[2] Requirements for the establishment of the crime of concealing evidence / Whether the act of requesting a third party to help the person to conceal evidence is punished as the crime of concealing evidence (negative in principle) / Whether the crime of concealing evidence constitutes the crime of concealing evidence in a case where the defendant himself/herself conceals materials for his/her own interest (negative), and whether the same applies even if he/she committed such act jointly with a third party (affirmative)

[3] Whether the Constitutional Court’s ruling of inconsistency with the Constitution as to Article 6 of the former Political Funds Act and Article 45(1) of the Political Funds Act is unconstitutional (affirmative) and whether the court shall render a verdict of inconsistency with the Constitution as to the provisions of the Punishment Act on the grounds that the case prosecuted by applying the aforementioned provisions ought to be acquitted (affirmative)

A. Violation of the Political Funds Act due to the receipt or donation of funds related to each organization against Defendants 1, 4, and 5

Article 31(1) of the Political Funds Act provides that “no foreigner, domestic or foreign corporation or organization shall contribute political funds,” and Article 31(2) of the same Act provides that “no person shall contribute political funds with funds related to such corporation or organization.” Here, “funds related to a corporation or organization” refers to funds that can be contributed according to a corporation or organization’s decision-making, and includes not only its own assets that form the basis for existence and activities of a corporation or organization, but also funds raised and raised in its name by a corporation or organization (see Supreme Court Decision 201Do15418, Mar. 14, 2013). However, inasmuch as Article 31(2) of the Political Funds Act prohibits a corporation or organization from contributing political funds with relevant funds even if it does not contribute political funds, all of which are related to a corporation or organization, it shall be deemed that the funds raised and contributed are either funds to be raised by a corporation or organization or an organization that is subject to financing, such as donation or financing, to the extent that they are not related to a corporation or organization.

The lower court found Defendant 1, Defendant 4, and Defendant 5 not guilty of this part of the charges on the grounds that the trade union did not have contributed “funds related to the organization” to ○○○○○○○○ Party, on the grounds that the trade union members participated freely in the tax credit business, and did not manage or arbitrarily dispose of the money collected from the union members.

In light of the aforementioned legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by violating the rules of evidence or by misapprehending the legal principles on Article 31(2) of the Political Funds

B. The point of concealing evidence against Defendant 3

The lower court acquitted Defendant 3 of this part of the facts charged on the ground that it is difficult to deem that Defendant 3 conspired with Defendant 2 to commit a crime concealing the instant hard disc solely on the fact that Defendant 3 informed Nonindicted 1 to Defendant 2 and asked Nonindicted 1 about the removal of the instant hard disc.

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in violation of the rules of evidence, the rules of experience and logic, or in misapprehending the legal principles on the establishment

C. Meanwhile, the prosecutor appealed against Defendant 1, Defendant 4, and Defendant 5 in the judgment of the court below. However, there is no specific reason in the petition of appeal nor there is no statement in the appellate brief on the grounds of objection.

2. Judgment on Defendant 2’s grounds of appeal

The lower court convicted Defendant 2 of the charges against the above Defendant on the ground that Defendant 2’s intentional concealment of evidence was recognized.

In light of the relevant legal principles and evidence, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the criminal intent of concealment of evidence.

3. Determination on Defendant 1’s grounds of appeal as to Defendant 1’s violation of the Political Funds Act due to the number of political funds received through a unreported account and the concealment of evidence

A. Violation of the Political Funds Act due to the number of political funds received through an unreported account

The lower court convicted Defendant 1 of this part of the facts charged on the ground that Defendant 1 received political funds from the said account with the knowledge that the instant unreported account was not reported to the National Election Commission.

Examining the relevant legal principles and evidence, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by violating the rules of evidence or by misapprehending the legal principles on the criminal intent of violating the Political Fund Act due to the number of political funds received through the unreported

(b) The point of harboring evidence;

The court below found Defendant 1 guilty on the ground that, of the facts charged in the instant case against Defendant 1, Defendant 2’s primary facts charged that “The Defendant 1 knew that the police search and seizure on the ○○○○○ Party website and the voting system server was in progress, and instructed Defendant 2 to take out the information-related equipment, and Defendant 2 kept two hard diskss, which are evidence of Nonindicted Party 2 and the public official’s violation of the Political Parties Act, in collusion with Defendant 2, concealed evidence of another person’s criminal case.” However, the lower court found Defendant 1 guilty on the ground that the hard disks was a evidence of the criminal case of Defendant 1, but even if it was evidence of his criminal case, the joint principal offender of the evidence concealment was established.

However, the crime of concealing evidence is established when concealing evidence in relation to another person's criminal or disciplinary cases, and since the act of concealing evidence by the criminal himself/herself does not conflict with the purport of recognizing the defendant's right to defense in criminal proceedings and thus, the criminal's act of requesting assistance to another person is not, in principle, punished. Therefore, if the defendant conceals materials to be used as evidence for the remaining one's own interest by having the criminal intent to directly punish him/her, it does not constitute the crime of concealing evidence, and even if such act was committed in collaboration with a third party, it does not constitute the crime of concealing evidence, and the same holds true (see Supreme Court Decisions 2011Do5329, Nov. 28, 2013; 2013Do12079, Apr. 10, 2014, etc.).

