Defendant

Defendant and Prosecutor

Kim Ho-ho

Attorney Ha Young-young (Korean)

Jeonju District Court Decision 2009Ma1087 Decided November 10, 2009

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

(1) Although the Defendant issued, distributed, or sent the list of the candidates for summons, it is reasonable to interpret the concept of “marketing” under the above Act widely, since the issuance, distribution, and mail of the list of the candidates for summons is also included in the “marketing” under Article 10(4) of the Recall of Elected Officials Act, referring to the response of the Ministry of Public Administration and Security. Thus, the Defendant’s issuance, distribution, and mail delivery of the list of the candidates for summons are not in violation of the above legal provisions.

(2) After reviewing the reply of the Ministry of the Interior and Safety, the Defendant believed that the issuance, distribution, and delivery of the list of the petitioners for summons are permitted by law and led to the instant crime. As such, there is justifiable reason for mistake in accordance with Article 16 of the Criminal Act.

(3) The lower court’s sentence (2 million won) against the Defendant is too unreasonable.

(b) Prosecutors;

The sentence of the court below against the defendant is too unhued and unreasonable.

2. Determination

A. Whether the issuance, distribution, and delivery of the list of petitioners for summons are included in the concept of "Presentation" under Article 10 (4) of the Recall of Elected Officials Act

Article 10(4) of the Recall of Elected Officials Act provides that “No person shall engage in the activities for requesting signatures by means of printed materials, facilities, or other means, except where the representative of the petitioners for recall presents a list of petitioners for recall or explains the purport or reasons for recall voting,” Article 19 of the Recall of Elected Officials Act provides that “No person shall engage in the activities for requesting recall voting by means of using printed materials, facilities, or other means.” Article 20 of the Recall of Elected Officials Act provides that “No person shall engage in the activities for recall voting by means other than those prescribed in Article 19,” and Article 20 of the Recall of Elected Officials Act provides that “No person shall engage in the activities for recall voting by means of distributing copies of the petitioners’ list or sending them by mail,” and that “No person shall engage in the activities for recall voting by means of distributing copies of the petitioners’ list without any explanation.”

B. Whether Article 16 of the Criminal Act constitutes a mistake in law

(1) Article 16 of the Criminal Act provides that "the act of misunderstanding that one's own act does not constitute a crime under the Acts and subordinate statutes shall not be punishable only when there are justifiable grounds for misunderstanding." It is generally accepted that the act of misunderstanding that one's own act does not constitute a crime but, in his special circumstances, it does not constitute a crime as permitted under the Acts and subordinate statutes. It is not punishable if there are justifiable grounds for misunderstanding that one's act does not constitute a crime. Whether there is justifiable grounds or not should be determined depending on whether the act of misunderstanding is not aware of the illegality of one's own act as a result of his failure to fulfill his intellectual ability even though it was possible to recognize the illegality of his act if the act was done with his own intellectual ability, and the degree of efforts necessary for recognizing the illegality should be determined differently according to the specific situation of the act and individual identification ability of the actor, and the social group to which the actor belongs (see, e.g., Supreme Court Decisions 2005Do31788, Mar. 24, 2006).

(2) On January 19, 2009, the Ministry of the Interior and Safety responded to the defendant's civil petition that "it is not stipulated in the Recall of Elected Officials Act regarding the method of presenting the specific list of petitioners for summons, such as presenting the list of petitioners for summons against the multiple people, keeping the signature book at a public place, delivering it directly or through others, and sending electronic mail or mail to them," in light of Articles 2 and 36 of the Recall of Elected Officials Act as to whether the method of presenting the combined list of petitioners for summons is appropriate to be determined by the competent election commission in charge of managing the affairs of summons and investigating the summons voting in accordance with the Recall of Elected Officials Act, and there is no reason to believe that the defendant's act of sending the list of petitioners for summons and sending it to the public place of signature or sending it to the public place of signature or sending it to others, and there is no reason to view that the defendant's act of sending the list of petitioners for summons and sending it to the purport that it does not constitute a violation of the above Act before the Recall of Elected Officials Officials Act.

C. Determination on the assertion of unreasonable sentencing by the Defendant and prosecutor

Although there is no history of punishment imposed by the Defendant exceeding a fine, considering the fact that the Defendant was punished as a violation of the Act on the Election of Public Officials and the Prevention of Unlawful Election, and other various circumstances that serve as the conditions for the sentencing specified in the instant case, such as the Defendant’s age, character and conduct, environment, motive, means and consequence of the crime, the circumstances after the crime, etc., the lower court’s punishment against the Defendant cannot be deemed to be too weak or too unreasonable. Therefore, the Defendant and the prosecutor’s assertion of unfair sentencing is without merit.

3. Conclusion

Therefore, since the appeal by the defendant and the prosecutor is without merit, they are all dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Mag-ro (Presiding Judge) Kim Jong-young