2012Gohap340 Violation of the Public Official Election Act

KimO, assistant officers for National Assembly members

Seoul Special Metropolitan City Nowon-gu Odong

Jung-gu Seoul Central District Court 00 dong

Park Jong-young (prosecution, public trial)

1. Law firm established;

Attorney Jeong Jin-jin, Attorney Jeong Jin-chul, Kim Jae-in

2. An attorney-at-law;

November 23, 2012

A fine of two million won shall be imposed on a defendant.

Where a defendant fails to pay the above fine, the defendant shall be confined in a workhouse for a period calculated by converting 50,000 won into one day.

The above fine is ordered to pay an amount equivalent to the provisional payment.In the facts charged in this case, the violation of the Public Official Election Act, which provided benefit in relation to the election campaign, is acquitted.

Criminal facts

In the election of the National Assembly member of the 19th National Assembly (on April 11, 2012, the election day), ○○○○○○○ Party (No. 18, 2012, on March 18, 2012), the Defendant was elected by withdrawing from the 19th National Assembly member to the Busan Maritime Daegu-gun District to the election district, and the Defendant was the election campaign manager of the candidate under 00.

Except for the cases of providing allowances, actual expenses, and other benefits under the provisions of the Public Official Election Act, no person shall provide, express an intention to provide, or promise to provide money, valuables, or other benefits in connection with the election campaign, regardless of the pretext thereof, such as allowances, actual expenses, compensation for volunteer service, etc.

1. Offering profits to 00, Chapter 00;

Around March 15, 2012, the Defendant entered into a lease agreement with the lessor ○○○ and 4.50,000 won on March 15, 2012, setting the lease agreement with the lessor ○○○○ and ○○○○○○, a person in charge of accounting of the candidate at the office of ○○○○○, a person in charge of accounting of the candidate at ○○○○ and volunteers at the office of ○○○○, a person in charge of accounting of the candidate at ○○○○ and 00, a volunteer at the time of the election campaign period, on March 15, 2012 through April 15, 2012. On the same day, the Defendant transferred the rent of KRW 450,000,000 to the ○○○ account of Kim○○○ (○○-OO) of the same day to provide the benefit equivalent to 4.550,000 won in connection with the election campaign at ○○ and ○○.

2. Provision of money and valuables;

On April 20, 2012, the Defendant: (a) around 10:30 on April 20, 2012, on the front day of the ○○○○○ apartment, ○○○○○○ apartment, ○○○○○○○○, which was located in the ○○○○○○○○○○○○○○○○○○○○○○○○, a person in charge of accounting of the election campaign liaison office of a candidate for Lee○○○ and Ha○○○○○○○○, provided 1 million won in connection with an election campaign, respectively, to Lee○○○ and Kim○○, who was in charge of accounting of the election campaign.

3. The promise to offer money and goods;

On February 2, 2012, the Defendant promised that 00 ○○○○○○○○○ Dong in Seoul Special Metropolitan City, ○○○○○○○○○○○, and Haak’s office located on the fourth floor would make up for the total amount of money and valuables provided to ○○○ by making up for it later, once once settled with four credit cards in connection with election. 00 on April 2012, 201, the Defendant offered to ○○○○○○ by hearing the phrase “one million won of the amount used during the election.................. to ○○○’s election will make up for the total amount of money and valuables paid by ○○○ credit card, etc., as indicated in attached Table 1, with respect to the election campaign of 116,336 won.

Summary of Evidence

[each point of paragraphs 1 and 2 in the market]

1. The statement of the defendant in this court; 1. The statement of the witness Lee-○ and Kim○-○ at this court; 1. The statement of the prosecutor's office concerning Kim 00

1. Each statement made by the police officer on the Class 00 of the police preparation and Kim ○○; and

1. Each investigation report prepared by the prosecution (including a report on the appointment of a person in charge of accounting and a report on the details of remittance of the amount spent for election expenses attached to the agreement on the appointment of a person in charge of accounting / the statement on the amount spent for election expenses / The report on the confirmation of the details of the amount of money lent and brokerage commission / the report on the confirmation of the date of public announcement in a local constituency for the ○○○○

1. Each entry in a studio lease contract (for example, page 44 of the evidence record), a full certificate of matters to be registered (Evidence No. 45 of the evidence record), a statement of account transaction (fore, page 70 of the evidence record), a statement of account transaction (fore, page 392-395 of the evidence record), a detailed statement of transaction (fore, page 396 of the evidence record);

1. Videos of photographs (Evidence No. 113);

[No. 3]

1. The witness Lee 00, Kim 00's statement in each part of the protocol of interrogation of the accused prepared by the prosecution;

1. Some of the investigation reports (including accompanying documents) prepared by the prosecutor's office (including a report accompanied by a copy of receipt submitted by the O);

1. Statement of account transactions (Evidence No. 68-70 pages of evidence);

1. Judgment on the assertion about the crime No. 3 in the judgment of the defendant and his defense counsel in the video of the receipt (Evidence No. 248 of the evidence record) collected by the person in charge of accounting.

