(영문) 대전고등법원 2014.9.19.선고 2014노132 판결

Of the acquittal portion of the judgment of the court below, the remainder of the acquittal portion and the won, excluding the five parts of the crime list attached to the court below

All convictions in the judgment of the court are reversed.

Defendant 2: (a) imprisonment with prison labor for one year; (b) imprisonment with prison labor for 10 months; and (c) imprisonment with prison labor for 8 months;

Each punishment.

However, the execution of the above punishment against the Defendants is suspended for two years from the date this judgment became final and conclusive.

Of the acquittal portion of the judgment of the court below, dismissal of the prosecutor's appeal on the part 5 attached to the judgment below

Reasons

Summary of judgment

A person shall be appointed.

1. Summary of grounds for appeal;

A. Defendant A

(1) misunderstanding of facts

The defendant headA has not conspiredd to contribute political funds in relation to this BB, CC and solicitation.

The defendant head of the regional headquarters (DD, ParkE, MaF, LG), or the president of the president of the Council (HH and KimJ) did not know that the president of the regional headquarters (H and KimJ) made a solicitation to a member of the National Assembly, and there was no fact that the president directly made a solicitation related to the Credit Unions Act to the members of the National Assembly.

(2) Legal principles

(A) The legal principle of the case (Supreme Court Decision 2010Do11030 Decided January 27, 201) presented by the court below was followed by each violation of the Political Funds Act as to the list 1 (No. 20 through 43, 103 through 105, 160 through 163, 165 through 196), 2 (No. 170 through 241), and 2 (No. 170 through 241) of the list of crimes attached to the court below. The court below held the scope of liability where one of the co-principals presented by the court below (Supreme Court Decision 2010Do1030 Decided January 27, 201) takes place as additional action to the extent that it can not be included in the category of co-principals. However, since the above legal principle cannot be applied as it is to this part of the facts charged, it is difficult to view that Defendant 2, Defendant 2, and CC could have predicted any additional political funds made contributions.

(B) In order to establish a crime of violating the Political Funds Act under Article 32 subparag. 3 of the Political Funds Act, there must be an explicit or implied solicitation by a donator of political funds. Furthermore, the details of solicitation should be illegal or unjust. In the event of unlawful or unjust conduct, a contribution of political funds should be made in return for a solicitation. However, there is sufficient evidence by the prosecutor regarding the following: (a) the fact that there was a solicitation by Defendant A and Defendant BB, and ChoCC; (b) the content of solicitation was illegal or unreasonable; and (c) the fact that the donation of political funds was made in return for a solicitation.

(3) Unreasonable sentencing

The sentencing of the court below on the defendant headA (two years of suspended sentence for one year of imprisonment) is too unreasonable.

B. The public prosecutor (for the defendants):

(1) misunderstanding of facts or misapprehension of legal principles

(A) In relation to the violation of each of the Political Funds Act regarding the annexed list 5 of the lower judgment, according to the evidence submitted by the Prosecutor, the fact that the Defendants participated in the contribution of political funds to a member of the National Assembly.

( 나 ) 원심 별지 범죄일람표 4, 12, 14 내지 17에 관한 각 정치자금법위반의 점과 관련하여, 검사가 제출한 증거에 의하면 피고인들이 신협법 개정과 관련한 구체적인 청탁을 전제로 우◆◆, 조▶▶, 홍●●, 이△△, 고◎◎, 박◆◆ 의원에 대한 정치자금 기부행위를 하였다고 봄이 상당하다.

(C) Regarding the violation of each of the Political Funds Act on the list of offenses attached to the court below (No. 93 through 109, No. 122 through 125), 10 (No. 79 through 87), 13 (No. 30 through 38), and 20 (No. 24) of the list of offenses attached to the court below, according to the evidence submitted by the prosecutor, it is reasonable to view that the political funds specified in each of the facts charged were made according to the request for sponsoring the Federation and each of the relevant regional headquarters under the involvement of the Defendants.

(D) Regarding the violation of each of the Political Funds Act due to organization-related funding contributions, according to the evidence submitted by the prosecutor, each of the political funds contributions of this case only does not belong to the new cooperation and is substantially identical to the case where the new cooperation raises funds and actually contributed funds, it is reasonable to view that Defendant 5 has contributed political funds with "funds related to organization".

(2) Unreasonable sentencing

The lower court’s sentencing against the Defendants (this case’s B: two years of suspended sentence in October, and two years of suspended sentence in August: Defendant ChoCC) is too unhued and unfair.

