Defendant 1 and one other

Defendants

Long-gu (Public prosecution), face-to-face security, and knives (public trial)

Attorney Name-ho et al.

Daegu District Court Decision 2018 Godan964 Decided November 23, 2018

All appeals by the Defendants are dismissed.

1. Summary of grounds for appeal;

A. Defendant 1

1) misunderstanding of facts and misapprehension of legal principles

The Defendant did not provide KRW 500,000 to Defendant 2 and Co-Defendant 4 in relation to the election of the president of ○○○○ △△ and Yeeng community credit cooperatives (hereinafter “the instant election”), and paid KRW 150,000 to Co-Defendant 4 of the first instance trial. However, this was merely the name of the membership fee of the ○○○ Dong branch of the Gedong Committee, and did not provide it upon requesting the support of himself. Nevertheless, the lower judgment convicting the Defendant of the facts charged was erroneous or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

2) Unreasonable sentencing

Preliminaryly, the sentence sentenced by the court below (two years of suspended sentence in six months of imprisonment) is too unreasonable.

B. Defendant 2

1) misunderstanding of facts (as to the part that received KRW 500,00 from Defendant 1)

Although the defendant did not receive KRW 500,000 from the defendant 1, the court below found the defendant guilty of this part of the facts charged, which affected the conclusion of the judgment.

2) Unreasonable sentencing

Preliminaryly, the penalty (2 million won of fine) imposed by the court below is too unreasonable.

2. Determination

A. Defendant 1

1) Judgment on misconception of facts and misapprehension of legal principles

A) 500,000 won for Co-defendant 4 in the first instance trial

In full view of the following facts and circumstances acknowledged by the evidence duly admitted and investigated by the court below, the fact that the defendant provided co-defendant 4 with KRW 500,000 to Co-defendant 4 for the election of this case can be fully recognized.

(1) Co-defendant 4's statement, etc.

(A) The statement made by Co-defendant 4 in the first instance court

① Co-defendant 4 sent to the chairperson of the community credit cooperative election management commission of the community credit cooperative on January 18, 2016, which was long from January 2, 2016, the instant election day. On January 18, 2016, Co-defendant 4: (a) sent to the chairperson of the community credit cooperative election management commission of the community credit cooperative (No. 2, No. 799 of the evidence record). This content-certified mail is kept by the Defendant in the president of the community credit cooperative office of the community credit cooperative; and (b) the instant investigation was commenced with Nonindicted 1’s information, and was confiscated to the investigation

② Co-defendant 4 of the first instance trial continued to make a statement to the effect that he/she was investigated by the police as a witness on September 23, 2016 and January 16, 2017, and that he/she received KRW 1,50,00 from the Defendant after being investigated as a suspect on March 28, 2017.

③ Co-defendant 4 stated at the prosecutor’s office that he was investigated as a suspect on February 12, 2018 and received KRW 1.50,000 from the Defendant. At the time, the prosecutor presented content-certified mail as seen earlier, and asked the Defendant whether the amount received from the Defendant is KRW 50,000 (No. 6 of the evidence record No. 2723 of the record), but the Defendant maintained the above statement.

④ Co-defendant 4, on March 9, 2018, the public prosecution of this case was instituted together with the Defendant, etc. on the ground that “Co-defendant 4 received KRW 1.50,00 from the Defendant upon the Defendant’s request for support for the Hadman on September 9, 2015.”

⑤ On March 26, 2018, Co-defendant 4, 2018, stated that he/she was present at the prosecutor’s office and was under interrogation of suspect (second-time) by himself/herself, and received KRW 50,000 from the Defendant, not KRW 150,000 (Additional Evidence Records) and stated in the lower court to the same effect as a witness.

(B) Co-defendant 4's second statement at the prosecution of the court of first instance and credibility of the original judgment's statement

① Co-defendant 4 stated to the effect that he received KRW 1,50,00 from the Defendant in the first instance court, after undergoing three police investigations from the first police, and one prosecution investigation before being prosecuted. In light of the fact that Co-defendant 4 continued to make a statement favorable to the Defendant, it is difficult to deem that Co-defendant 4 had the intention to harm the Defendant.

