[1] Whether a public official is exempted from liability for committing a crime under Article 32 subparag. 3 of the Political Funds Act, in a case where a public official receives a contribution of political funds in connection with a solicitation or arrangement for the affairs to be in charge and handled, due to the circumstances that the solicitation or arrangement falls within the scope of the duties of a person who received political funds or that a contribution was made in accordance

[2] Whether a member of the National Assembly can be deemed to have received a contribution from a member of the National Assembly himself/herself (affirmative)

[3] Whether it is necessary to unfairly suppress another person's intent in order to establish an indirect crime (negative)

[4] The case holding that in a case where a member of the National Assembly arranged a meeting relating to the attraction of a local constituency for the head of a local constituency with the above manager and the head of a local government of a local constituency, and the above manager caused employees belonging to the refining company to contribute a support fund to the supporters' association in which the above member of the National Assembly was actually controlled and neglected, the member of the National Assembly constitutes an indirect crime of violating Article 32 subparagraph 3 of the Political Funds Act in relation to a member of the National Assembly, and an indirect crime of

[1] As long as a public official is unable to contribute or receive political funds in relation to the solicitation or mediation, as long as he/she has contributed or received political funds in connection with such solicitation or mediation, the crime of violation of Article 32 subparag. 3 of the Political Funds Act is established. The circumstances that the solicitation or mediation belongs to the scope of the duty of a person who received the relevant political funds, or that the contents of solicitation or mediation are not illegal or unjust, or that the relevant political fund contribution act was made within the scope of the procedure and scope as provided by the Political Funds Act, are not exempt from the liability

[2] In a case where the supporters' association of a member of the National Assembly does not have the substance of an organization prescribed by the Political Funds Act, or even if it is the actual substance of an organization, if the member of the National Assembly actually controls and evades the accounts of the supporters' association including the support fund and the withdrawal fund of the supporters' association directly or through its assistants, even if the support fund was formally contributed to the supporters' association, it shall be deemed that the member of the National Assembly directly received the support fund. Furthermore, the supporters' association designated by the member of the National Assembly plays the role of managing and delivering the political fund to the members of the National Assembly rather than the last person to whom the political fund belongs or the third party to whom the political fund belongs in the process of collecting and delivering the political fund to the member of the National Assembly. Thus, even in a case where the supporters' association has not been aware of the donation fund of the supporters' association, barring special circumstances, such as where the supporters' association has been actually engaged in normal activities such as its independent accounting, the amount of support fund

[3] A person who has actively induced another person's act which is not punishable and realized his/her crime by using it shall be liable to commit an indirect crime under Article 34 (1) of the Criminal Code, and in the process, he/she shall unlawfully suppress another person's intention, not an indirect crime.

[4] The case holding that in case where a member of the National Assembly arranged a meeting relating to the attraction of a local constituency for the head of a local constituency with the above manager and the head of a local government of a local constituency, and the above manager caused employees belonging to the refining company to contribute a support fund to the supporters' association in which the above member of the National Assembly was actually controlled and neglected, the member of the National Assembly constitutes an indirect crime of violating Article 32 subparagraph 3 of the Political Funds Act in relation to the member of the National Assembly, and the manager constitutes an indirect crime

[1] Articles 32 subparag. 3 and 45(2)5 of the Political Funds Act / [2] Articles 32 subparag. 3 and 45(2)5 of the Political Funds Act / [3] Article 34(1) of the Criminal Act / [4] Articles 32 subparag. 3 and 45(2)5 of the Political Funds Act, Article 34(1) of the Criminal Act

Defendant 1 and one other

Prosecutor

Attorneys Yellow Jho-ho et al.

Daejeon High Court Decision 2007No129 Decided August 22, 2007

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

We examine the grounds of appeal.

