Whether the Constitutional Court’s decision of inconsistency with the Constitution as to Article 6 of the former Political Funds Act and Article 45(1) of the Political Funds Act is a decision of unconstitutionality as to the provisions of the Punishment Act (affirmative), and whether the court shall render a verdict of innocence as to a prosecuted case against which a public prosecution has been instituted by applying

The Constitutional Court rendered a ruling of inconsistency with the Constitution regarding Article 6 of the former Political Funds Act (amended by Act No. 8880 of Feb. 29, 2008, and amended by Act No. 9975 of Jan. 25, 2010), Article 6 of the Political Funds Act (amended by Act No. 9975 of Jan. 25, 2010), and Article 45(1) of the Political Funds Act (amended by Act No. 8880 of Feb. 29, 2008), and Article 6 of the Political Funds Act (amended by Act No. 8880 of Feb. 29, 2008), and “The provisions of each of the above provisions shall continue to apply until the legislators revised by Act No. 14838 of Jun. 30, 2017,” but did not apply the aforementioned provisions retroactively to the Preparatory Committee for Central Party Formation.

The Constitutional Court’s ruling of inconsistency with the Constitution is a modified form that is not prescribed by the Constitution and the Constitutional Court Act, but constitutes a ruling of unconstitutionality as to legal provisions. Article 45(1) of the Political Funds Act stipulates that a contribution of political funds is made in a manner that is not prescribed in Article 6 of the former Political Funds Act (amended by Act No. 9975, Jan. 25, 2010; hereinafter “former Political Funds Act”). Article 6 of the former Political Funds Act is combined with Article 45(1) of the Political Funds Act, and Article 6 of the former Political Funds Act becomes a legal provision on punishment. Therefore, the foregoing ruling of inconsistency with the Constitution as to the above provisions is deemed a ruling of unconstitutionality as to the penal provisions. In addition, Article 47(3) main sentence of the Constitutional Court Act provides that where a ruling of unconstitutionality as to the penal provisions is rendered, the relevant provision becomes retroactively null and void, and thus, the defendant’s case that was instituted by applying the relevant provisions constitutes a crime that has not been prosecuted.

Article 6 of the former Political Funds Act (Amended by Act No. 9975, Jan. 25, 2010); Article 6 of the former Political Funds Act (Amended by Act No. 13758, Jan. 15, 2016); Article 6 of the former Political Funds Act (Amended by Act No. 14838, Jun. 30, 2017); Articles 6 subparag. 1 and 45(1) of the Political Funds Act; Article 47(3) of the Constitutional Court Act; Article 325 of the Criminal Procedure Act

Supreme Court en banc Decision 2008Do7562 Decided June 23, 2011 (Gong2011Ha, 174), Supreme Court Decision 91Do2825 Decided May 8, 1992 (Gong1992, 1918), Supreme Court en banc Decision 2003Hun-Ga1, 2004Hun-Ba168 Decided December 23, 201 (Gong201Ha, 1487), en banc Decision 2003Hun-Ga1, 2004Hun-Ga4 Decided May 27, 2004 (Hun-Ga3, 602), Constitutional Court en banc Decision 2013Hun-Ba168 Decided December 23, 2015 (Hun-Ba231, 108)

Defendant

Defendant and Prosecutor

Law Firm Ton Law Firm, Attorneys Du-seop et al.

Busan High Court Decision 2012No570 decided November 4, 2015

The judgment below is reversed, and the case is remanded to Busan High Court.

1. Prosecutor's grounds of appeal are examined.

In full view of the circumstances indicated in its holding, the lower court determined that it is difficult to view that the instant union members, who were recruited from the union members of the instant union, was able to dispose of the fund or to present the fund at least, by actively and actively involved in the recruitment and creation of the union members.

Examining the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on “funds related to organizations” under Article 31(2) of the Political Funds Act, contrary to what is alleged in the grounds of appeal.

On the other hand, the prosecutor appealed the guilty portion, but did not state the grounds for appeal in the petition of appeal, and did not state the grounds for appeal in the appellate brief.

2. The decision shall be made ex officio;

A. Of the facts charged in the instant case, the lower court upheld the first instance judgment that found the Defendant guilty by applying Article 45(1) of the Political Funds Act to the portion that the Defendant donated political funds to a political party that is not entitled to receive any contribution of political funds.

However, following the pronouncement of the lower judgment, the Constitutional Court rendered a ruling of inconsistency with the Constitution regarding Article 6 of the former Political Funds Act (amended by Act No. 8880, Feb. 29, 2008; Act No. 9975, Jan. 25, 2010); Article 6 of the Political Funds Act (amended by Act No. 9975, Jan. 25, 2010); the main text of Article 45(1) of the Political Funds Act (amended by Act No. 8880, Feb. 29, 2008; Act No. 1388, Jun. 30, 2017; hereinafter the same shall apply to each of the above provisions to the Preliminary Committee for Political Funds (amended by Act No. 1381, Dec. 16, 2015; hereinafter the same shall apply).

B. The Constitutional Court’s ruling of inconsistency with the Constitution is a modified form that is not stipulated in the Constitution and the Constitutional Court Act but constitutes a ruling of unconstitutionality as to legal provisions (see, e.g., Supreme Court Decision 2004Do7111, Jan. 15, 2009; Constitutional Court en banc Decision 2003HunGa1, May 27, 2004; Constitutional Court en banc Decision 2004HunGa4, May 4, 200). Article 45(1) of the Political Funds Act provides that political funds shall be donated in a way that is not stipulated in Article 6 of the former Political Funds Act (amended by Act No. 9975, Jan. 25, 2010; hereinafter “former Political Funds Act”). Article 6(1) of the former Political Funds Act constitutes a judgment of inconsistency with Article 45(1) of the Political Funds Act and Article 208(2) of the Criminal Procedure Act, which is retroactively declared to be a decision of unconstitutionality as to the Act.

C. Examining in light of the legal principles as seen earlier, since the legal provision of this case, which was declared to be inconsistent with the Constitution by the ruling of inconsistency with the Constitution, becomes retroactively null and void, the court shall render a judgment of innocence pursuant to the former part of Article 325 of the Criminal Procedure Act as to the prosecuted case involving the non-acceptance of political funds

Therefore, among the judgment below, the part convicting the illegal receipt of political funds could not be maintained as a result.

3. Scope of reversal

Since the part of the judgment of the court below as to innocence on the violation of the Political Funds Act due to the contribution of funds related to organizations is in a mutually competitive relationship with the reversed guilty part, the part not guilty in the reasoning should also be reversed.

4. Conclusion

The lower judgment is reversed without further proceeding to decide on the Defendant’s grounds of appeal, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)