[1] In a case where a single act satisfies the requirements for the establishment of Article 230(1)4 and 230(1)5 of the Public Official Election Act at the same time, the number of crimes committed in two crimes (=commercial concurrence)

[2] In a case where a single act meets the elements of multiple crimes at the same time, whether a person having the right to institute prosecution may institute a prosecution only against a part of the crimes (affirmative in principle)

[3] In a case where separate evidence irrelevant to the facts charged as the ground for issuing a warrant is seized, whether such evidence can be used as evidence of conviction (negative in principle)

[4] Persons subject to punishment of a violation of Articles 230(1)4 and 135(3) of the Public Official Election Act (i.e., provision of money, valuables, or other benefits in connection with election campaigns, or expression of an intention or promise to offer such money, valuables, or other benefits), and whether the subject of punishment is limited to provision of money, valuables, etc. during the election campaign period as prescribed by the same Act (negative) / The meaning of “election campaign” under Article 135(3)

[1] Article 135(3) of the Public Official Election Act prohibits an act of offering, expressing an intention to offer, promising to offer, etc. money, valuables, or other benefits in connection with election campaign, regardless of the pretext thereof, except in cases where allowances, actual expenses, or other benefits are provided pursuant to the Public Official Election Act. Article 230(1)4 of the Public Official Election Act provides that “any person who expresses, promises to offer, or promises to offer money, valuables, or other benefits in connection with election campaign regardless of the pretext thereof, such as allowances, actual expenses, or compensation for volunteer service, in violation of Article 135(3) of the Public Official Election Act.” Article 135(3)5 of the Public Official Election Act provides that “any person who gives, expresses, or promises to give, money, valuables, images, motion pictures, etc., other than those provided for in this Act, shall be posted on the bulletin board, toilet room, etc. of the Internet homepage or sent electronic mail text messages in return.”

Comparing to Article 230(1)4 of the Public Official Election Act, Article 230(1)5 of the same Act provides for punishing acts such as offering money, valuables, and other benefits in relation to election campaigns except as otherwise provided for in the Public Official Election Act. Article 230(4) provides for punishing acts such as providing money, valuables, and other benefits in return for acts such as transmission of text by unlawful means or posting on the bulletin board of the Internet homepage in order to influence election. The above two provisions are different from the elements of the crime and the subject of the regulation, such as the subject of the offense, the existence of a quid pro quo relationship, and the existence of an object that may affect election. Therefore, the latter does not have a special relationship with the former, and where a single act meets the respective elements of the crime, the two crimes

[2] Where a single act meets the elements of several crimes at the same time, the person having the right to institute a public prosecution may institute a public prosecution only against some of the crimes, taking into account various circumstances, such as the difficulty of proof, unless there are special circumstances, such as that the person having the right to institute a public prosecution significantly exceeded the discretion of prosecution

[3] Article 215(1) of the Criminal Procedure Act provides, “A prosecutor may seize, search, or inspect evidence according to a warrant issued by a judge of the competent district court, upon request of the public prosecutor, only if there is a circumstance to suspect that a suspect has committed a crime, if necessary for a criminal investigation.” Therefore, if a seizure of separate evidence irrelevant to the facts suspected of a crime, which was the ground for issuing a warrant, is conducted, this cannot be used as evidence of conviction in principle. However, in the case of a crime which was the object of search and seizure or a crime related thereto, the result of search and seizure may be used as evidence of guilt.

The term “crimes related to the suspected criminal facts” as stated in the search and seizure warrant refers to crimes having objective relevance to the suspected criminal facts stated in the search and seizure warrant, and are human relations between a person subject to the search and seizure warrant and a suspect. Of these, the objective relevance to the suspected criminal facts may also be acknowledged in cases where the facts or basic facts are directly related to the same criminal facts, as well as where they may be used as indirect evidence or circumstantial evidence to prove the motive and background of the crime, means and methods of the crime, time and place of the crime, etc. In addition, the relevance is recognized only in cases where specific and individual relations exist, taking into account the details of the suspected criminal facts stated in the search and seizure warrant, the subject of the investigation, the investigation circumstances, etc., and is not simply identical or similar to the suspected criminal facts. In addition, the human relationship between a suspect and a criminal suspect may also be recognized as a case involving a person subject to the search and seizure warrant, a criminal suspect, or a necessary accomplice as well as a necessary accomplice.

