(영문) 대구지방법원 2016.8.17.선고 2015노2565 판결

In the event that the Defendants did not pay the above fine, the Defendants shall be confined to Defendant A, and KRW 50,000 for Defendant B, and KRW 50,000 for Defendant B, respectively, for the period calculated by converting the amount of KRW 1 day into the Labor House. The above fines shall be ordered to be paid provisionally.

Reasons

1. Summary of grounds for appeal;

A. Defendant A

1) misunderstanding of facts or misapprehension of legal principles

Although Defendant A’s money provided to Defendant B is not KRW 500,000,000, the lower court convicted Defendant A of all the charges on Defendant A on the ground of the police officer Nos. 3 and 4 statement of Defendant B, which has no admissibility of evidence. The lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment

2) Unreasonable sentencing

The punishment sentenced by the court below (two years of imprisonment with prison labor for a term of six months) is too unreasonable.

(b) Prosecutors;

Each sentence sentenced by the court below to the defendants (two years of suspended sentence of six months for each one) is too unfortunate.

2. Determination

In addition to the assertion of mistake or misapprehension of legal principles by Defendant A, the part concerning Defendant B in the judgment below is examined ex officio before determining the prosecutor’s grounds for appeal against Defendant B.

Article 312(3) of the Criminal Procedure Act provides that a suspect interrogation protocol prepared by an investigative agency other than a public prosecutor may be admitted as evidence only when the defendant who was a suspect or defense counsel admitted the contents thereof at a preparatory hearing or a public trial date. "When recognizing the contents" in the above provision means not that the contents of the suspect interrogation protocol are recorded as the contents of the statement, but that the contents of such statement are consistent with the actual facts (see Supreme Court Decision 2010Do5040, Jun. 24, 2010). If the documents or documents recording or recording the suspect's statement are prepared in the investigative agency as investigation, it cannot be viewed as different from the suspect interrogation protocol prepared by the investigative agency even if they were written in the form of statement, statement, or self-written statement (see, e.g., Supreme Court Decision 2003Do6548, Jan. 13, 206). The above provision applies not only to cases where the suspect interrogation protocol prepared by the investigative agency other than the public prosecutor is admissible as evidence, but also to cases where the suspect interrogation of the defendant or other defendant (see Supreme Court Decision 2007.

According to the records, Defendant A consistently asserts that money provided to Defendant B is not KRW 500,000,000,000, not KRW 5000,000,000,000,000,000,000,000,000 won since the investigation agency, and Defendant B actively disputed this part. Defendant B, who is an accomplice, testified that he was paid money from Defendant A at the time of the police’s first and second statements, and received KRW 500,00,00 from Defendant A at the time of the police’s third and fourth statements, but immediately thereafter, the investigation agency and the court at the trial, received KRW 50,00,00,00 from Defendant A. In short, the Defendants did not recognize the contents of Defendant B’s statement at the police’s 3 and 4,000,000,000,000,000,00,00 won from Defendant A.

Nevertheless, the court below found Defendant A guilty of violating the Act on Election of Public Organizations, etc. due to receipt of money and valuables, among the facts charged against Defendant A and the facts charged against Defendant B, by recognizing the admissibility of the evidence of the 3 and 4-time statement made by the police officers against Defendant B. The judgment below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment. The Defendant A’s assertion pointing this out is with merit, and the part against Defendant B

3. Conclusion

Therefore, Defendant A’s appeal is reasonable, and pursuant to Article 364(6) of the Criminal Procedure Act, the part on Defendant B among the judgment below on the ground of ex officio reversal as seen above, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the prosecutor’s allegation of unfair sentencing, and the judgment below is

Criminal facts and summary of evidence

The summary of the facts charged by this court and the evidence related thereto are as follows: "The sum of 50,00 won per 50,000 won per 50,000 won per 60,000 won per 50,000 won per 60,000 won per 60,000 won per 10,000 won per 50,000 won per 7,000 won per 2,000 won per 4,000 won per 3,000 won per 3,00 won per 4,000 won per 2,000 won per 2,000 won per 2,000 won per 3,000 won per 3,000 won per 3,000 won per 3,000 won per 3,000 won per 369

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

A. Defendant A: Article 58 Subparag. 1 of the Act on Entrusted Elections by Public Organizations, Etc.; Selection of a fine

B. Defendant B: Article 58 subparag. 3 of the Act on Entrusted Elections by Public Organizations, Etc. (the point of receiving money and valuables), Article 58 subparag. 1 of the Act on Entrusted Elections by Public Organizations, Etc. (the point of providing money and valuables), and selection of each fine

1. Aggravation of concurrent crimes;

Defendant B: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with punishment prescribed in the Act on Elections of Public Organizations, etc. due to Provision of Money and Valuables to H with the largest penalty)

1. Detention in a workhouse;

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

1. Order of provisional payment;

In light of the legislative purpose of the Act on the Election of Public Organizations, etc. intending to contribute to the sound development of public organizations, etc. and the development of a democratic society by correcting existing mixed elections for the reason of sentencing under Article 334(1) of the Criminal Procedure Act, it is recognized that the strict punishment is necessary for the acts to respond to the climate of election like the crimes in this case. However, the value of money provided or received by the Defendants is not so significant, Defendant A has no record of being punished more severe than a fine, and there is no record of being punished for the same crime, Defendant B has no record of being punished for the same crime, Defendant B is the primary offender, the result of the election, the age, character and conduct, environment of the Defendants, the motive, means and consequence of each of the crimes in this case, and the circumstances after the crime in this case.

The acquittal portion

1. Summary of the facts charged

No one shall provide any elector (including a person eligible to enter in the relevant electoral register before preparing the electoral register) with money or other property benefits for the purpose of an election campaign, and no one shall receive any money or other property benefits from the elector, with respect to the first time of an election for the head of a national Dong-si Cooperative, the head of a livestock industry cooperative (hereinafter referred to as "Epic cooperative") implemented on March 11, 2015.

A. Defendant A

The defendant was elected on March 11, 2015 at the first time through the election of the head of a national Dong-si Cooperative, which was implemented by the defendant.

On February 10, 2015, at around 10:0, the Defendant provided B with a total of KRW 500,000 won, 50,000,000, to the Epic Cooperative member B near the greenhouse of the Epic Cooperative member B, which is located in the F of the Elderly Group F, while stating, “I will have the idea of the head of the Epic Cooperative. I will help and deliver.” Accordingly, the Defendant provided 50,000 won to B, who is eligible for entry in the electoral register for the first time election of the head of the Epic Cooperative head, for the purpose of election campaign.

B. Defendant B

The defendant is a member of the Epic Partnership, who is eligible to enter the first time the Epic Partnership President in the electoral register for the Epic Partnership President.

On February 1, 2015, the Defendant: (a) around 10:00 in early 10:0, the Defendant was provided with KRW 500,000,000,00 in total, KRW 10,000,00,000, to be a candidate for the election of the president of the Epic Cooperative in the vicinity of the Defendant’s greenhouse near the Defendant’s greenhouse located in the North Korea’s Republic of Korea, which is a candidate for the election of the president of the Epic Cooperative.

2. Determination

The facts charged in each part of the facts charged constitute a case where there is no proof of crime as seen in the preceding paragraph 2, and thus, the innocence should be pronounced pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as the defendant A’s 300,000 won provision of a single crime is found guilty of the violation of the Act on Commissioned Election of Public Organizations, etc. and the crime of violation of the Act on Commissioned Election of Public Organizations, etc.