[1] Whether a violation of Article 30 (2) 5 of the Political Funds Act is established in a case where money was received in relation to the recommendation of the candidate for an election for public office, but it was not provided for political activities (negative)

[2] The case holding that the crime of violation of Article 30 (2) 5 of the Political Funds Act is committed on the ground that although the person who applied for a political party nomination in order to leave the election of the head of a local government provided the money to the National Assembly member who is the chairman of the local party, it is objectively evident that the money was provided for personal debt repayment, etc., not for the political activities of the National Assembly

[1] In full view of the purport of the provisions of the Political Fund Act, political funds include all money and valuables provided by political parties, such as members of the National Assembly, in order to allow them to enjoy political activities, and the meaning thereof shall not be expanded and interpreted. The money and valuables provided for political activities, which fall under political funds, shall be limited to those which can objectively be objectively anticipated that the National Assembly members, etc. who received them will disburse them as expenses for political activities, such as political party operation expenses and election relation expenses. Therefore, the money and valuables shall not be considered as political funds if they were received as a bribe or are expected to be used for private expenses or purposes other than those prescribed in the same Act, and even if money and valuables were received in relation to the act of recommending a specific person as a candidate in an election for public office, if they were not provided as political funds in the above sense, they shall not be regarded as a violation of Article 30 (2) 5 of the same Act.

[2] The case holding that the crime of violation of Article 30 (2) 5 of the Political Funds Act is committed on the ground that although the person who applied for a political party election to leave the election of the head of a local government provided the money as a price for the official election to the National Assembly member who is the chairman of the district party, it is objectively evident that the money was provided for the personal debt repayment, etc., not for the political activities

[1] Articles 3, 13 subparag. 1, and 30(2)5 of the Political Funds Act / [2] Articles 3, 13 subparag. 1, and 30(2)5 of the Political Funds Act

[1] Constitutional Court Decision 96Hun-Ma85 delivered on May 29, 1997 (Hun-Ma9-1, 558), Supreme Court Decision 99Do404 delivered on March 25, 199 (Gong199Sang, 813)

Defendant

Defendant

Park Jong- Shipping

Attorneys Cho Jong-sik et al.

Gwangju District Court Decision 98Gohap721 delivered on December 18, 1998

The judgment of the court below is reversed.

The defendant is innocent.

1. Summary of grounds for appeal;

First, upon receiving a request from Nonindicted 1 to aid Nonindicted 2, the Defendant, who was living together with Nonindicted 1, was asked by Nonindicted 4 to purchase the building owned by Nonindicted 2 prior to that request, and subsequently, ordered Nonindicted 4 to conclude the purchase and sale contract of the building after the candidate election was completed. Nonindicted 2 or Nonindicted 3 entered into a contract as soon as possible even though he did not have an ability or intent to influence the process of the competition so that the Defendant could be elected as the candidate, and even if it was 20 million won as the down payment, it did not provide the said money to him as a political fund prescribed in the Political Funds Act. However, the lower court erred by misapprehending the fact by employing a statement at an investigation agency of Nonindicted 4 without credibility or by misunderstanding the legal principles on political funds, thereby adversely affecting the conclusion of the judgment. Second, the sentence of the lower court is unreasonable because it is too unreasonable.

2. Determination

A. Summary of the facts charged

On June 4, 198, the Defendant was working for the senior vice-chairperson of the 2nd election of the said 4th election district, and tried to run for the said 2nd election district office with the official approval of the said political party from the 2nd election of the said 4th election district. On April 25:0 to 18th election district, the Defendant was absent from the 4th election district office and did not receive official assistance from the above 1st election district council members because the Defendant would have been working for the 1st election district council members on the same 4th election district because it was difficult for the said 4th election district council members to use the 4th election district election district office and to use the 1st election district election district council members to participate in the 1st election of the said 4th election district council members and to use the 1st election district council members on the same 4th election district, and the Defendant would have been able to separately use the 1st election district council members on the 1st election district.

