2017Gohap467 A. Violation of the Public Official Election Act

(b) Violation of the Political Funds Act;

1. (a) A;

2. A. B

OO (prosecutions) and ○○○ (Public trial)

Law Firm ○○ (For Defendant A)

[Defendant-Appellant]

Law Firm ○○ (For the Defendants)

[Defendant-Appellant]

May 4, 2018

Defendant A shall be punished by imprisonment with prison labor for ten months and by a fine of three million won.

When Defendant B fails to pay the above fine, Defendant B shall be confined in a workhouse for the period calculated by converting KRW 100,000 into one day.

To order the defendant B to pay an amount equivalent to the above fine.

Criminal facts

1. Defendants’ violation of the Public Official Election Act

Anyone shall not include methods prescribed by the Public Official Election Act prior to the election campaign period.

Persons who are prohibited from making an election campaign by means of no election campaign, and from transmitting text messages by means of automatic broadcast communications, shall be limited to candidates and preliminary candidates.

A. Violation of the Defendants’ restriction on prior election campaign and text transmission agent

On December 21, 2016, when Defendant A informed Defendant B of the materials such as news, articles, videos, etc. related to the election campaign of △△△△△ that Defendant B wishes to be a candidate for the 19th presidential election, the Defendants conspired Defendant B to make an election campaign by sending text messages to ○○ Council members by means of automatic broadcast communication, along with relevant articles, videos, etc., and allowing △△△△△ to be elected in the 19th presidential election.

On December 21, 2016, at least 10: 53, the Defendants sent text messages to Defendant B as text messages. On the same day: around 11:32, Defendant B instructed Defendant B to prepare text messages related to the above articles by posting the phone, and around 11:3, Defendant B sent the text messages to Defendant B by means of a computer located in the above church office, w.com with Defendant B’s automatic broadcast communication site at msss. 17.com, “T. 5. 18 graveyard messages and 4. 5. 6. 5m from the 116th 3th 3th 2nd 6th 2nd 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 7th 6th 6th 6th 66th 6th 6th 6th 6th 6th 66th 6th 6. 66th 6th 7. 66th 7.

B. A person who commits an election crime in violation of a restriction on the election campaign body of Defendant A, and is punished by a fine of at least one million won, and for whom five years have not passed after the sentence becomes final and conclusive, has no voting right.

On January 31, 2013, the Defendant, at the Seoul Central District Court, sentenced a fine of 4 million won for a violation of the Public Official Election Act at the Seoul Central District Court on September 26, 2013, and did not have the right to vote for five years since the said judgment became final and conclusive. However, in collusion with B during the period from December 21, 2016 to March 26, 2017, the Defendant sent text messages for the election campaign at ○○ church members on 1,038 occasions to 3,970,527 and carried out an election campaign to have △△△△△△△ elected from the 19th presidential election.

C. Violation of Defendant A’s prohibition of election campaign taking advantage of special status

No person shall conduct an election campaign for members of a religious institution, organization, etc. by taking advantage of an official act in the organization.

As a pastor of the ○○○ church conference, the Defendant notified the members of the church by means of text messages, and in collusion with B during the missionary activities, etc. from December 21, 2016 to March 26, 2017, the Defendant sent 3,970,527 text messages for the election campaign at △△△△△, on 1,038 occasions, against the members of the ○○ church, etc., as mentioned in the above paragraph (1).

