(영문) 서울중앙지방법원 2017.2.17. 선고 2016고합1018 판결

Defendant A shall be punished by a fine of KRW 500,00 and a fine of KRW 200,00 for each of the crimes listed in paragraphs (1) and (2)(b)(1) of the judgment of Defendant A, and a fine of KRW 2,00,00 for each of the crimes listed in subparagraph (b)(2) of the judgment of the court below.

In the event that the Defendants did not pay the above fine, the Defendants shall be confined in the Labor House for the period calculated by converting each of the 100,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

Of the facts charged against Defendant A, the violation of the Public Official Election Act and each of the Political Funds Act, and the violation of the Political Funds Act related to E, shall be acquitted.

Reasons

Criminal History Office

Defendant A is a person in charge of accounting as a senior candidate who was going to the election district of the 20th National Assembly member election commission, which was enforced April 13, 2016, and Defendant B is an election campaign worker, the election campaign worker, and the election agent company H. as a relative of Defendant A.

1. The person in charge of joint accounting shall not submit an accounting report on election expenses without justifiable grounds, make a false entry therein, forge, alter, or omit them, and shall not make a false entry of a receipt or other documentary evidence in relation to election expenses;

Nevertheless, Defendant A, a person in charge of accounting, together with Defendant B, conspired with Defendant B on April 2016 that the size, quantity, and amount of a tax invoice in order to be compensated for expenses without receipts or other documentary evidence in relation to election expenses at an unclaimed place. The fact is as follows: ① (i) the size of a loudspeaker system for a campaign speech at an open place or an interviewer at an open place, which is 11,300,000 won; (ii) the size is 3.6kw; (iii) the siren cost is 22,69,705, as the siren cost was 32,00 won; and (b) the quantity of the given ticket supplied by the J was 830,000 won; and (iii) the distance of banner received from K was 18,81,000,000 won; and (v) the amount was 18,081,000 won; and (v) the tax invoice was 298,297.

After that, the Defendants submitted an accounting report related to election expenses to M in Gangnam-gu Seoul Metropolitan City L on May 13, 2016, and submitted an accounting report stating false tax invoices and election expenses revenue and expenditure books by attaching them as above.

As a result, the Defendants conspired to make an accounting report without any justifiable reason and entered false receipts and documentary evidence in relation to election expenses.

2. Defendant A

A. Violation of the Public Official Election Act

Except for the cases of providing allowances, actual expenses, and other benefits under the Public Official Election Act, no person shall provide or express his/her intention to provide money, valuables, or other benefits in connection with the election campaign regardless of the pretext thereof, such as allowances, actual expenses, compensation for volunteer service, or instruct, recommend, arrange, demand, or receive the promise to provide them

1) Election campaign workers N,O, P, Q, R, and S

The Defendant paid KRW 70,00 to S on April 18, 2016, as if he/she reported election campaign workers N,O, P, Q, R, and S on March 31, 2016, when he/she was appointed as election campaign workers. On April 14, 2016, the Defendant paid KRW 70,00 to N,O, P, Q, and R, respectively, in U located in Seoul.

Accordingly, the defendant paid 420,000 won to 6 people such as the above N in relation to election campaign in excess of the payment of allowances, actual expenses, and other benefits permitted by the Public Official Election Act.

2) Election campaign workers V

In fact, the Defendant, despite paying the full statutory allowances to the election campaign workers V, issued KRW 130,000 in cash, which was kept personally on the road near the election campaign office of G candidate in Seoul, around April 14, 2016.

Accordingly, the defendant paid 130,000 won to V in relation to election campaign in excess of the provision of allowances, actual expenses, and other benefits permitted by the Public Official Election Act.

B. Violation of the Political Funds Act

The accountant in charge shall neither make an accounting report for election expenses without any justifiable grounds nor make any false entry, forgery, alteration, or omission thereof, and disburse election expenses or political funds of a candidate for an election of public officials in excess of 200,000 won by means of checks, credit card deposits in the deposit account or by means of verifying real names, and disburse them through the deposit account reported to the competent election commission.

