2016Gohap37 Violation of the Public Official Election Act

1. A;

2. B

Senior Jins (prosecutions), Cho Dong-hun, and Jins (Trial)

Law Firm C (for Defendant A)

Attorney in charge D

Attorney E (the national election for the defendant B)

January 5, 2017

Defendants are not guilty.

The summary of each judgment of innocence against the Defendants shall be published.

1. Facts charged;

Defendant A was elected as F by going to a reelection (hereinafter referred to as “instant election”) implemented on April 13, 2016, and Defendant B was a person who was declared to be a horse in the election of this case. Defendant B was a person who declared to be a horse in order to go to the election of this case.

A. Defendant A

On March 23, 2016, at around 20:16, the Defendant: (a) called “B, a person scheduled to be retired from the instant election,” and requested “B to give up a horse in the Fre-election and to take part in the election if he wanted to give up the horse in support of B; and (b) to take part in the election after winning the election.”

B accepted the Defendant’s proposal on March 24, 2016, the following day, and the Defendant used 400-5 million won in the process of preparing for an election until the seat, thereby compensating for that amount, and making a change in writing instead of a guide check, and the Defendant stated to B that “the part is not known.”

On March 24, 2016, at around 17:00, the Defendant collected a press dog to be distributed from a press dog that was scheduled on the following day at his own election campaign office located in G, and sent 50,000 won cash bill to B by inserting about 50,00 won in a press dog in which volume of 50 copies of the press dog was included.

Accordingly, the defendant provided B with cash of KRW 2 million for the purpose of getting B not to become a candidate.

B. Defendant B

As described in the above paragraph (a), the Defendant received KRW 2 million in cash from A in return for the renunciation of the voting horse and the opposition to support A.

2. Determination of the facts charged against Defendant A

(a) Facts of recognition;

According to the evidence duly adopted and examined by this Court, the following facts are recognized:

1) H is an issuer of “I”, who is the main place of production, cultivation, and distribution to the Twelcheon, and B publishes a knive for the said Im or delivers a newspaper with H on January 20, 2016. B, on March 2, 2016, posted a knife with the content that “J” gives up the departure under the title of “J” at the Im Examination.

2) On August 11, 2016, H filed a complaint with the K Election Commission (hereinafter “K Election Commission”) stating that “B, upon resignation and resignation of B, upon entering the instant election, the Defendant submitted a written complaint with the effect that “B would be given a contract for several construction works after the election.” On August 12, 2016, H filed an accusation with the Defendant as a violation of the Public Official Election Act, and on August 12, 2016, upon receipt of an investigation at the K Election Commission’s request, “B would resign from the F candidate and cooperate with B so that the Defendant would be given solar construction works,” and that “B did not reply to the receipt of money from the Defendant.”

3) At around 15:01 on August 12, 2016, B made a statement to the effect that “Defendant B, upon receipt of an investigation at the K Line, proposed that he would resign from the F candidate position to B and would accept a request from the head of the Gun later if he would make an interview for the Defendant, and that he would receive the payment for the waiver of the departure, or that he would not receive the payment directly for the waiver of the departure.”

4) Meanwhile, around August 16, 2016, H filed a complaint with the Defendant as a violation of the Public Official Election Act, on the following day: (a) on April 7, 2016, when the members of the Vietnam War Veterans Association of the Republic of Korea (hereinafter referred to as the “L Exclusive Association”) went to visit at Sejong, H provided KRW 100,000 via M, and (b) on April 2016, when the said members were to take meals at a N cafeteria, H filed a complaint with the Defendant for a violation of the Public Official Election Act; and (c) on the same day, the Defendant was present at the investigation of the above metropolitan investigation team and stated that “I would make an additional statement about the part that was not frightened in the K Line’s investigation.” However, the Defendant did not have made a statement that he provided B with KRW 2 million to B.

5) On August 17, 2016, K Line’s investigation into H and B completed the instant first accusation case that H voluntarily closed on the grounds that the suspicion is not recognized.

6) On August 18, 2016, H presented a written petition stating the contents similar to the above accusation to the Supreme Prosecutors' Office, which was attended by the director of the Changwon District Prosecutors' Office on September 6, 2016, and asked B to ask B for the question of whether or not the Defendant provided money, goods, etc. in return for the resignation of assignment after serving in the position, and asked B, for the first time, “B had already received KRW 2 million in return for the waiver of the instant election from the Defendant and for the reply of the press conference from the port located within the P region and received KRW 8 million after being elected.”

