Defendant 1 and seven others

Defendants and Prosecutor

A personal post (prosecution), court room, and court trial

Law Firm Jung-won et al.

Daegu District Court Decision 2012Gohap230 Decided November 23, 2012

All appeals filed by the Defendants and the Prosecutor against Defendant 1, 2, 3, 4, 5, and 8 are dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

(1) Defendant 1

(A) To constitute “private organization” under Article 87(2) of the Public Official Election Act, three requirements, namely, “a person who wishes to be a candidate in the election,” must be met. In addition, a crime of violation of Article 87(2) of the Public Official Election Act is an establishment of private organization up to the number of times, and the reason for conviction ought to be clearly indicated, and the date and time of crime should be specified to the extent necessary to specify criminal facts. However, the lower court erred by misapprehending the legal doctrine on the establishment of private organization, including the first meeting on May 14, 201, the first meeting on June 3, 2011 and the second meeting on June 17, 201, the establishment of a car page on August 9, 201, the establishment of the organization on August 21, 201, and the establishment of the organization on August 24, 201, which did not interfere with the conclusion of the judgment of the lower court and did not interfere with the establishment of the organization.”

(B) On June 3, 2011, 200, 200 members of the △△△△△ Group were elected by 20 members of the △△△△△ Group, or established Internet carpets on August 9, 2011, and around that time, the establishment of ○○ Private Offering or △△△△△△ Group was completed. However, Defendant 1’s early members of the ○○ Private Offering Group (Defendant 5 and 8 are members of high school, and Defendant 6, 3 were linked to Defendant 2, 4, and were members of the △△△△△△ Group’s organization, which was established at the time of the ○○○○○○○○’s election campaign, and was not established at the time of the 6th election campaign, and was not established at the time of the 1st election campaign, and the lower court determined that Defendant 1’s “private placement” was a kind of organization that did not have any influence on the formation of public opinion, and thus, did not have any character of Defendant 1’s political organization prior to 10.

(C) Even though “○○ private placement” or “△△△△” is a private organization established for Defendant 1’s election campaign, in light of the following circumstances, Defendant 1 cannot be deemed to have engaged in functional control over Defendant 1’s establishment or operation of “○○ private placement” or “△△△△△” after the fact that it can be deemed that Defendant 1 had engaged in functional control over the establishment or operation of “○○○” or “△△△△△△△” through an essential contribution. Thus, Defendant 1 cannot be deemed to have engaged in the establishment of “○○ private placement” or “△△△△△” in collusion with the rest Defendants. Nevertheless, the judgment of the court below that recognized Defendant 1, in collusion with the rest of the Defendants, established “○○ private placement” or “△△△△△”, which is a private organization for one’s election campaign, was erroneous by misapprehending the rules of evidence or by misapprehending the legal principles on

① Although Defendant 2 was first referred to in the report on “○ private placement project for the creation of ○○○ region” that Defendant 1 reported to Defendant 1 on September 10, 2010, the term “○○ private placement” was not made based on that report. The term “○ private placement” referred to in the above report is organized by Dong, Dong, Tong, Women’s Association, Youth Committee, etc., but actually formed “○ private placement” has the nature of a friendship group or panty club comprised of the minority members who are connected with each other, such as delayed or academic circles, and Defendant 2 was entirely different from the contents mentioned in the above report, such as that he did not actively participate in the “○ private placement.” Furthermore, the above report is referred to only as an officer's dust in Dovek Sck for the Internet utilization plan, and there is no content that Defendant 2 and Defendant 4, who led Defendant 2 and Defendant 2.

② On March 10, 2011, Defendant 1 sent the e-mail to Defendant 2, 201, “Saeng team leader to find out a plan to utilize the e-mail” does not mean the opening of a new e-mail, but rather, it appears to utilize the e-mail already operated in the area of △△ region. In fact, Defendant 2 sent the e-mail to Defendant 1 the materials on the 4-5 Internet camera, working in the △ region after receiving the above e-mail from Defendant 1. Accordingly, Defendant 1 and Defendant 2 joined the △ Loc book, and Defendant 2 did not exchange the said e-mail with Defendant 2 until attending the first meeting of “○○ private placement” on May 14, 2011.

③ Defendant 1’s attending the first meeting of “private placement” on May 14, 201, following Defendant 1’s high school’s appearance at Defendant 1’s high school, Defendant 5’s appearance at Defendant 1’s own restaurant with Defendant 1’s mother, thus making it better for Defendant 5 to keep the face. There was no stipulation in the name of “private placement” at that place, and there was no discussion on the future method of activities or plans. After the conclusion of the meeting, Defendant 3 sent the list of the participants to Defendant 1 by e-mail, and it would be desirable for Defendant 1 to call the participants to direct audit, and Defendant 1 called Defendant 4 and 3.

④ Defendant 2, etc.: (a) held the second meeting of “private placement” on June 3, 201; (b) commissioned Defendant 1 as a standing adviser by organizing a director-at-law; (c) it was unilaterally resolved without Defendant 1’s consent while Defendant 1 did not attend the meeting; and (d) it was merely formally determined in terms of honorable treatment for the human resources supported by Defendant 1; (c) even after the second meeting, Defendant 1 received the list by e-mail; (d) however, Defendant 1 was unaware of the accurate substance or character of the meeting.

⑤ Defendant 1 merely instructed Defendant 2 to accurately identify the gathering that Defendant 4 led by Defendant 4 on July 14, 201, when she satisfyed a good speech about ○○ private placement. If Defendant 1 deemed that “○○ private placement” was a private organization established for one’s election campaign, there was no reason to give such instructions to Defendant 2. Accordingly, Defendant 1 is against the fact that Defendant 1 was well aware of the substance of the gathering “○ private placement.”

