(영문) 대전고등법원 2017. 2. 16. 선고 2016노304 판결

However, the execution of each of the above punishments shall be suspended for one year for Defendant 1, for two years for Defendant 2, Defendant 3, and Defendant 4 from the date this judgment became final and conclusive.

4.210,000 won shall be additionally collected from Defendant 1.

To order Defendant 1 to pay the money equivalent to the above additional collection charge.

Of the facts charged against Defendants 1, 2, 3, and 4, the violation of the Public Official Election Act due to prior election campaign and the violation of the Public Official Election Act due to the establishment of a similar agency among the facts charged against Defendants 2, 3, and 4, and Defendant 5 are acquitted, respectively.

The summary of the judgment on the acquittal shall be disclosed.

Reasons

1. Scope of the judgment of this court;

(a) Progress of the trial;

The lower court convicted the Defendants of all the facts charged. On the grounds of erroneous determination of facts, misunderstanding of legal principles, and unreasonable sentencing, the Prosecutor appealed on the admissibility of some of the seized evidence, misunderstanding of legal principles as to the collection of evidence due to the violation of the Political Funds Act by Defendants 2, 3, and 4, and on the grounds of unfair sentencing. Prior to the remand of the case, the lower court convicted the Defendants of all the facts charged against the said Defendants, including the modified facts, ex officio, while reversing the lower judgment against the said Defendants on the grounds of changes in the indictment regarding the violation of the Political Funds Act. In so doing, the lower court dismissed each of the appeals by Defendants 1, 5, and the Prosecutor, and appeals by Defendants 1 and 5

On the ground of mistake of facts and misapprehension of legal principles, the Defendants appealed each of the above grounds on the grounds of misunderstanding of legal principles and violation of the rules of evidence (However, both parties did not appeal against the provision and receipt of money and valuables related to Defendant 1’s election campaign).

The Supreme Court rejected Defendant 4’s argument in the grounds of appeal on the violation of the Public Official Election Act due to the provision of money and goods related to the election campaign and the publication of public opinion polls. However, the part of the appellate judgment prior to remanding the Defendants’ violation of the Public Official Election Act due to the establishment of similar organizations established by Defendant 2, Defendant 3, and Defendant 4 and the part of the appellate judgment prior to remanding the Defendants’ violation of the Public Official Election Act due to prior election campaigns was reversed by misapprehending the legal principles on the meaning of “election campaign” under Articles 255(1)13 and 89(1) main sentence of the former Public Official Election Act (amended by Act No. 12267, Jan. 17, 2014; hereinafter “Public Official Election Act”) and the part of the judgment prior to remanding Defendant 1 and the remaining part of the judgment pertaining to Defendant 4’s violation of the Public Official Election Act should be reversed by misapprehending the legal principles on the violation of the Political Funds Act, and all of the judgment prior to remanding Defendant 1 and the remaining part of the judgment pertaining to each of the aforementioned Defendants.

B. Scope of adjudication

Since the part which was not considered as the ground of final appeal in the final appeal has the same effect as that on which a final appeal against that part becomes final and conclusive, the defendant cannot make a claim as to this part any more reasonable ground of final appeal. In addition, in a case where, although the court of final appeal judged that the part which was the ground of final appeal in the final appeal was groundless, all of the convictions were reversed due to other concurrent crimes, and the appellate court again determines the punishment as concurrent crimes after remanding the part which was found as the ground of final appeal, the part which was rejected on the ground that the grounds of final appeal in the final appeal became final and conclusive at the same time as the judgment is rendered, the defendant cannot raise any further dispute as to this part, and the court to which it was remanded cannot make a decision contrary thereto (see, e

Although the violation of each Public Official Election Act due to the provision and receipt of money and valuables related to the election campaign against Defendant 1 and each violation of each Public Official Election Act due to the provision of money and valuables related to the election campaign against Defendant 4 and the publication of public opinion poll against Defendant 4 were reversed and remanded to the court of final appeal, this court cannot make a decision contrary to the above-mentioned legal principles, and thus, this court's substantial scope of judgment is limited to the remaining grounds for appeal except for the grounds for appeal as to the violation of each of the above Public Official Election Act against Defendant 1 and Defendant 4.

The trial process of this case can be arranged as follows, and the part which is processed as brooms is excluded from the scope of substantial trial of this Court.

The judgment of the court below, which included the main text of the judgment of the court below prior to the remanding, reversed the purport of the judgment of the court of final appeal as to Defendant 1’s conviction (excluding the grounds of final appeal) - both convictions guiltys guilty of violation of the Public Official Election Act (excluding the two grounds of final appeal) - both convictions guiltys of both convictions of violation of the Public Official Election Act (excluding the dismissal of both grounds of final appeal) - Defendant 2’s prior convictions of both convictions of guilts of violation of the Public Official Election Act (excluding the grounds of final appeal) - both convictions of both convictions of guilts of violation of the Public Official Election Act (Reversal) - Both convictions of both convictions of guilts of violation of the Public Official Election Act (Reversal of both convictions) - Defendant 2’s prior convictions of violation of the Public Official Election Act (Reversal of two grounds of final appeal) - Defendant 2’s prior convictions of violation of the Public Official Election Act (Reversal of one or both of the grounds of final appeal) (Reversal of final appeal)

2. Summary of grounds for appeal;

A. Defendants

1) misunderstanding of facts and misapprehension of legal principles

The lower court determined that the ○○○○○○○○○○ Forum (hereinafter “instant forum”) constituted a similar institution under the Public Official Election Act for the purpose of election campaign, and the activities of the instant forum constitute an advance election campaign under the Public Official Election Act, and the act of receiving special membership fees from members of the instant forum constitutes a contribution act that receives political funds under the Political Funds Act.

However, the forum of this case is not an organization established for the purpose of election campaign, and the activities of the forum of this case and the Defendants do not constitute election campaign, and the special membership fee of the forum of this case was not contributed to the fund of political activities.

Therefore, among the judgment below determined otherwise, the part concerning the establishment of a similar institution by Defendants 2, 3, and 4, the illegal acceptance of political funds, and the Defendants’ advance election campaign is erroneous by mistake of facts or by misapprehending of legal principles.

2) Unreasonable sentencing

The lower court, against Defendant 1, sentenced Defendant 1 to imprisonment for a year and six months (two years of suspended sentence), additional collection of KRW 4210,00 won, and Defendant 4 to imprisonment for a year and six months (two years of suspended sentence of imprisonment), Defendant 2, and Defendant 3 respectively (two years of suspended sentence of imprisonment), and sentenced Defendant 5 to a fine of three million won.

Such a sentence of the court below is too unreasonable.

(b) Prosecutors;

1) Legal principles

A) The lower court erred by misapprehending the legal doctrine regarding admissibility of evidence, which was collected by executing the warrant of search, seizure, and verification (hereinafter “the warrant of search and seizure”) as of September 25, 2014 and the evidence collected by executing the warrant of search and seizure inspection as of October 2, 2014 (hereinafter “the second warrant of search and seizure”).

B) While the lower court convicted Defendant 2, Defendant 3, and Defendant 4 of the violation of the Political Funds Act, it erred by misapprehending the legal doctrine regarding the collection of additional collection, where it did not sentence the said Defendants a collection of additional collection, which is the subject of actual benefit attribution in relation to the received funds.

2) Unreasonable sentencing

The sentence of the court below is too unhued and unfair.

3. Ex officio determination on Defendant 2, Defendant 3, and Defendant 4

The grounds for appeal shall be examined ex officio prior to the judgment.

On the 9th trial day prior to the remanding of the case, the Prosecutor filed an application for changes in the indictment with the content of “159,634,00 won in total from 67 persons,” respectively, to “159,634,00 won in total from 71 persons,” and this Court (the appellate court prior to the remanding of the case, No. 2014,466), and “159,634,000 won in total from 71 persons,” among the facts charged in the case, No. 2014,466 and No. 1-2 of the Daejeon District Court No. 2014, Dec. 31, 200, the Prosecutor changed the portion of the facts charged in the case, No. 2014,4666 to Defendant 2 on the 17th trial day, and the Prosecutor changed the portion of the charges in the case, No. 2014, Apr. 1, 2014>

However, since the judgment of the court below imposed a single punishment by deeming that each of the crimes in violation of the Political Funds Act and the remaining crimes in the judgment against the above Defendants are concurrent crimes under the former part of Article 37 of the Criminal Act, the part against Defendants 2, 3 and 4 in the judgment of the court below cannot be maintained as they are.

However, the above Defendants, 1, 5, and the Prosecutor’s argument of misunderstanding of facts or misunderstanding of legal principles as seen earlier is still subject to the judgment of this court, and thus, the following Section 4 will be examined.

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

A. As to the admissibility of evidence related to the forum of this case

1) Facts concerning particulars of collection

The following facts may be acknowledged according to the evidence and records duly adopted and investigated by the court below and the appellate court before remanding.

A) Acceptance of an accusation by an election commission

On July 31, 2014, the election commission of △△ Metropolitan City filed an accusation against Nonindicted 3 and Nonindicted 4 with the prosecutor’s office on the suspicion that “Nonindicted 3 and Nonindicted 4 mobilized part-time students within the election campaign office of Defendant 3, caused them to carry out a telephone campaign, and paid allowances to part-time students.”

(B)request, issuance and enforcement of the first warrant of seizure;

(1) The Prosecutor’s Office conducted an investigation into the suspected facts of suspicion as stated in paragraph (a) on the basis of Nonindicted 3 and Nonindicted 5’s account details, and the telephone promotion agency’s representative Nonindicted 3’s account details. During the above investigation, the Prosecutor discovered that the crime of providing money and valuables to the telephone campaign workers was committed at the actual level of the organization of Defendant 3’s election campaign office, and investigated Defendant 1, the head of the organization office in the above election campaign office, on September 2, 2014.

B. Defendant 1 completely denied the above facts in the process of the above investigation. After that time, Defendant 1 exercised the right to refuse to make statements in several times, Defendant 1 requested the Daejeon District Court for a search and seizure warrant by clarifying the necessity of the search and seizure warrant on September 24, 2014, with the following: (a) through search and seizure of Defendant 1’s dwelling place, office of the KOBD office (at the time of Defendant 1’s dwelling place, office of the KOB), and office of the instant forum office (at the time of the aforementioned election campaign office’s consolidation), Defendant 1 managed the solicitation of campaign workers and the payment of the cost for election campaign as the head of the organization office of the election campaign office; (b) the source of funds paid as allowances; (c) the personal information of election campaign workers

On September 24, 2014, a judge in charge of warrant of the Daejeon District Court issued the first seizure warrant as follows.

Defendant 1: (a) In collusion with Nonindicted 6, Nonindicted 4, Defendant 7, Defendant 8, etc. related to the election campaign office, including the co-defendants of the first instance trial, and Nonindicted 3, and Nonindicted 5, the co-defendants of the first instance trial; (b) mobilized 79 telephone campaign workers on May 22, 2014 through 3, 2014; and (c) provided the electorates with KRW 43,286,00 in return for telephone campaign material for the aforementioned Defendant 3 candidates. On June 1, 200, Defendant 1 conspired with Nonindicted 6, Nonindicted 4, Defendant 7, Defendant 8, etc., and Nonindicted 3, and Nonindicted 5, Defendant 3’s election campaign workers equipped with telephone publicity system equipment at the election campaign office; and (d) provided them with KRW 43,286,00 in return for telephone campaign material’s online search, seizure, and other storage media related to the instant suspected facts.

Applicant The Prosecutor’s Office, based on the first warrant of seizure on September 25, 2014, in executing the search and seizure at the forum office of this case at around 11:00-14:45 on September 25, 2014, seized 30 documents and books as stated below (the list of seizure was delivered to Defendant 2) and seized 8,628 files (including DNA files) within 4 computers and 2 USB in the office and 8,628 files in the portable storage medium. After copying and storing copies on the computer screen, the Prosecutor’s Office prepared a field investigation report containing the contents related thereto, and obtained consent from Defendant 2 who participated in the execution of the warrant, to the effect that electronic information not directly related to the above suspected facts can be mixed.

본문내 포함된 표 ▷ 공소외 4 ☆☆☆화재 우편물 1개 ▷ ○○○○○○○○포럼 명단 1장 ▷ 피고인 2 명의 2014 ▽▽증권 검은색 수첩 1개 ▷ △△경제투어시즌(경청투어) 1묶음 ▷ △△경제투어 시즌Ⅱ(경청투어 첫 번째) 1묶음 ▷ 회원가입신청서(공소외 7 등 22명) 1묶음 ▷ 2014 TFT 기획안 1묶음, 참고사항(6·4 지방선거와 선거캠페인의 방향) 1묶음 ▷ 비영리법인설립허가증 1개 ▷ 업무일지(2014) 1개 ▷ ○○○○○○○○포럼 정관 1개 ▷ 전통시장 on-day 결과보고서 1개 ▷ 법인등기부등본(○○포럼) 1개 ▷ ‘피고인 3의 ●●’ 기획안 1개 ▷ 피고인 3 출판기념회(PT) 1개 ▷ ○○○○○○포럼 회원명부 1개 ▷ ◎◎◎ SNS Project 1개 ▷ 비용지출서류철 2개 ▷ 일일△△여론보고서 1개 ▷ 대외발송철 1개 ▷ 2014 △△시장 선거전략(안) 1개 ▷ 출판기념회 명단(연락처) 1개 ▷ 회의관련철 1개 ▷ 정책아젠다철 1개 ▷ 행사기획안 관련철 1개, ▷ 피고인 1 생활기록부 1개 ▷ 출판기념회 참석자명단 1개 ▷ 산재보험신고서 1개 ▷ ○○○○○○포럼 명의 거래내역서 1개 ▷ ○○○○○○포럼 연락처(명단) 1개

(v) while executing the first warrant of seizure, the prosecution agrees from Defendant 2 to voluntarily submit three external hard diskss owned by Defendant 2 and three computer hard diskss on the ground that there are many analysis work hours for Defendant 2’s external hard diskss and three computer hard diskss. The prosecution collected the first voluntarily submitted items after obtaining consent from Defendant 2 with regard to the case against the violation of the Public Official Election Act by the suspect, Nonindicted 4, etc. (201 Ma-type 2824).

C) Progress of the investigation immediately after the execution of the first warrant of seizure

(1) On September 25, 2014, the Prosecutor’s Office confirmed the circumstances of suspicion of prior election campaign, etc. through the forum of this case on the basis of the planning and text prepared by Defendant 1 for Defendant 3’s election campaign, and printed out the data on the introduction and organizational map of the forum of this case as well as the report data on “economic speculation” (in the case of Defendant 3 and the members of the forum of this case from August 2013 to November 2013, 2013), on the basis of the documents seized at the forum of this case and computer files, and on the basis of the planning and text prepared by Defendant 1 for Defendant 3’s election campaign (Evidence).

B. On September 26, 2014, the Prosecutor’s Office summoned Defendant 2 as a witness, and presented seized articles at the forum office of the instant case (Evidence List 716), and investigated Defendant 1 as to the forum of the instant case (Evidence List 716), and on September 27, 2014, the Prosecutor’s Office investigated Defendant 1 as to the forum of the instant case (Evidence 411).

On September 30, 2014, Defendant 1’s pro-Japanese Nonindicted 8 was summoned by Defendant 1 as a witness, and Defendant 1’s statement was heard on the process of the establishment of the forum (Evidence List 717).

In October 1, 2014, the prosecution separately collected media news reports that enable Defendant 3 to know the activities performed in the forum of this case (Evidence List 719) such as visiting local enterprises, helping rural communities to contribute to the business of rural communities, exercising △△-Economic Investment (Folk) events, holding “science Level Attractions and an urban railroad 2 lines construction plan,” etc. as the subject of citizen discussions (Evidence List 719).

(v) around October 2, 2014, the Prosecutor’s Office searched Internet data, etc., and found the Internet site and page North Korea, which appears to have posted the contents of the activities of the forum in this case, and printed out the relevant contents (Evidence List 723).

본문내 포함된 표 ▷피고인 1의 블로그(인터넷 주소 1 생략) 게시글 □ 2013. 8. 7.자 “△△경제투어 발대식, 민생행보 3개월 대장정스타트” 기사 □2013. 4. 26.자 “피고인 3, 시장선거 ‘보폭확대’ -2월부터 ◁◁·▷▷·♤♤시장 돌며 MOU···200여명 동원 물건 팔아주기” 기사 ▷피고인 2의 블로그(인터넷 주소 2 생략) 게시글 □ 2013. 3. 7.자 “포럼 지역경제활성화를 위한 △△우수기업 공소외 9 회사 공소외 10 회사 탐방” 게시글 □ 2013. 3. 11.자 “포럼 공소외 11 이사장 피고인 3 고문 ♡♡♡♡♡학교 방문” 게시글 ▷페이스북(‘피고인 3의 아름다운 △△이야기’ 페이스북) 게시글 □ 2013. 9. 11.자 “△△ 시민의 행복지수는?: 복지와 문화의 뉴플랜“ 토론회 게시글 □ 2013. 9. 16.자 “△△ 경제투어 중간보고회” 게시글, 2013. 11. 17.자 “대담집 「●●」 출판기념회” 게시글

D) Request and issuance of second warrant of seizure, etc.