At around 13:00 on the same day, Non-Indicted 4 directed Non-Indicted 2, who is the owner of water, to deliver 100 million won cashier's checks, 10 million won cashier's checks, and 200 million won in total, to Non-Indicted 2, under the name of the donation agreement, at the Dong-dong, Dong-dong, which is located in Naju City, to make a contribution of political funds to Non-Indicted 1, etc. of the National Assembly members in relation to the affairs recommended by the defendant as candidates in the second local election of Dong-dong, which is enforced on June 4, 1998.

(b) The significance of political funds;

Article 30 (2) 5 of the Political Funds Act provides that "political funds" shall be punished in violation of the provisions of Article 13 of the same Act, and Article 13 subparagraph 1 of the same Act provides that anyone may not receive or receive "political funds" in relation to the act of recommending a specific person as a candidate for the election of public officials (referring to the election of the President, National Assembly members, the heads of local governments, and the local councils). Meanwhile, Article 3 subparagraph 2 of the same Act defines "political funds" as membership fees, support payments, deposits, subsidies, collection money and valuables of supporters' associations, incidental revenue prescribed by the party constitution, the party rules, and other money, securities, and other things provided for "political activities". Article 3 subparagraph 3 of the same Act provides that "contribution" means any act of providing political funds to individuals, corporations, supporters' associations, or other organizations without compensation, lending of facilities, exemption or reduction of debts, and providing other benefits.

Meanwhile, the purpose of the above Act is to contribute to the sound development of democratic politics by guaranteeing the adequate provision of political funds and disclosing the current status of their revenues and expenditures (Article 1). The purpose of the Act is to contribute to the sound development of democratic politics is to ensure that the number of political funds in the past is connected to corruption and to political retaliation against economic persons, and reflect on the actual status of political funds in the Republic of Korea that have not been taken against the political parties. In order to achieve the above purpose, Article 2(1) provides that any person shall not contribute or receive any political funds that are not governed by this Act, and Article 30(2)5 of the Act provides that any person shall be punished more than any violation of Article 30(1)5 of the Act in raising political funds, thereby requiring that the Act follow the strict procedures and methods prescribed in Article 30(2)5 of the same Act, while Article 4 provides for party membership fees and Article 5 and 6, etc. Article 111 provides for the method of raising political funds through a political association, and Article 17 provides for the government subsidy to any political party.

In full view of the purport of the above provisions of the Political Funds Act, political funds include all money and valuables provided by political parties, such as members of the National Assembly, to ensure the fair use of political activities. It shall not be interpreted by expanding the meaning thereof. The money and valuables provided for political activities, which fall under political funds, shall be limited to those which can objectively be objectively anticipated that the paid money and valuables will be disbursed as expenses for political activities, such as expenses for the operation of political parties and election relations, and therefore, it shall not be deemed that such money and valuables were received as a bribe or are expected to be used for any purpose other than that provided for in the above Act. In addition, even if money and valuables were received in relation to the act of recommending a specific person as a candidate in an election for public office, if they are not provided as political funds in the above sense, they shall not be regarded as a violation of Article 30 (2) 5 of the same Act (see Supreme Court Decision 9Do404 delivered on March 25, 199).

Furthermore, Article 113 of the Act on the Election of Public Officials and the Prevention of Election Unlawful Act provides that a candidate (including a person who intends to become a candidate) and his spouse shall not make any contribution regardless of whether it is related to the election in question. Thus, a candidate's contribution act is prohibited unless it falls under an exception under Article 112 (2) of the same Act regardless of whether it is an election campaign, and the penal provisions for such offense are prescribed as an imprisonment with prison labor for not more than three years or a fine not exceeding five million won and less than three years, or a fine not exceeding ten million won and less than 10 million won, in light of the fact that the act of offering money and valuables to a member of the National Assembly in relation to the act of recommending a candidate as a candidate in an election of public officials constitutes a violation of the above regulations on the contribution-restricted act under the Public Official Election Act except where a political fund evidently is made by membership fees, etc. according to the method as provided in the above Act, and it is reasonable to interpret that the act of offering money and valuables to a member does not violate the Political Fund Act (where it is obviously a candidate political fund.).

