Defendant 1 and two others

Defendants and Prosecutor

Red heading

Law Firm Cheong Law Firm, Attorneys Kim Tae-tae et al.

Ulsan District Court Decision 2008Gohap71 Decided April 1, 2008

The part of the judgment of the court below against Defendant 3 shall be reversed.

The above defendant shall be punished by a fine of KRW 4,000,00 for the first and second crimes as set forth in the judgment, and a fine of KRW 5,00,00 for the third crimes as set forth in the judgment.

If the above defendant does not pay each of the above fines, the above defendant shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.

150,000 won shall be collected from the above defendant.

To order the above defendant to pay the amount equivalent to the above fine and additional collection.

Defendant 1, 2, and prosecutor’s appeal are dismissed.

1. Summary of grounds for appeal;

A. Defendant 1

(1) misunderstanding of facts or misapprehension of legal principles

① Violation of the Public Official Election Act due to the provision of money and other valuables related to election campaign: The above Defendant purchased a ticket to send text messages to ○○○○ in order to receive text messages on credit, and paid the price through Defendant 3. It is not only the doubt that this constitutes an act of offering money and other valuables prohibited under the Public Official Election Act, but also Defendant 1 did not recognize that this constitutes an act of offering money and other valuables prohibited under the above Act, and even if this constitutes an act of offering money and other valuables prohibited under the above Act, the above Defendant did not have any awareness of illegality. Nevertheless, the lower court convicted the Defendant.

② Defendant 1 recommended Defendant 2 to leave the mountain until the election is completed, and the Defendant 1 transferred to Defendant 2 the atmosphere of the investigation he knows with his 3-4 currency during which he had come to know. However, even though this does not constitute an act of hiding an offender, the lower court found Defendant 1 guilty. In so doing, the lower court erred by misapprehending the legal doctrine, or by misapprehending the legal doctrine, which affected the conclusion of the judgment.

(2) Unreasonable sentencing: The sentence imposed by the court below on the above defendant (the 1.5 million won of imprisonment, the 1.5 million won of imprisonment, the 2-year suspended sentence, and the 3-year suspended sentence) is too unreasonable.

B. Defendant 2 (Unfair Undue Practices)

The sentence imposed by the court below on the above defendant (the sentence of imprisonment for three months, the suspended sentence for two years, and the sentence for three years) is too unreasonable.

C. Defendant 3

(1) misunderstanding of facts: The above defendant 1 believed that he obtained the consent on the indication of name when sending text messages from the non-indicted 1 and 2, and thus there was no intention on the indication of false name; thus, the defendant did not receive money or other benefits in relation to election campaign, but only received the cost of handling as one of the original business affairs of ○○○○○ operated by himself as a company, and there was no active conspiracy or participation in the crime of aiding and abetting a criminal. Therefore, the judgment of the court below is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.

(2) Unreasonable sentencing: The sentence imposed by the court below on the above defendant (the imprisonment of March, the suspension of the execution of the sentence of two years and the fine of one million won, and the imprisonment of 10 months and the suspension of the execution of the sentence of ten years) is too unreasonable.

D. Prosecutor (Defendant 1)

(1) Violation of Acts and subordinate statutes: Where a person holding a special status (the election campaign manager, spouse, lineal ascendant or descendant, etc.) prescribed in Article 265 of the Public Official Election Act is sentenced to a punishment or more for committing any crime prescribed in Articles 230 through 234 (hereinafter referred to as "special election crime for convenience"), there is a problem that it is necessary to decide whether to nullify the election of a candidate and whether to restrict the right to vote and to be elected by the said person holding the special status (the defendant). However, Article 18(3) of the Public Official Election Act provides that a person holding a special status (the election campaign manager, lineal ascendant or descendant, etc.), notwithstanding the provisions of Article 38(1)3 of the Criminal Act, shall be tried separately and sentenced separately for other crimes, and even though it does not provide that a separate sentence shall be imposed after examining special election crimes and other election crimes, it shall be tried and sentenced separately to the interpretation of the Act, which shall affect the conclusion of the judgment.

(2) Unreasonable sentencing: The sentence imposed by the lower court on Defendant 1 is too une and unreasonable.

2. Determination

A. As to Defendant 1’s assertion of mistake or misapprehension of legal principles

(1) Violation of the Public Official Election Act due to provision of money and valuables related to election campaigns

The term "election campaign" under Article 135 (3) of the Public Official Election Act refers to "in relation to election campaign, with the motive of election campaign". It is more broad than "for election campaign", and even if there was no purpose of influencing the purpose of election campaign or the election, it is necessary to regulate the act itself as highly likely to infringe on the freedom and fairness of election. Thus, it does not necessarily require the payment of money or goods to be an election campaign, and it includes what is related to election campaign such as the cost of providing information related to election campaign and the cost of election campaign (see Supreme Court Decision 2004Do6795, Feb. 18, 2005). Thus, even if the defendant's father (non-party 3) sent a candidate to the Superintendent of Busan Metropolitan City Office of Education on December 19, 2007, the defendant's sending of text messages to non-party 3 was highly likely to infringe on the freedom and fairness of election to the above office of education, the defendant's sending of text messages to the above defendant 1.