1. As to the violation of the Political Funds Act

A. The Political Funds Act (amended by Act No. 7851, Mar. 2, 2006; the current Political Funds Act also maintains its overall purport and statutory structure. As such, the following provisions stipulate the types of political funds permitted under Chapters I through V by dividing into party membership fees, support payments to supporters’ associations, deposits, national subsidies, etc., and specify the limits and procedures for each kind of political fund in detail. In Chapter VI, specifying that the aforementioned political fund contributions are restricted in certain cases, foreigners and non-Korean and non-Korean corporations or organizations are prohibited from contributing political funds, not only to contribute political funds, but also to domestic and foreign corporations or organizations, also to contribute political funds (Article 31); selection of the chairman, vice president, etc. of the local council, and selection of public officials as candidates for the election of public officials; solicitation or mediation is prohibited from contributing political funds in relation to specific activities, such as concluding contracts with the State, public organizations or corporations established under the provisions of the Special Act, and the employer-employee relationship is prohibited from unfairly coercinging any other person by using Article 32(3).

The purpose of the Political Funds Act is to ensure the adequate provision of political funds and ensure the transparency of political funds by disclosing the details of their revenues and expenditures, and to contribute to the sound development of democratic politics by preventing any malpractice related to political funds. In addition to such legislative purpose, comprehensively taking account of the contents and structure of the provisions of Chapter VI of the Political Funds Act, the provisions pertaining to restrictions on contributions of political funds in accordance with the procedures and limits permitted in Chapters 1 through 5 above shall not be specifically permitted in certain cases. In particular, Article 32 of the Political Funds Act provides that even if the number of political funds is in accordance with the procedures and limits set forth in the above Act, if it is made in connection with a specific act set forth in the above Act, it shall be deemed that the election for public office, the public official’s office, the fairness and neutrality of the public corporation, etc., as well as the fairness and impartiality of the political funds are damaged or caused by the regular transit, and thus, it shall be deemed that the number of such political

Therefore, as long as a public official is unable to contribute or receive political funds in relation to the affairs of solicitation or mediation, as long as he/she has contributed or received a contribution of political funds in connection with such affairs, the crime of violating Article 32 subparag. 3 of the Political Funds Act is established. The fact that the solicitation or mediation belongs to the scope of the duty of a person who received the relevant political funds, or that the contents of solicitation or mediation are not illegal or unjust, or that the relevant political fund contribution act was made within the scope of the procedure and scope stipulated by the Political Funds Act, cannot be exempt

B. The Political Funds Act requires a member of the National Assembly to designate an organization established and operated for the purpose of contributing political funds to a member of the National Assembly, and the supporters’ association is subject to criminal punishment by prohibiting a member of the National Assembly from receiving political funds directly, without going through a supporters’ association and strictly prohibiting a member of the National Assembly.

In full view of the legislative purpose of the Political Funds Act and the contents thereof, in cases where a member of the National Assembly does not have the substance of an organization as prescribed by the above Act, or where the member of the National Assembly actually controls and evades the accounts of a member of the National Assembly including the support fund and the withdrawal fund of a member of the National Assembly directly or through his assistant even though the support fund was formally contributed to a member of the National Assembly, it shall be deemed that the member of the National Assembly is the same as receiving the support fund directly. Furthermore, in cases where a member of the National Assembly designated by the member of the National Assembly manages and delivers the political fund to the member of the National Assembly rather than the last person to whom the political fund belongs or is independent third party, even if the member of the National Assembly has not been aware of the support fund of the original member, the support fund that the member of the National Assembly received from the member of the National Assembly should be deemed to have been the same as receiving the contribution directly from the original member, barring special circumstances such as the fact that the member did not know of the support fund to the member of the National Assembly.

C. Meanwhile, Article 34(1) of the Criminal Act provides that "a person who causes a result of a criminal act by instigating or aiding and abetting another person who is not punished for such act or who is punished as an offender through negligence shall be punished in accordance with the same as an aiding and abetting." Thus, a person who actively induces another person's act that is not punished and realizes a criminal by using it shall be punished as an indirect offender as provided in the above provision, and in the process, a person who has actively induced another person's act that is not punished and realized his/her crime by using it shall be punished

