(영문) 부산고등법원 2013.4.3.선고 2012노660 판결

Defendant shall be punished by a fine of two million won. If the Defendant does not pay the above fine, the Defendant shall be confined in a workhouse for a period calculated by converting 50,000 won into one day.

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

Reasons

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts or misapprehension of legal principles

A) In relation to the promise to provide money and valuables for each item listed in the separate sheet of crimes (1) in the separate sheet of crimes, the fact that the Defendant expressed to J that he would make up for the expenses of office fixtures, etc. on January 2012. However, at that time, H would not be deemed to have promised to make up for the ‘election’ because it was not registered or arranged as a preliminary candidate.

B) Furthermore, the meaning of the Defendant’s speech to J is not only the meaning that the Defendant would make up for the money of the Defendant or H individual, but also the meaning that the Defendant would be able to receive compensation pursuant to the Public Official Election Act.

C) Around April 2012, J demanded the Defendant to preserve and settle the expenses that the Defendant incurred for H. However, even though the Defendant’s preservation period should have been spent individually by the Defendant or H, the nature of the amount that the Defendant spent on behalf of the Defendant should have been settled to the J, or that the J should have been accounted for as political funds, etc. other than election expenses, and thus, it cannot be deemed as a promise to provide money and valuables prohibited under the Public Official Election Act.

2) Unreasonable sentencing

The sentence of the court below (2 million won of fine) against the defendant is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts or misapprehension of legal principles

A) The point of interest provision to G

The lower court: (a) paid the entire rent for the instant room 103; and (b) the Defendant’s act of residing in the said room with G merely offered convenience to the level acceptable by social norms, and thus does not constitute the provision of profits prohibited by the Public Official Election Act; (c) however, in full view of the fact that the Defendant, from the beginning, leased the room for the purpose of residing with G that prepared for the H’s election campaign, and that G was only the relationship with the Defendant, with which the Defendant had engaged in the H’s election campaign, it constitutes an act of offering profits exceeding the level acceptable by social norms.

B) The fact that money and valuables are offered for each item listed in the annexed list of crimes (2)

(1) The lower court deemed that each item of money listed in the annexed list of crimes (2) is not included in this part of the expenses that the Defendant promised to preserve the J, judging food and accommodation expenses using the money listed in the annexed list of crimes (2) without direct connection with H. However, this part of this part is also deemed as constituting “money and valuables on election campaign” since the Defendant promised to compensate for all of the money if the Defendant makes payment by a credit card with respect to the election of J on February 2, 2012, thereby making the Defendant made the payment by a credit card in the course of preparing and conducting election campaign for H’s election, and therefore, the Defendant promised to preserve this part.

(2) In addition, the lower court deemed that this part of the Defendant’s statement made by J was not included in the scope of the Defendant’s promise to preserve on or around May 8, 2012 to the extent that the J did not demand the preservation of the vehicle repair cost incurred by the Defendant, but it is reasonable to view that the meaning of the Defendant’s statement made by J is adjusted to the amount that the Defendant promised to preserve after the fact. The above vehicle repair cost is the repair cost incurred by a traffic accident caused by a volunteer in the course of an election campaign, and there is no reason to bear it in the absence of the Defendant’s promise to preserve the vehicle repair cost, and there is no difference between the vehicle repair cost and the vehicle repair cost recognized by the lower court to be guilty.

2) Unreasonable sentencing

The sentence of the court below against the defendant is too unhued and unfair.

2. Ex officio determination on the violation of the Public Official Election Act with respect to the offering of objections to J, G and K

A. A. A prosecutor was at the trial for the defendant, and the part of Paragraph 1 of the facts charged against the defendant that "the defendant remitted KRW 900,000 to ... for rent. The defendant paid 90,000 won for the room rent of 900,000 won to be residing in the election campaign period by J, G, and K, thereby offering profits to the persons engaged in the election campaign. The defendant remitted 90,000 won for rent of .... (including the defendant's share 25,000 won) to the defendant. Accordingly, the defendant applied for amendments to the bill of amendment to the effect that "the defendant provided profits to the persons engaged in the election campaign by paying 675,000 won for the room rent of 675,000 won to be residing in the election campaign period." This part of the judgment of the court below is subject to the adjudication by this court.

B. However, even if there are reasons for the above ex officio destruction, the above mistake of facts or misapprehension of legal principles by the defendant and prosecutor are still subject to the judgment of this court, and we will examine below.

