[2] In a case where a corporation issues a false political fund receipt with the false content of borrowing an individual's name in the same manner as an individual's employee or employee receives political funds contributions in excess of the limit of receiving political funds from the corporation, whether it may be punished under Article 30 (1) of the former Political Funds Act (affirmative)

[2] In a case where a corporation issues a false political fund receipt with the false contents of borrowing political funds in the name of an individual in the name of an executive or employee of the corporation in order to avoid the penal provision after receiving a contribution of political funds from the corporation in excess of the contribution limit, this does not constitute an act of raising political funds in four ways under the former Political Funds Act (amended by Act No. 7191 of Mar. 12, 2004), but should be evaluated as an act of receiving political funds without issuing a political fund receipt to the relevant corporation, which is a substantial recipient of political funds, and therefore, the above interpretation shall be punished pursuant to Article 30 (1) of the same Act and shall not be deemed to violate the principle of no punishment without the law.

56 days of detention prior to the rendering of this judgment shall be included in the above sentence.

The Defendant is a member of the National Assembly of the 13th, 15, and 16th National Assembly, and was in charge of the receipt and disbursement of election expenses, such as support payments, and accounting reports to the election commission, as a general secretary of the Central Election Countermeasures Commission of the Newcheon Democratic Party at the time of the 16th presidential election in 202.

1. Anyone is prohibited from receiving or receiving any political funds in such a way that is not prescribed by the Political Funds Act, and when he receives or receives any political funds through a supporters’ association, he receives any political funds within the limit of the amount of contribution limit as prescribed by the Political Funds Act and, when he gives and receives any political funds receipt, he receives the receipt stating the names of supporters and the amount of contribution, etc

(a) knowing that it is no longer possible to provide a legitimate political fund because the gold Group had already provided political funds by satisfying the limits of the contributions provided for in the Political Fund Act in 2002;

(1) On November 1, 2002, Nonindicted 1, the head of the Gold Group Strategic Management Headquarters, who was well aware of it, requested that Nonindicted 1, the head of the Gold Group Strategic Management Headquarters, support the political funds necessary for the presidential election. On or around the 15th to 20th of the same month, he saw that Nonindicted 1, at the 15th of the same month, he did not issue a political fund receipt for the total of KRW 300,000 won per face value from Nonindicted 1 at the 1st of the hotel hotel in Jung-gu Seoul, Jung-gu, Seoul.

(2) On December 12 of the same year, Nonindicted 1 again requested to Nonindicted 1 to provide additional political funds necessary for the presidential election again, and around the 5th through 6th of the same month, at the Defendant’s office located in the office of the Youngcheon Democratic Party located in Yeongdeungpo-gu Seoul Metropolitan City, Yeongdeungpo-gu, Seoul, the political fund receipts worth KRW 30 million in total, without issuing the political fund receipts of KRW 10 million in face value from Nonindicted 1, 30 million from Nonindicted 1;

B. In collusion with Nonindicted 2, who is the assistant officer of the Defendant, the Secretary General of the Central Election Coordination Committee of the Newcheon Democratic Party;

Around November 28, 2002, Hyundai Motor Group-Related Corporation, including Non-Party 3, the vice president of Hyundai Motor Group, etc., in order to receive additional political funds in excess of the above contribution limit even though it is aware that it is unable to provide legitimate political funds under the name of the corporation, even though at the office of the Central Election Countermeasure Headquarters in Yeongdeungpo-gu Seoul, Yeongdeungpo-gu, Seoul, the Central Election Countermeasure Headquarters, it had already provided political funds by satisfying the limit prescribed by the Political Fund Act in the year 2002. In order to receive additional political funds, 21 executives and employees of Hyundai Motor Group-Related Corporation, such as Non-Party 3, the vice president of Hyundai Motor Group, etc., who was the vice president of Hyundai Motor Vehicle 2 through Non-Party 2, were to issue a false political fund receipt stating the name of the donator and the name of the third party who was the next party, without entering the name of the donator in the item of the political fund receipt as if they were to be the investors of the political fund receipts.

