Defendant

Defendant

United States Armed Forces

Attorney Ansan-dok et al.

Gwangju District Court Decision 2006Gohap158 Decided September 6, 2006

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 1,500,000.

When the defendant fails to pay the above fine, the defendant shall be confined in the old house for the period calculated by converting 50,000 won into one day.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misunderstanding of legal principles concerning the act of contribution

The defendant, as the vice president of the non-indicted 1 corporation, attended the meeting ceremony on the facts charged (hereinafter in this case's meeting ceremony), and the meal expenses at that time were paid out of the business promotion expenses of the above company, and there was no fact that the defendant paid them by the corporate registry card of the City Council, and this part of the facts charged also does not specify that the defendant paid the above meal expenses (hereinafter in this case's meal expenses) by providing meals equivalent to 255,000 won in total over two occasions. The court below erred by misapprehending the facts and misapprehending the legal principles on the contribution act by recognizing that the defendant paid the meal expenses by paying the above corporate card.

B. Unreasonable sentencing

The punishment (including a fine of 4 million won) sentenced by the court below is too unreasonable.

2. Judgment on misconception of facts or misapprehension of legal principles

A. Summary of the facts charged

The Defendant was elected as a candidate for the Gwangju Metropolitan City Council member per Gwangju (name omitted) Gu (name of a political party omitted) in the fourth nationwide local election that was implemented on May 31, 2006, and was not given a contribution act to the electorate or a person having a relation with the electorate.

On November 205, from around 12:30 to around 13:30, 13:30, in a restaurant located (title omitted) in Gwangju Seo-gu, Seo-gu, Seo-gu, for the reason that 23 trillion won, including Nonindicted Co. 1 Company B promotion of Nonindicted Co. 4, who works in the Gu-employed Factory, is encouraged to leave the Gu-employed local election as a candidate for the members of the Gwangju Metropolitan City Council in the constituency of Gwangju (name omitted). (name of the constituency omitted) The person who prepared the application form for joining the Gu-employed local constituency, received the application form for joining the Gu-employed local constituency from around 12:30 to around 13:30, the person who prepared the application form for joining the Gu-employed local constituency, made a statement to the effect that he will not pay party membership fees, and the person who continued to make a contribution from around 00:301:30 on the following day to around 201:30, 250 won per head.

B. The judgment of the court below

In full view of the evidence of the city, the lower court recognized that the Defendant made a contribution by holding the above meetings at each of the above meetings at each of the places indicated in the facts charged from around 12:30 of November 18, 2005 to around 13:30 of the following day, and from around 00:30 of the following day to 01:30 of the following day, and settling the meal amount with the corporate registry card of the City Council.

C. The judgment of this Court

(1) Issues

In Gwangju Metropolitan City Election Commission, the police, and the prosecution, the defendant was suspected of paying meal costs with the above corporate card when the defendant met on November 18, 2005 and the following day, and the defendant was investigated on November 17, 2005 and the following day, and the meal costs were reflected in the above company's business promotion expenses (However, the defendant was found to have been in the manner of the hearing on August 29, 2006, which was submitted to the court below and on the following day). This part of the indictment was filed without confirming the date of the crime and the method of settling meal costs as seen earlier, and the prosecutor submitted his opinion that this part of the indictment included the purport that the defendant paid the meal costs with the above corporate card in the above corporate meal cards in order to determine whether it constitutes the above corporate meal charges. In light of the above part of the indictment, the defendant's rejection of this part of the indictment was based on the premise that it constitutes the above corporate meal charges and the above corporate food charges.

(2) Whether the instant meal costs have been paid by the corporate card of the Secretariat of the City Council

(A) Evidence conforming to the facts charged

According to the statement of the execution report of the warrant of search and seizure inspection, it is recognized that KRW 150,00 on November 18, 2005 with the above corporation card around 13:07,00 on November 18, 2005, and KRW 145,00 on April 19, 200. The above KRW 145,00 on December 145, 200 was paid with some of the meal costs of the instant case (as stated in the facts of the prosecution), direct evidence that the above KRW 145,00 on February 23, 2006 and March 22, 2006, each recording record (including the record of evidence against the non-indicted 208-223) on April 3, 2006 (including the record of non-indicted 36-384, the record of non-indicted 206, and the record of non-indicted 36,2006 on April 36, 2006).

(B) Review of Nonindicted 2’s statements

At the time of recording on February 23, 2006, Non-Indicted 2 stated, “The circumstances at which Non-Indicted 5 was recorded as a witness (at the time of Non-Indicted 5’s inquiry) that the vice president (Defendant 5) caused him, and that “(Defendant 5) was present at the bar of March 22, 2006, and Non-Indicted 5 was present at the bar of Non-Indicted 5’s statement.” At the time of recording, Non-Indicted 5’s statement, Non-Indicted 5 (“Non-Indicted 5’s statement, Non-Indicted 5’s statement, Non-Indicted 5’s statement, which was not a witness, should be made at the bar of Non-Indicted 5’s statement, and that Non-Indicted 5’s statement, which was not a witness at the time of recording of the card, should also be made by Non-Indicted 5’s statement, which was not a witness at the time of recording of the card.”

