Attorney C, D, and E

The activities of the executives of the parents volunteer group of this case shall be deemed as filing a civil petition or free volunteer activities related to safety in the region in which they reside or live. In addition, the activities of the fire officers and police officers in Seoul H constituted performance of official duties. Therefore, such activities are not services for the defendant to pay for the expenses (a service requiring the performance of obligations under an oil contract) but money and meals provided to them are not paid as a consideration for their activities. Thus, the act of the defendant having provided money and providing meals to them constitutes a contribution act prohibited by the Public Official Election Act.

Nevertheless, the court below found the defendant not guilty on the facts charged of the violation of the Public Official Election Act against the defendant on the grounds as stated in its holding. The court below erred in the misapprehension of the legal principles as to the exceptions to the act of donation under the Public Official Election Act, and the omission of judgment as to the consideration of the activities of a social gathering, the nature of the social gathering of this case, the services provided by the officers of parents volunteer groups, etc.

2. Relevant legal principles

Article 113(1) of the Public Official Election Act provides that a member of the National Assembly, etc. may not make a contribution (including an act of donation in the form of marriage) to any institution, organization, or facility located outside of the relevant constituency, or any institution, organization, or facility with the electorate. In principle, a contribution act refers to an act in which one of the parties has provided, expressed his/her intent to provide, or promised to provide, goods, or other property benefits to the other party free of charge (Article 112(1) of the same Act). Thus, a contribution act is not made in a case where a legitimate consideration relationship is made, such as performance of an obligation, even if some of the parties have a relation of consideration, if there is no legitimate consideration relationship with the other party, and thus, a contribution act is made in a case where the other general public gains difficult to obtain from such an act even if it is an act of donation (see, e.g., Supreme Court Decision 9Do15137, Dec. 23, 1996; 201Do41314.

3. Determination

A. The lower court, based on the evidence duly adopted and examined by the lower court, explained in detail the grounds for and the method of holding the instant simplified conference; the problems and improvement measures related to the safety management of school environs presented at the instant simple conference; the details of the Defendant’s parliamentary activities after the instant simple conference; the details of the service provided by parents’ organizations and police officers and fire officers at the instant simple conference; the schedule of the instant simple conference; the time during which the instant simple conference was held; and the degree of movement distance and effort; and determined that the Defendant’s payment of allowances to the executive officers of parents’ organizations and public officials who participated in the instant simple conference does not constitute “contribution prohibited under the Public Official Election Act.”

1) The Defendant held a meeting of this case to improve, correct, or prevent the problems of safety management that may occur in various schools by checking the safety issues of children around the school at the site, and to establish laws and policies that can improve, correct, or prevent them, and to reflect them in the budget.

2) The inter-party conference of this case was held to hear civil petitions, such as pending issues in the local constituency where the Defendant would come out, or the executive officers of the parents association of this case merely attended the inter-party conference and filed a civil petition.

3) Officers and police officers of parents’ associations and police officers, fire-fighters, and researchers affiliated with the Korea Transportation Safety Authority were present at the livers conference of the instant case to confirm the safety management situation surrounding elementary schools, present issues and improvements relating to the safety of students at the site, and discuss on these issues.

4) The daily amount of KRW 40,00 per day paid to the executives of parents’ associations, the executives of parents’ associations and police officers, and the amount of meal equivalent to KRW 26,450 per capita provided to the fire-fighting officers, shall be deemed to be justifiable remuneration for their services provided for the instant meeting. In light of the content of their services and the degree of their efforts, it cannot be deemed that there is any imbalance between the benefits and the benefits, and thus, the “contribution act without compensation” cannot be deemed to be established in part.

B. In light of the above circumstances, whether the court below's detailed statement in the court's decision was based on the evidence duly adopted and investigated by the court below and the court below, or the following circumstances are easily inferred, the above judgment of the court below is sufficiently acceptable, and each of the statements of A Q, AR, AS, and AT by the witness of the court below does not affect the above judgment.

1) In order to carry out legislative activities, such as legislative and policy development, which are the mission of a member of the National Assembly, accurate awareness of the problems at the site is necessary, and to this end, civil petitions from the people is essential. Therefore, as long as various safety-related problems, etc. in school revealed in the livers conference of this case are reflected in the legislative activities, such as the legislative and policy development of the defendant, in the process, the defendant's parents or students listen to civil petitions about the safety issues in school surroundings, and some of them have been resolved, it cannot be viewed as a meeting for the mere hearing of civil petitions and resolution.

2) In the case of the executives of the parents’ organization who received allowances and those of the parents who did not receive allowances from the Defendant side, there are differences in the developments leading up to or purpose of attending the liver conference of this case and the contents of the services provided. The Defendant side paid 40,000 won per day to the executives of the parents’ organization according to the number of the days they actually attended the liver conference and provided their services (the TRT paid 50,000 won per day to the researchers affiliated with the Transport Management Corporation).