(1) After executing the first warrant of seizure of the forum office of this case, the prosecutor confirmed that Defendant 3’s activities, pictures, videos, etc. posted on the website of the instant forum office were deleted. On October 2, 2014, Defendant 1 and Defendant 2 filed a request for a warrant of seizure and search (Internet address 1 omitted) related to the above forum (Internet address 1 omitted). On the same day, the prosecutor issued a warrant of seizure and search (Internet number 2014-7601) from the judge in charge of the court warrant on the same day.

B. On October 2, 2014, the Prosecution’s Office requested a search and seizure warrant for each electronic mail account used by Defendant 2 and Defendant 1 to verify the public relations between the persons involved in the above forums on the charge of prior election campaign, etc. through the forum in the instant case, and received a search and seizure warrant (the warrant number 2014-7603) from the Daejeon District Court’s judge in charge of warrant issued the same day.

The prosecutor of the Daejeon District Court on October 2, 2014 determined that it is reasonable to obtain a separate search and seizure warrant for the evidence on suspicion of prior election campaign, etc. discovered in the office of the forum of this case and that the prosecutor’s office requested a search and seizure warrant as follows.

Defendant 2’s suspect in the main sentence: Defendant 2’s suspect established the forum of this case, which is a similar institution, for the purpose of conducting an election campaign to make Defendant 3 to be a candidate for the △△ City elected; Defendant 3’s election campaign was conducted by conducting activities, such as visits to traditional markets, enterprises, visits to citizens, and 7-dong tours in the △△ region with employees and members of the said forum, and by conducting an election campaign for Defendant 3. On September 25, 2014, documents seized at the instant forum office and books of account on September 25, 2014, 199, 200 and 7-1-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-3-2-2-3-2-3-2-3-2-3-2-3-2-3-2-3-3-3-3-3-3-3-3-3-4-4-4-3-3-4-3-4-3-4-3-3-3-4-3-3-4-3-3-3-4-3-4-4-3-3-3-3-4-3-4-3-4-4-4-2-

On October 2, 2014, the judge in charge of warrant of the Daejeon District Court issued a second warrant of seizure (the warrant number 2014-7602) which changed the place of search and seizure requested from the Daejeon District Public Prosecutor's Office and the "digital Prosecutor's Office of the Daejeon High Public Prosecutor's Office" to the "the forum office of this case".

In accordance with the execution of the first seizure warrant, the object of the instant search and seizure contained in the main text is deemed as having been already seized at an investigation agency on September 25, 2014, and the fact that the first seizure warrant was subject to the offer of money and valuables in relation to the election campaign during the period of the election campaign, and the fact that the second seizure warrant was subject to the prior election campaign prior to the period of the election campaign, and it is reasonable to deem that the investigation agency has different cases. Therefore, the investigation agency should return the object to the party against whom the search and seizure was conducted (hereinafter referred to as “the party against whom the search and seizure was made”), and therefore, it is reasonable to change the object of the second seizure warrant to the place of seizure on September 25, 2014, to the part related to the fact that the object of the second seizure warrant was subject to the second seizure warrant.

Around October 2014, the prosecution requested a search and seizure warrant on financial transaction information in the forum account of this case, and received a search and seizure warrant (LO No. 2014-7600) from the Daejeon District Court Warrant Judge in charge of the warrant, and acquired the statement of transactions of the forum account through its execution (Evidence List 807).

E) The progress of the investigation from the issuance of the second warrant to the time before its enforcement.

(1) On October 4, 2014, the Prosecutor summoned Nonindicted 1, who participated in the establishment of the instant forum, as witness, and investigated the instant forum, including the process of preparing “2014 TFT Planning” (Evidence List 937).

Pursuant to the warrant stated in paragraph (1) above, the Prosecution received from Nonindicted Company 12 on October 6, 2014 the data from Defendant 1 and Defendant 2, and on October 7, 2014, extracted the following [list] of the above data related to Defendant 3’s forum activities (Evidence 746).

본문내 포함된 표 ▷피고인 1의 블로그(인터넷 주소 1 생략) 게시글 중 아래 글을 비롯한 53건 □ 2013. 8. 7.자 “피고인 3 ‘먼저 치고 나갑니다.’ 7일 오전 △△경제투어 발대식···민생행보 3개월 대장정 스타트” 기사글 □ 2013. 8. 8.자 “피고인 3 ‘잃어버린 △△경제 성장동력 찾겠다, 포럼 ’△△경제투 어‘ 3개월 대장정 시작” 기사 □ 2013. 7. 26.자 “포럼 △△▲▲▲▲ 혈액원과 정기적인 헌혈운동 협약” 기사글 □ 2013. 7. 10.자 “과학벨트 수정안은 ’꼼수‘·’졸속‘…철회돼야 - 포럼 긴급 토론회…피고인 3 ’■■민 힘 모아 원안으로 되돌려야‘” 기사글 ▷피고인 2의 블로그(인터넷 주소 2 생략) 게시글 중 아래 글을 비롯한 4건 □ 2013. 3. 11.자 “포럼 공소외 11 이사장 피고인 3 고문 ♡♡♡♡♡학교 방문” 게시글 □ 2013. 3. 7.자 “포럼 지역경제활성화를 위한 △△우수기업 공소외 9 회사, 공소외 10 회사 탐방’ 게시글 □ 2013. 2. 7.자 “포럼 ◁◁시장 방문” 게시글

F) Execution of the second warrant of seizure

(1) On October 8, 2014, the prosecution presented the second warrant of seizure at the forum office of this case at around 10:40 to 13:00. The documents and 30 books (the part of paragraph (1) of articles to be seized among the second warrant of seizure) which were already seized by the first warrant of seizure to Defendant 2 were returned to Defendant 2, and immediately seize them (the list of seizure was delivered to Defendant 2). The four files and 3 files stored in the four computers already seized by the war and the USB 2 stored in the two files and 3 files stored in the computer hard drive (the second warrant of seizure) and stored in the computer hard drive (the part of paragraph (2) of this case of articles to be seized among the second warrant of seizure, and the part of paragraph (1) of this case) were returned to Defendant 5 by means of copying the documents and 30 files that were used by the first warrant of seizure, and then the report of seizure and storage of electronic information was made by means of copying the digital information and its own consent.

[Attachment to the above Articles 2 and 48 of the Criminal Procedure Act, the prosecution of the Republic of Korea: (a) separately from the files recorded in the parts of the judgment below (Article 2.2 of the Second Warrant of Seizure), the files stored in the computer used by Defendant 2, Defendant 5, and Nonindicted 13 among the computers in the forum office of the instant case (Article 4,910 files from Defendant 2 to Defendant 13; (b) the files stored in the computer used by Defendant 2, Defendant 5, and Nonindicted 13; and (c) the files stored in the computer used by Defendant 5 to Defendant 5,783 files; and (d) prepared a field investigation report containing the contents related thereto; and (e) obtained consent from Defendant 2 who participated in the execution of the warrant, to the effect that

Article 22(1) of the Criminal Procedure Act provides that “A prosecutor shall submit a written consent to voluntary submission of a computer” in Article 2(1) of the Criminal Procedure Act and Article 2(2) of the Criminal Procedure Act.

In addition to the seized articles or articles mentioned in the above (i) through (ii) the prosecution submitted a written consent from Defendant 2 to voluntarily submit them, and collected “one humd, three humd, three humd, and three computer humd disks” (at the time of enforcement of the first warrant of seizure; hereinafter “second voluntarily produced articles”).

G) Progress of the investigation after the execution of the second warrant of seizure

(1) Investigation of Defendant 2

㈎ 검찰은 2014. 10. 8. 2차 압수영장의 집행 직후 피고인 2를 피의자로 소환하여 피고인 2의 컴퓨터로부터 압수된 ‘○○○○포럼 법인 설립관련 스케쥴 체크리스트’(파일명이나 문서제목 등이 맞춤법에 어긋나도 그대로 옮긴다. 이하 같다) 파일, ‘2014 TFT 기획안’, 2차 임의제출물 중 피고인 2의 외장하드에 있던 ‘△△중흥을 위한 첫 번째 기본구상’, ‘오만상상 정책투어’, ‘△△ 속으로 프로젝트 기본구상‘ 파일, 피고인 1의 컴퓨터에 있던 ’SNS 운영방안 보고‘ 파일 등을 제시하면서 해당파일 등의 수집·작성경위, 이 사건 포럼의 설립 경위와 인적 구성, 특별회비의 모집과정, 이 사건 포럼의 활동 등에 관해 조사하였고(증거목록 733), 이후에도 2014. 11. 11.부터 2014. 11. 27.까지 4회에 걸쳐 추가로 피고인 2를 피의자로 소환·조사하였다(피고인 2는 대부분의 진술을 거부하였다. 증거목록 839, 843, 898, 899).

㈏ 검찰은 2014. 10. 8. 인터넷 검색을 통해 아래 [목록] 기재와 같은 이 사건 포럼의 행사와 관련한 언론사 기사와 인터넷 블로그 글 등을 발췌하였다(증거목록 749).

본문내 포함된 표 ○ 언론사 기사 ▷ 2013. 8. 7.자 “피고인 3 ‘먼저 치고 나갑니다.’, 7일 오전 △△경제투어 발대식…민생행보 3개월 대장정 스타트” 기사 ▷ 2013. 2. 6.자 "‘포럼-◁◁◁시장 상인회’ 전통시장 활성화 MOU, 피고인 3 전 의원 등 회원 100여명 전통시장서 설 제수용품 구입“ 기사 ▷ 2013. 5. 24.자 “포럼, 전통시장 가는 날 행사” 기사 ▷ 2013. 6. 18.자 “피고인 3 첫 정책행보 출정식 방불” 기사 ▷ 2013. 7. 10.자 ”◆◆신문 팀장 ‘장기적으로 과학벨트 원안 추진 타당’, 10일 포럼 토론회 ‘과학벨트 수정안 협약은 당장 철회돼야 한다.’“ 기사 ▷ 2013. 9. 11.자 ”피고인 3 ‘△△ 지역 특색에 맞는 복지정책 필요’, 11일 포럼, 복지와 문화의 뉴플랙 토론회서 밝혀“ 기사 ▷ 2013. 10. 31.자 ”△△시 2015년 기초연금 지방비로 705억 부담해야, 피고인 3 전 의원 측 ‘기초연금안의 문제점과 노인복지대책’ 토론회“ 기사 ▷ 2013. 12. 30.자 ”피고인 3 ‘도시철도 2호선은 1호선 + 트램으로’ 하나로 방식 제안···1호선 중간역과 필요한 곳 트램으로 연결“ 기사 ▷ 2013. 10. 24.자 ”피고인 3 전 의원 △△대 학생들과 ‘돌직구 토크’“ 기사 ▷ 2013. 11. 29.자 “피고인 3 전 의원 ★★대서 특강” 기사 ▷ 2013. 12. 19.자 ”피고인 3 ‘젊음은 꿈에 도전하는 특권’, ■■지역 대학생 창업동아리 학생 대상 특강“ 기사 ▷ 2013. 6. 26.자 ”피고인 3, 피라도 나눠서…, 포럼 회원 80여명과 사랑의 헌혈 동참” 기사 등 ○ 블로그 글 ▷ ‘(인터넷 주소 3 생략)' 사이트 내 “피고인 3의 뿌리를 찾아서” 게시글 목록 ▷ ‘(인터넷 주소 4 생략)' 사이트 내의 “피고인 3의 △△경제투어 ’시민속으로‘” 게시글 ▷ 네이버카페(‘인터넷 주소 5 생략')의 2013. 9. 16.자 “피고인 3 ‘127km·17만보 걸으며’ 16일 △△경제투어 중간보고회” 기사 ▷ 2013. 11. 3.자 “피고인 3, 나홀로 민심수확, △△경제투어 3개월 대장정 마무리···득실은?“ 기사 ▷ 2013. 9. 16.자 ”일곱번째 ’오늘은 전통시장 가는날‘“ 기사, 2013. 7. 25.자 ”포럼 ’헌혈 함께 해요‘, 25일 △△▲▲▲▲ 혈액원과 정기적 헌혈운동 협약“ 기사 등

㈐ 검찰은 2014. 10. 9.과 2014. 11. 4. 위 라)⑵항에 기재된 피고인 2의 전자우편 계정에 대한 압수수색영장(영장번호 2014-7603)에 기하여 이 사건 포럼과 관련된 아래 [전자우편 내역] 기재와 같은 자료를 수집하였다.

본문내 포함된 표 순번 쪽수 증거명칭(첨부자료) 증거 설명 737-1 5983~5985 2012. 6. 27.자 이메일 자료(○○○○포럼 법인 설립 관련 스케쥴 체크리스트) 공소외 1이 2012. 6. 27. 피고인 4에게 ‘○○○○포럼 법인 설립 관련 스케쥴 체크리스트’를 첨부한 전자우편을 보낸 후 같은 날 이를 다시 피고인 2에게 전달한 것임 737-2 5986~5988 2012. 8. 9.자 이메일 자료(♠♠♠♠♠♠♠♠연구원 회원가입신청서, ♠♠♠♠♠♠♠♠연구포럼 섭외홍보파일) 피고인 2가 2012. 8. 9. 피고인 4에게 ‘포럼설명문 및 가입신청서’라는 제목으로 보낸 것임 737-3 5989~5990 2012. 9. 3.자 이메일 자료(선거인단 2013. 8. 7.자 모집양식) 피고인 2가 2012. 9. 3. 피고인 4에게 보낸 것임 737-4 5991~5999 2012. 9. 20.자 이메일 자료(공소외 14 전 △△시장의 공약집) 피고인 2가 2012. 9. 20. 공소외 15로부터 ‘▼시장(공약집)’이라는 제목으로 받은 것임 737-5 6000~6010 2013. 5. 4.자 이메일 자료[오만상상 아카데미, (멘토, 게스트) 오만상상 아카데미] 피고인 2가 2013. 5. 4. 공소외 16으로부터 받은 것으로 ‘피고인 3에게 제안할 아이디어로 피고인 3과 면담시간을 잡아달라.’는 내용이 기재되어 있고, ‘오만상상 아카데미’라는 선거기획문건이 첨부되어 있음 737-6 6011~6022 2013. 8. 6.자 이메일 자료[(바꿔야 산다)△△중흥을 위한 첫 번째 기본구상] 피고인 2가 2013. 8. 2.(2013. 8. 6.은 오기로 보임) 공소외 17에게 보낸 것임 819-1 7356~7384 2012. 6. 20.자 이메일 자료(○○○○전략포럼 제안서, 가칭 “사단법인 ○○◀◀○○포럼 정관) 피고인 2가 2012. 6. 20. 공소외 1로부터 ‘(가칭) ○○○○전략포럼 운영안 정리한 거 보내드립니다.’라는 제목으로 받은 것임 819-2 7385~7387 2012. 6. 27.자 이메일 자료(○○○○포럼 법인 설립 관련 스케쥴 체크리스트) 증거목록 737-1과 첨부자료 동일 819-3 7388~7404 2012. 9. 20.자 이메일 자료(공소외 14 전 △△시장의 공약집) 증거목록 737-4와 첨부자료 동일 819-4 7405~7409 2013. 5. 4.자 이메일 자료[오만상상 아카데미, (멘토, 게스트) 오만상상 아카데미] 증거목록 737-5와 첨부자료 동일 819-5 7410~7412 2013. 11. 5.자 이메일 자료(피고인 3 출판기념회 초청장, 무료셔틀버스 안내) 피고인 2가 2013. 11. 5. 피고인 5로부터 받은 것으로, 첨부된 피고인 3 출판기념회 초청장 중 ‘초대의 말씀’의 말미에 ‘○○○○○○○○포럼 고문 피고인 3’, ‘문의’란에 ‘○○○○○○○○포럼: (전화번호 생략)’이라 기재되어 있음 819-6 7413~7414 2013. 5. 24.자 이메일 자료(◎◎◎ 카페 계획) 피고인 2가 2013. 5. 24. 피고인 1에게 보낸 것으로, 피고인 2가 2013. 5. 16. 공소외 18로부터 받은 인터넷 카페 운영계획이 기재된 ‘◎◎◎ 카페계획’이 첨부되어 있음 819-7 7415~7416 2013. 11. 30.자 이메일 자료(▶▶당 입당원서) -

Doz. Investigation of Witnesses

㈎ 검찰은 피고인 2의 전자우편 계정에 대한 압수수색영장 집행 결과 등을 토대로 2014. 10. 10. 공소외 16을 참고인으로 소환하여 이 사건 포럼과 관련하여 피고인 2에게 선거기획문건을 건네준 경위 등을 조사하였다(증거목록 754).

㈏ 검찰은 2014. 10. 11. 공소외 1을 다시 소환하여 이 사건 포럼 설립 및 활동에 관하여 조사하였고(증거목록 938), 공소외 1이 피고인 2, 피고인 5에게 전자우편을 보낸 사실을 알게 되자 공소외 1의 동의를 받아 위 피고인들에게 보낸 전자우편을 열어 그 내용을 확인하고 이를 출력하였다(증거목록 821-1, 821-2, 959, 960). 검찰은 공소외 1을 2015. 2. 3.~5. 3회에 걸쳐 다시 소환하여 피의자신문을 하였다(증거목록 940~942).

㈐ 검찰은 2014. 10. 13. 공소외 19를 참고인으로 소환하여 이 사건 포럼의 회원으로 가입하게 된 경위에 관해 조사하였고, 이후 2014. 11. 16.까지 공소외 20, 공소외 21, 공소외 22, 공소외 23, 공소외 24, 공소외 25, 공소외 26, 공소외 27, 공소외 28, 공소외 29, 공소외 30, 공소외 31, 공소외 32를 참고인 또는 피의자로 소환하여 이 사건 포럼 회원가입 경위 등을 조사하였는데(증거목록 768, 778~781, 783, 784, 787~790, 822, 870, 871, 889), 그중 공소외 21에 대해서는 수사과정을 진술조서(증거목록 779)에 기록하거나 별도의 수사과정 확인서를 작성하지 않았다.