As a result, the Defendants conspired to carry out an election campaign to have △△△△ elected in the 19th presidential election by means of information and communication rather than the method prescribed in the Public Official Election Act prior to the election campaign period, and sent text messages by means of automatic broadcast communications even though they are not candidates or preliminary candidates. At the same time, Defendant A did not have the right to vote but carried out an election campaign to have △△△△△△ elected in the 19th presidential election in a religious institution, and carried out an election campaign to have △△△△△ elected in the 19th presidential election by using official activities within a religious

2. Violation of the Political Funds Act by Defendant A

In order to carry out an election campaign at △△△△△, a defendant, who was prohibited from contributing political funds in a way that is not prescribed in the Political Funds Act, in collusion with B during the period from December 21, 2016 to March 26, 2017, who intends to be a candidate for the 19th presidential election, sent text messages for the election campaign at △△△△△△△, which are sent to 3,970,527 over 1,038 times, and made contributions to △△△△△△△△, by bearing 48,392,130 won in total of the transmission cost of the said text messages and bearing 48,392,130 won, which are not prescribed in the Political Funds Act.

Summary of Evidence

1. The defendant A's partial statement

1. Defendant B’s legal statement

1. Each prosecutor's interrogation protocol against the Defendants

1. Each police interrogation protocol against the Defendants

1. Statement of statement to the police officer of the deceased;

1. The details of each accusation note, B submitted materials, text messages, the present state of sending text messages related to △△△△△△, each text message case (Evidence No. 10-17) and each CD from among the materials submitted voluntarily, each text message linker and video contents (Evidence No. 20-37) among the materials submitted voluntarily, each text message linker and video contents (Evidence No. 20-37 of the evidence list), the overall statement of sending text messages, the overall statement of sending text messages, each electronic information confirmation document, each investigation report (related to the USB data in which the record on the front line is recorded), and each CD;

1. Materials concerning expenses incurred in sending text messages, details of settlement of text messages, details of transactions in the new bank account, and current status of bearing of expenses incurred in sending text messages;

Application of Statutes

1. Article applicable to criminal facts;

A. Defendant A: Article 254(2) of the Public Official Election Act; Article 30 of the Criminal Act; Article 256(3)1 (b) and the proviso to Article 59(2) of the Public Official Election Act; Article 30 of the Criminal Act (in all cases, referring to the violation of the method of transmitting text messages on automatic broadcast service; hereinafter referred to as “the method of transmitting text messages on automatic broadcast service”); Articles 255(1)2, 60(1)3, and 18(1)3 of the Public Official Election Act; Articles 255(1)9, and 85(3) of the Public Official Election Act (in all cases, referring to the election campaign that is prohibited from election campaign; hereinafter referred to as the “election campaign”); Article 45(1) of the Political Funds Act (a) (including the fact of denying receipt of political funds and the fact of denying receipt of political funds)

B. Defendant B: Article 254(2) of the Public Official Election Act, Article 30 of the Criminal Act ( comprehensively including the point of a prior election campaign, and comprehensive election), Article 256(3)1(b) and the proviso of Article 59(2) of the Public Official Election Act, Article 30 of the Criminal Act (in violation of the method of transmitting text messages on automatic broadcast communications, including the point of violation of the method

1. Commercial competition;

(a) Defendant A: Articles 40 and 50 of the Criminal Act (Punishments imposed on a violation of the Public Official Election Act due to an election campaign conducted by a person who is prohibited from any election campaign having the largest degree of punishment and nature of crimes among violations of each Public Official Election Act);

(b) Defendant B: Articles 40 and 50 of the Criminal Act (Punishments imposed on a violation of the Public Official Election Act due to prior election campaigns with heavy nature and the nature of crimes)

1. Selection of punishment;

A. Defendant A: Selection of imprisonment with prison labor

B. Defendant B: Selection of fine

1. Aggravation for concurrent crimes;

Defendant A: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act. Article 50 (Aggravation of concurrent crimes with Punishment on Crimes of Violating Political Funds due to Illegal Receipt of Money by Political Parties with More severe Punishment)

1. Detention in a workhouse;

Defendant B: Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Defendant B: Judgment on the Defendants and their defense counsel’s assertion under Article 334(1) of the Criminal Procedure Act

