(Chuncheon) Violation of the Public Official Election Act 2019No14

A

Both parties

Madio (prosecution, public trial)

Law Firm Sovik

Attorney Yellow-gu et al., Counsel for the plaintiff-appellant

Chuncheon District Court Decision 2018Gohap50 Decided May 30, 2019

August 28, 2019

The guilty part of the judgment of the court below is reversed.

The sentence of sentence against the defendant shall be suspended.

The prosecutor's appeal on the acquittal portion of the judgment below is dismissed.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts and misunderstanding of legal principles

A) Part of the violation of the Public Official Election Act due to advance election campaigns

(1) The lower court determined that the crime of violation of the Public Official Election Act due to the promotion of the achievements of a candidate and the crime of violation of the Public Official Election Act due to prior election were in accord with the law that only one of the two crimes can be established with respect to one act. However, the lower court erred by misapprehending the legal doctrine on the number of crimes committed on a mutually competitive basis.

(2) As a matter of principle, Article 59 of the Public Official Election Act and Article 254(2) of the Public Official Election Act, which punishs a person who violates such provision, violates the Constitution because it infringes on the freedom of election campaign in violation of the excessive prohibition principle, the lower court convicted him of this part of the crime by applying Article 254(2) of the Public Official Election

(3) The Defendant received the beginning of the instant group, which is a private meal group of the military citizens, and explained the status of the military affairs of the C group as the head of the Gun within the scope of legitimate political activities that may be held courtesy, and explained the policies already announced by C group and policies already completed by C group, which did not lead the instant group, and did not publish a new pledge or appeal for support for election purposes. Accordingly, the Defendant’s act does not constitute an election campaign, but did not constitute an election campaign, and did not intentionally intended to engage in an election campaign to the Defendant prior to the election campaign period. Nevertheless, the lower court convicted the Defendant of this part of the facts charged, and erred by misapprehending the legal doctrine on election campaign.

B) The part of the violation of the Public Official Election Act due to promoting the achievements of those who intend to be candidates

(1) The lower court determined that the crime of violation of the Public Official Election Act due to publicity of the achievements of the prospective candidates and the crime of violation of the Public Official Election Act due to prior election were in accord with the law that only one of the two crimes can be established in relation to one act. However, the lower court erred by misapprehending the legal doctrine on the number of crimes committed on a mutually competitive basis.

(2) Although the "public official" under Article 86 (1) 1 of the Public Official Election Act prohibiting a public official from promoting the achievements of a candidate or a person who wishes to be a candidate should be interpreted as not including the head of a local government who is a candidate or intends to be a candidate, the court below interpreted that the head of a local government who is a candidate or intends to be a candidate also constitutes a public official under the above provision as a public official under the above provision. The court below erred by misapprehending

(3) If it is interpreted that the head of a local government who is or intends to be a candidate is included in the "public official" under Article 86 (1) 1 of the Public Official Election Act, the above provision infringes on the freedom of expression and the freedom of election campaign of the head of the local government, thereby violating the Constitution, the lower court convicted the Defendant of this part of the crime by applying

(4) The Defendant is merely aware of the status of activities and future activities plans of the C group in the process of responding to the residents’ questions about the status of military affairs as the head of the Gun, and it is difficult to deem that the residents did not have made a statement about the Defendant’s specific contributions and contributions, and that the details of the Defendant’s remarks were the Defendant’s individual achievements. Therefore, the Defendant’s act does not constitute an act of promoting his/her own achievements, but did not intend to publicize his/her own achievements. Nevertheless, the lower court found the Defendant guilty of this part of the facts charged, and did not err by misapprehending the legal doctrine on the promotion of the Defendant’s achievements.

(5) The Defendant’s act constitutes a justifiable act that does not violate the Criminal Act’s act as prescribed in Article 20 of the Criminal Act or other social norms. Nevertheless, the lower court convicted the Defendant of this part of the criminal facts, thereby misunderstanding the facts, and misapprehending the legal doctrine on the justifiable act.

2) Unreasonable sentencing

The punishment of the lower court (a fine of 700,000 won) is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts and misapprehension of legal principles (not guilty part)

Of the facts charged in the instant case, the lower court acquitted the Defendant of this part of the facts charged on the violation of the Public Official Election Act, as to the Defendant’s act of making a contribution by supporting the C-Gun budget at the workshop held by the R C-Gun Branch (hereinafter “the workshop in this case”), on the ground that the Defendant’s act was merely an act executed by the head of a local government to handle the affairs of a local government, but cannot be deemed an act of making a contribution by an individual of the Defendant. However, on the following grounds, the Defendant’s act constitutes a contribution act, and the Defendant’s intent is also recognized, and there is no reason to deny illegality, the lower

(1) If a budget execution is made by the head of a local government to conduct the affairs of the local government in compliance with the definitions of contributions under Article 112 (1) of the Public Official Election Act, such acts shall be limited to contributions unless they fall under the acts not deemed contributions under paragraph (2) of the same

② The Defendant’s act of budgetary support for the workshop of this case is not considered as a contribution act under Article 112(1) of the Public Official Election Act, which provides money to the electorates, in compliance with the definition of contribution act under Article 112(1) of the Public Official Election Act, and does not constitute an act of offering money under Article 112(2)4(a) of the Public Official Election Act or an act of offering money under Article 112(2) of the same Act,

③ Article 112(4)1 of the Public Official Election Act provides that even if a local government acts on official duties under Article 112(2)4 of the Public Official Election Act, if the subject, method, scope, timing, etc. of the former Public Official Election Act is expanded without the enactment or amendment of statutes or municipal ordinances, it shall be deemed that the head of the relevant local government is presumed to have made an act of contribution. However, in the event of the RCR branch before, there was no case where C has provided a large amount of money up to 18.6 million won as in this case.

④ The circumstance that the C-Council passed a resolution to the effect that it agreed without formal problems regarding the budgetary support for the workshop of this case does not affect the establishment of the crime.

⑤ As long as the budget support for the workshop of this case constitutes a contribution act, whether it is related to the election does not affect the establishment of the crime, and the relationship with the election is sufficiently recognized.

6) The lower court determined that there is insufficient evidence to acknowledge that the Defendant ordered the public officials in charge of the workshop of this case to provide the budget support for the workshop of this case. However, since the Defendant accepted the request of the RCR branch and ordered the public officials in charge to provide the budget support for the workshop of this case, the Defendant provided budgetary support differently from the existing one.

7. The final decision-making authority on the military budget support is the head of a Gun, and even if the participants of the workshop in this case participated in personnel affairs other than the defendant before the start, the participants cannot be considered as the act of those other than the defendant.

8. In comparison with the case of support by other local governments, whether the budget provided at the workshop of this case particularly excessive or exceptional does not affect the establishment of a contribution act. It was not confirmed whether the case of support by other local governments incurred by the defendant is related to the events for entertainment, which are similar to the case in this case, or whether the case was based on statutes or municipal ordinances.

9. In light of the fact that the defendant received a request for budgetary support from the chairperson of the RCR branch, directly approved the plan for budgetary support, and that the participant was able to engage in personnel affairs directly, the defendant's intention on the contribution act is recognized.

(10) Considering the fact that the defendant ordered the budget support, that the budget support was provided on a large scale, that the shop of this case is merely a show event in which the main purpose is tourist, the act of the defendant does not constitute a justifiable act that is excluded from illegality.

2) Unreasonable sentencing

The sentence of the court below is too unhued and unfair.

2. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

A. As to the assertion of misapprehension of the legal principle that a crime of violating the Public Official Election Act due to prior election campaign and a crime of violating the Public Official Election Act due to publicity of the achievements of those who want to be a candidate is a

Trade concurrence refers to a case where a single act actually satisfies several constituent elements, and the legal concurrence refers to a case where a single act appears to meet the constituent elements of several crimes in appearance, or practically constitutes one crime. Whether a single crime or several crimes are actually established shall be determined by examining the constituent elements and the legal interests protected by the law (see, e.g., Supreme Court Decisions 84Do782, Jun. 26, 1984; 2018Do14361, Feb. 14, 2019).

In comparison with Articles 255(1)1 and 86(1)1 of the Public Official Election Act prohibiting a public official, etc. from publicizing his or her achievements to a candidate or a candidate by means other than those prescribed by the Public Official Election Act prior to the election campaign period and Article 254(2) of the Public Official Election Act prohibiting election campaigns by means other than those prescribed by the public official election Act, one of the elements of other crimes is not included in the elements of other crimes. On the other hand, public officials’ promotion of his or her achievements at the same time constitute one election campaign in which the intent of promoting the election of a specific candidate who wishes to become a candidate is objectively recognized, and one of the acts meets all the elements of each crime is difficult to prevent unfair competition among the factors of a specific candidate or a candidate who bears political neutrality obligations, and thus, there is no difference between the two acts to promote his or her achievements and the two acts to prevent unfair competition among the factors of an election campaign in accordance with Article 255(1)10 and Article 86(1)1 of the Public Official Election Act.