④ Defendant 1 was aware that the early members of “○ private placement” decided to open an Internet camera through internal meetings, and on August 9, 201, Defendant 1 was opening an Internet camera on August 12, 201. Defendant 5’s recommendation was led by Defendant 4 and 3, and Defendant 2 joined the above Internet camera on August 24, 201. At the time, the establishment and operation of the above Internet camera was led by Defendant 4 and 3, and Defendant 2 was subscribed to the above Internet camera on August 24, 201, and such circumstances were against Defendant 1 was entirely aware of the process of establishment of the camera.

⑦ 그 이후 피고인 1은 피고인 5 등의 요구에 의해 마지못해 ‘△△△사람들’의 모임에 몇 번 참석하기는 하였으나 그 또한 대부분 뒤늦게 참석하였다가 일찍 자리를 떴고 참가자들에 대한 특별한 애정표현도 없었을 뿐만 아니라 찬조 등 후원을 한 사실은 더욱 없었으며, 2011. 8. 21. 운영진 워크숍 및 결의대회 전까지는 카페에 글을 올린 적도 없는 등 매우 소극적인 태도를 견지하였는데, 바로 그 때문에 회장인 피고인 3이 운영진 등 다수가 모인 자리에서 ‘국장님께 드리는 글’을 낭독하면서 피고인 1에게 ‘우리를 무시하는 거냐’고 불만을 토로하면서 ‘그러면 우리는 도울 수 없다’고 말하기까지 하였다. 이와 같은 피고인 1의 소극적인 자세는 피고인 1이 사조직 결성을 지시하고 그 과정에 관여하였다면 있을 수 없는 태도이다.

(8) The court below should be interpreted to the effect that Defendant 1’s part of Defendant 2 and 8’s prosecutorial statements presented in support of Defendant 1’s involvement in the formation of the private organization of “○ private placement” or “△△△△” should be interpreted to the effect that, rather than Defendant 1’s involvement, Defendant 1 did not go against our society for the well-being of Defendant 1” (in particular, Defendant 2’s statements stated in the 29th decision of the court below appear to be erroneous as Defendant 3’s statements).

(2) The remaining Defendants except Defendant 1

In the facts stated in the judgment of the court below, “○ private placement” or “△△△△ persons” are groups established voluntarily by the rest of the Defendants except Defendant 1 without Defendant 1’s instruction or involvement, and they are political groups permitted under the Public Official Election Act, which are similar to “private placement” or “doctoral mother.” Even if “○○○” or “△△△” constitutes private organizations prohibited from establishment under the Public Official Election Act, since the rest of the Defendants except Defendant 1 are voluntarily organized and operated without Defendant 1’s instruction or involvement, they do not constitute private organizations prohibited under Article 87(2) of the Public Official Election Act. Nevertheless, the court below found Defendant 1 guilty of all the facts charged against the rest of the Defendants except Defendant 1, or erred by misapprehending the legal principles on the formation of private organizations or co-principal under the Public Official Election Act, thereby adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

(1) Defendants

The sentence of the lower court (Defendant 1, Defendant 2: each fine of KRW 3 million, Defendant 3, 4, 5, and 8: each fine of KRW 2.5 million, Defendant 6, and 7: each fine of KRW 1.5 million) is too unreasonable.

(2) Prosecutor (Defendant 1, 2, 3, 4, 5, and 8)

The sentence of the court below is too uneased so that it is unfair.

2. Judgment on the misunderstanding of facts or misapprehension of legal principles by the Defendants

A. Determination as to whether the facts charged regarding the time of establishment of “○ private placement” or “△△△△” are specified

(1) Relevant legal principles

Article 254(4) of the Criminal Procedure Act, which provides the specific method of the facts charged, requires a statement to the extent that it does not conflict with the time of double prosecution or prescription. The "place" requires a statement to the extent that it represents the territorial jurisdiction, and the " method" requires three specific elements of the facts charged. The purport of the law requiring three specific elements of the facts charged is to limit the scope of the defendant's defense and facilitate the exercise of the right of defense. Thus, the facts charged are to be stated to the extent that it is possible to distinguish the specific facts that meet the above three specific elements, and even if the date, place, method, etc. of the crime are known in detail, it does not go against the extent that it is necessary to write "day, place, method," and in light of the nature of the facts charged, if it appears that the exercise of the right of defense of the defendant is not hindered, it shall not be deemed that it does not interfere with the execution of the right of defense of the defendant.

(2) Determination

Examining the following circumstances found by the evidence duly adopted and examined in the court below and the court below in light of the relevant legal principles as seen earlier, the prosecutor can sufficiently recognize that the prosecutor charged the instant case by specifying the time of establishment of the private organization “○○ Private Offering” or “△△△△ persons,” and there is no special circumstance to deem otherwise that there was an obstacle to Defendant 1’s exercise of defense right due to the unspecified and unspecified time of establishment of the private organization (i.e., preparation of meetings, recruitment and recruitment of members, organization organization such as recruitment of officers, appointment of officers, etc.). In light of the characteristics of the private organization for an election campaign that is going through a series of development processes, such as the formation of a group, organization of officers, and specific activities, it is difficult to see that the facts charged were not specified strictly on the ground that the time of completion of establishment of the organization was not specified

① The prosecutor conspireds with the Defendants on the grounds of the second prosecutor’s statement by the rest of the Defendants except Defendant 1 and the relevant evidence records seized from Defendants 2 and 3, and formed a private organization by organizing the operating team of the “private placement” around June 3, 2011 and around June 17, 201, following the first meeting of the “private placement” on May 14, 201. The prosecutor explained the purport of organizing the organization at the meeting and discussed to open the Internet car page for Defendant 1’s election campaign in the future, and then explicitly stated the series of processes until the time of opening the Internet car page by changing the name of “△△△” from “private placement” to “△△△” on August 9, 2011.

