Do 2017 Do 95444 A. Violation of Public Official Election Act

B. Violation of the Political Funds Act

C. Violation of the Act on Regulation and Punishment of Concealment of Criminal Proceeds

(d) Fraud;

1. (a) b. (c) d. A;

2. (a) b. (c) d. B

3. (a)(b)(c) C

4. (a) D.

5. (a) E;

6.2 b.F

7.(b) G.

Prosecutor (as to Defendant B)

1. The term “Defendant A” means the term “Defendant A”

Attorney Kim Han-ju, Park Jae-jin, and Kim Jong-chul in charge

Law Firm (Limited) Won (for Defendant B),

Attorney Park Young-ho, Jin-hee, Park Jong-ho

Legal entity's orientation (for defendant B),

Attorney Hun-Ba in charge

KSP Co., Ltd. (for Defendant C)

Attorney Kim Sang-hoon, Kim Jong-hee, Kim Jong-hee, Kim Jong-hee, Lee Sung-hee, Jin-hee

Cheong forest, a legal entity (for defendant D and E),

Attorney Shin Jong-ok, Lee Jong-ho

Attorney Cho Jong-ho and Kim Min-young (Defendant D and E)

Law Firm Corporation (Limited LLC) Pacific (For Defendant G)

Attorney Kim Yong-hwan, Kim Jong-nam, Lee Chang-chul, Lee Chang-chul

Seoul High Court Decision 2017No239 decided June 15, 2017

July 10, 2019

all appeals shall be dismissed.

The grounds of appeal are determined.

1. In a criminal trial on the part of violation of the Public Official Election Act due to the receipt of money and valuables in relation to election campaign, the finding of guilt ought to be based on evidence with probative value sufficient to mislead the judge to have a reasonable doubt as to the facts charged to the extent that there is no room for a reasonable doubt. If there is no such proof, even if there is a doubt of guilt against the defendant, the conviction cannot be made (see, e.g., Supreme Court Decision 2006Do735, Apr. 27, 2006). Moreover, the selection of evidence and the probative value of evidence conducted on the premise of fact-finding belongs to the free judgment of the court of fact-finding (Article 308 of the Criminal Procedure Act).

For the same reasons as the judgment of the court below, the court below affirmed the judgment of the court of first instance which acquitted Defendant A, B, C, D, and E of this part of the facts charged on the ground that the evidence submitted by the prosecutor alone was beyond the status of Defendant D, C, and E simply a service provider and was in the position of the organization for promoting the actual election of H party, or that the above Defendant was in the position of the organization for promoting the election of H party beyond the preparation for the election campaign and carried out activities related to the election campaign or the election campaign for H without any reasonable doubt.

The grounds of appeal are the purport of disputing the recognition of facts that served as the basis of such judgment of the court below. It is practically attributable to the fact-finding court’s determination of evidence selection and probative value, which belong to the free judgment of the court of fact-finding. Examining the grounds of the original judgment in light of the aforementioned legal principles and records, the reasoning of the original judgment did not err by failing to exhaust all necessary deliberations as alleged in the grounds of appeal, or by misapprehending the legal principles on the election law of public offices.

The Supreme Court rulings cited as the grounds of appeal are different from the instant case, and therefore, they are not appropriate for the original use in the instant case.

2. Violation of the Political Funds Act related to the production contract for L with L, and the Regulation and Punishment of Concealment of Criminal Proceeds

For the same reasons as the judgment of the court below, the court below held that (1) evidence submitted by the prosecutor is only the only evidence submitted by the public prosecutor, and according to Defendant A’s demand for rebates under Defendant B’s direction, Defendant F. I (hereinafter “I”) of this case.

(A) The first instance judgment, which found Defendant A and B’s charge of violation of the Act on the Regulation and Punishment, etc. of Concealment of Criminal Proceeds on the premise of the aforementioned proof, is justifiable, based on the following: (a) preparing a false contract as if the request was made to KRW 100,000,00; and (b) maintaining the first instance judgment, which found Defendant A and B’s charge of violation of the Act on the Regulation and Punishment, etc. of Criminal Proceeds Concealment on the premise that the aforementioned proof was made by Defendant F, who paid the cost for the service pursuant to the service, such as the HI development of the H Party PI to this I; and (c) maintaining the first instance judgment, which found Defendant A and B not guilty of this part of the charge.