Therefore, this part of the defendant's argument is without merit.

B. Regarding other misconception of facts and misapprehension of legal principles on the violation of the Public Official Election Act due to prior election campaign

1) As to the assertion that Articles 59 and 254(2) of the Public Official Election Act violate the Constitution

Article 254 (2) of the Public Official Election Act provides that "any person who conducts an election campaign by means of using propaganda equipment or various printed materials, broadcasting, newspapers, news communications, magazines, other publications, neighborhood meetings at a debate meeting in the campaign meeting, debate meeting, debate meeting, meeting of the native folks meeting in the campaign views, other meetings, information and communications, establishment of an election campaign organization or private organization, door-to-door visit, and other methods, except as otherwise provided for in this Act, shall be punished by imprisonment for not more than two years or by a fine not exceeding four million won," and Article 59 of the same Act provides that "election campaign may be conducted only from the beginning date of the election campaign to the day before the election day: Provided, That this shall not apply to any of the following cases, where a preliminary candidate, etc. conducts an election campaign, and subparagraph 2 of Article 59 of the same Act provides that where a preliminary candidate, etc. transmits text messages by means of an election campaign, Article 59 (3) of the same Act may also be sent before the election campaign period is commenced on the Internet homepage or its bulletin page, video page, or video page, etc.

Based on the contents of the above provisions, in cases where an election campaign is prohibited prior to the election campaign period and a person who commits a violation of the provisions of Articles 59 and 254(2) of the Public Official Election Act, the excessive competition among the candidates becomes difficult to administer the election and prevent the occurrence of unlawful acts. Furthermore, the prolonged competition among the candidates may bring about a lot of social and economic losses due to excessive expenses and efforts, as well as unfair economic differences among the candidates, and may bring about a result of reducing the opportunity of candidates for young and friendly new staff who are unable to prepare enormous election expenses. Restriction on the period of election campaigns is also necessary and reasonable in light of the legislative purpose of restriction, contents of restriction, the attitude and practical necessity of elections in Korea. As seen above, the methods of election campaigns, including election campaigns by preliminary candidates, text messages or election campaigns using the Internet, etc., which are not subject to restriction on the election campaign period, and the excessive statutory penalty under Article 254(2) of the Public Official Election Act cannot be deemed to be in violation of Article 251(2)1 of the Public Official Election Act.

Therefore, this part of the defendant's argument is without merit.

2) As to the assertion that the defendant's act does not constitute an election campaign and did not have an intention to conduct an election campaign against the defendant

A) Summary of this part of the facts charged

The Defendant was elected as C/Gun in the 6th local election held on June 4, 2014, and was registered as C/Gun candidate for the 7th local election on April 23, 2018, and was elected as C/Gun on June 13, 2018.

No person shall conduct an election campaign by means of propaganda facilities or tools, various printed materials, broadcasting, newspapers, news communications, magazines, other publications, campaign meetings, debate meetings, debate meetings, native folks meetings, alumni meetings, neighbors' meetings, other assemblies, information and communications, the establishment of an election campaign organization or private organization, door-to-door visits or other methods prior to the election campaign period.

Nevertheless, at around March 30, 2018, the Defendant provided meals with nine electorates, such as B, within the E-cafeteria located in Gangwon-do D, and performed 24.1 billion won out of the amount of 50 billion won from F Gun Gun Gun Gun Gun 50 billion won." "To increase the types of fish installed by enhancing and improving the Hem Gun Do in the future", "to build a civil park at the seat of the C-Gun Agricultural Machinery Repair Center", "to install a civil park at the seat of the C-Gun Agricultural Machinery Repair Center", "to build a second floor parking facility at the seat near the customary market", "to newly construct exhibition and sales places, shelters, film theaters, etc. in the vicinity of the customary market," etc., and to implement the Defendant's performance and project during the period of his/her service.

Accordingly, the Defendant carried out an election campaign prior to the election campaign period.

B) The judgment of the court below

Comprehensively taking account of the following circumstances acknowledged by the evidence duly admitted and examined by the lower court, the Defendant’s act of speaking as stated in the facts charged at a meal space where B, etc. attended around March 30, 2018, constitutes an election campaign inasmuch as it was committed for the purpose of his election and constituted an election campaign inasmuch as it was objectively recognizable from a general elector’s point of view, and the Defendant also was aware of such circumstances, and thus, the Defendant’s intentional act is also recognized.

① Since the election of the head of a local government is set on the election day pursuant to Article 34(1)3 of the Public Official Election Act, anyone may objectively recognize and specify the election day. The meeting of this case consists of three months from the election day, and had close close close time to the election day, and the Defendant registered as a C/Gun preliminary candidate on April 23, 2018, which was 25 days after the election day. In light of the point of time of the meeting of this case, Defendant’s career, and post-election, etc., the Defendant at the time of the meeting of this case ought to be deemed to have objectively been perceived as a person who has the intention to run for C/Gun election from the perspective of electors.

② There is no fact that the Defendant directly complained of support from the Defendant at the instant meeting. However, considering the language, form, etc. of expression, the Defendant’s remarks do not merely include the content of objectively explaining the current status of the military administration, but rather include the comparison of the former head of the Gun and the Defendant, the contents of promoting the Defendant’s achievements, or the projects that the Defendant is scheduled to promote by carrying out as the head of the Gun. Even though the attending the instant meeting asked the Defendant about the current status of the military administration, if the Defendant did not neglect to give objective explanation about the military administration, but did not go through the Defendant’s publicity or mentioning the commitment, it is difficult to regard the Defendant’s remarks as a passive act to respond to the question of the participants of the instant meeting. Furthermore, the Defendant did not have any private dialogue with the participants of the instant meeting, and the Defendant attempted to publicize or refer to the Defendant’s achievements as stated in the facts charged.

③ Of the participants of the instant conference, the remainder except I. B did not have any personal friendship with the Defendant of ordinary ties, and I and B did not inform the rest of the participants of the fact that they had been the Defendant at the instant conference. Meanwhile, while the Defendant was in office as C/Gun, there were many cases where he and the Gun share meals with the Defendant.

④ At the time, the participants of the instant meeting knew or predicted that the Defendant would come out of the following election. In fact, some participants knew that the Defendant would come out of the meeting of this case, and the Defendant was willing to have been present at the meeting of this case, or had experienced inconvenience.

C) The judgment of this Court

The term “election campaign” refers to an act that can be objectively recognized by the intention of promoting the election or defeat of a specific candidate in a specific election. The determination of whether an act constitutes an act ought to be objectively made on the basis of an act indicated outside, rather than an internal intent of the person who performs the act. Therefore, even though an act is not recognized as an act of realizing the intent of such purpose in view of objective under the circumstances at the time of the act, it cannot be deemed an election campaign with a subjective mind, or an act is not simply an act affecting the election, or an act is necessary or favorable for promoting the election or defeat in the election. Furthermore, from the perspective of a State agency or a legal expert related to an election, it should be determined based on the specific situation at the time of the act, in particular, from the perspective of an ordinary person or an elector, rather than on the basis of the specific situation at the time of the act. Therefore, it should be examined whether an elector who experienced the act at issue,

The aforementioned intent of the en banc Decision ought to be determined by comprehensively observing the following: (a) not only the express method by which the elector askss for support for a specific act while disclosing his/her intent to close to an election; (b) but also the extent to which the elector’s intent of seeking election or defeat in the election can be easily inferred from a specific election from the standpoint of the elector in light of the objective circumstances at the time of the election. To deem that there was an intention of the above purpose, the mere fact that the relationship with the election can be inferred or that the elector was motiveed for matters regarding the election is insufficient; and (c) the fact that the elector was clearly aware of the act of promoting the success in a specific election is not only the name of the act, but also the form of the act, i.e., the time and place of the act, etc.; (d) the public official election law regulates a specific act at intervals of time with the election day; (e) in light of the fact that the act at issue can be perceived differently from the one’s point of view of the election from the same election (see, 20).

In light of the following circumstances acknowledged by the lower court and the evidence duly adopted and examined by this court, it is difficult to view the Defendant’s act as an election campaign.

① As stated by the lower court, the instant meeting was held at the time of not more than three months after the election day, and the Defendant was registered as a C/Gun preliminary candidate on April 23, 2018, which was 25 days after the election day. In light of the point at which the instant meeting was held, Defendant’s career and post-election, etc., it is true that at the time of the instant meeting, the Defendant was objectively perceived as a person with the intention to run for the C/Gun election from an elector’s perspective.

② However, the Defendant, at the place of the instant meeting, arrived at the meeting, and took a meal by participating in personnel affairs, and made a statement on this part of the facts charged, and there is no evidence to prove that the Defendant complained of support to himself or mentioned about the election. The instant meeting is only a meal gathering of the Gun residents who took a part in a usual relationship with others.