② Accordingly, the lower court appears to have sufficiently asserted and presented evidence in relation to whether Defendant 1 was involved or instructed in the organization or activity of “○○ Privately” or “△△△△” in the process of the public trial.

③ Defendant 2 and others, regardless of Defendant 1’s intent, established “○ private placement” by unilateral and independent acts in accordance with their respective interests. Unlike the defense counsel’s assertion that Defendant 1 was aware of it and subsequently engaged in its activities and subsequently, Defendant 1 was prosecuted to the effect that Defendant 1’s private organization, “○ private placement,” was established under the direction or involvement of Defendant 1 from the beginning. The lower court found Defendant 1 guilty of the facts charged of the instant case through mutual defense.

Therefore, Defendant 1’s ground of appeal on this part cannot be accepted.

B. Determination as to whether “○○ private placement” or “△△△” constitutes “private organization” under Article 87(2) of the Public Official Election Act

(1) Relevant legal principles

Article 87(2) of the Public Official Election Act is a provision for maintaining equity in election campaign organizations among candidates and preventing heating competition and waste due to the difficult establishment of various forms of election campaign organizations. The private organization that prohibits the establishment or establishment of a new provision refers to any private organization established or established on behalf of a candidate or a person who wishes to be a candidate in an election, other than a statutory election organization, regardless of its name or claimed purpose (see Supreme Court Decisions 2007Do7902, Mar. 13, 2008; 2002Do45, Jun. 25, 2002).

(2) The judgment of the court below

Defendant 1 and his defense counsel also asserted the same as the grounds for appeal on mistake of facts or misapprehension of legal principles, and the court below rejected Defendant 1 and their defense counsel’s assertion on the grounds of the evidence duly adopted and examined as stated in its reasoning, taking into account the following facts and circumstances: (a) considering the developments leading up to the establishment of a meeting, the contents of the meeting’s activities, etc., which can be seen in light of such facts and circumstances; and (b) considering the relevant legal principles as seen earlier, the court below determined that “○○ private placement” or the name of the changed “△△△” was formed for Defendant 1’s election campaign and constitutes “private organization” as stipulated in Article 87(2) of the Public Official Election Act.

(3) Judgment of the court below

Examining the above facts and circumstances admitted by the court below in light of the relevant legal principles as seen earlier, the court below’s aforementioned determination is just and acceptable, and there were no errors in the misapprehension of legal principles as to private organizations as provided by Article 87(2) of the Public Official Election Act, as alleged in the grounds of appeal by the Defendants, or in the misapprehension of legal principles as to such private organizations as provided by Article 87(2) of the Public Official Election Act.

㈎ 피고인 1이 2011. 10. 4. 공직에서 사퇴하기 전까지 국회의원 선거에 출마할 의사를 결정하거나 공표하지 않았는지 여부에 관하여

Article 87(2) of the Public Official Election Act provides that "any person who intends to become a candidate shall not establish or set up any private organization or other organization, regardless of its name or professed purpose, such as research institute, club, native folks society, alpine society, early rising club, early rising club, external group of a political party, etc., for the election campaign of a candidate (including a person who intends to be a candidate)." Here, the term "person who intends to be a candidate" refers to not only where a person who is scheduled to run in the election in question files an application for success with a political party as a person scheduled to run in the election, or where the intention to run in order to obtain a candidate recommendation from a general elector is not clearly expressed, but also where the person can objectively recognize that he has an intention to run in the election in question in light of his status, contact, target of recommendation, speech, etc. (see Supreme Court Decision 98Do1992, Sept. 22, 198, etc.).

