[1] Whether a crime of becoming a member of a political party or a teacher of a private school under Articles 53 and 22(1) of the former Political Parties Act and a crime of becoming a member of a political party or a public official under Articles 84 and 65(1) of the former State Public Officials Act constitutes an immediate crime (affirmative)

[2] The meaning of "where the facts recorded in the indictment do not constitute a crime even if they are true" under Article 328 (1) 4 of the Criminal Procedure Act

[3] In a case where the defendants who are not eligible to become a party member under the Political Party Act joined a political party as a party member and contributed political funds under the pretext of a party member fee and were prosecuted for violating the Political Funds Act, the case holding that the above facts charged do not constitute a ground for dismissing the prosecution under Article 328 (1

[4] Whether Article 27 (2) 4 of the former State Public Officials Service Regulations violates the principle of clarity or exceeds the scope of delegation under Article 65 (4) of the former State Public Officials Service Act

[1] Since a public official or a teacher of a private school as provided in Articles 53 and 22(1) of the former Political Parties Act (amended by Act No. 10866, Jul. 21, 2011) is a party member and a public official as provided in Articles 84 and 65(1) of the former State Public Officials Act (amended by Act No. 10148, Mar. 22, 2010) joins a political party or any other political organization, a crime in which a public official or a teacher of a private school is a party or a teacher of a private school is a party and is established immediately after the completion of the period, the statute of limitations shall run simultaneously with the establishment of the crime.

[2] Article 328 (1) 4 of the Criminal Procedure Act provides that "where the facts recorded in the indictment do not constitute a crime even if true" refers to cases where it is evident that the facts per se do not constitute a crime due to the determination of the facts themselves stated in the indictment.

[3] In a case where the defendants who are not eligible to become a party member under the Political Party Act joined a political party as a party member and contributed political funds under the pretext of the party membership fee and were prosecuted for violating the Political Funds Act, the case holding that the above facts charged do not constitute a ground for dismissing the prosecution under Article 328 (1) 4 of the Criminal Procedure Act on the ground that the defendants' act of joining the party member, the defendants' actual character of the contributed money, and the elements of the Political Funds Act should be determined by examining the contents of the indictment itself.

[4] Article 27(2)4 of the former State Public Officials Service Regulations (amended by Presidential Decree No. 23010, Jul. 4, 2011; hereinafter “former State Public Officials Service Regulations”) shall be narrowly interpreted in consideration of the prohibited acts by the mother law of the State Public Officials Act enacted upon delegation of Article 65(4) of the former State Public Officials Act (amended by Act No. 10148, Mar. 22, 2010; hereinafter “State Public Officials Act”). The main text of Article 27(2) of the former State Public Officials Service Regulations provides that “any act falling under any of the following subparagraphs with a political purpose under the provisions of paragraph (1) above shall be prohibited from being carried out, or is closely related to the election or service of a political party or any other political organization for the purpose of achieving the purpose of Article 65(4) of the former State Public Officials Act (amended by Presidential Decree No. 23010, Jul. 4, 2011; hereinafter “former State Public Officials Service Regulations”).

[1] Articles 22(1) and 53 of the former Political Parties Act (Amended by Act No. 10866, Jul. 21, 2011); Articles 65(1) and 84 of the former State Public Officials Act (Amended by Act No. 10148, Mar. 22, 2010); Article 252 of the Criminal Procedure Act / [2] Article 328(1)4 of the Criminal Procedure Act / [1] Article 45(1) of the Political Funds Act; Article 22(1) of the former Political Parties Act (Amended by Act No. 10866, Jul. 21, 201); Article 32(1) and 53 of the former State Public Officials Act; Article 65(1) and 84 of the former State Public Officials Act (Amended by Act No. 10148, Mar. 22, 2010); Article 328(1)4 of the former State Public Officials Act (Amended by Act No. 208(14)1) of the Criminal Act)

[2] Supreme Court Decision 77Do2603 Decided September 28, 197 (Gong1977, 1032) Supreme Court Decision 90Do174 Decided April 10, 1990 (Gong1990, 1100)/ [4] Constitutional Court en banc Order 2011Hun-Ba42 Decided March 27, 2014 (Hun-Ba210, 579)

Defendant 1 and 87 others

Defendants and Prosecutor

Law Firm Inn et al.