1. As to the assertion that only a mere statement or expression of opinion is not an election campaign

A. Summary of the assertion

The contents of text messages sent by the Defendants do not include the contents of the text messages sent by the Defendants to the extent that they were sent by copying and transmitting a press article or a UDRL that links the news site, and that they did not directly induce the voters to vote or appeal for support for a specific presidential election candidate to the extent that they added the simple contents corresponding thereto. As such, the Defendants’ act of transmitting text messages does not constitute an election campaign. Therefore, the Defendants’ act of transmitting text messages does not constitute an “election campaign” by sending text messages. Therefore, each offense against the Public Official Election Act under the premise that the Defendants were carrying out an “election campaign” by sending text messages, is not established (the attorney of Defendant A made such assertion while the attorney of Defendant A made such assertion, not only as the grounds for sentencing in his counsel’s written opinion, but also Defendant A made a statement to that effect in the final statement process, while Defendant B’s defense counsel made a confession of the instant crime, but also made such assertion in his defense counsel’s opinion as to this point.

B. Determination

An election campaign under Article 58(1) of the Public Official Election Act refers to all acts that are necessary for, or favorable to, winning or defeat the election of a specific candidate and that can objectively be objectively recognized as an intention to promote the success or defeat in the election. It is distinguishable from an act in preparation of an election campaign or ordinary political party activities, which is an internal and procedural preparation for a future election campaign; however, in determining whether a certain act constitutes an election campaign, it shall be determined whether such an act is accompanied by the name of the act, as well as the form of the act, namely, the time, place, method, etc. of the act, by comprehensively observing the relevant act as well as the name of the act (see Supreme Court Decision 2015Da2548, May 2015)

12.23. See, 2013Do1513, supra.

Based on the above evidence, △△△△△△△△△△△△△△△△△’s presidential election was announced around December 2016 at the 19th presidential election, and the Defendants sent text messages to the △△△△△△△△△△△△△△△△△△△△△△△△△△’s election for the 19th presidential election from December 21, 2016, which was 40 days before the 19th presidential election, for the 19th presidential election. This appears to have been active activities for the election of △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△. In light of the timing and period of the election, the text of the election of the △△△△△△△△△△△△△△△△△△, which was a candidate for the election of the 19th presidential election.

In full view of the fact that the Defendants sent a large amount of 3,970,527 letters to ○○ ○ ○○ Professor, who is one’s own pastor or is the president, etc., the Defendants’ act of transmitting text messages is not merely a simple statement of opinion and declaration of intention about the election, but it is reasonable to deem that the Defendants’ act of transmitting text messages constitutes an election campaign as an active and planned act objectively recognized for the purpose of promoting the election of △△△△ in the 19th presidential election. This part of the Defendants and defense attorneys’ assertion is rejected.

2. As to the assertion that there was no intention to violate the Public Official Election Act

A. Summary of the assertion

Defendant B, prior to the instant crime, received a disposition of non-prosecution by the prosecution on the charge that the Defendant sent text messages to support the 19th presidential election. Accordingly, even if the Defendants sent text messages to the △△△△△△ to be the candidate for the 19th presidential election as the instant crime, they did not violate the Public Official Election Act. Therefore, the Defendants did not have any intent to violate the Public Official Election Act (only the Defendants’ defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s statement

B. Determination

From the prosecution on September 20, 2016, Defendant B, on April 2, 2016, indicated Defendant B’s name and route against the truth, and sent false information and a letter expressing a name contrary to the truth by sending out 3,700 conditions for support for the support of the so-called reading support to Defendant B, which was subject to a non-prosecution decision (Evidence 4 of the increase in number) on the ground that Defendant B was not suspected of any lack of evidence as to the criminal facts in violation of the Public Official Election Act. However, it was revealed that Defendant B, as the free reading party member who was actually a member of the so-called Germany, was permitted to use the comprehensive name from the members of the so-called Mad German community with the consent of the election campaign manager who was actually permitted to use the text message from the members of the so-called Mad German community, and it was determined that the investigative agency did not violate the Public Official Election Act, and that Defendant B did not have any criminal facts or any criminal facts in violation of the Public Official Election Act.