Nevertheless, the lower court convicted Defendant 1 of the concealment of evidence, which is the primary charge of the concealment of evidence, on the ground that even if it is the evidence related to one’s own criminal case, if it is jointly concealed with another, on the ground that it constitutes a joint principal offender of the concealment of evidence. In so doing, the lower court erred by misapprehending the legal doctrine on

4. Ex officio determination on the violation of the Political Funds Act (excluding the part related to the organization) due to the illegal acceptance of or contribution to each political fund against Defendant 1, Defendant 4, and Defendant 5

A. Of the facts charged in the instant case, the lower court found Defendant 1 guilty by applying Article 45(1) of the Political Funds Act to the part that Defendant 4 and Defendant 5 donated funds under the pretext of sponsoring party membership fees from ○○○○○○○○○○○○○○○○○ Party through a tax credit project for sponsoring party members, and that Defendant 4 and Defendant 5 contributed funds under the said pretext, thereby receiving or contributed political funds by means that are not provided for in the Political Funds

However, following the pronouncement of the lower judgment, the Constitutional Court rendered a ruling of inconsistency with the Constitution regarding Article 6 of the former Political Funds Act (amended by Act No. 8880, Feb. 29, 2008; Act No. 9975, Jan. 25, 2010); Article 6 of the Political Funds Act (amended by Act No. 9975, Jan. 25, 2010); Article 45(1) main text of the Political Funds Act (amended by Act No. 8880, Feb. 29, 2008); Article 6 of the Political Funds Act (amended by Act No. 8880, Feb. 29, 2008; Act No. 1360, Jun. 30, 2017; hereinafter “The Constitutional Court en banc Decision 2013Hun-Ba168, Jun. 16, 2015).”

B. The Constitutional Court’s ruling of inconsistency with the Constitution is a modified form that is not prescribed by the Constitution and the Constitutional Court Act but constitutes a ruling of unconstitutionality as to legal provisions (see, e.g., Supreme Court Decision 2004Do7111, Jan. 15, 2009; Constitutional Court en banc Decision 2003HunGa1, May 27, 2004; Constitutional Court en banc Decision 2004HunGa4, May 4, 200). Article 45(1) of the Political Funds Act provides that political funds shall be donated in a way that is not prescribed by Article 6 of the former Political Funds Act (amended by Act No. 9975, Jan. 25, 2010; hereinafter “former Political Funds Act”). Article 6(1) of the former Political Funds Act constitutes a judgment of unconstitutionality as to the case where the above provisions (hereinafter “instant provisions”) are deemed to have become retroactively null and void when a judgment of inconsistency with the Constitution is rendered pursuant to Article 28(1).

C. Examining the foregoing legal doctrine in light of the foregoing, since the instant legal provision becomes retroactively null and void pursuant to the ruling of inconsistency with the Constitution, the court shall render a judgment of innocence pursuant to the former part of Article 325 of the Criminal Procedure Act with respect to the violation of the Political Funds Act (excluding the part related to the organization’s funds) due to the illegal acceptance of, or contribution to, respective political funds against Defendant 1, Defendant 4, and Defendant 5 brought a

Therefore, since the judgment of the court below on this part cannot be maintained as a result, this part of the judgment below should be reversed without determining Defendant 1’s grounds of appeal.

5. Scope of reversal

As above, the part of the judgment below’s evidence concealment as to Defendant 1 and the part of the violation of the Political Funds Act (excluding the organization-related funds), and the part of the violation of the Political Funds Act (excluding organization-related funds) due to the illegal receipt of political funds against Defendant 4 and Defendant 5 should be reversed in all.

However, the lower court sentenced Defendant 1 to a single sentence on the grounds that the violation of the Political Funds Act due to the concealment of evidence and the number of political funds received through a unreported account is concurrent crimes under the former part of Article 37 of the Criminal Act. Therefore, the part of the lower judgment’s conviction against the Defendant should also be reversed as well as the part of the violation of the Political Funds Act due to the number of political funds received through a unreported account among the convictions against the Defendant. In addition, the part of the lower judgment’s acquittal on the grounds of the violation of the Political Funds Act due to the number of funds received by an organization related to the Defendant against the foregoing Defendant should also be reversed on the grounds that the aforementioned part

In addition, the part of the judgment of the court below on acquittal on the violation of the Political Funds Act due to each organization’s contribution to Defendant 4 and Defendant 5 is reversed in relation to the violation of the Political Funds Act and the violation of the Political Funds Act due to each organization’s illegal contribution to the above Defendants, and the part on acquittal for each of the above reasons should also be reversed.

6. Conclusion

Therefore, the part of the judgment below against Defendants 1, 4, and 5 is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor and Defendant 2’s appeal are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)