1. Summary of the assertion

A. On February 2012, 2012, the Defendant stated that ○○○ was “if he pays office fixtures with four credit cards, he would make up for the amount later.” In addition, there was no fact that she would have expressed that she would make up for the amount of money in connection with election, and at that time, she did not receive 000 party election expenses because she was in a situation where she was unable to receive her contribution.

B. Each of the items listed in the separate sheet of crime (1) is a part of the Defendant and Ha○○○, which should be settled with the Defendant and Ha○○○, in lieu of convenience, even though the Defendant or Ha○○ had spent personally prior to or after the election period, or a part of which the Defendant and Ha○○, as an accountant in charge, should have been accounted for as the items of election expenses or political fund items other than election expenses. Thus, the promise to preserve each of the above items cannot be deemed a promise to provide money and valuables prohibited under the Public Official Election Act.

2. Determination

A. Whether a promise was made to preserve expenses in connection with an election

In light of the following circumstances acknowledged by the evidence duly adopted and examined as follows, i.e., ① has been promised to preserve expenses from the Defendant in relation to the election, i.e., the consistent election of 00, and the Defendant also recognized the promise to preserve expenses, ② the Defendant, n00, and 00 have come to know of the civil organization called the “000”. Ha○○○ established a plan to go out to the 19th National Assembly election from around the summer of 201 to 19th National Assembly, and requested the Defendant and ○○○ to help ○○○, etc. to go out to the election district, and Ha○○○ had accepted it, and ○○ had opened the office within the election district on January 1, 2012. ③ From around that time, the Defendant had to go out to 20 days before and after the election of ○○ National Assembly.

B. Each item of the attached Table 1 of "Crimes List (1)" is not a money or goods prohibited by the Public Official Election Act, and the term "in relation to an election campaign" under Article 135 (3) of the Public Official Election Act is more broad than "for an election campaign" as the motive for matters concerning an election campaign, and even if there was no purpose of affecting the purpose of the election campaign or the election, the act itself is established in the need to regulate the act that is likely to infringe on the freedom and fairness of the election. Thus, the provision of money or goods does not necessarily need to be the consideration for an election campaign, and it includes what is related to the election campaign, such as the cost of providing information related to the election campaign, cost of election campaign, cost of election campaign-related persons, etc. (see Constitutional Court en banc Decision 201Hun-Ba26, Apr. 25, 2002).

In light of the date, place, etc. of settlement indicated in the sales slips, etc. submitted by the evidence duly adopted and examined earlier, each of the items listed in the attached Table “crime List (1)” is sufficient for ○○ to view the items as the expenses for election campaign, such as the purchase cost of office fixtures used by Ha○○○ in the course of preparing an election or conducting an election campaign, and the cost of purchasing office fixtures, transportation expenses, exit equipment, liquor expenses, fines for negligence in violation of parking and stopping, vehicle repair expenses, accommodation management expenses, etc., as the motive for the election campaign.

On the other hand, whether it is an item of election expenses or an item of political funds other than election expenses should be approved by an election commission after accounting is conducted. As seen earlier, the Defendant comprehensively promised to compensate expenses to ○○○○○○, and thus, insofar as such accounting process has not been followed, it cannot be excluded from the scope of money and valuables promised to preserve

Therefore, the above arguments by the defendant cannot be accepted.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Each point of judgment No. 1: Comprehensively, Articles 230(1)4 and 135(3) (Selection of Fines) of the Public Official Election Act

Article 230(1)4 of the Public Official Election Act and Article 135(3) of the Public Official Election Act (or each fine)

Article 230(1)4 and Article 135(3) (Selection of Fines) of the Public Official Election Act

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (aggravated Punishment for Concurrent Crimes with Punishment for Crimes of Article 3 of the Judgment with the most serious Crimes)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

The reason for sentencing under Article 334(1) of the Criminal Procedure Act [Scope of punishment by law] 50,000 won to 15 million won

[Determination of Sentence] Fines of two million won

If the act of offering benefits in relation to election campaigns is permitted, it is difficult to prevent the election campaign due to excessive election campaign, and if benefits are provided to election campaigners, the election campaign workers are forced to engage in the election campaign for the purpose of benefit, and ultimately, it is difficult to conduct a fair election. Therefore, the Public Official Election Act strictly regulates the act of offering benefits in relation to election campaigns in order to prevent it.

