ProhibitionofIllicit Delivery and Reception ofPolitical Funds

(16-1 KCCR 759, 2004Hun-Ba16, June 26, 2004)

Held, the relevant provisions of the Political Funds Act prohibitingthe illicit delivery and reception of political funds andpunishing the violation thereof are not in violation of the Constitution.

Background of the Case

With respect to the delivery and reception of political funds, the Political Funds Act has separate provisions to punish the violation of various provisions of restriction, obligation and supervision, and, in addition thereto, has a general provision to punish those who either deliver or receive political funds in a method not regulated by the above statutory provisions, i.e., in an illicit method. The complainant is an individual who ran for the vacancy election to fill vacant seats at the National Assembly, with no political party affiliation. The complainant was prosecuted for allegedly having received political funds in the amount of approximately seventy million Korean Won(￦70,000,000) in the 'method not regulated by the Political Funds Act.' While the above litigation was pending, the complainant filed the constitutional complaint, claiming that the above relevant provisions were unconstitutional as violative of the principle ofnulla poena sine legeor principle of punishment by

statute and also of the principle of equality.

Summary of the Decision

The Constitutional Court, in a unanimous opinion, has issued the decision holding that the statutory provisions at issue in this case are not in violation of the Constitution. The summary of the grounds for the Court's decision is stated in the following

paragraphs.

1. Although Section 3 of Article 8 of the Constitution provides that the state may subsidize funds necessary for the operation of the political parties pursuant to the regulations of the statute, it is difficult under the fiscal restraint to subsidize funds in the sufficient amount. In addition, although Section 1 of Article 116 of the Constitution declares the election campaign governed by statute and the principle of equality in opportunity and Section 2 of Article 116 provides that neither the political party nor the individual candidate shall be burdened to bear the cost of election unless otherwise regulated by the statute, there is no provision for the subsidy of the cost necessary for other political activities of politicians. On the contrary, as the political activities tend to become highly organized in the present-day state through the modern age, the cost necessary for the political activities inevitably has greatly increased as well. Accordingly, securing political funds has inevitably become part of the important political activities for the political parties or the individual politicians. Should there be no regulation upon the supply of political funds while leaving the matter of securing political funds to the political parties or the individual politicians, the collusion between political power and money will become pervasive, and, as a corollary, the political influence of the donators will increase. However, should the political decisions be rendered in a way benefiting the wealthy minority with vested rights, this would seriously injure the principle of equal opportunity of one-person one-vote that is the foundation of democracy. Therefore, the regulation of political funds is the inevitable corollary of

representative democracy.

2. The complainant claims that the language of the "method not regulated by this Act" is in violation of the rule of clarity required by the principle ofnulla poena sine legeor principle of punishment by statute. However, as this may sufficiently be understood to mean any and all methods other than the methods that are specifically regulated in the Political Funds Act, there is no textual vagueness here caused by the use of an uncertain or equivocal concept. Further, the act of illicitly delivering and receiving political funds

has an innate nature that it is impossible to regulate such act by enumerating each and every one of its individual and particular patterns. That is, as the interest of the person who gives illicit political funds and that of the person who receives illicit political funds coincide, it is possible to evade the law in yet another novel way even if the patterns of delivering and receiving illicit political funds are enumerated. Thus, there is a sufficient ground for regulating the essential constituting elements in a passive way as above, for it would be impossible to achieve the legislative purpose without employing the form of legislation of comprehensive prohibition as adopted by the statutory provision at issue in this case. In addition, as the respective provisions of the Political Funds Act describe in detail the methods of giving and receiving political funds, any ordinary person with sound commonsense and a general sense of law may capably understand the methods of giving and receiving political funds that are permitted by the above statute. Therefore, the statutory provision at issue in this case may not be deemed to leave room for arbitrary interpretation due to the lack of

clarity of the content that it intends to regulate.

3. The complainant argues that the imposition of the severer statutory punishment for those delivering and receiving political funds in the "method not regulated by this Act," which may be described as a comprehensive constituting element, than the cases of violation of the constituting elements respectively and specifically regulated in the Political Funds Act is against the principle of

equality.

However, considering the purpose of this statute of contributing to the sound development of democratic politics by way of guaranteeing appropriate supply of political funds and disclosing income and expenditure, and also the principle of disclosure of political funds that the accounting concerning political funds should be publicly disclosed, there may well be a case where the illegality of act is greater when receiving illicit political funds in a method not expected by the above statute in disregard of the above purpose and principle, than the violation of the prohibition or the restriction respectively regulated in the above statute. Further, as the statutory provision at issue in this case merely imposes a severer maximum of the statutory sentence, if in a particular case the illegality of the violation of comprehensive prohibition provision is very light, a criminal sentence appropriate for the degree of illegality can be determined by the judge. Thus, in an actual case, there occurs no problem of unbalanced sentencing that the complainant has indicated. Therefore, the statutory provision at issue in this case is

not in violation of the principle of equality.