(영문) 대구지방법원 2011. 6. 9. 선고 2010노4323 판결

Defendant 2, 6, 7, 8, 9, 10, and 11 did not pay the above fine, the above Defendants shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.

A sentence of punishment shall be suspended against Defendant 1.

A penalty of KRW 147,970,000 shall be additionally collected from Defendant 1.

Defendant 2, 6, 7, 8, 9, 10, and 11 are ordered to pay an amount equivalent to the above fine.

All of the appeals filed by Defendant 3, 4, and 5 and by the prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendants

(1) Legal principles

① At the time of fund-raising by the Defendants, the motive, process, and relationship between the contributors and Defendant 1, ② the full amount collected is not provided for Defendant 1’s election expenses, but for Defendant 1’s right guaranteed by the Constitution and the right to counsel’s assistance. ③ Criminal trials are not for violation of the Public Official Election Act or for the purpose of maintaining and acquiring power regardless of general criminal cases, but for the purpose of judicial action by prosecution of State agencies. ④ Persons including Defendant 2, etc. and others, or Defendant 1 did not have any awareness that they would receive political funds at the time. ⑤ The status room of public officials is not only for violation of the Public Official Election Act, but also for general criminal cases, but also for those subject to a suspended sentence or execution. Thus, in determining whether they are political activities, the court below erred in the misapprehension of legal principles as to the right to counsel’s assistance in political activities, which affected the conclusion of the judgment, and thus, it should not be deemed that the Defendants’ receipt of political funds in essence constitutes a violation of the Political Funds Act.

(2) Unreasonable sentencing

In light of the overall circumstances of this case, the sentence of the court below against the defendants (the defendant 1: 6 months of imprisonment, 1 year of suspended sentence, 147, 970,00 won additional collection, 2: 5 million won of fine, 3, 4, and 5: 2 million won of fine, 6, 7, 8, 9, 10, 11 of fine) is too unreasonable.

B. Prosecutor (Defendant 1, 2, 3, 4, and 5)

The sentence of the lower court against the Defendants is too uneased and unreasonable.

2. Determination

A. Judgment on the misunderstanding of legal principles by the Defendants

(1) In relation to the process of collecting the instant money and paying it at Defendant 1’s attorney’s expense, the Defendants stated that Defendant 1, who was in office in the ○○ City, was indicted for the violation of the Public Official Election Act and was sentenced to a fine of 2.5 million won for the invalidation of election in the Daegu District Court resident support on January 16, 2007, and the Defendants and other contributors, except Defendant 1, voluntarily collect money, and provided Defendant 1’s attorney’s expense. Accordingly, the issue of the instant case is that the head of the local government who was elected by the public official election, was sentenced to a punishment equivalent to the invalidation of election in the first instance court due to the violation of the Public Official Election Act, and is dissatisfied with the appellate court judgment. Accordingly, the Defendants’ factual basis is examined as to whether the said money constitutes a “person who contributed or received political funds” as provided in Article 45(1) of the Political Funds Act, or the said money was donated to the head of the local government, under the above circumstances.

(2) First, based on the definition of political funds as provided in the Political Funds Act and the meaning of the political activities expressed in the Supreme Court precedents, the definition of political funds as provided in Article 3 subparag. 1 of the Political Funds Act is limited to the pertinent case. Political funds refers to money or securities provided to a person elected by an election for political activities and expenses incurred in his/her political activities. Political activities include activities of exercising power and power over the acquisition and maintenance of power (see, e.g., Supreme Court Decision 2006Do1623, Dec. 22, 2006). In full view of the meaning of the above political funds and political activities, the purpose of the appellate court’s decision is not only to acquire power through election, etc., but also to ensure the existing acquisition of power at the time of the election, and it is recognized that there was no evidence duly adopted and investigated by the court below and the appellate court to the effect that, at the same time, Defendant 1 was deprived of the status of his/her attorney elected in the election market, but also to the effect that he/she would lose the status of his/her election market.

(3) Next, in terms of the legislative purport of strictly regulating political funds under the Political Fund Act, if the fund raising is not regulated by leaving the fund raising to a political party or politician, the association of political power and gold power can inevitably increase the donor's political influence, and if a political decision is made in favor of a minority holder with gold power, the equal opportunity principle per one person, which can be the foundation of democracy, may be seriously damaged (see, e.g., Constitutional Court Decision 2004Hun-Ba16, Jun. 24, 2004). In light of the following circumstances acknowledged by the court below and the trial comprehensively taking into account the evidence duly adopted and examined, i.e., ① from the point of view of the fact that the fund raising to Defendant 1's attorney fees, Defendant 3, 5, 4, and 10, and 7 can not be denied for the purpose of preventing the above Defendants from being able to receive political funds funds funds from the point of view of the fact that the above Defendants can not be able to receive political funds funds from the above Defendants 1 and the above market.