③ The Defendant stated that, until the investigation agency, the lower court, and the lower court, the Defendant made the same remarks as indicated in this part of the facts charged, given that the attending party asked questions about the military administration of the head of the Gun, he only gave answers, and that the attending party’s statement is consistent with this. Specifically, the following is examined.

At the time of the police investigation, I stated that "I would like to ask all the participants to "C," "I would like to see how the present state of the Crat." "I would like to see the present situation of the Crat." "I would like to make sure that I would like to make it clear that I would like to create a parking lot because I would like to make it clear that I would like to make Irat within the market and to build a new building." And I would like to make Iratize that I would like to make Irat if I would like to respond to it, I would like to make it clear that I would like to make Iratize the parking lot because I would like to make Iratize the parking lot because I would like to use Iratth to make Iratize the parking lot because I would like to make Iratth to know Iratize it."

At the time of the investigation of the police, the Republic of Korea stated that "the defendant, who was at the time of the investigation of the police, stated that "the defendant was scheduled to preserve the species by expanding the installation of the species to H". At the time of the investigation of the prosecutor's office, he stated that "the P was at the time of the investigation, because there was no intention to do so in the upper part of the H, and that he was at the bottom of the defendant," "the defect that the P was at the time of the investigation, and that the defendant was at the bottom."

B. At the time of the question and answer with the staff of the election commission, M refers to the question of whether the head of the Gun was present at the time of the question and answer with the staff of the election commission, “I reply to the fact that the residents of the Gu requested to change most of the G senior citizens center, recommended to do so, and secured the site of the senior citizens center.” The above speech of M is interpreted to the purport that, most of the participants of the meeting of this case are G residents, and the defendant respondeded to the purport that he secured the site of the senior citizens center in C military.

㉣ J은 원심 법정에서 "어떤 분이 피고인에게 나오셨으니까 지방발전에 대해서 간단히 얘기해 주십사 하는 말을 들은 기억이 난다."라고 진술하였고, 변호인의 "I에 따르면, 피고인이 누가 물어보지도 않았는데 군정현황 이야기를 갑자기 하게 된 것이 아니라 참석자들이 'C 현황이 어떻습니까?'라는 등의 질문을 하여 이에 대한 대답을 하는 과정에서 피고인이 H 어도 설치 등 군정 사업에 대한 이야기를 한 것이라고 하는데, 맞지요."라는 질문에 "예."라고 진술하였다.

In addition to the subjects mentioned above, it is difficult to find out only the evidence that the subjects mentioned in this part of the facts charged were first taken out. However, there is no evidence to see that other people did not unilaterally talk about other subjects, and it seems that there is a situation where the defendant could talk about other subjects in a comprehensive response to the questions that the defendant asks for an explanation to the military administration.

④ The content of the Defendant’s statement was merely about the performance of the C group or the projects to be completed in the future, and was not about the projects scheduled to be promoted in the future. The performance of the obligation of the C group was already conducted, and it was a project that has been promoted in the past, such as new construction of senior citizens’ hall, H maintenance, citizen park creation, building of a conventional market parking lot in the C group, building of agricultural products exhibition and sales place, rest place, and new film theaters. Therefore, it is difficult to view that the Defendant mentioned a new pledge in addition to mentioning the projects to be completed in the future through the remarks at the instant meeting.

⑤ The Defendant appears to have little private dialogues with the participants at the instant meeting, and see to have been able to talk about the military administration as indicated in the holding of most hours. However, if the Defendant talks with the participants who do not have any private friendly relationship other than ordinary I and B, it is natural that the Defendant would naturally talk about the military administration, and it is reasonable to view that the Gun as the participants participated in the instant meeting would naturally be able to ask questions about the military administration.

6) Examining the response of the participants who attended the meeting of this case and speak as stated in this part of the facts charged, it is true that some participants had expressed the intent or inconvenience of the defendant to attend the meeting of this case as stated in the court below. However, it is doubtful whether the defendant's act alone constitutes an objective circumstance to clearly recognize that the defendant's act was an act of promoting the election in a specific election, or an act of promoting the election in a specific election can be easily inferred from the elector's perspective in light of the objective circumstances at the time. Specifically, it is doubtful whether the defendant's act constitutes an act of promoting the election in a specific election.

At the time of the question and answer with the personnel of the Election Commission, the Commission I stated that "the head of the Gun would be present at all times." However, at the court of the court below, I stated that "the head of the Gun should not be asked for an election campaign." The court of the court below stated that "the head of the Gun should not be asked for an election campaign." and "the head of Pyeongtaek-gu has shown that "the head of the Gun will not listen to the opinions of the Gun on the Gun and try to solve this problem." Therefore, the military people did not have much burden that the head of the Gun would return the usual Gun to the eating place," "the head of the Gun was dissatt the head of the Gun at the same place as that of the usual Gun, and it appears that the head of the Gun would be like to divide various dialogues with the military people."

At the time of the question and answer with the personnel of the election commission, M Ma stated, “When G residents take meals, they were the president of the AR association and the head of the Gun several times. There was no question of harm and suggestions about the military administration in the same place. It is thought that it will not be a problem for the head of the election commission and the head of the Gun.”

B. At the time of the question and answer with the personnel of the election commission, the C.N. stated, “at the time of the election, it was thought that it does not fit for the head of the Gun or the election to bring the place to which the people take meals.” However, there is no evidence that N made a statement about how he think of the Defendant’s speech.

㉣ EJ 또한 선거관리위원회 직원과의 문답 당시 "선거 때가 되었는데 군수나 선거에 나올 사람들이 이렇게 식사하는 장소에 오는 것은 맞지 않는다고 생각했다."라고 진술하였고, 경찰 조사 당시 "군수가 온다는 사실을 알았으면 참석하지 않았을 것이다. 선거철이 돌아오고 하는데 군수가 참석하는 자리에 갔다가 괜히 오해를 받을 수 있기 때문이다.", "참석 이유와 누가 참석을 부탁하여 오게 되었는지는 모르지만 부적절하지 않았나 싶다."라고 진술하기는 하였으나, 원심 법정에서 "군수가 선거를 앞두고 식사자리에 참석하는 것이 맞지 않다고 생각했던 것은 집에 가서 생각한 것이다.", "군수가오는 줄 알았으면 참석하지 않았을 것이라고 생각한 것은 선거관리위원회에서 오라고 한 다음에 그런 생각이 난 것이다."라는 취지로 진술하였고, 변호인의 "피고인이 식사 자리에 온 것이 선거운동을 하는 것이라고 생각한 적이 있는가요."라는 질문에 "없었습니다."라고 진술하기도 하였다.

7) If the defendant's act constitutes an election campaign, the defendant should have avoided answer to the question of the participants even if he did not attend or participated in the meeting of this case. However, in the situation where B, a member of the same clan, who is a member of the same clan, who has a usual friendship, was invited to the neighboring people, he cannot be viewed as refusing to answer without any conditions even during the election period, on the ground that he did not reach the election for the long time and did not have a meeting of the people who want to know well, and as long as he attended the meeting, it is difficult to avoid answer on the ground that he could be subject to an advance election campaign against questions about the military administration of the military as the head of the Gun.

Therefore, the defendant's assertion of mistake and misapprehension of legal principles is justified.

C. Regarding other misconception of facts and misapprehension of legal principles as to the violation portion of the Public Official Election Act due to promotion of the achievements of those who intend to be a candidate

1) As to the assertion that the "public official" under Article 86 (1) 1 of the Public Official Election Act does not include the head of the local government who wishes to be a candidate.

Article 86 (1) 1 of the Public Official Election Act provides that a public official shall not promote the achievements of a specific political party or candidate (including a person who intends to become a candidate) to his/her employees or electorates, regardless of the pretext of education or whatever, and the public official among the public officials is excluded from the National Assembly members and their assistants, secretary, secretary, secretary, and local council members.

A public official under Article 86 (1) of the Public Official Election Act falls under the category of a State public official under Article 2 of the State Public Officials Act and a local public official under Article 2 of the Local Public Officials Act. Meanwhile, Article 60 (1) 4 of the Public Official Election Act provides that a public official (excluding a public official in political service other than the National Assembly members and local council members) who is eligible to become a member of a political party under the proviso to Article 22 (1) 1 of the Political Parties Act may engage in an election campaign. The National Assembly members, local council members, assistant, secretary, secretary, secretary, secretary, etc. of the National Assembly may join a political party as a public official in political service, but the head of a local government who takes office by election may join a political party as a public official in political service, but may not engage in an election campaign. As such, although a National Assembly member, his assistant, secretary, secretary, and local council member who are allowed to engage in an election campaign, the head of a local government prohibited from election campaign does not fall under the objects of application of the above Article

In addition, Article 86(1)1 of the Public Official Election Act focuses on prohibiting a person in a public position, such as a public official, from engaging in an act that may influence an election, and its subject is "a person who is in a public position, such as a public official" (see, e.g., Supreme Court Decision 2010Do17828, Apr. 28, 201). Therefore, even if the head of a local government, who is a public official under Article 2 of the Local Public Officials Act, promoted the achievement of the person who intends to be a candidate, it is reasonable to

Therefore, this part of the defendant's argument is without merit.

