(영문) 수원지방법원 평택지원 2019.1.18.선고 2018고합202 판결

Defendant shall be punished by a fine of KRW 2,000,000. Where the Defendant fails to pay the above fine, the Defendant shall be confined in the workhouse for the period calculated by converting KRW 100,000 into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

Reasons

Criminal facts

The defendant is a person who was elected in the election of the 7th nationwide local government election B market, which was implemented on June 13, 2018.

No person shall publish false facts concerning the place of birth, family relation, status, occupation, career, etc. of a candidate, his/her spouse or lineal ascendants or descendants or siblings, property act, organization to which he/she belongs, support from a specific person or specific organization, etc. in favor of the candidate by means of a speech, broadcast, newspaper, mail, magazine, poster, propaganda document, etc. for the purpose of election or having another person elected or have another person elected.

Around May 24, 2018, the Defendant reported a candidate’s property to run in an election for public office, and submitted a candidate’s property declaration stating that the Defendant, his spouse, and lineal ascendants and descendants’ property totaling KRW 3.79,550,000, to B election commission. From May 24, 2018 to June 13, 2018, the Defendant posted the candidate’s property declaration via the Internet site of the election commission from May 24, 2018 to June 13, 2018. The Defendant sent the book-type election campaign bulletin containing the above contents to B, which included KRW 84,00.

However, in fact, the Defendant entered only active property by omitting all of the debt amounting to 4.64,490,000 won of the Defendant, Defendant’s spouse, Defendant’s spouse, and lineal ascendants and descendants. Therefore, the Defendant’s entire property amounting to KRW 3.79,550,00 in total was false.

Accordingly, the defendant published false facts about the property of the defendant, his spouse, lineal ascendants and descendants in favor of the defendant for the purpose of election.

Summary of Evidence

1. Defendant's legal statement;

1. A written accusation;

1. Property registration statement and details of property registration of a public official;

1. Submission of election campaign bulletins;

1. Application of Acts and subordinate statutes to book-type election campaign bulletins;

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

Article 250(1) of the Public Official Election Act, Selection of fines

1. Detention in a workhouse;

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

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Case history

A. The Defendant, from March 2010 to March 3, 2010, was a person who served as the president of the C Union (hereinafter referred to as “C Union”) partnership (non-standing) partnership. Around March 2017, the Defendant resigned from the D Party and joined the E Party.

B. The name of the F (Location G and H) business owner is the mother of the Defendant, and the name of the F1 farm business owner is the deceased K (hereinafter referred to as "the deceased on November 18, 2018, hereinafter referred to as "the deceased"), the father of the Defendant, and the name of the F2 farm is M who is the spouse of F I. The owner of G land in F, F1 farm, and F2 farm is the owner of G land in which F, F1 farm, and F2 farm is located, and the details of the establishment of the right to collateral security on the said land, etc. are as follows:

A person shall be appointed.

In particular, the actual secured debt of the right to collateral security that the deceased mentioned in Nos. 8 above Table 8 was the debtor is KRW 2.9 billion, and the defendant was granted a loan from the C Union that has the head of the partnership. The defendant registered as a preliminary candidate for the nationwide and Dong Dong City Local Election B market on March 2, 2018, and participated in the intraparty competition of the E Party.

D. On May 3, 2018 and May 4, 2018, the Defendant recommended either P who obtained 33.96% of the votes from the intraparty competition conducted for the rights party (50%) and the general public (50%) and Qu who obtained 26.61% of the votes from 33.96% in the intraparty competition of the E Party (50%) and Qu who obtained 26.61% in the E Party B market.

E. From May 5, 2018, the Defendant received documents from financial institutions, etc. necessary to report the candidate’s property, and on May 24, 2018, the Defendant submitted a letter of trust on the candidate’s property (based on December 31, 2017, when he/she registered as a candidate for the B market at the B election commission.

F. Following the foregoing property declaration reflects as is, [Attachment 1] posted the Defendant’s financial status on the Internet site from May 24, 2018 to June 13, 2018, and [Attachment 1] the Defendant’s financial status and the Defendant’s “Defendant” came to 5,00 maris and 5,000 maris, the book-type election campaign bulletin stating that the Defendant’s assets were sent to the electors of additional 24,000, and the press report containing the Defendant’s property amounting to 3.7 billion won was sent at least four times from May 25, 2018 to June 4, 2018.

[Attachment 1] The Defendant’s financial status (based on December 31, 2017)

A person shall be appointed.

G. In the 7th East City local election implemented on June 13, 2018, the Defendant was elected in the B market prior to obtaining 51.59% of the Defendant’s 51.59% of the votes obtained by 33.97% of the votes obtained by 33.97% of the votes obtained by 2).

H. On July 1, 2018, the Defendant was appointed to the B market, and on September 28, 2018, the Defendant’s property was registered as a public official (based on July 1, 2018, with the purport that the Defendant’s property is KRW 288,958,000. The Defendant’s property is written among the 142 head of the basic local government elected at the 7 simultaneous local election, and only five persons including the Defendant, if the property exceeds the positive property among the heads of the basic local governments.