그런데 앞에서 든 증거들에 의하여 인정되는 다음과 같은 사정들, 즉 ① 피고인 1은 2010. 9.경부터 피고인 2를 통하여 국회의원 선거와 관련된 ‘□□지역 ○사모 만들기 프로젝트’라는 제목의 보고서를 이메일 등을 통하여 받았을 뿐만 아니라, 자신의 선거운동을 기획하고 총괄한 피고인 2, 8을 통하여 국회의원 선거와 관련한 인터넷 동호회 활용방안 등을 알아보도록 지시하기도 하였는데, 피고인 2가 2010. 9. 10. 피고인 1에게 작성하여 이메일로 보고한 ‘□□지역 ○사모 만들기 프로젝트’라는 제목의 문서에 ‘..... 향후 피고인 1 국장님의 국회의원 당선에 활용하기 위함’이라고 기재되어 있는 점(증거기록 제645쪽), ② 피고인 1은 자신의 국회의원 선거 출마에 대비하여 2011. 2.경 이미 피고인 2가 팀장을 맡았던 홍보팀 이외에도 6개 팀을 구성하였고, 2011. 6. 17.경에는 대명콘도에서 워크숍을 개최한 것으로 보이는 점(증거기록 제716, 718쪽 참조, 이에 대하여 피고인 1은 서울에서 만난 사람들과의 계모임이었다는 취지로 주장하나, 피고인 2 등 ‘☆☆☆☆씽크탱크’ 구성원들도 워크숍에 참석하였거나 참석하려고 하였던 것으로 보여 위 주장은 선뜻 받아들이기 어렵다), ③ 피고인 2가 위 ‘□□지역 ○사모 만들기 프로젝트’를 구체화하고 실행하기 위하여 결성한 것으로 보이는 ‘☆☆☆☆씽크탱크’ 모임에서 피고인 1에 대한 선거운동 중 홍보 분야를 맡기로 하였고 주1) , 2011. 1. 28.에 있은 위 모임의 첫 번째 회의에서 ‘온라인 홍보방안’으로 ‘기존에 있는 카페에서 활동하는 것뿐만 아니라 씽크탱크 멤버가 카페를 운영하는 방안’에 대하여서도 토의하기도 하는 등으로 구체적인 준비를 한 것으로 보이는 점, ④ 또한 피고인 1은 2010. 12.경 자신이 평소 알고 지내던 대학교수들과 ‘미래전략회의’를 개최하여 선거운동과 관련한 자문을 받기도 하였는데, 같은 달 18.에 있었던 ‘제2차 미래전략회의’에서는 피고인 8이 ‘□□정서와 신뢰받는 리더쉽’이라는 주제로, 피고인 2가 ‘이미지제고 및 홍보방안’이라는 주제로 각각 발표를 하기도 하였던 점, ⑤ 피고인 2, 8은 2011. 1.경부터 피고인 8이 사무총장으로 있는 (주소 1 생략)의 □□미래발전포럼 사무실에서 ‘◈◈◈회의’ 또는 ‘실무회의’를 개최하여 피고인 1의 선거운동에 관한 전략과 선거운동 방법을 논의한 다음 그 회의 결과를 피고인 1에게 수시로 보고하기도 하였던 점, ⑥ 피고인 1은 피고인 2, 8의 지시를 받은 피고인 4가 결성한 2011. 5. 14.자 ‘○사모’ 모임에 참석하여 자신을 소개하거나 향후에 자신을 도와달라는 취지의 인사말을 하였고, 같은 달 16.에는 위 모임 참석자들 전부에게 전화까지 하였는데, 위 참석자들 중 일부는 검찰에서 ‘피고인 1이 제19대 국회의원 선거에 입후보하려고 한다는 사실을 충분히 인식할 수 있었다’는 취지로 진술하기도 하였던 점(증거기록 제3671, 3687쪽, 공소외 2, 3의 검찰 진술 참조), ⑦ 피고인 1은 2011. 3. 10. 피고인 2에게 ‘김 팀장 활용방안(□□ 인터넷 동호회) 찾아보도록 하소’라는 내용의 이메일을 보낸 적이 있는데, 피고인 1이 제19대 국회의원 선거를 염두에 두고 있지 않았다면 피고인 2에게 위와 같은 내용의 이메일을 보낼 아무런 이유가 없는 점, ⑧ 또한 피고인 2는 위에서 본 바와 같은 ‘미래전략회의’, ‘☆☆☆☆씽크탱크’, ‘◈◈◈회의’ 등에 관여하면서 2011. 1.경부터 선거운동 관련 일지를 작성하고, 그 중 중요한 내용은 일일상황보고 형식으로 피고인 1과 공유하기도 하였는데, 피고인 1이 제19대 국회의원 선거에 입후보할 의사가 없었다면 피고인 2가 위와 같이 선거와 관련한 행보를 할 아무런 이유가 없는 점 등 피고인 1이 2011. 10. 4. 공직에서 사퇴하기 이전에 보여준 접촉대상이나 언행 등의 사정을 위에서 든 법리에 비추어 살펴보면, 피고인 1이 제19대 국회의원 선거에 입후보할 의사를 가진 것을 객관적으로 인식할 수 있을 정도에 이른 것으로 충분히 인정된다(피고인 1의 위와 같은 일련의 행위들을 단순히 입후보와 선거운동을 위한 준비행위 정도에 불과한 것이라고 보기는 어렵다).

㈏ ‘○사모’의 초기 활동이 ‘노사모’나 ‘박사모’와 같은 정치인의 ‘팬클럽’이나 ‘팬카페’ 수준에 불과하였는지 여부

The following facts are acknowledged by the evidence, i.e., ① a political club or panty club, such as Defendant 1 or his defense counsel, which is not artificially created for the purpose of a specific election, but rather a group created by the people supporting the nation-wide people. ② Defendant 1 was born at a high school, but did not visit a high school, and it was difficult to see that ○○○○○○○○○ was present at the first 3rd e-mail meeting, which was held on May 14, 201, and there was no way to see that ○○○ 1 was present at the 1st e-mail meeting, and that ○ 2nd 5th e-mail was present at the 1st e-mail meeting, and there was no way to see that ○○ 1 had been present at the 1st e-mail meeting, which was held by the public officials belonging to the Ministry of Knowledge Economy.