2) As to the assertion that if the head of a local government who wishes to be a candidate is included in the "public official" under Article 86 (1) 1 of the Public Official Election Act, it violates the Constitution by infringing on the freedom of expression and the freedom of election campaign.

It is reasonable to interpret that the "public official" under Article 86 (1) 1 of the Public Official Election Act includes the head of the local government who intends to be a candidate.

A National Assembly member and a local council member cannot be required to maintain political neutrality in an election due to their status as the representative of a political party and the subject of election campaign. On the other hand, the head of a local government is more likely to influence the process of free formation of the people in an election by using functions or influence and distort competition among political parties, and thus, political neutrality in an election than other public officials is particularly required. Therefore, Article 86(1) of the Public Official Election Act excludes National Assembly members and local council members from those prohibited from having an effect on election, and does not exclude the head of a local government from those prohibited from having an effect on election. As such, there are reasonable grounds for excluding the head of a local government from those prohibited from having an effect on election in an election, and it cannot be said that it infringes on the freedom of expression and freedom of election campaign of the head of a local government who wishes

Therefore, this part of the defendant's argument is without merit.

3) As to the assertion that the Defendant’s act does not constitute an act of promoting his achievements, and that the Defendant had no intention to publicize his achievements.

A) Summary of this part of the facts charged

The Defendant was elected as C/Gun in the 6th local election held on June 4, 2014, and was registered as C/Gun candidate for the 7th local election on April 23, 2018, and was elected as C/Gun on June 13, 2018.

A public official shall not engage in any act of promoting the achievements of persons who desire to be a beams or candidate, after attending the personnel under his control or the electorate, regardless of the pretext of education or whatever.

Nevertheless, at around March 30, 2018, the Defendant provided meals with nine electorates, such as B, within the E-cafeteria located in Gangwon-do D, and performed 24.1 billion won out of the amount of 50 billion won from F Gun Gun Gun Gun Gun 50 billion won." "To increase the types of fish installed by enhancing and improving the Hem Gun Do in the future", "to build a civil park at the seat of the C-Gun Agricultural Machinery Repair Center", "to install a civil park at the seat of the C-Gun Agricultural Machinery Repair Center", "to build a second floor parking facility at the seat near the customary market", "to newly construct exhibition and sales places, shelters, film theaters, etc. in the vicinity of the customary market," etc., and to implement the Defendant's performance and project during the period of his/her service.

As a result, the defendant promoted the achievements of the defendant who wanted to be a candidate of C/Gun.

B) The judgment of the court below

Comprehensively taking into account the following circumstances admitted by the evidence duly admitted and examined by the court below, the Defendant’s speech at the meeting of this case constitutes the Defendant’s occupational promotion as the head of the C/Gun.

① In the Defendant’s speech, the part that “a debt owed to the Gun chief of the Gun chief of the Gun chief of the Gun chief of the Gun chief of the Gun chief of the Gun chief of the Gun chief of the Gun chief of the Gun chief of the Gun chief of the Gun chief of the Gun chief of the Gun chief of the Gun

② In the Defendant’s speech, the part in which the Defendant prepared or scheduled to promote the project is listed is an expression emphasizing whether the Defendant is promoting the projects of the Category C with positiveness and intent, and the person hearing the statement does not merely mean that he/she becomes aware of the prospect for the pending projects in the Group C, but it is highly likely that the Defendant would have dealt with such outcome. Accordingly, it is sufficient to have the Defendant think that he/she is fit for the next head of the Gun as he/she well as for the next head of the Gun.

(3) A project that directly affects the lives of residents of C in the Republic of Korea, such as H Maintenance project and the establishment of citizen centers, parking lots, and film theaters, shall be limited to a project that can serve as a positive evaluation data for the defendant, regardless of whether such project is publicly known or not.

④ Article 86(5) of the Public Official Election Act provides that the head of a local government and public officials under his/her jurisdiction shall not publish, distribute, or broadcast campaign materials (including campaign materials using newspapers and broadcasting) to inform local government of the outcomes of the project plan and other activities of local governments, except in exceptional cases prescribed by relevant Acts and subordinate statutes, and shall not publish, distribute, or broadcast them more than once every quarter from 180 days before the election day of the head of the relevant local government to the election day. In determining the nature of the Defendant’s speech, the legislative purpose and purpose of the Public Official Election Act that strictly prohibits acts that affect the election of public officials, etc. to ensure the fairness of election should be considered.

C) The judgment of this Court

(1) Relevant legal principles and the subject of determination

Among the "act of promoting the achievements of a candidate or a candidate" under Article 86 (1) 1 of the Public Official Election Act, the term "business" refers to any social act that can serve as a positive evaluation data in an election (see Supreme Court Decision 97Do320, Apr. 25, 1997).

Meanwhile, according to the Constitution, the heads of local governments and the heads of local governments are stipulated as separate constitutional organizations. Local governments are juristic persons with legal personality separate from the heads of local governments. Article 86(1)1 of the Public Official Election Act provides that "act of promoting the achievements of specific political parties or candidates." On the other hand, Article 86(5) of the Public Official Election Act limits the number of times and period for publicizing the activities of local governments to prevent public relations activities of local governments from leading to the promotion of the achievements of the heads of local governments. In light of the language and text of Article 86(1)1 and (5) of the Public Official Election Act, the public relations activities of local governments need to be widely notified, the results of the promotion of the activities of local governments are conducted through various circumstances, including the efforts of all public officials of local governments, the unity of local residents, and the nation-wide conditions, etc., it is reasonable to view that the activities of local governments are directly public relations activities of candidates or those of local governments to the extent that they have contributed to the public relations activities of local governments.

Through the written opinion of May 10, 2019 at the lower court, the prosecutor specified that the part of the charges pertaining to the Defendant’s achievements in this part of the charges is “from F head of the Gun to pay KRW 24.1 billion out of KRW 50 billion,” and “G senior citizens community center has been secured” (the trial record 659 pages). The remainder of the Defendant’s remaining part of the charges is “to increase the installation and operation of H fishing by improving and improving the H fishing will be increased.” “I will build a citizen park at the seat of C military Agricultural Machinery Repair Center”, “I will install a second floor parking facility at the seat of C military Agricultural Machinery Repair Center,” “I will establish a second floor parking facility at the seat of the customary market,” “I will build a new exhibition place, rest place, motion picture, etc. near the customary market,” and it is difficult to view the part of the Defendant’s statement that it constitutes an advance public relations of the Defendant’s projects, and thus it is difficult to deem that it constitutes an advance public relations hall of the Defendant’s.

(2) Whether the words “F head of F Gun caused 50 billion won to have been repaid KRW 24.1 billion out of the amount of KRW 50 billion” falls under the promotion of the Defendant’s achievements.

In full view of the following circumstances acknowledged by the lower court and the evidence duly admitted and examined by this court, the Defendant’s above remarks constitute the promotion of the Defendant’s achievements that the Defendant wishes to become the candidate.

① As the court below decided, the above speech is interpreted to the effect that the defendant, compared with the former head of the Gun, much more successful than the latter head of the Gun, rather than the objective explanation about the C-Gun's business.

② At the time of a question and answer with an employee of the Election Commission, I stated to the effect that “the Defendant was able to have paid the amount of KRW 50 billion due to the Gun’s Gun’s Gun’s Gun’s Gun’s Gun’s Gun’s Do and Do’s Gun’s Gun’s Gun’s Gun’s Gun’s Gun’s Gun’s Do,”

③ The Defendant’s above remarks are highly likely to recognize that the father body of the CJ was reduced compared to the time of the former Gun, and that the father body of the CJ was the Defendant’s individual achievements.

④ The Defendant stated in the court of the court below that “I have been repaid only to one of the members? I explained that I have explained the part.” The Defendant merely made the above remarks in the course of responding to questions, but did not publicize his achievements.

In light of the question as to who asked questions to the defendant, I classified the network P as at the time when the statement was made in the currency with the prosecution investigator and in the court below, J also made the network P at the time of the call with the prosecution investigator, M also made the statement that it was the network P at the time of the call with the prosecution investigator, and the defendant also made the statement that the network P was the same as the network P at the time of the call with the prosecution investigator. However, at the time of the question and answer with the personnel of the election commission, the network P did not make a statement that the defendant made a statement only about the fact that the defendant talked about the installation of cultural facilities, such as H fishingdo, fire fighting road, theater, etc., and the cultural facilities, such as theater, and the parking lot, and talked about the repayment of the C group's obligations. Accordingly, it cannot be concluded that the network P was a question, and it is not clear who is ultimately asked.

However, even if the Defendant took the above remarks in the course of responding to the question of who was asked by the group of members who participated in the meeting, it cannot be said that emphasizing the Defendant’s contribution and contribution to the participants as above does not constitute publicity of his achievements.