1) The portion of the allowance paid to the election campaign worker V

On April 14, 2016, the Defendant delivered 130,000 won in cash, which he kept for personal reasons as set forth in Section 2-A(2) at an inorganic place, to election campaign workers V. On May 2016, 2016, the Defendant omitted KRW 130,000 when the accounting report related to election expenses was made to M. on April 5, 2016.

As a result, the defendant did not use a deposit account reported to the competent election commission, and paid election expenses, and omitted an accounting report on election expenses without any justifiable reason.

2) Part of vehicle sirens paid to X

On May 9, 2016, the Defendant transferred KRW 12,800,000 to an account in the name of the Defendant’s wife Y, using the Defendant’s account in the name of X Y, for posting campaign posters and other campaign posters in X and moving of G candidates.

As a result, the defendant disbursed political funds of a candidate for public office in excess of 200,000 won, and disbursed political funds without going through a deposit account reported to the competent election commission.

3. Defendant B

On April 21, 2016, the Defendant decided to pay more allowances on the ground that an election campaign worker AB received legal allowances, and transferred KRW 300,000 from AB’s account in the name of H(AC) in the name of H(AC) in which the Defendant was operating at an irregular place.

Accordingly, the Defendant paid KRW 300,000 to AB in relation to election campaign in excess of the provision of allowances, actual expenses, and other benefits permitted by the Public Official Election Act.

Summary of Evidence

1. The defendants' partial statement [the clause 2-B(2) of the date of trial on the third trial)] of each of the defendants

1. Each legal statement of the witness AE, V, AF, AG, and AB;

1. Each written answer to the election commission to G, 0, and P;

1. Each investigation report (the result of checking the quantity of supplied goods by diskettes and banner suppliers, and the result of surveying the details of claiming compensation for election expenses by candidates; and

1. Details of deposit transactions, a written application for the preservation of election expenses, a written statement of revenue and expenditure of political funds, photographs, estimates, tax invoices, evidentiary materials, expenses paid to election workers and evidentiary materials, expenses paid to some items at the time of making an accounting report, evidential data, such as evidential data, political funds revenue and expenditure report, a statement of revenue and expenditure of political funds, a statement of revenue and expenditure of accounting report, a statement of withdrawal from the place of revenue and expenditure of accounting report, tax invoices by detailed items in the accounting report, etc., placard, election campaign bulletin, documents related

Application of Statutes

1. Article applicable to criminal facts;

(a) Defendant A: Article 49(1) of the Political Funds Act, Article 30 of the Criminal Act, Articles 49(2)6 and 39 of the Political Funds Act, Article 30 of the Criminal Act, Article 230(1)4 and Article 135(3) of the Public Official Election Act, Articles 49(2)3 and 36(2) of the Political Funds Act, Article 49(1) of the Political Funds Act, Article 49(2)1 and Article 2(4) of the Political Funds Act (the fact that any disbursement of election expenses is not made through any deposit account reported), Article 49(2)3 and 36(2) of the Political Funds Act, Article 49(1) of the Political Funds Act (the fact that any accounting report for election expenses is omitted), Article 49(2)1 and Article 2(4) of the Political Funds Act (the fact that any one is not verified

(b) Defendant B: Articles 49(1) and 30 of the Political Funds Act; Articles 49(2)6 and 39 of the Political Funds Act; Article 30 of the Criminal Act; Articles 230(1)4 and 135(3) of the Public Official Election Act (the point of providing money and valuables related to election campaign)

1. Commercial competition;

Defendant A: Articles 40 and 50 of the Criminal Act / [(1) Article 2-A(2) of the Public Official Election Act in relation to the amount paid to V; between the violation of the Political Funds Act due to the disbursement of election expenses not via the deposit account reported in Article 2-B(1) of the judgment; punishment provided for the violation of the Public Official Election Act with heavier punishment; (2) each violation of the Political Funds Act listed in Article 2-B(2) of the judgment; and (3) punishment provided for the violation of the Political Funds Act due to the disbursement of election expenses by a method with heavier real names; and

