or ex post. Defendant Kim O was at the end of the above meal gathering.

C) relating to 00 cafeteria dated 7, 201

① Defendant Kim 00 opened a meeting of the supervising school of the above restaurant to introduce a new person to the participants at the meeting, and at the time of personnel closure, Park Jong-chul performed Defendant Kim 00.

② During the above group’s meeting’s participation in the meeting, Defendant Kim 00’s self-help was distributed to the visitors. Seven persons, among the participants, such as POs, Lee 00, Professor Professor Professor00, Kim 00, women’s head Kim 00, and other name-free boxes, etc., were allocated a self-defense, and Park Professor Professor-O collected three copies of the above group and kept them (this 00 witness stated that he was unable to receive a self-defense at the above restaurant, and that the witness Kim Professor Professor00 and Lee 00 of the trial witness was paid a self-defense, but he was placed at the restaurant, and the defendant’s right to defend the above facts should be modified to 00, and this part of the criminal facts of this case’s judgment of the court below was modified to 70,000, and the defendant’s right to defend the defendant’s above facts was modified to 7,000,000 members of the court below’s own name.

D) Determination

First, in light of the legal principles as seen earlier regarding the act of violation of restrictions on contribution acts related to 00 cafeterias and 00 cafeterias on November 21, 201, as of December 7, 2011, Defendant Kim 00, in light of the above-mentioned basic facts and facts-finding, and circumstances that can be comprehensively seen, Defendant Kim 1 was aware of, or fully aware of, the fact that Defendant Kim 00 divided the letter that was brought by the executing personnel at the time of each of the above meetings to each of the above participants.

Furthermore, as Defendant Kim 00’s assertion, in the instant case where there is no evidence to prove any fact different from the above recognition, such as that Park 00 sought a self-written conference from the above meal meeting at 00 cafeterias, and that six (excluding one person without a name) purchase it, and made a false statement to be received at the time of the above meal meeting, it is difficult to deny the credibility of each of the above statements, as long as there is a little inconsistency with each other with the detailed statement on the details of the fact that Defendant Kim 00 received the self-written statement by the person who received the self-written statement at the above cafeterias, including Park 00, and the circumstances at the time of the above cafeterias, even though there is a little degree of violation of the above recognition.

Next, as to the violation of the restriction on contribution by a restaurant on December 7, 2011, in light of the legal principles as seen above, it is reasonable to view that Defendant Kim O participated in the above gathering directly or indirectly under the implied communication of Defendant Cho ○0 with respect to the joint execution of the crime of contribution by Defendant Kim O and Kim 00, the relationship between Defendant Kim O and Kim o0, the process and character of the above gathering, the process of the change of the contractor and the contractor at the above gathering place, the details of the statement by Defendant Kim 00, the contents of the above gathering, and the progress of the participants of the above gathering, etc.

2) The point of establishing a similar institution

Comprehensively taking account of the evidence duly adopted and examined by the lower court and the first instance court, there is no difference between the facts and determination recognized by the lower court and the lower court. Furthermore, in addition to the recognition and determination of the lower court, it is true that Defendant KimO was to leave the 19th presidential election at the time of the establishment of the Gyeyang Campaign Headquarters or the 10th presidential election thereafter; ② Defendant 00 stated that the 00th △△△△△△△△△△△△△ was merely an activity for the recruitment of its members, and actually did not actually engage in any activity related to the first Purpose of the establishment of the 0th △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ branch’s election campaign for the purpose of promoting the election campaign, and it was sufficient that the branch of the 0th ○○ branch’s election campaign or its members’ election campaign.

3) Sub-determination

Therefore, this part of the judgment of the court below is just and acceptable, and there is no error of law by misunderstanding facts or by misunderstanding the legal principles as to the purpose of contribution act, public offering, and election campaign, which affected the conclusion of the judgment.

Defendant Kim -00's assertion of mistake or misapprehension of legal principles is without merit.

E. Judgment on Defendant Kim Jong-young’s assertion

1) Facts of recognition

In full view of the evidence duly adopted and examined by the court below and the court below, the following offices can be recognized.

(A) On December 2, 20100 00 cafeterias

① 피고인 박# # 은 최00(패트롤 맘 00면 지대장)에게 지인들과의 모임을 마 련해달라는 부탁을 하면서, 자신이 모르는 다른 사람도 데리고 오라고 하였고, 실제로 위 모임에 참석한 사람들은 최00과는 아는 사이지만, 참석자들 전부가 서로 아는 사 이는 아니었다(피고인 박 ## 은 검찰에서 지인들의 연말모임이었다는 취지로 진술하였 으나 위 인정사실에 비추어 믿기 어렵다).

② 피고인 송△△은 피고인 박 ## 과 위 모임 당일에 3차례 통화하고(증거기록 216, 217면) 피고인 김□□에게 위 모임에 참석하도록 연락하였으며, 위 식당에 미리 도착하여 식당 앞에 서서 참석자들을 맞이하고 안내하면서 위 모임의 주최자인 듯이 행동하였고, 식사 전에 계백운동본부에 가서 피고인 김00의 자서전이 담긴 상자를 차 에 싣고 왔다.

