Defendant 1 and one other

Both parties

Kim Jong-hwan (public prosecution) and Kim Jong-chul (public trial)

Attorneys Kim Tae-young et al.

Suwon District Court Decision 201Gohap187 Decided December 21, 2011

The part of the lower judgment against Defendant 2 (Defendant of the Supreme Court’s judgment) is reversed.

Defendant 2 is not guilty.

A summary of the judgment against Defendant 2 shall be publicly announced.

All appeals by Defendant 1 (Co-defendants of the lower court’s judgment) and by the Prosecutor against Defendant 1 are dismissed.

1. Summary of grounds for appeal;

A. Defendant 1

Considering the fact that the Defendant paid most of the damages to Nonindicted Co. 2 (hereinafter “victim”) to the victim Nonindicted Co. 2 and the Defendant’s breach of trust did not actually cause a substantial damage to the victimized company, the sentence imposed by the lower court on the Defendant’s embezzlement and breach of trust (one year and six months of imprisonment and three years of suspended execution) is too unreasonable.

B. Defendant 2

1) misunderstanding of facts and misapprehension of legal principles

Since the Defendant received an envelope from Nonindicted 3’s employee Nonindicted 3 in which donations were included, and then delivered the envelope to Nonindicted 1 (the Nonindicted Party in the judgment of the Supreme Court), the Defendant’s supporters’ association, as a person in charge of accounting of the supporters’ association, pursuant to Article 10(3) of the Political Funds Act, cannot be said to have violated the Political Funds Act, since the Defendant’s supporters’ association legally received Defendant 1’s donations pursuant to Article 10(3) of the Political Funds Act. Therefore, the lower court found the Defendant guilty of the charge of violating the Political Funds Act against the Defendant, or erred

2) The assertion of unreasonable sentencing

In light of the circumstances in which the defendant received the support payment of the above defendant 1, the punishment imposed by the court below (three million won of a fine) is too unreasonable.

(c) Prosecutors;

1) Defendant 1’s assertion of unreasonable sentencing

In light of the fact that the funds of the victim company embezzled by the defendant and the crime of breach of trust of the defendant, and that the defendant paid a large amount of support money to the defendant 2 who is the candidate of the party who is the candidate of the party whose election was held in order to obtain his/her right to object to his/her business, each type of punishment (for embezzlement and breach of trust, one year and six months of imprisonment, three years of suspended execution, three years of suspended execution, and 80,000 won of fine) declared by the court below is too uneasible.

2) Defendant 2’s assertion of unreasonable sentencing

Considering the legislative intent of the Political Funds Act that seeks to promote the sound development of democratic politics by preventing any malpractice related to political funds and the fact that the amount of support payments received by the accused from the accused accused 1 is large, the sentence imposed by the lower court is too uneasible and unfair.

2. Judgment on the misconception of facts and misapprehension of legal principles by Defendant 2

A. Summary of the facts charged

The summary of the facts charged against Defendant 2 is that, around 23:00 on May 21, 2010, the Defendant received political funds from Nonindicted 3, who sent 10,000 won, totaling KRW 25,00,000,000 in a paper bag, which is contained in a paper bag, from Nonindicted 3, who was sent by Defendant 1 at the office of Defendant 2 at the office of Defendant 2 located in Ansan-si (hereinafter omitted) in the election campaign office of Defendant 2 located in Ansan-si (hereinafter omitted), and received political funds in a way that is not prescribed in the Political Funds Act.

B. The judgment of the court below

In light of the following facts and circumstances, the lower court determined that Defendant 2 conspiredd with Nonindicted 1 to prevent Defendant 2 from treating the support fund in accordance with the procedures provided for in the Political Funds Act even if it did not confirm the amount of the support fund delivered by Nonindicted 3 and delivered it to Nonindicted 1, a person in charge of accounting of the supporters’ association.

In addition, Article 10(3) of the Political Funds Act applies only where the support fund received from the sponsor by the designation authority of the designation authority is legally processed through the procedures provided for in the Political Funds Act, such as deposit in the account of the support fund and issuance of receipts. On the grounds that Nonindicted 1, an accountant in charge, did not implement the procedures of the Political Funds Act with respect to Defendant 1’s support fund, Defendant 2 cannot be deemed as not subject to criminal liability pursuant to Article 10(3) of the Political Funds Act.

① Defendant 2 received a paper bags of KRW 50,00 from Nonindicted 3, 100,00 which was sent by Defendant 1 at the candidate’s office. Defendant 2 did not have a proxy for the collection of support payments from his supporters’ association.