Therefore, this part of the defendant's argument is without merit.

(3) Whether the statement " has secured the site of the G Elderly Community Center" constitutes an publicity of the defendant's achievements.

In full view of the following circumstances acknowledged by the lower court and the evidence duly admitted and examined by this court, it is difficult to view that the Defendant’s above remarks constitute public relations of the Defendant’s achievement that the Defendant wishes to be the candidate.

① The above remarks are explaining the current status of the promotion of projects that have secured a site for the construction of a senior citizens’ hall in the C group, and do not mention the Defendant’s specific contributions or contributions. The statement made by any person among the participants of the instant meeting does not seem to have made a statement to the effect that the Defendant made a specific contribution or contribution in relation to securing the said site.

② From among the participants of the meeting of this case, M refers to those who stated that the above statement was made by the Defendant. At the time of the questioning with the staff of the election commission, M respondeded to the question that “the head of the Gun present at the meeting as to what the Gun would speak, I asked that mostG residents would change the G senior citizens center and that they secured the site of the senior citizens center.” The above statement of M is mostly the participants of the meeting of this case, and it was suggested that the defendant would change one of the G senior citizens center, and that the defendant secured the site of the senior citizens center. It can be interpreted to the effect that the defendant responded to the purport that the defendant secured the site of the senior citizens center. Accordingly, it is difficult to view that the defendant secured the site in C group upon receiving a request from the residents to change the senior citizens center.

③ Although the aforementioned remarks are likely to have a sense of appreciation against the Defendant who responded to the purport that they would be made at their request in the future, it is a separate issue for the participants to recognize that they secured the site of the elderly hall as their individual achievements.

Therefore, this part of the defendant's argument is justified.

4) As to the argument that the defendant's act constitutes a justifiable act, and thus, illegality is excluded.

In light of the following circumstances acknowledged by the court below and the evidence duly adopted and examined by this court, i.e., the situation at the time of the defendant's act and the contents of the defendant's statement, etc., there is a possibility that people present at the defendant's act had an positive impression on the defendant's behavior and affected their reputation. There is a possibility that people present at the meeting would have disseminated the defendant's speech to the surrounding people. Article 86 (5) of the Public Official Election Act prohibits the act of issuing promotional materials informing the situation of the local government's activities from 180 days before the election day to the election day. In this part of the facts charged, the assembly of this case is at the time of not less than three months after the election day, and the statement "24.1 billion won out of the amount of 50 billion won out of the amount of public relations with the defendant who wishes to be a candidate among the facts charged constitutes a justifiable act as prescribed in Article 20 of the Criminal Act."

Therefore, this part of the defendant's argument is without merit.

3. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

A. Summary of this part of the facts charged

A National Assembly member, a local council member, the head of a local government, the representative of a political party, a candidate, or a candidate who intends to be a member of the National Assembly, a local council member, a representative of a political party, or a person who intends to be a candidate shall not make contributions to a person, institution, organization, or facility located outside

Nevertheless, around August 18, 2017, the Defendant received a request from S, the president of the branch office of the R C group, the R C group, to provide budget support to the above S for the extension of the workshop's capacity for senior citizens leaders, and then sent the official document to the C group as the title "request for the extension of the workshop's ability for senior citizens leaders". On August 25, 2017, the Defendant sent the official document to the C group, "request for military expense support following the opening of the work site for senior citizens' leaders of the C group," at the end of the Defendant's end, received it to the C group, and around August 31, 2017, sent the budget support of KRW 20 million for the C group's budget budget at the above work site to the C group, and around December 18, 2017, transferred it to the C group's total staff members, including the C group's 1,600,000 won.

B. The judgment of the court below

In full view of the following circumstances, it is reasonable to view the Defendant’s act of subsidization of the budget for the workshop of this case as an act of execution of the local government, not an individual’s act of donation, and the evidence submitted by the prosecutor alone is insufficient to recognize that the above act of subsidization was an act of donation by an individual of the Defendant. Therefore,

① A local government as a juristic person has a separate legal personality from the head of a local government, and the head of a local government as an administrative agency representing the affairs of the local government and at the same time as a potential candidate for the next election, has dual status as a private person. In full view of the purport of the Constitution and the Local Autonomy Act and the general legal principles that the principle of statutory reservation is mitigated in the performance administration, unlike in influence administrative actions, the ordinary budget execution activities of the head of a local government for the administration of affairs of the local government shall be considered as an act of an individual donation

② Although Article 86(1) of the Public Official Election Act regulates the prohibition of an act affecting the election by taking advantage of the position of the incumbent head of a local government, Article 86(2) of the same Act regulates the prohibition of an act by taking advantage of the position of the incumbent head of a local government, and Article 113(1) of the Public Official Election Act first regulates the check of the local council, secondly, corrective measures taken by the Do governor or the competent Minister to intervene in the election, and finally, corrective measures taken by the Do governor or the competent Minister are possible. In light of the fact that it is possible to take measures such as monitoring and check through a resident lawsuit, it is inevitable to correct such 's prior administration' as criminal punishment through Article 113(1) of the Public Official Election Act.

(3) Therefore, it is reasonable to deem that the head of a local government compiles a budget through an administrative procedure normally required to handle the affairs of a local government, and the budget execution is, in principle, an administrative agency representing the local government, and it does not constitute an act of donation by an individual of the local government. However, if there are exceptional circumstances to deem that the head of a local government has an effect on an election campaign or election by utilizing the local government’s budget by taking advantage of the budget items that do not undergo prior control of the local council with regard to the details of such use, such as reserve funds and special activity expenses, etc., in exceptional cases where the head of a local government implements an illegal or unjust budget execution beyond ordinary procedure, method and contents, such act may

(4) 이 사건의 경우 ㉠ 노인복지법, R 지원에 관한 법률, C군 노인복지 증진에 관한 조례의 내용을 급부행정의 법률유보 완화에 관한 일반 법리에 비추어 보면 이 사건 워크숍에 대한 예산 지원행위는 법적 근거를 갖추고 있고, ㉡ 이 사건 워크숍 관련 예산편성은 통상적으로 요구되는 행정절차를 정상적으로 거쳤고, C군의회의 의결이 이루어져 예산 편성의 투명성과 공정성도 충분히 확보되었으며, ㉢ 이 사건 워크숍 관련 추가경정예산 편성과 C군의회 의결이 이루어진 시기가 선거일로부터 약 9개월 전으로 선거와 시간적 간격이 커 선거와의 관련성을 인정하기도 어렵고, ㉣ 피고인이 이 사건워크숍 참석자들이 출발하기 전 차량에 탑승하여 인사를 한 사정만으로 참석자들이 이 사건 워크숍에 대한 예산 지원행위를 피고인 개인의 기부행위로 인식할 수 있는 상황이었다고 볼 수 없고, ㉤ 성격이 비슷한 견학 프로그램 등에 대한 다른 지방자치단체에서의 지원 사례에 비추어 이 사건 워크숍에 지원된 예산이 특별히 금액이 과도하거나 이례적이라고 보이지 않고, ㉥ 이 사건 워크숍에 강의 및 토론 일정이 포함되어 있었으나 나중에 토론 일정이 삭제되었고 강의 일정도 일부만 진행되었다는 사정만으로 이 사건 워크숍 관련 예산 편성이 피고인 개인의 기부행위가 된다고 볼 수 없으므로, 이 사건 워크숍에 대한 예산 지원행위는 피고인 개인의 기부행위가 아닌 지방자치단체의 예산집행행위로 봄이 타당하다.