③ Defendant Kim Young-chul attended the above meeting to communicate and publicize Defendant Kim 00 at the meeting of the above △△△△△△△△△△, and Defendant Song △△△△△△, who took the sponse of the sponse, went to the above restaurant. Defendant Song △△△△△△△△, who took part in the sponse and took part in the sponse, told Defendant Kim 00 (Evidence No. 166, No. 1099, No. 100, No. 500 of the record of evidence, and the sponsed the previous statement to the same effect as the above recognition, but no reasonable grounds to reverse the previous statement have been explained, and in light of the above circumstances, it is difficult to believe the reversed statement in light of the above recognition).

④ 피고인 송△△은 피고인 김□□이 위 식당을 떠날 때 식당 앞까지 나와 피 고인 김□□을 배웅하였고, 피고인 박 ## 은 상의 안주머니에서 흰 봉투를 꺼내어 봉투 에 든 돈으로 식사비를 계산하였다(연금을 받아 생활하는 박 # # 이 200만원을 인출하여 사용하고 남아 있던 60만원(5만원권 12장 )을 봉투에 넣어 가지고 있다가 직장생활을 하는 며느리의 연말정산 자료로 사용하기 위하여 현금으로 식사비를 계산하고 며느리 명의로 현금영수증을 발급받았다고 진술하고 있는 점도 일상적인 식사비 계산 방법으 로 받아들이기는 어려워 보인다)

B) Regarding 00 cafeteria dated 12, 201

① Defendant Song △△△ established a meeting with female members of the Winter Movement Headquarters, contacted Defendant Kim Jong-tae to contact the meeting of the above meal group, and notified Defendant Kim Jong-chul of the meeting, and agreed to the above meal group by calling the restaurant operator on the day of the meeting to bring the meeting to the restaurant, thereby doing well.

② Defendant Kim Jong-chul attended the above conference and told that Defendant Kim Jong-tae well asked for the attendance of the above conference. While Defendant Kim Jong-chul personnel the participants and remains in the seat, Defendant Song △△△△ divided Defendant Kim Jong-ri’s letter to the participants.

③ On the other hand, Defendant Song △△△ had discussed the participants at the above conference in detail about Defendant Kim Jin Kim-jin’s personal history, etc., and suggested to the participants “Sa, Ga, Ga, and Do” for the purpose of 4. 11. (General Date) (hereinafter “Saman’s statement”).

④ After the conclusion of the above meeting, Defendant Kim △△ and Song △△△△ was the most late place. On the day, meal expenses were not paid, and Defendant Song △△△ was calculated by calculating the meal expenses of the above group on the following day.

2) Determination

위 기초적 사실관계 및 위 인정사실을 종합하여 알 수 있는 사정들, 즉 피고인 김□□과 피고인 송△△의 관계 및 피고인 송△△과 피고인 박 ## 의 관계, 피고인 송△ △의 계백운동본부에서의 지위와 역할, 피고인 김00의 자서전 출판 및 출판기념회 일 자 , 계백운동본부의 설립 · 운영자금의 출연자 , 당시 계백운동본부의 근무자가 피고인 송△△ 1인이었고, 계백운동본부 사무국장직은 무급이었던 점, 피고인 김□□이 피고인 송△△의 연락을 받고 피고인 김00를 알리고 부탁하기 위하여 위 각 식당 모임에 참 석하게 된 경위 및 목적, 피고인 김□□의 위 각 식당에서 한 사전선거운동의 내용 , 위 각 모임의 참석자들의 진술내용 등을 위에서 살펴본 기부행위 및 공모에 관한 법리에 비추어 보면, 피고인 김□□은 피고인 송△△이 피고인 김00의 자서전을 위 각 식당 의 참석자들에게 나누어 주고 있는 것을 알았고, 피고인 송△△과 피고인 박# # 이 피고 인 김00를 위한 사전선거운동 및 기부행위를 하고자 하는 목적으로 위 각 모임을 마 련하였다는 것을 알았으며, 위 모임의 주최자가 누구인지 및 누가 식사비를 지급할 것 인지 등을 미리 알거나 예상할 수 있었으며, 나아가 현장에서도 충분히 인식하였던 것 으로 보인다.

사정이 그러하다면 피고인 김□□은 피고인 송△△, 박 ## 과 직접 또는 간접적으 로 위 각 기부행위 범행의 공동실행에 관한 암묵적 의사연락을 하였다고 봄이 상당하 므로 피고인 김□□의 위 각 기부행위제한 위반의 점에 관한 공모사실을 충분히 인정 할 수 있다.

3) Sub-determination

This part of the judgment of the court below is just, and there is no error of law by misunderstanding facts, or by misunderstanding the legal principles of donation and public offering, which affected the conclusion of the judgment.

The argument of mistake of facts or misapprehension of legal principles by Defendant Kim Jong-tae is without merit.

