Defendant shall be punished by a fine of KRW 500,000. Where the Defendant does not pay the above fine, the Defendant shall be confined in the workhouse for a period calculated by converting the amount of KRW 100,000 into one day.

The defendant shall be ordered to pay an amount equivalent to the above fine by provisional payment.

According to the evidence submitted by the prosecutor, the court below found the defendant not guilty of the facts charged of this case, even though it is recognized that the defendant had a criminal intent with respect to the act of contribution equivalent to interest.

2. Determination

A. Facts charged

On June 2, 2010, the Defendant was elected from the election of the local basic council members to D's members in the constituency C in the election of the local basic council members on June 2, 2010, and is currently the Speaker of D's meeting and intends to become a candidate for the election of the local basic council members on June 4

A local council member shall not make a contribution to a person in the constituency concerned, or an institution, organization, or facility, or a person who is residing outside the constituency concerned but has relations with the electorate, or an institution, organization, or facility.

Nevertheless, around September 2013, the Defendant paid 5 million won of overdue wages to the representative of the above retired worker H, I, and J. K. for the purpose of E corporation under the pretext of urging the payment of overdue wages, defective assemblies, and resolving the complaints of local residents while conducting arbitration at the G golf course located in Chungcheongnam F operated by E corporation, and received 10 million won of overdue wages from around September 18, 2013, and around October 2, 2013, the Defendant paid 10 million won of overdue wages, and around October 2, 2013, paid 35 million won of overdue wages from around October 11, 2013 to around December 31, 2013, and provided 10 million won of interest payment to E corporation, and received 35 million won of overdue wages from around December 31, 2013 to around December 36, 2013, as indicated in the attached Table of Offenses.

B. The judgment of the court below

After finding facts as stated in its holding, the lower court acquitted the Defendant of the instant facts charged on the following grounds.

(1) According to the evidence submitted by the prosecutor, the defendant paid a total of 35 million won of wages in arrears to retired workers of E Co., Ltd. (hereinafter "the company of this case") from September 4, 2013 to October 11, 2013, while the defendant received the same amount from the company of this case from October 2, 2013 to October 16, 2013. Thus, the amount equivalent to the interest on wages in arrears accrued during the period in which the defendant paid the same amount to retired workers from the time when he paid the wages in arrears to the retired workers of this case, is provided free of charge to the company of this case, and the defendant's act constitutes a contribution act.

(2) However, in full view of the following circumstances revealed in the record, it is insufficient to find that the evidence submitted by the prosecutor alone was the criminal intent of making an act of donation that provides the instant company with money, goods, and other property benefits at the time of each act.

(1) The Defendant agreed on the dispute over overdue wages between the instant company and retired workers by arbitration.

② The instant company requested the Defendant to deliver the overdue wages, and actually paid KRW 10 million to the employee via the Defendant around September 2, 2013 (i.e., the Defendant only delivered the instant company’s money, but did not pay the said money).

③ However, if the instant company did not pay the remaining overdue wages on the agreed date, the Defendant appears to have paid the said amount to the employees once, considering that the company and workers of the instant case were to have been repaid later from the standpoint of arbitration.

④ In fact, the Defendant was thought to deliver money that he received from the instant company, and the Defendant was unaware of the fact that he was paid wages.

⑤ The Defendant and N appears to have been able to receive full wages paid by the instant company or N, with the fact that the Defendant was aware of the fact that the Defendant had ever come to the post-regional distribution for a period of up to 10 years.

④ Finally, the instant company paid the full amount of wages paid by the Defendant to its employees from October 1, 2013 to October 16, 2013, which was five (5) days after the Defendant paid wages to its employees.

C. Judgment of the court below

(1) Relevant legal principles

Article 113 of the Public Official Election Act limits all contributions made by local council members, etc., and Article 112(1) of the same Act comprehensively provides for the type of contributions subject to punishment. In light of the statutory provisions that limit exceptions to Article 112(2) of the same Act, insofar as the act of offering money and valuables, etc. falling under Article 112(1) of the same Act does not constitute an act of courtesy or in the course of performing duties or ordinary political party activities by the rules of the Central Election Council based on Article 112(2) of the same Act and the rules of the relevant committee, and the decision of the committee, it constitutes a requirement for organizing crimes under Article 257(1) of the same Act, which punish a violation of the prohibition of contributions by local council members, etc.

Meanwhile, even if the contribution act does not constitute a formal or official act or ordinary political party activity as stipulated in Article 112(2) of the above Act, if it is deemed within the scope of the social order which has been historically created as a kind of ordinary living style, there may be cases where the illegality may be avoided because it does not violate the social rules as a kind of formal or official act or ordinary political party activity, but it shall be careful to recognize the illegality of such a reason (see, e.g., Supreme Court Decisions 2009Do676, Apr. 9, 200; 2009Do10967, Dec. 4, 2009).