In addition, in full view of the evidence duly examined and adopted by the court below, it is reasonable to view that Defendant 1 was aware that the above provision of money and valuables was not allowed under the Public Official Election Act. Accordingly, this part of the above defendant's assertion is without merit.

(2) The criminal escape

The term "domination or escape" refers to any act other than the act of hiding an offender by providing a place, and means any act that makes it difficult or impossible to detect the Constitution, arrest or arrest the offender, and the act of making the offender escape by recommending him/her to flee constitutes an escape. Thus, the above part of the defendant's assertion on different premise is without merit.

B. As to Defendant 3’s assertion of mistake of fact

In light of the evidence duly examined and adopted by the court below, it can be recognized that the above defendant committed a violation of the Public Official Election Act and a crime of aiding and abetting a criminal attempted to commit a crime. Therefore, this part of the above defendant's assertion is without merit on different premise.

C. Regarding the prosecutor's assertion of violation of law

Article 300 of the Criminal Procedure Act provides that "the court may, if deemed necessary, separate or consolidate pleadings ex officio or at the request of the public prosecutor, the defendant, or his/her defense counsel, by a ruling." Thus, whether to separate or combine pleadings belongs to the court's discretion (see Supreme Court Decision 87Do706 delivered on June 23, 1987).

On the other hand, it is difficult to view that the court below's second sentence is illegal because it deviates from and abused discretion and made clear legal relations, without examining and combining arguments about the violation of the Public Official Election Act Article 18 (1) of the judgment against Defendant 1 and the arguments about the violation of the Public Official Election Act Article 18 (2) of the judgment of the court below. The prosecutor's allegation in this part is without merit.

D. As to the Defendants and prosecutor’s assertion of unfair sentencing

(1) The part on Defendant 1 and 2

On the other hand, under the title of "the grounds for sentencing" in the judgment, the court below, with detailed explanation of the conditions and reasons for sentencing against the above Defendants, shall be sentenced to the crimes No. 1 as to the crimes No. 1 as to the crimes No. 4 months of imprisonment, 2 years of suspended execution, 1.5 million won of fine, 3 years of suspended execution, 1.3 months of imprisonment, 2 years of suspended execution, 3 years of suspended execution, and 1 as to the crimes No. 3 as to the crimes No. 1 as to the judgment No. 1 as to the crimes No. 3 as to the above defendants No. 1 as to the crime No. 1 as to the judgment, and 1 as to the suspended execution, 10 months of imprisonment, 10 years of suspended execution, and 2 years of suspended execution.

(2) The part against Defendant 3

In light of the following facts: (a) the above Defendant 1 Docked and Docked to commit the instant crime; (b) the money and valuables received by the above Defendant were received in return for sending text messages belonging to the company’s original business, even though it is in violation of the Public Official Election Act; (c) the Defendant was paid in return for the dispatch of text messages belonging to the company’s original business; (d) there was no previous conviction except for a fine once; (d) other factors such as the above Defendant’s age, character and conduct, family environment, motive, means, means, consequence, etc.; and (e) considering all of the sentencing conditions specified in the instant argument, such as the circumstances after the commission of the instant crime, the sentence imposed by the above

3. Conclusion

Therefore, since the appeal by Defendant 3 is well-grounded, the part of the judgment of the court below against the above defendant is reversed, and the appeal by Defendant 1, 2 and the prosecutor is dismissed as follows.

The criminal facts against Defendant 3 recognized by this Court and the summary of the evidence are as shown in each corresponding column of the judgment of the court below, and they are cited as it is.

1. Article applicable to criminal facts;

· The fact of false false statement communications: Article 253 of the Public Official Election Act, Article 30 of the Criminal Act, inclusive.

· Distribution of documents, etc. by illegal means: Articles 255(2)5 and 93(1) of the Public Official Election Act, Article 30 and inclusive of the Criminal Act

- Receipt of money or valuables related to election campaign: Article 230(1)5 and 4, and Article 135(3) of the Public Official Election Act

· The occupation of an attempted criminal: Articles 151(1) and 31(1) of the Criminal Act

1. Commercial competition;

A crime of violating the Public Official Election Act due to the violation of Articles 40 and 50 (The distribution of documents, etc. by unlawful means) of the Criminal Act and the violation of the Public Official Election Act due to the distribution of documents, etc. by unlawful means: Punishment provided for in the crime of violating the Public Official Election Act due to the greater ‘Name False

1. Separation of concurrent crimes;

The crime of violating each Public Official Election Act and the crime of aiding and abetting an offender: Article 18 (3) and 18 (1) 3 of the Public Official Election Act (the crime of violating each Public Official Election Act is tried separately from the crime of aiding and abetting an offender).

1. Aggravation of concurrent crimes;

Articles 37(1)2 of the Criminal Act and Article 38(1)2(2) of the Public Official Election Act (the punishment for a violation of the Public Official Election Act under paragraphs (1) and (2) shall be aggravated due to concurrent crimes prescribed in the Public Official Election Act (the aggravated punishment).

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Additional collection:

The proviso to Article 236 of the Public Official Election Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

It is so decided as per Disposition for the above reasons.

Judges Lee Jung-chul (Presiding Judge)