[4] The crime of violation of Articles 230(1)4 and 135(3) of the Public Official Election Act is subject to the punishment of offering money, valuables, or other benefits in connection with an election campaign, or expressing an intention to offer them, or promising to offer them. The punishment is not limited to offering money, goods, etc. during the election campaign period as prescribed by the above Act. The term “related to an election campaign” under Article 135(3) of the same Act is a broad concept of “for an election campaign” as “for an election campaign” and “for an election campaign, taking advantage of the motive for matters concerning the election campaign.” This is an expression used as it is necessary to regulate acts that are highly likely to infringe on the freedom and fairness of the election even if the purpose of the election campaign or the purpose of influencing the election does not necessarily require the provision of money, goods, or other benefits to be paid for an election campaign, and includes those related to an election campaign, such as a consideration for providing information related to an election campaign and expenses for an election campaign

[1] Article 40 of the Criminal Act, Articles 135(3), 230(1)4 and 5 of the Public Official Election Act / [2] Article 40 of the Criminal Act, Articles 246 and 247 of the Criminal Procedure Act / [3] Articles 215(1), 307, and 308-2 of the Criminal Procedure Act / [4] Articles 135(3) and 230(1)4 of the Public Official Election Act

[2] Supreme Court Decision 99Do1904 Decided November 26, 199 (Gong2000Sang, 100) / [3] Supreme Court Decision 2013Do11233 Decided March 10, 2016 (Gong2016Sang, 587), Supreme Court Decision 2016Do13489 Decided January 25, 2017 (Gong2017Sang, 496) / [4] Supreme Court Decision 2010Do910 Decided December 23, 2010 (Gong2011Sang, 275)

Defendant

Defendant

Law Firm Sofa, Attorneys Yellow-gu et al.

Seoul High Court Decision 2017No690 decided August 23, 2017

The appeal is dismissed.

The grounds of appeal are examined.

1. Whether applicable statutes are unlawful and whether the exercise of authority to institute a prosecution is lawful (ground of appeal No. 1)

A. Article 135(3) of the Public Official Election Act prohibits an act of offering, expressing an intention to offer, promising to offer, etc. money, valuables, or other benefits in connection with election campaign, regardless of the pretext thereof, except where allowances, actual expenses, or other benefits are provided pursuant to the Public Official Election Act. Article 230(1)4 of the Public Official Election Act provides that “any person who expresses, or promises to offer money, valuables, or other benefits in connection with election campaign regardless of the pretext thereof, such as allowances, actual expenses, or compensation for volunteer service, violates the provisions of Article 135(3) of the Public Official Election Act.” Article 135(3)5 of the Public Official Election Act provides that “any person who gives, expresses, or promises to provide money, valuables, images, motion pictures, etc., other than those provided for in this Act, shall be posted on the bulletin board, flood room, etc. of the Internet homepage or sent electronic mail text messages in return.”

Comparing to Article 230(1)4 of the Public Official Election Act, Article 230(1)5 of the same Act provides for punishing acts such as offering money, valuables, and other benefits in relation to election campaigns except as otherwise provided for in the Public Official Election Act. Article 230(4) provides for punishing acts such as providing money, valuables, and other benefits in return for acts such as transmission of text by unlawful means or posting on the bulletin board of the Internet homepage to influence the election. The above two provisions are different from the elements of the crime and the subject of the regulation, such as the subject of the offense, the existence of a quid pro quo relationship, and the existence of an object that may affect the election. Therefore, if the latter is not related to the former, and if a single act meets each element of the crime, the two crimes are in a mutual conflict

Meanwhile, in a case where a single act satisfies the requirements for several crimes at the same time, a person entitled to institute a public prosecution may institute a public prosecution only against some of the crimes, taking into account various circumstances, such as the difficulty of proof, unless there are special circumstances such as that the person in charge of a public prosecution has remarkably exceeded the discretion of prosecution by exercising the right to institute a public prosecution (see Supreme Court Decision 9Do1904 delivered on November 26, 199)