3. Judgment on the defendant's misconception of facts or misapprehension of legal principles

A. Determination as to whether to promise to provide money in connection with the election campaign

1) The judgment of the court below

The court below also asserted the same purport as the above reasons for appeal, and the court below rejected the defendant's assertion that there was a promise to compensate expenses from the defendant in relation to the election, i.e., ① the fact that the defendant has been given a promise to compensate expenses, ② the defendant, H, and J also came to know of the citizen body called "U", ② the defendant, H, and H came to know of the plan to go out from the 19th National Assembly election since the late 201, and asked the defendant andJ to help themselves in the 19th National Assembly election, so the defendant and theJ accepted it, and H accepted it, and around January 2, 2012, the court below rejected the judgment that there was no special circumstance that the defendant had been given a promise to compensate expenses related to the election since H opened an office within the constituency, ③ the defendant had to take part of the expenses for the election from the time to the 2nd election without any specific reason, ④ the defendant had been given a promise to compensate for the expenses from the election campaign office at any time before and after the election.

B) Determination of the immediate deliberation

The above judgment of the court below is just in light of the evidence duly adopted and examined by the court below. Thus, the defendant's above assertion is without merit.

B. Determination as to the assertion that the Defendant or H was a speech in the sense that it would not be the meaning of preserving the money of the Defendant or H individual, but can be compensated pursuant to the Public Official Election Act

Comprehensively taking account of the following circumstances admitted by the evidence duly admitted and examined by the court below, the defendant committed a promise to preserve the expenses in relation to the J election in the sense that he would pay them. Therefore, the above argument by the defendant is without merit.

1) On February 2012, the J consistently stated that the Defendant stated that the Defendant “if he makes payment by credit card, he would make up for all the amount later,” at the H’s office located in the fourth floor in Gwanak-gu, Seoul Special Metropolitan City (R 4), and that the Defendant voluntarily stated that the Defendant would make up for the expenses inevitably entering H by asking how to deal with the expenses incurred in the course of J and then would make up for the said amount later. In light of the background leading up to the Defendant’s promise to compensate the expenses in the J, the specific expression of the promised speech, etc., the Defendant promised not to make up for the expenses in the sense that the Defendant would incur compensation under the Public Official Election Management Act, but to make up for the said expenses.

2) In order to be compensated for election expenses under the Public Official Election Act, the Defendant and the accountant in charge of the election campaign office, who were the election campaign manager for the National Assembly member, have experience in making several elections and have been well aware of this fact. However, the J used its credit cards, etc. without undergoing accounting procedures under the Political Funds Act, and the Defendant did not ask J as to whether the amount used by the J is in compliance with accounting procedures under the Political Funds Act or is in compliance with accounting procedures under the Political Funds Act, and the Defendant would take part in the division without raising any objection, even though having requested the J to compensate for the expenses incurred during the period of time. In light of these circumstances, the Defendant’s commitment is difficult to believe. In light of these circumstances, the Defendant’s assertion that the offering of money and valuables is not prohibited under the Public Official Election Act.

1) Relevant legal principles

In relation to an election campaign under Article 135(3) of the Public Official Election Act, the term "in relation to an election campaign" refers to "a motive for matters concerning an election campaign", which is more broad than "for an election campaign", and even if there was no purpose of influencing the purpose or election, the act itself was established in the need to regulate the act that is highly likely to infringe on the freedom and fairness of the election. Therefore, the provision of money and valuables does not necessarily require the payment for an election campaign, and it includes what is related to an election campaign, such as the cost of providing information related to an election campaign and the cost of fee for an election affairs (see, e.g., Supreme Court Decision 2010Do910, Dec. 23, 2010).

