A. Defendants

(i)misunderstanding of facts and misapprehension of legal principles

㈎ 정치자금법 제31조 제2항 관련

In light of the legislative intent of the Political Funds Act, “funds related to organizations” provided for in Article 31(2) of the Political Funds Act should be limited to cases where “funds that may belong to organizations” can be evaluated as “funds of organizations”, namely, “funds of organizations”. In addition, the members of the organization voluntarily determine support and the organization can not be punished pursuant to the above provision until they recommend or provide funds. In this case, although the National Council for Registered Security and Police (hereinafter referred to as the “Council”) made funds from members under the name of special membership fees, the National Council for Registered Security and Security (hereinafter referred to as the “Council”) managed the above money and delivered it to the National Assembly members. However, the money raised is distinct from the general accounts of the Council Council, and it is only the role of managing the said money and delivering it to the National Assembly members. Accordingly, the sum of KRW 3830,000,000 which the Defendants conspired to deliver to the National Assembly members or National Assembly members’ associations is not the money of the organization but the money of each member.

㈏ 정치자금법 제32조 제3호 관련

Article 32 subparag. 3 of the Political Funds Act provides that a member of the National Assembly shall not contribute or receive political funds in relation to “the solicitation or mediation concerning the affairs in charge of public officials.” The legislative intent of the above provision is to prohibit the receipt and receipt of political funds in return for a solicitation or mediation to other public officials. As such, as in this case, the National Assembly members do not receive political funds in relation to other public officials’ affairs, but shall not prohibit the receipt and receipt of political funds in relation to the legislative action related to their affairs, such as the receipt of political funds in relation to other public officials’ affairs. Therefore, the Defendants’ acts cannot be regarded as violating the above provision.

【Unjustifiable sentencing

In light of the fact that the defendants are in profoundly against the crime, actively cooperate with the investigation, and the poor treatment that have been gained by the police assigned for special guard during the crime, each sentence of the court below against the defendants is too unreasonable.

(b) Prosecutors;

In light of the fact that the Defendants committed the instant crime in a systematic and secret manner by the Defendants, and the size of the instant political funds delivered by the Defendants to the National Assembly members, each sentence of the lower court against the Defendants is deemed unreasonable.

2. Determination

A. Judgment on the misunderstanding of facts and misapprehension of legal principles by the Defendants

(1) As to Article 31(2) of the Political Funds Act

First, we examine the Defendants’ act to the effect that it does not violate Article 31(2) of the Political Funds Act.

In light of the purport of the provision of Article 31(2) of the Political Funds Act, i.e., the purpose of preventing a lawful contribution of political funds by an organization, “organization” as referred to in the above provision refers to a group of groups with a common purpose or an interest and with which the formation of organized intent and decision-making can be possible, and “funds related to an organization” includes not only assets which form the basis for the existence of an organization and its activities as funds which can be contributed according to a decision-making of an organization, but also funds which are primarily raised and raised by an organization using its name (see Constitutional Court Order 208Hun-Ba89, Dec. 28, 2010).

However, the lower court’s determination that the Defendants were duly admitted and investigated for the following reasons: ① the Defendants’ 10th election management organizations and 0th election management organizations and 10th election management organizations and 0th election management organizations and 10th election management organizations and 10th election management organizations and 20th election management organizations and 10th election management organizations and 3th election management organizations and 10th election management organizations and 10th election management organizations and 10th election management organizations and 20th election management organizations and 3th election management organizations and 10th election management organizations and 10th election management organizations and 20th election management organizations and 3th election management organizations and 10th election management organizations and 3th election management organizations and 10th election management organizations and 10th election management organizations and 3th election management organizations and 20th election management organizations and 3th election management organizations and 10th election management organizations and 10th election management organizations and 20th election management organizations and 20.

B. Concerning Article 32 subparag. 3 of the Political Funds Act

Next, we examine the Defendants’ act to the effect that it does not violate Article 32 subparag. 3 of the Political Funds Act.

Article 1 of the Political Funds Act provides that the legislative purpose is to ensure the adequate provision of political funds and ensure the transparency by disclosing the details of revenue and expenditure of political funds at the same time, and to contribute to the sound development of democratic politics by preventing any malpractice related to political funds. In addition, the Political Funds Act stipulates the types of political funds permitted under the same Act by dividing into party membership fees, support payments to supporters’ associations, deposits, national subsidies, etc., and stipulates detailed provisions regarding the limits and procedures for contribution by each political fund type in detail. In Chapter 6, while specifying that the aforementioned political funds contributions are restricted in certain cases, Article 32 subparagraph 3 of the Political Funds Act prohibits a public official from making a solicitation or mediation concerning his/her duties.

In addition to the above legislative purpose, comprehensively taking account of the contents and structure of the above provisions of the Political Fund Act, the purport of the provisions on restrictions on donation in Chapter VI of the Political Fund Act is that even if the amount of political funds is a contribution of political funds according to the procedures and limits permitted in Chapters I through V, it is not specifically permitted in certain cases. In particular, Article 32 of the same Act is prohibited in order to prevent the amount of such political funds by deeming that there is a risk of damaging the fairness and neutrality of the public official, the affairs to be taken and handled by the public official, the fairness and neutrality of the public official, the affairs to be taken and handled by the public official, and the affairs to be taken and handled by the public official, or causing corruption due to the regular transit, even if the amount of

Therefore, as long as a public official is unable to contribute or receive political funds in connection with the affairs of solicitation or mediation, as long as he/she has contributed or received a contribution of political funds, the crime of violation of Article 32 subparag. 3 of the Political Funds Act is established. The mere fact that the solicitation or mediation belongs to the scope of the duty of the person who received the relevant political funds (see Supreme Court Decision 2007Do7204, Sept. 11, 2008).