1. Selection of punishment;

Selection of each fine

1. Separate sentence for concurrent crimes;

Defendant A: The latter part of Article 18(3) and Article 18(1)3, Articles 263 and 265(1) of the Public Official Election Act (hereinafter “Public Official Election Act”); the violation of each Political Funds Act due to false entry or omission in election expenses accounting reports; the violation of the Political Funds Act due to false entry in election expenses documents; the violation of each Public Official Election Act due to provision of money or goods related to election campaigns; and the violation of the Political Funds Act due to

1. Aggravation for concurrent crimes;

(a) Defendant A: the former part of Article 37, and Articles 38 (1) 2 and 50 of the Criminal Act (the violation of each Political Fund due to false entry or omission of election expenses accounting report, the violation of the Political Funds Act due to false entry or omission of election expenses, the violation of the Political Funds Act due to evidential documents for election expenses, and the violation of each public official election law due to the provision of money or goods related to election campaign, and the amount of punishment and concurrent crimes prescribed in the Public Official Election Act due to the provision of money

(b) Defendant B: the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with punishment prescribed for a crime of violating the Public Official Election Act, the largest punishment);

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judgment on the Defendants and Defense Counsel’s argument

1. With respect to false entries in election expenses, evidential documents and accounting report (paragraph (1) of the crime committed on the market);

A. Summary of the assertion

① Defendant B agreed to be compensated for all the expenses incurred in being entrusted with G candidate’s election affairs. Accordingly, Defendant B included the quantity supplied or disposed of separately from other companies in the tax invoice related to the provision of diskettes and street banner, and furthermore, Defendant B issued each tax invoice with proper distribution of Defendant B’s profits, so that it is consistent with the actual transactional relationship. Therefore, it cannot be readily concluded that the tax invoice and the accounting report based thereon are false.

(2) Defendant A was unaware of the fact that a tax invoice was issued in excess of the quantity or value of supply.

③ The Defendants did not conspired to commit this part of the crime.

(b) Fact of recognition;

According to the above evidence, the following facts can be acknowledged.

1) Defendant A decided to entrust the election agency business to E with the price of KRW 90 million, and paid KRW 10 million for the down payment around March 18, 2016. However, there was a conflict of opinion on the appropriate price, etc. thereafter, Defendant A entrusted Defendant B with the election agency business to Defendant B who is in a relationship with Defendant A as of the date of registration of the candidate.

2) As Defendant A, a person in charge of accounting, did not know about election-related affairs, Defendant B performed an election agency business, and simultaneously registered as an election campaign worker and processed the overall election affairs including A and an accounting report with A.

3) Defendant B issued each tax invoice on the street banner on April 8, 2016, the campaign speech or interview vehicle at the open place on April 15, 2016, and the loget on April 25, 2016, in the name of the Dispute Resolution Co., Ltd. Based on this, the Defendants filed a claim for the preservation of election expenses by preparing a statement of revenue and expenditure of political funds in M on April 25, 2016. However, the report on revenue and expenditure of political funds submitted to M on May 13, 2016 is written differently in relation to the above three items.

4) Upon request for additional explanation in M on June 3, 2016, Defendant B submitted a written estimate for a distance banner (written in KRW 349, 18, 181,000) from K on April 1, 2016, and a certificate of remittance for KRW 7,300,00 remitted to I. On June 14, 2016, Defendant B submitted a written estimate (written in KRW 358, loudspeaker size 1kw, 11,300,000) directly submitted by I to H (written in the investigation record, written in KRW 358, loudspeaker size, 11,30,000). However, in addition, the Defendants failed to submit documentary evidence on the amount or quantity recorded in the tax invoice or accounting report.

