2014Gohap637 Violation of the Public Official Election Act

1. A;

2. B

Park Sang-jin, leapment (public trial)

Law Firm C, Attorneys D, E (Defendant A)

Attorney F (Korean National Assembly for Defendant B)

January 6, 2015

Defendant A shall be punished by a fine of KRW 3,00,000, and a fine of KRW 1,500,000, and Defendant B shall be punished by a fine of KRW 1,500. In the event that the Defendants fail to pay the above fine, the Defendants shall be confined in the workhouse for the period calculated by converting the above fine of KRW

50,000 won in cash (No. 1) and 183 (No. 2) shall be confiscated from Defendant B. It shall be ordered that the above fine be paid by each of the Defendants.

Criminal History Office

Defendant A was elected as a candidate who belongs to one political party in the H election district of the Busan Metropolitan Council member of G Council that was implemented on June 4, 2014, and Defendant B was the chairman of the J Residents Countermeasure Committee.

1. Defendant A

Except for cases where allowances, actual expenses, and other benefits are provided under the provisions of 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., and members of the National Assembly, members of local council, heads of local governments, representatives of political parties, candidates and their spouses shall not make contributions to persons in the relevant constituency or institutions, organizations, facilities, or facilities located outside the relevant constituency, or institutions, organizations, organizations, or facilities with electorates

Nevertheless, at around 21:00 on May 29, 2014, Defendant A called “B” as follows: (a) with one set of string (183) an election campaign name at the Love House L L’s seat located in Busan, for election campaign; (b) with “B with a name tag and help to do so;” and (c) with a bag containing KRW 500,000 in cash in front of the said Love House, Defendant A added a bag to “(J resident) countermeasure members, meal, or one kis.” In relation to the election campaign, Defendant A provided money and valuables other than those that can be provided pursuant to the Public Official Election Act to a person residing in the relevant constituency as well as made a contribution act.

2. Defendant B

(a) 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 volunteers, etc., or accept an offer of such benefits, except where he/she provides allowances, actual expenses, or other benefits under the Public Official Election Act;

Nevertheless, Defendant B was provided with KRW 500,000 in cash, along with one copy of the election campaign (Chapter 183) at the time and place specified in the above Paragraph 1. Accordingly, Defendant B was provided with money and valuables other than those that may be provided pursuant to the Public Official Election Act in relation to the election campaign.

(b) No person shall offer, express an intention to offer, or refuse to offer money, goods, or other benefits in connection with the election campaign regardless of the pretext such as allowances, actual expenses, other compensation for volunteers, etc., except where he/she provides allowances, actual expenses, or other benefits under the Public Official Election Act, and no person shall give up a candidate or a political party to which he

No contribution act shall be made.

Nevertheless, at around 14:00 on May 30, 2014, Defendant B provided N andO (one person), at the office of the Busan J Residents' Countermeasure Committee located in Busan, with a single set of bags for A' election campaign (183) and an envelope containing cash of KRW 500,000, while Defendant B provided N andO (one person who resides in the relevant constituency) with goods other than allowances that may be provided pursuant to the Public Official Election Act in relation to the election campaign.

Summary of Evidence

1. Defendants’ respective legal statements

1. Examination protocol of Defendant A by the prosecution;

1. Each prosecutor's statement concerning N,O, and L;

1. Each written answer to the Defendants

1. L performance angle;

1. Each investigation report (Attachment, etc. of suspect B telephone recording statements, recording notes, recording records, etc.);

1. Each of the existing sources of 500,000 won in cash (Evidence 1), 183 (Evidence 2);

Application of Statutes

1. Article applicable to criminal facts;

(a) Defendant A: Article 230 (2) and (1) 4, and Article 135 (3) of the Public Official Election Act (the provision of money or goods related to election campaign for a candidate), Article 257 (1) 1, and Article 113 (1) of the Public Official Election Act (the provision of money or goods related to election campaign for a candidate);

(b) Defendant B: Articles 230(1)7 and 4, 135(3) (the receipt of money and valuables related to election campaign), 230(1)4, and 135(3) (including the provision of money and valuables related to election campaign) of the Public Official Election Act, Articles 257(1)1 and 115(the provision of money and valuables related to election campaign, including the provision of money and valuables related to election campaign), 257(1)1 of the Public Official Election Act, and 115(the provision

1. Commercial competition;

(a) Defendant A: Articles 40 and 50 of the Criminal Act (the crime of violating the Public Official Election Act by offering money or goods related to election campaigns by candidates, etc., the crime of violating the Public Official Election Act by making contributions by candidates, etc., the punishment prescribed by the crime of violating the Public Official Election Act by offering money or goods related