B. In the instant case, the prosecutor brought a public prosecution against the Defendant’s act only for the violation of Article 230(1)4 and Article 135(3) of the Public Official Election Act without instituting a public prosecution against the Defendant’s violation of Article 230(1)5. This may be deemed to have brought a public prosecution as above, taking into account various circumstances, such as whether the Defendant satisfied the requirements for establishment under the above two provisions and the difficulty in proving, etc., and it is difficult to deem that the prosecutor arbitrarily exercised the right to institute a public prosecution or remarkably exempted the prosecution discretion. The measure of maintaining the first instance judgment that punished the Defendant as a violation of Article 230(1)4 and Article 135(3) of the Public Official Election Act to the extent that the public prosecution was instituted by the lower court is lawful. In so determining, the lower court did not err by violating the Acts

2. Whether illegally collected evidence (Ground of appeal No. 3) is obtained

A. Article 215(1) of the Criminal Procedure Act provides, “A public prosecutor may seize, search, or inspect evidence according to a warrant issued by a judge of the competent district court upon request of the public prosecutor only if there is a circumstance to suspect that a suspect has committed a crime, if necessary for a criminal investigation.” Therefore, if a public prosecutor seizes separate evidence irrelevant to the facts suspected of a crime, which was the ground for issuing a warrant, in principle, it shall not be used as evidence for conviction. However, in cases of a crime that was the object of search and seizure or a crime related thereto, the result of search and seizure may be used as evidence of guilt (see, e.g., Supreme Court Decision 2013Do1233, Mar. 10, 2016).

The term “crimes related to the suspected criminal facts” as stated in the search and seizure warrant refers to crimes having objective relevance to the suspected criminal facts stated in the search and seizure warrant, and are human relevance between a person subject to the search and seizure warrant and a suspect. Of these, the objective relevance to the suspected criminal facts may be acknowledged in cases where the facts themselves or basic facts with respect to the criminal facts stated in the search and seizure warrant are directly related to the same criminal facts, and may be used as indirect evidence or circumstantial evidence to prove the motive and background of the crime, the means and method of the crime, the time and place of the crime, etc. In addition, the relevance is recognized only in cases where a specific and individual relationship exists with the criminal facts stated in the search and seizure warrant, taking into account the details of the criminal facts stated in the search and seizure warrant, the subject of the investigation, the investigation circumstances, etc., and it does not simply relate to the criminal facts of the same or similar criminal facts. Moreover, the personal relevance between the suspect and the criminal suspect may also be recognized as the criminal case against the requisite accomplice as well as the co-principal or the criminal suspect (see, etc.)

B. On the grounds delineated below, the lower court determined that Nonindicted 1’s mobile phone analysis results and evidence obtained based on the search and seizure warrant as of September 9, 2016 (hereinafter “first search and seizure warrant”) did not constitute illegally collected evidence.

(1) The suspected charge of publishing false information stated in the first search and seizure warrant is that the Defendant posted a false statement on his/her page in relation to the election campaign on April 11, 2016. The facts charged in the instant case is that the Defendant offered money and valuables to Nonindicted Party 1 by requesting the publication of campaign material to his/her page in relation to the election campaign around March 30, 2016.

The facts charged in this case constitute indirect evidence to prove the motive and background of the crime, means and methods of the crime, time and place of the crime, etc., or circumstantial evidence, etc. As such, the facts charged in this case are objectively related to the facts charged in the first search and seizure warrant. In addition, since both the facts charged in this case and the facts charged in the first search and seizure warrant are related to the election campaign through Facebook as the defendant becomes the principal offender, human relations is recognized.

(2) In the course of the execution of the first search and seizure warrant, the prosecutor prepared and delivered a certificate of search and seizure to Nonindicted Party 1, and Nonindicted Party 1 had sufficiently guaranteed Nonindicted Party 1’s right to participate in the search and seizure process, such as certifying whether he/she complies with the warrant, etc., and preparing and delivering a written consent to voluntary submission. In addition, even if evidence is discovered that the status of the person subject to the search and seizure is converted from the witness to the suspect in the course of the execution of the search and seizure warrant, if such evidence is objectively related to the criminal facts stated in the search and seizure warrant, such evidence is within the scope of the execution of the search and seizure warrant. Therefore, it is difficult to deem that Nonindicted Party 1 should have

C. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s determination is justifiable. In so determining, the lower court did not err by misapprehending the legal doctrine on illegally collected evidence, contrary to what is alleged in the grounds of

3. Whether hearsay evidence is admissible (Ground of appeal No. 4)

A. Pursuant to Article 314 of the Criminal Procedure Act, in order to use the protocol under Article 312 of the same Act or the statement, documents, etc. under Article 313 of the same Act as evidence, a person who needs to make a statement at a preparatory hearing or on a trial date is unable to make a statement due to his/her death, disease, foreign residence, unknown whereabouts, or any other similar cause, and the preparation of the statement or documents must be made under particularly reliable circumstances.

First, the phrase “when a person who needs to make a statement on the preparation of a trial or the date of trial is unable to make a statement because of death, illness, or any other cause” includes cases where the person’s whereabouts cannot be confirmed even though the writ of summons became unable to be served due to the unknown address, etc. In addition, the phrase “when it was made under particularly reliable circumstances”, which is a single requirement, refers to cases where there is no possibility that any falsity would be involved in the preparation of the content of the statement or the protocol or documents, and there is a specific and external circumstance to ensure the credibility or voluntariness of the contents of the statement (see, e.g., Supreme Court Decisions 95Do523, Jun. 13, 1995; 2003Do171, Mar. 11, 2004; 201Do17620, Jun. 28, 2013).

B. In light of the following circumstances, the lower court determined that: (a) Nonindicted 1’s whereabouts were not known even though Nonindicted 1 made adequate efforts to attend the court; and (b) Nonindicted 1 was aware of the progress of the trial but could not be summoned by telephone because it was not by telephone; and (c) such circumstance constitutes “when a person who needs to make a statement at the trial date is unable to make a statement because his/her whereabouts is unknown or due to any other similar cause” as prescribed in Article 314

(1) The court of first instance summoned Nonindicted 1 who was prosecuted as co-defendant 1, but ordered the prosecutor to correct the address when the writ of summons was not served due to the absence of a closed door, and again served the Defendant’s writ of summons to the corrected address, but the delivery was not made due to the absence of a closed door, and the subsequent request for the detection of location was made, but the location was not identified.

(2) In order to identify the whereabouts of Nonindicted Party 1 on November 30, 2016, the prosecutor was under the direction of a location investigation against the head of the relevant police station and the head of the relevant U.S. police station, but the location was not identified.

(3) For the confirmation of Nonindicted Party 1’s whereabouts, the prosecutor inquiredd whether the details of Nonindicted Party 1 purchased in the name of 3 companies, i.e., KS telecom Co., Ltd., ELPlers Co., Ltd., and KS. The cell phone number (number 1 omitted) admitted to the KS telecom Co., Ltd. was a starting-down situation, and confirmed that the Internet phone number (number 2 omitted) admitted to the EL PPer was either entirely known or not connected to the Internet.

(4) Nonindicted 2, who appeared as a witness at the lower court, testified with Nonindicted 1 on June 13, 2017, and received Kakakao Stockholm messages on the day of his appearance. Nonindicted 1 also knows that the Defendant was tried in the instant case. Nonindicted 1’s telephone number was (the phone number 3 omitted). Nonindicted 1 recommended Nonindicted 1 to appear in the court and to give testimony, but Nonindicted 1 said that “I do not know that I would have to do so.”

(5) The Defendant’s defense counsel submitted an application for witness with respect to Nonindicted Party 1 by supplementing the address of Nonindicted Party 1 as the place of residence in which he had previously been living, and the telephone number as the above “(number 3 omitted)”. However, the witness summons was not served due to the addressee’s uncertainty, and even though Nonindicted Party 1 attempted to make a telephone call with the above telephone number, the Defendant could not be summoned due to Nonindicted Party 1’s no telephone number.

C. In addition, in light of the following circumstances, the lower court determined that Nonindicted 1’s prosecutor’s statement was made under particularly reliable circumstances.

(1) When Nonindicted 1’s cell phone was seized with the Defendant’s text message, Nonindicted 1 appeared at the prosecutor’s office and stated the fact that he received money from the Defendant on two occasions under the status of being notified of the right to refuse to make statements and the right to assist the defense counsel.

