Defendant

Prosecutor

The main iron bars (prosecutions) and sick-sicks (public trials)

Attorney Lee Gi-ia

Daejeon District Court Decision 2016Gohap88 Decided December 7, 2016

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 2,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of the grounds for appeal;

Article 112(1) of the former Public Official Election Act (amended by Act No. 11374, Feb. 29, 2012; Act No. 14073, Mar. 3, 2016; hereinafter the same) shall be interpreted to mean the “area where the defendant intends to take out at a certain election in the future” from his/her standpoint as of the time of contribution, and it conforms with the purport of the Public Official Election Act to leave the election by making a donation, which is prepared to make a little contribution, to leave the election.

Nevertheless, the lower court determined that the Defendant’s act cannot be deemed as a third party’s contribution act on the ground that the “election district” under Article 112(1) of the former Public Official Election Act means the election district prescribed in the table of the National Assembly districts for the National Assembly members specified in attached Table 1 of Article 25(2) of the same Act, and that the said table of the National Assembly election district for the National Assembly members lost its effect from January 1, 2016 pursuant to the Constitutional Court’s decision of inconsistency with the Constitution, and the National Assembly revised the Public Official Election Act as Act No. 14073 on March 3, 2016 to determine the election district for the National Assembly members by amending the Public Official Election Act as Act No. 14073 on March 3, 2016.

2. Ex officio determination

Before making decisions on the grounds for appeal, this paper will examine ex officio.

(a) Alteration of indictment;

In the facts charged of this case, the prosecutor changed the phrase “the summary of the facts charged and evidence” and the description “the summary of the facts charged and evidence” as stated in Article 1-A(75-9) to the 23 electorates, including Non-Indicted 3, the electorates, who are the electorates of Non-Indicted 1, and Non-Indicted 4, who are the electorates in the form of opening the election office of Non-Indicted 1, and Non-Indicted 4, etc., who are the electorates in question. On the selective basis of the violation of the Public Official Election Act by the contribution act which the court below rendered a not-guilty verdict, Article 230(1)1 of the Public Official Election Act provides “Article 230(1)1 of the Public Official Election Act” to the applicable provisions of the Act

As the subject of the judgment was changed, the judgment of the court below was no longer maintained.

B. Crimes under the latter part of Article 37 of the Criminal Act

According to the criminal records and investigation records about the defendant submitted by the prosecutor to this court and the contents of each written judgment, the defendant can be recognized on June 3, 2016 as having been sentenced to a suspension of the execution of six months of imprisonment with prison labor for a violation of the Road Traffic Act from the Daejeon District Court's Incheon District Court's Branch for the crime of violation of the Road Traffic Act.

If so, the crime of violation of the Road Traffic Act and the crime of violation of the judgment of the court below, which became final and conclusive, are concurrent crimes under the latter part of Article 37 of the Criminal Act, and the punishment for the above crime is to be imposed at the same time in consideration of equity in the case of concurrent judgment pursuant to the main sentence of Article 39(1) of the Criminal Act. Therefore, the judgment of the court below which determined the punishment without applying the main sentence

C. Despite such reasons for ex officio reversal, the Prosecutor’s assertion of misapprehension of the legal principles is still subject to the judgment of this court, and this is examined.

3. Determination on the grounds for appeal

A. Relevant legal principles

Article 112(1) of the former Public Official Election Act provides that "The term "contribution" in this Act means an act of offering money, goods, or other property benefits, an expression of intent to provide benefits, or an act of promising to provide such things to a person in the relevant constituency or an institution, organization, facility, or electorate, or an institution, organization, or facility outside the relevant constituency, even if such person or organization, or an institution, organization, facility, or facility is located therein," (Article 113), restricts the act of donation by a candidate, etc. (Article 114), acts of donation by a political party or a candidate's family member (Article 115), and punishing a person who made a contribution in violation of such provision (Article 257(1)). Here, the term "person who is located in the relevant constituency" includes not only a person who has a domicile or residence in the constituency, but also a person who temporarily stays in the constituency, and a person who is likely to have a direct or indirect relation with the elector, such as a family, relative, or relative, 2000.