C. On December 5, 2002, when requesting Nonindicted 5, the head of the SK Restructuring Restructuring Headquarters, to provide support for the presidential election support fund, and Nonindicted 5, who was provided 1.5 billion won from Nonindicted 5’s corporation on or around the 5th of the same month, Nonindicted 5 again requested to provide support for Nonindicted 5’s political fund funds during the same month, and Nonindicted 5 already contributed KRW 1.5 billion to Nonindicted 5’s employees, who were 36 U.S. employees of each corporation, to provide political fund funds in the name of 2002, with the limit provided for in the Political Fund Act in 2002. If Nonindicted 5’s political fund funds were contributed to Nonindicted 5, an individual’s name, 300 million won, and the request was made again to provide funds under the name of Nonindicted 5’s employees, who were 1.5 billion won or more, to receive political funds funds funds funds funds funds from the 200 billion won or more under the name of 36.5 billion won.

D. In collusion with the Non-Indicted Party I, who is the Head of the Central Election Countermeasures Committee of the Newcheon Youth Democratic Party, in collusion;

On December 17, 2002, the office of the general affairs office of the Central Election Countermeasure Committee, which was issued by Non-Indicted 7, the representative director of the Korea-Japan Construction Group under the Korea-Japan Group, with the presidential election support fund, and received from Non-Indicted 8, who received the direction of this finance without issuing a political fund receipt equivalent to KRW 1 billion of the national housing bonds of Class 1 (the KRW 10 million KRW 80,000 KRW 5 million and KRW 40 million).

political funds in total amount of KRW 3.26 billion in a manner that is not prescribed by the Political Fund Act;

2. The accountant in charge of the central party of the political party participating in the presidential election shall report the receipt and disbursement of the political funds during the election period and the settlement of accounts of the political funds to the National Election Commission as they are 40 days before the election day

On January 28, 2003 and February 14, 2003, the National Election Commission reported the details of the revenues and expenditures for the 16th Presidential election expenses related to the 16th Presidential election, and made a false accounting report by omitting the total of 4.4 billion won, including the sum of 1.6 billion won, such as the gold Group and 1.6 billion won, received as the support fund for the presidential election from the 16th Presidential election from the Korea-U.S. Group, and the 1.6 billion won, from the Korea-U.S. Group, and omitting the amount of 3.5 billion won, which is a part of the amount of the support fund for each district during the amount of expenditure.

Summary of Evidence

1. Statement by the defendant in this court;

1. Entry of each protocol of suspect examination of the accused and the grandchildren by the prosecution, and a certified copy of the protocol of suspect examination of the prosecution concerning the objection and finance;

1. Each prosecutor's protocol on the defendant, non-indicted 1, 2, 5, knife, knife, knife, and Kim Hong-sub, each prosecutor's protocol on the non-indicted 8, 2, and knife, and each copy of the prosecutor's protocol on the best alcohol,

1. Each written statement in the preparation of the Kim Salary-gu and the lowest illness map;

1. A copy of the report on revenues and disbursements of election expenses for the new 16th presidential election (not more than 478 pages), a copy of the report on revenues and disbursements of election expenses for the new 16th presidential election (not more than 1st 478 pages), a copy of the report on revenues and disbursements of election expenses for the new 16th presidential election (not more than 1st 515 pages of investigation records) (not more than 1st 515 pages of investigation records), a copy of the list of contributors of political funds (not more than 1st 44th 2th 198 through 202, the details of payment of political support payments (not more than 1st 52th 2th 2 of investigation records), the account statement at the National Assembly and branch offices of the National Federation of NAF under this title (not more than 2nd 1123 pages of investigation records), and a copy of the account statement (not more than 2nd 123th 2 of investigation records);

Application of Statutes

1. Article applicable to criminal facts;

o. Receipt of political funds: Article 30(1) of the former Political Fund Act (amended by Act No. 7191 of March 12, 2004; hereinafter the same shall apply)

o A false accounting report: Article 31 subparag. 1 and Article 24(2) of the former Political Funds Act

1. Selection of punishment;

Each choice of imprisonment with labor for each crime

1. Aggravation of concurrent crimes;

Article 37 (Aggravation of Concurrent Crimes as provided for in the former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravation of Punishment and Punishment)

1. Calculation of days of detention;

Article 57 of the Criminal Act

1. Determination on collection

The necessary confiscation or collection pursuant to the provisions of Article 30 (3) of the former Political Fund Act is interpreted as the purpose of preventing a criminal from holding unjust profits by deprived of the property acquired by the criminal from the criminal. Thus, in case where the criminal did not acquire political funds or where the political funds received from a third party are provided as political funds according to the purpose, the profit of the part is not actually reverted to the criminal, and thus it cannot be collected additionally.

