In a case where the Defendants were indicted for violating the Political Funds Act by raising and raising funds by collectively deducting KRW 100,000 per head from the benefits of support fund per person under the pretext of participating in the support fund deduction project, and contributing funds to a specific political party in a manner that is not prescribed in the Political Funds Act, the case holding that each of the Defendants acquitted the Defendants on the grounds that Article 6 of the former Political Funds Act and the main sentence of Article 45(1) of the Political Funds Act, which declared that it does not conform with the Constitution, cannot be applied as the penal provisions against the Defendants, on the grounds that Article 6 of the former

In a case where Defendants were indicted for violating the Political Funds Act by raising and raising funds in the manner of collectively deducting KRW 100,000 per head from benefits to union members as a means of collectively taking part in support fund projects, and contributing funds to a specific political party in a manner that is not prescribed in the Political Funds Act, the case holding that the Constitutional Court declared that the provisions of Article 6 of the former Political Funds Act (amended by Act No. 8880, Feb. 29, 2008) and Article 6 of the Political Funds Act (amended by Act No. 9975, Jan. 25, 2010) and the main sentence of Article 45 (1) of the Political Funds Act concerning the amendment of the Constitutional Court Act concerning “Until the amendment of the Constitutional Court Act becomes unconstitutional, the aforementioned provisions of the Constitutional Court en banc Decision No. 2016, Feb. 23, 2015 (amended by Act No. 9975, Feb. 29, 2010) shall not be applied to each of the aforementioned provisions concerning the amendment of the Constitutional Court.

Article 111(1) of the Constitution of the Republic of Korea; Articles 45 and 47(3) of the Constitutional Court Act; Article 6 of the former Political Funds Act (Amended by Act No. 9975, Jan. 25, 2010); Article 6 of the former Political Funds Act (Amended by Act No. 13758, Jan. 15, 2016); Article 45(1) of the Political Funds Act; Article 325 of the Criminal Procedure Act

Defendant 1 and three others

Both parties

Kim Su-soo et al.

Law Firm Inn, Attorney Kim Du-ok

Daegu District Court Decision 2012Gohap321 decided November 12, 2015

All the judgment of the court below (including the portion not guilty) shall be reversed.

Defendants are not guilty.

The summary of this judgment against Defendant 1, Defendant 2, and Defendant 3 shall be announced publicly.

1. Summary of grounds for appeal;

A. As to the Defendants (as to the guilty part in the original trial)

According to the Supreme Court precedents (2008Do7562), the Constitutional Court rendered a ruling of inconsistency with the Constitution as to Article 6 (1) of the Political Funds Act among the “other methods not provided for in this Act,” and the Supreme Court precedents (2008Do7562), the above ruling of inconsistency with the Constitution as to the statutory provisions on the punishment applied to the Defendants constitutes a case where the provisions on the criminal law are retroactively null and void under Article 47 (3) of the Constitutional Court Act, and thus, the Defendants shall be acquitted. Nevertheless, the lower court which convicted the Defendants by applying the above statutory provisions on the donation of support payments of political parties among the facts charged in the instant case, erred by misapprehending the legal doctrine and adversely affecting the conclusion

(b) Prosecutors;

1) misunderstanding of facts or misunderstanding of legal principles (as to the part of innocence in the original trial)

The lower court acquitted the Defendants of this part of the charges on this part of the facts charged, or erred by misapprehending the legislative purport or legal doctrine under Article 31(2) of the Political Funds Act, thereby adversely affecting the conclusion of the judgment, on the grounds that the Defendants’ political funds contributed to the Democratic Labor Party are either funds raised and raised by the trade unions, which may either be disposed of by or at least identical to the funds that the trade unions may actually participate in raising and raising funds for contribution.

2) Unreasonable sentencing

The court below's each sentence (defendant 1:0 million won, fines of 50,000 won, fines of 700,000 won, fines of 700,000 won, and fines of 4:70,000 won) declared against the Defendants is too unfilled and unfair.

2. Summary of the facts charged in this case

No contribution of political funds may be made in any way that is not provided for in the Political Funds Act.

A. Defendant 1

1) Crimes of December 10, 2008

On December 108, 2008, the Defendant collected and created KRW 6.9 million from the foreign exchange bank account in the name of the Defendant to the Agricultural Cooperative account in the name of Nonindicted 2, who is an employee of the Democratic Labor Party, on December 22, 2008, and transferred KRW 6.9 million from the said Agricultural Cooperative account to the Agricultural Cooperative account in the name of the Democratic Labor Party’s name on December 22, 2008, in the name of “Nonindicted 3 and 68,000 won” under the name of “Nonindicted 3 and 6.8,000 won” from the said Agricultural Cooperative account on December 22, 2008.