Although having experienced several elections, the Defendant offered or promised to offer money or goods to persons engaged in election affairs in violation of the above purpose of the Public Official Election Act, and the crime of the crime of paragraph (2) of the crime in the holding, even if each crime was completed after the election was held, and the election was held as a witness, which is a large amount of money or goods, and the Defendant provided a false statement at an investigative agency or made another person make a false statement, and the Defendant attempted to pay back to 00 pages to induce the reversal of the statement, which is the informant of each of the crimes of this case, in full view of the following facts: (a) the nature and character of the crime are very poor.

The crime of this case was not intended to purchase general voters, and it does not seem to have affected the result of the election, and the defendant appears to have committed each crime under paragraphs 1 and 3 of the crime in consideration of the remaining proposals expected to be entrusted to assistant officers, etc. in the event of election for subordinate National Assembly members. The crime of each crime under Paragraph 2 of the crime in the holding seems to have been committed by the defendant in the process of expressing intention to the ○○○○ and Kim○, who was living together with the leader of the election campaign office, even though the defendant was able to have a good result after completing the election as an election campaign manager, and he was able to have a good result.

In such circumstances, the Defendant’s age, character and conduct, motive of the crime, circumstances after the crime, and each of the instant crimes were committed without contact with the lower○○○○, and the Defendant’s deprivation of his membership to the lower National Assembly position due to such crime is too harsh, and the circumstances constituting the conditions for sentencing as shown in the argument of the instant case are considered, and the sentence is to be determined as ordered by a fine.

The acquittal portion

1. An act of offering profits to Kim○-○;

A. Facts charged

On March 15, 2012, the Defendant: (a) concluded a lease agreement with the lessor Kim ○, on the basis of the following: (b) around March 15, 2012; (c) at the office of licensed real estate agents’ office of 000,000 won in Busan-gun, Busan-gun; and (d) at the office of Kim ○, a person in charge of accounting of the supporters’ association of the candidates for the Ha○○ (Preliminary) offered the benefit of 4.50,000 won in connection with the election campaign to Kim ○, by transferring 4.50,000 won in rent to the 00 account of Kim ○○ (00-000-00) on the same day; and (d) by paying 136-15, a person in charge of accounting of the supporters’ association, who will reside during the election campaign period, to Kim ○, an amount of 100,000 won in relation to the election campaign.

B. The gist of the defendant and his defense counsel

It is true that the Defendant paid the Defendant’s money to the Defendant’s money, which the Defendant resided together with ○○○○○○, but the original room was leased for the Defendant’s residence, and the above room was used to the Kim○○, which had been known for a long time compared to the election campaign office. This is within the scope permitted by social norms, and thus, it cannot be deemed as the provision of profits prohibited by the Public Official Election Act.

C. Determination

In light of the following circumstances acknowledged by the evidence duly adopted and examined by this court, namely, the above ○○○○ room 103 square meters, there are only one room, and the area of the floor with the above room is 181.08 square meters. The above room room is a 6 or more room on that floor, and the actual area of the room room seems to be very narrow and narrow, and the above room room is statement to the effect that all of the ○○ and the ○○○○○○ and the ○○○○○○ et al. residing in the same form as the above room were inconvenienceed for the same person to live together. In light of the above, the above room ordinarily appears to be a place suitable for one person to live.

In light of these circumstances, the above room room is merely that the defendant living together with Kim 00, but basically, it has strong aspects for the defendant's residing in Busan, and Kim ○ appears to have been staying outside from time to time due to election campaign, etc. rather than having been residing in the above room room. In addition, the defendant and Kim ○, who has long been aware of it, is merely that the defendant's act of living together with Kim ○, by paying the entire rent for the above room room and providing convenience that is acceptable by social norms to Kim 00, and the act of living together with the above room room does not constitute the provision of profits prohibited by the Public Official Election Act to prevent gold voting and over-election campaign.

and there is no other evidence to acknowledge this part of the facts charged.

