(영문) 울산지방법원 2016.05.20 2016노183 | 리걸엔진

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(영문) 울산지방법원 2016.05.20 2016노183

공공단체등위탁선거에관한법률위반

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All appeals filed by the prosecutor against the Defendants are dismissed.

Reasons

1. Summary of grounds for appeal;

A. The testimony of K in the misunderstanding of facts and legal principles is as follows: ① the seizure of 20,000 won in cash immediately after Defendant B left the Defendant’s vehicle; ② the confession of Defendant B in the course of investigation by the informant M on the side; ③ Defendant B made a confession in the course of investigation by video recording on the same day; ④ Defendant B made a confession in the course of police investigation; ④ Defendant B did not have verbal abuse or the seizure of evidence during police investigation.

In light of the statement, the credibility of the statement is recognized.

Therefore, the judgment of the court below which acquitted Defendant A of violation of the Act on Entrusted Elections such as public organizations, etc. due to the provision of money, and violation of the Act on Entrusted Elections such as public organizations, etc. due to the receipt of money and valuables by Defendant B, is erroneous in the misapprehension of facts

B. The sentence that the court below rendered against Defendant A (the penalty amount of KRW 800,000) is too unhued and unfair.

2. Determination

A. As to the assertion of misunderstanding of facts and legal principles, among the evidence submitted by the prosecutor, there are the following: (a) the statement of the witness M in the third trial protocol of the lower court on the third trial; (b) the statement of the witness K in the witness K in the fourth trial protocol of the lower court; (c) the statement of the police preparation protocol of M in the police preparation protocol of M and N; and (d) the statement of the statement of the N in the prosecutor’s statement on M and N.

2) First, we examine whether the investigator K and M’s respective legal statements in the lower court can be used as evidence.

A) When a statement at the trial date of a person who is not the defendant (including a person who has investigated the defendant as a person who is not the defendant) contains a statement of the defendant, it may be used as evidence only when it is proved that such statement has been made under particularly reliable circumstances (Article 316(1) of the Criminal Procedure Act). The term "special reliable circumstances" in this context is particularly reliable.

‘False intervention' is rare, and the credibility or discretionary nature of the statement is not possible.

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