[1] Whether the court should permit the application for modification of a bill of indictment in a case where the prosecution was instituted for some of the crimes related to a single crime and the remainder is added in the appellate court (affirmative)

[2] Whether a person who collects donations without registration with the competent authority shall be punished only for the collection of donations exceeding KRW 10,000 within one year (affirmative) / In a case where the total amount of donations collected within one year through a single collection plan is at least KRW 10,000,000 without registration, whether each collection act constitutes a violation of Article 16(1)1 of the former Act (affirmative)

[3] The purport of excluding organizations, etc. from the scope of the Act on the Collection and Use of Contributions, and the requirements for constituting social organizations or friendship organizations under the proviso of Article 2 subparagraph 1 of the same Act

[1] Article 298 of the Criminal Procedure Act / [2] Article 4 (1) and Article 16 (1) 1 of the former Act on the Collection and Use of Donations (Amended by Act No. 11690, Mar. 23, 2013) / [3] Article 2 subparagraph 1 of the former Act on the Collection and Use of Donations (Amended by Act No. 11690, Mar. 23, 2013)

[1] Supreme Court Decision 87Do101, 87Do92 Decided July 21, 1987 (Gong1987, 1435), Supreme Court Decision 92Do2047 Decided December 22, 1992 (Gong1993Sang, 651) / [2] Supreme Court Decision 2010Do5954 Decided September 30, 2010 (Gong2010Ha, 2038)

Defendant 1 and two others

Defendant 1 and one other and the prosecutor

Seoul High Court Decision 2012No3040 decided June 14, 2013

Of the judgment of the court below, Defendant 1 and Defendant 2’s violation of the Act on the Collection and Use of Donations and guilty portion of Defendant 1 (including the part not guilty in the grounds) are reversed, respectively, and this part of the case is remanded to the Seoul High Court. Defendant 3’s remaining appeals and prosecutor’s remaining appeals are dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s appeal

According to the records, the defendant did not submit a statement of grounds for appeal within the statutory period, and the petition of appeal does not state the grounds therefor.

2. As to Defendant 3’s appeal

Examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence duly admitted by the lower court, the lower court’s determination that the Defendant was guilty of the instant conjunctive charges on the grounds stated in its reasoning is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding

3. As to the prosecutor's appeal

A. As to the assertion that the non-permission decision on the amendment of indictment is illegal

(1) A prosecutor may add, withdraw, or change facts charged or applicable provisions of Acts stated in the indictment with permission of the court. In this case, the court shall permit it to the extent that it does not harm the identity of the facts charged (Article 298 of the Criminal Procedure Act). Therefore, since res judicata as to part of the facts charged in a single crime is limited to another part that is not subject to adjudication in reality, since the res judicata as to a part of the facts charged in a single crime is limited to other parts that are not subject to adjudication, it cannot be deemed that the addition of the remaining parts in the appellate court after the prosecution was instituted on certain facts charged, thereby impairing the identity of the facts charged, and thus the court must permit it (see Supreme Court Decision 92Do2047, Dec

Meanwhile, Article 4(1) of the former Act on the Collection and Use of Donations (amended by Act No. 11690, Mar. 23, 2013; hereinafter “donation Act”) provides that “Any person who intends to collect donations of at least 10,000 won and whose amount is at least the amount prescribed by Presidential Decree shall register the plan with the Minister of Public Administration and Security or the Special Metropolitan City Mayor, Metropolitan City Mayor, Do Governor, or Special Self-Governing Province Governor, as prescribed by Presidential Decree, as follows.” Article 4(1)2 provides that “The purpose of collection, kinds and target amount of collection of donations, method of collection, period of collection, method of safekeeping of donations, etc. In such cases, the collection period shall not exceed one year.” Article 16(1)1 provides that “An act of collecting donations of at least 10,000 won is not registered under Article 4(1) and registered by deception or other wrongful means, and a person who violates the Act on the Collection and Use of Donations shall be punished by a single five-year or more than 10 years, respectively.”

(2) According to the record, among the facts of violation of the Act on the Collection and Use of Donations against Defendants 1 and 2 (hereinafter “Violation of the Donations Act”), the original facts charged are as follows: “Defendant 1 and Defendant 2 are those who act as operating staff of the Korean National Campaign Center for the Impeachment of Embling (hereinafter “B”); Defendant 1 and Defendant 2 conspired with the above facts of violation of the Act on the Collection and Use of Donations from 200,000 to 20,000,0000,0000 won from 20,0000,000 won from 20,0000,000 won from 20,000,000 won from 6,000,000 won from 7,000,000 won from 20,000,000 won from 20,000,000 won from 20,000,000 won from 9,000.

