(영문) 청주지방법원 2017.11.16.선고 2017노266 판결

As to the violation of the Political Parties Act, Defendant A shall be punished by a fine of KRW 80,00,000,000,000,000,000,000,000,000,000,000,000,000,000

In the event that the Defendants did not pay the above fines, the Defendants shall be confined to the Labor House for the period calculated by converting KRW 100,000 into one day.

3,190,000 won shall be additionally collected from Defendant A.

To order the Defendants to pay an amount equivalent to the above fines.

Reasons

1. Summary of the grounds for appeal (the mistake of facts or misapprehension of legal principles);

According to the evidence submitted by the prosecutor, as shown in each of the facts charged in the instant case, Defendant A guilty of committing the crime of violating the Political Parties Act and the Political Funds Act, and Defendant B and C committed each offense of violating the Political Funds Act. Therefore, the judgment of the court below which acquitted the Defendants, is erroneous by misapprehending the facts or by misapprehending the legal principles, which affected

2. Summary of the facts charged and the judgment of the court below

A. Summary of the facts charged in this case

Defendant A was a member of the 16th to 18th National Assembly, and was on April 11, 2012, and was on the 19th National Assembly. From April 200 to March 2014, Defendant A was a member of the 19th National Assembly, who was on the 19th National Assembly, and was on the 19th National Assembly member of the 19th National Committee of H political Party I from May 200 to April 2014 and was on the 19th National Assembly member of the H political party J. J. of the 2014.

Defendant C, a person operating M Co., Ltd and N Co., Ltd. L on June 2, 2010, with the success of a political party in the nationwide provincial election, was elected as a member of Q Q City Council for four years, and was elected as a member of Q City Council for four years. On June 4, 2014, Defendant C was a person who was selected as a candidate for the R constituency Do council member upon receiving the success of a political party at the 6th nationwide local election, and was a person who was a head of Defendant A, and Defendant B was a head of the H political party.

1. Defendant A

A. Violation of the Political Parties Act

Although no one is allowed to establish an office of a regional committee, etc. for the operation of subordinate organizations of a City/Do, the defendant conspired with S. as an assistant to the chairperson of the former regional committee. On April 11, 2012, the defendant closed the office of the National Assembly member of the local constituency as a result of the defeat in the election of the National Assembly member of the 19th National Assembly on April 11, 2012, and newly establishes an office of the Gu regional committee, the assistant S used the office of the 2nd floor office of the building (hereinafter referred to as the "office of this case") of the same kind of building to be provided without compensation by the assistant S, and used the office of the above general telephone, computer, facsimile, book, etc. to be used in the existing office of the National Assembly member of the National Assembly, and used the office of the 10th National Assembly member of the above regional committee to be the 10th National Assembly member of the local committee, and managed the above office of the 10th National Assembly member of the above 2nd local committee.

B. Violation of the Political Funds Act

Except as provided by the Political Funds Act, no one shall contribute or receive political funds. On April 11, 2012, the Defendant was unable to receive legitimate support by being absent from the election of the National Assembly members of the 19th National Assembly, and the office of a National Assembly member was unable to be operated any longer, he/she publicly recruited with S., an assistant to receive approximately 13 office rooms of the 2nd floor of building from B until February 2014, and received political funds equivalent to the amount of the 13th floor rents of the building free of charge from B around May 2012, and used the above office as the office of the H-party 1 district regional committee around June 25, 2012, and received KRW 50,000 from W of the Local Committee members of the I-gu Local Committee to the account in the name of KRW 500,000 for entry of the office operating expenses of the above office, and received KRW 130,000 from 330,14.27

Accordingly, in collusion with S, the Defendant received political funds in a way that is not stipulated in the Political Funds Act.

2. Defendant B

No one may contribute or receive political funds that are not under the Political Funds Act. On April 11, 2012, the Defendant: (a) was unable to receive legitimate support by going unsatising in the election of the National Assembly members of the 19th National Assembly on April 11, 2012; and (b) was unable to operate the office of a National Assembly member; (c) around May 2012, the Defendant provided the office of approximately 13 square meters of the 2nd floor of T building to A free of charge until February 2014.

3. Defendant C

No one may contribute or receive political funds, other than under the Political Funds Act, with knowledge that the operating expenses of the office of the 'U' on the second floor of the above T-building operated by A are insufficient, and around June 2012, the Defendant made a contribution of political funds to A in a way that is not provided for in the Political Funds Act by paying a sum of KRW 1,9170,000,000 per month from June 2012 to February 2014, to the 100,000 won per month in the name of the above office operating expenses, from June 2012 to February 2014, as shown in the list of crimes (Account Number: X).