I. On November 2018, B018, the election commission acknowledged that the Defendant’s details of the Defendant’s report on the property and the registration details of the public official’s property are significantly different, and filed an accusation against the Defendant on December 3, 2018 at the Suwon District Public Prosecutor’s Office’s Housing Site Office as a suspicion of violating the Public Official Election Act.

(j) In B City Election Commission and prosecutorial investigation, the Defendant: (a) delivered all documents necessary for the report of property to T, but, in the course of preparing the report of property by using the program received by T, U.S.’s son, failed to check the debt amount; and (b) the Defendant denied the intent of the crime of violating the Public Official Election Act by asserting that the report of property was entrusted to T and did not know the aforementioned circumstances.

(k) At the time of reporting the candidate’s property revealed as a result of the investigation, the details of omitting the property are as listed below [Attachment 2], and the normal status of property (based on December 31, 2017) reflecting such details are as listed below [Attachment 3].

[Attachment 2] Defendant’s omission of property

A person shall be appointed.

[Attachment 3] The Defendant’s normal financial status (based on December 31, 2017)

A person shall be appointed.

C. The Defendant made a statement to the effect that he was able to make a confession during the period of time in this court, and that he was able to take the Defendant.

2. The defendant's intentional part is no longer determined since he/she made a confession by recognizing facts constituting a crime in this court.

3. Determination on specific sentencing

(a) Scope of punishment by law: Not more than 30 million won;

(b) Scope of recommending types according to the sentencing criteria;

[Determination of type] Giving false information to the candidate, and Type 2 (Publication of False Information for Election Purposes)

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, 2 million won to 8 million won. Determination of sentence: Fine of 2 million won

1) Article 49(4)2 of the Public Official Election Act requires an applicant for registration of a candidate to submit a report on property subject to registration under Article 10-2(1) of the Public Official Election Act to prevent public officials from increasing their illegal property and securing fairness in the performance of public services and to establish the ethics of public officials as a servant for the public (Articles 1 and 10-2(1) of the Public Official Ethics Act). The legislative purpose of Article 49(12) of the Public Official Election Act is to ensure the public official’s right to know and the exercise of citizen’s right to vote by disclosing information on property status, military service records, income tax and property tax payment and delinquent performance for the last five years, and criminal records, based on the duty to fair competition of political parties and candidates participating in the election.

Considering the legislative intent of the above, it is reasonable to view that Article 52 (1) 3 of the Public Official Election Act includes not only the case where the report itself is not submitted, but also the case where it is deemed that the establishment of public official’s ethics and the guarantee of the elector’s right to know and to exercise voting rights, which are essentially infringed upon by Article 52 (1) 3 of the Public Official Election Act (see, e.g., Supreme Court Decisions 2009Do5945, Oct. 29, 2009; 2004Da78, Feb. 18, 2005). This constitutes grounds for invalidation of election under Article 192 (3) 2 of the Public Official Election Act before the elected person begins his term of office prior to the commencement of his/her term of office.

In light of the above legal principles, omitting all large amount of debts exceeding 4 billion won in filing a report on the instant property registration with the Defendant is so serious that it does not make a report, and there is no difference between cases where the report on the registered property is practically not made. It is strictly required to punish the legislative purport of the Public Service Ethics Act or the Public Official Election Act in itself, and to punish the public official’s ethics and the guarantee of the elector’s right to know and to exercise voting rights.

2) In fact, the Defendant’s property omitted was reported as KRW 3.789 billion, even though it was KRW 3.789 billion, and the wrong property status of the Defendant was disclosed to the voters on the Internet site of the election commission and book-type election campaign bulletin. The information that the Defendant’s property amount to KRW 3.7889 million and that the Defendant’s property amount to KRW 42 million is more than that of the Defendant, there is a substantial difference in the extent that the other perception of the Defendant’s property amount to KRW 42 million would have been formed. Furthermore, considering the circumstances such as the Defendant’s property amount to KRW 42 million and the fact that the Defendant’s property amount to KRW 4.6 million, the Defendant’s act of omitting the Defendant’s property amount to KRW 4,000,000,000,000,000,000,0000,000 won, based on the image of the head of the association participating in the election.

3) We examine the defendant's defense counsel's reasons for sentencing favorable to the defendant.

① The Defendant’s defense counsel asserts that not only the Defendant, but also the Defendant’s spouse, lineal ascendants and descendants, who are election campaign managers, have omitted all of the obligations of the Defendant.