2. Judgment on the grounds for appeal by Defendant 2A’s mistake of facts and misapprehension of legal principles

A. Prosecution’s indictment and summary of the judgment below

(1) Prosecutions

The prosecutor summarizedd the contents of support for each member of the National Assembly subject to support for political funds in accordance with the attached list 1 to 20 of the original judgment. The prosecutor contributed the political funds (violation 2 of Article 31 of the Political Funds Act) to the funds related to the mutual cooperation, which is the organization, by allowing the said executives and employees to contribute a fixed amount of money as shown in the attached list 1 to 20 of the original judgment, and at the same time, contributed the political funds (violation 3 of Article 32 of the Political Funds Act) to the public official in relation to the affairs in charge and the affairs in charge of the public official.

(2) Summary of the judgment below

On the other hand, the court below found only guilty of the violation of the Political Funds Act due to the solicitation related to the attached Table 1, 2, 3 (number 1 through 92, 110 through 121 in order), 6 through 9, 10 (number 1 through 78 in order), 11, 13 (number 1 through 29 in order), 18, 19, 20 (number 1 through 23, 25 through 5 in order), and found the guilty of the violation of the Political Funds Act, which was committed with money related to the organization related to the rest of the donation related to the solicitation, and the violation of the Political Funds Act, which was committed with money related to the organization.

The summary of the judgment of conviction is as follows: (1) Defendant A conspireds to contribute political funds in connection with Defendant BB and ChoCC; and (2) the Defendants are in charge of functional control over the contributions of additional political funds by the executives and employees of Gyeongnam-Nam-Nam-Nam-Nam-Nam-Nam-Nam-Nam-Nam-Nam-Nam-Nam-Nam-Nam-Nam-Nam-Seoul, as well as the implied conspiracys about the contributions of additional political funds (Article 1 (Articles 20 through 43, 105 through 163, 160 through 163, 165 through 196) of the List of Offenses in Attached to the judgment of the original instance; (3) it is reasonable to deem that the contributions of political funds by the executives and employees of the Manuri-Nam-Nam-Seoul-Seoul-Seoul-Seoul-Seoul-Seoul-Seoul-Seoul-Seoul-Seoul-Seoul-Seoul-Seoul-Seoul-U.S. 32 of the Political Fund Act without any unlawful solicitation (Article 32 of the Political Funds Act).

The summary of the judgment of innocence portion is as follows: (1) the Defendants are related to the violation of the Political Funds Act due to the solicitation; (5) the Defendants conspired with respect to the contribution of political funds to ○○○○○○○ members; and (4) the Defendants’ contribution of political funds on the basis of the fact that functional control over the contribution of political funds (in contrast to the request of the National Federation of New Cooperatives, the part which is intended to be discussed by the executives and employees of the relevant regional headquarters). (2) The part of the attached Table 4, 12, 14 through 17 of the judgment of the court below is likely to be recognized to have contributed political funds on the premise that the Defendants made the contribution of political funds to the relevant members of the National Assembly on the premise of the Gu’s physical solicitation (the part which appears that the Defendants or new cooperatives did not hold a separate meeting or management plan during the pertinent period, and it is difficult to hold the National Federation’s request for the contribution of political funds on the basis of a violation of the attached Table 3 (10 through 10,122 through 37).37).

B. Regarding the assertion of mistake of fact

A co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, such as the implementation of a crime through the performance of a crime by acting as a functional act by a co-principal and his/her co-principal. As such, a person who did not directly share and implement the constituent act among the competitors may be held liable for the so-called crime as a co-principal depending on whether he/she satisfies the above requirements. Meanwhile, in order to be recognized as a co-principal by a conspiracy who did not directly share and implement the constituent act as a co-principal by taking into account the status and role of the conspiracy in the entire crime, control of the progress of the crime, and the influence of the crime, etc., in order to be recognized as a co-principal, he/she does not merely act as a mere conspiracy, but rather act as a functional act by an essential contribution to the crime (Article 2010Do3544, Jul.

Meanwhile, in relation to co-offenders who are jointly engaged in a crime, a conspiracy does not require any legal penalty, but is a combination of two or more persons to jointly process a crime and realize the crime. Thus, even if there was no process of the whole conspiracy, and even if there was no possibility of such conspiracy, a conspiracy is established if the agreement is reached in order or secretly through several persons, and even if there was no direct involvement in the conduct, the conspiracy is criminal liability as a co-principal for the act of another conspiracy even if there was no direct participation in the conduct of the crime. Such conspiracy may be acknowledged in accordance with the circumstantial facts and empirical rules, even if there was no direct evidence (see Supreme Court Decision 2004Do5494, Dec. 24, 2004).

In light of the circumstances indicated in its reasoning, the lower court determined that Defendant A conspired to contribute political funds relating to solicitation in sequence with Defendant BB, ChoCC, and that Defendant BB, and ChoCC directly participated in the commission of the instant crime through evidence duly admitted and investigated, upon the request of the revision officer of the New Cooperation Act, or upon receiving the Defendants’ instructions from the head of the regional headquarters (DD, FF, Park E, LG, LG), the chief director of the regional headquarters (HH and JJ), and the chief director of the headquarters (H and JJ) of the Political Committee (H and KimJ) to request the revision officer of the New Cooperation Act or its assistant officer.