(b) Defendant B: Articles 40 and 50 of each Criminal Act (the crime of violating the Public Official Election Act by offering money or goods related to election campaigns, the crimes of violating the Public Official Election Act by making a third party contribution, and the punishment imposed on the crime of violating the Public Official Election Act by offering more severe money or goods related to

1. Selection of punishment;

Defendants: Fine Selection

1. Aggravation for concurrent crimes;

Defendant B: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with punishment prescribed in a crime of violating the Public Official Election Act under the provision of money or valuables related to election campaign with heavy circumstances)

1. Invitation of a workhouse;

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

1. Confiscation;

Defendant B: Article 48(1)1 and 1 of the Criminal Act

Defendants: Reasons for sentencing under Article 334(1) of the Criminal Procedure Act

1. Defendant A

[Scope of Punishment] Fine of 50,000~ 50,000,000

[Determination of Punishment] Election Crimes, Purchase and Guidance for Understanding, General Purchase by Candidates 3 (General Purchase by Candidates, etc.) (General Convicts)

[Scope of Recommendation] Imprisonment from 8 months to 2 years (Basic Area)

[Pronouncement Decision] The instant crime committed by the Defendant, a candidate for the election of the Busan Metropolitan Council member, provided KRW 500,000 in cash by demanding that the Defendant, a candidate for the election of the Busan Metropolitan Council member, actively participate in an election campaign to B, who is the chairperson of the pending organization related to the pending issues in the relevant constituency, at the time when the election day is imminent. Such an act by the Defendant is not very good in light of the purport of the Public Official Election Act to prevent the excessive voting due to influence on the right of prohibition, and to prevent the mixed election. Furthermore, since the Defendant attempted to conceal evidence, it is necessary to bear strict liability corresponding to the act by the Defendant.

Furthermore, the Defendant, as an incumbent member of the Gu Council at the time of the instant election, was going to three lines, and thus, it appears that the violation in the election campaign process could have been sufficiently recognized and controlled and managed the affairs related to the violation, even though the violation was likely to occur in the election campaign process, and the impact of the violation on the elector. However, the Defendant committed the instant crime, which is highly likely to be subject to criticism.

On the other hand, the circumstances favorable to the defendant can be considered, such as the fact that the defendant shows the appearance of reflecting his mistake, that there is no history of criminal punishment for the same crime, and that the amount of money and valuables provided is relatively small.

In addition, taking into account the following circumstances, such as the Defendant’s age, character and conduct, environment, the background, means and result of the instant crime, the circumstances after the crime was committed, etc., the scope of the recommended sentence shall be relieved of the scope of the punishment and the fine shall be selected, and the Defendant shall be sentenced to the punishment equivalent to the invalidation of the election

2. Defendant B

[Scope of Punishment] Fine of 50,000~ 45,000,000

[Determination of Type] Election Crimes, Purchase and Understanding, and Type 2 (General Purchase, and Purchase related to Recommendation of Candidates of Political Parties)

[General Convicted Persons] Voluntary Maternity (Mitigations)

[Scope of Recommendation] Imprisonment of six months to one year and four months (Basic Area)

[Scope of the revised recommended sentence] Imprisonment for not less than six months (the crime of violating the Public Official Election Act by receiving money or goods related to election campaign for which the sentencing guidelines are not set, considering only the lowest limit of the recommended sentence)

[Pronouncement Decision] Each of the crimes in the instant case involving KRW 1,50,000 is to receive KRW 500,000 in cash from a candidate A upon receipt of a request from the head of the organization related to pending issues in the relevant constituency, and furthermore, to provide two members of the above organization with KRW 500,000 in cash. Such an act of the Defendant is considerably poor in light of the purpose of the Public Official Election Act to prevent excessive voting due to influence on the right of prohibition. Therefore, it is necessary to impose strict liability corresponding to such act on the Defendant.

However, the fact that the Defendant’s act of receiving the first money appears to have been a passive response to the candidate A’s active act of offering the said money, the Defendant appears to reflect his fault, the fact that there was no record of criminal punishment for the same kind of crime, and the fact that the amount of money and valuables received or provided is relatively small, etc. can be seen as favorable to the Defendant

The defendant's age, character and conduct, environment, the background, means and result of the crime of this case, and all the circumstances constituting the conditions for sentencing as shown in the argument of this case, such as the circumstances after the crime, etc., shall be excluded from the scope of the recommended sentence, and the punishment shall be determined as ordered.

The new judge, new judge and new judge

Judge To call

Judges Il-il