㈐ 피고인 2가 피고인 1의 선거에 관여하게 된 경위 등과 관련하여

앞에서 든 증거들에 의하여 인정되는 다음과 같은 사정, 즉 ① 피고인 2는 □□에 있는 ◇◇◇◇◇◇연구원 산하 □□센터 연구원으로 입사하기 이전인 2010. 9. 10.경 피고인 1에게 ‘□□지역 ○사모 만들기 프로젝트’라는 제목의 보고서를 작성하여 이메일로 보고하였는데, 그 보고서에는 ‘향후 인적사항 활용 및 오프라인 모임 추진 등을 위해 센터설립 적소는 ◐◐공대임’이라고 기재되어 있고(증거기록 제644쪽), 피고인 2가 ◇◇◇◇◇◇연구원에 입사한 이후 실제 ‘구 ◐◐공대 부지’에 □□센터가 설치되었으며, 피고인 2는 그 곳에 근무하면서 사실상 피고인 1의 선거와 관련된 업무를 주로 담당하였던 것으로 보이는 점, ② 피고인 2가 ◇◇◇◇◇◇연구원에 입사하는 과정에서 피고인 1과 친분관계가 있는 것으로 보이는 ◇◇◇◇◇◇연구원 천안본부장 공소외 4가 관여하였던 것으로 보이는 주2) 정황 도 확인되는 점, ③ 한편 피고인 1은 청와대 선임행정관으로 근무할 당시인 2010. 5.경 청와대에 근무하는 직원을 통해 당시 ▽▽▽당 서울시당 조직과장으로 근무하던 피고인 2를 소개받았고, 그 후 2010. 9.경부터 지식경제부 산하 정부출연연구소인 ◇◇◇◇◇◇연구원에 부원장급으로 파견 근무를 하였는데, 그로부터 불과 1개월 뒤에 피고인 2가 위 연구원 산하 □□센터 연구원으로 입사한 점, ④ 피고인 2는 □□센터 연구원으로 입사한 직후인 2010. 11.경부터 피고인 1의 위임을 받아 주요 포털사이트에 피고인 1의 인물검색등록 신청을 하였고, 2010. 12.경 피고인 1이 참석한 미래전략회의에서 ‘이미지 제고 및 홍보방안’이라는 제목으로 주제발표를 하였으며, 2011. 1.경부터는 피고인 1의 고등학교 동창생인 피고인 8 등과 함께 ‘◈◈◈회의’ 또는 ‘실무회의’를 개최하는 등으로 피고인 1의 선거와 관련된 기획 및 홍보 등의 업무를 하였던 점 등의 사정을 종합하여 보면, 피고인 2가 피고인 1을 만난 이후 피고인 1이 제19대 국회의원 선거 □□시갑 선거구에 출마할 것을 직감하여 피고인 1에게 잘 보이기 위하여 스스로 ‘□□지역 ○사모 만들기 프로젝트’라는 보고서를 작성하는 등으로 활동하였을 뿐, 피고인 1의 선거운동을 위한 기획 및 홍보 업무를 총괄하였던 것은 아니라는 피고인 1과 그 변호인들의 변소는 선뜻 믿기 어렵다.

C. Determination as to whether Defendant 1 conspireds to establish or engage in the remaining Defendants’ “○○ private placement” or “△△△△”

(A) Relevant legal principles

A public offering is not a legally required type of punishment in relation to co-offenders who are jointly engaged in a crime. A public offering is not a legally required type of punishment for two or more persons, and is only a combination of intent to jointly process a crime and realize the crime. Even if there was no process of the whole conspiracy, if a combination of intent is made successively or implicitly through several persons, the public offering relationship is established. Even if there was no direct participation in the conduct of the conspiracy, even if there was a person who did not directly participate in the conduct of the conspiracy, he/she shall be held criminal liability for another person as a co-principal. Such public offering may be recognized by circumstantial facts and empirical rules without direct evidence (see, e.g., Supreme Court Decisions 2004Do482, Apr. 27, 2004; 201Do606, Dec. 12, 2003; 200Do868, Jun. 28, 2002; 204Do3044, supra.

(B) The judgment of the court below

Defendant 1 and his defense counsel also asserted as the grounds for appeal on this part of the judgment below, and the court below rejected Defendant 1 and their defense counsel's assertion on the facts and circumstances in its reasoning based on the evidence duly adopted and examined. Then, considering the following legal principles: (a) Defendant 1 received occasional reports from Defendant 2 and 8; (b) Defendant 1 continuously checked the preparation status of meetings; (c) Defendant 2 and Defendant 8 urged the activities of meetings; and (d) the contents of the prosecutor's statements made by the relevant prosecutor; and (e) Defendant 1 conspired with the remaining Defendants to establish a private organization, which is a private organization for the election campaign of Defendant 1, or a private organization for the election campaign of Defendant 1; and (b) the court below rejected Defendant 1 and his defense counsel's assertion.

(3) Judgment of the court below

Examining the above facts and circumstances admitted by the court below in light of the relevant legal principles as seen earlier, the court below’s aforementioned judgment is just and acceptable, and there were no errors by misapprehending the facts contrary to the rules of evidence or by misapprehending the legal principles as to co-principals, as alleged in the grounds for appeal by the Defendants, in light of the following circumstances, which are duly admitted and investigated by the court below and the court below.

㈎ ‘○사모’의 초기 조직 과정에서의 피고인 1의 관여 정도

① 피고인 2, 8은 2011. 1.경부터 □□미래발전포럼 사무실에서 정기적으로 ‘실무회의’ 또는 ‘◈◈◈회의’를 개최하였고, 위 회의에서 피고인 1의 선거운동에 대한 전략과 선거운동 방법을 논의한 다음 그 결과를 수시로 피고인 1에게 보고하였다. 그러던 중 피고인 1은 피고인 2에게 인터넷 동호회 활용방안을 찾아보라고 지시하였고, 이에 따라 피고인 2, 8은 2011. 3. 24.과 4. 4. 피고인 4를 만나 피고인 1의 선거운동을 도와달라는 부탁을 하였으며, 그 후 2011. 4. 18.경 피고인 4의 지인들을 만나 선거운동을 도와달라는 부탁을 하였고, 그 다음날인 2011. 4. 19.경 ‘◈◈◈회의’ 또는 ‘실무회의’에서 피고인 4 등을 주축으로 조직할 모임의 명칭과 그 활용방안에 대하여 논의하기도 하였다.

② Prior to the first meeting on May 14, 201, Defendant 1 confirmed the progress of the meeting with Defendant 4 and 5 several times (Defendant 4 and Defendant 1 sent a telephone call over about 160 occasions between May 1, 201 and October 30). Defendant 1 attended the first meeting of “○ private placement” to the effect that he will work in the future for the development of the future (see, e.g., evidence Nos. 3671, 3687, Nonindicted 2, and Defendant 3’s prosecutor’s statement). On May 16, 2011, Defendant 1 opened a telephone call to the participants of the meeting.