Examining the reasoning of the judgment below in light of the above legal principles and records, the judgment of the court below is acceptable, and it is difficult to see that there is an error of mistake of facts alleged in the grounds of appeal

C. As to the assertion of misapprehension of legal principles

(1) Whether a co-principal with respect to additional political fund contributions has been established

In the case of co-principals, in light of all the circumstances, such as the means and attitudes of the crime, the number of participants and their inclinations, the time and the characteristics of the place where the crime was committed, the possibility of contact with others in the course of the crime, the possibility of contact with others, and anticipated or sufficiently anticipated other incidental crimes in the process of the crime, even though they were able to commit the crime through the conspiracy or to achieve the purpose, they did not take any reasonable measures sufficient to prevent the crime, and eventually, if the crime was anticipated to occur, then they would have been committed without taking any reasonable measures sufficient to prevent the crime, then even if there was no contact with them as to one of the derivative crimes, they should be deemed that the functional control over the crime exists as well as implied conspiracy for the entire crime (see Supreme Court Decision 2010Do1030, Jan. 27, 2011).

원심은 그 판시와 같은 사정을 종합하여 피고인들 사이에 경남 소재 신협 임직원들 에 의한 이☆☆, 허★★ 의원에 대한 추가적인 정치자금 기부에 관하여도 암묵적인 공 모는 물론 그에 대한 기능적 행위지배가 존재한다고 봄이 상당하다고 판단하였다.

Examining the reasoning of the judgment below in light of the above legal principles and records, the judgment of the court below is acceptable, and it is hard to see that there is an error of law by misapprehending the legal principles as alleged in the grounds for appeal (in the crime of this case committed by indirect principal offender, the abnormal personnel of the head office in Busan metropolitan area headquarters is only one of the persons involved in the implementation of political fund contributions, and thus, the above abnormal personnel is not included in the category of joint principal offenders, even if they are not included in the category of joint principal offenders, it does not affect the conclusion of joint principal

(2) Requirements for establishing a crime of violating the Political Funds Act under Article 32 subparagraph 3 of the Political Funds Act

As long as a public official is unable to contribute or receive political funds in relation to solicitation or mediation, as long as he/she has contributed or received political funds in relation to such solicitation or mediation, the crime of violation of Article 32 subparag. 3 of the Political Funds Act is established. The fact that the solicitation or mediation belongs to the scope of the duty of a person who received the relevant political funds, and further the details of solicitation or mediation are not illegal or unjust, or that the relevant political fund contribution was made within the scope of the procedure and scope prescribed by the Fixed-term Fund Act (see Supreme Court Decision 2007Do7204, Sept. 11, 2008).

Based on the circumstances stated in its holding, the lower court determined that the crime of violating the Political Funds Act cannot be deemed as established inasmuch as the act of solicitation is not necessarily required in order to establish the crime of violating the Political Funds Act under Article 32 subparag. 3 of the Political Funds Act, and the political funds are contributed on the premise that the act of solicitation is to be carried out, and so long as the aforementioned act of solicitation related to the division of the political funds is established, it cannot be deemed that the crime of violating the Political Funds Act cannot be deemed as established only when the act of solicitation related to the division

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and the language content of Article 32 subparag. 3 of the Political Funds Act, and the purport of the provision on the restriction on donation under Chapter VI of the Political Funds Act, the lower court’s determination is acceptable, and it is difficult to see that there is an

3. Judgment on the prosecutor's grounds for appeal for mistake of facts or misapprehension of legal principles

A. As to the violation of the Political Funds Act as to the list of crimes attached to the judgment below

In the case of co-principals, the method and form of crime, the number of participants and their inclinations, the time and characteristics of the place of crime, the possibility and anticipated reaction with others during the course of the crime, etc. In addition, even though the conspiracys could have anticipated or sufficiently anticipated other crimes in the process of the conspiracys to be derived from the crimes, they did not take any reasonable measures sufficient to prevent such crimes, and eventually, if there was an anticipated crime, even though they did not have any contact with each other, they should be deemed to have a functional control over all the crimes (see Supreme Court Decision 2010Do11030, Jan. 27, 2011).

The lower court held that, unlike the request, it is difficult to view that there was a fact that the Defendants or the members of the Daejeon District Headquarters, when requesting the support of the members of the Ma○○○○○, reported the fact that the Defendants or the members of the Daejeon District Headquarters reported the fact that there was a conspiracy of political funds contributions to the Ma○○○○ Assembly members, or that there was a functional control over the functional act thereof, on the sole basis of the fact that there was no evidence suggesting that there was no other evidence to deem that the executives and employees of the Ma○○○ National Headquarters of the Daejeon District Headquarters would have expected or could have anticipated the decision to jointly support the members of the Ma○○ Assembly.