C. The judgment of this Court

1) Determination as to the existence of objective constituent elements

A) Relevant statutes and ordinances

[공직선거법]제112조(기부행위의 정의 등)① 이 법에서 "기부행위"라 함은 당해 선거구안에 있는 자나 기관 · 단체 · 시설 및 선거구민의 모임이나 행사 또는 당해 선거구의 밖에 있더라도 그 선거구민과 연고가 있는 자나 기관·단체·시설에 대하여 금전·물품 기타 재산상 이익의 제공, 이익제공의 의사표시 또는 그 제공을 약속하는 행위를 말한다.② 제1항의 규정에 불구하고 다음 각 호의 어느 하나에 해당하는 행위는 기부행위로 보지 아니한다.4. 직무상의 행위가. 국가기관 또는 지방자치단체가 자체사업계획과 예산으로 행하는 법령에 의한 금품제공행위(지방자치단체가 표창 · 포상을 하는 경우 부상의 수여를 제외한다. 이하 나목에서 같다)나. 지방자치단체가 자체사업계획과 예산으로 대상 ·방법·범위 등을 구체적으로 정한 당해 지방자치단체의 조례에 의한 금품제공행위④ 제2항 제4호 각 목 중 지방자치단체의 직무상 행위는 법령·조례에 따라 표창 · 포상하는 경우를 제외하고는 해당 지방자치단체의 명의로 하여야 하며, 해당 지방자치단체의 장의 직명 또는 성명을 밝히거나 그가 하는 것으로 추정할 수 있는 방법으로 하는 행위는 기부행위로 본다. 이 경우 다음 각 호의 어느 하나에 해당하는 경우에는 "그가 하는 것으로 추정할 수 있는 방법"에 해당하는 것으로 본다.1. 종전의 대상·방법·범위·시기 등을 법령 또는 조례의 제정 또는 개정 없이 확대 변경하는 경우제113조(후보자 등의 기부행위제한)① 국회의원 · 지방의회의원 · 지방자치단체의 장·정당의 대표자· 후보자(후보자가 되고자 하는 자를 포함한다)와 그 배우자는 당해 선거구안에 있는 자나 기관·단체·시설 또는 당해 선거구의 밖에 있더라도 그 선거구민과 연고가 있는 자나 기관·단체 · 시설에 기부행위(결혼식에서의 주례행위를 포함한다)를 할 수 없다.[R 지원에 관한 법률]제2조(활동) R는 노인의 권익신장과 복지향상 및 사회봉사 촉진을 도모하기 위하여 다음 각 호의 활동을 수행한다.1. 노인의 권익신장 및 복지향상2. 노인 자원봉사활동의 증진3. 노인교실 및 경로당 관리·운용4. 노인 취업활동 및 노인 사회적 기업 지원5. 노인건강증진을 위한 생활체육 촉진6. 노인발전을 위한 조사연구 · 교육훈련 · 학술진흥· 홍보출판 · 국제교류 등의 업무7. 노인의 날 및 노인주간 행사 주관8. 국가 또는 지방자치단체가 위탁하는 노인에 관한 업무9. 그 밖에 R의 목적 달성에 필요하여 정관으로 정하는 사항제5조(비용의 보조 등)① 국가 또는 지방자치단체는 예산의 범위에서 R에 대하여 그 조직과 활동에 필요한 비용의 전부 또는 일부를 보조하거나 그 업무수행에 필요한 지원을 할 수 있다.[구 C군 노인복지 증진에 관한 조례(2019. 2. 26. 강원도 C군 조례 제2606호로 일부 개정되기 전의 것)]제4조(군정참여 및 활동지원)③ 군수는 지역봉사활동 및 사회참여 확대를 위해 노력하여야 하며, 다음 각 호의 사회참여 관련단체 및 시설에 보조금을 지원할 수 있다.1. 노인 지역 봉사활동 및 노인일자리 사업2. 노인대학 및 노인교실3. 경로식당 운영 및 식사배달4. 그 밖에 노인문화·여가프로그램을 실시하는 단체 및 기관 등[구 C군 민간인 실비보상에 관한 조례(2018. 12. 31. 강원도 C군 조례 제2578호로 전부 개정되기 전의 것]제1조(목적) 이 조례는 군정의 효율적인 운영을 위하여 행정업무, 주요시책, 각종 공모 등에 참여한 민간인에 대하여 여비 또는 수당의 지급(이하 “실비보상"이라 한다)에 필요한 사항을 규정함을 목적으로 한다.제3조(지급대상) 실비보상금 등의 지급대상 민간인은 다음 각 호와 같다.1. C군(이하 “군”이라 한다)에서 주관하는 각종 공모와 경진대회 등에 참가한 사람2. C군수(이하 “군수”이라 한다)로부터 위촉을 받아 군정활동에 참여하는 사람3. 군에서 주관하는 행사 등에 능동적으로 참여하는 자원봉사자 또는 봉사요원과 각종 교육.회의 행사 등에 참석하는 민간인에 대하여 군수가 필요하다고 인정하는 사람4. 산불예방활동을 지원한 사람5. 하절기 및 동절기 방학기간 중 행정업무보조에 참가한 아르바이트 대학생6. 농림 축.어업.소상공인 및 그 종사자로서 같은 업종의 새로운 지식습득을 위하여 국내외 다른 지역(이하 “다른 지역"이라 한다) 선진지 견학에 참여하는 사람7. 폐기물처리시설 장례식장 화장장 체육시설 등 「지방자치법」 제9조(지방자치단체의 사무)에 의한 공공시설 설치와 관련 선진사례 습득을 위하여 다른 지역의 우수시설 견학에 참여하는 사람8. 산업평화 정착에 기여한 모범 근로자로서 다른 지역 우수 노사 문화를 견학하기 위하여 참여하는 사람9. 모범 청소년으로서 해외연수에 참여하는 사람제4조(지급기준)① 제3조 제1호의 경우에는 예산의 범위 내에서 정해진 보상금(기념품을 포함한다) 등을 지급할 수 있다.② 제3조 제2호부터 제4호까지의 경우에는 예산의 범위 내에서 소요되는 실비를 지급할 수 있다.③ 제3조 제5호의 경우에는 최저임금단가를 준용하되 예산의 범위 내에서 지급할 수 있다.④ 제3조 제6호부터 제9호까지의 경우에는 「공무원여비규정」에 준하여 여비 등을 지급할 수 있다.

B) Whether the act of budgetary support for the workshop of this case constitutes an act on official duties under Article 112(2)4 of the Public Official Election Act

(1) Relevant legal principles

Article 113 of the Public Official Election Act prohibits the head of a local government from engaging in any act of donation, regardless of whether it is related to the election in question. Article 112(1) of the Public Official Election Act comprehensively provides for the types of contributions subject to punishment. Article 112(2) of the same Act provides that the act of offering money and valuables falling under Article 112(1) of the Public Official Election Act is limited to cases where the act of offering money and valuables is not considered as an act of donation related to the ordinary political party act, courtesy, relief, charity, or official act. In light of the regulatory method of the Public Official Election Act, if the act of offering money and valuables falling under Article 112(2) of the Public Official Election Act is enumerated as permissible as an ordinary act or official act by the National Election Commission Regulations and its decisions based on Article 112(2) of the same Act and Article 257(1)1 of the Act that punish the head of a local government in violation of the prohibition of donation in question. In addition, in order to provide money and valuables under Article 15(100).

(2) Whether Article 5(1) of the Act on R Assistance constitutes "Acts" under Article 112(2)4(a) of the Public Official Election Act

With respect to this part, the prosecutor asserts that the above RR provisions are abstract and generally defined, and that it does not constitute a law that directly supports the act of budget support for the workshop of this case.

However, unlike Article 112 (2) 4 (a) of the Public Official Election Act, Article 112 (2) 4 (b) of the same Act does not require a specific determination of the subject, method, and scope of the law, and criminal laws must be strictly interpreted. In addition, the above provision is sufficient to directly support the act of assistance, and it is not sufficient to say that the provision does not fall under the "Acts and subordinate statutes" under Article 112 (2) 4 (a) of the Public Official Election Act merely because it is abstract and general. Thus, in this case, Article 5 (1) of the RR Assistance Act provides that "the State or local governments may subsidize R with respect to all or part of the expenses necessary for its organization and activities or provide support necessary for its performance of its duties." Even though the provision is somewhat abstract and abstract, in light of the contents, purport, legislative purpose, etc. of the provision, it is reasonable to view it directly supporting the act of granting subsidies to the CRC branch.

(3) Whether Article 4(3) of the former Ordinance on the Promotion of Welfare of the Aged of the C Armed Forces and Article 3 and Article 4 of the former Ordinance on the Compensation for Actual Expenses for Civilians of the C Armed Forces fall under Article 112(2)4(b) of the Public Official Election Act

In relation to this part, the prosecutor asserts that the provisions of the former Ordinance on the Promotion of Welfare for the Aged of the CGun and the former Ordinance on the Compensation for Actual Expenses for Civilians of the CGun do not specifically define the subject, method, and scope of the provision of money and valuables, so the act of supporting the budget support for the workshop of this case does not fall under

The Ordinance on the Promotion of Welfare for the Aged of the Gu, and the Ordinance on the Compensation for Actual Expenses for Civilians of the C military under Article 112 (2) 4 (b) of the Public Official Election Act is considered to be the "Ordinance specifying the subject, method, and scope". The grounds therefor are as follows.

① A local government shall endeavor to promote the convenience and welfare of its residents. In particular, where a local government prepares and supports a budget for residents to conduct affairs concerning the promotion of the welfare of its residents, the head of the local government shall execute the budget as the administrative agency as the representative of the local government. However, since the head of the local government is an administrative agency representing the affairs of the local government and at the same time holds the dual status of the potential candidate for the next election, such budget execution activities may constitute an act of making contributions to an individual by the head of the local government, which is a potential candidate. In such a case, if the local government’s budget execution activities performed by the representative are deemed to be easy by the local government’s act of making contributions to the individual of the local government, such activities may reduce the performance of the local

② Article 3 subparag. 1 through 9 of the former Ordinance on the Compensation for Actual Expenses to Civilians in the C military lists the recipients of support under Article 3 subparag. 1 through 9 of the Act. Article 4(1) of the same Ordinance provides that "the methods and scope of support shall be subject to compensation (including souvenirs) determined within the scope of the budget in the case of Article 3 subparag. 1 of the same Act, "the actual cost required within the scope of the budget in the case of Article 3 subparag. 2 through 4 of the same Act," "the minimum wage rate shall apply within the scope of the budget in the case of Article 3 subparag. 5 of the same Act," and "the travel expenses, etc. in the case of Article 3 subparag. 6 through 9 of the Regulations on Travel Expenses of Public Officials" shall be considered to be relatively specific. Furthermore, even if the above scope is limited to "within the scope of the budget, the local government is controlled by the local council in compiling the budget, so it appears that the act of this case requires the local council to compile the budget and use of the work of this case.