The grounds of appeal are the purport of disputing the recognition of facts that served as the basis of such judgment of the court below. It is practically attributable to the fact-finding court’s determination of evidence selection and probative value, which belong to the free judgment of the court of fact-finding. Examining the reasoning of the original judgment in light of the aforementioned legal principles and records, the lower court did not err by omitting necessary deliberation, as alleged in the grounds of appeal, or by exceeding the bounds of the principle of free evaluation of evidence by failing to exhaust all necessary deliberation, or by violating logical and empirical rules.

3. The portion of violation of the Political Funds Act relating to the agency contract with M Co., Ltd. (hereinafter referred to as "M") and the Regulation and Punishment of Concealment of Criminal Proceeds

For the same reasons as the judgment of the court below, the court below affirmed the judgment of the court of first instance which acquitted Defendant A on the charge of violation of the Act on the Regulation and Punishment, etc. of Concealment of Criminal Proceeds of Defendant A and C on the premise that the aforementioned proof is based on the following: (1) merely the evidence submitted by the prosecutor is legitimate: (2) It is insufficient to view that Defendant A was able to receive political funds by paying in lieu of M the amount equivalent to the cost for performing public relations activities for the election campaign to be paid by the H party in fact by issuing a false tax invoice on this M; and (3) it is not sufficient to view that Defendant A and C was able to receive political funds without any reasonable doubt; and (4) it is reasonable to determine that this part of the judgment of first instance which acquitted Defendant A and C on the charge of violation of the Act on the Regulation and Punishment, etc. of Concealment of Criminal Proceeds.

The grounds of appeal are the purport of disputing the recognition of facts that served as the basis of such judgment of the court below. It is practically attributable to the fact-finding court’s determination of evidence selection and probative value, which belong to the free judgment of the court of fact-finding. Examining the reasoning of the original judgment in light of the aforementioned legal principles and records, the lower court did not err by omitting necessary deliberation, as alleged in the grounds of appeal, or by exceeding the bounds of the principle of free evaluation of evidence by failing to exhaust all necessary deliberation, or by violating logical and empirical rules.

4. The part concerning fraudulent claims for the false preservation of election expenses and the violation of the Political Funds Act

For the same reasons as indicated in the judgment of the court below, the court below affirmed the judgment of the court of first instance which acquitted Defendant A and B of this part of the facts charged, on the ground that the evidence submitted by the prosecutor alone cannot be seen as being proved without any reasonable doubt that Defendant A and B entered documents related to election expenses in a false manner and requested the preservation of false election expenses.

The allegation of the grounds for appeal is the purport of disputing the recognition of facts that served as the basis for the judgment of the court below. It is practically attributable to the fact-finding court’s determination of evidence selection and probative value, which belong to the free judgment of the court of fact-finding. Examining the reasoning of the original judgment in light of the aforementioned legal principles and records, the lower court did not err by failing to exhaust all necessary deliberations, such as the allegation of the grounds for appeal, or by exceeding the bounds of the principle of free evaluation of evidence by failing to exhaust all necessary deliberations, or by violating logical and empirical rules.

5. The violation of the Political Funds Act concerning free provision of goods for election campaign

For the same reasons as indicated in the judgment of the court below, the court below held that the first decision of the court of first instance, which found that the evidence submitted by Kim Jong-goo, alone, was insufficient to view that the defendant A and F had an intention to accept the rapping and booet free of charge at the time of producing, requesting, or providing vehicle raping and booet recorded in the facts charged, was justifiable, and maintained the first decision of the court of first instance, which found the defendant A and F not guilty of this part of the facts charged.

The grounds of appeal are the purport of disputing the recognition of facts that served as the basis of such judgment of the court below. It is practically attributable to the fact-finding court’s determination of evidence selection and probative value, which belong to the free judgment of the court of fact-finding. Examining the reasoning of the original judgment in light of the aforementioned legal principles and records, the lower court did not err by violating the legal principles of logic and experience and exceeding the bounds of the principle of free evaluation of evidence, as otherwise alleged in the grounds of appeal.

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

Justices Kim Jong-soo

Justices Lee Ki-taik

Justices Park Jung-hwa-hwa