Defendant

Defendant

Water for refining

Law Firm Roon, Attorneys Cho Jae-soo et al.

Seoul Central District Court Decision 2010Gohap1394 Decided November 25, 2010

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of legal principles or mistake of facts

The defendant's act of requesting the support of the non-indicted 1 candidate to the employees of the Korea National Tourism Organization who held office as the auditor was true. However, the defendant's office did not have a place to be closed at the time and requested the above request to the employees in the office of audit and inspection room of the defendant, and the contents of the request were merely private matters unrelated to the duties at the time. There is no fact that the defendant used the official duties such as requesting the audit and inspection by using a certain act related to the duties as the auditor or requesting a certain act to be carried out in a specific manner

Nevertheless, the judgment of the court below that recognized the fact that the defendant carried out an election campaign by using an official act, is erroneous in the misapprehension of legal principles or by mistake of facts.

B. Unreasonable sentencing

The punishment (1.5 million won of a fine) imposed on the defendant by the court below is too unreasonable.

2. Determination

(a) Whether the defendant has carried out an election campaign by using his official activities;

1) The main sentence of Article 85(2) of the Public Official Election Act provides that "no person shall carry out or have another person carry out an election campaign by taking advantage of any occupational act within the organization of an educational, religious or professional institution, organization, etc." The term "act of carrying out an election campaign for its members by taking advantage of any occupational act within the organization of a professional institution, etc." refers to "act of carrying out an election campaign by taking advantage of any occupational act within the organization of a professional institution, etc." means "act of carrying out an election campaign by taking advantage of any act related to his/her status or duties to

2) However, the following circumstances acknowledged by the evidence duly adopted and examined by the court below, i.e., ① the auditor of the Korea National Tourism Organization has the authority to request the submission of relevant documents, books, evidence, and articles, demand for attendance and answers by the related persons, and take other measures deemed necessary for the audit, except in extenuating circumstances. As a result of the audit, the person so demanded shall comply with the request, and as a result, demand the president to improve the regulations, systems, or improper matters, rectify the illegal matters, take disciplinary action or compensation for the related personnel, educate the pertinent personnel, and take other necessary measures. The defendant was in the position to affect the auditor's duties. ② The defendant was in the position to ask the defendant on his own, and the defendant was not in the position to find out his position to be in connection with his duties, but the defendant was in the position to ask the defendant on his behalf, who was non-indicted 2, 3, and 4, who was an employee of the Korea National Tourism Organization, and the defendant appears to have been in the position of the candidate for the above auditor.

3) Therefore, the judgment of the court below that recognized the defendant's election campaign against its members by taking advantage of an official act within the organization is just and acceptable, and there is no error of law by misapprehending the legal principles or by misunderstanding facts, which affected the conclusion of the judgment, and thus, this part of the defendant'

B. Determination on the assertion of unfair sentencing

It is recognized that the defendant seems to have caused to commit each of the crimes of this case due to his personal relationship with the non-indicted 1 candidate, that he seems to have had no particular influence on the election as three employees who engaged in election campaign, and that the defendant has no record of punishment for the same crime.

However, although the defendant was an auditor of the Korea National Tourism Organization which is entirely unable to carry out an election campaign under the Public Official Election Act, the defendant conducted an election campaign, and the defendant identified the personal information of the persons subject to the election campaign by taking advantage of the status of auditing through which disciplinary action can be demanded according to the result of auditing the employees, and then conducted an election campaign against the employees of the Korea National Tourism Organization. This was intended to infringe on the freedom of election of the above employees, and thus the nature of the crime is not good, and taking into account all the sentencing conditions in the arguments in this case, such as the defendant's age, character, conduct and family relation, it is not recognized that the punishment imposed by the court below is too

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Sang-chul (Presiding Judge)