③ Article 4(3) of the former Ordinance on the Promotion of Welfare for the Aged of the Aged referred to in Article 4(3) of the former Ordinance lists the subject of support as "regional volunteer activities for the aged, job-seeking projects for the aged, elderly universities and classes, senior citizens' classes, operation of restaurants, meal delivery, and other organizations and institutions that conduct culture and leisure programs for the aged," and it is determined that the subject and method of support are relatively specific. Furthermore, even though there is no provision on the scope of support, it is determined that the scope of subsidy is within the scope of the budget, as long as the subsidy is included in the budget bill of the local government, it is inevitable that the local council should be controlled in the course of compiling the budget, so there is no particular problem in achieving the purpose of prohibiting acts of contribution under the Public Official Election Act, i.e., prohibition of safe administration, and fair disbursement of the budget, as in the former Ordinance on Compensation for Actual Expenses for the Aged of the C military.

④ Under the principle of criminal law, the penal provisions cannot be interpreted disadvantageous to the defendant, and they should be strictly interpreted. Therefore, the penal provisions on acts that do not constitute elements of a crime should be interpreted favorably to the defendant.

(4) Whether the act of budgetary support for the workshop in this case constitutes an act under Article 5(1) of the R Support Act, Article 4(3) of the former Ordinance on the Promotion of Welfare for the Aged, or Article 3 and Article 4 of the former Ordinance on the Compensation for Actual Expenses for Civilians of C Armed Forces

Comprehensively taking into account the following circumstances acknowledged by the lower court and the evidence duly admitted and investigated by this court, it is determined that the act of budget support for the workshop of this case does not meet the requirements of Article 5(1) of the RR Act, Article 4(3) of the former Ordinance on the Promotion of Welfare for the Aged of the CGun, or Articles 3 and 4 of the former Ordinance on the Compensation for Actual Expenses for Civilians of C

① Article 5(1) of the R Support Act provides that "the State or a local government may fully or partially subsidize R for expenses incurred in its organization and activities within budgetary limits or provide support necessary for the performance of its duties." Article 2 of the same Act provides that "R shall perform the following activities in order to promote the enhancement of rights and interests, the improvement of welfare and the promotion of community service for older persons," and subparagraph 1 provides that "the enhancement of rights and interests and welfare for older persons," and subparagraph 6 provides that "the research and study, education and training, promotion of sciences, public relations, publication, international exchange, etc. for the development of older persons" as activities conducted by R:

In the workshop of this case, the participants sent most of the hours for entertainment, such as visiting a tourist destination and watching drinking performances, and the lectures are limited to one hour as scheduled by the participants, and the debate was omitted. The defendant seems to have decided on budgetary support under a certain forecast that the workshop of this case was implemented in the above manner. However, in fact, the part of the lecture in question constitutes "education and training for the development of the aged" under Article 2 subparagraph 6 of the above RR Support Act, and the part of the lecture in this case appears to have promoted the workshop of this case to promote friendship, unity, and morale with the chairperson of the senior citizen's center and the chairperson of the committee for senior citizens can contribute to the physical and mental activities of the senior citizen's center. In light of the fact that the defendant's activities under Article 2 subparagraph 1 of the above RR Act can be seen as a subordinate organization of the above RR's activities, and thus, it can be seen that the CR's activities under Article 2 subparagraph 1 of the above RR's activities can be held as a subordinate organization.

However, Article 5(1) of the R Support Act provides that a local government may provide R with all or part of the expenses incurred in its activities. This provision is interpreted to the effect that a local government may provide R with subsidies. However, the budget provided at the workshop of this case was organized and executed in the event room compensation (items No. 301-09). In the context of the budget item, the event room compensation is strictly distinguishable from the subsidy, and the R C branch has received a separate subsidy from C group. Thus, it is difficult to view that the act of subsidization of the budget for the workshop of this case does not constitute the act of offering money and valuables based on the above Act.

② Article 4(3)4 of the former Ordinance on Promotion of Welfare for the Aged of the Aged of the Republic of Korea stipulates that the head of the Gun may grant subsidies to the organizations, institutions, etc. that implement cultural and leisure programs for the aged. The CRC branch appears to fall under “organizations, institutions, etc. that implement cultural and leisure programs for the aged” in the jurisdiction of the aged. However, as seen earlier, it is difficult to view the budget provided in the workshop as being organized and executed as compensation for expenses for the event, not subsidies, and thus, it is difficult to regard it as an act of offering money or goods based on the above Ordinance.

③ Article 1 of the former Ordinance on the Compensation for Actual Expenses for Civilians in the Army provides that “The purpose of this Ordinance is to provide for matters necessary for the payment of travel expenses or allowances (hereinafter referred to as “actual expenses”) to civilians who participated in administrative affairs, major policies, various public announcements, etc. for the efficient operation of military justice.” The workshop in this case is an event of the KR branch, and it is clear that the person who participated in the workshop in this case does not constitute an administrative affairs, major policies, various public announcements, etc., and it is difficult to view that the person who participated in the workshop in this case constitutes a person eligible for support under each subparagraph of Article 3 of the above Ordinance. At the time of the instant case, U.S. court stated in the lower court’s court that “No citizen who participated in the workshop in this case is a civilian who participated in administrative affairs, major policies, various public announcements, etc. of the CE branch, nor did it compile the budget provided in this case’s workshop in consideration of the above Ordinance.”

C) Whether the Defendant can be held liable for the act of budgetary support for the workshop of this case as a constituent element of the act of contribution under the Public Official Election Act

As seen earlier, it is difficult to view the act of budgetary support for the workshop of this case as an act of offering money and goods based on the RR Support Act, the former CGun Ordinance on the Promotion of Welfare for Older Persons, or the former CGun Ordinance on the Compensation for Actual Expenses to Civilians of the CGun. In such a case, it is necessary to examine whether the defendant can be held responsible for the act of providing the budget support for the workshop of this case as an element subject of contribution under the

The following circumstances acknowledged by the evidence duly adopted and examined by the court below and the court below, namely, ① reply to S with the request for budget support from S with the President of the RCR branch who found the defendant himself in the workshop of this case, ② the title, date, time, place, number of persons, etc. to be stated in the official document requesting budgetary support was prepared and delivered to S with the public document requesting budgetary support; ② the defendant received a face-to-face report from U with the head of the elderly welfare division about the plan for securing the budget to be supported in the workshop of this case, and directly approved the plan for securing the budget. According to the above plan, the budget amount of KRW 20 million to be supported in the workshop of this case was included in the budget bill of this case as compensation for actual exercise expenses, and the budget was executed as compensation for actual exercise expenses, and the above budget was diverted to other items in the process of executing the budget, and it is reasonable to recognize that the defendant did not have engaged in the execution of the work of this case before the execution of the work of this case.

2) Judgment on the existence of a subjective constituent element

However, according to the following circumstances acknowledged by the lower court and the evidence duly adopted and examined by this court, it is difficult to view that the Defendant had a criminal intent to commit a contribution act prohibited under the Public Official Election Act.

① The workshop of this case is decided to hold at the RCR branch, and the defendant plans the workshop of this case from the beginning or actively recommended the RCR branch meetings to hold the workshop of this case. The defendant's response to the request from S of the RCR branch S to provide budget support to S in the workshop of this case, and the statement, date, time, place, number of persons, etc. to be stated in the official document requesting budgetary support are deemed to have been presented to S, but this is merely a part of the fact that the defendant plans the workshop of this case from the beginning or actively recommended the RCR branch meetings to hold the workshop of this case. It is difficult to view that the defendant plans the workshop of this case from the beginning.

② Although budgetary support for the workshop of this case was not provided by the method of granting subsidies, as seen earlier, the workshop of this case constitutes an activity for which a local government may subsidize expenses pursuant to the R Assistance Act, and constitutes an activity for which the head of a Gun may grant subsidies pursuant to the former Ordinance on the Promotion of Welfare for Older Persons. If the budget support for the workshop of this case was provided by the method of granting subsidies pursuant to the R Assistance Act, it appears that the act of offering money and valuables under the Act on the Promotion of Welfare for Older Persons constitutes an act of official duties under Article 112(2)4 (a) of the Public Official Election

③ The Defendant directly approved the plan for securing the budget for the workshop of this case, and the above plan was written in the item column of the budget, but the phrase “301-09, which is the item number of compensation for the event room, was not written. As long as the Defendant directly approved the plan for securing the budget for the workshop of this case, it is evident that he/she intended to support the budget for the workshop of this case, but it cannot be readily concluded that the Defendant approved that the above item number was the item number of compensation for the event room of this case and approved it.