However, in light of the following circumstances acknowledged by the record, ① the above contents of the statement made by Nonindicted Party 5 were more concrete, and Nonindicted Party 5 was directly calculated, ② Nonindicted Party 2’s statement at the court room and on-site recording (Evidence No. 18 pages) were allowed to attend the meeting and make a recording at the Defendant’s right time before the end of the meeting, and Nonindicted Party 2 continued to attend the meeting with Nonindicted Party 5’s statement at the time of this case’s opening of the meeting, and it was difficult to view that the recording was made by Nonindicted Party 5’s employees to have been recorded at the time of this case’s opening of the meeting, and that Nonindicted Party 8’s statement was not recorded at the time of this case’s opening of the meeting, and that Nonindicted Party 5’s statement was not recorded at the time of this case’s opening of the meeting, and that Nonindicted Party 7’s statement was not recorded at the time of this case’s opening of the meeting, and that Nonindicted Party 5’s statement was not recorded at the meeting of this case’s opening of the record No. 2.

(C) Review of Nonindicted 3’s statements

공소외 3은 위 2006. 3. 22.자 녹취 당시에는 “저희 조장님한테 카드를 줘가지고 조장님이 결제한 걸로 알고 있거든요. 카드를 부사장님이 빼가지고 저희 조장님한테 드렸어요.”, “···그래서 들고 가서 계산하고 저흰 계산하고 있는 것을 보면서 나갔죠.”라고 진술하였다가 원심 법정에 증인으로 출석해서는 위 진술은 거짓이고, 당시 야간근무를 마치고 잠을 자던 중 집으로 찾아온 선거관리위원회 직원이 다른 사람들이 그렇게 이야기를 했다고 해서 이에 동조하여 진술한 것일 뿐이라고 진술하였는바, 위 2006. 3. 22.자 진술은 위 원심 법정에서의 진술 및 위 (나)의 ② 내지 ⑥의 사정에 비추어 그대로 믿기 어렵다.

(D) Examining the remainder of the evidence

The remainder of the evidence presented by the prosecutor alone is insufficient to recognize the fact that the instant meal cost was settled by the pertinent corporate card, and there is no other evidence to acknowledge it.

(3) Whether the payment of meal expenses of this case constitutes a contribution act

(A) Persons making contributions;

As above, there is no evidence to prove that the meal cost of this case was paid by the above corporation card, and the defendant asserts that the meal cost of this case was paid from the above company's business promotion expenses, and since employees related to the above company have stated the same purport, it is reasonable to regard the meal cost of this case as paid from the above company's business promotion expenses. The act of donation under Article 112 (1) of the Public Official Election Act is a provision of money and valuables to the person provided in Article 112 (1) of the above Act with intent to care for the candidate or the person who intends to become a candidate. It is a common example that the contributor becomes the contributor, but it is not always limited to the actual contributor of the goods, etc., if it is not clear that the contributor and the person who made the donation are not in conformity with the contributor or the person who made the donation or is involved in the act of donation, the reason why the contribution was made, the person who received the contribution, and all related persons including the contributor and the person who made the contribution should be considered to be 308.

However, according to the statement of the defendant at the court below and the court below's 0th day after the defendant's testimony, the defendant's statement at the court below 8, 5, and 3 of the above 5th day, each statement at the court below's 0th day after the defendant's testimony, each statement at the 0th day after the 0th day after the above 0th day after the defendant's testimony, each statement at the 1st day after the 1st day after the 0th day after the above 0th day after the defendant's testimony, and each statement at the 1st day after the 0th day after the 0th day after the above 0th day after the above 2th day after the defendant's testimony, the defendant's participation at the 0th day after the above 0th day after the above 0th day after the above 2th day after the defendant's testimony, and the defendant's participation at the 0th day after the above 0th day after the above 2nd day after the above 2nd day after the defendant's statement.

(b) Persons subject to contribution;

The term "person within the constituency" under Article 112 (1) of the Public Official Election Act, which defines a contribution act, means a person who has his domicile or residence in the constituency as well as a person who temporarily stays in the constituency; and the term "person who has a relation with the elector" means a person who has a certain blood-related or personal relationship with the elector in question, such as his family, relatives, family members, family members, family-friendly Gu, workplace, alumni, native folks' meeting, alumni meeting, relatives' meeting, etc., which may directly or indirectly affect the elector's decision-making (see Supreme Court Decision 2005Do8250, Jan. 26, 2006; 205Do8250, Jan. 26, 2006; 1) the person who attended the election district; 2) the name of the defendant at issue, 4) the name of the person who is present in the election district, 1) the name of Dong-dong (Dong-dong omitted; 6) the name of the defendant at the election district at issue.

