However, even where funds are received as the cost of appointing a lawyer to be required in a criminal trial, if the criminal trial is for a crime related to his/her political activity and the number of funds is carried out for the purpose of maintaining his/her political activity, such funds may also be political funds. In such cases, whether the cost of appointing an attorney-at-law given and received constitutes political funds shall be determined by comprehensively taking into account various circumstances surrounding the relevant criminal trial, such as the criminal prosecution and relation between the defendant's political activity, the impact of the trial result on the maintenance of his/her political activity, the relationship between the defendant and the financial provider,

1. As to the Defendants’ grounds of appeal

Article 45(1) of the Political Funds Act provides that a person who contributes or receives political funds in a manner not prescribed by the Act shall be punished. Article 3 Subparag. 1 of the same Act provides that “political funds” refers to party membership fees, support payments, deposits, subsidies, incidental revenues prescribed by the party constitution, party rules, etc., and other political activities: (a) a person who is elected through an election for public office; (b) a person who intends to become a candidate for an election for public office or a candidate; (c) a supporters’ association, executive staff of a political party or a salaried staff member in charge of clerical services or other persons who are engaged in political activities; and (d) a person who contributes or receives political funds in a manner not prescribed by the Political Funds Act provides money, securities, or other goods provided to him/her; and (c) Article 3 Subparag. 2 of the same Act provides “contribution” as “all acts in which an individual, supporters’ association, or other persons provide political funds for political activities” (see, e.g., Supreme Court Decision 2008Do102226, Feb.).

Meanwhile, in a case where a person who engages in political activities becomes a criminal defendant by the prosecution of a criminal prosecution, the criminal prosecution was conducted by the prosecutor, and thus, the defense and defense activities of the defendant passively in the relevant criminal trial cannot be generally deemed as political activities, and thus, even if a person who engages in political activities was provided with attorney-at-law fees required in the criminal trial, it cannot be deemed as receiving political funds in principle.

However, even where funds are received for the appointment of a lawyer required in a criminal trial, if the relevant criminal trial is for a crime related to his/her political activity and the amount of funds is carried out for the purpose of maintaining his/her political activity, such funds may also be political funds. In this case, whether the received attorney-at-law fee constitutes political funds shall be determined by comprehensively taking into account various circumstances surrounding the relevant criminal trial, such as the criminal prosecution and the relationship between the defendant's political activity, the impact of the trial result on the maintenance of political activity, the relationship between the defendant and the financial provider, and the amount of funds received or received.

For the reasons indicated in its holding, the lower court affirmed the first instance judgment that found Defendant 1 guilty of all the charges of this case on the ground that: (a) Defendant 1 was elected in a local election to ○○○ market; (b) was indicted as a violation of the Public Official Election Act; and (c) was sentenced to a fine of KRW 2.5 million corresponding to the invalidation of election in the first instance trial; and (d) the remaining Defendants and Nonindicted clans, etc. were provided to Defendant 1 as a lawyer’s fee for the above violation of the Public Official Election Act in order to maintain Defendant 1’s market position; and (b) Defendant 1’s political activities were provided as a political fund for Defendant 1; and (c) Defendant 1 was found to have committed a crime of receiving political funds under Article 45(1)

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court’s determination is just and acceptable. In so determining, contrary to what is alleged in the Defendants’ grounds of appeal, there were no errors by misapprehending the legal doctrine regarding the crime of receiving political funds and the applicable provisions thereof, or by exceeding

2. As to the Prosecutor’s Grounds of Appeal

Article 51 of the Criminal Act and matters concerning whether the circumstances before the opening are obvious are subject to the discretion of the court concerning the determination of punishment widely. Thus, in a case where the death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years is declared by the court of final appeal pursuant to Article 383 subparag. 4 of the Criminal Procedure Act, unless the grounds for final appeal as to the propriety of the determination of punishment are adjudicated by the court of final appeal, the determination of the court below as to whether the matter provided for in Article 51 of the Criminal Act and the circumstances before the opening are obvious cannot be judged, and even if the judgment of the court below clearly erroneous, it does not change (see Supreme Court en banc Decision 2001Do6138, Feb. 20, 2003).

Therefore, the Prosecutor’s ground of appeal merely criticizes the lower judgment on the ground that the amount of punishment imposed by the lower court is unreasonable.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)