Seoul High Court Decision 2012No626 decided October 8, 2012

All appeals are dismissed.

1. Prosecutor's grounds of appeal are examined.

A. As to the acquittal of the remaining Defendants except Defendant 1, 9, 19, 43, and 82

A public official or teacher of a private school under Articles 53 and 22(1) of the former Political Parties Act (amended by Act No. 10866, Jul. 21, 2011; hereinafter referred to as the “ Political Parties Act”) is a party member and a public official under Articles 84 and 65(1) of the former State Public Officials Act (amended by Act No. 10148, Mar. 22, 2010; hereinafter referred to as the “State Public Officials Act”) joins a political party or any other political organization; thus, a crime committed by a public official or teacher of a private school is immediately established upon joining the political party and completed at the same time, and the statute of limitations begins simultaneously with the establishment of such crime.

The lower court determined that the statute of limitations for each of the facts charged against the above Defendants was expired, on July 21, 201, since the public prosecution on the violation of the Political Parties Act and the part concerning the violation of the State Public Officials Act due to a State public official or a private school teacher of a political party became a party member among the facts charged in the instant case against the above Defendants was instituted on July 21, 201, which was the three-year statute of limitations for prosecution as stated in the facts charged against

Examining the reasoning of the judgment below in light of the aforementioned legal principles, the above judgment of the court below is just, and contrary to the prosecutor's grounds of appeal, there were no errors of misapprehending the legal principles on the starting point of

B. As to Defendant 82

The court below affirmed the judgment of the first instance which acquitted Defendant 82 on the ground that there is no sufficient evidence to acknowledge that Defendant 82 had paid support money to Defendant 82 with the intent to support ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

Examining the reasoning of the judgment below in light of the records, the above judgment of the court below is just and acceptable, and contrary to the prosecutor's grounds of appeal, there were no errors in the misapprehension of the principle of free evaluation of evidence against logical and empirical rules

2. We examine the remaining Defendants except Defendant 82 (hereinafter in this paragraph “Defendants”)’ grounds of appeal.

A. As to the second ground for appeal

Article 328 (1) 4 of the Criminal Procedure Act refers to the case where it is evident that the facts recorded in the indictment as provided in Article 328 (1) 4 of the Criminal Procedure Act do not constitute a crime even if they are true means the case where the facts themselves do not constitute a crime due to the judgment on the facts themselves stated in the indictment (see Supreme Court Decision 90Do174, Apr. 10, 199).

Examining the record in light of the above legal principles, with respect to the part of the facts charged in this case that the Defendants, who are not eligible to become a party member under the law, joined the ○○○○○○ Party as a party member and contributed political funds under the pretext of party membership fees, the Defendants’ act of joining the party member should be effective, the Defendants’ actual character of contributed money, and the elements of the Political Funds Act should be examined to make a substantive judgment. Thus, it cannot be said that the facts alone do not constitute a crime even if it is evident that the facts entered in the indictment alone are not the facts themselves, and therefore, it does not constitute a ground for dismissing prosecution under Article 32

Although there is no somewhat inappropriate part at the time of the reasoning of the lower court, the lower court’s determination and conclusion that this part of the facts charged did not constitute a ground for dismissing the public prosecution, as alleged by the Defendants, is justifiable, and there is no error of law by misapprehending the legal doctrine on the interpretation of Article 328(1)4 of the Criminal Procedure Act.

B. As to the grounds of appeal Nos. 1 and 4

If there is no concern about substantial disadvantage to the defendant's exercise of his/her right to defense, it does not violate the principle of no accusation even though the court recognized facts different from the facts charged without going through changes in indictment to the same extent (see Supreme Court Decision 201Do1651, Jun. 30, 201).

The lower court affirmed the first instance court’s measure that recognized the name of “party membership fee” as “support fund” on the ground that the facts charged in the instant case and the facts charged in the first instance judgment are identical to both the date, amount, means, and method of funds transfer, and merely evaluated the name as “support fund” from the “party membership fee” to the “party membership fee,” and that the above change of the name of the above transfer fund without any changes in the indictment in light of the Defendants’ changes in the contents of the lawsuit and the first instance trial process, etc., even if acknowledged without any changes in the above circumstances

Examining the reasoning of the judgment below in light of the records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the principle of non-defluence or the necessity of modification of indictment, etc. contrary to the allegations in the grounds of appeal.