C. Determination

Comprehensively taking account of the following circumstances acknowledged by the above facts and the evidence as seen earlier, the Defendants conspired to issue a tax invoice in excess of the actual amount or quantity of the goods supplied by Defendant B and submitted an accounting report stating false information to the election commission.

1) The Public Official Election Act strictly regulates revenues and expenditures for election expenses, when restricting the total amount of election expenses and imposing criminal punishment (Article 258), or when invalidating the election of candidates (Article 263), while prescribing cases where election expenses are invalidated (Article 263). In the context of compensating election expenses, strict standards are applied where evidentiary documents, such as a receipt thereof, are required, or where ordinary transaction prices or rent prices exceed considerably (see Article 122-2(2)6 and 8).

2) Defendant A, as a person in charge of accounting, participated in the education for the accountant in charge conducted by M on March 28, 2016, and Defendant B, along with Defendant A, dealt with the overall affairs related to the election including the accounting report. As such, the Defendants are deemed to have been well aware of the importance of the election expenses disbursement management and documentary evidence under the aforementioned provisions.

3) Defendant B asserts that the quantity of diskettes and distance banners stated in the tax invoice and accounting report includes the quantity of goods supplied by other companies, thus complying with the actual transaction relations, and that the wrong specification of loudspeaker system in the accounting report is attributable to mistake merely. However, in light of the fact that there is no evidence to prove it up to now (the relevant company name and telephone number was not presented at all by the investigation agency) and that the accounting management program provided by the election commission for the preservation of election expenses and accounting report are identical, but the contents of the tax invoice, including the tax invoice, are different from those of the tax invoice and the accounting report, it is difficult to accept the above argument by Defendant B

4) In addition, Defendant B asserts that business profits are properly distributed by each item and issued tax invoices to the effect that they conform to the actual transactional relationship. However, in light of the purport of the Public Official Election Act which strictly regulates election expenses as seen above or the fact that the receipt and disbursement of political funds are regulated through comparison with ordinary transaction prices or rental prices in preparing the revenue and expenditure ledger of political funds by dividing them by item, the utilization of each item above cannot be deemed permissible in violation of the purport of the provision regulating election expenses. Defendant B did not submit any documentary evidence related thereto, and thus, it is difficult to accept the aforementioned assertion.

5) Ultimately, comprehensively taking account of the above circumstances, the tax invoice and accounting report submitted by the Defendants are deemed to have been written differently from the amount or quantity actually paid ( difficult to see that the Defendant’s change in the lawsuit itself does not mean to deny the fact that the Defendant, a person in charge of accounting, submitted relevant documents, and it is difficult to view that the Defendant A, a person in charge of accounting

In addition, in light of the relationship between the Defendants and the degree of involvement in the election-related affairs, there is sufficient competition relation.

2. As to the offering of money or goods to election campaign workers N,O, P, Q, R, and S [Article 2-A(1) of the Criminal Act in the case of sale];

Defendant A asserts to the effect that the report on appointment of the above election campaign workers was based on the number of the employees of the competent election commission or a simple occupational error, and that there was no intention of offering money or valuables related to the election campaign.

However, in order to obtain the status of paid election workers under the Public Official Election Act, reporting to the competent election commission is essential (see Supreme Court Decision 2004Do7511, Jan. 27, 2005).

According to the evidence revealed in the above, the appointment report of the above election campaign workers was submitted to M as of April 1, 2016, and the statutory allowances were paid in excess of 70,000 won for the above election campaign workers. In addition, P stated to the effect that the resident registration certificate was sent to the election campaign worker's office before and after the election campaign workers' report was made, and that the above election campaign workers' registration was entered in the election campaign office. Since the comprehensive statutory allowances were paid to the above election campaign workers after the election was completed, Defendant A, the accountant in charge, at the time of the election, could sufficiently know the exact appointment report and the limit of the statutory allowances. In light of the above, it is difficult to view that the late appointment report of the above election campaign workers was merely made by a simple number of business or mistake, and it is difficult to view that Defendant A was unaware of the excess of the statutory allowances, the above argument by Defendant A is rejected.