However, according to the above evidence, the defendant deposited KRW 100 million out of KRW 300,00,000,000,000,000 received from the gold Group as stated in Paragraph 1(A) of the judgment, into the account in the name of the non-indicted House used for the management of election funds, and used the remaining KRW 200,000,000,000 as election funds, such as non-official public opinion poll funds, after exchanging the defendant's funds in cash. The national housing bonds equivalent to KRW 30,00,00,000 received from the Gold Group as stated in Paragraph 1(b) of the judgment were exchanged in cash and delivered as non-official subsidies to each district party to the new 50,000,000,000,000,000,000,000,000 won received from Hyundai Motor Group's National Housing Association account as stated in Paragraph 1(b) of the judgment.

Judgment on the defendant's assertion (including the defense counsel's assertion)

1. As to Article 1-2(b)(c) of the Judgment

A. The assertion that no intention had been intentional

(1) Summary of the assertion

The Defendant asserts to the effect that, as indicated in Nos. 1-B and (c) as indicated in its holding by Hyundai Motor Group and KS Group, each of the above groups-related corporations did not know that they made a contribution exceeding the limit of contribution under the former Political Funds Act (hereinafter “ Political Funds Act”), and that, as regards each of the above political funds, the Defendant was unaware of the fact that each of the above groups-related corporations was issued a receipt under the name of an individual executive officer or employee of each group

(2) Determination:

(A) As to paragraph 1-b of the judgment

On November 28, 2002, the defendant ordered non-indicted 2 to handle support funds provided by Hyundai Motor Group from non-indicted 4 on the receipt of KRW 1 billion from the non-indicted 4's political funds. The non-indicted 2 was provided with a list of juristic persons and individuals who are nominal to issue receipts from the non-indicted 4, and issued a receipt in the name of juristic person for KRW 340 million with respect to the political funds of the Hyundai Motor Group, KRW 660 million, and issued a receipt in the name of an individual in the name of an executive officer and employee for the remaining KRW 660 million. On the other hand, Non-indicted 2 reported on the details of the disposal of political funds received from Hyundai Motor Group, and immediately after the disposal of such political funds received from Hyundai Motor Group, the defendant did not accept the above part of the receipt in the name of an individual in the name of an executive officer and employee in the name of his/her own name.

(B) As to paragraph (1)(c) of the judgment

On December 5, 2002, according to each of the above evidence, the defendant requested the police officer to provide 1.5 billion won for election funds to Nonindicted 5 in early December 2002. The defendant received 1.5 billion won for the political funds provided by the KS group related corporation from Nonindicted 5 in the same month and processed receipts as support payments. The defendant again requested to Nonindicted 5 again during the same month, and Nonindicted 5 requested to provide additional subsidies to Nonindicted 5 in the same month. Since Nonindicted 5’s KS case was already unable to provide legitimate political funds under the Political Funds Act in 2002, it was no longer possible to receive political funds at the end of the discussions, and then decided to provide support funds in the name of an individual executive officer or employee after receiving political funds in the name of the defendant. According to the above facts, Nonindicted 5 sent 1 billion won to Nonindicted 2 in accordance with the defendant’s instructions, and the defendant can be found to have received and notified the above receipts in the name of an individual corporation, name, resident registration number, address, etc., and the above list.

B. The assertion that Article 30(1) of the Political Funds Act cannot be applied to the rate

(1) Summary of the assertion

The Defendant asserts to the effect that, as indicated in Article 30(1) of the Political Funds Act, the Defendant’s act of receiving political funds in excess of the limit of receiving political funds provided by the Political Funds Act from a corporation at the time of receiving a contribution of each political fund as set forth in Article 1(b) and (c) of the Hyundai Motor Group and KS Group is an evasion of the law, but not an unlawful act falling under Article 30(1) of the Political Funds Act, and applying Article 30(1) of the Political Funds Act to the above act is in violation of the principle of no punishment without law, and ultimately, each act of the Defendant cannot be applied to Article

(2) Determination:

The principle of no punishment without the law, which is guaranteed through Articles 12 and 13 of the Constitution, refers to a crime and punishment must be determined by law. The principle of clarity derived from such principle of no punishment without the law, can predict what is the act intended to punish law, what is, and how the punishment can be imposed, and accordingly, requires a clear provision of the elements of a crime so that anyone can decide his/her act. However, even if the elements of a punishment law must be clear, it is not necessary to define all the elements of a crime as a simple descriptive concept, but rather to use a concept that requires complementary interpretation of judges somewhat broad and broad, if a person has a sound common sense and ordinary legal sentiment, it does not conflict with the clarity of the punishment law required by the Constitution (see Constitutional Court en banc Decision 98Hun-Ga10, Jun. 29, 200).