(c) Whether the funds provided by the defendant are political funds of 200 million won or more;

According to the evidence adopted by the court below, the defendant, who was going to the new political meeting of the National Assembly of the Republic of Korea, will be deemed to have decided on the support of non-indicted 1 for the National Assembly member who was the chairperson of the National Assembly of the Republic of Korea who was the chairperson of the National Assembly of the Republic of Korea, and requested non-indicted 1 member who was residing in the Republic of Korea in Japan on several occasions, to provide support for the defendant with respect to the above Nasan City candidate, and the non-indicted 1 member appeared to appear to have been open for the defendant. On April 20, 1998, the defendant's election office located in the Central Assembly of the Republic of Korea and worked as the head of the public relations office of the said district party at the time, requested the non-indicted 3 to return 400 million won in the name of the above Nasan City 200 million won in advance, and the defendant submitted the above 200 million won in advance at the time of the above 23th of the same month.

Furthermore, as to whether the above gold 200 million won was received as the above political funds, in full view of the record of each part of the suspect interrogation protocol prepared by the prosecutor, each copy of the prosecutor's interrogation protocol Nos. 2 through 7 against the defendant, each copy of the prosecutor's protocol No. 4 against the non-indicted 4, and each copy of the prosecutor's protocol No. 2, 3, and 4 against the non-indicted 5 as to the non-indicted 5, the defendant's statement as to the non-indicted 1, at the office of the chairman of the new political party's meeting located in the 4-6th of the central east-dong, Dong-dong, Dong-dong, Dong-dong, 198, the non-indicted 1, at the office of the chairman of the district party, "I will am the same as that of the non-indicted 1, I will know about the non-indicted 1, I will help you support the non-indicted 2."

In order to prevent the payment of the above money to the non-indicted 1,00,000 won, it would be good if the non-indicted 2 entered into the sales contract with the non-indicted 4 and the non-indicted 5's delivery of the above money to the non-indicted 1,000 won. The non-indicted 5's delivery of the above money to the non-indicted 1,000 won for the non-indicted 3's purchase of the above money to the non-indicted 4 and the non-indicted 5's delivery of the money to the non-indicted 1,000 won for the non-indicted 3's purchase of the above money to the non-indicted 4,000 won. The non-indicted 2's delivery of the money to the non-indicted 1,000 won for the non-indicted 3's purchase of the above money to the non-indicted 4,000 won. The non-indicted 2's delivery of the money to the non-indicted 1,000.

As seen above, the defendant provided the above 10 million won to the non-indicted 2's debt settlement. The method of offering the above 100,000 won to the non-indicted 2, and the fact that the non-indicted 2 offered private funds to the non-indicted 40,000 won for the above non-indicted 50,000 won to the non-indicted 50,000 won and the non-indicted 100,000 won to the non-indicted 2's office for the above non-indicted 100,000 won to the non-indicted 10,000 won to the non-indicted 50,000 won to the non-indicted 10,000 won to the non-indicted 2's office, but the non-indicted 10,000 won to the non-indicted 3's office for the above 10,000 won to the non-indicted 2's candidate's money to receive and deliver the above political funds from the public prosecutor's.

D. Sub-committee

Therefore, the defendant's offering of the instant money to non-indicted 1, etc. constitutes a contribution-restricted act by candidates under Article 113 of the Act on the Election of Public Officials and the Prevention of Election Unlawful Act, apart from the fact that it can be seen as a contribution-restricted act by political funds under the Political Funds Act. Thus, the judgment of the court below which found the defendant guilty of the facts charged is erroneous or erroneous, which affected the conclusion of the judgment, and thus, the

3. Conclusion

Therefore, a party member is reversed the judgment of the court below pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows after pleading.

As seen above, the facts charged against the defendant constitutes a case where there is no proof of a crime as stated earlier, and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

It is so decided as per Disposition for the above reasons.

Judges Park Sung-sung (Presiding Judge)