③ Defendant 1 did not directly attend the meeting on June 3, 201 and June 17, 201, which constitutes the operator of the “private placement,” but Defendant 3 obtained the list of participants of the above meeting through Defendant 3, and made a daily-oriented phone call, and around that time, Defendant 1 was in charge of a full-time adviser of the above meeting.

④ 피고인 1과 그 변호인들은 피고인 2가 작성·보고한 ‘□□지역 ○사모 만들기 프로젝트’의 내용과 ‘○사모’의 내용이 다르다는 취지로 주장하나, 피고인 2가 결성한 ‘☆☆☆☆씽크탱크’ 모임에서 ‘기존에 있는 카페에 활동하는 것뿐만 아니라 씽크탱크 멤버가 카페를 운영하는 방안에 대하여도 논의’하기도 하였고(증거기록 제710쪽, ☆☆☆☆씽크탱크 1차 회의록 참조), 이후에도 인터넷 동호회 활용방안에 대하여 지속적으로 논의한 것으로 보아 피고인 2가 최초 기획한 내용과 달리 ‘○사모’가 결성된 것이라고 할 수 없을 뿐만 아니라, 피고인 2가 기획한 ‘○사모’라는 명칭이 그대로 사용되었고, 앞에서 본 바와 같이 피고인 2, 8이 피고인 4의 지인들을 만나고 온 이후에 그 조직의 명칭을 논의하면서 ‘○사모’를 언급하였던 정황으로 보아 피고인 2가 기획한 ‘□□지역 ○사모 만들기 프로젝트’와 ‘○사모’의 내용이 완전히 다르다고 볼 수는 없다(또한 실제로 설립된 ‘○사모’의 조직 구성과 활동 방향이 피고인 2의 최초 기획 의도와 다른 양상으로 전개되었다고 하여, 피고인 1의 선거운동을 위한 사조직으로서의 ‘○사모’의 본질적 성격이 달라진 것은 아니라고 보인다).

⑤ 피고인 1의 변호인들은 2011. 3. 10.경 피고인 1이 피고인 2에게 ‘김팀장 활용방안(□□ 인터넷 동호회) 찾아보도록 하소’라는 이메일을 보낸 것에 대하여, 이는 새로운 동호회를 개설하라는 의미가 아닌 기존에 운영되고 있는 인터넷 카페를 활용해 보라는 취지에 불과하다는 취지의 주장도 하나, 앞에서 본 바와 같이 피고인 2가 결성한 ‘☆☆☆☆씽크탱크’는 피고인 1의 선거와 관련한 홍보 활동을 하였고, 그 활동내용을 피고인 1에게 수시로 보고한 것으로 확인되는데, 그 내용에도 기존에 운영되고 있던 인터넷 카페를 활용하는 방안 이외에 새로운 카페를 개설하여 운영하는 방안에 대한 논의도 있었으므로, 위 메일의 내용을 기존에 운영되고 있는 인터넷 카페를 활용해 보라는 취지로 한정하여 해석할 수는 없다.

⑥ 피고인 1의 변호인들은 피고인 1이 2011. 5.경까지 피고인 2와 전혀 연락을 주고받지 않았고 피고인 2가 ‘○사모’를 결성하는 데 관여한 사실이 없다는 취지로 주장하나, 앞에서 본 바와 같이 피고인 1은 2010. 12. 18. 피고인 2, 8을 참석시켜 ‘2차 미래전략회의’를 개최하였는데, 그 회의에서 피고인 2는 ‘이미지제고 및 홍보방안’이라는 주제로 발표를 하였고, 2011. 1. 이후부터는 ‘☆☆☆☆씽크탱크’를 통하여 ‘□□지역 ○사모 만들기 프로젝트’를 구체화한 것으로 보이며, 2011. 3. 30.에는 ‘☆☆☆☆씽크탱크’ 모임의 구성원인 피고인 2와 공소외 5, 1을 직접 만나기도 하였고, 2011. 3. 27.경 피고인 2와 이메일을 주고받기도 하였으므로(증거기록 제754쪽), 위 주장은 선뜻 받아들이기 어렵다.

㈏ 피고인 1의 ‘○사모’ 모임 활동 정도

Defendant 1’s defense counsel asserted that Defendant 1 maintained a very passive attitude, such as having no writing written on a camera, before the workshop and resolution meeting was held on August 21, 201. However, Defendant 1 inspected Defendant 2’s activities, such as ordering Defendant 2 to monitor the “○ private placement” meeting on July 14, 2011, prior to the establishment of a camera, Defendant 1’s “△△△” meeting, and took part in the car page immediately after the car page was established. Defendant 1 received a program for the workshop and resolution meeting from Defendant 4 on August 18, 2011, and opened a specific instruction, such as ordering Defendant 1 to install a banner, and constantly arrange the list of executive officers and members as X-ray, and it is difficult for Defendant 1 to do so on August 29, 2011.

㈐ 피고인 1 관련 공동피고인들과 참고인들의 진술

① Defendant 1’s defense counsel asserts to the effect that Defendant 8’s defense counsel stated that, in light of the fact that Defendant 8 was present at the prosecutor’s meeting on May 14, 201, Defendant 1 was accurately aware of what kind of gathering, and that Defendant 8 appeared to have been present at that meeting, it is difficult to view that the above statement was due to Defendant 1 and Defendant 8’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s aforementioned testimony was inevitable, and it cannot be accepted in light of the following circumstances.