【Collection of Data from Election Commission

㈎ 검찰은 2014. 10. 9. 선거관리위원회 직원 공소외 33(피고인 3의 출판기념회 직후 그 출판기념회가 사전선거운동에 해당하는지 여부를 조사한 바 있다)을 참고인으로 소환하여, 선거관리위원회가 위 출판기념회 개최와 관련하여 사전선거운동 혐의로 피고인 4, 피고인 3에게 경고조치를 하게 된 경위 등을 조사하였다(증거목록 738).

㈏ 검찰은 위 조사 후에 선거관리위원회로부터, 피고인 3의 출판기념회 초청장 발송과 관련하여 2013. 11.경 사전선거운동으로 조사하였던 자료[피고인 4, 피고인 1에 대한 문답서, 초청장 발송업자 공소외 20에 대한 진술서, 출판기념회가 개최된 (상호 1 생략)호텔 직원 공소외 34 제출 자료 등]를 제출받았다(증거목록 741~744).

m. Investigation of Defendant 1

The prosecution summoned Defendant 1 on four occasions from October 9, 2014 to October 15, 2014, but Defendant 1 did not appear. Defendant 1 appeared at the prosecution on October 16, 2014, but rejected most statements.

(v)an investigation into Defendant 5;

㈎ 검찰은 2014. 10. 19. 피고인 5의 주거지에 대한 압수수색영장을 발부받아 2014. 10. 20. 피고인 5의 휴대전화를 압수하였고, 이를 분석하여 휴대전화 문자메시지 자료를 수집하였다(증거목록 830, 834, 838).

㈏ 검찰은 2014. 10. 28. 피고인 5를 피의자로 소환하여 이 사건 포럼 사무실에서 압수한 ‘포럼핸드폰 주소록’ 파일, ‘포럼 입출금내역’ 파일, ‘2014 TFT 기획안’ 파일을 제시하면서 이 사건 포럼에서 근무하게 된 경위, 포럼 사무실 내 피고인 5의 컴퓨터에서 압수한 파일의 작성경위 등을 조사하였다(증거목록 782).

㈐ 검찰은 2014. 11. 4. 피고인 5가 2013. 2.경부터 운영한 ‘피고인 3의 아름다운 △△이야기’ 페이스북 인터넷 사이트(인터넷 주소 6 생략)와 피고인 1이 운영한 ‘피고인 3 시민속으로’ 블로그(인터넷 주소 4 생략)의 게시물 중 피고인 3이 이 사건 포럼에서 한 활동 등 피고인 3과 관련된 내용을 출력하였다(증거목록 815, 817).

㈑ 검찰은 2014. 11. 8. 피고인 5가 문자메시지를 보낸 상대방이 누구인지 확인하기 위해 피고인 1의 휴대전화 분석결과를 첨부하였는데(증거목록 836), 이는 2014. 9. 24. 발부된 1차 압수영장에 기해 피고인 1의 주거지 압수수색 결과 취득하였던 것이다(증거목록 387).

⑹ 1심공동피고인 6에 대한 수사

On October 27, 2014, the prosecution issued a search and seizure warrant (Evidence List 546) on the residence of the co-defendant 6 of the court of first instance on October 27, 2014, and seized a copy of the copy (Evidence List 876) of the copy (Evidence List 876) of the copy of the instant forum produced in the pocket book of the co-defendant 6 of the court of first instance on October 28, 2014. The suspected fact of the above search and seizure warrant was that the co-defendant 6 of the court of first instance submitted a false report on the receipt and disbursement of political funds by purchasing a computer in relation to the election campaign by Defendant 3, and by purchasing the computer without purchasing it.”

⑺ 피고인 4에 대한 수사

㈎ 검찰은 2014. 11. 6. 피고인 4의 주거지, 사무실, 차량에 대한 압수수색영장을 발부받고, 2014. 11. 7. 피고인 4의 사무실에서 ㉠ 그의 휴대전화를 압수하여 피고인 4가 피고인 2, 피고인 1, 피고인 5 및 공소외 1 등과 사이에 이 사건 포럼 관련 전자우편을 송·수신한 내역을 확인한 후 이를 사진촬영 하였고(증거목록 832), ㉡ 이 사건 포럼 회원가입신청서, 피고인 4의 포럼 상임이사 명함 등을 압수하였다(증거목록 874, 902).

㈏ 검찰은 2014. 11. 7. 피고인 4의 전자우편 계정에 대한 압수수색영장을 발부받고, 아래 [전자우편 내역] 기재와 같은 자료를 수집하였다.

본문내 포함된 표 순번 쪽수 증거명칭(첨부자료) 증거 설명 846 7590~7593 2012. 8. 9.자 이메일 자료(♠♠♠♠♠♠♠♠연구원 회원가입신청서, ♠♠♠♠♠♠♠♠연구포럼 섭외홍보파일) 피고인 4가 피고인 2로부터 받은 것임 848 7596~7615 2013. 8. 29.자 2014 차기 △△ 시장 여론조사 이메일 자료 피고인 4가 공소외 35로부터 받은 것임 849 7616~7622 2013. 10. 3.자 여론조사 분석보고 이메일 자료(첨부: 정세분석보고) 피고인 4가 공소외 36으로부터 받은 것임 851 7625~7630 출판기념회 참석자 명단 서식 관련 이메일(출판기념회 참석자 명단 서식) 피고인 4와 피고인 5가 2013. 10. 21.부터 2013. 11. 4.까지 주고받은 것임 852 7631~7633 무료 셔틀버스 안내 관련 이메일(피고인 3 출판기념회의 무료 셔틀버스 안내자료) 피고인 4가 2013. 11. 4. 피고인 5로부터 받은 것임 854 7635~7636 2013. 10. 30.자 (상호 2 생략) 견적서 이메일 자료(견적서 첨부) 피고인 4가 피고인 2로부터 받은 것임 856-1 7639~7644 2013. 10. 25.자 이메일 자료(출판기념회 참석자 명단 서식) 피고인 4가 공소외 37, 공소외 38, 공소외 39 등에게 보낸 것으로, 피고인 3 후보 출판기념회 참석을 요청하는 전자우편임 856-2 7645~7648 2013. 11. 8.자 이메일 자료(출판기념회 참석자 명단 서식) 856-3 7649 2013. 11. 6.자 이메일 자료(출판기념회 참석자 명단 서식) 856-4 7650~7651 2013. 11. 7.자 이메일 자료(출판기념회 참석자 명단 서식) 858 7654~7655 2012. 11. 16.자 이메일 자료(회원가입신청서) 피고인 1이 2012. 11. 16. 피고인 4에게 보낸 것으로 “○○○○○○○○포럼 회원가입 신청서의 양식을 만들었습니다. 검토 부탁드립니다.”라는 내용이 기재되어 있음 859 7656~7657 2012. 11. 19.자 이메일 자료(돌출간판과 내부 사인물 시안) 피고인 1이 2012. 11. 19. 피고인 4에게 보낸 것으로 “○○○○○○○○포럼 돌출간판과 출입문 등에 부착할 표찰 시안 파일을 검토해 달라.”는 내용이 기재되어 있음 861 7659~7667 2013. 1. 15.자 이메일 자료(회원연락처) 피고인 1이 피고인 4에게 보낸 것으로 “♥♥동에서 주신 17명을 제외하고 문자메시지 발송했습니다.”라는 내용이 기재되어 있음 880 7736~7742 ♠♠연 명단 관련 이메일(♠♠연 회원 명단) 피고인 4가 2012. 7. 31. 피고인 2에게 보낸 것으로 “이사명단을 별건으로 작성한 후 내일 원장님 만날 때 쓰도록 합시다. 2부만 프린트해서 갖고 나오세요.”라는 내용이 기재되어 있고, 첨부된 명단에는 235명의 회원 이름, 직업, 연락처가 기재되어 있음 882 7744~7792 2013. 1. 23.자 수신 이메일 및 첨부파일 출력물[(바꿔야 산다) △△중흥을 위한 첫 번째 기본구상, (△△ 속으로) 프로젝트 기본구상] 피고인 4가 2013. 1. 23. 공소외 16으로부터 받은 것으로 ‘어제 티스토리에 (인터넷 주소 3 생략) 개설했다’는 내용과 함께 공소외 16이 피고인 2에게 보낸 ‘(바꿔야 산다) △△중흥을 위한 첫 번째 기본구상’, ‘(△△ 속으로) 프로젝트 기본구상’이 첨부되어 있음 883 7793~7804 2013. 5. 9.자 수신 이메일 및 첨부파일 출력물[(멘토, 게스트) 오만상상 아카데미, 오만상상 아카데미(권)] 피고인 4가 2013. 5. 9. 공소외 16으로부터 받은 것으로, 공소외 16이 피고인 2에게 보낸 ‘오만상상 아카데미’, ‘(멘토, 게스트) 오만상상 아카데미’가 첨부되어 있음 893-1 7884~7885 2012. 6. 27.자 ○○○○○○○○포럼 스케줄 체크리스트 이메일자료 1부 공소외 1이 피고인 4에게 보낸 것임

㈐ 검찰은 2014. 11. 17. 피고인 4를 피의자로 소환하여 위 전자우편 자료의 송·수신 경위, 이 사건 포럼 회원의 모집 과정, 포럼의 선거기획 회의 등을 조사하였고(증거목록 668), 2014. 11. 29. 피고인 4에 대한 피의자신문을 다시 하였다(증거목록 694).

⑻ 공소외 16에 대한 재조사

After acquiring the e-mail data of Defendant 4, the Prosecutor re-exploited Nonindicted 16 on November 13, 2014 to the witness, and investigated the details of the transmission and receipt of the e-mail data with Defendant 4 and Defendant 3, and the background of the contact (Evidence List 844).

⑼ 피고인 3에 대한 수사

On November 26, 2014, the prosecutor summoned Defendant 3 as the suspect and investigated the establishment process of the forum in this case, the process of raising funds for the forum in this case, and the activities of the forum (Evidence List 894).

⑽ 공소외 11에 대한 조사

On November 30, 2014, the Prosecutor summoned Nonindicted 11, the chief director of the forum in this case as the suspect, and investigated the developments leading up to the establishment of the forum in this case, the details leading up to the raising of funds for the forum establishment, and the activities of the forum (Evidence List 900).

H) Legal statement of the Defendants and witnesses

(1) Defendant 1, Defendant 4, and Defendant 2 were present as a witness of the prosecutor’s office to prove the authenticity of various e-mails, documents, etc., consented to the 9th trial date of the lower trial, but most of the interrogation by the prosecutor was refused to testify. After the trial date of the lower court, Defendant 6 and Defendant 1, Defendant 5, Defendant 4, Defendant 2, and Defendant 3 were examined on the date of the lower trial, but most of the interrogation by the prosecutor related to the forum of the instant case were refused to make statements.

Dod Nonindicted 16 appeared and stated as a witness on the 8th trial date of the original trial, and Nonindicted 11 appeared and stated on the 9th trial date of the original trial.

Non-Indicted 1 appeared as a witness on the 9th trial date of the court below and refused to testify, but he appeared as a witness on the 2nd trial date of the appellate court prior to remand, and thereafter, the Defendants appeared at the trial date of the appellate court prior to remand and stated in the prosecutor’s examination on

Applicant Nonindicted 21 appeared as a witness on the 12th day of the appellate trial after remanding the case, and stated to the effect that “The father respondeded to the questions of the prosecutor’s office with an urgent and chilling mind in the emergency room due to acute franchisity.”

2) Origin, etc. of evidence acquired before or after the warrant of seizure 1 or 2

The prosecutor did not submit as evidence the evidence seized with the warrant of seizure of the first and the files based on the first voluntarily produced article (storage media), and submitted the evidence seized with the warrant of seizure of the second and the following [Evidence] collected from the second voluntarily produced article at the court of original instance.

본문내 포함된 표 증거 출처 해당 증거 순번 쪽수(증거기록) 증거명칭 2차 압수영장 압수서류 751 6382~6452 2013년 행사 계획안 752 6453~6482 2013년 실적보고 753 6483 일일△△여론보고서 812 7211~7215 ◎◎◎ SNS Project 961 8605~8626 2014 TFT 기획안 2차 압수영장 압수파일 (피고인 2 컴퓨터에서 이미징) 794-1 6860 사단법인 ○○○○ 포럼 설립 준비 체크리스트 자료 794-2 6861~6895 130108 △△중흥을 위한 첫 번째 기본구상 자료 794-3 6896~6939 기획안(2013-3-26) 자료 794-4 6940 (상호 2 생략) 견적서 자료 794-5 6941 출판기념회 참석자 명단 서식 자료 794-6 6942 ▶▶당 입당원서 자료 794-7 6943 피고인 3 fund 약정서 자료 2차 압수영장 압수파일 (피고인 1 컴퓨터에서 이미징) 770 6563~6564 ‘SNS 운영방안보고’ 출력물 798-1 7017~7018 업무보고 자료 798-2 7019~7020 SNS 업무보고 자료 798-3 7021~7022 SNS 사용현황 자료 798-4 7023~7027 소셜 운영 계획서 자료 798-5 7028~7057 1회 이사회 (특별회원용) 자료 798-6 7058~7101 기획안(2013-3-26) 자료 798-7 7102~7107 시민속으로 기획안 자료 798-8 7108~7109 130917 논평 자료 798-9 7110~7111 피고인 3 전의원 프로필 자료 798-10 7112 도서구입신청서 자료 798-11 7113~7114 VIP 출판기념회 초청자 명단 자료 798-12 7115~7123 내빈참석현황 자료 798-13 7124~7125 부장단 업무 분담 자료 798-14 7126~7131 ●● 출판기념회 축하해주신 분 자료 798-15 7132~7160 회의결과보고 자료 798-16 7161~7162 20131121-회의결과보고 자료 802 7176~7183 포럼회원명단(2013-12-19)xslx 파일 출력물 804 7188 1회 이사회 파일 중 2012년도 특별회비 납부자 관련 내용 출력물 805 7189 통장 내역 파일 출력물 809 7196 1회 이사회 파일 중 2012년도 수지계산서 부분 출력물 813 7216 ◎◎ 카페 계획 파일 출력물 886 7808~7830 1회 이사회.hwp 파일 출력물 887 7831~7857 1회 이사회(특별회원용).hwp 파일 출력물 896 7884~7985 부장단 업무 분담 파일 출력물 2차 압수영장 압수파일 (피고인 5 컴퓨터에서 이미징) 800-1 7164~7168 포럼핸드폰 주소록 자료 800-2 7169~7174 포럼 입출금내역 자료 806 7190~7192 포럼 입출금 내역 파일 중 2013 입금 내용 출력물 810 7199~7208 포럼 입출금내역 파일 출력물 2차 임의제출물 (피고인 2 외장하드) 796-1 6946~6988 130108 △△중흥을 위한 첫 번째 기본구상 자료 796-2 6989~7002 130108 오만상상 정책투어 진행 방안 자료 796-3 7003~7007 130119(△△속으로) 프로젝트 기본 구상 자료 796-4 7008~7013 130120 노출빈도 분석 자료 826 7442~7449 의원님 일정표 0318 출력물

3) Determination

A) Evidence seized with the primary warrant of seizure

(1) The lower court determined that the evidence seized with the first seizure warrant is inadmissible as evidence collected in breach of due process under Article 308-2 of the Criminal Procedure Act, and its procedural illegality cannot be exceptionally acknowledged as evidence, on the grounds that the period of crime, type and method of crime, applicable provisions of law, etc. are different and basic facts are different from each other, and that the main contents of evidence seized with the first seizure warrant are irrelevant to the facts charged with the entry in the first seizure warrant, and it cannot be deemed that it is related to the proof thereof. The lower court determined that the evidence seized with the first seizure warrant is inadmissible as evidence collected in breach of due process under Article 308-2 of the Criminal Procedure Act, and that such procedural illegality cannot be viewed as cases where the substantial content of warrant or due process under the Constitution is infringed.

[Attachment] If necessary for a criminal investigation, a prosecutor or a senior judicial police officer may conduct a search and seizure according to the warrant issued by a judge in cases where there is a circumstance to suspect that a criminal suspect committed an offense. However, search and seizure are limited to evidence relevant to the suspected offense, which is the ground for issuing the warrant. As such, in cases where a separate evidence irrelevant to the suspected offense, which is the ground for issuing the warrant, is seized, this cannot be used as evidence for conviction in principle (see Supreme Court Decision 2013Do1233, Mar. 10, 2016).

In full view of these legal principles and the above circumstances presented by the court below, the judgment of the court below is just and acceptable, and there is no error of law by misunderstanding the legal principles as alleged by the prosecutor.

B) evidence collected through an investigation conducted after the execution of the first warrant of seizure before the enforcement of the second warrant of seizure.