② In light of the fact that Defendant 1 promised to give financial support to Defendant 2 in advance and Defendant 2 also was audited by Defendant 1 after receiving KRW 25 million from Nonindicted 3, Defendant 2 is likely to have known in advance of the amount of support money.

③ Even if Defendant 2 was unaware of the amount of the support payment in advance, it is consistent with the empirical rule to view that Defendant 2 confirmed the amount of the support payment that was contained in the plastic bag because he was mixed in the candidate’s office at the time of receiving the support payment from Nonindicted 3.

④ Defendant 1’s contribution amounting to KRW 25 million compared to the contribution made by other persons, while Defendant 1’s contribution was treated in accordance with the procedures of the Political Funds Act, while Defendant 2’s contribution was not treated in accordance with the lawful procedures, it is difficult to view that Defendant 1 did not give any instruction as to the method of disposal and use of the contribution when Defendant 2 delivered Defendant 1’s contribution to Nonindicted 1, who is an accountant in charge, to Nonindicted 1.

⑤ Nonindicted 1 stated that, after Defendant 2 received support payments from Defendant 2, Defendant 1 was called on behalf of Defendant 1 to enter in the issuance of political fund receipts on the grounds that Defendant 1 did not deliver political fund receipts, but Defendant 1 was unable to contact because of the lack of contact, and that Defendant 1 was unable to implement the procedures set forth in the Political Fund Act because of his omission in the election campaign. However, it is difficult to believe Nonindicted 1’s explanation in light of the fact that Defendant 1’s support payments were the maximum amount of support payments contributed to Defendant 2’s supporters’ association at the time.

C. Judgment of the court below

1) Facts of recognition

According to the evidence duly adopted and examined by the court below, Nonindicted 4, 3, and 1 of the witness witness of the political party, each legal statement of the court below, and each statement of the ground plan of the election campaign office and notification of the status of the preservation for election expenses submitted by Defendant 2 at the trial, the following facts can be acknowledged

① Defendant 2 served as assistant officer of Nonindicted 5 of the National Assembly member from around 1996 to around 2003, and came to know of Defendant 1 on around 1997, while serving as assistant officer, and Defendant 1’s solicitation from March 2004 to January 2008, Defendant 2 served as assistant officer of the National Assembly member, and Defendant 1’s representative director or director of Nonindicted 6 and Nonindicted 7 corporation, who was in operation by Defendant 1, from March 2004 to January 2008.

② Defendant 2 went out as a candidate for the 18th National Assembly member candidate in the election of the 18th National Assembly members of the National Assembly, which was implemented on April 9, 2008, but went out, and went out as a candidate for the 000 local election, which was implemented on June 2, 2010, but went out as a candidate for the 18th National Assembly member of the National Assembly.

③ After Defendant 2 went out as a candidate for the Ansan City market, around April 2010, Defendant 2 prepared an election campaign office on the sixth floor of the △△△△△△△△ building located in Ansan-si (hereinafter omitted). Defendant 2’s election campaign office has a structure such as a candidate’s office, a board of directors, a policy room, a situation room, a meeting room, etc., and the partitions and doors of the candidate’s office are favorable, and the proposal of the candidate’s office was considered outside.

④ Defendant 2 directed Nonindicted 3, who visited the election campaign office at night on May 21, 21 of the same year, as the candidate’s office, and directed Nonindicted 4, who was in charge of the performance expenses, to find Nonindicted 1, who was in charge of accounting. Nonindicted 4, when entering the candidate’s office with drinking water, deemed that Nonindicted 1 did not appear. Defendant 2, at the candidate’s office, talked about the fire restoration of Nonindicted 3 and Nonindicted 7’s factory, etc., and sent Nonindicted 3 to the entrance of the election campaign office.

⑤ The election campaign period of the fifth simultaneous local election was from May 20 of the same year to June 1 of the same year, and Nonindicted 3 delivered Defendant 1’s support payment to Defendant 2 was the day following the beginning of the election campaign period. During the election campaign period, at the election campaign room located next to the election campaign office of night night, the election campaign parties, including Defendant 2 and the head of the election countermeasure headquarters, attended the election campaign committee to arrange the election activities for a day, and Defendant 2 presideed at the election campaign committee in the election campaign room.

④ At the time Nonindicted 3 delivered a support payment to Defendant 2, Nonindicted 3 was 50 million won in a paper bags with KRW 100,000,000. However, it was difficult for Nonindicted 3 to understand the amount of the support payment if he did not take out the support payment in a paper bag, because the paper bag was in contact with KRW 2 and KRW 3.

