2010No584 Violation of the Public Official Election Act

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Sinsan-si, Hayang-gu, Hamyang-gu

【Yanyang-si, Hayang-gu, Gyeongyang-do

Defendant and Prosecutor

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Attorney-at-law in charge of law enforcement as a legal entity.

Daegu District Court Decision 2010Gohap334 Decided November 19, 2010

February 10, 2011

All appeals filed by the defendant and prosecutor are dismissed.

1. As to the non-guilty part of the judgment below

(a) Summary of grounds for appeal;

In full view of the evidence submitted by the prosecutor, even though the defendant is unable to carry out an election campaign as the head of Si/Gu in Gyeongsan-si, it is sufficiently recognized that the defendant violated the official election law by conducting an election campaign or causing contributions for the country of the highest disease who wishes to become a candidate for the Si/Gu in Gyeongsan-si on April 13, 2010, as of March 10, 2010. Therefore, the court below erred by misapprehending the facts or misapprehending the legal principles, which affected the conclusion that there is no proof of criminal facts in this part of the facts charged.

B. Determination

For the reasons indicated in its holding, the lower court determined that there is insufficient evidence to acknowledge that the Defendant violated the official election law by conducting an election campaign or making a contribution to the least-developed country, such as this part of the facts charged, on behalf of the Defendant.

Examining the reasoning of the lower judgment in comparison with the evidence duly admitted and examined by the lower court, the fact-finding and judgment of the lower court are correct, and there is no error of misconception of the facts.

2. As to the guilty part of the judgment below

A. Summary of grounds for appeal

1) Defendant

A) Legal principles

Since the protocol of statement of the police officer and the investigation report, which was entered after hearing the early and early statement, were not proven to have been practically authentic, the admissibility of evidence is inadmissible. Therefore, the judgment of the court below which admitted it as evidence of guilt, is erroneous by misapprehending the legal principles on admissibility of evidence.

B) misunderstanding of facts

On May 18, 2010, the Defendant appeared to attend a meeting of the Jinsan Development Research Council on the occasion of the Defendant’s participation in the meeting of the Jinsan Development Research Council, and was at the same time a courtesy of personnel as a smoking room, and did not make a supporting statement to the least-developed country who wishes to be a member of the Minsan market as stated in the lower judgment. Therefore, the lower court erred by misapprehending the facts.

(ii)a prosecutor;

The punishment sentenced by the court below (700,000 won of fine) is too unhued and unfair.

B. Determination

1) As to the Defendant’s assertion of misapprehension of legal principles

According to the Cho Jae-won's and the trial court's statement, the police's statement about Cho Jae-si and the investigation report that contains hearing the eths' statement was prepared in accordance with the due process and method, and the protocol was the same as the statement made by the investigation agency, and the statement in the protocol was made in a particularly reliable state, and it is sufficiently proven that it was made in a particularly reliable state. Thus, it is admissible.

Therefore, it is proper that the court below has employed the police statement, etc. as evidence of guilt as evidence, and there is no error in the misapprehension of legal principles as to admissibility of evidence.

2) As to the defendant's assertion of mistake of facts

A) According to the evidence duly adopted and examined by the court below and the court of the first instance, including police statements such as this Article, it is sufficiently recognized that, on May 18, 2010, the police statements of the Cho Jae-in et al., were reliable for the following reasons, the police statements of the first instance court and the first instance court were conducted on behalf of the second party, by attending the meeting of the Jinsan Development Research Council at the meeting on May 18, 2010 and making a supporting statement to the highest country as stated in the facts of the judgment below.

(1) On May 31, 2010, Choyang, the president of the Jinsan Development Research Council, was asked about whether the police officer visited on May 31, 2010, the Defendant made a speech that the Defendant would make his best be elected, and the Defendant responded to this.