Furthermore, the assertion that the Defendants were unaware of whether sending text messages for △△△△△△△△ to be the candidate for the 19th presidential election would violate the Public Official Election Act is merely an assertion of the legal sites or legal errors, and there is no justifiable ground as to such mistake. Therefore, it does not interfere with recognizing the establishment of a crime of violating the Public Official Election Act as stated in the holding.

Judgment on the assertion of Defendant A and his defense counsel

1. As to the assertion that each offense of violating the Public Official Election Act is related to the legal holiday agreement

A. Summary of the assertion

Among the facts constituting a crime, each crime of violation of the Public Official Election Act is established only for the same offense with the heavy number of offenses under Article 255 (1) 2 of the Public Official Election Act.

B. Determination

The term "ordinary concurrence" refers to a case where a single act actually satisfies several elements of a crime, and the term "legal concurrence" refers to a case where a single act appears to meet the constituent elements of several crimes in appearance, but actually constitutes only one crime, and the term "one crime" or " several crimes" shall be determined by considering the evaluation of constituent elements and the protection of legal interests and interests (see Supreme Court Decisions 84Do782, Jun. 26, 1984; 2002Do603, Apr. 8, 2003; 2002Do6033, Apr. 8, 2003). Even if the penal provisions of the Public Official Election Act share the same part of the constituent elements among the penal provisions of the Public Official Election Act, it appears in the system where the Public Official Election Act regulates illegal election regulations, period, and each act is divided into the main body, and the legislative intent of the legislator who has selected such a system is in conflict with each other in terms of the protected legal interests and interests of each of the Public Official Election Act (see Supreme Court Decision 200Do1614, Nov. 29, 2014.

The crime of illegal election campaign under Article 255 (1) 2 of the Public Official Election Act is a provision that ensures fairness and fairness in election by prohibiting participation of a person who is an election criminal and is unable to carry out an election campaign. On the other hand, the crime of violation of the election campaign period under Article 254 (2) of the Public Official Election Act is a provision that guarantees equal opportunities among candidates by allowing all candidates to commence an election campaign at the same time, thereby preventing excessive competition and waste due to the regularization of the election crisis. The crime of violation of various restrictive provisions under Article 256 (3) 1 (b) of the Public Official Election Act is a provision that prevents unauthorized election campaign by preventing a person who is not a candidate or preliminary candidate from transmitting letters to many unspecified persons by means of automatic broadcast communications. The crime of illegal election campaign under Article 255 (1) 9 of the Public Official Election Act differs from the regulations that prevent intervention in election by educational, religious or professional institutions and organizations.

In addition, Article 255 (1) 2 of the Public Official Election Act limits the subject of election campaign by making a person who conducts or makes another person conduct an election campaign in violation of Article 60 (1) of the Public Official Election Act as an element. On the other hand, Article 254 (2) of the Public Official Election Act limits the subject of election campaign by making a person who conducts an act falling under any of the following subparagraphs before the election campaign period as an element. Article 256 (3) 1 (b) of the Public Official Election Act provides that "the subject and method of election campaign shall be transmitted by means of automatic broadcast communication to many unspecified persons" as an element. Article 255 (1) 9 of the Public Official Election Act provides that "a person who conducts an election campaign in violation of Article 80 (3) of the Public Official Election Act by taking advantage of an act in the course of performing his duties within a religious organization, etc., and thereby limiting the subject and object of election campaign as an element of each element.

Therefore, each of the above provisions is different from the "legal interest protected by law" and the elements of Article 255 (1) 2 of the Public Official Election Act are different from each other, and it does not constitute a case where the elements of each of the above provisions are satisfied other than all the elements of the crime of violating the Public Official Election Act, and therefore the former cannot be deemed as having a special relationship with the latter, and the latter cannot be deemed as having a supplementary relationship or absorption relationship with the latter. Thus, if the first act satisfies each of the above elements of the above, a separate crime shall be established, and it shall not be deemed that there is a mutual relationship with the other

We cannot accept this part of the argument of the defendant and his defense counsel.