7) Defendant 1 was aware of the student movement while attending the university due to Defendant 2 and 87 school dong University, and even thereafter, maintained a friendly relationship with Defendant 2. Nonindicted 1 was working for Defendant 2 as a person in charge of election planning in the election of the 18th National Assembly members implemented on April 9, 2008, and was working for Defendant 2 as a person in charge of accounting of Defendant 2’s supporters’ association in the five simultaneous local elections implemented on June 2, 2010. Meanwhile, Defendant 1 entered Defendant 2 as a director or representative director of the company he operated, and paid Defendant 2’s support money in the election of the 18th National Assembly member, and Nonindicted 1 was aware of the personal information and contact point of Defendant 1.

④ At the fifth simultaneous local election, Defendant 2’s upper limit of election expenses for the Ansan-si constituency was KRW 285 million, and the upper limit of the support payments was KRW 141 million. Nonindicted 1, during the election campaign period, reported to the election commission by raising the support payments of KRW 130 million in addition to Defendant 1’s support payments. However, Defendant 1’s support payments of KRW 25 million to the election commission did not comply with the procedure, such as depositing the support payments into the account or reporting to the election commission.

2) Determination

A) Whether Defendant 2 delivered money to Nonindicted 1 without confirming the amount of support money

According to the above facts, it was difficult for Defendant 2 to understand the amount of the support fund if he did not receive the paper envelope from Nonindicted 3 because the paper envelope containing the support fund was in contact with the election commission. ② Defendant 2 was unable to find out the amount of the support fund if he did not receive the money, ② Defendant 2 was in charge of an election campaign for the head of the election campaign office after Nonindicted 3 visited 5,000 won, combining 10,000 won in a paper envelope, and there was no external difference between Defendant 2 and the total amount of the support fund under the Political Fund Act because there was no possibility that other persons would have been in charge of an election campaign for the head of the election campaign office. ④ Defendant 2 was in charge of an election campaign for the head of the election campaign office after the visit of Nonindicted 3, and Defendant 2 was in charge of an election campaign for the head of the election campaign for the head of the election campaign office.

In light of the above circumstances, Defendant 2’s assertion that Defendant 1 did not confirm the amount of Defendant 1’s support payment, and Defendant 1 knew of the fact that the donator was Defendant 1 while delivering it to Nonindicted Party 1, and Defendant 1’s support payment exceeds the limit provided under the Political Funds Act, and Nonindicted Party 1 did not dispose of Defendant 1’s support payment in accordance with the Political Fund Act’s procedures, cannot be deemed to have conspired with Nonindicted Party 1 to prevent Defendant 2 from delivering the support payment to Nonindicted Party 1 or from disposing of the support payment in accordance with the Political Fund Act’s procedures.

B) Whether Article 10(3) of the Political Funds Act is applied

Article 10 (1) of the Political Funds Act provides that "a supporters' association shall collect support payments from supporters (referring to members and persons who are not members) after being registered pursuant to the provisions of Article 7 (Application, etc. for Registration of Supporters' Associations) and then contribute them to the designation authority of the relevant supporters' association. In such cases, no money or goods, such as support payments, collected by a supporters' association, shall be contributed." Article 45 (1) of the same Act provides that "any person (referring to a person who commits a violation as a member, in cases of political parties, supporters' associations, corporations or other organizations) who has contributed or received political funds by means that are not prescribed by this Act, shall be punished by imprisonment for not more than five years or by a fine not exceeding 1

In addition, Article 10(3) of the same Act provides that "Where a supporter directly contributes support payments to the designation authority of the designation authority (excluding cases where a supporter bears and disburses expenses incurred in political activities in the designation authority of the designation authority, lends money, goods, or facilities without compensation, or donates by exempting or reducing debts), the relevant designation authority of the designation authority of the supporters delivers the donated support payments and the personal information of the donator to the person in charge of accounting of the supporters' association designated by him/her within 30 days from the date of donation (where he/she becomes disqualified to have a supporters' association before 30 days elapse from the date of donation, the date on which he/

According to the above provisions of the Political Funds Act, in principle, the designation authority of the designation authority of a supporters' association may receive support payments only through the supporters' association, and the designation authority of a designation authority that has received support payments directly from supporters shall be punished pursuant to Article 45(1) of the Political Funds Act. However, where the designation authority of a designation authority delivers support payments to a person in charge of accounting within 30 days from the date of receiving support payments directly from supporters and notifies a donator of his/her personal information, such designation authority is not subject to criminal liability under Article 10(3) of the Political Funds Act, as it is applied