Examining the reasoning of the judgment below in light of the above legal principles and records, the judgment of the court below is acceptable, and it is hard to see that there was an error of misconception of facts or misapprehension of legal principles as alleged in the grounds of appeal.

B. Violation of each of the Political Funds Act as to the list of crimes attached to the court below's judgment 4, 12, 14, and 17

(1) Summary of the facts charged

In collusion, the Defendants contributed political funds with funds related to the association, as stated in the table of crime Nos. 4, 12, 14, and 17 of the judgment below. They oppose the amendment of the New Cooperation Act submitted by the Government at the same time, and proposed the amendment of the New Cooperation Act prepared by the National Federation in its own initiative, or contributed political funds in relation to the solicitation to be passed by the National Committee of the National Committee of the National Committee.

(2) The judgment of the court below

The lower court found all of the charges guilty on the following grounds.

(A) the violation of the Political Funds Act due to the donation relating to the solicitation.

1) Whether the requirement for establishment of a crime of violation of Article 32 subparag. 3 of the Political Funds Act is necessary, and whether the “deposit” is necessary

However, Article 32 subparag. 3 of the Political Funds Act provides that "no political fund shall be contributed or received in connection with the affairs of a public official in charge or handling political funds." If "political funds are contributed on the premise of solicitation in the language and text," it is interpreted that the crime of violating Article 32 subparag. 3 of the Political Funds Act is established (e.g., in the case of breach of trust and misappropriation, which is an element of solicitation, the existence of solicitation is stipulated that a person who administers another's affairs will acquire property or property benefits through an unlawful solicitation in connection with his/her duties). ② strict regulations on political funds are derived from the reflection of the actual state of our political funds that were connected with the denial and corruption of the number of previous political funds, and ③ Article 32 subparag. 3 of the Political Funds Act prohibits a public official from receiving political funds in charge of handling political affairs at the same time on the premise that there is no possibility that a public official is an unlawful solicitation, even if there is no legally binding influence on the execution of a crime, and thus, it does not necessarily mean that there is an unlawful act of political funds for the establishment of a political fund.

2) The meaning of "in connection with solicitation" under Article 32 (3) of the Political Funds Act

However, even if the actual solicitation is not considered to exist, the current Political Fund Act adopts the system for raising political funds based on a small number of individual donors, and as seen earlier, the contribution of political funds to a specific political person is at the same time a support and support for his political activities and at the same time an intent or possibility of exercising influence over the political person, and if the meaning of “compacting and promoting” is recognized to be excessively widened, it is difficult to deem that a donator has made a contribution of political funds in connection with the matters belonging to the duties of the public official by maintaining a good relationship with the recipient of political funds to a certain extent without any specific solicitation. However, it cannot be deemed that a donator has made a contribution of political funds in relation to the solicitation, on the basis of the fact that a donator made a contribution of political funds to a certain extent that it is not likely to receive any assistance or incur any loss in connection with the matters belonging to the duties of the public official by maintaining a good relationship with the recipient of political funds through such contributions.

3) Whether the political funds have been contributed in connection with the solicitation

원심이 적법하게 채택하여 조사한 증거들에 의하여 인정되는다음과 같은 사정 즉, ① 피고인들 또는 신협 직원들이 정치자금이 기부된 2010년 7월경 ~ 8월경을 전후하여 신협법 개정과 관련한 청탁을 위하여 우◆◆, 조▶▶, 홍●●, 이△△, 고◎ ◎ , 박◆◆ 의원4)(이하 합쳐서 '이 사건 의원들'이라 한다)이나 그들의 보좌관 등을 만 난 사실이 인정되지 않는 점, ② 신협 서울지역본부장 박EE은 신협 중앙회에서 하달된 연고 국회의원 관리방안에 따라, 연고자를 통한 국회의원 면담을 추진하였는데, ① 홍 ●●, 이△△ 의원은 연고자가 없어서 면담 자체를 시도하지 못하였고, ㉡ 고◎◎ 의원 은 신협의 개정안이 확정되기 전에는 만나봐야 의미가 없다면서 면담을 거부하였던 점 (수사기록 1440면), ③ 신협중앙회에서 신협법 개정 업무를 전담하는 법개정추진반의 정인철은 2010. 6. 17. 각 지역본부 신협 직원 등에게 국회의원의 접촉은 별도의 지침 이 있기 전까지 중지하라는 취지로 메일을 보낸 점 (수사기록 850면), ④ 이후 신협중앙 회나 각 지역본부에서 이 사건 의원들에 대한 면담이나 관리 계획을 별도로 세우지 않 은 것으로 보이는 점, ⑤ 이☆☆ 의원이 대표 발의한 신협법 개정안과 관련하여, 이 사 건 의원들이 발의 의원에 포함되지 않았고 (수사기록 108면), 위 발의에 참여 의사를 가 진 의원도 아니었던 것으로 보이는 점(수사기록 별책 3-2 476면 ~ 478면 ) 등을 종합하 면, 피고인들은, 이 사건 의원들이 신협법 개정을 담당하는 국회 정무위 소속으로서, 정치자금을 기부하면, 위 의원들이 법안심사나 법안의결 과정에서 신협에 대하여 우호 적인 입장을 가지거나 적어도 적대적인 태도를 보이지 않을 것이라는 정도의 막연한 기대감 속에 정치자금을 기부하였고, 이 사건 의원들도 기부자 이름에 '신협' 표기가 부가되거나, 기부자들이 정치자금 영수증 수령처를 신협 사무실로 하여, 신협과 관련된 정치자금 기부자들이 위와 같은 기대를 하고 정치자금을 기부하였으리라는 것을 짐작 할 수 있었다는 사정만이 인정될 뿐, 검사가 제출한 증거만으로는 피고인들이 구체적 인 청탁을 전제로 하여 이 사건 의원들에게 정치자금을 기부하였다고 인정하기 부족하 고, 달리 이를 인정할 만한 증거가 없다.

