2019Do12579 Violation of the Political Funds Act

1. A;

2. C

Defendants

Law Firm U.S. (For Defendant C)

[Defendant-Appellant] Park Jong-dae, Masung, Matern, Matern, Materns, Materns, Materns, Kim Jong-Gyeong

Democracy, Embia, Embane

Law Firm (with Limited Liability) continental Aju (for Defendant C)

Attorney Cho Jong-chul, Kim Li, and Yho

Law Firm Public Partnership (for Defendant C)

Attorney Lee In-ok, Lee Sung-sung, Lee Sung-ok, Lee Sung-ho, Lee Dong-ho, Lee use, and Lee Jae-soo

(For Defendant C), the Law Firm Soviet (for Defendant C)

Attorney Yellow-gu et al., Counsel for the plaintiff-appellant

Busan High Court (Chowon) Decision 2018Do318 Decided August 14, 2019

November 15, 2019

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. On the grounds of appeal by Defendant A, the lower court convicted Defendant A of the facts charged. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

2. As to Defendant C’s ground of appeal

A. As to the argument that the legal provision that was rendered a decision of inconsistency with the Constitution was applied, Defendant C alleged to the effect that the lower court erred by applying the legal provision that rendered a decision of inconsistency with the Constitution. However, this cannot be a legitimate ground for appeal since Defendant C’s ground for appeal or the lower court’s judgment did not appear to have been subject to adjudication ex officio (see Supreme Court en banc Decision 2017Do16593-1 (Separation) Decided March 21, 2019).

2) In principle, the Constitutional Court’s decision of unconstitutionality is binding only on the law or provisions that are subject to it, and it does not extend to other law or provisions, barring special circumstances (see Supreme Court Decisions 2009Do9576, Apr. 14, 201; 2015Do3954, May 14, 2015).

The Constitutional Court Decision 2013HunBa168 Decided December 23, 2015 ruled that "the former Political Funds Act (hereinafter referred to as "the Political Funds Act")" is the same.

29. Article 6 of the Political Funds Act (amended by Act No. 8880, Jan. 25, 2010); Article 6 of the Political Funds Act (amended by Act No. 9975, Jan. 25, 2010); Article 6 of the Political Funds Act (amended by Act No. 9975, Jan. 25, 201)

2. Article 45(1) main text of Article 45(1) of the Act provides that the part concerning Article 6 among the “other methods not prescribed by this Act” does not conform with the Constitution. The decision of inconsistency with the Constitution of the Republic of Korea (hereinafter “the decision of inconsistency with the Constitution”) was rendered. The decision of inconsistency with the Constitution of the Republic of Korea restricts the object of adjudication as to the act of violating Article 45(1) of the Political Funds Act by receiving support payments from a political party which is not entitled to designate a supporters’ association.

Therefore, the lower court’s determination that applied Article 45(1) of the Political Funds Act to the facts charged by Defendant C, which do not have any relationship with the receipt of support payments, cannot be deemed as having erred as otherwise alleged in the grounds of appeal by Defendant C.

B. As to the remaining grounds of appeal

The court below rejected Defendant C’s on-site absence assertion in determining that Defendant C’s charges against Defendant C are guilty according to the following: (a) the statements are consistent and specifically made on important parts; (b) there is no unreasonable or contradictory part in the content of the statements itself; and (c) the statements are consistent with the relevant evidence; and (d) it is difficult to deem that Defendant C was given a false statement with respect to Defendant C, seeking a favorable judgment in the criminal trial against B; and (b) the statements made in this B

Defendant C’s ground of appeal disputing the determination of the lower court is nothing more than an error of the lower court’s determination of free evaluation of evidence and probative value, which is the legal basis of the fact-finding. In addition, even when examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not exhaust all necessary deliberations, thereby exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or misapprehending the legal doctrine on the burden of proof, determination of credibility of statements, absence of evidence, amount of political funds unlawfully received, joint principal offenders, etc.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding judge, Supreme Court Justice Kim Jong-soo.

Justices Lee Ki-taik

Justices Park Jung-hwa-hwa