Meanwhile, Article 10(3) of the same Act provides that where a designation authority of a supporters' association delivers the support payments and identity of a donator to a person in charge of accounting of a supporters' association, the relevant supporters' association shall be deemed to have been donated, and it does not provide that only where a person in charge of accounting disposes of the support payments delivered by the designation authority of a supporters' association according to the procedures provided for in

Therefore, as seen earlier, Defendant 2 delivered the support money to Nonindicted 1, a person in charge of accounting, and notified the donator that the donator is Defendant 1, under the circumstance that Defendant 2 is not aware of the amount of Defendant 1’s support money. As such, it can be interpreted that Defendant 2 is exempt from criminal liability under Article 45(1) of the Political Funds Act on the ground that Defendant 1’s support money was donated to the relevant supporters’ association pursuant to Article 10(3) without being related to whether Nonindicted 1 properly disposes of the support money according to the procedures of the Political Funds Act or not.

The lower court’s conclusion that Article 10(3) of the Political Funds Act does not apply to cases where a person in charge of accounting fails to dispose of a support payment delivered by the designation authority of the designation authority in accordance with lawful procedures does not fall under the case of expanding and interpreting Article 10(3) of the Political Funds Act disadvantageous to the defendant, on the ground that the error of a person in charge of accounting responsible for managing the support payment is attributable

C) Sub-decision

The judgment of the court below that found Defendant 2 guilty of the facts charged of violating the Political Funds Act is erroneous in the misapprehension of legal principles as to the Political Funds Act, which affected the conclusion of the judgment, and thus, Defendant 2’s assertion of mistake of facts and misapprehension

3. Determination on the assertion of unreasonable sentencing on Defendant 1 and Defendant 1 by the Prosecutor

Defendant 1: (a) arbitrarily embezzled the funds of KRW 1 billion of the victimized company and KRW 550 million of the funds of Nonindicted Co. 8; (b) lent the funds of KRW 2.4 billion of the victimized company to Nonindicted Co. 9 with no means to repay the funds of the victimized company; and (c) donated the support fund to Defendant 2 without undergoing the procedures provided for in the Political Funds Act; and (d) in light of the fact that the amount of the embezzled amount and the amount of the amount of the damage inflicted on the victimized company and the amount of the support fund illegally granted to Defendant 2, Defendant 1 needs to be sentenced to a severe penalty.

However, according to the records, it is recognized that Defendant 1 is a single shareholder of the victimized company and the victim non-indicted 8 corporation, that the amount lent to the non-indicted 9 corporation did not actually incur a substantial damage to the victimized company due to the use of the acquired shares of the victimized company, that Defendant 1 paid the money to the victimized company that disposed of his own property, that most of the damage was recovered by paying it to the victimized company, that Defendant 1 contributed support money due to personal-friendly relationship with Defendant 2 who was working for his company, and that there was no record of punishment for embezzlement or

In addition to the above factors of sentencing, comprehensively taking account of the various circumstances, such as the scope of the recommended sentence (one year and six years of imprisonment) and the criteria for the suspension of execution, Defendant 1’s age, character and conduct, environment, motive and circumstance of the crime, and the circumstances after the crime, etc., as determined by the Supreme Court’s Sentencing Committee, each sentence imposed on Defendant 1 cannot be deemed too heavy or less.

Therefore, we cannot accept Defendant 1 and the Prosecutor’s allegation of unfair sentencing regarding the sentencing of the lower court.

4. Conclusion

A. Defendant 2

Since the part against Defendant 2 in the judgment of the court below on the ground of the above reversal ground, the part on Defendant 2 among the judgment of the court below is reversed under Article 364(6) of the Criminal Procedure Act without further proceeding to decide on the assertion of unfair sentencing between Defendant 2 and the prosecutor, and the following is again decided as follows

The summary of the facts charged against Defendant 2 is the same as that of Defendant 2-A. 2-C. Thus, Defendant 2 is acquitted in accordance with the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment on Defendant 2 is publicly notified in accordance with Article 58(2) of the Criminal Act, since it falls under the case where there is no proof of crime as stated in Article 325

B. Defendant 1

The part of the judgment of the court below against Defendant 1 is dismissed in accordance with Article 364(4) of the Criminal Procedure Act since the appeal by Defendant 1 and the prosecutor is without merit.

Judges Kim Jong-ju (Presiding Judge)