F. Determination as to the assertion by the defense counsel of Defendant KimO and Kim Jong-tae

With regard to the fact that the defense counsel of Defendant Kim 00 and Kim Jong-ri distributed the letter of contribution to make a contribution by the distribution of Defendant Kim 100, most of the Defendant Kim Kim Kim Kim-young's letter of contribution consisting of the contents that promote the Defendant Kim Kim 00 and most of them do not fall under the objects of contribution prohibited by the Public Official Election Act because they have little economic value to the donor, and thus, they do not fall under the objects of contribution prohibited by the Public Official Election Act. Therefore, the Defendants' act should be regulated by means of a document distribution in a way of law

The term "contribution act" prohibited by the Public Official Election Act refers to the act of offering money, goods, and other property benefits, expressing intent to offer benefits, or promising to provide them to the extent that the defendants supplement the grounds for appeal. According to the records of this case, it is recognized that the defendant KimO opened a 12,00 paper book with a fixed price of 12,00 won and opened a publication commemorative meeting where several hundred persons attend twice to sell a letter. Thus, it is obvious that the defendant Kim Jong-soo constitutes an object of the contribution act as stipulated by the Public Official Election Act. Furthermore, since almost almost all of the above children are composed of pictures and the contents of publicity about the defendant Kim 00, it cannot be viewed as a simple public relations form without any economic value. The above assertion based on this premise is without merit.

3. Determination on the Defendants and the Prosecutor’s assertion of unreasonable sentencing

A. Defendant Kim 00

The defendant, who has served in the military organization for a period of 40 years and served in good faith for the nation and the people, has been working in the 19th National Assembly election, and has been working in a honest political person's life while serving and dedicated in the 19th National Assembly election, should have done his best to ensure that the defendant can engage in the fair election by properly observing the Public Official Election Act that requires more strict and strict standards.

However, under the idea that the competition candidates are taking part in the advance election campaign, and they came to commit each of the instant crimes on behalf of the electors. Moreover, the Defendant attended a meal meeting with assistant electors by preparing 00 or Kim Jong-si, etc. beyond holding a publishing commemorative meeting, and made a contribution by providing meals, etc., and the Defendant did not practice, and eventually used the security education and various volunteer activities claimed for that purpose, as a means to enhance his personal guidance, and eventually, without practicing it. However, even though each of the above crimes was responsible for each of the above crimes, the Defendant’s failure to act on behalf of the electors, such as Song △△△, △△△, 00, and Kim Jong-dong, etc., can be recognized as the degree of negligence by recognizing the degree of negligence.

In light of the above various circumstances and the high public opinion of the people demanding strict countermeasures against illegal or unlawful election campaigns, and the policy needs for such measures are significant, the defendant should be sentenced to a punishment equivalent to the invalidation of election.

In addition, considering the Defendant’s age, character and conduct, family relationship, environment, motive and means of crime, and the circumstances before and after the crime, the lower court’s punishment against the Defendant is too heavy or unreasonable.

B. Defendant Kim Jong-chul

The Defendant, the husband of Defendant Kim 00, was going to the election of the National Assembly member of the 19th National Assembly, and the Defendant’s spouse appears to have committed the instant crime for the purpose of Kim 00. However, even though recognizing the fact that the Defendant committed the prior election campaign clearly prohibited under the Public Official Election Act several times, it is necessary to strictly punish Defendant Lee inasmuch as the nature of the crime is inconsistent with the purport that Defendant Song △△△△△, Park Ma and Park Ma, who was working for Defendant Kim 00, was responsible for each group and election campaigned for the sake of sentencing, and that it was consistent with the purport that he was not aware of it.

However, considering the Defendant’s initial crime and the fact that it appears that the Defendant did not actively lead each act of contribution, and all of the sentencing conditions of the Defendant’s age, character and conduct, occupation, family relationship, environment, motive and circumstance of the crime, and circumstances after the crime, the lower court’s punishment against the Defendant is too heavy or unreasonable.

C. Defendant Song △△△, Park △△△△

Although Defendants were in a planned election for the 19th National Assembly member, and were engaged in a contribution act for Defendant Kim 00, there was a poor quality of crime such as denying only the facts of conspiracy with Defendant Kim Jong-tae. Therefore, even in light of the legislative purpose of the Public Official Election Act and the purport of strict legal provisions, the Defendants need to be punished strictly.

The Defendants came to commit each of the crimes of this case according to their roles that were to act for Defendant Kim 00, and thus, they did not appear to have personally benefited from the act, and considering the Defendants’ age, character and conduct, family relation, environment, records, motive and number of crimes, and all of the sentencing conditions stated in the arguments of this case, including the circumstances before and after the commission of the crime, the lower court’s punishment against the Defendants is too unreasonable.

D. Sub-committee

The assertion of unreasonable sentencing against the Defendants by Defendant Kim 00, Kim Jong-tae, and the Prosecutor is without merit.

4. Conclusion

Since the appeal against the defendants by the defendant Kim 00, Kim Jong-tae and the prosecutor's appeal against the defendants is without merit, all of the appeals are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Masung (Presiding Judge)

Madics

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