208Do9407 Violation of the Public Official Election Act

1. Kim (T -), E

Residential Jeonju E

Former North Korea of reference domicile

2. C.)

Residential Jeonju

Jeonju City in the original domicile

3. (III);

Residence and Original Register North Korea

4. SPO (NE ADINOS), LINES;

74 2711 EE

Jeonju City in the original domicile

Defendants

Law Firm

[Defendant 1] The Head of Si/Gun/Gu

Gwangju High Court ( Jeonju) Decision 2008No147 Decided October 7, 2008

December 24, 2008

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the act of making contributions and offering entertainment to the defendant Kim Jong-soo, and the defendant's act of making contributions on January 14, 2008

A. The act of making contributions under Article 112(1) of the Public Official Election Act with respect to the act of making contributions refers to the act of offering money, goods, and other property benefits, expressing intent to offer profits, or promising to offer such things to a candidate or a person who intends to become a candidate (see Supreme Court Decision 2007Do9507, Mar. 13, 2008, etc.). In addition, in the case of co-offenders who act in collusion with more than two persons, the public offering does not require any legal penalty, but is sufficient if there is an implied communication on the joint execution of crimes directly or indirectly between the accomplices, and it can be recognized by empirical rules without direct evidence (see Supreme Court Decision 2003Do4320, May 11, 2006, etc.).

In full view of the adopted evidence, the court below acknowledged that Defendant lecture arranged a meal meeting at the instant restaurant on January 14, 2008 for the purpose of introducing or taking personnel affairs to and from the candidates for the 18th election of National Assembly members, and Defendant Kim 10 also participated in the meeting for the purpose of raising his awareness of the existence of a meal group from GangwonM, Defendant Kim 10 took part in the meeting for the purpose of raising his awareness of his awareness of the fact that he provided a name by introducing ○○ head to the women attending the meeting among the meals, and after the meal was completed, Defendant Kim Do, and this decided that the act of offering food at the instant restaurant constitutes an act of offering the above meals to the residents in the constituency with an intention to see the effect of donation to KimUM who intend to be a candidate for the National Assembly member, and that the above act of offering food at the instant restaurant constitutes an act of offering the above meals and an act of offering the above meals in light of the circumstances leading up to the above act of offering it from the above interview.

In light of the above legal principles and records, the above fact-finding and decision of the court below are justified. The court below did not err in the misapprehension of facts against the rules of evidence, the conspiracy for joint principal offenders, and the misapprehension of legal principles as to contributions under the Public Official Election Act, as otherwise alleged in the ground of

B. On January 14, 2008, the lower court acknowledged the facts as indicated in its reasoning by comprehensively taking account of the adopted evidence, and determined that Defendant Kim Jong-soo was in a close-friendly relationship with the reporters present at the meal meeting at the instant restaurant on January 14, 2008, and was planned to hold a meal meeting in advance. However, the time when the above meal meeting was held was at the time when the preliminary registration date of candidates for the election of the National Assembly members of the 18th National Assembly was unsatisfy, and the media was more important than when the above broadcast was reported. The reporters attending the above meal meeting were ○○○○○○○○○○○, ○○○○○○○○, ○○○○○○○○, and ○○○○○○○○○○○, who were directly related to the above election and news gatherings, and that Defendant Kim Jong-M did not explicitly have any explicit contact with the above female reporters on behalf of the above female reporters, in light of the following facts:

In light of the records, the above fact-finding and judgment of the court below are justifiable. The above judgment of the court below did not err in the misapprehension of facts against the rules of evidence, the conspiracy of co-principals, and the misapprehension of legal principles as to the offering of entertainment under the Public Official Election Act, as otherwise alleged

2. The term “pre-election campaign” on January 14, 2008 of Defendant Kim Jong-han refers to an active and planned act with the objective of promoting the election or defeat against the elector, among all acts necessary or unfavorable for the purpose of obtaining or obtaining a vote for the election of a specific candidate prior to the election campaign period in a specific election, or all acts necessary or unfavorable for the purpose of defeating the election of a specific candidate, and ordinary, courtesy, or social acts are excluded therefrom. Whether an act is ordinary, ordinary, ordinary, or social acts shall be determined in light of social norms, comprehensively taking into account all the circumstances such as the offender and the other party’s social status, relationship between him and him, motive, method, contents and manner of the act, etc. (see Supreme Court Decision 206Do5019, Nov. 1, 2006).