C. Regarding ground of appeal No. 3

The lower court determined that Article 45(1) of the Political Funds Act applies to the receipt of political funds by means of a method not prescribed in the Political Funds Act, that it is difficult to view that ○○○○○ Party established and operated a supporters’ association or other similar organization.

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the first instance court, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on

D. As to the grounds of appeal Nos. 5, 8, and 9

1) Based on its stated reasoning, the lower court determined that the Defendants had the intention to support the ○○○○○○○○○○○○○○○○○○○ Party on the ground that the Defendants, at the time of preparing the “application for membership of the ○○○○○○○○○ Party” or at the time of transferring the money in the name of the support fund, knew of the fact that “the Defendants transfer the money in the name of the support fund to ○○○○○○○○○○○○○○○○○○○○○○○○○.”

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the first instance court, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending

2) Article 16 of the Criminal Act provides, “The act of misunderstanding that one’s own act does not constitute a crime under the Acts and subordinate statutes shall not be punishable only when there are justifiable grounds for misunderstanding.” The purpose of Article 16 of the Criminal Act is that it shall not be punishable in a case where it is generally accepted that the act of misunderstanding that one’s own act does not constitute a crime, but where there are justifiable grounds for misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding see, e.g., Supreme Court Decision 208Do11679, Jul. 15, 2010). The degree of efforts necessary for recognizing illegality misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding see, etc.

The lower court, on the grounds indicated in its reasoning, determined that the Defendants’ act did not have a legitimate reason to believe that the Defendants’ act did not constitute a crime under the statutes, on the sole basis of the circumstances alleged by the Defendants, such as the content of the year-end year-end guidance of City/Do Office of Education and the content of questioning and answers by the National Election Commission.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted by the first instance court, the lower court’s determination is justifiable, and contrary to what is alleged in the Defendants’ grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the interpretation

E. Ground of appeal No. 6

The lower court determined that the Defendants’ act constitutes an act of contributing political funds by paying the money directly to ○○○○○○○○○○○○, which is not an act of joining the supporters’ association as provided by the Political Funds Act, and that said act constitutes a contribution

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the first instance court, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on

F. As to ground of appeal No. 7

Article 65(4) of the State Public Officials Act takes the form of delegation to each constitutional authority with regard to “the limitation on prohibition of political acts other than Paragraph 3.” As such, the need to individually specify the contents of political acts that should be prohibited to public officials under its own constitutional authority due to the functions and characteristics of the functions and duties of the National Assembly, the Court, the Constitutional Court, the election commission, and the executive branch, and it is recognized that daily provision of the contents of such political acts is very difficult in legislative technology. In addition, Article 65(3) of the State Public Officials Act provides that “public officials shall not demand other public officials to engage in any act contrary to paragraphs 1 and 2 of this Article, or promise profits or disadvantages as compensation or retaliation for political acts.” As such, the specific contents or attitude of “the limitation on prohibition of political acts other than Paragraph 3 of the same Article” can not be seen as having violated the principle of prohibition of political acts under Article 65(1) and (2) of the State Public Officials Act, such as the formation of a political party or organization and its formation, or its related political activities (see Article 20(3).4).

Furthermore, Article 65(4) of the State Public Officials Act, which interpreted as above Article 65(4) of the State Public Officials Act, shall be narrowly interpreted taking into account the acts prohibited by the mother law of Article 27(2)4 of the former State Public Officials Service Regulations (amended by Presidential Decree No. 23010, Jul. 4, 201; hereinafter “former State Public Officials Service Regulations”), which was enacted upon delegation of Article 65(4) of the State Public Officials Act, as seen above. The main text of Article 27(2) of the former State Public Officials Service Regulations, provides that “an act falling under any of the following subparagraphs with a political purpose under the provisions of paragraph (1) shall be an act for which the organization or organization of a political party or political organization was established,” that is, “an act for which the organization of a political party or political organization was supported by a specific political party or political organization or for which the political content of the former State Public Officials Service Act is not clearly related to the election or political activity of a specific political party or organization, but is not related to the specific purpose of Article 27(2).

The judgment below to the same purport is just, and contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles on the prohibition of comprehensive delegation or the clarity principle.

3. Conclusion

All of the remaining Defendants’ appeals except for the Prosecutor’s appeal and Defendant 82 are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)