② Defendant 4 made a statement at the prosecutor’s office to the effect that “Defendant 1 contacted on about 160 occasions between May 1, 201 and October 30,” and that “Before the workshop and resolution meeting, Defendant 4 reported the progress of “○ private placement” or “△△△△” meetings by means of exchanging e-mail that reports the contents thereof to Defendant 1,” etc. (see, e-mail No. 3588, 3606 of the evidence record). In addition, Defendant 4 made a statement at the prosecutor’s office that “Defendant 1 reported in advance on the workshop and resolution meeting in which “△△△△△ persons are operated,” and that Defendant 4 was given specific instructions, such as Defendant 1’s speech to install banner (Evidence No. 3589 of the evidence record).”

③ At the prosecutor’s office, Nonindicted 2 made a statement to the effect that “Defendant 1 attended a meeting of “private placement” on May 14, 201 to the effect that “I would have to get off and work in △,” and most of the participants considered that “I would like to get out or think during the election of National Assembly members. At that time, I would like to have known that I would like to get out of the election of National Assembly members or the market election because I would like to get out of the meeting.” (No. 3671 of the evidence record) Nonindicted 3 also sent to the prosecutor’s office that “Defendant 1 would have personnel on May 14, 201 and go to △△ as a member of the National Assembly. At that time, at the end, I would like to have changed to the effect that I would have to go out of the election of National Assembly members, and would have changed to the effect that I would have to go out of the election of National Assembly members.”

④ Defendant 4 stated in the prosecutor’s office that Defendant 3 told Defendant 1 to the effect that “I will go to an election for the National Assembly member for the △ Development, who is a senior public official of the present Secretary-General of the Ministry of Knowledge Economy and is a senior public official,” before creating a meeting of “○ private placement” on May 14, 2011 (Evidence No. 3722).”

⑤ Defendant 8 stated in the prosecutor’s office that “Defendant 4 first sent Defendant 4 on March 24, 201 to the effect that “I am able to help Defendant 1 later work in △△△.” On May 14, 2011, Defendant 8 stated to the effect that “I am able to find out whether I would create Kafin,” and that Defendant 2 “I am in violation of the Kafin law,” immediately after the first meeting was held on May 14, 201 (Evidence No. 3867, 3871).”

6) However, in light of the relationship between the above statementer and the defendant 1, the fact that there is no motive to make a false statement unfavorable to the defendant 1, that he can be punished for him, and that there was no reply or pressure in the prosecution investigation process, etc., even if the above statement is later changed in court, his statement made to the investigation agency is sufficiently reliable.

3. Determination on the assertion of unreasonable sentencing by the Defendants and the prosecutor

A. Common elements of sentencing to the Defendants

공직선거법 제87조 제2항 에서 사조직의 설립을 금지하는 이유는 후보자간 선거운동기구의 형평성을 유지하고, 각종 형태의 선거운동기구의 난립으로 인한 과열 경쟁 및 낭비를 방지하고자 하는 데 있으므로, 원심 판시 기재와 같은 형태의 사조직의 설립이 용인된다면, 국민의 대표를 선출하고자 하는 국회의원 선거가 과열 양상으로 치달을 것임은 너무나도 자명한 일이다. 이처럼 부당한 과열 경쟁에 의해 민의가 왜곡되는 것을 막아 공직선거가 국민의 자유로운 의사와 민주적인 절차에 의하여 공정하게 행하여지도록 하고, 이를 통하여 올바른 민주정치의 유지·발전에 기여하고자 공직선거법에서 사조직의 설립을 금지하고 있음에도, 피고인들은 원심 판시 기재와 같이 오랜 기간 동안 역할을 분담하여 사조직을 결성하고 결성된 사조직을 통하여 피고인 1의 ▤▤▤당 내 경선이나 국회의원 선거운동을 위한 활동을 하였는바, 이러한 피고인들의 원심 판시 기재와 같은 행위는 위와 같은 공직선거법의 입법 취지를 정면으로 훼손하는 것으로 그 죄질이 좋지 않고, 죄책 또한 가볍지 않다.

Furthermore, the Defendants posted frequently free gifts in a way to increase the Internet carpet members such as “△△△△” and, depending on the case, offered free gifts to those who attend a regular meeting of the above carpet, thereby making contributions prohibited by the Public Official Election Act. Therefore, the method of such acts is also likely to be subject to criticism.

이러한 활동 과정을 통하여 2012. 3. 24.경까지 801명의 회원을 확보하였고, 그 중에서도 피고인 1의 지역구인 □□시에 거주하는 회원수가 500명을 넘어섰을 뿐 아니라, 위 회원들을 통하여 피고인 1에 관한 선거운동을 적극적으로 펼치는 등으로 인하여 피고인 1이 ▤▤▤당 내의 후보 경선과정에서 다른 경쟁 후보에게 여론 조사에서 근소한 차이로 패배하였으나, 결국 ▤▤▤당의 경선 방침에 따라 이공계 가산점을 부여받아 피고인 1이 □□시갑 선거구의 ▤▤▤당 후보로 선출될 수 있도록 영향을 미친 것으로 보인다.

All these circumstances are disadvantageous to the Defendants.