However, compared with the financial data that U's U's prosecutor's attitude to make a statement or the details of the actual report, it is difficult to view that the above alleged facts have been substantiated. Moreover, as long as the period of 20 days after the candidate registration on May 24, 2018 to the election day of June 13, 2018, the Defendant did not correct the above alleged facts even though there was sufficient time to correct the above mistake, and rather, it cannot be viewed as the grounds for sentencing favorable to the Defendant, insofar as the Defendant actively uses the impression of the right holder, such as "a person who has contributed to the stock farming business and the head of the cooperative who has succeeded to the re-election."

② The Defendant’s defense counsel asserts that the Defendant was unaware of the fact that the Defendant was elected in the B market on June 13, 2018, and that the public official was registered on September 28, 2018, and the election commission notified that the details of the candidate’s property report and the public official’s property registration are different from that of the candidate’s property registration, and that the Defendant was unaware of the fact that the decedent was liable for loans of KRW 2.9 billion up to that time.

However, the period of 20 days after the candidate registration on May 24, 2018 to the election day on June 13, 2018, and the wrong defendant's property status has already been disclosed to the right of retention on the Internet website of the election commission and book-type election campaign bulletin, media reports containing the contents of the defendant's property amounting to 3.7 billion won, at least four times between May 25, 2018 and June 4, 2018, and the deceased's loan obligations amounting to 2.9 billion won are treated as the Defendant's partnership with the head of the partnership. In light of the above circumstances, the above argument by the defendant is entirely without merit.

③ The Defendant’s defense counsel asserts that, among the omitted debts, KRW 2.9 billion was borrowed from the Defendant’s partner’s business loan in the name of the deceased, and the Defendant’s debt was not subject to the report of property, and even if the deceased’s debt was not the subject of the report of property, the deceased was supported by 1, and thus, the notification of property was refused.

However, it is difficult to see that the above obligation was proved solely by the materials submitted by the Defendant that it was an obligation of I. Also, according to Article 10-2(1) and (5) of the Public Service Ethics Act and Article 18(1) [Attachment 1](b) of the Regulations of the National Election Commission on the Enforcement of the Public Service Ethics Act, Article 18(1)(b) of the Regulations on the Enforcement of the Public Service Ethics Act provides that a person who is not a dependent among his/her lineal ascendants or descendants may refuse to notify his/her own property. However, the refusal to notify the property of the deceased may be subject to negative public opinion in itself, and the Defendant’s debt of KRW 2.9 billion is extended to the C Association with the head of the association, not by the Defendant’s own choice, unless the Defendant refuses to notify the deceased’s property status, the circumstance that the refusal

④ Finally, the defendant's defense counsel asserts that the defendant's property which was mistakenly reported by omitting his/her obligation as of December 31, 2017 is KRW 200 million, KRW 1.328 billion, the property of the defendant's spouse is KRW 1.56 billion, the property of the defendant's normal property including his/her obligation is KRW 1.66 billion, and the property of the defendant's spouse is KRW 966 million, and the report including his/her obligation is more favorable to the election, and therefore, the defendant's property is not intentional or maliciously omitted.

However, the premise that the property owned by the candidate is negative on the position of the local residents who choose the head of a local government to work for the community, is merely a unilateral opinion of the defendant, and in this case, 2.9 billion won of the omission amount of the deceased's debt becomes an important issue. However, the defendant's above assertion is not acceptable in light of the circumstances such as the fact that the omission amount of the defendant's debt exceeds KRW 733 billion,000,000 of the defendant's spouse's debt, and the omission amount of the defendant's spouse's debt exceeds KRW 362 million,00,000,000 of the defendant's spouse's debt amount. The candidate's property report system has a meaning to disclose the candidate's property status as it is to guarantee the right to know

4) Meanwhile, the Supreme Court’s sentencing guidelines, in the event that false information is published for the purpose of election as in the instant case, advise the Defendant to make a sentence of 10 months or less, or of 2 million won or less to 8 million won, unless there exist any special factors to increase or reduce the sentencing guidelines, and taking account of the circumstances seen earlier, it is difficult to deem that there are special circumstances that the Defendant, beyond the sentencing guidelines, may invalidate the Defendant’s election and restrict the Defendant’s right to participate in official duties

However, considering favorable circumstances, such as the fact that the defendant intentionally recognized his mistake, the fact that the content of the publication of false facts is not academic background, criminal record, military service, and the fact that there is no record of punishment for the same violation of the same Public Official Election Act, etc., the defendant's age, character and behavior, environment, motive, means and consequence of the crime, and the circumstances after the crime, etc., the sentencing guidelines shall be set as the lowest among the recommended sentencing range, and the decision is made as the disposition.

Judges

The judge level of judge;

Judges Boh-hee

Support for Judges

Note tin

1) Grounds that are different from the details of the property registration of a public official are different, and ① the base period is different, ② the land and the automobile value at the time of reporting the candidate’s property.

B. A person who reported land not owned by the defendant's spouse, and ③ a person who is not the defendant or defendant's spouse at the time of property registration.

This is because the land was registered.

심급 사건

수원지방법원 평택지원 2019.1.18.선고 2018고합202

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