(1) Defendant 2’s prosecutorial statement (Evidence 716) dated September 26, 2014 and Defendant 1’s prosecutorial statement (Evidence 411) September 27, 2014 (Evidence 411)

㈎ 헌법과 형사소송법이 정한 절차에 따르지 아니하고 수집한 증거는 물론, 이를 기초로 하여 획득한 2차적 증거 역시 기본적 인권 보장을 위해 마련된 적법한 절차에 따르지 않은 것이 되어 원칙적으로 유죄 인정의 증거로 삼을 수 없다. 다만 위법하게 수집한 압수물의 증거능력 인정 여부를 최종적으로 판단할 때에는, 수사기관의 증거 수집 과정에서 이루어진 절차 위반행위와 관련된 모든 사정, 즉 절차 조항의 취지와 그 위반의 내용 및 정도, 구체적인 위반 경위와 회피가능성, 절차 조항이 보호하고자 하는 권리 또는 법익의 성질과 침해 정도 및 피고인과의 관련성, 절차 위반행위와 증거수집 사이의 인과관계 등 관련성의 정도, 수사기관의 인식과 의도 등을 전체적·종합적으로 살펴볼 때, 수사기관의 절차 위반행위가 적법절차의 실질적인 내용을 침해하는 경우에 해당하지 아니하고, 오히려 그 증거의 증거능력을 배제하는 것이 헌법과 형사소송법이 형사소송에 관한 절차 조항을 마련하여 적법절차의 원칙과 실체적 진실 규명의 조화를 도모하고 이를 통하여 형사 사법 정의를 실현하려고 한 취지에 반하는 결과를 초래하는 것으로 평가되는 예외적인 경우라면, 법원은 그 증거를 유죄 인정의 증거로 사용할 수 있다. 이는 적법한 절차에 따르지 아니하고 수집한 증거를 기초로 하여 획득한 2차적 증거의 경우에도 마찬가지이어서, 절차에 따르지 아니한 증거 수집과 2차적 증거 수집 사이 인과관계의 희석 또는 단절 여부를 중심으로 2차적 증거 수집과 관련된 모든 사정을 전체적·종합적으로 고려하여 예외적인 경우에는 유죄 인정의 증거로 사용할 수 있다( 대법원 2007. 11. 15. 선고 2007도3061 전원합의체 판결 등 참조).

㈏ 이러한 법리를 바탕으로 보면, 위 각 검찰진술에는 해당 피고인이 앞서 살핀 바와 같이 적법한 절차에 따랐다고 볼 수 없는 증거물(1차 압수영장에 기하여 수집한 증거물)을 직접 제시받고 진술한 부분이 주요 부분으로 포함되어 있으므로, 위 각 검찰진술은 1차 압수영장 집행 과정에서의 절차적 위법과 여전히 직접적 인과관계가 있다고 봄이 타당하다.

The judgment of the court below that excluded the admissibility of each of the above prosecutor's statements is just, and it is not erroneous in the misapprehension of legal principles as alleged by the prosecutor.

Shed Nonindicted 8’s prosecutorial statement dated September 30, 2014 (Evidence List 717)

In light of the fact that it appears that the collection of evidence through the execution of the first seizure warrant does not intentionally result from the attempt to avoid the purpose of warrant requirement, that even if the execution of the first seizure warrant is illegal, it is necessary for the investigative agency responsible for the investigation by recognizing and investigating the criminal information if it comes to know of the criminal information, and that it is sufficient to see that Nonindicted 8 was summoned based on the output of the website (Evidence List 713) of this case where admissibility is recognized, and that Nonindicted 8 did not directly receive the evidence collected by the execution of the first seizure warrant during the course of investigation, the lower court determined that the causal relationship between Nonindicted 8’s prosecutor’s statement and the procedural illegality during the execution of the first seizure warrant constituted dilution or cut off, and thus, it constitutes exceptionally admissible evidence.

In light of the facts and records as to the collection process of evidence related to the forum of this case in the above (i) legal principle and the above (i) above, the above judgment of the court below is just.

Consolidated Non-Indicted 1’s prosecutorial statement dated October 4, 2014 (Evidence List 937)

The prosecution submitted the above evidence in the appellate court before remand.

However, as seen earlier, the second seizure warrant issued as of October 2, 2014 stated that “the evidence collected as the first seizure warrant shall be returned to the person subject to seizure,” and the prosecutor summoned Nonindicted 1 on October 4, 2014 without returning it, and investigated Nonindicted 1 based on the contents of evidence seized as the first seizure warrant.

In light of these investigation circumstances and the above (i) legal principles, it is reasonable to see that Nonindicted 1’s above prosecutorial statement was obtained on the basis of illegal confiscated articles, and thus, it cannot be admitted as admissibility of evidence.

x) Evidence acquired by Defendant 1, Defendant 2’s Internet Blogs, Defendant 2’s e-mail account, and search and seizure warrant for the instant forum account (Evidence List 746, 737-1-6, 807, 819-1-7)

As seen earlier, it cannot be deemed that the collection of evidence through the execution of the first seizure warrant by the prosecution was derived from the attempt to avoid intent to the warrant requirement. The above evidence is, apart from the evidence collected by the prosecution as the first seizure warrant, collected through a separate search and seizure warrant issued by the judge of the district court, and it is difficult to deem that there exists an infringement on the substantial substance of due process even if admissibility is recognized.

In full view of these circumstances, the above evidence collected by the prosecution through the execution of a separate warrant may be exceptionally admitted as evidence inasmuch as the causal link with the procedural illegality revealed in the process of the execution of the first seizure warrant has been dissolved or cut off (the original trial recognized the admissibility of evidence as circumstantial evidence for part of the evidence collected by Defendant 2 in the e-mail account (the original trial recognized the admissibility of evidence as circumstantial evidence), and such judgment is justified).

(1) The judgment of the court below

원심은 아래 ㈎~㈑ 기재 사정을 근거로, 1차 압수영장에 기한 압수의 위법성이 2차 압수영장에 기한 압수에도 승계되어 2차 압수영장에 기하여 다시 수집된 압수물의 증거능력을 인정하지 아니하였다.

㈎ 검찰은 1차 압수영장 집행 당시 압수대상 서류 및 장부들의 제목이나 컴퓨터 등에 저장된 파일명들을 신중하게 살펴보았더라면 이 사건 포럼 관련 증거들이 1차 압수영장 기재 혐의사실과 무관한 것임을 어렵지 않게 알 수 있었을 것이다.

㈏ 수사기관이 압수 이후 압수물을 분석하는 과정에서 압수수색영장 기재 범죄사실과 관련성이 없다는 것이 밝혀진 경우에는 즉시 피압수자에게 이를 반환하는 조치를 취하여야 함에도, 검찰은 그러한 조치를 취하지 아니하였다. 영장담당판사가 2014. 10. 2. 2차 압수영장을 발부하면서 일부기각의 취지와 함께 1, 2차 각 압수영장의 혐의사실이 서로 관련성이 없어 피압수자에게 1차 압수영장으로 압수한 증거물을 반환하여야 한다는 취지를 명시하였음에도, 검찰은 2014. 10. 8.에서야 피압수자에게 이를 반환하는 조치를 취하였다.

㈐ 2차 압수영장 청구는 혐의사실과 무관한 증거를 취득한 절차의 적법성을 획득하고자 하는 외양을 갖춘 것에 불과하다.

㈑ 2차 압수영장의 집행으로 1차 압수영장 집행의 위법성이 치유된다면, 헌법과 형사소송법이 금지하는 포괄적·탐색적 압수수색을 허용하여 실질적으로 영장주의를 형해화하는 결과를 초래하게 된다.

D. Judgment of this Court

㈎ 서류 및 장부에 관하여

As seen earlier, 30 cases of documents and books seized with the primary seizure warrant are different from the facts of the offense indicated in the pertinent warrant, the timing and method of the offense, and the applicable provisions of Acts are different, and there were errors in the collection procedures. Nevertheless, the prosecution did not immediately request the second seizure warrant or take measures to return the evidence to the person against whom the warrant was seized, and the prosecution also conducted investigation as to Defendant 2 on September 25, 2014, immediately after the execution of the above warrant (hereinafter “2014 TFT Planning”).

However, in the above documents and books, the prosecutor submitted only the “2013 event program” (Evidence List 751), “2013 performance report (Evidence List 752), “General Opinion of △△△△△△△” (Evidence List 753), and “2014 TF Planning (Evidence 961)” as evidence. The prosecutor’s office only reported the above documents (Evidence No. 751) or outlines of the documents (Evidence No. 751) at the site of execution of the first seizure warrant (Evidence No. 812), and it was difficult for the prosecutor to readily conclude that the documents were irrelevant to the facts of suspicion as stated in the first seizure warrant. According to the facts related to the process of collecting the above documents, the prosecutor did not collect the above documents from the first seizure warrant to avoid the principle of warrant.

In addition, when executing the first warrant of seizure, the prosecutor issued to Defendant 2 a list of seizure containing the above documents. On October 2, 2014, 30 documents and books, including the above documents, were revealed to the judge of the district court regarding the facts suspected of having been suspected of having been suspected of having been recorded in the first warrant of seizure, and requested a separate warrant of seizure to seize the above documents, etc., and received a second warrant of seizure from the office of the forum of this case (the place where the first warrant of seizure was executed) to return the documents, etc. to the person subject to seizure and again seize them at the same time. In accordance with the purport of the second warrant of seizure, the prosecutor returned the above documents, etc. to Defendant 2 at the forum of this case on October 8, 2014, in which Defendant 2 participated, and again seized the above documents, etc. at the same place, and the said list of seizure was also issued to Defendant 2.

In full view of these circumstances, it is difficult to conclude that the procedural defect in the process of executing the first seizure warrant prior to this point infringed on the warrant requirement and due process as prescribed by the Constitution and the Criminal Procedure Act. It is reasonable to deem that the causal relationship with the defect in the previous procedure for collecting evidence was dissolved due to the execution in accordance with the second seizure warrant. Rather, excluding the admissibility of evidence in the above evidence would result in a violation of the purport of the Constitution and the Criminal Procedure Act to establish a procedural provision regarding criminal procedure and to harmonize the principles of due process with the substantive truth and to realize the justice of criminal justice.

Therefore, the prosecutor's argument on the admissibility of five documents mentioned above is with merit.

㈏ 파일 등 전자정보에 관하여

As a matter of principle, search and seizure of digital information by an investigative agency shall be conducted by means of collecting only the parts related to the suspected criminal fact on the ground of issuing a warrant in writing or copying the relevant file into a portable storage device carried by the investigative agency. Search and seizure by means of directly shipping the storage device itself or copying the entire electronic files stored in the storage device into an investigative agency office, such as hcarca or dypology, can be exceptionally allowed only when it is deemed that it is difficult to output or copy digital information within a specified scope, such as a situation at the scene or mass of digital information, or where technical measures are necessary to obtain relevant information, or that it is considerably difficult to achieve the purpose of search and seizure. As such, search and seizure of digital information directly or lawfully obtained by the storage device itself falls under search and seizure of digital information related to the suspected criminal fact, and as a matter of principle, the act of copying digital information from the investigative agency or copying it in accordance with Article 16(1)1 of the Criminal Procedure Act ought to be limited to the scope of digital information related to the unlawful search and seizure or copying of digital information without the warrant principle.

Even in cases where a search and seizure of storage media is conducted by transferring a storage medium or Hadrid, or a form of duplicate (hereinafter “duplicate”) that contains digital information to an investigation agency, etc. as it is deemed impossible to determine the scope in the course of search and seizure, or considerably difficult to achieve the purpose of search and seizure, the warrant principle and due process should be complied with, such as ensuring the opportunity to participate in the search and seizure or his/her defense counsel as prescribed in Articles 219 and 121 of the Criminal Procedure Act, and taking appropriate measures to prevent the arbitrary reproduction, etc. of digital information irrelevant to the suspected facts. In principle, searching, copying, and printing digital information irrelevant to the suspected facts, other than the digital information, constitutes an unlawful search and seizure. However, if digital information irrelevant to the suspected criminal fact is discovered in the course of lawful search and seizure, the investigation agency should further search and seizure, and the first search and seizure of digital information irrelevant to the suspected criminal fact should be conducted separately from the case where the first search and seizure of digital information is conducted by a court.

Based on these legal principles, the admissibility of electronic information, such as files collected through the execution of the second seizure warrant, is examined.

As seen earlier, the prosecution executed the first seizure warrant without examining the relevance of suspected facts stated in the relevant warrant, and illegally extracted the four computers and two files in USB located in the forum office of this case by means of collecting them and copying them into a portable storage device. The prosecution conducted a separate investigation into suspected facts while checking the circumstances of separate suspected facts unrelated to the facts stated in the first seizure warrant, and conducted a separate investigation for a certain period after the issuance of the second seizure warrant. Even when the second seizure warrant is executed, the prosecution had already been seized by means of searching information relevant to the suspected facts in the returned file without searching the information, and subsequently, the prosecution guaranteed the opportunity to participate in the process of copying, searching, printing out, and preventing the second seizure from copying the digital information in the way of a computer irrelevant to the suspected facts.

In light of the above circumstances, since the execution of the second seizure warrant regarding electronic information, such as the above file, is deemed to have not complied with the due process of search and seizure of electronic information, it is difficult to view that the causal link between the defects in the first seizure warrant and the subsequent investigation procedure, such as the above file collected through the execution of the second seizure warrant, is either dissolved or cut off. Such procedural defects may result in an infringement of the warrant requirement and due process under the Constitution and the Criminal Procedure Act.

Therefore, the judgment of the court below which did not recognize admissibility of evidence of this part is just, and it is not erroneous in the misapprehension of legal principles as alleged by the prosecutor.

(d)the second voluntarily produced article;

The lower court determined that the Defendants’ assertion that Defendant 2, the person subject to seizure, signed the written consent for voluntary submission, and there was no reason to deem that there was a special objection during that process, and thus, the release of the storage device itself is lawful seizure by means of voluntary submission under the Criminal Procedure Act, and accordingly, the Defendants’ assertion was groundless, on the premise that the seizure by voluntary submission was de facto a compulsory disposition corresponding to the seizure by warrant, and did not comply with the procedures for guaranteeing the right to participate or issuing the list of seizures

However, it is reasonable to view that the second voluntarily produced digital information includes not only the storage medium such as external hump, but also the digital information stored therein. In light of the aforementioned facts and records, it appears that the prosecutor did not guarantee Defendant 2’s procedural right to participate in the process of taking the storage medium from Defendant 2 to the investigative agency office and collecting and seizing digital information such as the file stored therein. Moreover, the prosecutor did not prepare and deliver a separate list of seizure of digital information extracted from the storage medium.

In light of the legal principles on search and seizure procedures for Finin electronic information and the provisions of Articles 218, 219, 122, and 129 of the Criminal Procedure Act, among the second voluntarily produced articles, the admissibility of evidence cannot be recognized on the ground that there exists an error of law in failing to comply with due process.

(e) other evidence;

(1) As to the evidence (Evidence No. 830, 832, 834, 838, 846, 848, 849, 851, 852, 854, 856-1-4, 858, 859, 861, 874, 880, 882, 883, 893-1, 902) collected through the execution of a search and seizure warrant against the dwelling of Defendant 5 and the office of Defendant 4 and the e-mails account.

As seen earlier, it cannot be deemed that the collection of evidence through the execution of the first seizure warrant by the prosecution was derived from the attempt to avoid intent to the warrant requirement. Although partial collection of evidence through the execution of the second seizure warrant was illegal, the record reveals that there was a collection of evidentiary materials to acknowledge the criminal charge stated in the relevant warrant until the request for the search and seizure warrant was made.

In light of these circumstances, it is reasonable to view that the causal link with the procedural defects as indicated in the execution process of the warrant of search and seizure, which was collected through the execution of the above search and seizure warrant, has been severed or dissolved. Therefore, the admissibility of evidence can be recognized.

D. Defendant 2, Defendant 1, Defendant 5, Defendant 4, and Defendant 3’s prosecutorial statement and legal statement (Evidence List 668, 694, 733, 774, 782, 839, 843, 894, 898, and 899) and witness’s prosecutorial statement and legal statement (Evidence List 738, 754, 768, 778, 788, 780, 781, 783, 784, 787-790, 822, 840, 871, 889, 90 (Provided, That the part of the prosecutor’s first prosecutor’s prosecutor’s prosecutor’s statement directly presenting the output of the evidence), and the part of the witness’s prosecutor’s prosecutor’s prosecutor’s prosecutor’s statement and evidence established during the process of execution can be deemed admissible as evidence of the aforementioned evidence.

However, according to the above facts, the prosecutor did not prepare a written confirmation of the investigation process that recorded the investigation process with Nonindicted 21. In light of Articles 221(1), 244-4(1) and (3), and 312(4) and (5) of the Criminal Procedure Act and its legislative intent, etc., in a case where an investigation agency violates the procedures prescribed in Article 244-4(3) and (1) of the Criminal Procedure Act by failing to record the investigation process, the written confirmation cannot be prepared in the investigation process according to “legal procedure and method,” barring any special circumstance (see Supreme Court Decision 2013Do3790, Apr. 23, 2015). The same applies to the case where the written confirmation with respect to a person who is not the defendant. Thus, admissibility of Nonindicted 21’s prosecutorial statement (Evidence 799) cannot be acknowledged.

Article 22-1 of Non-Indicted 1’s e-mail (Evidence List 821-1, 821-2, 959, 960) is considered as follows.

In full view of the aforementioned facts and the background leading up to the discovery and output of e-mails indicated in the record, it can be seen that Nonindicted Party 1 voluntarily consented to the prosecutor’s confirmation and output of the relevant e-mails and informed the prosecutor of his/her information related to the e-mail account to the prosecutor. As such, the evidence can be admitted as evidence duly collected.