(B) Violation of the Political Funds Act due to organization-related funding contributions

The evidence submitted by the prosecutor alone is insufficient to deem that the fund raised and raised by a person or organization of the law can be disposed of or at least the same time the fund raised and raised by a person or organization is equivalent by actively participating in the raising, raising, and raising funds for each political fund of this part, and there is no other evidence to acknowledge this otherwise.

(3) Judgment of the court below

(A) the violation of the Political Funds Act due to the donation relating to the solicitation.

The judgment of the court below is not acceptable for the following reasons.

1) The meaning of "the elements of a crime of violation of Article 32 subparagraph 3 of the Political Funds Act" and "act of solicitation"

As decided by the court below, Article 32 subparagraph 3 of the Political Funds Act provides that "no person shall contribute or receive political funds in connection with the conduct of solicitation by a public official in connection with the affairs that a public official takes charge of or manages," it is interpreted that the elements of such interpretation are "related to the affairs of a public official," "related to solicitation," and "contribution of political funds," and "the existence of solicitation" is not necessarily required (e.g., where the existence of solicitation is a constituent element of breach of trust, "the person who conducts another's affairs in receipt of an unlawful solicitation" in relation to his/her affairs). Such interpretation is consistent with the legislative intent to strictly regulate the act of donation related to the act of donation that is specified in accordance with the current Political Funds Act in the reflect on the actual state of our political funds that are linked with the denial and failure of the number of previous political funds.

In addition, in determining the relationship between solicitation and solicitation among the above elements, it should be comprehensively taken into account whether the relevant politician was actually engaged in solicitation at the time of the formation of the relevant political fund, whether the relevant politician was a pending issue related to the relevant donator during the process as a public official, whether the donor was planned or intended to make contributions in consideration of the resolution of the pending issue in question.

2) Whether the political funds have been contributed in connection with the solicitation

A) Facts of recognition

According to the evidence duly admitted and investigated by the court below, the following facts are recognized:

(1) On December 29, 2008, the Financial Services Commission submitted to the National Assembly a partial amendment of the Credit Unions Act, which shall strengthen the independence of standing directors for each business sector, and instead reduces the number of internal directors from members of the Federation, which shall include the prevention of the use of external experts as professional directors, in order to improve soundness in the management of the Federation.

② In order to revise the Credit Union Act according to their wishes, the National Federation of Korea to which the Defendants belongs, recognized that cooperation among the National Assembly members belonging to the National Assembly of Korea, which is the competent standing committee for the promotion of the amendment of the Credit Union Act, is essential. From March to November 2010, the National Assembly requested that the National Assembly members belonging to the National Assembly, who met the National Assembly members of the National Assembly or contact the members of the National Assembly in accordance with the plan formulated in advance, and request the National Assembly members of the National Assembly to propose any amendment of the Credit Union Act made by the National Assembly members of the National Assembly, directly or through the persons related to the credit union, or through the persons related to the credit union, and requested that the National Assembly members of the National Assembly, local headquarters employees of the National Assembly, and unit union employees of the National Assembly should deposit 10,000 won to the National Assembly members' supporters' association belonging to the National Assembly members of the National Assembly, but the National Assembly sent a list of the sponsor to provide support funds to the National Assembly members of the National Assembly members' association, and provide them with receipts.

