2019Do3598 A. Violation of the Political Funds Act

(b) Violation of the Public Official Election Act;

1. (a) and (b);

A -

2.(a)(b)

B

(A)

A person shall be appointed.

Defendants and Prosecutor (Defendant A and B)

Initial Law Firm (for Defendant A and B)

Attorney Lee Dong-tae, Lee Hong-ho, Gyeong-ju

Attorney Ansan-ho (for Defendant C)

Seoul High Court (Chuncheon) Decision 2018Do119 Decided February 20, 2019

October 31, 2019

All appeals are dismissed.

The grounds of appeal are examined.

1. Judgment on the grounds of appeal by the prosecutor

A. Violation of the Political Funds Act in relation to the accounting report due to illegal receipt of X wages

The lower court rejected the Prosecutor’s assertion of misapprehension of the legal doctrine, on the ground that each crime committed on January 10, 201, January 31, 2012, and May 11, 2012, which was committed on May 11, 201, by the accounting report date, constituted a separate crime at the time of accounting report, and each crime constitutes concurrent crimes.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on the judgment on the number of crimes.

B. Violation of the Political Funds Act and violation of the Public Official Election Act due to the act of making a contribution to the rent due to the payment on a monthly basis of AR

The court below reversed the judgment of the first instance court that found this part of the facts charged as having no proof of crime and found the defendant not guilty.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on receipt of political funds and contributions

C. Violation of the Political Funds Act due to illegal acceptance of Defendant B’s benefits

The lower court reversed the judgment of the first instance court that found Defendant A and B guilty of this part of the facts charged and dismissed this part of the prosecution on the grounds that this part of the facts charged was not specified and the proceedings for prosecution were invalid due to the violation of the law.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err by misapprehending the legal doctrine on the specification of the facts charged, as otherwise alleged in the grounds of appeal

2. Judgment on Defendant A’s grounds of appeal

A. Violation of the Political Funds Act (1) Recognition of the portion of the receipt of illegal political funds due to the payment of benefits to P, W, and AP in substitution for benefits to the court of fact-finding shall reach an extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). However, the selection of evidence and the probative value of evidence, which are the premise of fact-finding

Article 308 of the Criminal Procedure Act (Article 308 of the Criminal Procedure Act).

The court below rejected Defendant A’s assertion of misunderstanding of facts or misapprehension of legal principles on the ground that Defendant A’s instruction and payment of benefits was recognized.

The allegation in the grounds of appeal disputing the determination of the lower court is practically disputing the determination of the lower court’s evidence selection and probative value, which belong to the free judgment of the fact-finding court. While examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding receipt of political funds, or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, contrary to what is alleged in the grounds of appeal. (2) The lower court in receipt of illegal payment of benefits by X, AG, AJ, and D, which recognized that Defendant A received each benefit as stated in the facts of the first instance judgment, was justifiable, and thus rejected the Defendant A’

The allegation in the grounds of appeal disputing such determination by the lower court is practically disputing the lower court’s determination on the selection of evidence and probative value, which belong to the free judgment of the fact-finding court. While examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding receipt of political funds, or by exceeding the bounds of the principle of free evaluation of evidence, contrary to what is alleged in the grounds of appeal. (3)

① The lower court convicted Defendant AH and D’s portion of revenues and expenditures other than the deposit account reported in relation to illegal receipt of the above X and D benefits, the accounting report from January 25, 2013, and revenues and expenditures from a person who is not an accountant in charge of accounting. ② The lower court reversed the first instance judgment that acquitted Defendant AH and D’s portion of revenues and expenditures that were not by a person in charge of accounting of a supporters’ association constituted a single comprehensive crime, and found Defendant A’s intent to commit it, and convicted Defendant A of all the charges.

The allegation in the grounds of appeal disputing such determination by the lower court is practically disputing the lower court’s determination on the selection and probative value of evidence, which belongs to the free judgment of the fact-finding court. Even when examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding the acceptance of political funds and the number of crimes of receiving and disbursing revenues and expenditures not attributable to the person in charge of accounting of the supporters’ association, or

Meanwhile, Defendant A appealed to the portion of revenues and expenditures other than the deposit account, the portion related to the accounting report and the portion related to the contribution of political funds under the name of another person, on the other hand, which was reported regarding the receipt of illegal political funds by substitute payment of AP benefits. However, Defendant A did not state specific grounds for appeal on the petition

B. Violation of the Public Official Election Act

The court below rejected Defendant A’s assertion on mistake of facts or misunderstanding of legal principles on the judgment that found Defendant A guilty of violating the Public Official Election Act, excluding the part related to rental fees.

The allegation in the grounds of appeal disputing such determination by the lower court is practically disputing the lower court’s determination on the selection and probative value of evidence, which belong to the free judgment of the fact-finding court. While examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding contribution act, etc. or by exceeding the bounds of the principle of free evaluation of evidence

3. Judgment on Defendant B’s grounds of appeal

The lower court rejected Defendant B’s assertion of misunderstanding of facts or misunderstanding of legal principles on the judgment that found Defendant B guilty of violating the Public Official Election Act, excluding the portion of illegal acceptance of benefits, the portion of the AG, AJ, and D’s payment of the AP benefits,

The allegation in the grounds of appeal disputing such determination by the lower court is practically disputing the lower court’s determination on the selection of evidence and probative value, which belong to the free judgment of the fact-finding court. While examining the reasoning of the lower judgment in light of relevant legal principles and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding the receipt of political funds and the contribution act, or by exceeding the bounds of the principle of free evaluation of evidence

4. Judgment on Defendant C’s grounds of appeal

The lower court rejected Defendant C’s assertion of misapprehension of the legal doctrine by recognizing that the statute of limitations has not expired for the illegal receipt of benefits from AG and AJ.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the statute of limitations, contrary to what is alleged in the grounds of appeal.

On the other hand, the ground of appeal that the lower court erred by misapprehending the legal principles as to identification, contribution, and joint principal offense, is not a legitimate ground of appeal, since Defendant C alleged as the ground of appeal in the appellate court or the appellate court decided as the object of judgment ex officio.

5. Conclusion

The appeal by the prosecutor and the Defendants is dismissed in entirety as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won

Justices Jo Hee-de

Justices Kim Jae-hyung

Justices Min You-sook