Do 2007 8141 A. Violation of Political Funds Act

B. Violation of the Public Official Election Act

Defendant

Defendant and Prosecutor

Attorney Yang Dong-dong, Kim Jae-ho

Supreme Court Decision 2007Do1720 Decided May 31, 2007

Busan High Court Decision 2007No390 decided September 13, 2007

December 13, 2007

all appeals shall be dismissed.

1. Determination on the Prosecutor’s Appeal

A. Article 30(1) of the former Political Funds Act (amended by the Political Funds Act, Act No. 7682, Aug. 4, 2005; hereinafter the same) provides that a person who has raised or has received political funds shall be punished by the method not prescribed by the said Act. Article 3 Subparag. 2 of the same Act defines the political funds as “Party membership fees, support payments, deposits, subsidies, money and other valuables contributed by the supporters’ association, and incidental revenues and other political activities prescribed by the party constitution and regulations, etc.” (Article 3 Subparag. 2 of the same Act defines the political funds.

4. Article 2 of the Civil Service Election Act provides that "The person who was elected by an election under the provision of Article 7681 of the Act (amended by Act No. 7681; hereinafter the same shall apply), a person who intends to be a candidate or candidate for an election for public office, a supporters' association, an executive officer of a political party, or a paid employee of a political party, or other person who is engaged in political activities, refers to the expenses that are incurred in relation to securities or other things and their own political activities." Thus, in an election for public office, the money was received in relation to the recommendation of a specific person as a candidate, and even if it was not provided for political activities, it cannot be deemed a violation of Article 30 (1) of the former Political Funds Act (see Supreme Court Decision 9Do404, Mar. 23, 199).

B. The court below acknowledged that Defendant 2 million won received from Nonparty 2 on August 2, 2004, which was related to Defendant 2, this was received in relation to Defendant 2,000 won, and it was received in the name of the expense in relation to Defendant 2’s private travel with his wife from August 3, 2004 to June of the same month, and the above Japan’s travel constitutes political activities.

Since it is difficult to view the said money as political funds, it is determined that the said money received in the name of the expenses cannot be deemed as political funds.

The above judgment of the court below was just in light of the records and the above legal principles, and at the same time, there was no illegality such as misconception of facts, misunderstanding of legal principles, etc. due to violation of the rules of evidence, as alleged in the grounds of appeal.

C. The lower court related to USD 1,00 received from Nonparty 1 during the period from October 2004 to November 11, 200, Defendant 1 was paid as the expense for Defendant 2’s visit to Geumgangsan as well as other members of the National Assembly during the period from November 5, 2004 to July of the same month. As recognized by the evidence, the above visit to Geumgangsan was carried out as a partner of the National Assembly for the purpose of promoting the friendship of the members of the Korean Unification Research Council, and the specific schedule of visit was composed of tourism and viewing, etc., and does not include a schedule for the political purpose of the above Research Council, such as the development of unification policies or unification policies. Thus, Defendant 2 and other members of the National Assembly led to Defendant 2.

The facts revealed that it is difficult to see that the said money constitutes a political activity of the said Geum River-do-to-door-to-door-to-door-to-door-to-door-to-door-to-door-to-door-to-door-to-door-to-door-to-door-to-door-to-door-to-door-to-door-to-door-to-door- to-door-to-door- to-door-to-door-to-door- to-door-to-door- to-door- to-door-to-door- to-door-to-door- to be considered as a political fund. However, there is no other evidence

2. Judgment on Defendant’s appeal

A. The portion rejected by the court of final appeal on the ground that the allegation of the grounds of appeal is groundless shall be the same as the adjudication at the same time as the adjudication is rendered, and the defendant shall no longer dispute as to this part, and as to this part, the court to which the case was remanded shall not make a judgment contrary thereto. Thus, the defendant shall no longer make a ground of appeal as to this part (see Supreme Court Decision 2005Da10888, Oct. 1, 2005).

28. According to the records, Defendant filed a final appeal on the grounds of the following facts: (a) on August 2, 2004, 2005Do1247, and Supreme Court Decision 2006Do920, May 11, 2006, the first instance court found Defendant guilty of the lower judgment prior to remand; (b) on the part of the first instance court’s judgment, on the grounds of violation of the Political Funds Act and the Act on the Prevention of Election of Public Officials and Election of Public Officials, and on the part of violation of the Election of Public Officials from October 2, 2004, the first instance court found Defendant guilty of violation of the Political Funds Act; and (c) on the grounds of reversal of the first instance judgment, the lower court’s conviction of the first instance court’s violation of the Act on the Prevention of Election of Public Officials and Election of Public Officials and Election of Public Officials and the first instance judgment’s violation of the Act on the Prevention of Election of Public Officials and Election of Public Officials.

Therefore, Defendant’s violation of the Act on the Election of Public Officials and the Prevention of Unlawful Election Act was rejected on the grounds that the appeal is groundless by the judgment of remand. Thus, Defendant’s assertion on this part of the grounds of appeal that there was a mistake of fact due to the violation of the Act on the Collection of Evidence cannot be a legitimate ground of appeal.

B. Although the court below should have additionally collected the amount equivalent to the amount received by the defendant in accordance with the relevant provisions of the Act on the Prevention of Election and Election of Public Officials, the argument of the grounds for appeal that this was only caused unfavorable consequences to the defendant, which cannot be used as the grounds for appeal in the defendant's side ( even if a judgment can be made ex officio, as to the part guilty among the judgment of the court below, and as to the non-guilty part, in the case of this case where the public prosecutor's appeal was dismissed, it cannot be permitted to issue an order to impose a new penalty on the defendant, since it violates the principle of prohibition of disadvantageous change under Article 368 of the Criminal Procedure Act, and thus, it cannot be reversed ex officio on the grounds of violation of the necessary provision for additional collection).

3. Therefore, with respect to all appeals, it is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul

Justices Kim Ji-hyung

Justices Jeon Soo-ahn