Applicant Defendant 4 and Nonindicted 20’s written answer to the election commission’s written statement against Defendant 1 and Nonindicted 34 submitted (Evidence List 741-744) are already collected by the election commission prior to the commencement of the instant forum-related investigation by the prosecutor. As such, it cannot be deemed that the procedural illegality in the process of executing the warrant of seizure 1 and 2 as mentioned above is relevant to the procedural illegality, and thus, admissibility of evidence can be recognized.

(v)a text message seized from Defendant 1’s mobile phone and a copy of the main text message seized at the residence of the co-defendant 6 of the first instance trial (Evidence List 836,876) are deemed to have been collected in a manner that is not permitted in light of due process and warrant principles because it is difficult to view that there is a relevance to the suspected facts stated in the relevant search and seizure warrant. The lower court’s determination that did not recognize admissibility of each evidence is acceptable

F) Sub-decision

In so determining, the lower court erred by misapprehending the legal doctrine on the admissibility of the secondary evidence or the secondary voluntarily produced evidence that was collected based on illegally collected evidence in the course of the execution of the warrant of seizure (However, considering the remaining evidence submitted by the lower court that admitted the admissibility of evidence and the newly submitted evidence by the appellate court before and after remanding, it is sufficient to acknowledge the facts that will still be explained below).

B. Regarding the establishment of similar agencies and the prior election campaign

1) The judgment of the court below

원심은, 그 판시사실에서 알 수 있는 이 사건 포럼의 설립 경위, 회원모집 경위, 포럼의 선거기획활동, 선거사무소 구성 후 포럼의 활동 상황, 포럼이 해산을 결정하기까지의 과정을 종합하면 이 사건 포럼이 피고인 3의 △△광역시장 당선을 위한 선거운동을 목적으로 설립되었다고 봄이 타당하고, 나아가 ㉠ 피고인 3이 다른 회원들과는 달리 전통시장 방문, 지역기업 탐방, △△시 77개동을 순회하며 시민들과 만나는 △△경제투어 등 수개월에 걸쳐 열린 이 사건 포럼의 주최행사에 빠짐없이 참석한 점, ㉡ 이 사건 포럼이 주최한 행사 대부분이 유권자인 시민들을 직접 만나는 현장행사 중심으로 이루어졌고, 이를 통해 피고인 3으로서는 자연스럽게 자신을 유권자들에게 알리면서 인지도와 우호적 이미지를 제고시키는 효과를 누릴 수 있었을 것으로 보이는 점, ㉢ 전통시장 방문, 지역기업탐방, △△경제투어 행사의 진행방식을 보면, 시민들을 만나 의견과 애로사항을 청취하는 정도에 그쳤고, 행사 개최 후 이를 토대로 이 사건 포럼 정관상 설립목적인 경제정책 대안 제시, 결과물에 대한 연구자료 발간, 경제발전 관련 의제발굴과 관련하여 연구나 토론을 하였다는 정황이 없는 점, ㉣ 농촌일손 돕기, 사랑의 헌혈운동 및 대학생 등과의 토론회는 이 사건 포럼의 정관상 설립목적과는 큰 관련이 없어 보이고, 오히려 피고인 3의 우호적 이미지를 제고하기 위한 효과적 방법이었다고 보이는 점, ㉤ 이 사건 포럼이 운영되는 동안의 활동으로는 이 부분 공소사실과 같은 행사가 거의 전부이었다고 보이는 점, ㉥ 출판기념회 역시 이 사건 포럼의 전적인 지원으로 피고인 3의 인지도와 우호적 이미지를 제고하고자 하는 의도에서 개최되었던 점 등의 사정을 종합하면, 이 사건 포럼의 전반적인 활동은 통상적·일상적인 사회적 또는 정치적 활동의 범주를 넘어서서 △△광역시장 후보로 출마할 피고인 3의 당선을 도모하기 위해서 하는 것이라는 목적의사가 객관적으로 인정될 수 있는 능동적·계획적 행위에 해당한다는 이유로, 이 사건 포럼은 피고인 3의 선거운동을 할 목적으로 설립된 선거사무소 유사기관이고, 피고인들이 이 사건 포럼 활동을 통하여 사전선거운동을 하였다는 이 부분 공소사실을 모두 유죄로 판단하였다.

2) The judgment of this Court

A) In order to punish a person pursuant to Article 255(1)13, the main text of Article 89(1), and Article 254(2) of the Public Official Election Act, the purpose of “election campaign” should be either for the purpose of “election campaign” or for the pertinent act itself be recognized as “election campaign”.

The scope of election campaigns prohibited under the Public Official Election Act should be determined according to the specific criteria such as (i) to (v) the following.

(1) The term “election campaign” refers to an act objectively recognized by the intent of promoting the election or defeat of a specific candidate in a specific election, and whether such act constitutes an act ought to be objectively determined from the subject of the act, not from the internal intent of the subject of the act in question.

Things The above intent may be acknowledged not only in the explicit method of disclosing the intent to stop in a specific election and requesting support therefor, but also in the case where the intent of the purpose of promoting the election or the defeat in the election is easily inferred from an elector’s perspective in light of the objective circumstances at the time. To find the existence of such intent, the mere fact that the relationship with the election can be inferred or that the elector was motiveed for matters concerning the election ought to be based on an objective circumstance where the elector clearly recognizes that the act was an act of promoting the success in a specific election.

Article 22(1) of the former Election Act provides that an election campaign shall be carried out in order to ensure that an election campaign is carried out in order to ensure that an election campaign is carried out in order to ensure that the election campaign is carried out in order to ensure that the election campaign is carried out in order to ensure that the election campaign is carried out in order to ensure that the election campaign is carried out in order to ensure that the election campaign is carried out for a specific election.

As part of ordinary social activities and ordinary political activities, the above standard of determination should be applied to the act of a voter to build a political foundation by enhancing awareness and positive images through the process of seeking and establishing a policy that enables him/her to listen to and receive support from his/her own character by having contacted with electors, while seeking the consent and approval of his/her character as a part of his/her ordinary social activities and political activities. Therefore, even if the purpose of this act is to enhance awareness and positive images of ordinary social activities and ordinary political activities, it is not recognized that the act is an election campaign aimed at promoting the election or defeat of a specific person in the election, with the aim of a specific election.

(v)where the act at issue appears in the form of an activity through an organization, etc., further considering the purpose and details of the establishment of the organization, etc., personnel composition, the time, method, details and scale of the activity, and other factors, whether the activity was conducted in accordance with the intent of promoting a person’s election or defeat in a specific election should be examined objectively from the perspective of the elector concerned

나) 이러한 법리와 원심과 환송 전·후의 항소심에서 적법하게 채택·조사된 증거들에 의하여 인정되는 사실관계와 그로부터 드러나는 아래 ⑴~⑹ 기재 사정에 비추어 보면, 원심이 그 판시와 같은 이유만으로 피고인 2, 피고인 3, 피고인 4가 이 사건 포럼을 설립함으로써 유사기관설치 금지규정을 위반하였다거나, 피고인들이 이 사건 포럼 활동을 통하여 사전선거운동을 하였다고 판단한 데에는 공직선거법 제255조 제1항 제13호 , 제89조 제1항 본문의 적용요건인 ‘선거운동의 목적’과 제254조 제2항 이 정한 ‘선거운동’의 의미에 관한 법리를 오해한 잘못이 있다.

(1) On June 4, 2014, the forum of this case was established at around one year and six months prior to the 6th local election day of Dong-si, Dong-si. The key activities of the forum of this case, including visits to traditional markets, local enterprises, visits to local enterprises, citizen discussions, rural community descendants, blood donation campaigns, △△△ Economic Investment, △△△ Culture - City folklore, discussions for large students, and special lectures, were mostly started on around one year and four months prior to the election day and end at least five months prior to the election day.

The election planning of the △△ City Mayor for Defendant 3 was prepared before and after the establishment of the instant forum through various election planning documents secured by the Do governor investigation agency, and it was revealed that there was an internal meeting about it, and that they were prepared in mind with Defendant 3’s election campaign.

However, the internal meeting was not only an internal meeting between Defendant 3’s core support persons who led the establishment of the forum of this case and there was no external indication, and it was not known that there was an intention to promote the fall in the election of the △△△ City Mayor from the perspective of the elector’s perspective.

Even according to the content of the above election planning document itself, it is merely a planning of various activities to enhance his awareness and friendly image by Defendant 3 participating in various activities within the scope of the purpose of establishment of the forum in this case, and it does not include a way to recognize the intention of election in the above election.

Therefore, the above documents and internal meetings can be recognized through this as having the intention to raise Defendant 3’s awareness of the establishment and operation of the forum of this case, and cannot be the grounds for planning an election campaign through the establishment and operation of the forum of this case.

In full view of the purpose and details of the establishment of the forum in this case, the contents of the articles of incorporation, the status of activities, and the status of supervision of the △△ Metropolitan City, etc., the activities of the forum in this case cannot be deemed to be out of the purpose of the articles of incorporation to find issues related to the economy of △△△ region, discuss them together with all the experts and citizens, thereby contributing to the revitalization of the regional economy through suggesting alternatives, and the opinions of the △△△ City, which is the supervisory authority, were also planned and promoted in accordance with the purpose of establishment.

Applicant Defendant 3, along with the members of the forum in this case, visited 7 dongs in traditional markets or △△△ region with the clothes bearing the name of the forum in this case, and visited 7 dongs in various discussions, and participated in various discussions.

Examining the aforementioned various activities of the forum and Defendant 3 as a member of the forum in this case, the Defendants can be recognized as having performed various activities to help Defendant 3’s election campaign for the △△△ City Mayor through such activities with a view to enhancing their awareness and positive image.

However, even based on the evidence duly adopted and examined, it does not seem that the events held by the forum in this case were held for Defendant 3’s election campaign or the event was revealed in the opportunity of Defendant 3’s election campaign and asked Defendant 3 to support it by the election of the △△△△△△△△ City. However, even though the activities of the forum in this case were performed mainly in △△△△ City, considering the fact that the purpose of the forum in this case is economic activation of △△△ region, it does not constitute an election campaign area as an activity area, and there is no special circumstance to deem that the purpose of promoting Defendant 3’s election is objectively indicated to the extent that the elector can recognize it.

(v) A publication commemorative meeting held by Defendant 3 is held seven months prior to the election day of △△ City Mayor, and thus, it does not violate Article 103(5) of the Public Official Election Act, which prescribes that the publication commemorative meeting related to the candidate, etc. shall not be held from 90 days prior to the election day

Although employees, members, etc. of the forum of this case attended the above publishing commemorative association and participated in guidance and maintenance of order, it does not reveal any other special involvement acts, that alone does not constitute an event of the forum of this case. Even if Defendant 4 sent the first medal of the publishing commemorative association and briefly mentioned Defendant 3’s appearance, it is nothing more than sending personal mail to some persons who have personal friendship, and it does not appear that Defendant 4’s speech and behavior or circumstances that can be acknowledged explicitly by the purpose of promoting election, such as informing Defendant 3 of the contents of the medal by means of disclosure or requesting support from election, etc. at the publishing commemorative association.

⑹ 위 ⑴~⑸항에서 살핀 바와 같이, 피고인들이 이 사건 포럼을 통하여 계획한 내용이나 실제로 한 주요 활동들은 선거일에서 멀리 떨어진 시기에 이루어진 일이므로 피고인 3이 향후 어떤 선거에 나설지도 모른다는 예측을 주는 정도에 불과하고, 피고인들이 그 계획 및 활동 과정을 통하여 명시적으로 △△광역시장 선거에서의 피고인 3에 대한 지지를 부탁하는 행위가 있었음이 인정되지 않을 뿐만 아니라, 선거인의 관점에서 위 선거에서 피고인 3의 당선을 도모하려는 목적의사를 쉽게 추단할 수 있을 만한 객관적 사정도 부족하다.

Therefore, even if the Defendants brought about the awareness and positive image of Defendant 3 while engaging in the activities according to the purpose of the forum’s articles of incorporation, it cannot be deemed as an advance election campaign, and it is difficult to view that Defendant 2, Defendant 3, and Defendant 4 established the forum in this case for the purpose of election campaign.

The Defendants’ assertion on this part is with merit.

C. As to the violation of the Political Funds Act

1) The judgment of the court below

The court below found Defendant 2, Defendant 3, and Defendant 4 guilty of violating the Political Funds Act, on the ground that the forum in this case received membership fees from members constituted an act of receiving political funds and that Defendant 2, Defendant 3, and Defendant 4 violated the main sentence of Article 45(1) of the Political Funds Act as a member of the forum in this case.

2) The judgment of this Court

A) Whether the previous facts charged constitute a violation of the Political Funds Act

As seen earlier, since the establishment of the forum of this case and various events and activities violated the prohibition of establishment of similar organizations, or cannot be deemed as an advance election campaign, the above judgment of the court below, which held that the above events and activities are election campaigns, is difficult to maintain as it is.

B) Whether the charges of violation of the Political Funds Act by the appellate court after remanding

(1) The former Political Funds Act (amended by Act No. 14074, Mar. 3, 2016; hereinafter “ Political Funds Act”) aims to contribute to the sound development of democratic politics by guaranteeing the adequate provision of political funds, ensuring transparency by disclosing the details of revenue and expenditure, and preventing irregularities relating to political funds (Article 1).

Accordingly, Article 45(1) of the Political Funds Act provides that the person who receives political funds (in cases of political parties, supporters' associations, corporations or other organizations, referring to the person who commits the relevant act of violation as a member thereof) shall be punished. Here, the term "political funds" is defined as party membership fees, support payments, deposits, subsidies, incidental revenues prescribed by the party constitution and party rules, etc., and other political activities for political activities (including the Preparatory Committee for Central Party Formation), persons who are elected through an election for public office, persons who intend to be a candidate for an election for public office or a candidate, supporters' associations, executives and employees of political parties or salaried clerical staff, and other persons who are engaged in political activities, as expenses incurred in their political activities (Article 3 subparag. 1).

The “political activities” stipulated in the aforementioned provisions of the Political Funds Act is abstract and comprehensive concept, but its meaning is reasonable to be limited in accordance with the legislative intent of the Political Funds Act. As seen earlier, the Political Funds Act was established to ensure the adequate supply of political funds and the transparency of revenues and expenditures from persons engaged in political activities for the realization of representative democracy, thereby preventing irregularities related to political funds. Therefore, the Political Funds Act is a person who engages in activities for the realization of political parties or representative democracy, and is subject to regulation of persons who need to provide appropriate funds for such activities, and “other persons engaged in political activities” (Article 3 subparag. 1 (g) of the Political Funds Act amended by Act No. 14074, Mar. 3, 2016) who are subject to regulation under the said definition provision (Article 3 subparag. 1 (g) of the Political Funds Act) but it is reasonable to deem that there is no change in the meaning of the Political Funds Act established to the extent that persons or organizations engaged in political activities are directly related to the election of public officials, or that they are directly related to the election of political parties or organizations.

Referencely, this case is examined on the basis of the content and interpretation of the Political Fund Act.

㈎ 원심과 환송 전·후의 항소심에서 적법하게 채택·조사된 증거들에 의하면 아래와 같은 사실이 인정된다.

① The developments leading up to the establishment of the forum

On April 11, 2012, Defendant 3, who was unsatisfed in the election of the 19th National Assembly member, sought a re-satisfy as a candidate and a member of the political party, to be carried out in the election of the 19th National Assembly member, including the △△ Metropolitan City Mayor. Defendant 4 was a assistant officer in the election of the National Assembly member of Defendant 3, and was in charge of the accounting and financial affairs of Defendant 3 after April 2012, and supported his political activities.

(b) Defendant 2, as Defendant 3’s senior high school, proposed that Defendant 3 should participate as president by disclosing the establishment plan of the forum of this case to Defendant 4 around May 2012.

㉰ 피고인 2는 이 사건 포럼 설립을 준비하면서 공소외 1로부터 2012. 6. 20. ‘제19대 총선에서 제시된 피고인 3의 공약 중 ♣♣♣♣ ◀◀ 공약을 기반으로 제시되는 3가지 영역에 대한 연구포럼 운영’을 내용으로 하는 ‘○○○○전략포럼 제안서’를 전자우편으로 수신하였고, 피고인 4는 2012. 6. 27. 이 사건 포럼 설립에 관여한 공소외 1로부터 위 포럼의 설립계획점검표(스케줄 체크리스트)를 전자우편으로 받아보았다.

Defendant 4 and Defendant 3 did not immediately accept the proposal as stated in the above Section. Accordingly, Defendant 2 and Nonindicted 1 discussed on behalf of Defendant 3 to suggest the above concept to other political parties on behalf of Defendant 3.

around July 2012 to August 8, 2012, Defendant 4 expressed to Defendant 2, and Defendant 3 expressed to Defendant 3’s intent to participate as an adviser of the forum. After all, Defendant 2 and Nonindicted 1 did not propose to participate in the establishment or activities of the forum to other political parties than Defendant 3 or have not been promoted to participate in the forum activities of this case. Defendant 3 and Defendant 4 did not suggest that other political parties participate in the forum activities of this case.

㉳ 피고인 4는 2012. 8. 9. 피고인 2로부터 이 사건 포럼의 회원가입신청서 양식과 포럼에 관한 섭외홍보물을 전자우편으로 받았고, 2012. 11. 16. 피고인 1(당시 이 사건 포럼의 행정실장)로부터 이 사건 포럼의 가입신청서 양식과 간판시안 등에 대한 검토를 전자우편으로 부탁받았다.