(2) The contents of Nonindicted Party 1’s statement are specific, relatively consistent, and consistent with objective evidence, such as the contents of cell phone messages sent and received by the Defendant and Nonindicted Party 1 from March 29, 2016 and the details of financial transactions between the Defendant and Nonindicted Party 1.

(3) It is difficult to view that Nonindicted 1’s statement is false on the ground that there is no reason to believe that Nonindicted 1’s intent to impose criminal punishment on the Defendant during criminal punishment due to his/her violation of the Public Official Election Act.

D. In light of various circumstances, including Nonindicted 1’s statement process, content, relationship with the Defendant, etc., circumstances before and after the statement, and the reason for non-indicted 1’s failure to make a statement on the date of trial, the lower court determined that there is room for false intervention in the preparation of the statement contents or protocol, and that there was specific and external circumstances to guarantee the voluntariness and credibility of the statement contents. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly adopted and the record, the lower court’s determination is justifiable. In so determining, the lower court did not err by misapprehending the legal doctrine on Article 314 of the Criminal Procedure Act, which recognized that the prosecutor’s protocol and the suspect interrogation protocol with respect to Nonindicted 1 were admissible in accordance with Article 314 of the Criminal Procedure Act.

4. Whether money, valuables, etc. related to election campaign are provided (ground of appeal No. 2)

A. The crime of violation of Articles 230(1)4 and 135(3) of the Public Official Election Act is subject to the punishment of offering money, valuables, or other benefits in connection with an election campaign, or expressing an intention or promising to offer such money, valuables, or other benefits in connection with the election campaign. The subject of the punishment is not limited to offering money, goods, etc. during the election campaign period as prescribed by the said Act. “In relation to an election campaign” under Article 135(3) of the said Act is a wider concept than “for an election campaign” as it is “for an election campaign, taking advantage of the motive for matters concerning the election campaign.” This is an expression used as it is necessary to regulate activities that are highly likely to infringe on the freedom and fairness of the election even if the purpose of the election campaign or the purpose of influencing the election does not necessarily require the provision of money, goods, or other benefits, and includes those related to an election campaign, such as a consideration for providing information related to the election campaign and expenses for the election campaign workers (see Supreme Court Decision 2010Do1010, Dec. 23, 2010).

B. For the following reasons, the lower court determined that even if part of the price for Nonindicted 1’s aiding and abetting North Contact, etc. was partially mixed before the election of the 20th National Assembly member, it is reasonable to view that the main nature of the price was paid in relation to the election campaign in the 20th National Assembly member election.

(1) The statement made by Nonindicted 1 to the prosecution is consistent with the criminal facts of the instant case, and its contents are relatively consistent and consistent in line with objective evidence, such as the content of the message and the details of the financial transaction, thereby enhancing credibility.

(2) On March 30, 2016, when the Defendant contacted Nonindicted 1 and remitted KRW 2 million to Nonindicted 1, the period was two months after the date on which the North Contact was held, and was one day before the election campaign period for the 20th National Assembly members. In light of such point, the above two million won was paid for the election campaign rather than for the North Contact.

(3) 피고인은 2016. 3. 30. 공소외 1에게 200만 원을 송금하면서 ‘보냈습니다. 많은 활동 부탁합니다. 이제 2주...!!!, 공약 전파 중요합니다.’라는 메시지를 보냈다. 공소외 1은 피고인으로부터 200만 원을 송금받은 후 공소외 2에게 카카오톡으로 ‘피고인부터 하지, 쩐 받아옴’이라는 메시지를 보내기도 하였다. 위 각 메시지 내용에 비추어 보면, 피고인과 공소외 1은 위 200만 원이 선거운동의 대가로 교부되었다는 사실을 충분히 인식하였다고 볼 수 있다.

(4) When remitting KRW 2 million to Nonindicted 1, the Defendant entered “sns” in the remarks column. In light of this, the above KRW 2 million should be deemed the costs paid to Nonindicted 1 in relation to the SNS (social network services) publicity activities.

C. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on “election campaign” under Articles 230(1)4 and 135(3) of the Public Official Election Act, contrary to what is alleged in the grounds of appeal.

5. Conclusion

The Defendant’s appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)