(영문) 전주지방법원 2008.7.10.선고 2008고합14 판결

Defendant B shall be punished by a fine of KRW 800,00,000. If Defendant B did not pay the said fine, Defendant B shall be confined in the calendar for a period of 50,000 won converted into one day.

Defendant B is ordered to pay an amount equivalent to the above fine. Of the facts charged in this case against Defendant B, the distribution of No. 21 of the Union of New Technology to Defendant A and C are not guilty.

The summary of the judgment against the defendant A and C is publicly announced.

Reasons

Criminal History Office

Defendant B is a person who is not a joint representative of the North Korean Union.

Except as provided for in the Public Official Election Act, no one shall distribute any newspaper, communication, magazine, institution, organization, organ of facility, or other publication that carries an article related to the election in a way other than ordinary ways, or reproduce and distribute such article.

However, on November 207, 2007, Defendant B, on the 17th presidential election conducted on December 19, 2007, had been tried to receive and distribute a letter indicating the publicity and support of the candidates for Lee Jong-bak, a candidate for the President of the Republic of Korea, from the National Association of New Technology, at the office of the Republic of Korea, 539, Samcheon-gu, Samcheon-gu, Samcheon-dong, 2, 539, "Haak-gu" from the National Association of New Technology, as the title "Haak-gu, ................"

around November 25, 2007, Defendant B put about 50 of the above machinery in a mail box, such as a house and a commercial building, and distributed it by means of placing it into the front glass of the parked vehicle.

As a result, Defendant B distributed approximately 50 of the above Agency No. 20 by way other than a normal way.

Summary of Evidence

1. Each legal statement of Defendant A and C;

1. Entry of part of the protocol of examination of suspect as to Defendant B prepared by the prosecutor;

1. An interrogation protocol of Defendant A prepared by a public prosecutor;

1. An interrogation protocol of the accused A prepared by a prosecutor in charge;

1. An interrogation protocol of the suspect who has been prepared by the prosecution assistant;

1. Statement of the Korea Prosecutorial Assistants prepared by the Prosecutorial Assistants;

1. A written answer to the defendant A;

1. One copy of the National Federation of New Zealand No. 20;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 252(1) and 95(1) of the Public Official Election Act (Selection of Fines)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The defendant's assertion and judgment on such assertion

1. Defendant B has always been engaged in the act of gathering new line publicity and distribution of agency sites while accompanying Defendant B at all times, and distribution has been made only to the extent that the agency dispatched by mail has been returned, Defendant B did not have distributed to mail such as a house and commercial building at the time and place as indicated in its holding and by inserting it into the front glass of the parked vehicle.

2. However, the circumstances revealed by the above evidence, i.e., (i) around December 17, 2007, Defendant A and C returned to the commercial buildings, apartment houses, etc. of the members of the former unit of the former unit of North Korea, along with Defendant A and C around December 17, 2007 (Evidence No. 263). The above argument that Defendant B, wheneverever, did her act of publicity and distribution of the organization, is difficult to believe, and (ii) in November 2007, when the above organization was distributed No. 20, unlike other months, could not be anticipated to return the said organization's No. 20 because of the failure to deliver the mail due to the breakdown of the office of the former unit of North Korea, and (iii) Defendant A was aware of Defendant B, and brought about the above organization No. 20.20.

In light of the fact that he stated that he distributed the above machinery in the Nowon-dong party, and (4) among the members of the above North Korean Union, only Defendant B was put into the post, such as house and commercial building, and the method of distributing the machinery put in the front glass of the parked vehicle, etc., the above argument by Defendant B cannot be accepted.

3. Meanwhile, around November 27, 2007, Defendant B denies the fact that Defendant B distributed approximately approximately approximately approximately approximately approximately approximately 25 copies of the above machinery by dividing them to the actors who were passed through the Sojin-gu So-gu So-gu So-gu So-gu So-called So-called So-called So-called So-called So-called So-called So-called So-called So-called "Seoul"), but as a result of the following examination, Defendant B conspired with Defendant A and C about this part and distributed approximately approximately 5,950 copies of the above New Technology Association's Organization by means other than ordinary methods. Thus, this part of the facts charged is not judged separately.

Grounds for sentencing

The agencies distributed by Defendant B, when compared to the general documents and drawings, shall be repeatedly issued with certain types of signals, such as title, publisher, and date of issuance, and generally composed of reports and commentaries on objective facts. Thus, if they are abused as an election campaign object beyond the method and scope of ordinary distribution, they shall be punished strictly due to the size of the impact on the election. However, considering the fact that the number of the number of the agencies distributed by Defendant B is not large, and that the above defendant has no record of the same kind of crime, the punishment shall be determined as per the order.