㉴ 피고인 3은 피고인 4에게 공소외 11(♧♧대학교병원 이사장, 의사)을 이 사건 포럼의 이사장으로 영입하면 좋겠다는 말을 하였고, 피고인 4는 2012. 8. 1.경 회원명단(이 사건 포럼의 실제 회원명단은 아니었다)을 가지고 피고인 2와 함께 공소외 11을 만나 ‘피고인 3이 고문으로 활동할 것’이라고 말하면서 이 사건 포럼의 이사장을 맡아달라고 부탁하였다. 공소외 11은 이를 몇 차례 거절하다가 회비를 납부하지 않고 재정에도 관여하지 않겠다고 하면서 위 이사장직을 수락하였다.

㉵ 이 사건 포럼의 설립허가 신청 시 제시된 세부사업내용은 △△지역 경제관련 연구포럼 및 세미나 개최, 자료집 배포를 통한 △△지역 경제발전을 위한 정책제안, 지역기업탐방활동, 전통시장방문, 청년창업 일일캠프, 캠페인, 유관단체 사업협력, 온라인 네트워크 구축 등이었다.

㉶ 이 사건 포럼의 설립 과정에는 △△지역 전·현직 기업체 대표나 직원, 학원 등 교육계·체육계 종사자, 시민단체 활동을 하는 행정학 교수, 변호사, 과학자, 언론인, 문학가, 의사 등이 발기인으로 참여하였으나, 경제관련 전문가나 연구업무에 종사하는 인력은 발기인으로 참여하지 않았다. 그리고 위 포럼 설립 이후 2013. 5.경까지도 경제관련 분야의 연구업무를 맡은 인력이 상근으로 근무하지 않았다.

② Operation and activities of the forum of this case

㉮ 피고인 2는 이 사건 포럼 사무총장으로서 이 사건 포럼 사무실에서 상근하였고, 피고인 1(종전 지방자치단체장 선거에서는 공소외 14 전 △△광역시장의 선거운동을 한 바 있다)은 행정실장으로, 피고인 5(피고인 3이 소속하였던 ◐◐◐◐당 △△시당 간사로 근무한 바 있다)는 피고인 3의 대변인인 공소외 40 소개로 위 포럼 행정팀장으로 각각 채용되어 이 사건 포럼 사무실에서 상근하였다. 피고인 2, 피고인 1, 피고인 5는 이 사건 포럼의 주요 행사나 활동의 기획, 자금의 집행과 관리, 회원관리 및 행사 진행 등의 업무를 담당하면서 이 사건 포럼으로부터 급여를 받았다.

피고인 4는 이 사건 포럼의 상근직원은 아니었으나 이 사건 포럼의 ‘상임이사’로 표기된 명함을 소지하고 다녔고, 시청 등 관공서가 밀집해 있는 대전 서구 ∈∈동 지역에 볼일이 있으면 같은 지역에 있는 이 사건 포럼 사무실에 나와 그곳 책상 등 사무기기를 사용하면서 개인 업무를 보기도 하였다.

Upon the establishment of the instant forum, Non-Indicted 16, who had experience in election planning, found Defendant 2 and asked Defendant 2 about the above forum’s activities, and suggested Defendant 2 to propose ideas on the direction of the instant forum’s activities and the circumstances in progress. Accordingly, Non-Indicted 16, around January 8, 2013, prepared documents, such as “the tree shall throw the flowers out and get the flowers out,” and sent the file to Defendant 2, Defendant 4, and Defendant 1 by electronic mail, and Defendant 2 sent the file to Defendant 3. In preparation for the election of △△△△ City City Mayor in 2014, the above documents contain specific means of activities of the forum with the aim of enhancing Defendant 3’s guidance.

Around January 2013, Defendant 2 instructed Nonindicted 1 to prepare a planning proposal, referring to the above documents prepared by Nonindicted 16, and Nonindicted 1 prepared a “2014 TFT planning proposal” on March 26, 2013, and proposed the said plan to Defendant 3 and Defendant 4 while attending Defendant 3’s office on April 2013.

In the above draft, “the formulation of an effective specific activity plan for one year and three months for the successful towing of local elections on June 2014” is indicated as a planning background. The analysis and structure of the political support tendency of the right holder in △△ area and the detailed activity plan are presented at each time, as described below [the contents of the promotion].

본문내 포함된 표 기 간 구 분 내 용 2013. 3 ~ 2013. 5. 준비기 ▷ 전반적인 활동계획 수립 ▷ 기본 조직 구성 ▷ 온오프라인 기본 활동 수행(플랫폼 구축) ▷ ○○○○○○○○포럼 기반 구축 2013. 6. ~ 2013. 11. 도약기 ▷ 온오프라인 활동 활성화(플랫폼 활성화) ▷ 공약팀 구성 및 통계 분석 실시 ▷ 세부조직 확대, 지지 네트워크 확대 ▷ ○○○○○○○○포럼의 고유활동 활성화 2013. 11 ~ 2014. 2. 성장기 ▷ 공식 출마 선언 ▷ 적극적인 사회참여 및 포럼활동 참여 ▷ 전용 온라인 홈페이지 개설 ▷ 공약제작 및 관련 활동 활성화 2014. 3 ~ 2014. 6. 집중기 ▷ 세부 조직 활동을 통한 지지기반 확립 ▷ 집중 선거 운동

In addition, the detailed action plan for each area of the above planning included the contents of interview with local personnel in order to actively disclose the process of communication with support connection, including the interview with Defendant 3 in a book book around November 2013 for the purpose of operating a community service for the purpose of self-production of content for the exposure of media by Defendant 3. The business of the forum in this case includes the opening of the “academic seminars on the economic pending issues of △△△△△△△△△△△△” meeting for the purpose of continuously creating the image of Defendant 3, Defendant 3’s opening of the open-type “academic seminars on the economic crisis of △△△△△△△△△△△△△△△△” (including the contents that Defendant 3 participate in the panel or assistant). In addition, the interview with local personnel was held in order to communicate with university students and young people in the region with employment and the theme of business start-up, and the interview with Defendant 3’s “s local community service activities” for the purpose of promoting the social activities of Defendant 3 as an executive and employee.

The forum of this case (attached Form 2) held and held several times against traditional markets, local enterprises visits, citizen debates (△△△△△ Active Forum), rural community descendants, love blood donation campaign, △△△ Economic Investment (including making a tour of 77 Dongs at △△△△△△△ and holding events with citizens), university students, etc., as shown in the List 2 of Offenses.

㉳ 위 행사 중 전통시장방문의 경우, 피고인 3을 비롯한 회원들이 이 사건 포럼으로부터 무상으로 제공받은 상품권을 이용하여 물품을 구매하고 피고인 3이 시장상인들과 인사하면서 재래시장활성화를 약속하는 방식으로 진행되었다. 지역기업탐방이나 △△경제투어는 피고인 3과 몇몇 임원 또는 회원들이 기업, 학교 등을 방문하거나 △△지역을 순회하면서 거리의 시민 등으로부터 현황이나 애로사항 등을 듣는 방식이었다.

㉴ 이 사건 포럼의 행사참여 방법은 행사마다 회원들에게 연락을 취하여 참석 요청에 응한 회원들이 번갈아가며 참석하는 방식이었다. 그러나 피고인 3만이 위 ㉲항 기재 행사 대부분에 주요 참석자로 참여하였고, 위 포럼 이사장인 공소외 11은 간헐적·일시적으로만 참여하는 데 그쳤으며, 위 행사들에 참석한 이 사건 포럼의 주요 관계자 및 활동회원은 피고인 3을 따라다니며 보좌하는 역할을 수행하였다.

㉵ 피고인 2는 2013. 5. 27. 피고인 1에게 블로그와 페이스북을 개설하여 각 담당자를 두고 회원들을 모집하여 다양한 활동들을 자연스럽게 알리고 참여를 유도하자는 내용을 담은 ‘◎◎◎ 카페 계획’ 파일을 전자우편으로 보냈다. 피고인 3의 이 사건 포럼 활동은 피고인 1, 피고인 5 등이 운영하는 페이스북이나 블로그, 언론매체를 통하여 일반 대중에게 지속적으로 홍보되었다.

㉶ 경영학 박사 공소외 41은 2013. 6.~12.경 이 사건 포럼의 연구원으로 상근하면서 시민토론회 행사준비실무 업무를 수행하거나 △△경제투어의 기획에 관여하였다. 그러나 공소외 41은 위 근무기간 중 시민토론회나 △△경제투어에서 파악된 경제현안에 관한 연구실적을 이 사건 포럼 명의로 내놓지 못하였다. 피고인 3도 공소외 41로부터 경제문제에 관한 의견을 듣거나 함께 논의를 한 바는 없었다.

㉷ 피고인 2는 2013. 11.경 이 사건 포럼 부장단에서 활동하던 공소외 2에게 상근직원 근무를 제안하면서 시험 삼아 회의록 작성을 지시한 바 있는데, 작성하도록 지시한 내용 중에는 피고인 3의 이미지 조성이나 얼굴 알리기 확대, 피고인 3의 ‘경청투어’ 유형 방향 등에 관한 내용이 포함되어 있었다.

㉸ 피고인 3은 2013. 11. 14. 출판기념회를 개최하였는데, 이 사건 포럼의 상근직원이던 피고인 2, 피고인 1, 피고인 5가 초청장 제작 및 발송 업무를 돕거나 행사당일의 내빈응대, 도서판매, 행사진행 등의 업무를 맡았다.

③ The details of the revenue and expenditure of the forum of this case

Defendant 2 and Defendant 4 led Defendant 2 and Defendant 4 to collect special membership fees in order to cover personnel expenses, such as wages of full-time employees, office, and expenses for the establishment and operation of the forum. In the process of collecting the special membership fees, the said Defendants either directly or indirectly disclosed that Defendant 3 was involved in the forum in the instant case.

(b) The revenues of the instant forum were KRW 57,100,893 (Special Fee KRW 57,100,000, interest income KRW 893). Of them, KRW 43,624,047, including general management expenses (business promotion expenses, taxes and public charges, event expenses, meeting expenses, general operation expenses), KRW 12,095,70 as personnel expenses (interest and insurance expenses), KRW 12,095,70 as office deposit, and KRW 23,70,50 as property acquisition expenses such as office deposit.

The revenue of the forum in the instant case caused by the occurrence of a disaster was KRW 135,197,32 (the special membership fee of KRW 115,831,680, general membership fee of KRW 5,881,296, KRW 7,510, and KRW 13,476,846). Of them, KRW 123,03,038,502, including the total of KRW 53,129,862, and the total of KRW 69,908,640, and KRW 129,038,502,000, including general management expenses (business promotion expenses, taxes, public charges, event expenses, meeting expenses, and general operation expenses).

Defendant 3 and Defendant 4 did not pay special membership fees or general membership fees for the forum in this case.

④ The instant forum activities after Defendant 3’s organizing the election campaign organization of △△△ Metropolitan City Mayors

Defendant 3 organized an election campaign organization for the head of the Seocho-gu Seoul Special Metropolitan City City on January 2014, and Defendant 2, Defendant 4, Defendant 1, and Defendant 5 moved to the said sports organization or took charge of the executive duties of the said sports organization, as indicated below (BO).

In the position of the election campaign organization in the position of the election campaign organization, the name for a forum office (office) for the name of the election campaign organization included in the main text, and the head of the citizen senior executive office, the head of the citizen senior executive office, the head of the public senior executive office, Defendant 4 standing director, the executive team leader

(b) The activities of the forum in this case have been rapidly deteriorated after the composition of the above organization, and the dissolution was decided around January 2015.

As a result, Defendant 5 was divided into a conversation to the effect that Defendant 3’s election campaign office is on the extension line of the forum in the instant case to friendly Gu and Kakaook.

㈏ 이러한 사실관계와 이를 통하여 알 수 있는 아래 ①~⑤ 기재 사정을 종합하여 보면, 피고인 2, 피고인 3, 피고인 4는 단체를 구성하는 인적·물적 조직을 바탕으로 지역경제를 위한 정책개발이라는 명목을 표방하면서 피고인 3으로 하여금 불특정 또는 다수의 유권자와 지속적으로 접촉할 수 있는 여러 행사를 개최할 계획을 수립하는 등 단체 활동을 빙자하여 피고인 3의 △△광역시장이나 지역구 국회의원 등 공직선거의 출마 및 당선에 관련된 정치활동을 도모할 목적으로 이 사건 포럼을 설립하여 피고인 3의 인지도 제고 및 이미지 향상을 위한 위 포럼의 활동을 기획, 추진하고, 그러한 활동비용 및 그 인적 구성으로서 실제 업무를 주도적으로 수행, 보좌할 피고인 2, 피고인 1, 피고인 5 등 상근직원의 급여와 물적 구성으로서 같은 피고인들 및 피고인 3의 보좌관 업무를 담당하던 피고인 4의 업무공간 개설 및 유지에 소요되는 운영비 등의 비용을 특별회비 명목으로 모금하여 충당하기로 공모하였고, 이에 따라 피고인 2, 피고인 4 등이 이 부분 공소사실 기재와 같이 정치활동에 소요되는 위와 같은 비용을 특별회비 등 명목으로 제공받은 것이라고 봄이 타당하다.

① Defendant 2 and Nonindicted 1 established an organization consisting of a specific professional politician, not an organization opened to multiple or a large number of professionals. Defendant 3 and Defendant 4, who was an assistant thereto, agreed to participate in the instant forum, which was sought and proposed by Defendant 2, etc., in the circumstances where the political activity space to run in the election of public officials in the future is needed. Thereafter, Defendant 3 and Defendant 4 actively participated in the process of establishment of the forum in the instant case, as well as in the process of opening the forum, joining the president, and raising special membership fees.

② The promoters of the instant forum constituted a number of business representatives or professionals in △△ region, who can be called the so-called “regional maintenance” rather than researchers and academic workers related to the regional economy. The detailed business contents claimed at the time of the establishment of the forum was placed in the place of an external field event, rather than internal activities for economic research.

③ Most of the activities the forum of this case promoted after its establishment was a traditional market visit, a local company visit, a citizen forum, a community forum (△△△△△△ Active Forum), a volunteer blood donation campaign, a voluntary blood donation campaign, and a △△△ economic speculation. This was reflected in the content of Nonindicted Party 1’s “2014 TFT Planning Plan”, which was written in the planning background, stating that “an effective detailed activity plan is formulated for the successful towing of local elections on June 2014.” In fact, the event was centered on Defendant 3 individuals.

Among them, the event that can be deemed to be related to the “the discovery of a major agenda about the economic development of the △△△△△△ region,” which is advocated as a major project by the instant forum, can be seen as a traditional market visit, local business visit, and △△△ Economic Speculation. The persons related to the instant forum have been making substantial efforts to publicize the above activities of Defendant 3, and did not exert any particular influence on the presentation or in-depth research of the practical policy alternative, and the recommendation to the administrative authority, based on the opinions heard from the citizens.

④ After the establishment of the forum in this case, Defendant 2 planned and promoted various activities of the forum in this case that are helpful to Defendant 3’s improvement of his personal guidance, etc., Defendant 2, upon receiving election planning plans from Nonindicted 16 with Nonindicted 16 with experience in election planning, instructed Defendant 3, Defendant 4, and Defendant 1 to jointly prepare “2014 TFT planning” or “2014”, and collected and devised various plans for Defendant 3’s preparation for the departure of public office election, such as ordering Nonindicted 2 to examine and prepare the minutes of the video creation of Defendant 3’s image.

Defendant 1 and Defendant 5 also assisted Defendant 3 to carry out the management of members and events of the forum of this case, or executed and managed the funds thereof, etc. In addition, Defendant 3 continued to engage in public relations activities, etc. of Defendant 3 while operating the Facebook and Blouse for Defendant 3.

As a researcher of the instant forum, Nonindicted 41, who was full-time in the course of event planning or preparation for approximately six months, was mainly engaged in the event planning or preparation, did not formulate any economic policy or set research performance for the development of the regional economy claimed by the instant forum, and did not directly propose such policies, etc. to Defendant 3.

In full view of the aforementioned actual duties of full-time employees for the instant forum and the circumstances in which Defendants 2, 1, and 5 were assigned to Defendant 3’s work related to the publication and commemoration of the public official election preparation, it is reasonable to deem that the main duties of full-time employees for the instant forum were duties related to the publication and commemoration of the public official election by Defendant 3.

⑤ When Defendant 2, Defendant 1, and Defendant 5 constituted an election campaign organization of △△△△ City Mayors, the major employees of the forum of this case, including Defendant 2, Defendant 1, and Defendant 5, were immediately left the forum of this case or left the position of executive officers of the said sports organization. Since then, the forum of this case was rapidly deteriorated, and Defendant 5 was aware that the election campaign organization of this case and Defendant 3 was on the extension of the election campaign organization. If the forum of this case had the substance of the regional economic research organization claimed by itself, it was difficult to deem that the above phenomenon occurred or that such recognition was made.

㈐ 한편, 이 사건 포럼의 활동들이 그 정관상 목적에 벗어난다고는 보기 어렵고, 이 사건 포럼과 같은 비영리법인의 수행사업으로서 적합하며, 감독관청인 △△광역시가 위 포럼이 설립목적에 맞게 계획·추진되었다는 검토의견을 밝혔음은 앞서 살핀 바와 같다.