Meanwhile, the term "providing money, goods, and other benefits" under Article 135 (3) of the Public Official Election Act does not necessarily mean that the money, goods, etc. belongs to the other party, and even if the other party who received such money, etc. is not an intermediary who is not the party to whom such money, goods, etc. belong, it is included in "providing money, etc." under the above provision, as long as there is room for judgment and discretion on the objects or method of distribution, the amount of allocation, etc. to the person, as long as it is not a simple custodian or a person who conducts it in order to deliver a specific money, etc. to the other party, and as long as there is no room for determination and discretion on the objects or method of distribution, the amount of allocation, etc. to him/her, even if there is no designated portion to be attributed to him/her (see, e.g., Supreme Court en banc Decision 2001Do2819, Feb. 21, 2002;

2) Determination

In light of the above legal principles and the following circumstances acknowledged by the evidence duly adopted and examined by the court below, i.e., (i) the defendant promised to compensate for the expenses paid by J in relation to the election, (ii) the J was a person who was responsible for accounting of the election campaign office at the time H became a candidate for the 19th National Assembly member from the 19th National Assembly member. In light of the status of the election campaign, the fact that the J was given a broad discretion from H and the defendant when he disbursed the nominal amount, such as the money listed in the attached list of crimes (1). The act of the defendant committed to compensate for the expenses in relation to the election, constitutes a violation of the Public Official Election Act due to purchase and inducement of understanding, and even if the money corresponding to the agreed item is disbursed to the use of political funds classified as the "election expenses" or "election expenses" under the Public Official Election Act, it does not affect the purchase and inducement of understanding of such circumstances.

Therefore, the defendant's above assertion is without merit.

4. Judgment on the prosecutor's assertion of mistake of facts

A. Determination on the offering of benefit to G

1) Summary of this part of the facts charged

On March 15, 2012, the Defendant entered into a lease agreement with the lessor on March 15, 2012, with regard to the same Ri M 103, which is a person in charge of accounting of H (P) candidate’s supporters’ association, with the lessor’s N on March 15, 2012 or from April 15, 2012, with the lessor’s N on March 15, 2012, and paid a rent of KRW 450,00 (including Defendant’s share 225,500,000) by transferring the rent to N’s Agricultural Cooperative Account (O) on the same day, thereby providing G with the benefit of KRW 25,50,000 in relation to the election campaign.

2) The judgment of the court below

The court below held that the above room is ordinarily suitable for one person's residence, in light of the following circumstances, namely, that there are only one room, that the area of the floor with the above room is 181.08 square meters. Since there are at least six rooms on the above room, the actual area of the room room seems to be very narrow, and that there are two J and K residing in the above room in the same form as the above room room, and that there is inconvenience in living together with two persons, both J and K, which were residing in the above room in the above 104 form. In light of the above circumstances, the above room seems to be a place suitable for one person's residence. The above room is basically a strong aspect for the defendant's residing together with G, but it appears that G had been staying outside from time to time due to election campaign, etc., not because it had been permanently residing in the above room, and that the defendant and G had been aware that there was an election campaign in the above studio prior to the above studio, and that the defendant's act of offering the above room and profits to G are prohibited from offering.

In addition, there is no other evidence to acknowledge this part of the facts charged, and the defendant was acquitted of this part of the facts charged.

3) Determination of the immediate deliberation

However, the lower court acknowledged the following circumstances based on the evidence duly adopted and examined: (i) around February 25, 2012, the Defendant and G, J, and K sought separate accommodation from the Defendant and the Defendant’s 7-studio to the extent that the Defendant did not have been able to live in the above apartment for about two weeks from February 25, 2012 to March 9, 2012; (ii) on March 9, 2012, the Defendant’s 2-studio was not able to use the Defendant’s 7-studio to the extent that the Defendant would have been able to live in the 3-studio, including the Defendant and G, J, K, and H, and the Defendant’s 1-studio to the extent that the Defendant would have been able to take care of the 1-studio in the process of using the 7-studio in the local constituency (the Defendant’s 2-studio).

Therefore, the prosecutor's ground of appeal on this part is with merit.

B. Determination as to the promise to provide money and valuables for each item listed in the annexed list of crimes (2)

1) Summary of this part of the facts charged

On February 2, 2012, the Defendant heard from the office of H located in the Gwanak-gu Seoul Special Metropolitan City R 4, that “if he makes a lump sum payment by four credit cards in connection with election, he will preserve the amount later.” On April 2012, the Defendant promised to provide money and valuables to J in relation to election campaign by promising to preserve the total sum of KRW 2,906,110, which is the sum of the amounts paid by the J’s credit card, as shown in the List of Crimes (2) in relation to H election, and by promising the J to preserve the amount of money and valuables in relation to election campaign.”