3. As to the offering of money and goods to the election campaign worker V [Article 2-A-2 and 2-2-2 (b) of the crime committed on board]

Defendant A asserts that the legal dispute between the two parties has not reached the statutory minimum wage level with respect to the allowances received by V at the time, and the competent Labor and Labor Office has reached the money provision in order to resolve the legal dispute by mentioning to the effect that it is true and accused.

However, V stated that there was no such talking, and Defendant A expressed that he would give more allowance at the beginning. Even if Defendant A provided money and valuables to prevent legal disputes with V, barring any circumstances to deem that it constitutes an act of attacking or coercioning, it cannot be denied the relationship with election campaign by providing money and valuables due to such passive purpose. Accordingly, Defendant A’s above assertion is without merit.

4. As to the offering of money and valuables related to the election campaign campaign against AB to the election campaign workers (Article 33 of the facts constituting the election campaign in the market);

Defendant B asserts that at the time, AB proposed the capital of the G candidate, and only paid money and valuables at a separate fee or expense.

However, at the time, AB made a statement to the effect that the money received from Defendant B was considered not to have a relation to the capital plan at the time, and even if this part of the money is the consideration for the capital plan, insofar as it is naturally recognized as related to election campaign, it is not allowed to offer money exceeding the statutory allowance to the election campaign worker AB, so the above assertion by Defendant B is without merit.

Reasons for sentencing

1. Scope of recommending types according to the sentencing criteria;

A. Violation of the Public Official Election Act;

[Determination of Type] Election Crimes, Purchase and Understanding, and Type 2 (General Purchase)

[Special Mitigation] Where minor money, goods, etc. are provided or received for an election campaign at the cost of actual expenses or ex officio level.

[Recommendation and Scope of Recommendations] Reduction Area, Imprisonment with labor for one to ten months, or fine for one hundred to five million won

(b) Violations of the Political Funds Act: The sentencing criteria are not set; and

2. Determination of sentence;

The Defendants’ crime is an act detrimental to the purpose of the Public Official Election Act to prevent the excessive election campaign by impairing the purpose of the Political Funds Act, or by providing profits to campaigners, etc. to prevent the excessive election campaign. In particular, Defendant A committed the instant crime even though he was in a position to strictly manage and control the payment of expenses related to the election campaign as an accountant in charge of the candidates for the National Assembly members election, even though he was in a position to strictly manage and control the payment of expenses relating to the election campaign.

However, the Defendants did not have any specific criminal history other than punishment as a fine prior to the instant crime, and did not commit the same crime. The amount of money and valuables provided to election campaign workers is not large, and are offered as compensation for actual expenses, and it does not seem to have obtained personal benefits in the course of accounting management.

In addition to the above circumstances, the Defendants’ age, character and conduct, environment, motive and background of the crime, means and method of the crime, and all of the sentencing conditions appearing in the entire pleadings, including the records of this case and the entire circumstances after the crime, shall be determined as ordered.

The acquittal part (Defendant A)

1. Summary of the facts charged

A. Defendant A, even though having paid all statutory allowances to election campaign workers D, had the intention to pay more allowances on the ground that he/she had born during the election campaign period. On April 19, 2016, Defendant A transferred KRW 1,440,000 in cash, which was kept individually at an infinite place, to AH’s account (New Bank AJ) through AH. On May 13, 2016, Defendant A omitted the disbursement of KRW 1,40,000, when making an accounting report related to election expenses in M on May 13, 2016.

As a result, Defendant A paid KRW 1,440,00 to D in connection with election campaign except in cases of offering allowances, actual expenses, and other benefits under the Public Official Election Act, and disbursed election expenses exceeding KRW 200,000 in a way that real name is not verified. Also, election expenses are paid without using the deposit account reported to the competent election commission, and election expenses are paid without justifiable grounds.

