(영문) 서울고등법원 2006.3.7.선고 2005노2779 판결

A. As to the mistake of facts or misapprehension of legal principles (1) on January 7, 2005, as to the violation of the Election of Public Officials and the Election Illegal Prevention Act

The Defendant paid the food of the members of the Steering Committee as ex officio members of the Residents' Self-Governing Center in lieu of paying the membership fees, which is merely an act of paying membership fees and does not constitute an act of contribution prohibited by election-related Acts and subordinate statutes, but the lower court found the Defendant guilty by misunderstanding the facts, and found the Defendant guilty. (2) Although the Defendant’s act of providing food to the members of the Saemaul Women’s Association who found at the Defendant’s home on January 18, 2005 as a result of violation of the Election of Public Officials Act and the Prevention of Election Illegal Act, is not contrary to the social rules, and thus, the illegality of the act of providing food to the members of the Saemaul Women’s Association, the lower

B. Unreasonable sentencing

The punishment sentenced by the court below against the defendant (the fine of one million won) is too unreasonable.

2. Determination on the grounds for appeal

A. As to the assertion of mistake of facts or misapprehension of legal principles (1) as to the violation of the Election of Public Officials Act and the Prevention of Election Illegal Act dated January 7, 2005

Comprehensively taking account of the evidence duly examined and adopted by the court below and the court below, the defendant on June 13, 2002.

On January 6, 2005, the defendant, who was elected as a member of the Seoul Metropolitan Council and is an ex officio member of the Steering Committee of the Odong Residents' Self-Governing Center, and the defendant told non-indicted 1, the chairperson of the above Steering Committee, as the chairperson of the above Steering Committee, to participate in the scheduled monthly meeting and to hold a ceremony for occupation, accordingly.

Nonindicted 1 announced that the members attending the above monthly meeting held at the Dong office following the following day will pay the defendant with an occupation-type ceremony. After that, it can be recognized that the defendant placed an food order with 14 members of another steering committee in the nearby restaurant with an food order of 262,00 won, such as rewinging and saling, etc., and then paid the food price by credit card. According to the above facts of recognition, according to the above facts of recognition, it can be recognized that the defendant provided food to the members of the local council who are members of the local council and are in the constituency concerned with the food contribution act.

The defendant asserts that he paid the above 490,000 won (x 70,000 won x 70,000 won) by attending the above Steering Committee seven times, and stated that he paid the above galle for the first instance trial, and that Non-Indicted 2 also the witness of the court below and Non-Indicted 2 stated that he paid the galle for the first instance trial as membership fees, but he stated that he paid the galle for the first instance trial. However, the following circumstances acknowledged by the evidence mentioned above are as follows:

① Most of the members present except for non-indicted 2 did not speak that the above defendant paid the above membership fee, and the defendant was aware that he bought the above fact. ② The executive secretary of the above steering committee did not pay the membership fee to the defendant or received the receipt, and the defendant prepared the receipt of the membership fee (the total settlement of accounts of the residents' autonomous committee and the investigation record No. 152) between July 2004 and February 2005 and prepared the above 00 statement that the defendant delivered the above 200 won to the above non-indicted 3, and it is difficult to say that the defendant delivered the above 00 won to the above non-indicted 3 and the above 00 won (the above 00 won statement that the defendant delivered the above 200 won to the non-indicted 3, which is the non-indicted 100, which is the non-indicted 200, which is the non-indicted 200, which is in conformity with the above 00,000 won.

Therefore, the defendant's above assertion is without merit.

(2) On January 18, 2005, as to the violation of the Election of Public Officials and the Prevention of Election Illegal Act

Article 113 of the former Public Official Election Act (amended by Act No. 7681, Aug. 4, 2005; hereinafter the same applies) prohibits a person who has certain qualifications, including members of the local council, and his/her spouse, from engaging in any act of donation regardless of whether it pertains to the relevant election, by comprehensively prescribing the types of the act of donation subject to punishment under Article 112(1) of the same Act, and then only list the cases where it is not deemed a formal act or an act of donation on duty under Article 112(2) of the same Act.

In light of the above legal method, even if the act of offering money or other valuables constitutes an act of courtesy or official duty by the National Election Commission Regulations and the relevant committee's decision, if it falls under the act enumerated in Article 257 (2) of the same Act, the act of offering money or other valuables does not meet the constituent elements of Article 257 (1) 1 of the same Act which punishs a violation of the prohibition of contribution act by a candidate, etc., and even if the act of donation by a candidate, etc. falls under the act of courtesy or official duty prescribed in Article 112 (2) of the same Act, if it can be seen that it is within the scope of social order which has been naturally created as a kind of ordinary living form, it can be said that there is a case where the illegality is discovered because it does not violate social rules, but it is necessary to consider the rejection of illegality for such reason (Supreme Court Decisions 203Do1697 Decided August 22, 2003; 209Do1699).

5. 11. see, e.g., Supreme Court Decision 99Do499, Mar. 11, 199

Comprehensively taking account of the evidence duly examined and adopted at the court below, the defendant 12 members of the Saemaul Women's Association, including the chairperson, non-indicted 4, 2005. The defendant 12 members of the Saemaul Women's Association, including the chairperson non-indicted 4, and the defendant 12 members of the Saemaul Women's Association opened with their father's house located in the Gyeonggi-si, and provided about about 44,750 won to them with meals, such as bottled, bottled, Japan, etc., and divided the council council's parliamentary report including the contents of his parliamentary activities, ○○ newspaper, etc.

Therefore, the defendant's above assertion is without merit.

B. Determination on the assertion of unfair sentencing

The Defendant committed the instant crime by providing foods to the members of a small-scale organization such as a public organization or a friendship group, which is prohibited by the election-related Acts and subordinate statutes. Although the crime was not an imminent election, the Defendant’s crime was not committed at all at all, but a political statement including election was made during the meeting, and the value of the foods provided is at least three million won, etc., shall be considered as favorable to the Defendant. However, the Defendant has experience in holding several elections as a member of the three-party Gu Council, and the Defendant had been sentenced to a fine of KRW 80,000 as a result of a crime similar to the instant crime in relation to the simultaneous local election in 202, and was well aware of the relevant Acts and subordinate statutes related to the instant crime. However, considering the above circumstances, considering the sentencing conditions under Article 51 of the Criminal Act as stated in the argument of the instant case, it is not reasonable to recognize the Defendant’s punishment, and thus, there is no reason to believe unfair sentencing.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act and it is so decided as per Disposition (Provided, That Article 7 of the Addenda to the Public Official Election Act, which was enforced on August 4, 2005, provides that the previous Act shall govern the application of the penal provisions to the acts before the enforcement of the Public Official Election Act. Thus, despite the application of Articles 257 (1) 1 and 113 (1) of the former Public Official Election Act to each of the criminal facts of this case, although the court below erred by applying Articles 257 (1) 1 and 113 (1) of the current Public Official Election Act to each of the criminal facts of this case, although the court below erred by applying Articles 257 (1) 1 and 113 (1) of the current Public Official Election Act, the elements and statutory punishment of each of the above Acts