Defendant 1 and one other

Both parties

Kim Woo

Attorney Lee Sang-gil

Ulsan District Court Decision 2007Ma373 Decided January 18, 2008

All appeals filed by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant 2

(1) Fact-finding or misunderstanding of legal principles

The instant money is not contributed to the election fund, but received as a consideration for the transfer of cable broadcasting by the request, and on the premise that the Defendant does not receive a refund of the receipt of political funds, the Defendant promised to return the instant money, but actually returned it, and thus does not constitute the receipt of political funds. The final recipient of the instant money is Nonindicted 1 and the Defendant is merely the intermediary, and the Defendant cannot be found guilty of the facts charged in the instant case, the lower court erred by misapprehending the legal principles or misapprehending the legal principles.

(2) The point of unfair sentencing

The sentence of the court below (two years of suspended sentence in August) is too unreasonable.

B. Defendant 1

(1) Fact-finding or misunderstanding of legal principles

The monetary amount of this case is not a contribution of political funds, but a payment for the expenses related to cable broadcasting reception, and if the street is not successful, the promise was made during the return cycle, and the defendant was actually returned, and the defendant is merely a delivery agent and does not constitute the elements for the violation of the Political Funds Act. Thus, the court below found the defendant guilty of the facts charged of this case, and there is an error of misunderstanding of facts or misunderstanding

(2) The point of unfair sentencing

The sentence of the court below (two years of suspended sentence in August) is too unreasonable.

C. The prosecutor (the defendant on the grounds of unfair sentencing)

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

2. Determination

A. Summary of the facts charged in this case and the judgment of the court below

The summary of the facts charged of this case is as follows: “Defendant 2 was entrusted with the head of the election countermeasure headquarters of Nonindicted Party 1, who was going to the election of the chief executive officer of the political party of Korea held on February 18, 2006, and Nonindicted Party 1 was elected as the chief commissioner at the above election, and was in charge of the overall affairs related to the election by taking charge of the election-related affairs by taking charge of the head of the election campaign headquarters as the senior Do governor candidate at the fourth local election held on May 31, 2006, which was implemented on May 31, 2006, after Nonindicted Party 1 was elected as the chief commissioner at the 4th local election held on February 18, 2006, and Defendant 1 was the former Do governor, and

1. Defendant 2

Defendant 1, who became aware of Nonindicted 5, a patrolman on March 2006 through Nonindicted 5, was asked by Nonindicted 1 to assist in accepting the Korean cable TV ○○○○○○○○○○ broadcast in the management of the GS Group, and Nonindicted 1’s election fund was asked by Nonindicted 1, who was the actual owner of the Korean Cable TV ○○○ Broadcasting, to receive the political fund under the condition that Nonindicted 1 would win an acceptance by requesting Nonindicted 6 Chairman of the GS Group, who was the actual owner of the Korean cable TV ○○ Broadcasting, and did not pass through Defendant 1’s supporters’ association, in order to raise the fund for Nonindicted 1

On March 30, 2006, at the △△ hotel parking lot located in the Busan Dong-dong, Busan, for the purpose of election funds of Nonindicted Party 1, 100 million won in cash from Defendant 1, and around April 7, 2006, at the “phone office located in Ulsan-dong, Ulsan-gu, Seoul, for the purpose of election of the Do governor, 300 million won in cashier’s checks from the “phone office” office located in the Nam-gu, Ulsan-gu, Seoul, and around the 11st day of the same month, 30 million won in total, and 70 million won in total, and contributed funds in a manner that is not determined by the Political Funds Act;

2. Defendant 1

In the above date, at the same place, Defendant 2 contributed political funds that are not prescribed in the Political Funds Act as above, and the court below, upon taking into account the evidence presented at the time.

The above facts charged are found guilty.

B. Determination

(1) First, we examine the Defendants’ assertion to the effect that the instant money is not a political fund, since it is received as a price for a street, and it is not an election fund, in accepting the instant money in return for a solicitation to acquire cable broadcasting services, and it does not constitute political funds.