3 법개정추진반의 정인철은, @2010.6.29. 각 지역본부 및 중앙회 직 원들에 대하여 허★★, 이☆☆, 김■■, 이 , 우◆◆, 배◎◎, 박○○ 의원에 대한 정 치자금 기부를 요청( 이하 '1차 후원요청'이라 하고, 그 요청에 따라 이루어진 정치자금 기부를 '1차 후원'이라 한다)하였고, ⑥ 2010. 8. 16. 각 지역본부 및 중앙회 직원들에 대하여 이☆☆, 조△△, 조▶▶, 이 ▼▼, 신 , 홍◁◁, 홍●●, 이△△, 고◎◎, 박◆◆, 이○○, 권♤♤, 김ET 의원에 대한 정치자금 기부를 요청(이하 '2차 후원요청'이라 하 고 , 그 요청에 따라 이루어진 정치자금 기부를 '2차 후원'이라 한다 )하였는데, 이 사건 의원들은 모두 국회 정무위원회 소속으로 위 1, 2차 후원요청 대상에 포함되어 있었다.

④ In accordance with the above-mentioned 1, 2, 14 through 17, the employees of the New Cooperatives Federation, the staff of the regional headquarters (branch), and the unit employees of the National Assembly members of the National Assembly from July 2010 to August 17, 2010 shall deposit 10,000 won per head of the relevant National Assembly member’s supporters’ association as well as 10,000 won per head of the crime committed in attached Table 4, 12, 14 to the National Assembly members’ association, and the list of sponsors shall be sent to the office of the relevant National Assembly member’s supporters’ association and the receipt place thereof shall be entered in the new union.

B) Determination

In accordance with the above facts, at the time of the Defendants’ donation of the instant support fund to its employees, the instant members were in charge of the affairs related to the process of the amendment of the New Cooperation Act as a member of the National Assembly of Korea (the connection with their duties). At that time, the amendment of the New Cooperation Act was a pending issue related to the National Federation to which the Defendants, who were donors, belong (independent pending issues). In mind of the amendment of the said New Cooperation Act, the Defendants planned to make a contribution act in advance or intended to provide the support fund in advance through the 1,2 sponsoring the time, object, method, etc. to be treated favorable to them, and the fact that the Defendants provided the support fund in the process of receiving the receipt of the support fund was known to the instant members (i.e., intention or planned).

The lower court cited the following facts: (a) the Defendants or the employees of the New Cooperative, on the grounds of denying the relevance to solicitation, are not found to have met this member’s or their assistants; (6) certain members have not attempted to hold an interview themselves; (3) some members have refused to hold an interview; (4) the National Assembly member’s contact with each member on June 17, 2010 was sent to the National Assembly member before the new Cooperative Federation or each local headquarters issued separate guidelines; (1) it appears that the New Cooperative Act’s amendment proposed by the members of the Seoul Special Self-Governing Province was not included as the member of the National Assembly; and (c) it appears that the instant member of the National Assembly was not included as the member of the National Assembly; and (d) there was no intention to participate in the said proposal. However, insofar as there was no “the existence of an act of solicitation in violation of Article 32 subparag. 3 of the Political Funds Act”, it is difficult to view that there was any reason to deny the relation between the instant member’s act of solicitation or donation to the Defendants.

3) Sub-determination

Therefore, the judgment of the court below which acquitted this part of the facts charged is erroneous in misconception of facts or legal scenarios.

(B) Violation of the Political Funds Act due to organization-related funding donation

Examining the reasoning of the judgment below in light of the records, the judgment of the court below is acceptable, and it is difficult to see that there is an error of mistake of facts or misapprehension of legal principles as alleged in the grounds of appeal (see the first 3-D part).

C. As to the violation of each of the Political Funds Act relating to the list 3 (No. 93 through 109, No. 122 through 125), 10 (No. 79 and part No. 87 within 79), 13 (No. 30 through 38), and 20 (No. 24) annexed to the lower judgment

The lower court found the Defendant not guilty of each public prosecutor’s office in this part on the grounds that the possibility of each political fund contribution was made regardless of the request for the support of the NFF and the relevant regional headquarters, in full view of the circumstances as indicated in its holding (in particular, the fact that each political fund contribution was made at the end of 2010 after about 4-5 months from the period of request for the support of the NFF and that each local headquarters and the employees of the NFF requested each regional headquarters and each regional headquarters to provide support from July to August 2010) cannot be ruled out.

Examining the reasoning of the judgment below in light of the records, the judgment of the court below is acceptable, and it is hard to see that there is a mistake of facts or an error of law as alleged

Therefore, the prosecutor's assertion on this part is without merit.