7) On October 5, 2016, B also appeared at the first witness examination by theO, and stated, unlike the statements made at the former K K line, that “in relation to the renunciation of the instant election and the support of the Defendant, the Defendant was paid KRW 2 million in cash upon receiving a written reply from the Defendant to support the Defendant.” The second witness examination and the suspect examination continued to have received KRW 2 million from the Defendant in return for the renunciation of the departure.

8) On December 6, 2016, H appeared as a witness on the second trial date of the instant case, and stated to the effect that “B was aware of the fact that the Defendant had already given 2 million won to B before submitting the above accusation on the line of the instant case,” around June 2016, he had been aware of the fact that he had already given 2 million won to B.

B. Determination

1) B stated that the Defendant was to receive KRW 2 million from the Defendant, and that the Defendant was to refrain from the instant election, and that the Defendant was to visit the details supporting the Defendant. On the other hand, even if the Defendant acknowledged that he was to prepare a written visit to B, the Defendant did not have any fact of giving KRW 2 million in return for the waiver of the departure. Thus, the issue of the instant case is whether the Defendant provided the Defendant with KRW 2 million.

2) At the time of this case’s 6th election, the Defendant did not know of the phone call No. B and Q1 at this court, the Defendant’s statement at this court No. B and Q1 at this court, and the Defendant’s statement at this court No. B and Q2 at this court, and the Defendant’s statement at this court No. 2 at the time of this case’s election No. 3, the following circumstances, i.e., the Defendant’s statement that “B and Q1 at the time of this case’s election No. 6th election,” and that the Defendant did not appear to have been asked to preserve the cost of the election No. 4 million won during March 2016.”

3) However, in full view of the following circumstances as seen earlier, it is insufficient to recognize that the Defendant provided KRW 2 million to B solely with the testimony of B, which is the most direct evidence on the issues of this case, and there is no other evidence to acknowledge this part of the facts charged.

가) 출마포기 대가로 피고인으로부터 200만 원을 받은 사실이 있는지에 대해 B은 2016. 8. 12. K 선관위에서 조사를 받을 때는 200만 원 수수사실을 부인하다가 두 달 후인 2016. 10. 5. O에서 조사를 받을 때부터는 이를 인정하면서 진술을 번복한 이유에 대해 '내가 고발한 사안이 아니었고, 큰 문제가 될 것 같아 부인하였다가 피고인의 말과 행동이 너무 다르고 계속해서 거짓말을 하기 때문에 더 이상 묵과해서는 안되겠다는 생각을 했다. L전우회 회원들이 많아 도와주었음에도 불구하고 선거에 당선된 이후에 전화 한 번도 없어 그 행태가 괘씸하다.'라는 취지로 진술하였다.

그런데 B이 K 선관위에서 조사를 받을 때는 피고인이 당선된 날인 2016. 4.13.로부터 이미 4개월이 경과한 시점이고, 피고인이 이미 B의 공사 청탁을 거절한 적도 있기 때문에 B으로서는 조사 당시 이미 피고인에게 섭섭한 감정을 가지고 있었을 것으로 보이는 점, 그럼에도 B은 K 선관위에서 조사를 받은 후 다시 검찰에서 첫 조사를 받을 때까지 2개월 동안 어떤 사정이 있어 진실을 밝히겠다는 심경의 변화를 일으키게 된 것인지에 대해 구체적이거나 합리적인 설명을 하지 못하는 점, B은 이 사건 선거에서 피고인에게 도움을 주었다고 하면서도 구체적으로 어떤 도움을 준 것인지 납득할 만한 설명을 하지 못하고 있고, 경쟁 후보인 R과 동성(同姓)이어서 종친회로부터 출마포기 요청을 받았다는 B의 진술에 비추어 보아도 출마포기만으로는 R에게 이득이 될지언정 피고인에게는 어떠한 이득도 되지 않았을 것으로 추측되며, 피고인으로부터 기자회견문과 200만 원을 함께 받고도 피고인을 지지하는 내용의 기자회견을 하지 않은 것이라면 B으로서는 피고인에게 미안한 감정을 가질 수는 있어도 특별히 섭섭한 감정을 가질만한 상황은 아니었던 것으로 보이는 점 등에 비추어 피고인이 하는 행동이 괘씸해 이제야 사실대로 진술한 것이라는 B의 위 검찰 진술은 이를 그대로 믿기 어렵다.