Inasmuch as the Public Official Election Act specifies the other party to a contribution act through the concept of "relevant election district", the act of contribution under Article 112 (1) of the former Public Official Election Act can be established on the premise that the election district in question remains effective at the time of the act. However, since Article 25 (2) of the former Public Official Election Act provides that "the name of the constituency for the National Assembly member and its district shall be as specified in attached Table 1," Article 112 (1) of the former Public Official Election Act provides that "the name of the constituency for the National Assembly member and its district thereof shall be as specified in attached Table 1," it is reasonable to view that where "the relevant election district" under Article 112 (1) of the former Public Official Election Act refers to the election district in the list of the National Assembly member districts for the National Assembly member at the time of the act (see Supreme Court Decision 2016Do20490, Apr. 13, 20

B. Determination on the instant case

The lower court: (a) on the premise that “the relevant constituency” under Article 112(1) of the former Public Official Election Act refers to the constituency prescribed in the schedule of the election district for the National Assembly members in attached Table 1 of Article 25(2) of the same Act; (b) on October 30, 2014, the Constitutional Court rendered a decision that “the list of the election district for the National Assembly members in attached Table 1 of Article 25(2) of the Public Official Election Act (amended by Act No. 11374, Feb. 29, 2012) does not conform with the Constitution; and (c) on December 31, 2015, the said list of the election district for the National Assembly members is still applicable until the legislative amendment was made (see, e.g., Constitutional Court Decision 2012Hun-Ma190, Oct. 30, 2014); (d) on the grounds that the Defendant’s act of offering the new list of election district for the National Assembly members does not become effective.

In light of the above legal principles, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the meaning of "relevant constituency" under Article 112 (1) of the former Public Official Election Act, which affected the conclusion of the judgment.

4. Conclusion

Although the prosecutor's assertion of the legal principles is without merit, the judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act, and it is again decided as follows with regard to the existing facts charged partially modified and the selective facts added in the trial.

The summary of the facts constituting an offense and the evidence acknowledged by this court is as follows, except for the part concerning the facts constituting an offense in the reasoning of the judgment of the court below, and therefore, it is identical to the corresponding part of the reasoning of the judgment of the court below. Thus, it is citing it as it is in accordance with

Of the reasoning of the lower judgment, the first head of “criminal facts” is added to the part of the reasoning of the lower judgment that “the Defendant was sentenced to one year of suspended execution for six months from the date of imprisonment with prison labor for a violation of the Road Traffic Act (driving on June 3, 2016) in the Daejeon District Court’s Incheon District Court’s Branch, and the said judgment became final and conclusive on December 2, 2016.”

The reasoning of the judgment of the court below in 2th 8 and 9 "The above 24 persons who had 24 persons, including the non-indicted 3, who attended the ceremony of opening the election campaign office of the non-indicted 1, appeal for support" in the part of the above 24 persons "The above 24 persons" are as follows: "The non-indicted 4 (the person who is a electoral person and a person who is involved in the election campaign office of the non-indicted 1), the non-indicted 2, the non-indicted 5, the non-indicted 6, the non-indicted 7, the non-indicted 8, the non-indicted 9, the non-indicted 11, the non-indicted 12, the 13, the non-indicted 14, the non-indicted 15, the non-indicted 16, the non-indicted 17, the non-indicted 18, the non-indicted 19, the non-indicted 20, the non-indicted 23, the non-indicted 24 and the non-indicted 24."

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

Article 254(2) of the Public Official Election Act (Selection of Fines)

1. Handling concurrent crimes;

The latter part of Article 37 and the first part of Article 39 (1) of the Criminal Act [the crimes of the market and the violation of the Road Traffic Act for which the judgment becomes final and conclusive]

1. Detention in a workhouse;

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

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The Defendant carried out a prior election campaign for the election of a candidate who was in a close friendly relationship. Such crime is highly likely to impair the fairness and transparency of the election and interfere with the free decision-making of the voters. The date and time of the crime in this case was when the election day was 2 months, and the number of participants who participated in the election is not much possible.

The Defendant has no record of punishment for election crimes, and the crime of this case seems to have no particular influence on the result of election, and the crime of this case is to be considered in light of favorable circumstances, such as the fact that the crime of this case has to be considered in the relation of concurrent crimes with the previous conviction on which the judgment has become final and the latter part of Article 37 of

The above points and the defendant's age, character and conduct, environment, motive, means and consequence of the crime, and all the conditions of all the sentencing as shown in the arguments in this case, such as the circumstances after the crime, shall be determined as ordered.

1. Violation of the Public Official Election Act due to violation of restrictions on contributions by third parties;

A. Summary of this part of the facts charged

No one shall make a contribution act for a candidate or a person who intends to be a candidate, or a person, etc. in the constituency concerned, even if having relations with the electorate, shall make a contribution.