D. As to the violation of each of the Political Funds Act due to organization-related funding contributions

Article 31(1) of the Political Funds Act provides that "no foreigner, domestic or foreign corporation or organization shall grant any political funds." Paragraph (2) provides that "no person shall grant any political funds from any domestic or foreign corporation or organization." The purport of the Political Funds Act prohibiting any corporation or organization from contributing any political funds is to block any act detrimental to the exercise of sound political influence and the fair election of any corporation or organization, etc., and to prevent any distortion of the intent of any corporation or organization members. As such, "funds related to any corporation or organization" under Article 31(2) of the Political Funds Act refers to funds which are able to give contributions according to the decision-making of such corporation or organization. In addition, in light of the language and purport of these provisions, funds raised by such corporation or organization in its name shall be deemed 00 or more funds raised by such corporation or organization, such as funds raised by such corporation or organization, to the extent that such funds are to be raised in the same manner as funds raised by such corporation or organization are to be raised, and it shall be deemed that such funds are either a fund-raising-raising-related to any corporation or organization.

The lower court determined that the evidence submitted by the prosecutor alone, based on the circumstances stated in its holding, is insufficient to view that the fund raised and raised by the new Cooperatives Federation can be disposed of by corporations or organizations or at least the same time as the fund can be disposed of by such corporations or organizations with the leading and active involvement in raising, raising, and raising the contribution funds.

Examining the reasoning of the judgment below in light of the above legal principles and records, the judgment of the court below is acceptable, and it is hard to see that there was an error of mistake of facts or of misapprehension of legal principles as alleged

Therefore, the prosecutor's assertion on this part is without merit.

4. Conclusion

Therefore, the appeal by the prosecutor about the part of the judgment of the court below (the point of violation of each Political Fund Act due to each contribution made in relation to solicitation in annexed Table 4, 12, 14 through 17) is well-grounded, and the part of the judgment of the court below against the guilty (the part of annexed Table 1, 2, 3 (the 1 through 92, 110 through 121), 6 through 9, 10 (the 1 through 78), 11, 13 (the 1 through 29 parts), 18, 19, 20 (the 1 through 23, 25 through 55), 20 (the 1 through 47) of the judgment of the court below) of the court below is reversed on the 20th 1 to 37th 17th scirical relation (the 20th 3th scirical relation) of the above acquittal and the 2th 3th scirical relation of the Political Fund Act.

Therefore, without examining the grounds for appeal of unfair sentencing by Defendant A and the prosecutor’s grounds for appeal of unfair sentencing, all of the remaining parts except the part of acquittal (the part on the attached list 5 of the original judgment) among the judgment of the court below under Article 364(2) and (6) of the Criminal Procedure Act shall be reversed, and the remaining part of the judgment of the court below shall be decided as follows. The prosecutor’s appeal against the remaining part of acquittal (the attached list 5 of the original judgment) among the judgment of the court below is without merit. Thus, it shall be dismissed under Article 3

Criminal facts and summary of evidence

Except for the cases in which part 10, 13 through 16 of the lower judgment is dismissed as follows, each of the relevant parts of the lower judgment shall be as follows:

“criminal sight table 1, 2, 3 (number 1 to 92, 110 to 121 parts), 4, 6 through 9, 10 (number 1 to 78 parts), 11, 12, 13 (number 1 to 29 parts), 14 through 17, 18, 19, 20 (number 1 to 23, 25 to 55 parts) as shown in the same name as in the supporters’ association of 19 National Assembly members belonging to the Political Committee.”

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Defendants: Articles 45(2)5 and 32 subparag. 3 of the Political Funds Act; Articles 30 and 34 of the Criminal Act

Paragraph 1, Article 31, Paragraph 1,7) (Article 31, Paragraph 1, 7), covering each member of the National Assembly subject to the contribution of political funds,

1. Aggravation for concurrent crimes;

Defendants: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act

Punishment for the violation of the Political Funds Act due to the contribution of political funds to the National Assembly member

Criminal Aggravation)

1. Suspension of execution;

Defendants: Article 62(1) of the Criminal Act (General Considerations favorable to the reasons for sentencing as follows)

Reasons for sentencing

Considering the fact that the Defendants planned the commission of the crime in advance and solicited the members of the National Assembly in order to revise the Act on the Credit Union, and let the executives and employees of the National Assembly pay small-amount support payments to the members of the National Assembly, the small-amount support payment system is ultimately preserving the small-amount support payment with the national tax for the purpose of developing the political culture through the small-amount large-sum sponsor, but the Defendants abused it, and the Defendants’ trust in the fairness and integrity of the members of the National Assembly directly selected by the people due to the Defendants’s criminal act and the transparency of the legislative process was injured, it is necessary to punish the Defendants strictly.

However, considering all the circumstances, such as the fact that the Defendants did not have any history of criminal punishment, the Defendants did not commit the instant crime under the influence of personal benefits, and the Defendants appears not to have been aware of the punishment for the instant crime, the sentence identical to the order shall be determined.