④ Although the budget item is indicated as the non-compensation for the event room, it appears that there is no seal of the defendant in the above disbursement resolution and the approval of the disbursement resolution was made by discretionary decision. In other words, it is difficult to view that the expenditure of the budget was made by the public officials in charge other than the defendant, and that the defendant could have known the fact that the Defendant’s subsidization of the workshop was made by the means of the exercise cost compensation in the process of expenditure.

⑤ In a case where the budget bill for the prosecution is submitted to the National Assembly, it is true that the budget bill is comprehensively reported to the defendant who is the head of the Gun. However, the U.S. court stated in the court below that “the head of the Gun does not have any different items of budget as to such detailed items of budget, and there is no case where the defendant actually raises any problem as to the items of budget. The decision of the budget item is wholly determined by the person in charge and is completed to the extent confirmed by the head of the competent department.” In light of this, it is difficult to view that the defendant is specifically aware of the items of budget to be supported in the workshop on the ground that he is reported the budget bill for the prosecution.

6) The Defendant stated that the investigative agency intended to provide budgetary support for the workshop of this case from the court below to the court below and the court below, and that he did not use path because of what is specific budgetary items. Various performance administration provided under the name of a local government does not constitute an exception to a contribution act provided for in the Public Official Election Act. If it does not constitute an exception to a contribution act under the Public Official Election Management Act, it is reasonable to require the head of a local government to determine what is the budget items corresponding to the individual performance administration. Therefore, it is unreasonable to require the head of a local government to determine what are the budget items corresponding to each time when he takes daily care of the budget items and makes a decision on the performance administration. Accordingly, the Defendant was aware that the budget support for the workshop of this case was possible, and since the working person could have been considered as an act of ordinary performance administration that does not constitute a contribution act according to the determination of budget items, the Defendant’s failure to use the budget items constitutes an intentional act prohibited under the Public Official Election Act.

3) Sub-decisions

Therefore, in relation to the act of budgetary support for the workshop of this case, the defendant cannot be recognized as a criminal intent to make contributions under the Public Official Election Act. Therefore, the judgment of not guilty by the court below that there is no proof of a crime as to this part of the facts charged is justified. Therefore, the prosecutor'

5. Conclusion

Therefore, the defendant's appeal against the guilty portion of the judgment of the court below is partly reasonable. Thus, the part of the judgment below's conviction against the defendant is reversed pursuant to Article 364 (6) of the Criminal Procedure Act without examining the two parties' assertion of unfair sentencing, and the defendant's appeal against the acquittal portion of the judgment of the court below is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act,

[Grounds for multi-use Judgment]

Criminal facts

The Defendant was elected as C/Gun in the 6th local election held on June 4, 2014, and was registered as C/Gun candidate for the 7th local election on April 23, 2018, and was elected as C/Gun on June 13, 2018.

No public official shall promote the achievements of a candidate or a person who wishes to be a candidate, to the personnel under his control or the electorate, regardless of the pretext of education or whatever.

Nevertheless, around March 30, 2018, the Defendant stated that the Defendant had achieved during his/her military service while eating nine electorates, such as B, in E-cafeteria located in Gangwon D, “F Gun Gun Gun Gun 50 billion won, which was repaid 24.1 billion won out of 50 billion won.”

As a result, the defendant promoted the achievements of the defendant who wanted to be a candidate of C/Gun.

Summary of Evidence

The summary of the evidence of this part of the crime is the same as the entry of the part against the defendant in the corresponding column of the judgment of the court below, and thus, it is cited in accordance with Article 369 of

Application of Statutes

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

Public Official Election Act (Selection of Fines) Articles 255(1)10 and 86(1)1 of the Public Official Election Act

1. The type to be suspended;

Fines 500,000

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act (100,000 won per day)

1. Suspension of sentence;

Article 59(1) of the Criminal Act (In light of the favorable circumstances among the reasons for sentencing below, it is obvious that the previous circumstances have been remarkably changed)

Reasons for sentencing

1. The scope of punishment by law;

A fine of KRW 50,00 to KRW 6 million

2. Scope of recommended sentences according to the sentencing criteria;

[Determination of type] Election Crimes 04. Violation of the method of election campaign in violation of the election campaign period.

[Special Mitigation] Where the degree of violation of election campaign methods is minor

[Recommendation Area and Scope of Recommendations] Reduction Area, Fine of 500,000 to 900,000 won

3. Determination of the suspended sentence;

At the time of the instant case, the Defendant, as the incumbent head of the Gun, was expected to leave the next election, but did not yet have been registered as a preliminary candidate. Although the Defendant had to carefully determine and act as to whether his act was permissible under the Public Official Election Act, the Defendant violated the Public Official Election Act by promoting his achievements. This is an unfavorable circumstance.

On the other hand, the crime of this case was committed by the defendant with the electorates, who was asked questions about the military administration from the electorates, and gave answers thereto, and thus, the degree of violation of the election campaign method is insignificant, and considering the number, organization, relationship, etc. of the participants of the meeting of this case, it is difficult to view that the defendant's remarks had a big influence on the actual election. The defendant did not lead the meeting of this case in order to carry out the election campaign, but received the first rank from the co-defendant B of the court below that formed the meeting of this case. The participants other than the defendant, including the defendant, were of friendship among the parties, and had a common friendship with each other, and the purpose of promoting friendship was to promote friendship. The meeting of this case appears to have been aimed at promoting friendship. The defendant did not have a previous conviction, and the defendant was aware that there was no basic fact relevance, and that the defendant was correct for the defendant, and the defendant took the attitude that he was correct to the Gun residents.

In addition to these circumstances, the punishment shall be determined within the scope of the recommended sentencing criteria, taking into consideration all the sentencing factors in the proceedings of the instant case, such as the age, character and conduct, career, motive, means and consequence of the crime, and circumstances after the crime.

The acquittal portion

1. Summary of the facts charged

The Defendant was elected as C/Gun in the 6th local election held on June 4, 2014, and was registered as C/Gun candidate for the 7th local election on April 23, 2018, and was elected as C/Gun on June 13, 2018.

No public official shall engage in an act of promoting the achievements of his/her employees or electorates who intend to be a candidate or candidate, regardless of the pretext thereof, and no one shall engage in an election campaign by means of education or other means, or various printed materials, broadcasting, newspapers, news communications, magazines, other publications, campaign meetings, debate meetings, native folks meetings, alumni meetings, neighbors' meetings, neighbors' meetings, other meetings, information, communications, the establishment of an election organization or private organization, door-to-door visits, or other methods before the election campaign is held.

Nevertheless, at around March 30, 2018, the Defendant provided meals with nine electorates, such as B, within the E-cafeteria located in Gangwon-do D, and provided meals with nine electorates, “F head of the Gun, paid KRW 24.1 billion out of KRW 50 billion,” “The site of the G Elderly Community Center was secured,” “To increase and improve the H fishing route in the future,” “I will keep a pleasure line by improving and improving H fishing route,” “I will build a citizen park at the seat of the C-Gun Repair and Repair Center of the Agricultural Machinery”, “I will install a second floor parking facility in order to further revitalize the C-Gun Maintenance and Repair Center”, “I will build a second floor parking facility in the vicinity of the customary market,” “I will build the exhibition and sale site, rest site, film theater, etc. in the agricultural products near the customary market,” and planned the Defendant’s performance and project during the period of his/her service).

As a result, the defendant promoted the achievements of the defendant who want to be a candidate of C/Gun, and carried out an election campaign before the election campaign period.

2. Determination

In this part of the facts charged, the violation of the Public Official Election Act due to prior election should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act because there is no proof of crime on the grounds of appeal 2.2(c). However, inasmuch as it is found that a candidate who wishes to be a candidate in a competitive relationship is guilty of the violation of the Public Official Election Act due to promotion of the achievements of those who want to be a candidate, not guilty in the order, and the violation of the Public Official Election Act due to promotion of the achievements of those who want to be a candidate should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act because there is no proof of crime on the grounds of appeal 2.3(c) and Article 325(3) of the same Act. However, inasmuch as it is found that there is no evidence of crime for reasons of appeal

Judges Kim Jong-tae

Judges Lee Jae-ho

Judges Lee Jin-hee

1) In the Defendant’s statement, “The site of the “G senior citizens hall” is all the facts charged as to the charge of not guilty of the violation of the Public Official Election Act due to prior election campaign and the charge of not guilty of the violation of the Public Official Election Act due to promotion of the candidate’s achievements. The remainder of the remarks are the facts charged that constitute not guilty of the violation of the Public Official Election Act due to prior