The accounting report was omitted.

B. On March 18, 2016, Defendant A entrusted an election agency to the “E” of an election agency at an unspecified place, and paid the down payment of KRW 10,000,000,000, while Defendant A, on May 13, 2016, omitted the disbursement of KRW 10,000,000 while making an accounting report related to election expenses in M on May 13, 2016, and omitted the accounting report on election expenses without justifiable grounds.

2. Determination

A. The portion of money paid to election campaign workers D

In light of the following circumstances acknowledged by the evidence duly adopted and examined by the court, it is difficult to readily conclude that this part of the money paid to D with the evidence submitted by the prosecutor was paid in connection with an election campaign, and there is no other evidence to acknowledge it.

1) Defendant A consistently stated in the investigative agency that D paid this part of the money in return for providing personal services while driving his vehicle prior to the election campaign period, and that G also made a statement to the same effect as M.

2) At the first time, D also received a proposal for driving duties from March 27, 2016, and stated that D was driving a candidate on board and was in a heart or in a heart for a period of one to two weeks, and AK introduced D to Defendant A submitted a confirmation letter to the effect that D was introduced in relation to the driving and heart duties of the G candidate.

3) D was registered as election campaign workers on April 2016, 4, and 5 during the election campaign period and participated in the election campaign activities, and as a result, D received a remittance of KRW 560,000, a statutory allowance for April 15, 2016.

4) Ultimately, considering the above circumstances, it is reasonable to view that this part of the money was paid as compensation for the provision of simple labor, such as the cost or diameter, to drive a motor vehicle that D is on board by a candidate G. Therefore, this part of the money is not recognized as election expenses or there is no evidence to acknowledge that it is related to election campaign (Article 120 subparag. 6 of the Public Official Election Act).

B. The portion of money paid to E

According to the evidence duly adopted and examined by this court, the defendant A entrusted the election agency work to E with KRW 90 million on March 18, 2016, and paid KRW 10 million on the same day as the down payment. On March 25, 2016, the candidate was notified of the termination of the contract due to the conflict of opinion arising from the issue of the price amount on March 25, 2016, which was the last day of the candidate registration. In E, the above KRW 10 million was used as the down payment or cost for the production of promotional videos, election campaign bulletins, photographs, photographs, election vehicles, and so on. The fact that the actual work performed before being notified of the termination of the contract was only a photograph and scack. In the above process, the fixed contract was not prepared between E and G candidates, and the election agency work was conducted by the defendant A H.

In light of the above facts, Defendant A, as an act of preparing for a candidate and election campaign, promoted a contract with the election agent chain E as an act of preparing for an election campaign, and the duties performed or promoted in E do not reach the extent to be recognized as an election campaign. As such, Defendant A cannot be deemed as election expenses for KRW 10 million paid in terms of contract deposit. Furthermore, there is no special motive to omit the above amount in the accounting report, such as there is a concern that it may exceed the election expense limit. Ultimately, the evidence submitted by the Prosecutor alone is insufficient to prove that Defendant A, a person in charge of accounting, omitted the disbursement of election expenses or there is an intention to commit such a crime, and there

3. Conclusion

This part of the facts charged against Defendant A constitutes a case where there is no proof of facts constituting a crime, and thus, the judgment of innocence is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act, and Defendant A does not consent to the pronouncement of the judgment of innocence, and thus, the purport of the public announcement of the judgment of innocence pursuant to the proviso of

Judges

presiding judge, judges, vibration

Judges Park Jong-soo

Judges Kim Jae-nam

Note tin

1) The written indictment is written “as of April 19, 2016,” but is deemed to be written in writing.

2) In the case of Defendant A, part of the crime of violation of political fund crimes in the relationship of ordinary concurrent crimes are included in the crime, and the defendant A refers to the recommendation type in the sentencing guidelines.

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