As a result, the defendant contributed political funds in a way that is not stipulated in the Political Funds Act, and simultaneously contributed political funds with funds related to organizations.

2) Crimes of December 11, 2009

Around December 2009, the Defendant collected and created KRW 6.9 million in the manner that, after going through public relations, etc. with its members in accordance with the democratic labor union guidelines, approximately 69 members would be entitled to full deduction of KRW 100,000 per head from each salary, under the pretext of the participation in the support fund grant business. On December 11, 2009, the Defendant transferred the above KRW 6.9 million from the Defendant’s foreign exchange bank account in the name of “Nonindicted 1, Nonindicted 4, and 68 members” from the Defendant’s foreign exchange bank account in the name of “Nonindicted 1, Nonindicted 4, and Nonindicted 68 members.”

As a result, the defendant contributed political funds in a way that is not stipulated in the Political Funds Act, and simultaneously contributed political funds with funds related to organizations.

B. Defendant 3

Around December 28, 2009, the Defendant collected and created KRW 1,0510,000 from 110 members to 1,0510,000 won per person as a result of the tax credit program, and deposited the above KRW 1,0510,000 in the name of “Defendant 3 and 109,000 won,” around December 28, 2009, in the name of “Defendant 3 and 109,0510,000 won in the name of the Democratic Labor Party.”

As a result, the defendant contributed political funds in a way that is not stipulated in the Political Funds Act, and simultaneously contributed political funds with funds related to organizations.

C. Defendant 4

On December 30, 2009, the Defendant collected and created KRW 9,40,000 in the manner that 1,000 won per person shall be deducted from each salary in lump sum from 94 members for the participation in the support fund project, and around December 30, 2009, transferred the above KRW 9,40,000 to the Agricultural Cooperative account in the name of the Democratic Labor Party’s name, “Nonindicted 6 and nine other 93 persons,” from the bank account in the name of the Defendant’s name, to the Agricultural Cooperative Account in the name of the Democratic Labor Party.

As a result, the defendant contributed political funds in a way that is not stipulated in the Political Funds Act, and simultaneously contributed political funds with funds related to organizations.

D. Defendant 2

On December 30, 2009, the Defendant collected and created KRW 6,450,000 in the manner of collecting and deducting KRW 100,000 from each salary for each of the 67 members under the pretext of the tax credit for the support fund, and deposited the above KRW 6,450,000 in the name of “non-party 8 and non-party 66,” around December 30, 2009, in the name of “non-party 66,000,000 in the name of the Democratic Labor Party under the name of the 36,000 won.”

As a result, the defendant contributed political funds in a way that is not stipulated in the Political Funds Act, and simultaneously contributed political funds with funds related to organizations.

3. Judgment on the misunderstanding of the legal principles by the Defendants (which is just as to donation to a political party)

A. The Constitutional Court rendered a ruling of inconsistency with the Constitution regarding Article 6 of the former Political Funds Act (amended by Act No. 8880, Feb. 29, 2008; Act No. 9975, Jan. 25, 2010); Article 6 of the Political Funds Act (amended by Act No. 9975, Jan. 25, 2010); and the main sentence of Article 45(1) of the Political Funds Act (amended by Act No. 8880, Feb. 29, 2008); and Article 6 of the “other methods not provided for in this Act” does not coincide with the Constitution. Each of the above provisions applies until legislators revised the Act on June 30, 2017 (see Constitutional Court en banc Decision 2016Hun-Ba, Dec. 31, 2015; hereinafter “Unjustifiable to the Constitution”).

B. Although the Constitutional Court’s ruling of inconsistency with the Constitution and the Constitutional Court Act is a modified form that is not stipulated in the Constitution, the Constitutional Court’s ruling of inconsistency with the Constitution constitutes a decision of unconstitutionality as to legal provisions (see Supreme Court Decision 2004Do7111, Jan. 15, 2009; Constitutional Court en banc Decision 2003HunGa1, May 27, 2004; Constitutional Court en banc Decision 2004HunGa4, May 27, 2004). Article 45(1) of the Political Funds Act is combined with Article 6 of the Political Funds Act, and Article 45(1) of the Political Funds Act (hereinafter “instant legal provisions”), the instant ruling of inconsistency with the Constitution as to the said provisions of the Political Funds Act is a decision of unconstitutionality as to the penal provisions. Article 47(3) of the Constitutional Court Act provides that where a decision of unconstitutionality as to the penal provisions becomes null and void, the relevant provision becomes null and void.

