[1] The meaning of "political funds" prohibited by the Political Funds Act, and whether the crime of receiving and receiving political funds was committed, and whether the donationr used political funds for political activities after the crime of receiving and receiving political funds is affected by the establishment of crime (negative)

[2] In a case where Defendant A, a member of the National Assembly, was prosecuted on charges of receiving political funds in collusion with Defendant B by receiving a cash card connected to the deposit account in which money was deposited with Defendant C, the case affirming the judgment below holding that C’s donation of political funds under the Political Funds Act is completed by issuing the said cash card, and how Defendant A used the said money thereafter does not affect the establishment of the crime of receiving political funds

[3] Whether a member of the National Assembly, etc. is subject to punishment under Article 45(1) of the Political Funds Act where a member of the National Assembly, etc. receives political funds directly from an individual or corporation without going through a supporters' association (affirmative)

[4] The case affirming the judgment below holding that in case where the defendant who is a member of the National Assembly did not go through a supporters' association and received the amount equivalent to the office's wages or office operation expenses from Gap company, etc., the crime of receiving political funds under Article 45 (1) of the Political Funds Act is established

[1] Political funds prohibited by the Political Funds Act refer to all money, etc. provided to persons who engage in political activities for the purpose of political activities. On the other hand, whether the contributor actually uses political funds for political activities after the receipt of political funds by means that are not prescribed by the Political Funds Act, led to the completion of the crime of illegal receipt of political funds, does not affect the establishment of crimes.

[2] In a case where Defendant A, a member of the National Assembly, was prosecuted on charges of receiving political funds in collusion with Defendant B by receiving a cash card connected to the deposit account in which money was deposited with Defendant C, the case affirming the judgment below that Defendant A’s offering of a cash card with a password to Defendant B, who was designated by Defendant A’s instructions, constitutes a contribution of political funds, and a contribution of political funds under the Political Fund Act is completed by issuing the said cash card, and how Defendant A et al. used the said money thereafter does not affect the establishment of the crime of receiving political funds

[3] According to Articles 2(1), 3 subparags. 4 and 7, 6, and 10(1) and (2) of the Political Funds Act, where the designation authority of the National Assembly members, etc. directly receives political funds from an individual or corporation without going through a supporters’ association, the designation authority of the National Assembly members, etc. may not be exempted from liability for a violation of Article 45(1) of the Political Funds Act.

[4] The case affirming the judgment below holding that in case where the defendant who is a member of the National Assembly did not go through a supporters' association and received the amount equivalent to the office's wages or office operation expenses from the company Gap et al., the crime of receiving political funds under Article 45 (1) of the Political Funds Act is established

[1] Articles 2(1), 3 subparag. 1, 3 subparag. 2, and 45(1) of the Political Funds Act / [2] Article 30 of the Criminal Act; Articles 2(1), 3 subparag. 1, 3 subparag. 2, and 45(1) of the Political Funds Act / [3] Articles 2(1), 3 subparag. 1, 3 subparag. 2, 4, and 7, 6, 10(1), (2), and 45(1) of the Political Funds Act / [4] Articles 2(1), 3 subparag. 1, 2, 4, and 7, 6, 10(1), (2), and 45(1) of the Political Funds Act

[1] [3] Supreme Court Decision 2006Do2612 Decided March 12, 2009 (Gong2009Sang, 499) / [1] Supreme Court Decision 2008Do10422 Decided February 26, 2009 (Gong2009Sang, 426)

Defendant 1 and two others

Defendants and Prosecutor

Attorneys Park Bo-young et al.

Seoul High Court Decision 2010No1706 decided December 20, 2010

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. As to the Defendants’ grounds of appeal

A. As to the receipt of KRW 50 million with respect to Nonindicted Party 1

Article 45(1) of the Political Funds Act provides that the person who contributes or receives political funds shall be punished in a manner not prescribed by the relevant Act. Article 3 Subparag. 1 of the same Act provides that “political funds” shall be construed as “party membership fees, support payments, deposits, subsidies, incidental revenues determined by the party constitution, party rules, etc. of a political party, persons who are elected through an election for public office, persons who intend to be a candidate or candidate, supporters’ association, executives and employees in charge of clerical services of a political party or other persons who are engaged in political activities, money, securities and goods provided to them, and expenses incurred in their political activities,” and Article 3 Subparag. 2 of the same Act defines “contribution” as “all acts of providing political funds to individuals, supporters’ associations and other persons for political activities” and “the act of bearing or disbursing expenses required for political activities of a third party, lending money and facilities, exempting or reducing debts, and providing other benefits after receiving political funds from a person who actually receives political activities prohibited by the Political Funds Act” (see, e.g., Supreme Court Decision 2006Do1206., supra.