(4) Other rights to receive assistance through a public defender are guaranteed, and the right to receive assistance through a public defender is not derived from the essential contents of the right to receive assistance from a defense counsel under the Constitution, so long as the amount in this case is regarded as political funds under the Political Funds Act, it is difficult to view that the right to receive assistance from a defense counsel under the Constitution is in essence infringed, and even if the defendants did not have awareness that it constitutes political funds in the receipt of the amount in this case, it is merely merely a legal site, and it does not constitute mistake under Article 16 of the Criminal Act, and also does not constitute mistake under the law as provided in Article 16 of the Criminal Act. In light of the circumstances described by the court below in detail in the items of determination as to the defendants and defense counsel, the court below's judgment convicting the defendants of all the charges in this case is acceptable, and there is no error of law by misunderstanding legal principles, which affected the conclusion of the judgment.

B. Determination on the assertion of unfair sentencing by Defendants and prosecutors

(1) Defendant 1

In light of the following facts: (a) Defendant 1’s crime of this case is not less severe in terms of the amount of political funds received; (b) the fact that the Defendant received money at the attorney’s expense that the Defendant had no record of being sentenced to suspension of qualification or more; (c) the fact that the Defendant received money at the attorney’s expense that the Defendant paid it at the attorney’s expense; and (d) there was no clear precedent regarding the local government head’s receipt of money at the time of receiving the instant money; (b) whether the Defendant was punished for the instant crime or the degree of perception of illegality was not significant; (c) the possibility of recidivism is not significant; (d) the raising and providing of the instant political funds is not carried out at the Defendant’s request; and (e) the fund-raising and offering of the instant funds are voluntarily carried out by the Defendant, not at the Defendant’s request, but at the higher support rate after the commencement of the investigation related to the instant crime; and (e) the Defendant’s age, character and behavior, career, circumstances of receiving political funds, and the relationship between the provider and the instant sentencing.

(2) Defendant 2

Considering that Defendant 3, 4, and 5 play a leading role in the provision of political funds, the nature of the crime is not weak, but considering the amount of political funds provided at Defendant’s expense, circumstances after the crime, etc., Defendant 2 appears to have no record of criminal punishment other than fines, and the degree of recognition of the illegality of the crime of this case is not significant. In full view of all the sentencing conditions, including the Defendant’s age, character and behavior, career, the background of the provision of political funds, the relationship with Defendant 1, etc., the sentence of the lower court against Defendant 2 is too unreasonable.

(3) Defendant 3, 4, 5

In full view of the favorable circumstances such as the fact that the political funds provided by the above defendants are not many, the fact that there are the records of being sentenced to a suspended sentence in the case of defendants 3 and 5, and the fact that the above defendants appear to have caused the crime of this case upon the request of the defendant 2, etc., and the fact that it seems that the punishment for the crime of this case and the degree of recognition of illegality would not have been much significant, and the overall conditions of sentencing such as the occupation, character and behavior, age, relationship with the defendant 1, it is deemed that the sentence of the court below against the above defendants is appropriate.

(4) Defendant 6, 7, 8, 9, 10, 11

However, in light of the Defendants’ income level, etc., even though they are not much political funds, Defendant 8, 10, and 11 did not have the record of criminal punishment, and there was no record of criminal punishment exceeding Defendant 7, 9, and there was no record of criminal punishment exceeding the fine, Defendant 7, 8, 9, 10, and 11, Defendant 7, 8, 9, 10, and 11 were faithfully sealed as public officials for several hundreds of years, and the Defendants appear to have not been much aware of the existence of punishment for the instant crime or the degree of perception of illegality, and the overall conditions of sentencing such as the occupation, character, age, and relationship with Defendant 1 are considered to be inappropriate.

3. Conclusion

Therefore, since all appeals filed by the prosecutor and the defendant 3, 4, and 5 are without merit, they are dismissed pursuant to Article 364(4) of the Criminal Procedure Act. Since the appeal filed by the defendant 1, 2, 6, 7, 8, 9, 10, and 11 is with merit, the above part of the judgment of the court below among the defendants shall be reversed pursuant to Article 364(6) of the Criminal Procedure Act and it is again decided as follows.

Criminal facts and summary of evidence

The summary of facts constituting a crime and evidence admitted by a member is the same as the description of each corresponding column of the judgment of the court below, and this is cited in accordance with Article 369 of the Criminal Procedure Act.