[1] The scope of a trial by the court of final appeal and the scope of grounds for appeal by the defendant

[2] The elements for the exclusion of illegality of a contribution act that does not fall under the ordinary or official acts under Article 112(2) of the former Public Official Election and Prevention of Election Illegal Act

[3] The case holding that it is difficult to view the defendant's act of donation as a case where the illegality is dismissed because the defendant's act of donation does not violate social rules in light of the nature and size of various meetings such as a tendency meeting to be present as the head of Gun, amount of contribution, or value of meals provided as a contribution

[1] Articles 364 and 384 of the Criminal Procedure Act / [2] Articles 112 (1) and (2), and 257 (1) 1 of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7681 of Aug. 4, 2005) / [3] Articles 112 (1) and (2), and 257 (1) 1 of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7681 of Aug. 4, 2005), Article 20 of the Criminal Act

[1] Supreme Court Decision 99Do2831 delivered on March 28, 2000 (Gong1998Ha, 2628) decided September 22, 1998 (Gong1998Ha, 2628) / [2] Supreme Court Decision 96Do1768 delivered on December 10, 1996 (Gong197Sang, 4466) decided May 11, 199 (Gong199Sang, 1202), Supreme Court Decision 2005Do2245 delivered on February 18, 2005 (Gong205Ha, 1525)

Defendant

Defendant

Attorneys Kim Jong-soo et al.

Gwangju High Court Decision 2005No436 Decided March 23, 2006

The appeal is dismissed.

The grounds of appeal are examined.

1. Omission of judgment and misunderstanding of facts against the rules of evidence

The appellate court shall judge the grounds included in the grounds for appeal, and may judge ex officio the grounds that affect the judgment, even if they are not included in the grounds for appeal (see Article 364 (1) and (2) of the Criminal Procedure Act).

Since the court of final appeal is a follow-up trial on the judgment of the appellate court, matters not subject to a review in the appellate court are not different from the scope of the judgment of the court of final appeal, so it cannot be deemed as the grounds for final appeal for reasons other than those not alleged in the appellate court as grounds for final appeal or subject to a review by the appellate court ex officio (see Supreme Court Decision 9Do2831, Mar. 28, 200)

According to the records, the defendant and his defense counsel did not assert as the grounds for appeal the grounds for appeal concerning the mistake of facts in the judgment below within the lawful period for submission of the grounds for appeal, and the judgment of the court below did not make ex officio the above grounds for appeal. Therefore, the defendant's argument that the court below erred in misunderstanding of facts due to the violation of the rules of evidence cannot be a legitimate ground for appeal, and ex officio examination of the judgment below does not seem to have any unlawful grounds for misunderstanding of facts due to the violation of the rules of evidence, which affected the judgment of the court below, and it cannot be said that the judgment of the court below did not make a decision on misunderstanding of facts

2. Violation of the legal principles as to grounds for exclusion of illegality in relation to prohibition of contribution acts

A. Article 113(1) of the former Public Official Election Act (amended by Act No. 7681, Aug. 4, 2005; hereinafter “Public Official Election Act”) provides that “A National Assembly member, a local council member, the head of a local government, the representative of a political party, a candidate (including a person who intends to become a candidate) and his/her spouse shall not make a contribution to persons in the relevant constituency, institutions, organizations, or facilities, or institutions, organizations, or facilities located outside the relevant constituency even if they are located outside the relevant constituency, or institutions, organizations, or facilities, or facilities.” Meanwhile, in light of the provisions of the Public Official Election Act, the offering of money, goods, etc. falling under Article 112(1) of the same Act does not constitute a formal act or an act permitted by the National Election Commission Regulations and its decision based thereon, and so long as such act does not constitute a violation of the prohibition of contribution acts by the head of a local government, it does not constitute a kind of act of ordinary social order as stipulated in Article 25(1) of the Act.

B. According to the aforementioned legal principles and the evidence duly examined and adopted by the first instance court, the following facts can be acknowledged.

(1) Nonindicted Party 1, who was the head of the immediately preceding Gun of the Defendant, only supported only goods, such as red language and blag, etc., for the events of the 2001 (No. 9) and 2002 (No. 10) for the residents of the Gun of the Gun of the Gun of the Gun of the Gun of the Gun of the Gun of the Gun of the Gun of the Gun of the Gun of the Gun of the Gun of the Gun of the Gun of the Gun of the Gun of the 2004 (No. 12) without supporting cash.

(2) At the time, the Newanan-gun organized a budget with the item that is a monetary compensation for the event room, and used it as a cost for supporting goods, etc. to the Newan-guns Society in each region. However, the said KRW 3 million was not the above budget but the budget for other items, such as domestic travel expenses, and was created and executed by automatically accounting.

(3) The number of members of the Korea National Assembly of the Republic of Korea, which is the other party to the contribution act of KRW 3 million, is approximately KRW 300,000,000, and the number of members participating in the event of the Korea National Assembly of the Republic of Korea, is approximately KRW 5,000.

(4) On October 3, 2004, a person who contributed at least 3 million won to the events of the Republic of Korea on the Day of the Republic of Korea, including the Defendant, is merely 7 persons, and only the Defendant is not a member of the Korea National Security Council.

(5) On December 25, 2005, a meeting of the head of Sinpo Dok Dok Dok Dok-gu, the location of which the Defendant paid the meal cost of KRW 1960,00 won as of December 25, 2005, was held by the former head of Sinpo-si, the president of Sinpo-si, the former head of Sinpo-si, the members of Sinpo-si, and Nonindicted 2 of the National Assembly member, the members of Sinpo-si, the members of Sinpo-si, the members of Sinpo-si, and the former head of Sinpo-gun,

(6) In order to prevent a violation of the Public Official Election Act, the conference organized by Nonindicted 2 of the National Assembly members of the National Assembly (hereinafter “Public Official Election Act”), the Defendant was aware of the contents of the contact, and the Defendant collected 30,000 won of membership fees from the conference organized by Nonindicted 2 of the Assembly.

(7) 피고인이 2005. 12. 25. 1심 판시 34만 5천 원의 술값 등을 지급한 목포시 소재 쿵짝노래방에서의 모임은 위에서 본 모임의 끝난 후 남은 평민회 회원 약 15-6명이었다.

다. 위에서 본 재경신안군향우회, 축협한우전문식당 및 쿵짝노래방에서의 모임의 성격과 규모, 위 각 모임에 참가한 사람들이 피고인에 대한 정당의 공천이나 지방선거에서 영향력을 행사할 수 있는 지위에 있는 점, 위 기부행위의 금액 또는 위 각 기부행위로 제공된 식사, 술과 안주 등의 가액, 그 대상 모임과 피고인과의 관계, 친밀도 등에 비추어 그것이 지극히 정상적인 생활형태의 하나로서 역사적으로 생성된 사회질서의 범위 안에 있는 의례적인 행위이거나 직무상의 행위로서 사회상규에 위배되지 아니하여 위법성이 조각되는 경우로 보기는 어렵다고 할 것이다.

3. Conclusion

Therefore, all of the facts charged in this case by the first instance court maintained by the court below are acceptable, and there is no error in the misapprehension of legal principles as to the grounds for appeal, such as omission of judgment, misconception of facts due to the violation of the rules of evidence or the prohibition of contribution act, etc.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae-sik (Presiding Justice)