(영문) 대구고등법원 2017.3.30.선고 2017노42 판결

In full view of the fact that an incorporated association I (hereinafter referred only to as the "Federation") sent a public letter demanding support as K National Assembly member's office, that the defendant received KRW 1 million from T and sent KRW 50,000 won to the account of the federation, that the defendant recognized the deposited money as the defendant by the federation as the notification of deposit to the side of the Association immediately before the remittance, and that the defendant notified the deposited money to the person with a disability organization as K Council member after deposit, it is sufficiently recognized that the defendant caused the K member to provide money to the federation. The defendant is not T, but the subject of the contribution act is the defendant, and the election relation of the contribution act is recognized. Nevertheless, the judgment of the court below acquitted the defendant, by misunderstanding the facts or misunderstanding the legal principles, which affected the conclusion of the judgment.

2. Determination

원심이 적법하게 채택하여 조사한 증거들에 의하면, 연합회가 K 국회의원 사무소로 후원을 요청하는 공문을 보낸 사실, T이 연합회가 아닌 피고인에게 100만 원을 건넸고, 피고인이 5만 원을 보탠 105만 원을 사무소 직원으로 하여금 연합회 계좌로 송금하게 한 사실, 피고인은 송금 무렵 연합회 사무처장인 C에게 연락하여 후원금이 들어갈 예정이라고 말한 사실은 인정된다.

However, in full view of the following circumstances admitted by the above evidence, it is insufficient to view that the evidence presented by the prosecutor alone is insufficient to prove that the defendant had the intention of having K Council members consider the effect of providing money to T to the Federation, and there is no other evidence to prove otherwise.

Therefore, the judgment of the court below that held to the same purport is just and acceptable, and there is no error of misunderstanding of facts or misunderstanding of legal principles as otherwise alleged by the prosecutor, and the prosecutor's ground of appeal

① T은 피고인으로부터 장애인단체를 도와달라는 전화를 받고 자신이 운영하는 ㈜S(이하 'S'이라 한다)의 전무인 U을 통해 피고인에게 100만 원을 건넸다고 진술하고 있고, U 역시 같은 취지로 진술하고 있다. 따라서 T은 처음부터 장애인단체에 기부할 용도로 피고인에게 100만 원을 건넨 것으로 보인다.

② On December 14, 2015, 2015, prior to the 200,000 won, T operates S and donated KRW 2 million to the S Federation under the name of a member of the AV of the National Assembly on December 14, 2015. As such, T appears to have been sufficiently willing to support a disabled organization in the name of an individual or S, and even if the defendant introduced a sponsor such as T, he/she may raise the image of the K Council member. However, there seems to be no reason to contribute for the K Council member even after creating the appearance, such as the payment of T by receiving money from T.

③ 피고인은 T 명의로 연합회에 105만 원을 입금하였고, 입금 당일인 2016. 12. 21. 피고인과 T 사이에는, ㉠ 15:11경 "에서 고맙다고 전화오면 그냥 예 하시면 됩니다. 이런 후원 또한 저희가 해야 할 몫입니다"(피고인→T), ㉡ 15:12경 "1구좌 105만 원 후 원했습니다"(피고인→T), ㉢ 15:12경 "저희 회사에서 200만 원 후원했습니다"(T-피고인), ㉣ 15:13경 "헐… 저희도 약속을 한 게 있어서 이미 했습니다"(피고인→T), ㉤ 15:15경 "잘 했습니다. 좋은 일에 좋은 결과 있겠지요.. 국장님 (T→피고인)이라는 취지의 문자메시지가 오고갔다. 이처럼 피고인이 T에게 100만 원의 사용처와 함께 연합회에서 감사인사를 할 수 있음을 알려준 것은 금품제공의 효과를 T에게 돌리려 하였기 때문으로 보인다.

④ On December 23, 2015, C, the secretary general of the Federation, called SU, sent a donation receipt to T’s house, and sent it by mail to T’s own house on December 23, 2015. On February 29, 2016, prior to the commencement of the investigation of the instant case, C, the secretary general of the Federation, reported KRW 10.50,000 as a designated donation and received the deduction of the donation (Evidence No. 1423). Therefore, not only T, but also the Federation, deemed to have recognized the subject of the contribution act as T.

⑤ The official document (Evidence No. 1300 pages) sent to the office of a member of the Korean National Assembly as of December 4, 2015 by the Federation is a member of the Korean National Assembly, and the recipient requests the support. However, since since the year 2015, the Federation held a "Tguc event" to send to its members after and after the Gu administration, and sent to the members of the Federation, "Tgucing rice and rice Council members" as of December 2015 for the event of the Gu administration in 2016, it is difficult to conclude that the Federation requested the support directly to the defendant or the K Council members. Rather, since C cannot directly support a member of the National Assembly office, it is stated that the request was made to introduce a support to the defendant.

6. On January 20, 2016, the Z stated to the effect that “the defendant was sent KRW 10,500,000 to the Federation by calculating the amount of KRW 10,500 to one gambling,” and that “the defendant was sent gambling to the Federation without immediately giving Y gambling,” and that “the above statement is specific, and there is no reason to make a false statement to the effect that “the defendant was in receipt of gift” and “the defendant was in receipt of gift,” but it is not possible that the defendant was in front of the Federation, and that he was not in front of the election of the Association, and that the defendant was not in front of the election of the disabled.” However, if the defendant stated to the effect that the above statement to the effect that “the defendant was not in front of the National Assembly,” the above statement to the effect that the defendant was not in front of the election of the Association and that he was not in front of the National Assembly.”

① As seen earlier, the Federation received support of KRW 2 million from S by introducing the AV office for the National Assembly members of the BN constituency. On December 16, 2015, the Federation received support of KRW 1 million by introducing the AT office for the National Assembly member of the National Assembly in the AY constituency. As such, the Federation also received support by introducing other National Assembly members’ offices.

8. The Defendant asserts that “The Defendant wired KRW 50,00 won to one unit of money and KRW 50,000,000,000 to one unit of money and KRW 50,050,000 to one unit of money cannot be demanded to send more than 50,000 won.” The Defendant also stated that the amount of one unit of money actually requested is KRW 1,050,000,000, but the actual amount is KRW 1,000,000,000, in most cases, and the Defendant deposited the entire amount of KRW 1,550,00 in T’s name, and the Federation issued a donation receipt for KRW 1,050,00,00 in T’s name. Therefore, the Defendant appears to have fully accepted the above defense of the Defendant, and therefore, the Defendant merely transferred the insufficient amount in supporting T.

3. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, since it is without merit.