At the same time, the police box was immediately examined, and "the last part of the police box would be the election of the defendant," and "the last part of the police box would be the market." The members of the Gyeongsan Development Research Council stated that "the defendant and the last part of the defendant, who are the head of the Jinsan Development Research Council, have made his best effort to do so." Furthermore, "the defendant and the last part of the police station, who are the head of the Jinsan Development Research Council, were the first part of the elementary school, and the defendant stated that they were the first part of the police station, which was the first part of the police station." However, the defendant made a statement to the effect that not only the members of the Minsan Development Research Council were able to be able to be able to be able to be able to be able to be able to be able to be able to able to able to see the highest national market, but also the other members were able to be able to do so."

On June 4, 2010, Cho Jae-si appeared at the police, and "the defendant should be elected at the same time by the National Assembly of Mung-si. Members of the Korea Mung-si Development Research Council referred to as "Mung-si will make every effort........."

(2) On September 6, 2010, the Defendant’s defense counsel submitted to the court of the court below a confirmation of fact that “the Defendant only made ordinary personnel statements, and the details relating to election campaigns are not referred to in Section 2” was written by the chairman of the Jinsan Development Research Council, which is composed of “The Defendant’s defense counsel was also included in the confirmation of the fact.”

(3) On September 6, 2010, 2010, the court below reversed the statement made by the investigative agency that "the defendant did not make a supporting statement to the least sick country, but the police officer was aware of the fact that the defendant made a personnel statement by him/her at the time of his/her own seat and he/she made a false statement at the investigative agency", which stated that "the defendant made a supporting statement to the least sick country."

On May 31, 2010, if the police investigation was conducted and the prosecutor made a statement at the house. On June 4, 2010, the prosecutor pointed out that the defendant's statement was written as a supporting statement about the highest sick and wounded country, and it was already known that it was different from the company room in entering the statement, but the police did so."

Article 14(1) of the Criminal Procedure Act provides that “The first instance court made a false statement on the grounds stated otherwise at the time of testimony in the original court, the first instance court made a false statement on the grounds that “The first instance court made the statement on June 4, 2010, and the second instance court did not know the fact-finding confirmation at the time of the preparation of the statement, and the second instance court’s statement that “The first instance court made a false statement on the grounds stated otherwise.”

(4) At the court of the first instance, the court stated that the defendant made a statement that the defendant would be able to work very strongly for the Jin-Eup. The Jin-Eup head was not elected by election, but was a meeting supporting the highest-class country that the Gyeongsan Development Research Council wanting to become a candidate for the Gyeongsan City. In light of the fact that this part of the statement made by the Gyeongyang et al. is sufficient in rationality and objective reasonableness.

(5) 앞서 본 것과 같은 조그의수사기관에서의 진술 내용과 피고인과 조ㅁㅎ 의 관계 및 그 진술 번복의 동기, 경위, 과정 등에 비추어 볼 때, 조미농의 수사기관에 서의 진술은 여전히 신빙성이 있다고 보기에 충분하다.

B) In the same purport, the lower court was correct to have determined that this part of the facts charged was guilty, and did not err by misapprehending the fact.

3) As to the prosecutor's assertion of unreasonable sentencing

The Public Official Election Act strictly prohibits public officials from election campaigns to ensure almost fairness by thoroughly planting room for intervention in elections of government officials or elections of public officials.In this sense, the Defendant, the head of the Jin-Eup, carried out election campaigns for the least-class country in which they want to become candidates in the mountain market by making a supporting statement to the least-class country. Considering the status of the Defendant as the head of Jin-Eup and the purpose of legislation of the Public Official Election Act, the Defendant’s criminal liability is not weak.

However, it seems that the Gyeongsan Development Research Council was a gathering supporting the highest country, and the influence of the Defendant's support on the election was not significant. Moreover, the Defendant has no record of criminal punishment and has served as a public official for a period exceeding 30 years in good faith.

In addition to this point, considering the various circumstances that are conditions for sentencing, such as the Defendant’s age, character and conduct, intelligence and environment, motive for committing an offense, connection with means, and circumstances after committing an offense, the lower court’s sentencing is not deemed to be too unjustifiable and unreasonable.

3. Conclusion

Therefore, since the defendant and the prosecutor's appeal are without merit, they are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Voluntary Retirement (Presiding Judge)

Rapped money exchange

Senior Security Officer;