Parts of innocence

1. Summary of the facts charged

Defendant A is a full-time representative of the North Korean Union, and Defendant B is the joint representative of the said North Korean Union, and Defendant B is the secretary of the said North Korean Union. With respect to the 17th presidential election implemented on December 19, 2007, no one may distribute newspapers, communications, magazines, institutions, organizations, institutions, and other publications that carried articles related to the election in a way other than ordinary ways, or reproduce and distribute such articles, except as provided in the Public Official Election Act.

Nevertheless, on November 2007, the Defendants had been willing to distribute to many general unspecified persons, who are not members of the National Association of New Technology, the article to publicize and support the candidates for the e-mail, a candidate for the President of the Republic of Korea at the time, at the office of the Association of New Technology located in 539, Samcheon-gu, Jeoncheon-gu, Hacheon-gu, Hacheon-si, Hacheon-gu, 2007.

A. On November 2007, the Defendants received approximately approximately KRW 6,000 copies of the National New Technology Association No. 20 on November 20, 2007, on the title of "No. BBK" from the National Federation of New Technology, and "No. BBK" from the National Federation of New Technology, stating that "No. 56,00 copies were sent."

피고인 甲, 丙은 피고인 乙과 공모하여 2007. 11. 25.경 전주시 완산구 중노송동 일대에서 위 기관지 약 50여부를 주택, 상가 등 우편함에 투입하고, 주차된 차량의 전면 유리창에 끼워 넣는 등의 방법으로 이를 배부하였다(피고인 乙에 대한 이 부분 공소사실은 앞서 본 바와 같이 유죄로 인정된다). 피고인 乙은 2007. 11. 27.경 전주시 덕진구 덕진동 소재 덕진광장에서 지나가는 행인들에게 나누어 주는 등의 방법으로 위 기관지 제20호 약 25부를 배부하였다. 피고인 甲, 피고인 丙은 2007.11.27.경 위 전북연합 홍보실장 丁과 함께 전북 김제시 요촌동 일대에서, 주변 상가 등을 방문하여 사람들에게 나누어 주는 등의 방법으로 위 기관지 20호 약 30부를 배부하였고, 2007. 11. 30.경 전북 완주군, 무주군 등 전북 일원에서 위 기관지 20호 약 500부 내지 1,000부를 위와 같은 방법으로 배부하였으며, 그 외에도 피고인 丙은 2007. 11. 25.경부터 2007. 11. 29.경까지 전주시 일원 도서관, 관공서 민원실, 주유소 등에서 위와 같은 방법으로 위 기관지 20호 약 5천부 상당을 배부하였다.

As a result, the Defendants conspired to distribute approximately KRW 6,000 ( approximately KRW 5,950 in the case of Defendant B) from November 25, 2007 to November 30, 2007 to Jeonju-si, Kim Jong-si, in a way other than an ordinary way.

B. On December 11, 2007, the Defendants sent approximately KRW 21,600, on December 11, 2007, on the part of the Defendant’s office, on the title of “Korea National Federation of New Technology from the Republic of Korea to Korea,” including “Korea National Assembly’s spirit of change of political power to Korea, dyna Party’s name, dyna Party’s name, dynas name candidate’s authorization, etc., and on the part of this Party’s campaign candidate’s publicity and support.

On December 17, 2007, the Defendants distributed approximately 50 copies of No. 21 of the said land by way of dividing them to the people like the above paragraph (a) while returning to the members of the North Korean Office, commercial buildings, apartment houses, etc. in the North Korean Office.

As a result, the Defendants conspired to distribute approximately 50 copies No. 21 of the Organization of the National Federation of New Technology in a way other than a normal way, instead of according to the Public Official Election Act from the members of the North Korean Office.

2. Issues and legal principles of the instant case

A. The key issue of the instant case is whether the Defendants, as stated in the summary of the instant facts charged, divided a new line of agency into two parts of the Republic of Korea, visited stores, etc., or divided the said agency into libraries, government offices, civil service offices, and gas stations, etc. by means other than ordinary methods under Article 95 of the Public Official Election Act, and whether Defendant A and C conspired to distribute the said agency by means other than ordinary methods under Article 95 of the Public Official Election Act around November 25, 2007, and whether Defendant B conspired to do so.