Parts of innocence

1. Of the facts charged against the Defendants, each violation of the Political Funds Act due to a solicitation-related donation relating to the 3 (No. 93 through 109, 122 through 125), 10 (No. 79 through 87), 13 (No. 30 through 38), and 20 (No. 24) of the attached Table of the court below’s decision

A. Summary of the facts charged

The Defendants conspired to make a contribution of political funds as stated in the list of crimes attached to the judgment below (Nos. 93 through 109, 122 through 125), 10 (No. 79 through 87), 13 (No. 30 through 38), and 20 (No. 24). The Defendants opposed to the amendment of the New Cooperation Act submitted by the Government during the amendment of the New Cooperation Act, and made a contribution of political funds in relation to proposing the amendment of the New Cooperation Act prepared by the National Federation itself or soliciting to be passed by the Political Committee.

(b) judgment;

As examined in Section 3-C (C) of the judgment on the grounds of appeal above, it is insufficient to view this part of the facts charged solely with the evidence submitted by the prosecutor that the facts charged were proven without any reasonable doubt, and there is no other evidence to acknowledge this portion of the facts charged. Thus, this part of the facts charged constitutes a case where there is no evidence of crime, but inasmuch as the court found the Defendants guilty of the violation of each Political Fund Act as stated in the judgment regarding

2. Of the facts charged against the Defendants, each violation of the Political Funds Act due to the contribution of funds to organizations related to the list of crimes listed in the attached Table 1 to 4, 6, and 20 of the judgment below

A. Summary of the facts charged

The Defendants conspired to contribute political funds in collusion with the Defendants to contribute a fixed amount of money, such as the list 1 to 4, 6, and 20 of the list of crimes attached to the lower judgment, and contributed political funds to the organization’s new funds.

B. Determination

As examined in Section 3-D. of the above grounds for appeal, the evidence submitted by the prosecutor alone is insufficient to deem that the fund raised and raised by a corporation or organization can be disposed of by itself or at least the same time can be presented by it by actively participating in the raising, raising, and raising funds for each political fund. There is no other evidence to acknowledge this otherwise.

Therefore, this part of the facts charged should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act because it constitutes a case where there is no proof of a crime. However, as long as the court found the Defendants guilty of each violation of the Political Funds Act as stated in the holding that there is an ordinary concurrent relation, the judgment of not guilty shall not be

Judges

The principal offender (Presiding Judge)

Kim Jin-ray

Long-term Private Telecommunication

Note tin

1) The part of part 4. Paragraph 4 of the judgment of the court below is written as the judgment on the part of the annexed list of crimes, but this is written as the order of judgment No. 32.

A method of determining only the remaining parts except the parts judged not guilty in relation to the violation of the Political Funds Act under subparagraph 3 of Article 3;

As a result, it is judged that the attached list 1 to 20 is the whole.

2) Article 32 subparag. 3 of the Political Funds Act is applicable to the reasoning of the Supreme Court Decision 201Do8649 Decided October 31, 2013, which is cited by Defendant A’s defense counsel.

(b) The expression "which is subject to the prohibition of both solicitation and good offices by stipulating "not only", but also in the context before and after such a request, as the context requires.

The difference between the ‘deposit' and the ‘Mediation' is that the donor solicits for the affairs of directly taking charge of and handling the political funds by the public official who has received such political funds.

In relation to the act of contributing political funds, it would also violate the above provision."

It is difficult to regard it as a ruling premised on the existence of solicitation.

3) A member was a member of the National Assembly of Korea, but is subject to the request for 1 and 2 support to each regional headquarters of the National Assembly of the National Federation and its employees.

was not included.

4) In the order of the court below, members of the National Assembly related to 4,12,14 through 17 are the list of crimes attached to the court below.

5) As seen earlier, the existence of a “act of solicitation” is not necessarily required as an element of a crime of violating Article 32 subparag. 3 of the Political Funds Act, but it is in room.

If there is a solicitation, it will be one kind of flexible circumstance that can recognize ‘the relevance of solicitation'.

6) Ultimately, the court below affirmed the relevance to solicitation and found guilty, and the contribution of political funds to the members of this case.

shall be subject to the first and second request of the National Assembly of Korea as a member of the National Assembly of Korea, and the timing and time of each contribution;

Since the methods, attitudes, etc. are identical and all are related to the processing of the amendments to the new cooperation law, there seems to be no other circumstances to deal with them.

The members of the instant case are also subject to large interviews inasmuch as they are not clearly related to their duties, pending issues, intended intent, and planned as above.

It is not reasonable to change the judgment on whether or not a request has been made or not.

7) Contribution to a specific member of the National Assembly in relation to the solicitation of the public official’s affairs

for the sole purpose of making such payments to the new union officers and employees not aware of the fact

The defendants shall be held liable as an indirect offender, and the defendants shall not exercise their right of defense substantially.

As there is no risk of causing interest, it shall be recognized ex officio without changing the indictment.

심급 사건

대전고등법원 2014.9.19.선고 2014노132

-대법원 2015.4.23.선고 2014도13148

참조조문

-신용협동조합법

-정치자금법

-정치자금법 제31조 제1항