B. The judgment of the court below

The lower court, taking full account of the circumstances stated in its reasoning, found the Defendants not guilty on the grounds that it is difficult to readily conclude that Defendant A established the instant office for political activities or political party activities, or that Defendant B and C donated the instant office’s location or employee V for the political activities of Defendant A.

3. Judgment of the court below

However, the above judgment of the court below is not acceptable. The reasons are as follows.

A. Determination on Defendant A’s violation of the Political Parties Act

1) Relevant legal principles

Article 37(3) of the Political Parties Act provides that "political parties may establish a party members council by local constituency for National Assembly members and by autonomous Gu/Si/Gun, Eup/Myeon/Dong: Provided, That any person shall not have an office for the operation of subordinate organizations of a City/Do party: Provided, That this is the minimum measure to guarantee ordinary political party activities, so that a party members council, which is a voluntary organization, may be established, but the former district council may not be established in order to prevent the harmful effects of the past system and to improve the structure of political parties at low cost-efficiency. In particular, by prohibiting the establishment of an office of a party members council, the purpose is to improve the political structure of expenses and to prevent expenses necessary for the operation of the office, such as rents, personnel expenses, and activities (see Constitutional Court Order 2013Hun-Ga22, Mar. 31, 2016).

Meanwhile, the office of the party members council, etc. for the operation of subordinate organizations of a City/Do party, the installation of which is prohibited pursuant to the proviso to Article 37(3) of the Political Parties Act, refers to a fixed place of business, regardless of its title, in which the party members council, etc. is actually organized subordinate organizations of a City/Do party, and the affairs related to operation, such as the formation of the party members council, organization, activities, and support thereof, etc., of the subordinate organizations of a City/Do party, and whether it is actually applicable should be determined by comprehensively taking into account the various circumstances, such as the purpose and function of the relevant place of business, the use of signs related to the subordinate organization of a City/Do party, such as the party members council, etc., whether human resources are permanently stationed or frequently working, whether there is a place of business for the party members council, etc., and the details of the relevant affairs, such as the party members’ activities

2) Determination

In light of the following circumstances revealed by the evidence duly adopted and examined by the court below and the trial court, it is acknowledged that Defendant A participated in the establishment and operation of the office of this case as stated in this part of the facts charged, and thus, this part of the facts charged is guilty. Nevertheless, the court below acquitted this part of the facts charged, which is erroneous in the misapprehension of facts or by misapprehending the legal principles, which affected the conclusion of the judgment. This part of the prosecutor's assertion is with merit. The issue related to this part of the facts charged is ① Whether the office of this case constitutes the office for the operation of the subordinate organization of the City/Do party, ② whether Defendant A participated in the establishment and operation of the office of this case, ③ whether Defendant A knew and accepted the establishment and operation of the office of this case as the office for the operation of the City/Do party subordinate organization.

A) Whether the office of this case constitutes an office for the operation of subordinate organizations of 0 political parties to the City/Do party

In light of the fact that the office of this case was established around May 2012, the office of this case was located in the office of the National Assembly member when Defendant A was in office as a member of the National Assembly, but it was no longer possible to have an office of the National Assembly member after the falling on April 2012, the office of this case was located in the office of the National Assembly member, and the office of this case was no longer capable of performing affairs related to the management of the members or representatives using the location of the office of the National Assembly member, human resources facilities, etc. The office of this case was located in the office of this case around May 2012. ② The office of this case was a fixed place where office of this case was kept in the partitioned space of the 2nd floor, such as books, waves, telephone, facsimile, etc. The office of this case was used for 100,000 won or more per month while working for 22 hours or more per day, ③ the office of this case was used for the party member of this case and 100,000,00.

B) Whether Defendant A was involved in the establishment and operation of the instant office, the instant office was led by S, who was an assistant under the involvement of Defendant A, and was also involved in the operation thereof. The reasons are as follows.

(1) Defendant B had respected Defendant A from the time of her father-child’s birth, and it appears that the office of this case was provided to Defendant A free of charge on May 2012. In other words, the first police statement of Defendant B, Y, AD, and Defendant C is consistent with this. In other words, Defendant B, around April 2014, according to the police investigation of the police, “the first police statement of Defendant B,” the first child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child-child.