Meanwhile, the purpose of the Political Funds Act is to contribute to the sound development of democratic politics by guaranteeing the original provision of political funds and disclosing the current status of their revenues and expenditures (Article 1). The purpose of the Act is to reflect on the actual status of political funds of our country in which the number of political funds was connected to fraudulent acts and corruption and there was no retaliation against the economic person. In order to achieve the above purpose, Article 2(1) of the Political Funds Act requires that anyone shall follow the strict procedures and methods prescribed by the Act in raising political funds by prescribing that any person may not contribute or receive any political funds that are not governed by this Act in Article 2(1) and that anyone shall not contribute or receive any political funds, while Article 4, such as party membership fees, Articles 5 and 6 shall raise political funds through a supporters’ association, and Article 11 shall provide the State subsidy system for political parties in Article 17, etc. (see Constitutional Court en banc Decision 96Hun-Ma85, May 29, 197).

Therefore, even if the elements of a political fund are determined by using the passive expression of "in a way that is not prescribed by this Act" rather than stating the types of acts to actively punish the elements of a political fund in determining the elements of a Article 30 (1) of the Political Fund Act, as seen earlier, insofar as the Political Fund Act clearly prescribes membership fees, supporters' association systems, political party deposit systems, and national subsidy systems as methods of raising political funds, anyone is aware that the said legal provision provides for the acts of giving or receiving political funds in a way other than the above four methods prescribed by the above Act as the elements of a political fund. In order to achieve the legislative purpose of the above law, it is essential for legislative technology to stipulate the elements

In addition, in light of the above legislative purpose of the Political Fund Act, Articles 2(1), 4 through 6, 11, and 17 of the above Act, criminal punishment for raising or receiving political funds in a manner that is not in accordance with the above Act is required and reasonable as it is inevitable to achieve the purpose of the above Act to prevent the denial and corruption of the number of voiced political funds by punishing the number of political funds by any other means, and thus, it is necessary and reasonable to limit the Constitutional Act as it is necessary and reasonable to achieve the purpose of the above Act.

Therefore, in a case where political funds are contributed by a corporation in excess of the limit of contribution of political funds from the corporation and the issuance of false political funds receipts in the name of an individual in order to avoid the above penal provision, this does not constitute the act of raising political funds in four ways as provided by the Political Funds Act, and it should be evaluated as an act of receiving political funds without issuing political funds receipts to the relevant corporation, which is a substantial recipient of political funds, and therefore, it shall be punished pursuant to Article 30(1) of the Political Funds Act, and the above interpretation is not in violation of the principle of no punishment without law. Therefore, the defendant's above assertion is rejected.

(c) argument that it constitutes an act that does not contravene social norms.

At the time of receipt of political funds as stated in Nos. 1-B and 1-C of the Hyundai Motor Group, KS Group, and Korea Commercial Group, the Defendant asserts to the effect that issuing a receipt in the name of an individual in the name of a political party would not be punished because it constitutes an act that does not violate the social rules under Article 20 of the Criminal Act, and that the act of paragraph (d) constitutes an act that does not violate the social rules under Article 20 of the Criminal Act, and thus, would not be punished if a representative of a juristic person requests issuance of a receipt in the name of an individual in order to avoid expected disadvantages by offering political funds to a specific political party.

However, the "act which does not violate the social rules" under Article 20 of the Criminal Act refers to the act which can be accepted in light of the overall spirit of legal order or the social ethics or social norms, which is located behind it. Whether certain act is justified as a legitimate act that does not violate the social rules, and thus, the illegality should be avoided, based on specific circumstances, and it should be determined individually. Thus, in order to recognize such legitimate act, the following requirements should be met: (i) legitimacy of the motive or purpose of the act; (ii) reasonableness of the means or method of the act; (iii) balance between the protected interests and the infringed interests; (iv) urgency; and (v) supplementaryness that there is no other means or method other than the act (see Supreme Court Decision 2003Do300, Sept. 26, 2003).