② Co-defendant 4 of the first instance court, after institution of the prosecution of this case, reversed the statement that he was present at the prosecutor’s office and received KRW 500,000 from the Defendant, which is different from the previous ones. As to the reversal of the statement, the reasoning for the reversal of the statement is as follows: (a) it is apparent that Co-defendant 4 of the first instance court, as requested by the Defendant, made a false statement and continued to make a false statement after being tried (2 pages, 5 pages, and 255 pages). The statement initially made by Co-defendant 4 of the first instance court, at the investigative agency, was in violation of the contents of the above content-certified mail that was seized, was sent to the past, and the prosecutor immediately before prosecution, based on the above content-certified mail; and (b) the Defendant was prosecuted with the Defendant, the reason for the reversal of the statement by Co-defendant 4 of the first instance court is acceptable.

③ As a witness of the court of first instance, Nonindicted 2, who was the co-defendant 4 of the court of first instance, stated that Co-defendant 4, as a witness of the court of first instance, he met himself or entered into the instant case before receiving a duplicate of indictment and submitting a written answer to the court. At the time, Nonindicted 2 stated to the effect that “At the time, Nonindicted 2 stated to the effect that “I am more likely to reduce what would be what would be, and that I am less accurately talk with him, what would not be what would be, or what would not be what would be what would be what would be.

④ Although Co-defendant 4’s statement on the amount of money received from the Defendant, place and method of receiving money, method of returning money to the Defendant from the investigative agency to the court of the original trial, considering the contents of the mail verifying the above contents, contents of the investigation process, contents of the statement made by Co-Defendant 4, the statement made by Co-Defendant 2, and reasons for reversal of the statement, etc., there are credibility of Co-Defendant 4’s second testimony by the prosecution of the first instance court and the statement by the court of the original instance.

(2) Nonindicted 1’s statement

(A) Nonindicted 1 stated in the lower court’s witness that “Nonindicted 1 gave money to other representatives of community credit cooperatives than Defendant 2”.

(나) 공소외 1은 자신이 피고인에게 대의원 9명을 소개했는데 피고인이 이사장에 당선된 후 자신을 모른 체 하여 괘씸하다는 생각을 하고 대의원들을 만나 그중 5명과의 대화를 녹취하였다(공판기록 315쪽). 그중 피고인 2와 대화내용을 녹취한 녹취록에는 피고인 2가 공소외 3을 통해 1심 공동피고인 2(원심 공동피고인)로부터 돈을 받았다는 내용이 있고, 이는 피고인 2도 사실이라고 인정하고 있다.

(C) The Defendant asserts that Nonindicted 1 made a false statement with the content that he had made a false testimony against Defendant 2, etc. that he had made a false testimony regarding the election. However, it is difficult to view that Nonindicted 1 had a false statement in excess of the extent that Nonindicted 2, Nonindicted 4, Nonindicted 5, Nonindicted 6, Nonindicted 7, and Nonindicted 8 asked Defendant 2, Nonindicted 6, Nonindicted 8, etc. to make a false statement, instead of having made a false statement.

(3) The credibility of Defendant’s statement

(A) The Defendant was investigated by an investigative agency several times, and the Defendant continued to make a statement to Co-Defendant 4, a co-defendant 150,000 won, which is the chairperson of the Geaeaeaea Committee (Evidence 2:736 pages, etc.) (Evidence 7, 736 pages, etc.). The Defendant’s statement is difficult to believe with

① At the time, Co-defendant 4 of the first instance trial paid money in the form that Co-Defendant 4 did not receive money. Co-Defendant 4 did not dispose of the money as a membership fee of the Committee, but did not return the money to the Defendant for four months.

② According to the statement made by Nonindicted 9, who was the general secretary of the ○○○ Dong Branch of the Committee, the membership fee was not charged in 2015 at the time, and the membership fee was charged to him/her at all times, and the chairperson has no record on only one occasion.

③ Co-defendant 4 of the first instance trial also stated that he does not have to collect only one membership fee from other members.

④ The Defendant did not know at any time the membership fee of KRW 150,000 from time to time, and indicated in the Defendant’s pocket book “10,000 won of membership fee on October 16, 2015”.

⑤ In the initial police investigation, the Defendant stated that Co-Defendant 4 of the first instance trial sleeped with money by misunderstanding that Co-Defendant 4 was flicking money and locked, and that Co-Defendant 4 of the first instance trial told Co-Defendant 4 that he would compensate for medical expenses later (Evidence No. 2, 736-737 of the Evidence Record).