(2) Determination

(A) Whether the act constitutes a contribution act

As the court below properly decided, the amount equivalent to the interest accrued on the overdue wages paid by the defendant from the time when the defendant paid the overdue wages to the time when the defendant received the repayment of the same amount from the company of this case is provided to the company of this case free of charge, and the defendant's act constitutes a contribution act under the Public Official Election Act.

(B) Whether a person can be recognized as committing an act of donation

We cannot accept this part of the judgment of the court below.

Most of the circumstances cited by the court below are the motive or circumstance leading to the crime of this case, which can only constitute the reason for sentencing, and it is difficult to view that the circumstance can be inferred that the defendant did not have any intention to commit a contribution act.

Rather, in light of the circumstances leading up to the defendant's substitute payment, the amount of the substitute payment, and the amount of the repayment received by the court below as revealed in the evidence duly admitted and investigated by the court below, it is sufficiently recognized that the defendant, in order to obtain payment from the company of this case, once he paid the corresponding amount to the retired workers, there occurs time interval between the time of the substitute payment and the time of the subsequent repayment, and therefore, it is in accordance with the general concept and normal rule that he would have taken advantage of the circumstances that the interest equivalent to the above interest during the above period would be provided to the company of this case. At that time, the defendant would have been able to obtain a refund from the company of this case about the above substitute payment and the interest equivalent to the above interest, and therefore, it is sufficiently recognized that the defendant had a criminal intent to make a contribution through the provision of the above interest equivalent to the above interest (the issue of whether the defendant used or had an intention to influence the election can not be considered as the criminal intent of the contribution act of this case against the present local council member).

(C) The Defendant and his defense counsel asserts to the effect that “the Defendant’s act constitutes grounds for illegality as an act constitutes an ordinary person’s act, which constitutes an ordinary person’s act and constitutes an ordinary person’s act and constitutes an ordinary person’s act, and thus constitutes an ordinary person’s act or an act that does not contravene the social norms, and thus, constitutes an ordinary person’s act.”

However, it is difficult to view that the act of the Defendant, beyond the action of mediating the dispute between the retired workers and the company of this case, providing the benefit equivalent to the interest of the company of this case by paying in excess of the amount of the interest, constitutes an exceptional or occupational act for the treatment of civil petitions. In light of the aforementioned legal principles, recognition of illegality as to the act of donation, which does not constitute a formal or official act as stipulated in Article 112(2) of the Public Official Election Act, should be careful, in view of the fact that it is not contrary to social rules, and therefore, it is difficult to view that the act of the Defendant constitutes a case where it is within the scope of social order which is naturally created as a form of normal life. Thus, it is difficult to view that the act of the Defendant falls under the grounds for

Therefore, the above argument by the Defendant and the defense counsel is difficult to accept.

(3) Sub-determination

Therefore, the defendant's act constitutes a contribution act and the defendant's intention to commit a contribution act is recognized, and it is difficult to view that the facts charged in this case constitute grounds for dismissal of illegality, and thus, the court below's judgment not guilty is erroneous in the misapprehension of facts as to the recognition of a contribution act.

3. Conclusion

Therefore, the prosecutor's appeal is justified, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

Criminal facts

As described in paragraph 2-A(a) above.

Summary of Evidence

1. The defendant's partial statement in the second trial records of the court below;

1. Statement of the witness 0 and N in the second trial records of the original judgment;

1. The police statement of H;

1. A certificate of details of transactions, copies of passbooks, certificates of details of transactions, deposits without passbooks, and certificate of details of transactions;

1. Full certificate of the registered matters;

Application of Statutes

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

In general, Article 257(1)1 and Article 113(1) of the Public Official Election Act (Selection of Fines)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Grounds for sentencing

1. The scope of punishment by law: Not more than 10 million won;

2. Application of the sentencing criteria;

[Determination of type] Violation of prohibition of and restriction on contribution to election crimes

[Special Sentencing] Reduction element: where money or other valuables provided or benefits are extremely minor;

[Scope of Recommendation] Fine of KRW 500,000 to KRW 3 million (Discretionary area)

3. Determination of sentence: Fines of 500,000 won;

In light of the fact that the defendant committed the crime of this case in the process of resolving the civil petition of the local residents, the benefits provided are very insignificant, and the possibility of having an effect on the election is rare, the sentence like the order shall be sentenced.

Judges Kim Gin-jin

Judges, Superintendent of the National Assembly