[1] Purport of necessary confiscation or collection pursuant to Article 60 of the Act on Elections Entrusted by Public Organizations, Etc. / In a case where the elector or his family has the money, etc. provided for the election campaign and such money has been returned to the provider, the other party (=the provider of money, etc.) of confiscation or collection, and in a case where the money provided was not returned and the money provided was returned in the same amount, whether confiscation or collection can be made from the returned provider (negative)

[2] In a case where the defendant, who was running in an election for the head of a livestock cooperative, provided money to the elector Gap or the elector's family member Eul for the election campaign, was found to have violated the Act on Entrusted Election of Public Organizations, etc., the case holding that the court below erred by misapprehending the legal principles as to the collection of additional value under Article 60 of the Act on the ground that the defendant's provision of money to the elector Gap and Eul was returned, and thus, it cannot be deemed that he received profit from

[1] Under Article 60 of the Act on Entrusted Elections by Public Organizations, Etc., necessary confiscation or collection is aimed at deprived of money, goods, entertainment, or other property benefits provided for a crime and preventing an illegal profit from being held. Thus, when an elector or his/her family has money, etc. provided for an election campaign and return it to the provider, the elector or his/her family has the same money, etc. provided for the election campaign, it shall be confiscated

However, if the money provided is not returned as it is, it shall not be confiscated or collected from the person who received the return, even if the money in the same amount was returned thereafter.

[2] In a case where the Defendant, who was running in an election for the head of a livestock cooperative, provided money to the elector Gap or the elector's family member Eul for the election campaign, was found to have violated the Act on Entrusted Election of Public Organizations, etc., the case holding that the lower court erred by misapprehending the legal principles on additional collection under Article 60 of the same Act and failing to exhaust all necessary deliberations, on the ground that, inasmuch as the Defendant received a return of money provided for the election campaign purpose, the Defendant, the provider, should confiscate it or additionally collect it, even though the Defendant provided money to Gap and Eul, but received a return, the Defendant could not be deemed to have received profit

[1] Article 58 subparagraph 1 and Article 60 of the Act on Commissioned Elections by Public Organizations, Etc. / [2] Article 58 subparagraph 1 and Article 60 of the Act on Commissioned Elections by Public Organizations, etc.

Defendant

Defendant and Prosecutor

Law Firm LLC, Attorneys Lee Hong-hoon et al.

Jeju District Court Decision 2015No753 decided July 7, 2016

The judgment below is reversed, and the case is remanded to Jeju District Court.

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

1. As to the Defendant’s ground of appeal

For reasons indicated in its holding, the lower court affirmed the first instance judgment convicting the Defendant of the provision of money for election campaign purposes among the facts charged in the instant case, and rejected the Defendant’s assertion of mistake of facts and of misapprehending the legal doctrine, on the grounds that the Defendant was not merely a courtesy consolation money, but also a monetary provision to Nonindicted 1 who is the elector

Examining the reasoning of the lower judgment in light of the evidence duly admitted, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the “purpose of election campaign” as prescribed by the Act on Entrusted Elections by Public Organizations, Etc. (hereinafter “Entrusted Election Act”) and the “all-time, proportional, and social acts” excluded from election campaigns.

Of the grounds of appeal, the argument regarding the requirements for establishment of a public offering relationship, the specificness of a contribution act, the elector or his/her family members is not legitimate grounds of appeal since the defendant raised a ground that is not subject to a judgment by the court below as the grounds of appeal or ex officio. Furthermore, even if examining the reasoning of the court below in light of the evidence duly admitted, the court below did not err

2. As to the Prosecutor’s Grounds of Appeal

A. The necessary confiscation or collection under Article 60 of the Commissioned Election Act aims to deprive the provider of money, goods, entertainment, or other property benefits provided for the crime and prevent the elector from possessing unjust profits. Thus, when the elector or his/her family has the money, etc. provided for the election campaign, and the elector or his/her family has returned to the provider, it shall be confiscated or collected from the provider.

B. Even based on the facts charged in the instant case, the lower court reversed the judgment of the first instance court ordering the collection of the value, and did not sentence the collection thereof, on the grounds that the Defendant could not be deemed to have received benefits from the instant crime, on the grounds that the Defendant offered money to the elector or Nonindicted 1 and Nonindicted 2, who is his family member.

However, according to the above legal principles, if a defendant was to receive a return of money provided as it is for election campaign, it shall be confiscated or collected from the defendant who is the provider. On the other hand, the court below erred by misapprehending the legal principles on additional collection under Article 60 of the Commissioned Election Act, thereby failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The prosecutor's ground of appeal pointing this out has merit

However, if the money provided is not returned as it is, even if the same amount of money was returned thereafter, it does not mean that the money was confiscated or collected from the person who received the return, and the court below should further examine not only whether the money was returned but also whether the money provided can be seen as the return of the money itself.

3. Scope of reversal

In a case where a ground for reversal exists only in respect of the part of confiscation or collection among the judgment of the appellate court which rendered the main sentence and confiscation or collection, the part of the court of final appeal may be reversed. However, as in the case of this case, in a case where the appellate court reverses the part of confiscation or collection on the grounds that the confiscation or collection was not pronounced, the part of the judgment of the appellate court shall not be reversed. Thus, the part of the court below's provision of money for election campaign purposes shall be reversed in its entirety (see Supreme Court Decision 2005Do5822, Oct. 28, 2005, etc.). In addition, in a case where there is a concurrent relation with the part that does not fall under the above ground for reversal and the part that is reversed and a single sentence is imposed,

4. Conclusion

Therefore, 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 on the bench.

Justices Kwon Soon-il (Presiding Justice)