However, in accordance with Article 37 of the Civil Act and the regulations on the establishment and supervision of non-profit corporations under the jurisdiction of the Ministry of Government Administration and Home Affairs and its affiliated non-profit corporations, the supervision of △△△ Metropolitan City is merely examining the details of the business performance and revenue and expenditure in documents in consideration of the public nature thereof, and examining whether the establishment and activities of a non-profit corporation under supervision are related to political activities. In addition, it does not go against the purport of the Civil Act or the regulations, even if a non-profit corporation, as a non-profit corporation, has claimed a specific business objective, and is established for a political activity of a specific political person and is actually engaged in non-profit activities, such as the instant forum, does not violate the purpose of the Civil Act or the regulations.

In full view of such circumstances and the purpose of the establishment of the forum in this case, the actual activities of the forum in this case, etc., it is difficult to deem that there is no evidence of all or part of the facts charged solely on the sole basis that the activities of the forum in this case did not go beyond the purpose of its articles of incorporation or conform to the non-profit corporation’s performance business.

㈑ 물론, 정치인들이 인적·물적 조직을 갖춘 이른바 ‘싱크탱크’ 등을 통하여 정책을 자문 받거나 개발하는 등 지원을 받거나 사회단체 등에 가입하여 활동하면서 자신의 인지도를 높이고 호감도를 향상시키는 것은 일상적 사회활동과 정치활동의 일환으로서 허용되어야 함이 마땅하다.

However, when political parties carry out the above activities, the provision of political funds should be made properly, and transparency should be ensured by disclosing the details of revenue and expenditure, and illegality related to political funds should be prevented.

In a case where any of the political parties becomes a member or an executive, but actually an organization established for any purpose other than political activities and acts in accordance with the purpose of its establishment raises membership fees or support payments from members or ordinary citizens, in a case where persons engaged in activities aimed at supporting a specific political person on the basis of membership fees without having any human and material organization sufficient to form an organization, the organization established for a specific political activity of a specific political person (other than a supporters' association under the Political Funds Act) receives the expenses for its activities or the expenses required for its organization, maintenance, and operation from those other than the relevant political person, etc., it is difficult to view that the received funds, operating expenses, etc. are donated to the person or organization engaged in political activities or contributed to such person or organization as the expenses required for political activities under the Political Funds Act. Thus, it cannot be subject to regulation under the Political Funds Act.

However, in a case where an individual who is a specific political party employs full-time human resources for his/her political activities and provides physical facilities for them, and receives funds from a third party, including those who do not bear the expenses for the formation, maintenance, and operation of his/her human resources and facilities, and for human resources political activities, it can be objectively anticipated that the funds received will be disbursed as the expenses for his/her political activities. It is reasonable to view that the funds received will be disbursed as the expenses for his/her political activities. It does not constitute incidental revenue as stipulated in party membership fees, support payments, deposits, subsidies, party constitution and regulations, etc., which are legally governed by the Political Funds Act, and it does not guarantee the disclosure and transparency of funds and the prevention of irregularities regarding political funds through regulations on matters relating to fund-raising and distribution, accounting and disclosure, and other obligations as stipulated in the Political Funds Act. Therefore, it is reasonable to deem that it is subject to regulation under Article 45 of the Political Funds Act.

However, as seen earlier, Defendant 2, Defendant 3, and Defendant 4 received, as special membership fees, expenses incurred in carrying out activities for election of public officials by a specific political person who is Defendant 3, based on his personal and material organization. Defendant 2, Defendant 3, and Defendant 4 received from the pertinent forum’s aforementioned expenses incurred in planning, promotion, assistance, etc. for the said forum’s political activities themselves, personnel expenses incurred in relation to the establishment, maintenance, etc. of the instant forum office, and operating expenses incurred in relation to the establishment, maintenance, etc. of the instant forum office. This ought to be deemed to be subject to regulation pursuant to the penal provisions of Article 45 of the Political Fund Act, as it received the donation of expenses incurred in political activities in a manner that is not determined by the Political Fund Act (such as the case’s forum’s case’s case’s case’s case’s case’s case where non-profit corporations are subject to regulation under Article 7 and Article 8 of the Rules on the Establishment and Supervision of Non-Profit Corporations under the jurisdiction of the Ministry of Government Administration and Home Affairs, and the Seoul Metropolitan City’s.

㈒ 원심과 환송 전·후의 항소심에서 적법하게 채택·조사된 증거만으로는 이 사건 포럼에 특별회비를 납부한 회원 67명 전부가 이 사건 포럼의 실질적 설립목적이 피고인 3의 공직선거 준비 등 정치활동에 있었다거나 위 특별회비가 그러한 정치활동에 소요된 비용임을 알면서 위 특별회비를 납부하였음에 대한 증명이 있다고 보기 부족하기는 하다.

Article 45(1) of the Political Funds Act provides that all contributors and contributors of political funds shall be punished in a way that is not provided for in this Act, and the contributors and contributors of political funds may be deemed to be in a necessary accomplice relationship, which is an offense. However, such accomplice relationship refers to the need for cooperation among many people by law, and it is merely necessary to establish such an offense, and it does not necessarily require the commonness of the act, and it does not necessarily require that the cooperation is entirely responsible (see Supreme Court Decision 2007Do10804, Mar. 13, 2008).

According to the aforementioned facts and the evidence duly adopted and examined by the appellate court before and after the remanding of the court below, it objectively revealed that Defendant 2, Defendant 3, and Defendant 4 established the forum in this case and recognized the need for the cost of carrying out the political activities and the planning, promotion, assistance, and the formation, maintenance, operation, etc. of the human organization and material organization for the purpose of supporting the forum, and that Defendant 2, Defendant 4 received special membership fees as stated in this part of the facts charged from 67 persons to cover the cost. Thus, regardless of whether the above 67 persons knew that they contributed political funds, the aforementioned act of receiving political funds by Defendant 2, Defendant 3, and Defendant 4 constitutes criminal punishment pursuant to the Political Fund Act ( insofar as Defendant 3 and Defendant 4 conspired to receive and executed political funds as above, the aforementioned crime cannot be exempted solely on the ground that they did not participate in the management and disbursement of the political funds received).

Applicant The part of the charges revised by the appellate court after remanding Defendant 2, Defendant 3, and Defendant 4 is reasonable.

D. As to the additional collection from Defendant 2, Defendant 3, and Defendant 4

Necessary confiscation or additional collection under the Political Funds Act is aimed at getting deprived of money, valuables and other property benefits provided to those who violate the same Act and preventing them from possessing unlawful profits. Thus, the relevant money, valuables and other property gains provided may be collected only to the extent that they are recognized to have reverted to the person who committed the act (see Supreme Court Decision 2007Do7700, Jan. 18, 2008, etc.).

According to the records, the special membership fees received by Defendant 2, Defendant 3, and Defendant 4, etc. from 67 individuals, etc. are deposited and managed into the accounts of the forum of this case where separate legal personality exists, and are disbursed as expenses for the activities of the forum of this case or for the formation, maintenance, and operation of its human and material organization (no data exists to deem that Defendant 2, Defendant 3, and Defendant 4 used or disbursed the whole or part of the above special membership fees individually), and it is reasonable to deem that the political funds of the part charged against the violation of the Political Funds Act (amended by the appellate court after the transfer) against Defendant 2, Defendant 3, and Defendant 4 were reverted to the forum of this case, not the above Defendants.

Therefore, the prosecutor's assertion on this part cannot be accepted, since the value of the political funds cannot be collected from the defendant 2, 3, and 4 who conspired to receive political funds but did not belong to the party who received the profits.

5. Conclusion

Since the part against Defendants 2, 3, and 4 in the judgment of the court below on the above grounds for the reversal ex officio, and there are some arguments on the misapprehension of the legal principles of the above Defendants and the prosecutor's assertion on the misapprehension of the legal principles, the part against the above Defendants in the judgment of the court below is reversed pursuant to Article 364 (2) and (6) of the Criminal Procedure Act without examining the judgment on the grounds of unfair sentencing. Of the judgment of the court below, Defendant 1's appeal against some of the convictions against Defendant 1 (the part against the crime of violating the Public Official Election Act by prior election) and the appeal against Defendant 5 are with merit. Thus, without examining the judgment on the argument on unfair sentencing by Defendants 1 and 5 and the prosecutor pursuant to Article 364 (6) of the Criminal Procedure Act, the part against Defendant 1 and Defendant 5 in the judgment of the court below against Defendant 5 are reversed,

Criminal facts

[2014 Gohap367]

피고인 1은 2014. 6. 4. 실시된 제6회 전국동시지방선거에서 ▣▣▣▣▣▣▣ △△광역시장 후보로 출마하여 당선된 피고인 3의 선거사무소 조직실장을 맡아 조직실 소속 전화홍보팀 등을 관리감독하면서 전화홍보·선거유세·후보자 수행 등 후보자를 위한 각종 선거운동을 총괄하였다.

Defendant 3’s election campaign office was comprised of an organization room, a secretary room, a planning room, a policy room, a public bulletin room, a media room, a general secretary office, etc. The organization room held more than 80 telephone campaign personnel, more than 80 election campaign personnel (including Gu election campaign liaison office), more than 80 election campaign personnel (including Gu election campaign liaison office), and more than 4 candidate execution team and took exclusive charge of all external election campaigns.

The heads of each office of the election campaign office, including Defendant 1, who is the head of the organization office, and the heads of the bureau have decided on important matters at any time by holding a meeting of the director-general, and decided to take charge of the telephone campaign in the organization room in which Defendant 1 was responsible for the election campaign with the contents of appeal for the support of Defendant 3 who is the candidate during the election campaign period.

Defendant 1, as the head of the organization office, who is the last person in charge of the organization room, approved all of the matters related to the telephone publicity, such as the payment of the cost of the telephone publicity, and took charge of the election campaign in the organization room by collecting and managing the phone number of the electorates used for the telephone publicity, as well as by conducting education on the telephone campaign directly against the telephone campaign personnel from the beginning of the election campaign period.

As above, Defendant 1 decided to take charge of a telephone campaign for Defendant 3, who is a candidate, in the organization room where Defendant 1 was the final responsible person, and Defendant 1 paid a price for election campaign to the telephone campaign workers in an amount equivalent to KRW 70,00 per day after having the telephone promotion system installed with Nonindicted 6 of the telephone promotion team, Nonindicted 8 of the candidate execution team, the co-defendant 8 of the first instance trial team, the co-defendant 7 of the women headquarters, and Nonindicted 3 of the election campaign office and the telephone promotion organization, including Nonindicted 5 of the head of the division in charge of the above company, and Nonindicted 5 of the telephone promotion organization, with the telephone promotion system installed in the organization room of the election campaign office, and by having the telephone campaign workers in charge of the above company use the telephone promotion system to appeal against Defendant 3.

Except as provided for in the Public Official Election Act, no one shall offer, express an intention to offer, or promise to offer money, goods, or other benefits in connection with the election campaign regardless of the pretext such as allowances, actual expenses, compensation for volunteer service, etc.

Nevertheless, Defendant 1 conspired with persons related to the election campaign office, Nonindicted 4, Nonindicted 6, Joint Defendant 8, and Joint Defendant 7, etc. of the first instance trial, and Nonindicted 3 and Nonindicted 5, etc., and Defendant 3’s five-story office room in Daejeon, Daejeon, from May 2, 2014 to June 3, 2014, installed telephone publicity system facilities, such as telephone machine 70 units, and Defendant 1: (a) installed the above “Segsan” company’s 39 unitrs recruited on a daily basis through Internet advertisement; (b) 17 employees of the “Segsan”; and (c) 17 employees of the election campaign office of Defendant 3, including about 79 persons, including about 394,867 members of the election campaign office, including about 182,467 members of the electorate, and (d) paid the total amount of KRW 50 in advance to Defendant 40 in accordance with the list [Attachment 5].

Accordingly, Defendant 1 provided a total of KRW 45,858,00 in connection with Defendant 3’s election campaign in collusion with Nonindicted 4, Nonindicted 6, Joint Defendant 8, Defendant 7, Nonindicted 3, and Nonindicted 5.

[2014Gohap466]

No one shall receive any contribution of any political fund unless it is provided for in the Political Funds Act.

Nevertheless, Defendant 2, along with Defendant 3 and Defendant 4, planned and promoted the activities of the forum in this case for the purpose of various political activities, such as the promotion of awareness and support as the election of the △△△△△△△ City Mayor by Defendant 3 and improvement of the level of support, etc., and then, Defendant 2 and Defendant 4, etc. planned to collect expenses and personnel expenses from those who want to support Defendant 3 as the membership fees in this case.

Accordingly, Defendant 2, Defendant 4, etc. received KRW 159,634,00 from Nonindicted 42 to December 30, 2013 as a special membership fee, etc. from 67 persons, including the fact that he/she received KRW 2 million from Nonindicted 42, around August 7, 2012.

As a result, Defendant 2 was donated a total of KRW 159,634,00 in collusion with Defendant 3 and Defendant 4 by means not stipulated in the Political Funds Act.

[2014Gohap487]

피고인 3은 2004. 4. 15. 제17대 국회의원 선거에 출마하여 △△ ◈구를 지역구로 하는 국회의원에 당선되고 제18대 국회의원 선거에서 재선이 되었으나, 2012. 4. 11. 제19대 국회의원 선거에서 낙선한 후 2014. 6. 4. 실시된 제6회 전국동시지방선거에서 ▣▣▣▣▣▣▣ 소속으로 △△광역시장 후보로 출마하여 당선되었다.

Defendant 4 worked as assistant officers of Defendant 3 for eight years at the time when Defendant 3 acted as a member of the National Assembly, and Defendant 3 took overall charge of election campaigns at the election campaign office of Defendant 3 at the time of the 6th nationwide local election conducted on June 4, 2014, and Defendant 3 was elected to △△ Metropolitan City Mayor and served as a special assistant officer for economic cooperation from August 4, 2014 to △△ Metropolitan City office.

1. Defendants 3 and 4

No one shall receive any contribution of any political fund unless it is provided for in the Political Funds Act.

Nevertheless, Defendant 3 and Defendant 4, along with Defendant 2, set up the forum in this case for various political activities, such as the awareness of, and the degree of support for, Defendant 3’s election of the △△△△△△△ City Mayors and the voters, and planned and promoted the activities of the forum in this case to enhance Defendant 3’s personal guidance and to improve their image, and planned expenses and personnel expenses incurred therein, etc. to be collected from those who want to support Defendant 3, Defendant 4, and Defendant 2, etc. under the pretext of membership fees, etc. in this case.

Accordingly, Defendant 4, Defendant 2, etc. received KRW 2 million from Nonindicted 42 on August 7, 2012, as well as KRW 159,634,00 from December 30, 2013 to December 30, 2013.

Accordingly, in collusion with Defendant 2, Defendant 3 and Defendant 4 received the total amount of KRW 159,634,000 from political activity funds by means not stipulated in the Political Fund Act.

2. Defendant 4

A. Violation of the prohibition of offering any profit related to the election campaign;

Nevertheless, Defendant 4, in collusion with Defendant 1 and Nonindicted 6 of the organization chief, Nonindicted 4 of the telephone promotion team, Nonindicted 7 of the women’s co-defendant 7 of the first instance trial team, and Nonindicted 3 of the telephone promotion organization, including the co-defendant 8 of the candidate execution team, etc., and Defendant 3’s election campaign office on the fiveth floor of Daejeon ( Address omitted) from May 22, 2014 to June 3, 2014, installed the telephone promotion system facilities, such as telephone machine 70 vehicles, and the above “Seoul” company recruited on a daily basis by the Internet advertisement 39, 17, 17, 17, and 3 of the election campaign organization officers, and 79, including 18,000,000 electors, including 394,867, and 48,000,000,000,000 won were directly recruited by the electors and 35,000,000 won.

Accordingly, Defendant 4 provided a total of KRW 45,858,00 in connection with Defendant 3’s election campaign in collusion with Defendant 1, Nonindicted 6, Nonindicted 4, Joint Defendant 7, Defendant 8, Defendant 8, and Nonindicted 3.

B. Violation of prohibition of publication of public opinion poll

No one shall publish the course and result of a public opinion poll that makes it possible to predict the progress and result of the public opinion poll that may be conducted within 6 days before the election day to the close thereof on the election day, and no one shall publish the public opinion poll regarding an election that is not registered on the homepage of the Central Committee for Deliberation on Public Opinion polls 180 days

그럼에도 피고인 4는 2014. 6. 2. 14:53~18:01경 대전 서구 ∈∈동 소재 피고인 3 선거사무소 옆 건물인 (상호 3 생략) 커피숍에서, ▣▣▣▣▣▣▣이 2014. 5. 31.~2014. 6. 1. 자체적으로 실시한 “▣▣▣(▣▣▣▣▣▣▣) 자체 광역판세조사/5. 31. ~ 6. 1., 유선70%, 무선(휴대폰) 30%, ● △△ 피고인 3 45.4 ＞ 공소외 43 43.9, 유)피고인 3 45.1 ＜ 공소외 43 45.9, 무) 피고인 3 46.3 ＞ 공소외 43 39.4”이라는 여론조사 결과를 피고인 4의 휴대전화를 이용하여 공소외 44 등 13명에게 보내는 방법으로 중앙선거여론조사공정심의회에 등록되지 않은 여론조사결과를 문자메시지를 통해 공표하여 공직선거법을 위반하였다.