Rather, H initially stated that, when submitting a letter of complaint on the K Line, B did not mention the part of KRW 2 million when it was first submitted to the K Line, that B was aware of the defect in the process of conclusion by K Line B, as if it was admitted to the prosecution by another person, not B, and that B was aware of the fact that it was first received money, etc. from the Defendant when it was first investigated by the P Line B, and that H received KRW 2 million from the Defendant only after H’s aforementioned prosecutor’s statement. From around June 2016, H stated that B had already received KRW 1 million from B to 3:5,00,000,000 from 3:0 to 1:3:00,000,000 won after the date when it was investigated by the K Line Line, at least 1:3:00,000 won was not mentioned by the election commission, or that at least 2:00,000 won was not mentioned by the Defendant at least 1:2,016,016.

B) B received 50 million won and 2 million won from the Defendant, and the Defendant made a statement to the effect that “B was in a state where 50,000 won and 40 million won were combined in a multiple form, not in a large bag.” However, if the Defendant’s statement was in a state where B requested the resignation of the candidate, it is difficult to believe the above statement in light of the empirical rule that B was in a state where 2 million won and 50 million won were mixed with one of 50 copies and 50 won in a written reply.

In addition, H made a statement at the time of testimony in this court to the effect that "A was given to B, in return for the resignation of the original candidate, the defendant was given KRW 10 million to B. However, B made a statement at the time of the prosecutor's investigation to the effect that "B was given KRW 2 million and has yet to know about KRW 8 million," while B made no statement at the time of the prosecutor's investigation as to whether the defendant was given the promise to receive additional money in return for the resignation of the candidate at the time of the prosecutor's investigation, and there was a fact that he promised to receive not only KRW 2 million but also KRW 8 million from the defendant in this court, "the fact that he was promised to receive more than KRW 2 million from the defendant." As such, it is difficult to say that the statement made to H is consistent with the contents of finite and the prosecutor's statement that he was given to him, and it is difficult to say that there is any attitude to avoid the important part of the statement.

C) In relation to the location of the Defendant’s use of KRW 2 million, B stated, “The wife gave KRW 400,000 to KRW 100,000,000,000 to the wife, used KRW 400,000 as the price for the occupation-oriented company when having taken an visit at the time of Sejong, on April 7, 2016, and the remainder used the cost for the occupation-oriented company,” or stated in this court that “the remainder was to use the cost for the occupation-oriented school.”

First of all, “B received KRW 200,000 from B on March 24, 2016, and received KRW 300,000 on the next day after the date” is inconsistent with Q’s testimony, and it is difficult to believe it (as at the time of this testimony in this court, Q stated the above prosecutor’s statement that Q made a statement of KRW 400,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00).

다음으로 L전우회 회원들의 점심식사 비용으로 40만 원 또는 39만 원을 찬조하였다는 진술의 경우 '세종시 견학은 실제로는 B이 무료관광이라고 회원들을 속이고 한 약품판매에 연계된 관광으로 점심식사 비용도 실제로는 약품판매사에서 제공하는 것이므로 B이 부담할 이유가 전혀 없었으나 괜한 분쟁을 일으키지 말자는 L전우회 회장 T의 말을 듣고 T으로부터 받은 찬조금 100만 원 중 39만 원을 B에게 지급하여 점 심식사 값으로 쓰게 하였다.'라는 취지의 L 총무 S의 증언과도 불일치하여 이를 그대로 믿기 어렵다.

3. Judgment on the facts charged against Defendant B

The Defendant recognized all the facts charged against him. However, as seen earlier, it is difficult to believe that the Defendant denied the receipt of KRW 2 million from the Defendant in the K Line, and the circumstances leading up to the Defendant’s investigation by the prosecution are unclear, the entire statement is not consistent or consistent with the empirical rule, and there is doubt that the statement is not fabricated with a certain intent. As such, it is difficult to believe this part of the facts charged solely on the basis of each description of the statement in the H and Q’s legal statement, and the written statement in the press report and investigation report (the analysis of the monetary content between B and A) attached to the authentic statement prepared by H and Q, and there is no other evidence to prove this otherwise.

4. Conclusion

Therefore, since each of the facts charged against the Defendants constitutes a case where there is no proof of facts constituting a crime, the judgment of innocence is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of innocence is announced in accordance with Article 58(2)

Judges Kim Jong-sik

Judges Park Jong-tae

Judge Lee Jae-hoon