2) Food expenses and accommodation expenses used by J without direct connection with H or the Defendant (other items excluding No. 52 of the items listed in the Schedule of Crimes (2))

A) The judgment of the court below

The court below found that the following circumstances acknowledged based on the macroscopic evidence (i.e., ① all persons engaged in the election affairs except J and Q provide the defendant with a receipt for food and accommodation expenses, and there is no way to receive the corresponding cash, as well as that there is no way to offer such a promise; ② The Public Official Election Act plans to resolve food and accommodation expenses for persons engaged in the election affairs, ② the public official election law plans to pay allowances and accommodation expenses as prescribed by the Act, and the J would normally pay allowances and accommodation expenses to persons engaged in the election affairs; ③ the defendant seems to have no reason to pay food and accommodation expenses only to the Uiscopic J among persons engaged in the election affairs, and there seems to be no reason to believe that the above statements made by J and Q are difficult to believe, and there is no other evidence to acknowledge this part of the facts charged, and thus acquitted the defendant as to this part of the charges.

B) Determination of the immediate deliberation

The following circumstances acknowledged by the court below as to this part of the facts and circumstances revealed by the evidence duly adopted and examined by the court below, namely, (i) the court is expected to be entrusted to secretary, etc. when H is elected to a member of the National Assembly; and (ii) there is no reason to believe that the defendant, who was aware of such circumstances, would have promised to preserve expenses to the court without relation to H or the defendant; (ii) the remaining items except the No. 52 in the annexed crime list (2) cannot be viewed as expenses paid in relation to H or the defendant even if the statement of the court is made; and (iii) there is no other evidence to acknowledge it; and (iv) the defendant would take part in the above two times without raising any objection to the preservation of expenses paid by the court; (iii) the defendant would have been required to divide the above amount of money paid by the court on April 2, 2012 without presenting any receipts or any other specific evidence; and (iv) the defendant could not be seen as having used the aforementioned promise or promise to pay the remainder of the expenses paid by the defendant to H.

Therefore, this part of the prosecutor's argument is without merit.

3) 820,010 won (the sequences 52 among the items listed in the attached Form List of Offenses (2)) for the automobile repair cost disbursed by J on May 8, 2012

A) The judgment of the court below

The court below made a statement consistent with the contents of the defendant's statement by asking the defendant about how the defendant would pay the above vehicle repair cost to his person in charge after the post-management allowance, and the J also asked the defendant about how to arrange the vehicle-related expenses with the allowance to be paid to the person in charge of accounting after the election to be received, and if so, there is no reason to claim that the vehicle-related expenses should be preserved separately, but such talk is a talk at the time when it is good." Thus, the above vehicle repair cost is not required to be preserved by the J, and it cannot be deemed that it is included in the scope of the obligation to preserve the expenses that the defendant promised to pay, and there is no other evidence to prove this part of the facts charged, and thus, the court below acquitted the defendant about this part of the facts charged.

B) Determination of the immediate deliberation

Examining the above judgment of the court below in comparison with the evidence duly adopted and examined, the judgment of the court below is just, and the prosecutor's assertion on this part is without merit.

5. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) and (6) of the Criminal Procedure Act without examining the defendant and the prosecutor's allegation of unfair sentencing, since there is a ground for ex officio reversal and there is a mistake of facts as to the provision of benefit to G. It is again decided as follows.

Criminal facts and summary of evidence

The summary of the facts constituting the crime and the evidence recognized by this court is as follows, and it is true in accordance with Article 369 of the Criminal Procedure Act, except for the case where "the statement of the defendant in this court" is changed to "part of the statement in this court of the defendant in this court" from among the summary of the evidence of the judgment of the court below, as stated in paragraph (1) from among the facts constituting the crime of the court below.

1. Providing profits for the substitute payment of studio rents;

On March 15, 2012, the Defendant: (a) concluded a lease agreement with the lessorN on the lease term of 2012, March 15, 2012; (b) transferred KRW 900,000 (including Defendant 225,000,000,000,000) for rent rent to the Agricultural Cooperative (0) accounts of N on the same day by paying rent of 675,000,000 won to the above J, G and K residing in the election campaign period by paying rent of 6.75,00 won to the person engaged in the election campaign by paying rent to the above J, G and K residing in the election campaign period.