Nevertheless, from around 17:05 on February 14, 2016 to around 19:20 on the same day, the Defendant: (a) requested Nonindicted 4 (a person who has a electorate with the electorate), Nonindicted 2, Nonindicted 5, Nonindicted 6, Nonindicted 7, Nonindicted 8, Nonindicted 3, Nonindicted 9, Nonindicted 10, Nonindicted 11, Nonindicted 12, 13, Nonindicted 14, Nonindicted 15, Nonindicted 16, Nonindicted 17, Nonindicted 18, Nonindicted 19, Nonindicted 20, Nonindicted 21, Nonindicted 22, Nonindicted 23, Nonindicted 24, Nonindicted 24, and Nonindicted 25 (a person who has an elector) to file an appeal for support from the opening of the election campaign office held on the same day; and (b) provided that the Defendant provided a candidate with the total amount of KRW 24,600 and KRW 24,00.

B. Determination

As seen in Article 3-2(2) of the Criminal Procedure Act, since the defendant's above act does not constitute a contribution act, this part of the facts charged constitutes a case where there is no proof of a crime and thus, the defendant should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as the court found the defendant guilty of violation of the Public Official Election Act due to the violation of the election campaign period

2. A violation of the Public Official Election Act by purchasing the elector, which is the selective charge added at the trial;

A. Summary of this part of the facts charged

No person shall provide any money, goods, vehicle, horse, horse, entertainment, other property benefits, or a public or private position to any elector for the purpose of having him/her cast a vote or not to cast a vote, or having him/her elected or not to be elected.

Nevertheless, from around 17:05 on February 14, 2016 to around 19:20 on the same day, the Defendant: (a) had Nonindicted 4 (a person who has a electoral relation with the elector) and Nonindicted 2, Nonindicted 5, Nonindicted 6, Nonindicted 7, Nonindicted 8, Nonindicted 3, Nonindicted 9, Nonindicted 10, Nonindicted 11, Nonindicted 12, 13, Nonindicted 14, Nonindicted 15, Nonindicted 16, Nonindicted 17, Nonindicted 18, Nonindicted 19, Nonindicted 20, Nonindicted 21, Nonindicted 22, Nonindicted 23, Nonindicted 24, and Nonindicted 25 (a person who has an electoral relation with the elector) file an appeal against the elector’s opening ceremony of the election campaign office held on the same day; and (b) provided the elector with entertainment expenses of KRW 240 and KRW 160,000 for the purpose of getting the elector elected.

B. Determination

1) A crime of purchasing an elector’s “election” under Article 230(1)1 of the Public Official Election Act is established when an elector (including a person eligible to enter the electoral register or overseas electoral register, etc. before preparation of the electoral register or overseas electoral register, etc.) offers, expresses an intention to offer, or promises to offer money, goods, horses, entertainment, other property benefits, or public or private positions, with the intention of causing another person to vote or not to vote, or having another person elected or not to be elected. Meanwhile, Article 3 of the Public Official Election Act provides that a person who has a voting right and is listed on the electoral register or overseas electoral register shall be deemed to

2) However, in light of the following circumstances, if the above provision is applied in relation to the election of the local constituency National Assembly member, the scope of the above “voting person” should be deemed to include only the electors in the specific constituency where the person having the effect of the purchase becomes a candidate or intends to become a candidate.

(1) The reason for punishing an elector for a crime of purchasing money or goods is to ensure fairness of the result of an election by preventing the outcome distorted by voting, and offering money or goods to persons other than electors in the relevant constituency for the local constituency National Assembly member who have become a candidate or intend to become a candidate in connection with the election of the local constituency National Assembly member does not have a substantial impact on the election result. Therefore, the full prohibition of offering money or goods, etc. in such cases is an excessive infringement of fundamental rights of individuals, such as freedom of general

② In cases of a provision that prohibits an elector from purchasing money and goods in the relevant constituency and a contribution act similar to the legislative purpose, only the provision of money and goods to the “person located in the relevant constituency” or “person who has relations with the elector concerned,” is punished. The same offense of purchasing money and goods against electors is also consistent with the balance.

3) However, as seen in Article 3-2(b), on February 14, 2016, where the Defendant provided meals to 23 persons, such as Nonindicted 2, etc., it was impossible to find whether the recipient of money and valuables, etc. was an elector in the relevant constituency because the scope of areas included in each constituency was not specified in relation to the election of the local constituency National Assembly member. As a result, whether the pertinent act constitutes an act of purchasing an elector under the Public Official Election Act is not clearly prescribed by law, and it was impossible to predict whether the act was punished from the standpoint of the actor. Nevertheless, punishing the act of offering money and valuables, etc. in the legal blank is not permissible against the principle of no punishment without law

4) Therefore, it cannot be recognized that the Defendant’s act constitutes an act of purchasing the elector. Thus, this part of the facts charged also constitutes a case where there is no proof of crime and thus, a not-guilty verdict should be pronounced pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, inasmuch as the Defendant found the Defendant guilty of violating the Public Official Election Act due to the violation of the election campaign period

Judges Jeon Soo-soo (Presiding Judge)