[On the other hand, Defendant B’s defense counsel asserts that the crime of violation of the various restrictive provisions under Article 256(3)1(b) of the Public Official Election Act is not established between the campaign period under Article 254(2) of the Public Official Election Act, in a case where Defendant A and his defense counsel are deemed to have led to the confession of all of the crimes of this case, and the crime of violation of the various restrictive provisions under Article 256(3)1(b) of the Public Official Election Act is not established. However, as seen above, since the violation of the various restrictive provisions under Article 256(3)1(b) of the Public Official Election Act and the violation of the election campaign period under Article 254(2) of the Public Official Election Act differs from the legal interests protected and the elements of the crime, each of the above public official

2. As to the assertion that each offense of violating the Public Official Election Act and each offense of violating the Political Funds Act are the mutually competitive relationship

A. Summary of the assertion

The violation of the Public Official Election Act and the violation of the Political Funds Act among the facts constituting the crime are in mutual conflict between each other.

B. Determination

The crime of violating each Public Official Election Act is established by "the act of the defendant sending text messages to the members of ○○ church for the election campaign at △△△△△," but the crime of violating the Political Funds Act is established separately from the above act, and the act of the defendant's act of "the act of bearing KRW 48,392,130 in total the cost of transmitting text messages" is different from the act of "the act of the defendant." In addition, the legal interests of the crime of violating the Public Official Election Act are "the fairness of election", and the legal interests of the crime of violating the Political Funds Act are different from each other as "the transparency of political funds." Thus, it is reasonable to see that each of the above crimes is not a commercial competition relationship, but a substantive competition relationship.

We cannot accept this part of the argument of the defendant and his defense counsel.

3. As to the assertion that each crime of violating the Political Funds Act is not established

A. Summary of the assertion

The Defendant is not only the cost of transmitting text messages sent in his name, but also the cost of unilaterally sending text messages for △△△△△ without communication with the △△△△△. Therefore, it cannot be deemed that the Defendant contributed political funds to △△△△△.

B. Determination

1) Article 45 (1) of the Political Funds Act provides that the person who contributes or receives political funds shall be punished by the method not prescribed in that Act. Article 3 (1) 1 of the same Act provides that "political funds" means "B" party membership fees, support payments, deposits, subsidies, incidental revenues prescribed by the party constitution and regulations, etc. of a political party, persons who are elected through an election for public office, persons who intend to be a candidate or candidate for an election for public office, supporters' associations, executives and employees of a political party, or other persons who are engaged in political activities, money, securities, or goods provided to them, and expenses incurred in their political activities," and Article 3 (2) of the same Act defines "contribution" as "all acts in which individuals, supporters' associations or other persons bear the expenses required for political activities of a person who engages in political activities, and such acts as free disbursement of money, goods, facilities, exemption from liability, mitigation of other benefits, etc."

Therefore, political funds prohibited by the Political Funds Act refer to all money, etc. provided to persons who engage in political activities for political activities (see Supreme Court Decision 2013Do19866, Jun. 26, 2014). Moreover, money deposited in a virtual account to be used as expenses for transmitting text messages intended to be elected can also constitute funds for political activities (see Supreme Court Decision 2016Do1947, Oct. 31, 2017).

In light of the above legal principles, the defendant's act of bearing the cost of transmitting text messages is "an act of contributing political funds" under Article 45 (1) of the Political Funds Act, as the defendant bears the burden of paying the cost of transmitting text messages to a third party (Article 59 (2) of the Public Official Election Act) by means of automatic broadcast communication, which is obvious that it is a political activity of △△△△△△, a person who is a person engaged in a political activity. The defendant's act of bearing the cost of transmitting text messages constitutes "an act of contributing political funds" under the punishment of Article 45 (1) of the Political Funds Act, such as the defendant's and his defense counsel's assertion.