Based on the circumstances indicated in its reasoning, the lower court acknowledged the fact that Defendant 1 and Defendant 3 conspired to receive the cash card of this case connected to the deposit account in which the money was deposited from Nonindicted 1. Furthermore, on the premise that the act of paying money in the deposit account and then receiving a cash card that can be withdrawn at any time constitutes a contribution of political funds under the Political Funds Act, the lower court determined that Nonindicted 1’s delivery of the cash card of this case linked to the deposit account to Defendant 3 as indicated in its holding by Defendant 1’s order to the person who received the contribution of political funds constitutes a contribution of political funds, and the act of providing the disposal media of the political funds in the deposit account to the person who received the contribution of this case along with the secret number, and then, it did not affect the establishment of the crime of receiving political funds. In addition, the lower court determined that the act of delivering the cash card of this case to Defendant 1 et al. was completed, and how Defendant 1 et al. used the money in the deposit account connected to the cash card of this case.

Examining the reasoning of the judgment below and the evidence adopted by the court below in light of the aforementioned legal principles, the above fact-finding and judgment of the court below are just and acceptable. Contrary to the allegations in the grounds of appeal by Defendant 1 and Defendant 3, there were no errors in the misapprehension of legal principles as to the elements and timing for the establishment of a crime of receiving and receiving political funds, the specific facts charged, and the abuse of authority

B. As to the receipt of KRW 38 million with respect to Nonindicted Party 1

Based on the circumstances indicated in its reasoning, the lower court recognized that Defendant 1 and Defendant 2 conspired to receive a contribution of political funds by receiving money from Nonindicted Party 1 to the connection account of the instant cash card, and determined that the said contribution of political funds is complete at the same time as the deposit of the money.

Examining the evidence duly admitted by the court below in light of the reasoning of the judgment below, the above fact-finding and judgment of the court below are just and acceptable. Contrary to the allegations in the grounds of appeal by Defendant 1 and Defendant 2, there were no errors by misapprehending the legal principles regarding the timing of receiving political funds in violation of the principle of logic and experience, or by

C. As to the receipt of KRW 29,383,160 in relation to Nonindicted Co. 2 and others

According to Articles 2(1), 3 subparag. 4 and 7, 6, 10(1) and (2), etc. of the Political Funds Act, in cases where the designation authority, such as National Assembly members, etc. does not pass through a supporters’ association but directly receives political funds from an individual or corporation, the designation authority of the National Assembly members, etc. is not exempt from the responsibility for violating Article 45(1) of the Political Funds Act (see Supreme Court Decision 2006Do2612, Mar. 12, 2009, etc.).

Based on the circumstances indicated in its reasoning, the lower court affirmed the first instance judgment that determined that Defendant 1 and Defendant 2 conspired to receive the amount equivalent to Nonindicted 3’s benefits from Nonindicted Co. 2, etc. as political funds, and that the said Defendants constituted a crime of receiving political funds in accordance with Article 45(1) of the Political Funds Act.

Examining the reasoning of the judgment below and the evidence adopted by the court below in light of the aforementioned legal principles, the above fact-finding and judgment of the court below are just and acceptable. Contrary to the allegations in the grounds of appeal by Defendant 1 and Defendant 2, there were no errors by misapprehending the legal principles as to the crime of receiving and receiving political funds and the applicable provisions thereof, or by misunderstanding facts contrary to logical and empirical rules, which affected the conclusion of the judgment. The allegation in the grounds of appeal on this part is based on the premise that Defendant 1 received political funds in relation to raising support funds of supporters' association, not individual

D. As to the receipt of KRW 41 million in relation to Nonindicted Co. 4 Company

Based on various circumstances as indicated in its reasoning, the lower court affirmed the first instance judgment that determined that Defendant 1 was a crime of receiving political funds under Article 45(1) of the Political Funds Act against the above Defendant by receiving political funds from Nonindicted Co. 4’s office operating expenses, etc.

Examining the evidence duly admitted by the court below in light of the reasoning of the judgment below, the above fact-finding and judgment of the court below are just and acceptable, and there is no violation of law by misapprehending the legal principles regarding the crime of receiving political funds and the applicable provisions thereof, or by misunderstanding facts against logical and empirical rules, which affected the conclusion of the judgment.

2. As to the Prosecutor’s Grounds of Appeal

In light of the various circumstances stated in its reasoning, the lower court upheld the first instance judgment that acquitted Defendant 1 of this part of the charges on the grounds that it is difficult to view that Nonindicted 5 provided Defendant 1 with US$1 on the date, time, place, etc. as stated in the facts charged, and with travel expenses, etc., to the extent that there is no evidence to acknowledge that Defendant 1 instructed the assistant officer, etc. to receive support from Nonindicted 5, 16 million won as stated in the facts charged.

Examining the relevant evidence in light of the records, the above judgment of the court below is just in accordance with the reasonable free evaluation of judges of the fact-finding court, and there is no error of law by misunderstanding facts against logical and empirical rules, as otherwise alleged in the ground of appeal.

3. Conclusion

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

Justices Jeon Soo-ahn (Presiding Justice)