[2] The case holding that the borrower has no intention to use the borrowed money free of charge where the borrower borrowed the money with the intent to offer the borrowed money, even if the borrower lent the money without the intention to receive the money

[3] Where a candidate to run in an election for public office provides the money that he/she borrowed as a political fund, the person who is required to enter the money in the account book as the revenue provider pursuant to Article 37(1)4(a) and Article 37(2)2 of the Political Funds Act (=candidate) and the creditor as to the above loan shall also be entered in the account book (negative in principle)

1. Article 3 subparag. 2 of the Political Funds Act and Article 3 subparag. 3 of the former Political Funds Act (wholly amended by Act No. 7336 of Aug. 4, 2005) provide that the lending of money, goods, or facilities shall be deemed to be a donation of money, goods, or facilities. Here, the lending of money, goods, etc. refers to the lending without the contribution of the cost for the use of money, goods, etc., so whether the lending of money, goods, etc. is free of charge or not should be determined at the time of the lending. Therefore, if a person who borrows money, goods, etc. has only an unilateral intent to make a contribution of the cost without an agreement with the other party regarding the contribution of the cost, it cannot be deemed that the obligation to contribute the cost arises, and thus, an agreement between the parties to contribute money, goods, etc. should be deemed to fall under a gratuitous lending of the money, goods, etc. provided by the Political Funds Act. However, even if there was no express agreement between the parties to make a contribution of the money, etc.

In the reasoning of the judgment below, the court below's explanation that the decision should be made only on the basis of the borrower's intent as to the provision of the consideration at the time of borrowing money or other valuables is inconsistent with the above legal principles as to the concept of free lending.

However, according to the reasoning of the judgment of the court of first instance cited by the court below, if the borrower borrowed the money with the intent to offer the consideration, the court of first instance held that even if the borrower borrowed the money without the intent to receive the consideration, the borrower cannot be deemed to have a criminal intent for free use, and it is difficult to conclude that Defendant 1 did not have any intention to offer the consideration at the time of borrowing each of the money from Nonindicted 1 and Nonindicted 2. Thus, the judgment of the court of first instance is ultimately the purport that Defendant 1 did not have any criminal intent to receive the contribution of political funds in a way that is not provided for in the Political Funds Act at the time of receiving the loan from Nonindicted 1 and Nonindicted 2. Accordingly, the court below maintained the judgment of the court of first instance that acquitted Defendant 1 of the crime of violation of the Political Funds Act, such as the Political Funds Act, is just in accordance with the legal principles as seen earlier, and there is no error in the misapprehension of legal principles as to the concept of free lending.

In addition, considering the records of the first instance evidence examination maintained by the court below in finding Defendant 1 not guilty on the grounds that there was no criminal intent against each of the above crimes, there is no violation of the rules of evidence or incomplete hearing, as alleged in the grounds of appeal.

2. Article 37 (1) 4 (a) of the Political Funds Act provides that "the person in charge of accounting of the candidate for the election of public officials shall enter the details of revenues of political funds in the account book, and one of such revenues shall be "property (including borrowings)" as one of such revenues, and "the details of revenues" in Article 37 (2) 2 of the same Act provides that "the name, date of birth, address, occupation, telephone number and other details of the person who provided the revenue" refers to the date, amount, and the name, date of birth, occupation, telephone number and others of the person who provided the revenue." Since the borrowed amount is included in the assets of the selection and appointment authority and the borrowed amount is the revenue of political funds, if the borrowed amount is provided as political funds by the candidate for the election of public officials who is the selection and appointment authority, the person in charge of accounting of the candidate for the election of public officials shall not be the person in charge of accounting of the selection and appointment authority, unless there are special circumstances such as that the borrowed amount constitutes a free loan deemed a donation."

According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance that Defendant 2, Defendant 1’s accountant in charge of accounting, and Defendant 1, who borrowed KRW 93 million from Nonindicted 2 through the political fund account, and entered them in the revenue and expenditure book of the political fund, which is the account book, as Defendant 1’s asset, and only Defendant 1’s personal information is recorded in the “content” column, and Defendant 2’s “person who provided revenue” refers to Article 37(1)4 of the Political Fund Act, and Defendant 2’s copy of the deposit passbook submitted to the election commission in making an accounting report after the completion of election constitutes a documentary evidence proving the contents of the amount that Defendant 1 provided to Defendant 2. In light of the above legal principles, the judgment of the court below is justifiable, and there is no violation of the rules of evidence, or misapprehension of legal principles as to the preparation of accounting books and the submission of revenue under the Political Fund Act, as alleged in the grounds for appeal.

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

Justices Ahn Dai-hee (Presiding Justice)