D. Conclusion

Thus, this part of the facts charged constitutes a case where there is no proof of crime, and thus, is acquitted pursuant to the latter part of Article 325 of the

2. A point of promising to offer money or goods for each item listed in attached Table 1 (2).

A. Facts charged

On February 2, 2012, the Defendant promised ○○ to preserve all the amount of money and valuables in relation to the election campaign by promising ○○○ to pay off with four credit cards at the lower office located in the Gwanak-gu Seoul Special Metropolitan City, Seoul Special Metropolitan City’s ○○○○○○○○, and the fourth floor. On April 2012, the Defendant offered the money and valuables to this○○ by promising ○○ to preserve the total sum of KRW 2,906,110, which is the amount of money paid by the credit card, etc., as indicated in the attached Table 2 of Crimes List, to the election of ○○○○○, which is located in Jongno-gu Seoul Metropolitan City.”

B. The gist of the defendant and his defense counsel

(1) The expenses that the Defendant promised to preserve to ○○○ does not include food and accommodation expenses used by ○○○ without direct connection with ○○○○.

(2) Since the ○○○○ agreed to settle the vehicle repair cost of KRW 820,010 (attached Form 52) incurred on May 8, 2012 as an allowance for the person in charge of accounting after an election to be held to receive 00, the said repair cost is not included in the expenses that the Defendant promised to preserve.

(1) Each of the statements in this Court and each of the investigative agencies of ○○ and Kim ○○ and the Defendant’s statements in this Court (if a team received food and accommodation expenses and submitted them to the Defendant, then the corresponding cash was paid) are presented as evidence that O used by OO without direct connection with n00.e., food and accommodation expenses that correspond to the facts charged.”

However, in light of the following circumstances acknowledged by the evidence duly adopted and examined by this court, i.e., all persons engaged in the election affairs except the above two persons, who were not actually paid cash as such, and were stated to the effect that there was no promise, and the Public Official Election Act plans to resolve food and accommodation expenses for persons engaged in the election affairs with an intention to pay allowances and accommodation expenses as prescribed by the Act. The Public Official Election Act plans that ○○ would normally pay allowances and accommodation expenses to persons engaged in the election affairs. 00 expects that if ○○○ is elected as a member of the National Assembly rather than economic benefits, he will be entrusted to the secretary, etc. and participate in the election. In light of the fact that there seems to be no reason for the Defendant to pay food and accommodation expenses only to ○○○, among persons engaged in the election affairs, there is no reason to believe that each of the above statements made by ○○ and Kim○○○ is difficult, and there is no evidence to acknowledge this part of the facts charged.

(2) Around May 8, 2012, EO stated that the Defendant consented to the payment of the vehicle repair cost of KRW 820,010,010, which was paid by EO to ○○ in line with the Defendant’s statement, by asking ○○ himself about how to settle the vehicle repair cost in his post-management allowance, and 00 also asked ○○ in this court that “I would like to arrange the vehicle related expenses with the person in charge of accounting after the election to be received. If you deal with this, there is no reason to request a separate preservation, but to request a separate preservation, and such talk is a talk at a time that is good,” which is consistent with the Defendant’s statement. Accordingly, the vehicle repair cost of the above vehicle cannot be deemed to be included in the scope of the Defendant’s promise to preserve the expenses that the Defendant promised to this○○○, and there is no other evidence to acknowledge this part of the facts charged.

D. Conclusion

Thus, this part of the facts charged should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act because it is a case without proof of a crime. However, since it is a ground for finding a guilty of a crime under paragraph (3) of the same Article in a single crime, the judgment of

It is so decided as per Disposition for the above reasons.

The presiding judge and the highest judge;

Judges Cho Jong-chul

Judges Min Il-Gyeong

1) An election campaign under Article 135(3) of the Public Official Election Act is necessary for the election or votes obtained by a specific candidate or for the defeat of a specific candidate.

the purpose of promoting the success or defeat in the election as an act, which may be objectively recognized as such;

act of preparing an election campaign that falls under the internal or procedural preparation for a future election campaign;

(b) is distinguished from ordinary political party activities, but in specifically determining whether an act constitutes an election campaign;

the manner of the act as well as the name of the act, i.e. the time, place, method, etc. of the act;

to observe and determine whether it is an act accompanying the purpose of promoting the election or defeat of a particular candidate;

Therefore, the office shall be separately prepared, and election campaign measures shall be taken by employing election campaign workers, etc.

Establishment, etc. of an act is clearly intended to promote the election of a specific candidate, and such act merely provides for an election campaign.

It cannot be deemed as a non-act or ordinary political party activity as a political party (Supreme Court Decision 98Do1432 delivered on April 9, 199, etc.)

[Reference]

2) The '820,000 won of the indictment' seems to be written in writing.