2013Do5881 Violation of the Public Official Election Act

1. A;

2. B

3. C

4. Incorporated Foundation E.

Defendants and Prosecutor (Objection to Defendants)

Attorney CB, G, and H (for defendant A, B, and Incorporated E)

Law Firm (Limited LLC)CC

Attorney Park Jae-young, Counsel for the plaintiff-appellant

Law Firm BO

Attorney BP, Q and CF (Defendant C)

Daejeon High Court Decision 2013Do3 decided May 13, 2013

June 26, 2014

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed by Defendants A, B, and E).

1. As to the violation of each contribution prohibition due to the holding of Q Q

A. As to Defendant C’s ground of appeal

The court below found Defendant C as the representative of the L Federation (hereinafter referred to as the “L Federation”) held in Q of this case, and found Defendant C guilty of this part of the facts charged by providing C with an act of donation equivalent to the market price for “E,” “E,” “I have all the words “A,” and “I have all the words “I have all the words referring to A,” and “I have all the friths, I have to have all the friths. I have no mind. I have to say, “I have to have any money.” It is presumed that I have to be a donation by A who wishes to be a candidate in connection with the 19th election of the National Assembly members.” The court below found Defendant C was guilty of this part of the facts charged.

Examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence duly admitted, the lower court’s aforementioned determination is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in recognizing the intention of violating the Public Official Election Act, or by misapprehending the legal doctrine on the scope of application of Article

B. As to the Prosecutor’s Grounds of Appeal

The court below held that Defendant A, a director of the Foundation E (hereinafter referred to as “E”) committed a contribution act in collusion with Defendant A, and Defendant B, a director of the Foundation E (hereinafter referred to as “E”), as an officer or employee of the legal entity related to the person wishing to be a candidate by holding a free music meeting as above; Defendant E used the name of “E” in relation to its representative or employee A, or used the above act of violation in relation to its business; or it is difficult to see that there was a method to presume that Defendant A intended to be a candidate in relation to the above election solely on the ground that many members participated in the process of preparation for holding the instant Q Q, and that Defendant A, and B actively participated in the process of preparing for holding the instant Q, it cannot be deemed that there was a criminal intent to make a contribution to the above Defendants; Defendant A, B did not have any grounds to view that Defendant A, and B participated in the above remarks of Defendant C directly related to the election, and that Defendant A and Q were not guilty for the legitimate reason to believe the legality of the election commission in this case.

The court below's explanation that there is a justifiable reason to believe that Defendant A and B do not constitute a crime of holding Q in this case among the reasoning of the court below is appropriate. However, the above circumstances alone are just in holding that the elements of the crime of violating the contribution act as provided by Articles 257 (1) 1 and 114 (1) of the Public Official Election Act cannot be satisfied, or that Defendant C's public offering of speaking cannot be recognized. In so doing, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles as to the requirements for establishing contribution act as provided by Article 114 (1) of the Public Official Election Act.

2. As to the provision and receipt of benefits related to the election campaign

In full view of the circumstances stated in its holding, the court below found Defendant C guilty of this part of the charges that: (a) under the understanding of BJ of the president of the election campaign headquarters who manages the election campaign workers and volunteers in A election campaign office, ordered the election campaign workers and volunteers to share credit under the name of the election campaign office; and (b) Defendant C conspired with D to pay the election campaign workers and volunteers on credit even though he was aware that the election campaign workers and volunteers were on credit; and (c) Defendant C received benefits in connection with the election campaign by paying the oil cost of personal vehicles used by himself in collusion with D during the election period; and (d) Defendant C received benefits in connection with the election campaign by receiving the oil cost of personal vehicles used by himself in substitution from D.

Examining the reasoning of the judgment below in light of the evidence duly admitted by the court below, the above determination by the court below is just and acceptable, and contrary to what is alleged in the grounds of appeal, there is no violation of the principle of free evaluation of evidence against logical and empirical rules

3. As to the violation of the prohibition of contribution act due to the payment of the subsidy for juvenile guidance

A. As to the grounds of appeal by the prosecutor as to the primary charge, the lower court acquitted Defendant A and B of this part of the primary charge, on the ground that it is difficult to recognize that E provided a personal use of KRW 10 million to Defendant C in light of the circumstances as indicated in its reasoning, with respect to the primary charge that Defendants A and B conspired to provide them with a subsidy of KRW 10 million for juvenile guidance, and Defendant C received a donation from Defendant C and Defendant C, and Defendant E was an employee of the said employee, and Defendant E committed such a violation.

Examining the reasoning of the judgment below in light of the records, the above judgment below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the relevant legal principles.

B. As to the Defendants’ grounds of appeal on the ancillary facts charged, the lower court found Defendant A, B, and C guilty on the following grounds: (a) in collusion with Defendant A, B, and C to make a contribution by providing L Federation with KRW 10 million as a subsidy for juvenile guidance; and (b) Defendant A, a representative or employee, and B, committed such a violation in relation to his duties; and (c) found Defendant E guilty on the ancillary facts charged:

① Defendant A was in a situation where it could objectively recognize that he had an intention to run for the election at the time of the instant Q, and thus, Defendant A constituted “a person who wishes to become a candidate at the time of the instant contribution act conducted thereafter.”

② The L Federation, the other party to the contribution act, was well aware of the fact that the above subsidy was provided for Defendant A, who is a candidate, in relation to the election.

The payment of subsidies in the name shall be presumed to be a contribution by Defendant A, who intends to be a candidate, and as long as such, it may be deemed to be a contribution act for a candidate in connection with an election pursuant to the latter part of Article 114(1) of the Public Official Election Act. In addition, in full view of the circumstances in the judgment, even if it is not based on the latter part of Article 114(1) of the Public Official Election Act, it can be recognized that the instant subsidy was paid for Defendant A in connection with the election.

(3) In consideration of the location of the office, the distribution of members, the influence of the representative, etc., the LA federation shall be an organization located in the area of CHA/CI military, or an organization having relations with the relevant electorates.

④ According to the evidence, such as the prosecutorial statement of BB by the vice-chairperson, Defendant A may be deemed to have conspiredd to commit an act of contribution in this part.

⑤ In light of the fact that there was no money or goods provided as subsidies for juvenile leading business to the L Federation prior to the payment of the instant subsidy, the said contribution act does not constitute a formal act under Article 112(2)2 (d) of the Public Official Election Act, and does not constitute any other act that does not violate social norms. 2) Examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence duly adopted by the lower court, the lower court’s aforementioned determination is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine regarding the requirements for the exception of the contribution act under the Public Official Election Act, requirements for granting admissibility of evidence, recognition of illegality, and establishment of joint principal offenders, etc. However, it is difficult to view that the lower court’s regular payment with respect to the same person constituted an act of receiving a subsidy or a juvenile contribution, which is an inappropriate organization, and thus, constitutes an act of receiving a subsidy or a juvenile contribution, and thus, constitutes an act of receiving a subsidy or a juvenile contribution.

4. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de

Justices Yang Chang-soo

Justices Ko Young-han

Justices Kim Jae-tae