After compiling the adopted evidence, the court below acknowledged the facts as stated in its decision, and rejected the above defendants' lectures as follows: on January 14, 2008, for the purpose of allowing the residents in the constituency who are scheduled to leave as a candidate in the election of the National Assembly member of the 18th National Assembly to introduce the defendant Kim Kim; defendant Kim also knew the above intention of the defendant's lecture and attended the meeting; the women who were urged to attend the above meal meeting are those who do not have any reasons to leave the meeting; the defendant Kim divided the name of the women who attended the meeting of the above meals to individually attend the meeting and was serving the 00 head of the above Gun; the defendant lecture introduced the above defendants' lectures to the members of the 18th National Assembly; the defendant Park decided that the above defendants' acts were not directly related to the above defendant's meal for the purpose of promoting the above defendant's ordinary election, and that the above acts were not directly related to the defendant's meal, even if the above acts were not directly related to the defendant's meal.

In light of the above legal principles and records, the above fact-finding and decision of the court below are justified. The court below did not err in the misapprehension of facts against the rules of evidence, the conspiracy of co-principals, and the misapprehension of legal principles as to pre-elections under the Public Official Election Act, as otherwise alleged

3. On February 1, 2008, the lower court acknowledged the facts as indicated in its reasoning by comprehensively taking account of the adopted evidence. On February 1, 2008, the lower court determined that: (a) on February 1, 2008, a meal meeting at the instant restaurant was made for the purpose of introducing the Defendant Kim; (b) the Defendant was contacted by the Defendant’s lecture that there was a meal group; (c) the Defendant was called with the Defendant Kim Jong and provided the meals together with the attending participants; and (d) the Defendant paid all the meal expenses; (c) in collusion with the Defendant UIT, the Defendant provided the food for the residents in the constituency with the intention to bring about the effect of donation to the Defendant KimIO who wishes to be a candidate for a National Assembly member; and (d) this constitutes a contribution act under Article 112(1) of the Public Official Election Act.

In light of the records, the above fact-finding and decision of the court below are justified. The court below did not err by misapprehending the legal principles as to the mistake of facts against the rules of evidence and the conspiracy of co-principals, as otherwise alleged in the ground of appeal.

4. In particular, as to the assertion of dispute over the credibility and admissibility of evidence of the statement, the above Defendants asserted that the credibility of the statement is disputed. However, this argument is nothing more than a dispute over the selection of evidence, which is the exclusive right of the lower court, and the lower court, without following their statements, recognizes the facts that form the basis for determining the purpose and character of the above meeting, the actual burden of the above persons, such as meal expenses and drinking values, etc., by their respective statements and sales days, who attended the meeting at the restaurant and singing of this case, and without following these statements. Thus, the above Defendants’ assertion cannot be accepted.

On the other hand, Defendant Kim Kim, Kim, and Kim were made several statements that could not be admissible as evidence as expert testimony, and the lower court asserted that the evidence recorded in such hearsay statement has violated the rules of evidence by adopting the evidence. However, the lower court, in addition to the aforementioned evidence clearly classified hearsay evidence which is not admissible as evidence among these statements, determined the facts charged in accordance with the evidence duly adopted and investigated by the first instance court and the lower court, and therefore the above Defendant’s assertion cannot be accepted.

In addition, the part on which Defendant Kim I stated that he was subject to an investigation by the election commission, which Defendant Kim I received the alcohol value in the instant singing room, is inadmissible as it is not admitted to the discretion of the election commission employees as a result of meeting and intimidation, and it is not admissible as evidence. The part on the statement made by Defendant Kim I, among the written statement made by the prosecution, is inadmissible as it was acknowledged that he appeared as a witness in the court of first instance, and that he had participated in the process of the investigation, and that he had made a return or intimidation on his status.

However, it is asserted to the purport that the statement in the court of first instance prior to Park Jong-chul had no reply or intimidation to the fact during the process of investigating the fact that there was no reply or intimidation to it, and it cannot be deemed that the fact was the time-finding and intimidation to that effect. In addition, in a case where the voluntariness of the statement is disputed, the court may determine whether the above statement was made at will with free conviction by taking into account all the circumstances such as the academic background, career, occupation, social status, intelligence level, details of the statement, and the form of the protocol (see, e.g., Supreme Court Decision 2003Do705, May 30, 2003). In light of all the circumstances such as discretionary academic background, career, content of the statement, and the form of the statement statement in which the statement was made, the above part of the voluntary statement can be sufficiently acknowledged. Therefore, the above defendant's assertion cannot be accepted.

5. As to the Defendant’s U.S.’s appeal, the above Defendant did not submit the appellate brief within the statutory period, and the written grounds of appeal are not stated in the petition of appeal. Therefore, the final appeal shall be dismissed by decision pursuant to Article 380 of the Criminal Procedure Act, but the remaining Defendants’ final appeal shall be dismissed by decision.

6. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon

Justices Kim Young-young

Justices Noh Jeong-hee

Note - Yang Chang-soo