2) A person who contributes and receives political funds under Article 45(1) of the Political Funds Act is one of the so-called necessary accomplices. Such accomplices are premised on the fact that each person commits an act in fluence with each other. If each person’s act meets the requirements for the formation of a crime, it is merely punishable and does not necessarily have to be constituted against the donator and all the donators. Even if a person who contributes political funds is not established, if the person who contributes to political funds makes a contribution with the intent to provide political funds in a way that is not provided for in the Political Funds Act, the crime of receiving political funds is established (Supreme Court Decision 2017Do3449 Decided November 14, 2017). Even if the Defendant sent text messages for the election campaign at △△△△△△△, and did not invite to contribute political funds by means of delivery of text messages for the election campaign at △△△△△△△△, and thus, the Defendant’s defense counsel is aware that only the Defendant’s act of receiving and receiving political funds is in violation of the Political Funds Act.

4) We cannot accept this part of the assertion by the Defendant and the defense counsel.

Reasons for sentencing

1. Legal penalty;

A. Defendant A

Imprisonment for not more than seven years and not more than six months;

B. Defendant B

Fine of 6 million won or less

2. Detailed recommendations for the sentencing criteria;

A. Defendant A

Since the defendant's violation of the Public Official Election Act is a commercial competition relationship, the sentencing guidelines are not applied, and each defendant's violation of the Political Funds Act does not set the sentencing guidelines.

B. Defendant B

The defendant's violation of the Public Official Election Act is a commercial competition relationship, so the sentencing guidelines do not apply.

3. Determination of sentence;

A. Defendant A

Imprisonment for 10 months;

In addition, the Defendant is unable to carry out an election campaign because he/she has no right to vote and is unable to carry out an election campaign by means of automatic broadcast communications that are not prescribed in the Public Official Election Act before the election campaign period, and in violation of this provision, he/she carried out a large amount of text messages of 3,970,527 times through 1,038,00 members, who are the members of the ○○○ church, and contributed political funds of 48,392,130 won to a specific candidate by bearing the cost of transmitting such text messages. This is not only a crime that impedes fair competition among candidates for public election and impedes the transparency of the contribution of political funds, but also a crime is very poor in view of the power of sending cell phone text messages through automatic broadcast communications and the cost required therefor. Furthermore, the Defendant appears to have carried out an election campaign in violation of the previous Public Official Election Act, and the Defendant did not appear to have carried out an election campaign again by means of a mere means of regulating the election campaign, such as an automatic election campaign period.

However, a large amount of text messages sent by the Defendant was not used as a stimulative expression, such as delivering information favorable to the election of a specific candidate or inducing support, including false facts related to the election, or slandering the other party candidate, and it seems that the actual result of the election was not significantly affected.

In addition, the defendant's age, character and conduct, occupation, social relation, motive, means and result of the crime, various sentencing conditions as shown in the arguments in this case, such as the circumstances after the crime, shall be determined as the sentence.

B. Defendant B

The crime of this case with a fine of KRW 3 million is not likely to be a crime because the defendant, in collusion with the defendant A, carried out an election campaign by mass sending text messages for specific candidates prior to the election campaign period by means of automatic broadcast communication which is not provided for in the Public Official Election Act.

However, the fact that the defendant was the first offender with no past punishment, and the mass transmission of text messages was made under the lead of the defendant A, and the defendant seems to have been caused by his office staff, and slanders the false facts or other candidates in the contents of mass text messages transmitted by the defendant.

The fact that an expression has not been used is considered as favorable to the defendant, and the defendant's age, character and behavior, environment, motive, means and consequence of the crime, and other various sentencing conditions specified in the arguments of this case, such as the circumstances after the crime, shall be determined as ordered.

Judges Lee Sung-ho

Judges in the heart;

Judges Go-man