D. According to the reasoning of the court below and the first instance court evidence, Defendant 2, the president of the company and the chairman of the company established the second factory of the above company and asked Defendant 1 to cooperate in the city planning change and designation of general local industrial complexes by holding a meeting with the head of Seosan City, which is a member of the local constituency, in connection with the establishment of the second factory of the above company. In this regard, Defendant 2 is willing to provide support money to Defendant 1. Defendant 2 introduced the above company's branch and business office and business office, which were scattered across the country through the management and organization of the above company, and recommended Defendant 1 to contribute support money to the above company's branch and business office and the office of the above company's employees, and notified Defendant 1 to the above company's contribution to the above company's management and operation of the second factory in the name of the above company's general manager and 50,000 won and 500,0000 won and 50,000 won and 50,0000 won,00 won.

Examining the above facts in light of the legal principles as seen earlier, even if the above support fund was formally donated to a supporters' association, Defendant 1 himself/herself, who actually controlled and neglected the accounts of the supporters' association, can be deemed to have received the support fund immediately. As such, Defendant 2’s receipt of political funds in relation to the affairs of solicitation or mediation by a public official prohibited by Article 32 subparag. 3 of the Political Funds Act, and Defendant 2, who did not constitute a violation of the Political Funds Act, caused the employee’s contribution act, used it, thereby realizing his/her crime, and thus, cannot avoid the criminal liability as an indirect crime.

E. Nevertheless, the court below found Defendant 2 not guilty of this part of the charges on the grounds that Defendant 1’s opinion offering belongs to the original duty of the National Assembly member, and Defendant 2 asked Defendant 1 to perform the above act and contributed political funds related thereto, and the Defendants’ act does not constitute a contribution act with respect to solicitation or mediation for the affairs in charge of the public official, unless there is any evidence to deem that Defendant 1 actively demanded the contribution of political funds or that there was a prior prior communication among the Defendants, it is difficult for Defendant 1 to consider that Defendant 1 received political funds through the supporters’ association in form, and that Defendant 2 received political funds through the supporters’ association, and there is no evidence to deem that Defendant 2 mediated the contribution by means of unfairly suppressing the employees’ intention, and therefore, Defendant 2 cannot be held liable for a crime of indirect law. In so determining, the court below erred in the misapprehension of legal principles as to the relevant regulations and indirect law of the Political Funds Act, and the part of the grounds for appeal assigning this error has affected the judgment.

However, in light of the records, the conclusion that the first instance court affirmed the portion not guilty on the ground that there is no evidence to acknowledge it in its reasoning is acceptable, and this part of the judgment does not contain any error of law affecting the conclusion of the judgment as otherwise alleged in the ground of appeal

2. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that "any person who receives, demands or promises any money and goods or benefits concerning the good offices of a public official's duties shall be punished by imprisonment for not more than five years or by a fine not exceeding ten million won." In a case where a member of the National Assembly takes a method by which a member of the National Assembly passes a supporters' association while accepting any money and goods pertaining to the good offices of a public official's duties, the member's supporters' association fails to have the substance of an organization prescribed by the Political Funds Act, or even if it has the substance of an organization or has the substance of an organization, if the member of the National Assembly actually exercises control and bad faith over the accounts of a supporters' association including the money and goods contributed to a supporters' association directly or through his assistant, even if he has received any support under the name of a supporters' association, it shall

Examining the above facts in light of the aforementioned legal principles, Defendant 1 is deemed to have actually controlled and neglected the accounting of the supporters' association through assistant officers and the person in charge of accounting of the supporters' association. Thus, even if Defendant 1 received the instant money through the supporters' association formally, it should be deemed that Defendant 1 received the instant money immediately.

Unlike this, the court below acquitted Defendant 1 of this part of the facts charged on the ground that since the money in this case was deposited into a supporters' association, it cannot be deemed that Defendant 1 received it from Defendant 2. In so doing, the court below erred by misapprehending the legal principles as to receiving money and valuables in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, which affected the conclusion of the judgment, and the part of the grounds of appeal pointing this out is with merit. The Supreme Court ruling cited by the court below is not appropriate

3. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal by the prosecutor, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices

Justices Shin Hyun-chul (Presiding Justice)