B. Article 95(1) of the Public Official Election Act provides that "No one shall distribute any newspaper, communication, magazine, organ of an institution, organization, facility, or other publication that carries an article concerning the election in any way other than ordinary ways, or reproduce and distribute such article." Article 95(2) of the same Act provides that "an ordinary method shall be published and distributed within the previous one." For the purpose of ensuring fairness in the election, the freedom of election campaign should not be excessively infringed in interpreting and applying Article 95(1) of the Public Official Election Act that limits the freedom of election campaign, and the essential contents of the citizens' freedom of political expression should not be excessively infringed. Thus, in order to fall under the "manner other than ordinary one" as mentioned above, it should be seen that it should reach the extent that it can be seen as a method of distributing publications that deviate from the original method and scope of ordinary publication to accomplish the original purpose of publication (see Supreme Court Decision 200Do8969, Jun. 23, 2005).

3. Determination

A. According to the evidence duly examined and adopted by the court, the method of distributing the machinery sites of the New Zealand, which was implemented in a usual manner, is found to be the fact that from February 2007 to February 7, 2007, the Korean Union received from the Korean Federation of New Zealand whether it was 6,00-7,000 from the Korean Federation of New Zealand, the Korean Union's place of receipt as above, ① the method of sending the machinery sites to the members of the New Zealand, ② the method of sending them by mail or sending them to the members of the Korean Association of New Zealand, ② the method of keeping them in a list such as libraries, libraries, government offices, and gas stations, ③ the Defendants, and the members of the Korean Association of New Zealand, including the Defendants, divided them to the players or distributed them by visiting commercial buildings. Thus, the distribution to the Korean Association's place of distribution by the above method constitutes an ordinary method under Article 95 (2) of the Public Official Election Act.

B. On November 25, 2007, part of the charge that Defendant B distributed approximately approximately 50 No. 20 of the above machinery's No. 20 to the above machinery's around November 25, 2007, which was input about approximately 50 of the above machinery's No. 20 to the mail, such as a house and a commercial building, and distributed by inserting them to the front glass of the parked vehicle, as seen earlier, the part of the charge is found guilty on this part of the charge since it differs from the method of distributing the machinery's land where the North Korean Union of New Technology performed flat, and thus, it was found that this part of the charge was guilty.

However, according to the evidence duly examined and adopted by this court as to whether Defendant A and C made a joint process with Defendant B's act of distributing the land's body, it can be acknowledged that Defendant B was called the joint representative of the New Technology Association, but Defendant B did not act as a full-time executive member of the New Technology Association. Defendant B did not act as the joint executive member of the New Technology Association. Defendant B did not act as an irregular representative of the real estate-related lectures and distributed the office of the New Technology Association at his own discretion and without reporting or notifying Defendant A and C of the distribution of the land's body. Although there was no need to do so directly and explicitly in the joint principal offense, it is not sufficient to recognize the remainder of the facts charged.

According to the method of dividing the instant agency sites to the players passing by the Defendants, or distributing the said agency sites to the libraries, government offices, civil service centers, and gas stations, etc. (the prosecutor indicted the Defendants without distinguishing the method of distributing the Defendants’ agency sites and distributed the instant agency sites to the same way as the Defendants’ “the above.” However, according to the evidence submitted by the prosecutor, it is acknowledged that Defendant B posted approximately 50 copies of the said agency sites on November 25, 2007 by means of either inserting them by mail or placing them into the front glass window of the vehicles, or distributing them by means of distributing them to the players only after the lapse of the Defendants to visit the shops, etc. or by visiting the shops, etc. to keep the said agency sites to the libraries, public offices, and gas stations, etc. (it is not different from the method of distributing the agency sites that the North Korean Union of New Technology carried out for deliberation as seen earlier.

On the other hand, in the case of subparagraph 20 of the Native Organization of New Zealand, it may be recognized that the mail was not sent in November 2007, but it was due to the fact that the Native Organization of the Native Organization was unable to output the broken-outs or the address records at the time, and that the new Native Organization was purchased and then sent by mail with subparagraph 21 of the Native Organization of the Native Organization of New Zealand around December 14, 2007. Thus, the mere fact that the Native Organization of the Native Organization was not sent by mail No. 20 may not be deemed to have reached the extent that it can be seen as a distribution method to promote the election campaign of candidates for the Native Organization of the Native Organization of the Native Organization of the Native Organization of New Daily by deviating from the original purpose of publication of the Native Organization of the Native Organization of the Native Organization of

Therefore, there is no evidence that the Defendants distributed the remaining facts charged in a way other than a normal way.

4. Conclusion

Thus, since all of the facts charged charged are without proof of criminal facts, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, inasmuch as Defendant B conspired with Defendant A and C and distributed Nos. 20 of the above agencies in collusion with Defendant A and C is found guilty of the crime of violating the Public Official Election Act in the judgment of indictment as a single crime, the judgment of innocence is not separately made in the order, and Defendant A and C are not guilty. In addition, the summary of the judgment on Defendant A and C is publicly announced pursuant to Article 58(2) of the Criminal Act.