3) The executives of parents’ associations were those who were engaged in volunteer activities by the Green Slicks Association and the Safety Manager Association for a considerable period of time, with considerable experience and interest in the safety issues surrounding the school, and expressed their opinions about the safety-related problems, improvements, difficulties, etc. in the process of the instant inter-conference meetings, and considerable portion of them were reflected in the parliamentary activities of the Defendant, such as the legislative and policy development of the Defendant (T was given at the lower court to the effect that “The parties who are well aware of the on-site situation, such as the executives of another forum or the School Safety Manager Association, attend a debate or panel to talk about the on-site problem, and the most expert related to the children’s traffic safety problem, are the mother.”

4) Executives of parents' organizations, such as the executives of the Green Language Association, or police officers, etc. may attend a panel meeting to discuss various issues such as school safety (e.g., the "children's traffic accident prevention and safety strengthening debate held on September 23, 2014 at the Green Language Federation, which was held by the defendant and incorporated association," the Chairperson of the Green Language Federation, the Director of the National Police Agency's Traffic Bureau, etc. were present as the debate. The "measures to ensure children's traffic safety" held on July 21, 2016 by the member of the National Assembly, which was held on July 21, 2016 by the member of the National Assembly, was present as the debate). In the case of the instant Telecommunication meeting, there is a characteristic that the "field meeting" is a meeting, and there is no reason to view it differently from the above meetings, and if the parents' organizations that received meals or public officials provided with meals, it can be deemed that they provided the "inter-committee or school services" as the members of the subcommittee.

5) In the case of AX Elementary School, AY Elementary School, AZ Elementary School, BA Elementary School, and BB Elementary School, the executive officers of the parents organization who attended the instant livers meeting could not actively present their opinions on on-site inspection and safety issues other than the elementary school with which their children attend. In the case of AX Elementary School, AY Elementary School, AZ Elementary School, BA Elementary School, and BB Elementary School, the executive officers of the parents organization who attended the instant livers meeting were bound to present their opinions on their own.

C. Meanwhile, the prosecutor asserts to the effect that ① “the provision of remuneration for the provision of services, etc.” as an exception to contribution acts falls under “the act of performing the obligation” (3). Even if the officers of parents’ associations provided their services, they merely correspond to volunteer activities, and it does not constitute “services necessary to perform the obligation to perform the obligation to pay for consideration under a contract,” and ② public officials performing official duties cannot be deemed to have provided the above service.

However, in light of the following circumstances acknowledged according to the evidence duly adopted and examined by the court below and the court below, so long as the payment of allowances and meals is made according to the contents of the service provided by parents' organizations officers and public officials and the degree of effort as seen earlier, there is no fact that a contract for consideration was concluded in advance, or the content of service provided by some persons who received meals is within the scope of performing official duties. Thus, it cannot be deemed that allowances or meals paid to them do not constitute "contribution" rather than the provision of remuneration for the provision of service. Therefore, the above argument cannot be accepted.

1) The Defendant did not explicitly state that the executives of the parents’ organization will be paid allowances at the time of their intervention. However, as in the case of ordinary meetings, the Defendant had a plan to pay the prescribed allowances to the executives of the parents’ organization as “coverers’ panel expenses”.

2) On September 2015, before the opening of the instant briefing session, U in fact asked the legislative support division of the Secretariat of the National Assembly and the legislative support division of the secretariat of the National Election Commission (which has an office permanently stationed in the National Assembly) and the legislative support division of the secretariat of the National Election Commission, etc., and then asked the policy debates, whether it is possible to provide the relevant panel expenses and meals.

3) Meanwhile, on the third day of the Inter-Korean summit, the above U made a statement to the effect that the executive officers of the parents' association should be paid a certain amount of the cost of transportation, and that the National Assembly should request for the payment of the cost of policy development, and the executive officers of the parents' association did not raise any objection.

4) The Defendant side paid allowances to the executive officers of parents organizations under the name of experts, honorariums, etc. related to meetings for policy development, and provided meals to the executive officers of parents organizations and public officials, as prescribed by the pertinent provisions, such as the Act on Allowances for National Assembly Members, etc., the legislation of the National Assembly, the provision on the payment of legislative and policy development expenses, and the guidelines for legislation and policy development execution.