(B) The lower court and the first instance court asserted that, unlike the statement made by the investigative agency as seen earlier, the Defendant would give KRW 1.50,000 as a special membership fee in relation to the Campegy Association, but it is difficult to believe that the Defendant did not make any such a statement at one time while being investigated by the investigative agency several times.

B) 500,000 won provision to Defendant 2

In light of the following facts and circumstances acknowledged by the evidence duly adopted and examined by the court below, it can be sufficiently recognized that the defendant provided KRW 500,000 to Defendant 2 for the election of this case.

(1) Defendant 2 stated that he received KRW 500,00 from the Defendant after being investigated by an investigative agency several times as follows. In light of the content and process of the statement, Defendant 2 is credibility.

(A) On September 23, 2016, Defendant 2 stated the portion of money received from Co-Defendant 2 in the investigation of the first witness of the police on September 23, 2016 (Evidence No. 2, 775-776 of the Evidence No. 2, the record), and the contents of the statement are considerably detailed.

(B) After that, the Defendant found Defendant 2’s house and confirmed the contents examined by Defendant 2 and divided conversations related to the instant case. On November 16, 2016, Defendant 2 stated that no money was received from the Defendant at the first time during the second witness investigation by the police at the second witness investigation by the police on November 16, 2016, Defendant 2 made a statement to the effect that for whom he received money from the Defendant who heard the transcript of his conversation with Nonindicted Party 1, he received money (No. 4 of the Evidence Record No. 1551-152).

(C) On April 7, 2017, Defendant 2 stated that he was investigated as a suspect by the police, and received KRW 500,000 from the Defendant (Evidence No. 6No. 2173 of the Evidence Record), and subsequently, on June 16, 2017, Defendant 2 stated that he was also subject to a cross-examination with the Defendant and Nonindicted 1 and received KRW 50,000 from the Defendant (Evidence No. 6 of the Evidence Record No. 2372 of the Evidence Record).

(D) On November 23, 2017, Defendant 2 stated that the prosecutor’s investigation was not memory (Evidence No. 6No. 2540 of the evidence record) and that Defendant 2 stated or asserted that he was not memory due to old age, surgery, etc. (the trial record No. 265 pages, 274 pages, 333 pages, 347 of the trial record).

(2) Nonindicted 1 of the lower court’s witness stated that “Defendant 2 received KRW 500,00 from the Defendant”.

(3) The Defendant asked Nonindicted 1 to introduce and request Nonindicted 1 to introduce Defendant 2, a representative of community credit cooperatives, and provided meals to Defendant 1, Nonindicted 1, and Defendant 2.

C) Sub-decision

Defendant’s assertion of mistake and misapprehension of legal principles shall not be accepted.

2) Determination on the assertion of unreasonable sentencing

In full view of all the sentencing conditions, such as the Defendant’s age, character and conduct, environment, occupation, and circumstances after the crime, etc., the sentence imposed by the lower court is too unreasonable, as it is too unreasonable, considering the following: (a) the Defendant’s provision of money and valuables to the elector to impair the fairness of the election; (b) the Defendant’s refusal to commit the crime; (c) the amount and frequency of provision; and (d) the amount and frequency

B. Defendant 2

1) Judgment on the assertion of mistake of facts

In full view of the following facts and circumstances acknowledged by the evidence duly adopted and examined by the court below, namely, ① Nonindicted 1 testified that “the defendant received KRW 500,000 from Defendant 1, and Defendant 1 said that he provided money to other representatives of community credit cooperatives than the defendant,” and ② Defendant 1 asked Nonindicted 1 to introduce the defendant who is the representative of community credit cooperatives to the non-indicted 1 and provided the meals to the non-indicted 1, the fact that the defendant received KRW 500,00 from Defendant 1 in relation to the election of this case can be fully recognized.

Defendant’s assertion of mistake shall not be accepted.

2) Determination on the assertion of unreasonable sentencing

In full view of all the sentencing conditions, including the Defendant’s age, character and conduct, environment, occupation, and circumstances after the crime, it is not recognized that the sentence imposed by the lower court is too unreasonable because the sentence imposed by the Defendant is too unreasonable.

3. Conclusion

Since the Defendants’ appeal is groundless, all appeals are dismissed in accordance with Article 364(4) of the Criminal Procedure Act.

Judges Lee Jong-chul (Presiding Judge)