Examining the above facts in light of the legal principles as seen earlier, although the original facts charged are somewhat different from the collection place and collection method, the overall act of the operator of the Ansan 2MB, including the Defendants, to collect hospital fees for the knife knife-bomb wounded, and the purpose of collecting the above hospital fees more than KRW 10 million during the collection period within the same one year without registration under a single collection plan to diversify the collection place, collection method, etc., from the beginning, is to collect the donations more than KRW 10 million during the collection period within the same one year. Thus, the court below should deliberate on the above additional facts charged after permitting the prosecutor's application for changes in the indictment.

Nevertheless, on the third trial date, the court below allowed the amendment of the indictment to add the above facts charged, but did not approve the application for modification of the indictment on the grounds that each of the above facts charged was different from the date and place of the crime, specific collection method and collection subject, etc., and thus, it cannot be deemed that the basic facts are identical. The court below erred by misapprehending the legal principles on the number of crimes committed in violation of Article 16(1)1 of the Donations Act, or by misapprehending the legal principles on the identity of

B. As to the remaining part of the violation of the Act on Donations by Defendant 1 and Defendant 2, excluding the “fund-raising for hospital expenses of the knife knife terrorists wounded”

Article 2 subparag. 1 of the Donations Act provides that “donations” means money and other valuables received without consideration, regardless of their names, such as money and other valuables to be returned, congratulatory money and congratulatory money and supporting money and other valuables: Provided, That any of the following items shall be excluded: Provided, That the money and other valuables collected by corporations, political parties, social organizations, family associations, friendship groups, etc. from their members for membership fees, lump-sum payments, membership fees, or the common interests of their members pursuant to the articles of association, regulations, or rules, etc., (a) the money and other valuables collected from the believers to cover expenses incurred in their proper activities; (b) the money and other valuables collected from temples, churches, churches, Confucian schools, or other religious organizations; (c) the State, local governments, corporations, political parties, social organizations, or friendship groups, etc. from their members for the purpose of donation to their members or a third party:

As such, excluding a certain fund-raising activity of organizations, etc. from the scope of the Act on Donations is due to guaranteeing the autonomy of organizations, at the same time, it is anticipated that the collection of money and valuables will not be made indiscreetly, in light of the structural characteristics of organizations, purpose of fund-raising, object of fund-raising, etc., or that it would be possible to ensure the proper use of money and valuables. Thus, in order to constitute a social organization or a friendship organization as stipulated in the above provision, basic rules on the purpose of establishment, organization, operation, rights and obligations of members should be established, and the identity should not be lost by joining or withdrawing from the organization.

Based on its reasoning, the lower court affirmed the first instance judgment that acquitted Defendants 1 and 3 on the ground that there was no proof of the crime regarding the remainder other than “the hospital expenses of the deceased T2MB” in the violation of the Act on Donations, on the ground that, on the grounds that, based on the following grounds as stated in its reasoning: (a) it can be deemed that the people gathering political and social opinions together with a certain organization or that they have the substance as an organization for the purpose of promoting friendship; or (b) Defendant 1 and Defendant 2 conducted the instant fund-raising through the resolution of the Steering Committee in accordance with the articles of incorporation; and (c) Defendant 1 and Defendant 2 conducted the instant fund-raising through the resolution of the Steering Committee.

In light of the aforementioned legal principles and records, the above determination by the court below is just and acceptable. Contrary to what is alleged in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on “donation collection” under

C. As to the embezzlement

Examining the reasoning of the judgment below in light of the records, it is justifiable for the court below to maintain the judgment of the court of first instance which acquitted Defendant 1 of the facts charged in this case on the grounds that there was no proof of the relevant crime. Contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principle regarding the intention to acquire unlawful acquisition in embezzlement, or by exceeding the bounds of the

D. As to the violation of the Political Funds Act

Examining the reasoning of the judgment below in light of the relevant legal principles and records, it is acceptable for the court below to maintain the judgment of the court of first instance that acquitted Defendant 1 and Defendant 3 on the ground that there was no evidence of the offense among the facts charged in violation of the Political Funds Act against Defendant 1 and Defendant 3. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles regarding “political fund donation” under the Political Funds

4. Scope of reversal

Of the judgment of the court below, the part of the charges added to the violation of the Act on Donations against Defendants 1 and 2 cannot be reversed for the reasons as seen earlier. Thus, the part of the judgment of the court below which found Defendant 1 guilty in relation to the above Defendants as to the violation of the Act on Donations due to the remaining "raising of hospital expenses by the knife knife terrorism" and the part which found Defendant 1 guilty in relation to the concurrent crimes under the former part of Article 37 of the Criminal Act should be reversed. As long as the conviction part against Defendant 1 is reversed, the part of the judgment of the court below as to Defendant 1 guilty

5. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal by the prosecutor, the part of the judgment below against Defendant 1 and Defendant 2’s violation of the Act on Donations and the part of conviction against Defendant 1 (including the part of acquittal in the grounds of appeal) is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. Defendant 3’s appeal and the remainder of the appeal by the prosecutor are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)