○ 국회의원 수당 등에 관한 법률 제7조의2(입법 및 정책개발비)① 국회의원의 입법 및 정책개발 활동을 지원하기 위하여 예산의 범위 안에서 입법 및 정책개발비를 지급할 수 있다.② 제1항의 규정에 따른 입법 및 정책개발비의 지급기준·절차 등에 관하여 필요한 사항은 국회의장이 각 교섭단체대표의원과 협의하여 정한다.○ 국회의 입법 및 정책개발비 지급 등에 관한 규정∘ 제1조(목적)이 규정은 국회의원 수당 등에 관한 법률 제7조의2의 규정에 따른 국회의원의 입법 및 정책개발 활동을 지원하기 위하여 필요한 사항을 정함으로써 의원입법의 내실화를 도모하고 국회의원의 입법정책개발역량을 강화함을 목적으로 한다.∘ 제5조(입법 및 정책개발비의 지급)① 국회의장은 지원의원회의 결정에 따라 예산의 범위 안에서 국회의원에게 입법 및 정책개발비를 지급할 수 있다.○ 입법 및 정책개발 지원예산 집행지침나. 지원범위• 일반수용비(210-01) - 입법 및 정책개발을 위한 세미나, 공청회, 간담회, 토론회(이하 세미나 등이라 한다)등과 관련된 자료발간비, 초청장인쇄비, 자료발송료, 현수막·포스터, 광고료(광고료의 총액은 의원 1인당 배정액의 10%를 초과하지 못한), 전문가사례금(30만 원이하), 물품구입비(자산취득성 물품구입은 제외), 주차료, 통행료, 물품운송료 등사업추진비(240-01) - 세미나 등 입법 및 정책개발 관련사업에 소요되는 접대비, 연회비 등

D. Therefore, we cannot accept all the grounds of appeal by the prosecutor that the judgment of the court below erred by mistake of facts, misunderstanding of legal principles, or omission of judgment.

4. Conclusion

Therefore, the prosecutor's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Shin Jae-ok

Judges Kim Young-hun

2) However, as seen earlier, AY Elementary School, AC Elementary School, AZ Elementary School, and AF School are parents of AX Elementary School. ② AE stated in the prosecutor’s office that there was no participation of the relevant mother of the school’s association members of the school (in the investigation record No. 340), ③ in the case of BA elementary school, part of the parents appears to have participated (in the investigation record No. 47 of the investigation record) in view of the video of the participants (in the case of BA), and the lower court, one of the grounds for determining that there was reasonable grounds to deal with the executives of the parents’ association differently from other parents of the other parents. “If the lower court finds that the parents of the relevant elementary school did not cooperate in the holding of the instant simple meeting, the parents of the relevant elementary school did not participate in the safety control of the surrounding elementary school, and the executives of the parents’ organization pointed out many problems about the surrounding safety control of the relevant elementary school.”

3) Article 112 of the Public Official Election Act (Definition, etc. of Contribution Act)

(1) For the purpose of this Act, the term "contribution act" means an act of offering money, goods, or other economic benefits, expressing an intention to offer such benefits, or promising to offer such benefits, to a person in the constituency concerned, a meeting or event of an institution, organization, facility, or electorate, or a person, institution, organization, or facility outside the constituency concerned, even if such a meeting or event is held.

(2) Notwithstanding the provisions of paragraph (1), none of the following acts shall be deemed contributions:

4. Functional acts:

(j) Performing obligations, such as the provision of prices for purchase of goods, construction works, provision of services, etc. or the payment of charges, etc.;

4) Supreme Court Decision 2004Do6915 Decided April 15, 2005, which was held by a prosecutor, provides money and goods to volunteers under the oil value after taking a prior election campaign with the help of volunteers without any consideration agreement, and the case is different from this case. In addition, if the prosecutor asserts that “A National Assembly member under the Election Act can be a member of the National Assembly under the Election Act” issued by the National Election Commission is explicitly stated in the book stating that “A National Assembly member may be a member of the National Assembly,” even in the case of “an act of paying food or ordinary honorariums to the person who has launched the policy debates held by the National Assembly member or the speaker,” the act constitutes a contribution act prohibited by the Public Official Election Act. In the meantime, the prosecutor did not take issue in the case of a defendant’s payment to Twit who belongs to the Transport Management Corporation, but there was no fact that a prior contract was concluded between the defendant and T.

5) The contents of U’s interpellation around September 2015 to the legislative support division of the Secretariat of the National Election Commission were “where a National Assembly member holds a debate meeting as part of the parliamentary activities, whether it is possible to provide honorariums and food following holding a debate meeting.” The content of the reply was “a National Assembly member may hold a debate meeting necessary for parliamentary activities before the election period, and offer honorariums and food, etc. to voters within the scope that can be seen as reasonable compensation for the provision of services before the election period.” At the court below and the trial court of the first instance, U asked the National Assembly Secretariat in charge of the payment of operating expenses of the National Assembly by five days, and asked the National Assembly members of the National Assembly in charge of the payment of operating expenses of the National Assembly, and then asked the National Assembly members of the extension line with the National Assembly members of the National Assembly, police officers of the Federation, and parents of the Defendant at the time of this case’s interview with the Defendant at the time of his questioning of U.K.’s testimony and testimony.”

6) U testified in the court of the court below that “The persons who participated frequently in the debate or debate held by the National Assembly, such as TResearch Institute, shall be paid for the fee, and the role of U shall be paid for KRW 100,000 or KRW 300,00,000. However, U testified testified to the purport that “the executives of the parents’ groups first participated in the meeting of this case may not be paid for the panel honorarium and shall be notified to the middle.”