However, in light of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, i.e., the defendants, who are executive officers of the NIS, contributed political funds in relation to the amendment of the Police Assigned for Special Guard Act, which is the affairs in charge and managed by the members of the National Assembly who are public officials, in relation to the adoption of the grades system of the police assigned for special guard at their request and the extension of their retirement age to the members of the National Assembly, the defendants' act in this case violates Article 32 subparagraph 3 of the Political Funds Act, and therefore, the judgment of the court below to this purport is correct, and there is no error of law by mistake of facts or misapprehension

The Defendants asserted that Article 111(1) of the Attorney-at-Law Act provides that “an act of receiving money, valuables, entertainment or other benefits under the pretext of solicitation or good offices with respect to cases or affairs handled by public officials,” which is similar to that of Article 32 subparag. 3 of the Political Funds Act. In interpreting the aforementioned provision of the Attorney-at-Law Act, the term “cases or affairs handled by public officials” is interpreted as “an act of covering all cases or affairs except for those who receive money or goods, etc.,” and therefore, the term “related affairs handled by public officials” under the aforementioned provision of the Political Funds Act should also be interpreted as referring to affairs to be handled by other public officials except for those who receive political funds.”

Article 3 of the Attorney-at-Law Act provides that an attorney-at-law's duties shall be defined as "act related to a lawsuit, request for administrative disposition, etc. by delegation by a party or other persons concerned, or by delegation by the State, local governments, or other public agencies, and an attorney-at-law's duties shall be defined as "act related to a lawsuit, request for administrative disposition, etc." and in Chapter 11, penal provisions punishing a violation of the Attorney-at-law Act are provided, and Article 111 (1) of the penal provisions provides that a person who receives or promises to receive money, valuables, entertainment, or other benefits under the pretext of solicitation or arrangement for a case or affairs handled by a public official shall be punished. In light of the contents and structure of the provisions of the Attorney-at-law Act, Article 111 (1) of the Attorney-at-law Act, which is naturally premised on the attorney-at-law's duties, shall be punished for some acts

In addition, the above provision takes the form of punishing an act of receiving money or goods, etc. in favor of a public official in connection with a case or business affairs handled by the public official, and it is interpreted as a provision premised on the existence of a person who makes a solicitation or intermediary and a person who receives a solicitation and a person who receives a solicitation in favor of another person.

Therefore, in light of the contents, structure, and form of the above provision of the Attorney-at-Law Act, it is natural that "cases or affairs handled by public officials", which are the purpose of solicitation and mediation of Article 111 (1) of the Attorney-at-Law Act, should be interpreted as "the case or affairs handled by public officials" as "the case or affairs handled by all persons other than those who received money or goods, etc." (see Supreme Court Decision 2005Do7050, Apr. 14, 2006).

However, Article 32 subparag. 3 of the Political Funds Act prohibits receipt of political funds in connection with a specific solicitation or mediation in relation to the affairs in charge and handling by a public official in the form of a legislative purpose and provision as seen earlier. Even if such solicitation or mediation belongs to the scope of the duties of a person who receives political funds, the mere fact that such solicitation or mediation belongs to the scope of the duties of a person who receives political funds. Thus, the legislative purpose, the form and content of the provision cannot be said to be the same as Article 111(1) of the Attorney-at-Law Act.

B. Determination on the assertion of unfair sentencing by Defendants and prosecutors

Next, I examine the defendants and the prosecutor's argument of unfair sentencing.

As seen earlier, the Political Funds Act prohibits a juristic person or organization from contributing political funds with funds related to domestic and non-profit juristic persons or organizations, inasmuch as the juristic person or organization has superior social and economic status compared to ordinary individuals and has complicated interests, which may cause corruption in political activities and damage to the people's trust in transparency and fairness of political activities. The Defendants are in violation of the provisions of this case in order to prevent irregularities regarding political funds. The Defendants are willing to encourage the members of the National Assembly to amend the law by solicitation of the members of the National Assembly in order to raise remuneration through the extension of the retirement age of the police assigned for special guard as its officers, the introduction of the grade system, etc. The Defendants’ contribution of legislative bills to the members of the National Assembly from KRW 5 million to KRW 50 million per person, taking into account the contribution ratio, status, and portion of the police assigned for special guard to the amendment of the bill, and then the Defendants’ contribution to political funds from KRW 50 million per person to receive political funds after receiving the receipt after the violation of the Political Funds Act.

However, on behalf of the police assigned for special guard who have been able to improve the poor treatment for a long time, the amendment of the Act in this case was caused to commit the instant crime on behalf of the Defendants, and there was a consensus on this point, and the amendment of the Act seems to have been passed without the opposition from the plenary session of the National Assembly. The Defendants 1 and 3 have no record of criminal punishment; Defendant 2 has been sentenced to a fine of KRW 1 million due to the crime of violation of the Road Traffic Act (driving) around 2000; Defendant 2 has the record of being sentenced to a fine of KRW 1 million due to the crime of violation of the Road Traffic Act (driving). In full consideration of all the conditions of sentencing such as the defendants' age, character, conduct, satisfaction, and degree of participation in the instant crime, etc., it appears that each punishment of the lower court against the Defendants is reasonable, and it does not seem to be too unfavorable or unreasonable.

Therefore, the defendants and the prosecutor's argument of unfair sentencing is without merit.

3. Conclusion

Therefore, all appeals filed by the Defendants and the prosecutor are without merit, and they are dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Yong-con (Presiding Judge)