Application of Statutes

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

○ Each point in the holding No. 1: Articles 230(1)4 and 135(3) of the Public Official Election Act (Selection of Fines)

Article 230(1)4 of the Public Official Election Act and Article 135(3) of the Public Official Election Act (or each fine)

Article 230(1)4 and Article 135(3) (Selection of Fines) of the Public Official Election Act

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (aggravated Punishment for Concurrent Crimes with Punishment for Crimes of Article 3 of the Judgment with the most serious Crimes)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

The reason for sentencing under Article 334(1) of the Criminal Procedure Act is to be protected by the Act on the Punishment, etc. of Public Officials and Inducement by Interest as stipulated in Article 230(1) of the Public Official Election Act. In light of the purport of the Public Official Election Act, the Defendant, who has already been elected several times, provided or promised to provide money or goods to persons engaged in election affairs. Furthermore, the amount of money or goods provided by the Defendant exceeds two million won, and the amount of money promised to provide is equal to three million won in total; the Defendant made a false statement at an investigative agency or made another person make a false statement at an investigative agency; and the Defendant attempted to return to the JJ to induce the reversal of the statement, which is the informant of each of the crimes of this case, is disadvantageous to the Defendant.

The Defendant’s crime of this case does not aim to purchase general voters, and does not seem to have affected the result of the election due to such act, in light of the background of the crime, the content of the crime, and the relationship between the Defendant and the J, K, and G, etc. In the case of the crime of this case as stated in paragraph (1) of the Criminal Act, there are circumstances that may be considered in light of the circumstances, the Defendant’s criminal act as stated in paragraph (2) of the Criminal Act, and the result is good after the election as an election campaign manager, and the Defendant appears to have committed contingent acts in the process of expressing his mind and mind. In the case of each crime as stated in paragraph (3) of the Criminal Act, the amount equivalent to the amount may be treated as election expenses or political funds outside the election expenses lawfully, and the Defendant’s depth is against the mistake in this court, and there is no criminal record against the Defendant.

In such circumstances, the Defendant’s age, character and conduct, motive of the crime, circumstances after the crime, and each of the instant crimes were committed without communication with H, and the Defendant’s deprivation of H’s position as a member of the National Assembly is too harsh, and the circumstances constituting the conditions for sentencing specified in the instant pleadings are considered, and the sentence is to be determined as ordered by a fine.

The acquittal portion

1. Summary of the facts charged

On February 2, 2012, the Defendant heard from the office of H located in the Gwanak-gu Seoul Special Metropolitan City R 4, the Defendant agreed to provide money and valuables to J in relation to election campaign by stipulating that “if he makes a lump sum payment by four credit cards in connection with election, he will preserve the amount later.” On April 2012, the Defendant promised to provide money and valuables to J in relation to election campaign by stipulating that “the amount used during that period shall be approximately seven million won,” from the J at the coffee shop that “the amount used during that period shall be equal to or more than seven million won,” and that “the Defendant will take part in two times during that period.” In relation to H election, the Defendant promised to preserve the total amount of KRW 2,906,110, which is the amount paid by the credit card, etc. of J, such as the attached crime list (2).

2. Determination

As examined in the above 4-B(2) and 3-B, there is no evidence to acknowledge this part of the facts charged.

Thus, this part of the facts charged should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act because it constitutes a case where there is no proof of a crime. However, inasmuch as it is found guilty of violating the Public Official Election Act as stated in paragraph (3) of the facts constituting a single comprehensive

It is so decided as per Disposition for the above reasons.

Judges

The presiding judge and the judge;

Judges Jong-young

Judge Lee Jae-Un,

Note tin

1) An election campaign under Article 135(3) of the Public Official Election Act is necessary for the election or votes obtained by a specific candidate or for the defeat of a specific candidate.

the purpose of promoting the success or defeat in the election as an act, which may be objectively recognized as such;

act of preparing an election campaign that falls under the internal or procedural preparation for a future election campaign;

(b) is distinguished from ordinary political party activities, but in specifically determining whether an act constitutes an election campaign;

the manner of the act as well as the name of the act, i.e. the time, place, method, etc. of the act;

to observe and determine whether it is an act accompanying the purpose of promoting the election or defeat of a particular candidate;

Therefore, the office shall be separately prepared, and election campaign measures shall be taken by employing election campaign workers, etc.

Establishment, etc. of an act is clearly intended to promote the election of a specific candidate, and such act merely provides for an election campaign.

It cannot be deemed as a non-act or ordinary political party activity as a political party (Supreme Court Decision 98Do1432 delivered on April 9, 199, etc.)

[Reference]

2) The non-guilty part of the promise to provide money and goods for each item listed in the annexed list of crimes (2) refers to the unguilty part.