Article 45(1) of the Political Funds Act provides that a person who contributes or receives political funds in a manner not provided for in this Act shall be punished. Article 3 subparag. 1 of the same Act provides that “political funds” means party membership fees, support payments, deposits, subsidies, incidental revenues prescribed by the party constitution or party rules, and other political activities for political activities, a person who is elected through an election for public office, a candidate for an election for public office or a candidate, a supporters’ association, an executive officer of a political party or a salaried clerk of a political party, or any other person who is engaged in political activities, money, securities, or other goods provided to him/her, and expenses that are required for his/her political activities. In sum, political funds, the number of which is prohibited by the Political Funds Act, refer

Defendant 1 stated the following circumstances based on the evidence duly adopted and examined by the court below, namely, in the fourth prosecutorial statement statement (Evidence No. 459,460) and Defendant 2, in the court of the court below, that Defendant 1 requested Defendant 2 to take over the Korean cable TV ○○ broadcast from the GS group by requesting Defendant 1 to Nonindicted 1 who has a close relationship with Nonindicted 6 Chairperson of the GS group, and Defendant 2 asked Defendant 1 to provide the Korean cable TV ○○ broadcast from the GS group in return for the demand that Defendant 2 receive the instant money under the pretext of Nonindicted 1’s election fund. At that time, Defendant 2 was the head of the election countermeasure headquarters of the Do governor Do governor Do governor 1, but Defendant 2 was the head of the Simnam-do election countermeasure headquarters, and Defendant 30 million won was delivered to Nonindicted 1’s person in charge of accounting, and the remaining 400 million won was delivered to Nonindicted 1’s person who was in charge of the election campaign.

On the other hand, as acknowledged by the evidence above, Defendant 1 asked Defendant 2 to receive Korean cable TV ○○○○ broadcast from the GS group upon request from Nonindicted 1, and delivered a document of reference (the 43 pages of the trial record) stating the basis for the receipt of the Korean cable TV ○○○ broadcast and the terms of purchase, and Nonindicted 5 who introduced the Defendants was waiting at the office of the GS group head office in Seoul, and was waiting at the office of the GS group head office in Seoul, and Nonindicted 7, the non-indicted 1 and the non-indicted 1’s non-indicted 7, the non-indicted 1 and the non-indicted 1’s non-indicted 7, the non-indicted 7, who did not come back to the above place without any contact, can be deemed to have received the above money in return for the above solicitation, but in light of the legislative intent purpose of this case, the defendants cannot be deemed to have contributed to the fair disclosure of revenue and expenditure of political funds and to prevent any unlawful solicitation of political funds.

(2) Next, examining the argument that the concept of “contribution” in Article 3 subparag. 2 of the Political Funds Act does not fall under the receipt of political funds since it was promised to return the instant money if the street is not successful, but actually returned, the concept of “contribution” in Article 3 subparag. 2 of the Political Funds Act is stipulated as “all act of providing political funds,” and it is punished by explicitly stipulating that the free lending of money is deemed as a donation under the Political Funds Act. Therefore, considering the scope of the literal interpretation of the “providing” and the legislative intent of the above provision, the case of providing money and valuables by promising to return is naturally an “contribution” under the Political Funds Act.

(3) Finally, as examined in the above 2.B.(1), the Defendants’ assertion that the Defendants do not constitute the elements of an illegal receipt of political funds merely because they are the intermediate recipients, is not merely a mere delivery agent. Thus, the Defendants’ assertion in this part is without merit.

C. The point of unfair sentencing

(1) Defendant 2

The Political Funds Act strictly regulates the process of contributing political funds under the premise that anyone cannot contribute or receive political funds in a way that is not prescribed by the Political Funds Act. This is because the process of providing political funds and details of expenditure are not open to the public, and there is concern that fair economic order and social order will collapse by making a solicitation and secret offering, if used in secret room. Considering the legislative intent of the Political Funds Act and the legislative intent of the Political Funds Act, the amount of the political funds received by the defendant in this case, and the fact that the defendant denies the crime up to the trial, the nature of the crime in this case is not easy. However, in the meantime, as the head of the election countermeasure headquarters of Nonindicted Party 1, there is no evidence to deem that the defendant or Nonindicted Party 1 moved to the execution of solicitation requested by him, and some of the political funds in this case were returned as is, and some of the political funds in this case were returned to the court below, and the defendant was sentenced to a fine without compensation, and thus, he was not subject to the punishment of the defendant's unlawful profits.

(2) Defendant 1

In light of the purpose of legislation of the Political Funds Act, the size of the political funds contributed by the Defendant, and the Defendant first proposed to commit the instant crime, etc., the nature of the crime is not good, but there are circumstances to take into account as it resulted in the instant crime upon Nonindicted 7’s request. Meanwhile, the Defendant was fully returned the instant money before the instant investigation was commenced; the Defendant was a primary offender with no power, and the Defendant’s sentencing conditions, such as the Defendant’s age, character and conduct, environment, and circumstances after the instant crime, are adequate, and the sentence of the lower court against the Defendant is deemed to be too heavy or unreasonable.

3. Conclusion

Therefore, all appeals filed by the Defendants and the prosecutor are without merit, and they are dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Sang-hoon (Presiding Judge)