However, even if there was a practice of receiving support payments, such as the defendant's assertion, it is against the Political Funds Act, and since the defendant received political funds as stated in Section 1-B and Section 3 in accordance with such unlawful practice, it cannot be viewed as a justifiable act that does not violate the social rules, the defendant's above assertion is rejected.

2. As to paragraph 1-D of the holding

The defendant asserts to the effect that the defendant cannot be held responsible for the receipt of the above political funds because he received KRW 1 billion from the Korea Exchange Group without any public offering with this finance.

In the case of co-offenders who jointly process two or more persons in a crime, the conspiracy is not legally required, but is a combination of two or more persons to jointly process a crime and realize the crime. Although there was no process of the whole conspiracy, if the combination of doctors is made in order or implicitly through several persons, the conspiracy relationship is established, and even if there was no direct participation in the conduct, even if there was no direct participation in the conduct, the person is held liable for the other co-principal's conduct (see Supreme Court Decision 2001Do606, Dec. 12, 2003, etc.).

However, according to each of the above evidence, in particular, the defendant's interrogation protocol 2, 3, 7, 9 each prosecutor's office's interrogation protocol, prosecutor's interrogation protocol 3, 4 prosecutor's protocol 2 against non-indicted 2, each prosecutor's protocol 8, and each prosecutor's statement protocol 8, 2 against non-indicted 2, etc., the defendant received the above KRW 1 billion from non-indicted 8, the assistant officer of this finance, even though he was aware that this finance was illegal political funds, and then he did not issue the receipt for the above political funds to the Korea Commercial Group. Thus, the defendant participated in the receipt of illegal political funds provided by the Korea Commercial Group by public offering in sequence with the above finance. Thus, the defendant's above assertion is not acceptable.

3. As to paragraph 2 of the holding

The defendant asserts that since the details stated in the accounting report on the total amount of revenues and expenditures of the election funds and the accounting report document identified by the defendant are only confirmed and approved as consistent with generally accepted facts, it did not recognize specific omission of report, the defendant did not intend to make a false accounting report.

However, according to the above evidence, especially the defendant's interrogation protocol of the prosecution, the third prosecutor's protocol of the prosecution and the third prosecutor's statement of the defendant, and the statement statement of the prosecutor's office about Kim Hong-il, the defendant was in charge of the revenue and expenditure of election expenses and the accounting report of the election commission as the accountant in charge of the new Mancheon Democratic Party Election Countermeasures Committee. The revenue and expenditure of election expenses and the accounting report of the election expenses are all held liable by the defendant. Further, the defendant did not issue receipts from the 1-A and the 1.6 billion won of the political fund, such as the statement in paragraph (d) and received receipts from the 1-A and the 1.6 billion won of the political fund from the 1-D group, and the 1-6 billion won of the political fund from each district party located in the Seoul Metropolitan area by directly paying them to the head of the district party's office. According to the above acknowledged facts, it is difficult to accept the fact that each district party's election expenses were directly provided by delivering them to the direction department of the election countermeasures.

Grounds for sentencing

As above, considering the fact that the Defendant, as the chief of the general affairs headquarters and a person in charge of accounting of the Newcheon Democratic Party Election Countermeasures Committee, entrusted not only the collection of election funds but also the disbursement of the minimum expenses, there is room for reasonable consideration for the Defendant, taking into account the following: (a) the Defendant has contributed to the past democratization movements; (b) the Defendant has been engaged in political activities for about 16 years as three National Assembly members after entering the politics as a member of the 13th National Assembly; and (c) the Defendant has faithfully lived without any criminal history; and (d) the Defendant is not receiving political funds of this case for personal interest.

However, taking account of the fact that the receipt of illegal political funds not only interferes with a fair election but also imposes a heavy economic burden on companies, ultimately, the loss is caused by the damage of the national economy, and the defendant also receives a lot of illegal political funds that are not free from a malicious illegal political fund in the old age that should be liquidated, and are not free from the old age, it is difficult to hold the defendant liable corresponding to it.

In addition, taking into account all the factors of sentencing prescribed in Article 51 of the Criminal Act, such as the character, conduct, environment, motive, means, results, and circumstances after the crime of this case, the defendant shall be sentenced to imprisonment for one year. It is so decided as per Disposition.

Judges Yellow Freeboard (Presiding Judge)