42,45,51,52,55, etc. It is recognized that 19 persons (non-indicted 15, No. 44, No. 15, No. 15, No. 15, No. 15, No. 44) were 19 persons, and there is no evidence to prove that the remaining persons were or were staying in the election district, or that they were having relations with the residents of the above election district, the subject of the contribution in this case is limited to the said 19 persons

(4) Sub-determination

Therefore, the judgment of the court below that recognized that the defendant provided meals to all 51 persons present at the meeting of this case and paid the price with the corporate card of the City Council Secretariat, which affected the conclusion of the judgment by misunderstanding of facts or misunderstanding of legal principles, which affected the conclusion of the judgment. Since the crime of violation of the Public Official Election Act, which used the crime of this part and the status, constitutes a commercial concurrent crime, the whole judgment of the court below cannot be reversed.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and it is again decided as follows after pleading.

The defendant was elected by going to the candidate of Gwangju Metropolitan City Council member for the fourth nationwide local election (name omitted) which was implemented on May 31, 2006, and was engaged in the employment of employees and labor management related to employed workers while working as the vice president for the non-indicted 1 corporation, which was the cooperation company of the Gu of Gwangju (name omitted). The defendant is not allowed to carry out an election campaign for its members by taking advantage of an occupational act within the organization of a professional institution, organization, etc., and he cannot make a contribution act to the electorate or the electorate or a person related to him;

On November 205, from 12:30 to 13:30 on the date of mid-to 12:5 on the grounds that from 12:5 p.m. to 13:50 p.m., at (name omitted) cafeteria in Seo-gu, Seo-gu, Gwangju (hereinafter referred to as the “Seoul Motor Vehicle Factory”), 23 trillion won, including Non-Indicted. 4, who was dispatched to the above Non-Indicted. 1 Stock Company 1, who was working in the Gu, are encouraged to enter the local election as a candidate within the constituency of Gwangju (name omitted) in Gwangju (hereinafter referred to as the “Seoul”), 1:5 p.m., from 10 p.m. to 10 p.m., 5 p.m., 1:6 p.m., 200 p.m., 1:6 p.m., 1:6 p.m., 1:6 of the number of persons living in the Gu and 2:1:50 p.m.

The summary of the evidence of the above criminal facts presented by this court is as stated in the judgment of the court below, except for deletion of “1.1. Nonindicted 16 and Nonindicted 6’s written statement of the summary of the prosecutor’s record recording and video recording in the prosecutor’s office against Nonindicted 2, Nonindicted 2, and each record of the record against Nonindicted 3”, “1. The CD listening report on the contents of investigation by Nonindicted 3”, and “1. Nonindicted 3’s non-compliance report”. Thus, it is cited as it is in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

(a) Election campaign by taking advantage of status: Articles 255 (1) 9 and 85 (2) of the Public Official Election Act comprehensively;

(b) Violation of restrictions on contribution acts by candidates: Articles 257 (1) 1 and 113 (1) of the Public Official Election Act, inclusive;

1. Commercial competition;

Article 40 and Article 50 of the Criminal Act (Punishments on Violation of Restriction on Contribution by Candidates with Severe Punishment)

1. Selection of punishment;

Selection of Fines

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

The defendant's statement at the meeting place of this case was the purport that the defendant will be able to receive the application forms for joining the election in preparation for the competition at the meeting place of this case. Thus, according to the defendant's statement and on-site records, the defendant does not constitute an election campaign "" as provided in Articles 58 (1) and 85 (2) of the Public Official Election Act. However, according to the defendant's statement and on-site records, the defendant would be able to make the participants at the meeting of this case at the time of the meeting of this case "it is true that May 31 of the year," and he would be able to make another election. At the same time, I would like to see, , , , , , , , (election name omitted) the Gu will have the opportunity to see, e.g., several different regions, and I will see that the defendant's statement at the meeting of this case is very difficult to see, e.g., the defendant's statement at the meeting of this case is the most difficult.

Since 198, the Defendant has to observe the election law more than anyone who has worked as a member of the Gwangju Metropolitan City Council, and even though he had been sentenced to a fine of 90,000 won due to the violation of the Election of Public Officials and the Prevention of Election Unlawful Act similar to this case in 1998, the Defendant again committed the instant crime. The details of the instant crime also committed the instant crime by taking advantage of the superior position of the vice president of the company and taking advantage of the company’s superior position, and thus, the nature of the crime is not easy to commit the crime. Other circumstances, such as the Defendant’s age, character and conduct, motive, means and consequence of the crime, the number of parties to the act of donation, the amount of contribution, the amount of contribution, and the circumstances after the crime, etc., which are the conditions for sentencing specified in the instant pleading

The summary of the facts charged of this case as to the contribution act is as stated in the above 2-A. Of this part of the facts charged, the fact of the contribution act to 32 persons in this part of the facts charged constitutes a case where there is no proof of crime and thus should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as it is found guilty of the remaining crimes charged with a single comprehensive crime and a commercial concurrent crime, it shall not be

[Attachment List of Dispatched Employees]

Judges Lee Yong-young (Presiding Judge)