B. Defendant 1

Defendant 1 had Defendant 2 carry out an election campaign necessary for the election of the 19th National Assembly member through Defendant 2 from the time when he/she was in office, such as the Blue House, the Mlue Institute, and the Director of the Ministry of Knowledge Economy. In particular, at the time when he/she was in office as the Vice Director of the Nlue Research Institute, Defendant 1 engaged in an election campaign that is necessary for the election of the 19th National Assembly member through Defendant 2, who was working in the same research institute, as he/she was frequently receiving an election campaign report on private matters from Defendant 2, so there is a high possibility of criticism. In addition, Defendant 1 appears to have been aware that he/she was involved in the formation or activities of his/her private organization, i.e., “○○” or “△△△”. However, Defendant 1 does not appear to have an attitude against his/her criminal act by force from the investigative agency to the

However, the background behind Defendant 1’s growth in a difficult family environment and graduated from a egrative egrative high school and passed the egrative high school up to the time of technical high school appears to have faithfully performed the public office life for 20 years, and the misunderstanding or lack of understanding on the Public Official Election Act seems to have led to the instant crime. In addition, Defendant 1 did not have any record of criminal punishment prior to the instant crime.

All these circumstances are favorable circumstances to Defendant 1.

C. Defendant 2

Defendant 2, at the stage of the 19th National Assembly member election, planned Defendant 1’s election campaign from the 19th National Assembly member election to the end of the election of the National Assembly member, and led Defendant 1 to the formation and activities of the private organization as indicated in the judgment of the court below. In particular, Defendant 2, from October 1, 2010 to the 19th National Assembly member election of the 19th National Assembly member, worked as a separate researcher at Dol-si, but was able to prepare an election campaign for Defendant 1, who is unrelated to his duties for considerable time. Nevertheless, Defendant 2 did not seem to have an attitude against his criminal act, such as denying his own criminal act related to the formation of the private organization as indicated in the judgment of the court below, until evidence is presented. This circumstance is also unfavorable to Defendant 2.

However, prior to the instant crime, Defendant 2 did not have any record of punishment heavier than fines, and in particular, there was no record of punishment for violating the same kind of election law. Such circumstance is favorable to Defendant 2.

D. Defendant 3, 4, 5, 8

Defendant 3 and 4, as the president or secretary of the “○ private placement” or the “△△△△”, took an important role in the establishment of a meeting. Defendant 5 and 8, as Defendant 1’s senior high school students, took part in the formation of the above organization from the beginning of the establishment, such as taking a role in supporting the establishment of the meeting. In particular, Defendant 8, while taking a general role in controlling election campaigns at the beginning of the 19th National Assembly members’ preparation for the 19th National Assembly members, requested Defendant 1 to form a meeting to Defendant 4 and their assistants. These circumstances are disadvantageous to the above Defendants.

However, the above defendants reflect their mistakes, and there is no record of criminal punishment prior to the crime of this case, or there is no record of being punished as a violation of the same election law, compared to the defendants 1 and 2, the degree of participation in or responsibility for the crime of this case seems to be relatively minor, and the fact that the defendants 8 seems to have been relatively passive after the establishment of a car page of "△△△△ persons", etc. are considered to have been relatively passive.

E. Defendant 6, 7

The above Defendants also participated actively in the activities of the above Defendants by being in charge of the general affairs of the above group or the carpeta. These circumstances are disadvantageous to the above Defendants.

However, as seen earlier, the degree of participation is relatively minor compared to the other Defendants, and it is against their wrongness, and prior to the crime of this case, the fact that there was no record of punishment for violation of the same kind of election law, etc. are favorable to the above Defendants.

F. Sub-decision

In full view of the various circumstances, including the Defendants’ age, character and conduct, intelligence and environment, motive of the crime, circumstances of the crime, and the scope of the recommended sentence [the scope of fines of not less than 100 won and not more than 4 million won [the area of aggravated punishment of Type 2 of the violation of the election campaign period and the illegal election campaign (the violation of the method of election campaign)] set forth in the sentencing guidelines for the election crimes established and implemented after the crime of this case], it is not recognized that the lower court’s sentence imposed on the remaining Defendants except Defendant 6 and 7 is too weak, or that the sentence imposed on the Defendants is too unreasonable.

4. Conclusion

Since both appeals filed by the Defendants and those filed by the Prosecutor against Defendant 1, 2, 3, 4, 5, and 8 are without merit, all appeals are dismissed in accordance with Article 364(4) of the Criminal Procedure Act.

Judges Dangerous (Presiding Judge) Dried luculphy

주1) ☆☆☆☆씽크탱크에 참여했던 공소외 1은 검찰에서 ‘☆☆☆☆씽크탱크는 피고인 1의 국회의원 당선을 위한 선거운동 중 홍보를 담당한 팀으로 보이는데 어떤가요’라는 검사의 물음에 대하여 ‘네’라고 답변하기도 하였다(증거기록 제3145쪽)

2) Of the content of the Korean files called “daily business report” stating daily work from among the materials seized by Defendant 2, the part stating that “the head of the Boanan Regional Headquarters of the Boan Regional Headquarters of the Republic of astronomical Republic of Korea knows that the director of the bureau, the head of the bureau, the head of the bureau, the head of the Dongan Regional Headquarters of the Republic of Korea, provided the office of Non-Party 4 with the Handphone, and that he/she was drank with his/her participation in his/her internal job” is confirmed (Evidence No. 812 pages of evidence record).

3) In light of the fact that the crime of this case is “establishment of private organization” for Defendant 1’s election campaign, there may be questions as to whether the person under special circumstances, such as the crime of organized crime, is not necessarily included in the concept, if the crime of this case violates Article 87(2) of the Public Official Election Act. However, in the sentencing guidelines, the sentencing guidelines defined as “a case where the crime of planned and organized is committed on a systematic basis by sharing the roles of many persons.” Since “○ private placement” or “△△△△△” is not established by planning and preparing several individuals or small number of persons, but rather, it is not established by the planning and preparing and arranging several persons, and as such, the Defendants are obliged to apply the special person under special circumstances, such as the crime of planned and organized organization, to the Defendants.