【2014Gohap488】

Except as provided for in the Public Official Election Act, no person shall receive money, valuables, or other benefits in connection with an election campaign regardless of the pretext such as allowances, actual expenses, compensation for volunteer service, etc. or accept an expression of intent to

Nevertheless, around March 6, 2014, Defendant 1 was paid KRW 2050,000 in cash from the relevant party of the election campaign office in consideration of his/her monthly wage, even though he/she works for the head of the organization of the election campaign office who supervises various external election campaigns for Defendant 3, who is a candidate, while working for the head of the organization in charge of various external election campaigns for Defendant 3, who is a candidate, and is not a statutory election campaign worker.

Defendant 1 continued to be paid KRW 2,160,00 in cash under his/her monthly salary in return for assisting Defendant 3 to conduct an election campaign, even though he/she is not a statutory election campaign worker at the above election campaign office around April 10, 2014, as seen above, even if he/she is not a statutory election campaign worker.

As a result, Defendant 1 received a total of KRW 4.21 million in relation to Defendant 3’s election campaign.

Summary of Evidence

1. Defendants’ respective legal statements in the original judgment and the appellate trial before remanding.

1. Each legal statement in the appellate trial after the remand of the defendant 2, 4, and 3

1. Each of the court below’s witness Nonindicted 3, Nonindicted 16, Defendant 5, Nonindicted 11, Nonindicted 45, and Nonindicted 46’s legal statement

1. Each of the legal statements of Nonindicted 1 and Nonindicted 41 before remanding the appellate court

1. After remanding the case, some of the legal statements made by the appellate court witness 2, Nonindicted 47, Nonindicted 48, Nonindicted 29, Nonindicted 21, Nonindicted 20, and Defendant 5

1. The statement of the witness Nonindicted 49 in the third trial record of the court below (limited to the defendant 1)

1. Nonindicted 50, Nonindicted 51, Nonindicted 52, Nonindicted 53, Nonindicted 54, Nonindicted 55, Nonindicted 56, Nonindicted 57, Nonindicted 58, Nonindicted 59, Nonindicted 60, Nonindicted 61, Nonindicted 62, Nonindicted 63, Nonindicted 64, Nonindicted 65, Nonindicted 66, Nonindicted 67, Nonindicted 68, Nonindicted 69, Nonindicted 71, Nonindicted 72, Nonindicted 73, Nonindicted 74, Nonindicted 75, Nonindicted 76, Nonindicted 77, Nonindicted 78, Nonindicted 80, Nonindicted 81, Nonindicted 83, Nonindicted 84, Nonindicted 84, Nonindicted 85, Nonindicted 86, Nonindicted 87, Nonindicted 88, Nonindicted 89, Nonindicted 90, Nonindicted 99, Nonindicted 99, Nonindicted 79, Nonindicted 99, Nonindicted 79, and Nonindicted 79, Nonindicted 79, Nonindicted 79, Nonindicted 59, and Nonindicted 97.

1. Each prosecutorial statement concerning Nonindicted 98, Nonindicted 99, Nonindicted 100, Nonindicted 101, Nonindicted 102, Nonindicted 103, Nonindicted 8, Nonindicted 33, Nonindicted 19, Nonindicted 20, Nonindicted 22, Nonindicted 23, Nonindicted 24, Nonindicted 25, Nonindicted 26, Nonindicted 27, Nonindicted 28, Nonindicted 29, Nonindicted 30, and Nonindicted 32

1. Each police statement on Nonindicted 104

1. The written statement of Nonindicted 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 123, 124, 125, 126, 127, and 128

1. Each written confirmation of Nonindicted 129 and Nonindicted 130

1. Each written statement of Nonindicted 131, Nonindicted 132, and Nonindicted 44

1. [Evidence List 33, 53, 56, 59, 89, 173, 175, 187, 196, 198, 437, 455, 473, 497, 499, 526, 646, 655, 671, 676, 712, 740, 745, 814, 816, 820, 829, 888, 901, 928]

Each investigation report (Attachment ○○○○○○○○○○○○○○○○○○○○○○○○○○○ Office’s TM office’s photographbook, Nonindicted Company 13 and 5, attachment of Nonindicted Party 3’s computer purchase data, attachment of Defendant 3’s election campaign office’s name list, attachment of Nonindicted Party 9’s election campaign liaison office’s five-story position map, attachment of materials on the entire name of the election campaign workers and payment of allowances stored in Nonindicted Party 5’s PC, attachment of Nonindicted Party 9’s report on Nonindicted Party 4’s election campaign, attachment of Defendant 3’s election campaign report on the receipt and payment of political funds to Defendant 4○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Office’s election campaign office’s data related to Nonindicted Party 5’s election campaign, attachment of Nonindicted Party 1’s cellphone’s data related to Nonindicted Party 1’s election campaign, and attachment of Defendant 5’s e-mail.

1. Letters published in the public opinion poll (Evidence 908);

1. 2012. 6. 27.자 이메일 자료, 2012. 8. 9.자 이메일 자료, 2012. 9. 3.자 이메일 자료(증거목록 737-1~3), 2012. 9. 20.자 이메일 자료, 2013. 5. 4.자 이메일 자료, 2013. 8. 6.자 이메일 자료(증거목록 737-4~6), 2012. 6. 20.자 이메일 자료, 2012. 6. 27.자 이메일 자료, 2013. 11. 5.자 이메일 자료, 2013. 5. 24.자 이메일 자료, 2013. 11. 30.자 이메일 자료(증거목록 819-1, 2, 5, 6, 7), 2012. 9. 20.자 이메일 자료, 2013. 5. 4.자 이메일 자료(증거목록 819-3, 4), 2012. 8. 9.자 이메일 자료(증거목록 846), 2013. 8. 29.자 2014 차기 △△시장 여론조사 이메일 자료(증거목록 848), 2013. 10. 3.자 여론조사 분석보고 이메일 자료(증거목록 849), 출판기념회 참석자 명단 서식 관련 이메일(증거목록 851), 무료셔틀버스 안내 관련 이메일(증거목록 852), 2013. 10. 30.자 (상호 2 생략) 견적서 이메일 자료(증거목록 854), 2013. 10. 25.자 이메일 자료, 2013. 11. 8.자 이메일 자료(증거목록 856-1, 2), 2013. 11. 6.자 이메일 자료, 2013. 11. 7.자 이메일 자료(증거목록 856-3, 4), 2012. 11. 16.자 이메일 자료(증거목록 858), 2012. 11. 19.자 이메일 자료(증거목록 859), 2013. 1. 15.자 이메일 자료(증거목록 861), ‘♠♠연 명단’ 관련 이메일(증거목록 880), 2013. 1. 23.자 수신 이메일 및 첨부파일 출력물(증거목록 882), 2013. 5. 9.자 수신 이메일 및 첨부파일 출력물(증거목록 883), 2012. 6. 17.자 ○○○○○○○○포럼 스케쥴 체크리스트 이메일 자료(증거목록 893-1), 2013. 3. 26.자 이메일 및 첨부파일 출력물(증거목록 959), 2013. 4. 1.자 이메일 및 첨부파일 출력물(증거목록 960)

1. The contents of the mobile phone text message by Defendant 5 (Evidence List 834);

1. Plan for the event (Evidence List 751), 2013 (Evidence List 961);

Application of Statutes

1. Article applicable to criminal facts;

A. Defendant 1

Articles 230(1)4 and 135(3) of the Public Official Election Act, Article 30 of the Criminal Act (the provision of money and valuables related to election campaigns) and Article 230(1)6 and 4 of the former Public Official Election Act (amended by Act No. 12583, May 14, 2014), and Article 135(3) (the receipt of money and valuables related to election campaigns)

B. Defendants 2 and 3

Article 45(1) main sentence of Article 45(1) of the Political Funds Act and Article 30 of the Criminal Act.

C. Defendant 4

The main sentence of Article 45(1) of the Political Funds Act, Article 30 of the Criminal Act (referring to the point of illegal acceptance of and acceptance of political funds), Article 230(1)4, Article 135(3) of the Public Official Election Act, Article 30 of the Criminal Act (the point of offering money and goods related to election campaign), Article 256(3)1 (m) and Article 108(1) of the Public Official Election Act (the point of publishing the result of public opinion poll within six days before the election day), Articles 256(1)2 and 108(8)1 of the Public Official Election Act (the point of publishing the result of public opinion poll conducted without registration)

1. Commercial competition;

Defendant 4: Articles 40 and 50 (Crimes of Violating the Public Official Election Act due to Publication of Results of Public Opinion poll within 6 days before the election day, between violations of the Public Official Election Act due to Publication of Results of Public Opinion poll, between the crimes of violating the Public Official Election Act due to Publication of Unregistered Results of Public Opinion poll, punishment imposed on the crimes

1. Selection of punishment;

Each Imprisonment Selection

1. Aggravation of concurrent crimes;

A. Defendant 1

Article 37 former part of Article 37, Article 38 (1) 2, and Article 50 (Attachment] of the Criminal Act (Aggravation of concurrent crimes with punishment prescribed in the Public Official Election Act due to the provision of money or goods related to election campaigns listed in 37 No. 1 of the List of Crimes)

B. Defendant 4

Articles 37(1)2, 38(1)2, and 50(attached Form 37) of the Criminal Act (Aggravation of concurrent crimes with punishment prescribed in the Public Official Election Act due to the provision of money and valuables related to election campaigns listed in No. 37 No. 1 of the List of Crimes)

1. Suspension of execution;

Article 62(1) of the Criminal Code (The following circumstances considered as favorable among the reasons for sentencing)

1. Additional collection:

Defendant 1: The proviso to Article 236 of the Public Official Election Act (the collection of penalty against Defendant 2, Defendant 3, and Defendant 4 for the same reason as the foregoing paragraph (d) shall not be made)

1. Order of provisional payment;

Defendant 1: Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

1. Defendant 1

(a) Scope of punishment by law: Imprisonment with prison labor for not more than seven years and six months;

(b) Sentencing criteria;

1) Violation of the Public Official Election Act due to the provision of money and valuables related to each election campaign

[Extent of Recommendation] Aggravation Category 2 (General Purchase). Aggravationd Area ( Imprisonment of 10 months to 2 years and six months)

[Special Aggravation] Advanced and Organizational Crimes

2) Violation of the Public Official Election Act due to the receipt of money or valuables related to election campaigns

[Scope of Recommendation] Type 2 (General Purchase) Basic Area ( Imprisonment of 6 months to 1 year and 4 months)

3) The scope of final sentence due to the aggravation of multiple offenses: Imprisonment with prison labor for a period of 10 months to 3 years and 1 months;

Each of the crimes committed by Defendant 1 is a serious crime that seriously undermines the purpose of legislation of the Public Official Election Act, aiming at a fair election. In particular, the provision of money and valuables related to election campaigns was planned, organized, and repeated, and the scale of money and valuables provided is not small, and it was conducted at the official election campaign organization level. The above defendants are heavy in that they have overall control over telephone campaign as the head of the organization office.

However, in comprehensive consideration of the following factors: Defendant 1’s primary offender, the background of the participation in the above crime, equity with the sentencing of accomplices, and the age, character, conduct and family relationship, career, means and method of the crime, and circumstances after the crime, etc., the sentencing criteria set forth by Article 51 of the Criminal Act shall be set aside beyond the lower limit of the sentencing criteria, and the punishment shall be determined as ordered.

2. Defendants 2 and 3

(a) Scope of punishment by law: Imprisonment with prison labor for not more than five years;

(b) The sentencing criteria are not set for the crime of violating the Political Funds Act.

피고인 2, 피고인 3은 피고인 4와 공모하여 지역경제를 위한 정책개발이라는 명목을 표방한 비영리법인 활동을 빙자하여 실질적으로는 피고인 3을 위한 정치활동을 도모할 목적으로 단체를 설립하고 그 활동비용 및 인적·물적 조직의 구성, 유지, 운영에 소요되는 정치자금을 67명의 지역기업이나 △△·■■지역 유권자 등으로부터 ‘특별회비’라는 명목으로 수수하였다. 이러한 범행 방법은 비영리법인이라는 법적 제도를 부정한 정치자금수수에 활용한 것으로서 죄질이 불량하다.

In addition, the legislative intent of the Political Funds Act is to prevent political power and financial power from being able to decide politically favorable if Defendant 3 was elected in the election for public office, and to control the donor's political influence, thereby contributing to the prevention of irregularities related to political funds and the sound development of democratic politics. It is difficult to view that the amount of the received political funds exceeds KRW 150 million,00,000.

Defendant 2’s establishment of the forum in this case, planning, and planning it as the secretary general, led the receipt and execution of political funds, or Defendant 3 directly enjoyed political benefits from the forum activities in this case, but the above Defendants are disadvantageous to each other.

However, Defendant 2 and Defendant 3 did not clearly recognize that the forum in this case was established and the expenses incurred in the operation and activities thereof constituted political funds prohibited by the Political Funds Act, in the situation where the creation of an activity space for Defendant 3’s political re-election after the election of National Assembly members was not imminent after the election of National Assembly members on 2012. Moreover, Defendant 3 was the first offender and Defendant 2 did not have the previous nature.

In addition, comprehensively taking into account the aforementioned circumstances and the various sentencing conditions prescribed by Article 51 of the Criminal Act, including Defendant 3 and Defendant 2’s age, character and conduct, family relation, career, circumstances after the crime, etc., the punishment shall be determined as ordered.

3. Defendant 4

(a) Scope of punishment: Imprisonment with prison labor for not more than seven years and six months;

(b) Sentencing criteria;

1) Violation of the Public Official Election Act due to the provision of money and valuables related to each election campaign

[Extent of Recommendation] Aggravation Category 2 (General Purchase). Aggravationd Area ( Imprisonment of 10 months to 2 years and six months)

[Special Aggravation] Advanced and Organizational Crimes

2) Since the sentencing criteria are not set for the violation of the Political Funds Act and the violation of the Public Official Election Act due to the publication of the results of public opinion polls, the sentencing criteria are set according to the lower limit of the range of sentence in the sentencing criteria for the crimes described in the above

As seen earlier, the crime of violation of the Political Funds Act committed by Defendant 4 in collusion with Defendant 2 and Defendant 3 is inadequate, and thereby, the legislative intent of the Political Funds Act was considerably damaged. The amount of political funds received by Defendant 4 together with Defendant 2, etc. is not much much.

In addition, Defendant 4’s crime of violation of the Public Official Election Act is also a serious crime that seriously undermines the legislative intent of the Public Official Election Act. In particular, the fact that the provision of money and valuables related to election campaign was planned, organized, and repeated, and the amount of money and valuables provided is not small. Defendant 4 has been punished as a crime of violation of the Public Official Election Act.

However, as seen earlier, Defendant 4 appears to have not clearly known the illegality of the violation of the Political Funds Act. The establishment of the forum of this case, the activities and the receipt of political funds therefrom are not planned, and the circumstances leading to the commission of each of the above crimes, equity with the sentencing of other accomplices, and various sentencing conditions stipulated under Article 51 of the Criminal Act, including Defendant 4’s age, character and conduct, family relationship, career, and circumstances after the crime, shall be comprehensively considered, and the punishment shall be determined as ordered by the order, beyond the lower limit of the sentencing criteria.

Parts of innocence

[Violation of the Public Official Election Act due to the establishment of similar organizations by Defendants 2, 3 and 4, and violation of the Public Official Election Act due to the Defendants’ advance election campaign];

1. Summary of the facts charged

A. Violation of the Public Official Election Act due to the establishment of a similar institution

No person shall newly establish or establish any institution, organization, organization, or facility similar thereto for a candidate or a person who intends to be a candidate, other than an election campaign office, election campaign liaison office, or election campaign organization under the Public Official Election Act, regardless of its name.

Nevertheless, Defendant 2, Defendant 3, and Defendant 4 established a forum of this case, which are similar agencies of the election campaign office, with the purpose of conducting an election campaign to make Defendant 3 elected from the nationwide local election to the △△ City Mayor, which is implemented on June 4, 2014.

B. Violation of the Public Official Election Act due to advance election campaigns

No one shall conduct an election campaign by means of an election campaign organization, the establishment of private organizations, or other methods, except as prescribed by the Public Official Election Act prior to the election campaign period.

Nevertheless, the Defendants, along with the members of the instant forum, performed activities, such as traditional markets, local business visits, citizen debates, agricultural village descendants, love blood donation campaigns, △△ Economic Investment Activities, university students' counterpart discussions and special lectures, publication commemorative associations, and conducted prior election campaigns for the election of the △△△△△△△ City City Mayors.

2. Determination

As stated in Article 4-2(2) of the above, even if the Defendants brought about the awareness and positive image of Defendant 3 due to the activities of the forum in this case, it cannot be deemed as an advance election campaign, and it is difficult to view that Defendants 2, 3, and 4 established the forum in this case for the purpose of election campaign, and there is no other evidence to acknowledge it.

Therefore, since each of the facts charged in this part constitutes a case where there is no proof of a crime, a not-guilty verdict shall be made in accordance with the latter part of Article 325 of the Criminal Procedure Act, and a summary of the judgment shall be announced in accordance

[Attachment]

Judges Lee Dong-jin (Presiding Judge)

심급 사건

-대전지방법원 2015.3.16.선고 2014고합367

-대전고등법원 2015.7.20.선고 2015노201

-대법원 2016.8.26.선고 2015도11812 전원합의체

대전고등법원 2017.2.16.선고 2016노304

-대법원 2017.11.14.선고 2017도3449

원심판결

-대전지방법원 2015. 3. 16. 선고 2014고합367, 466, 487, 488(각 병합) 판결

-대전고등법원 2015. 7. 20. 선고 2015노201 판결

-대법원 2016. 8. 26. 선고 2015도11812 판결