In addition, according to Article 111(1) of the Constitution and the main sentence of Article 45 of the Constitutional Court Act, the Constitutional Court may decide and decide only on the constitutionality of the Act or the provisions of the Act, so long as the provisions of the Act on Punishment are decided to be unconstitutional, such provisions shall lose their effect as prescribed in Article 47(3) of the Constitutional Court Act. Therefore, in a case where the Constitutional Court continues to apply the provisions of the Act until the amendment is made, and where the provisions of the Act of this case are not revised until the amendment is made, among the reasons, until the amendment is made, and where the amendment is not made until the amendment deadline is made, even if the provisions of the Act of this case become null and void from the following day, there is no room for other interpretation as long as it is deemed to be unconstitutional (see Supreme Court en banc Decision 2008Do7

C. Therefore, the legal provisions of this case, which were declared to be inconsistent with the Constitution by the decision of inconsistency with the Constitution, shall retroactively lose its effect, and thus, the fact of violation of the Political Funds Act due to donations to political parties instituted by applying the legal provisions of this case constitutes a case where a crime is not committed pursuant to the former part of Article 325 of the Criminal Procedure Act (the court, despite the decision of provisional application by the Constitutional Court, cannot apply the legal provisions of this case, which are declared to be inconsistent with the Constitution as punishment laws against

The defendants' assertion pointing this out is with merit.

4. Judgment as to the prosecutor's assertion of mistake of facts or misapprehension of legal principles (as to the contribution of political funds with funds related to organizations)

A. Relevant legal principles

Article 31(1) of the Political Funds Act provides that “a corporation or organization shall not contribute any political fund” means a provision prohibiting a corporation or organization from contributing any political fund with its own fund in light of the relationship with Article 31(2) and legislative history (see Supreme Court Decision 2011Do15418, Mar. 14, 2013). Meanwhile, in order for a corporation or organization to constitute “funds related to a corporation or organization” as the subject of the donation provided for in Article 31(2) of the Political Funds Act, the fund raised and raised by the corporation or organization shall either be disposed of by the corporation or organization or to the extent that it can at least be deemed identical (see Supreme Court Decision 2008Do10658, Jun. 14, 2012, etc.).

B. Determination

1) The lower court determined that: (a) based on the records, there was no organizational resolution of each trade union to which the Defendants were affiliated, such as: (b) the Defendants decided on the agenda items for tax credit in relation to political funds contributions; (c) the individual union members were free to agree to tax credit; (d) the union members participating in the fund-raising were part of the union members individually consenting to the participation in the tax credit project; and (d) the Defendants transferred the funds to the Defendants’ account in the manner of deducting 100,000 won from the benefits of the union members who agreed to the tax credit; and (e) the Defendants sent the funds to the Defendants’ account through the accounts or without passbook; (b) in light of this process, the Defendant did not raise the funds of the union in this case, or receive them as the funds of the union members, but did not merely take and deliver the funds required for the fund-raising project from many union members; and (c) the organization’s participation in the fund-raising by means of the fund-raising fund-raising by itself cannot be deemed to constitute a fund-raising or fund-raising-raising-raising-raising-raising-related organization.

2) Examining the reasoning of the lower judgment in detail in light of the above legal doctrine and the record, the said determination by the lower court is justifiable, and contrary to what is alleged by the prosecutor, it is not recognized that there was an error affecting the conclusion of the judgment

5. Conclusion

Therefore, the defendants' appeal against the guilty portion of the judgment of the court below is without merit, and it is not necessary to further determine the grounds for appeal on the grounds of unfair sentencing by the prosecutor. Thus, the judgment of the court below (as long as the part of not guilty which is related to the guilty part cannot be reversed, the judgment of the court below shall be reversed as a matter of course as long as the part of not guilty is reversed) cannot be maintained as it is. Thus, the judgment below is reversed in accordance with Article 364(6) of the Criminal Procedure Act and it is again decided as follows (the prosecutor's appeal against

The gist of the facts charged in this case against the Defendants is as stated in Paragraph (2) above. Of the facts charged, the donation of donations to the political party in the above facts charged falls under the case where the crime is not committed as described in Paragraph (3) above, and the donation of political funds to the political party constitutes a case where there is no proof of crime as seen in Paragraph (4) above, and thus, the Defendants are acquitted under the former and latter parts of Article 325 of the Criminal Procedure Act, and the summary of the judgment of this case against Defendants 1, 2, and 3 should be announced in accordance with Article 58(2) of the Criminal Act

Judges Lee Jae-ho (Presiding Judge)