Meanwhile, around January 2015, Defendant B and Y began to make a statement to the effect that Defendant B and Y changed their existing statements to the effect that Defendant B would be able to use the instant office by finding Defendant B. However, in light of the time the said statement was made, the changes in the statement, the relationship between the said person and the Defendant A and B, and the circumstances leading up to the establishment of the instant office, etc., it is difficult to believe that this part of the statement was made, and each initial police statement is highly reliable.

(2) The books, material parts of the office facilities of this case were used in the office of a member of the National Assembly of this case as they were. On the books of this case, V’s name cards were kept from the beginning (the time when and how the name cards were posted are inconsistent, it is difficult to believe that the name cards were not consistent, and the statement of AD was credibility is high). Moreover, the telephone number of the office of this case used in the office of this case was difficult to be transferred without the involvement of the defendant A. The telephone number of the defendant in the office of this case was used as it was. In addition, the telephone number of the office of this case was used in the office of this case by the defendant at the office of a member of the National Assembly of the National Assembly of this country. A, the only employee of the office of this case, who was employed in the office of this case, was a person who worked in the office of this case as an intern from the total line to the time when the defendant died, as seen later, was given direct contact with the defendant A and approximately 30 times.

(3) S, which was an assistant of Defendant A, played a leading role in the opening of the instant office. However, S did not need to establish an office on its behalf, and it is difficult to find reasonable grounds to do so for the City/Do Council members. Furthermore, S has stated to the effect that it reported it to Defendant A in connection with the establishment and operation of the instant office. In light of the foregoing circumstances, the statement on this part is credibility.

(4) In addition, around May 8, 2012, S has engaged in deep-depth deliberation to ensure that the operating expenses of the office of this case are paid. In other words, S recommended AP, BM, and BA to join the office of this case as a member because it is difficult to operate due to the lack of membership fees. BA solicited AX to pay membership fees. AX did not directly join the office of this case, and AX paid membership fees of the office of this case for BA [No. 16] without directly joining the office of this case [No. 16]. In addition, S made AW transfer KRW 10,000 to the operating account of the office of this case as of October 8, 2012 [crime Table 113], but there is no reason to actively procure the office of this case as above, not to the operation expenses of the office of this case.

C) Whether Defendant A knew that the instant office was established and operated as an office for the operation of a subordinate organization of a City/Do party and accepted such fact

(1) From April 200 to March 2014, Defendant A was in the position of the chairman of the regional council of local councils of local councils, and around March 2013, Defendant A was elected at the regional council of councils of local councils. In that process, Defendant A was again elected as the chairman of the regional council of local councils. During that process, Defendant A requested Defendant A to prepare and send the Defendant A’s letter of self-introduction by e-mail to the e-mail, Defendant A, an assistant of Defendant A, and then submitted the letter of self-introduction to J. Furthermore, Defendant A received the letter of self-introduction and submitted it to the local council of local councils. Furthermore, Defendant V was also aware of the details of the unpaid party membership fee in order to prevent the unpaid representatives of the party membership fee from losing their voting rights.

(2) In addition, around September 2013, at the core training of the I-Gu Regional Committee of the I-Gu, Defendant A was required to make a personnel statement, but S made data to be used by Defendant A and delivered it to Defendant A via V.

(3) However, from March 21, 2013 to March 12, 2014, Defendant A, from March 21, 2013 to March 12, 2014, had contact details, including the call and text message, between Defendant A and V’s mobile phone or the instant office phone from around March 2, 2014. Accordingly, Defendant A made a statement to the effect that Defendant A had contact only with a bus to make a reservation at the AC University’s graduate school operating the AC University, which would be likely to cause Defendant A to go against. However, in light of the above contact period and frequency, it is difficult to believe it as is.

(4) Furthermore, Defendant A was directly running the instant office, and in light of the circumstances leading up to the establishment of the instant office and the position of Defendant A, the relationship with Defendant A, S, and V, and the frequency of communication, etc., Defendant A seems to have been aware that the instant office was established and operated as an office for the operation of the City/Do party’s subordinate organization as the chairman and the chairman of the Gu branch.

B. Determination as to the Defendants’ violation of the Political Funds Act

1) Relevant legal principles

Article 45(1) of the Political Funds Act provides that a person who contributes or receives political funds in a way that is not prescribed by the said Act shall be punished. Political funds prohibited by the Political Funds Act refer to all the money, etc. provided to a person who engages in a political activity for political activities (see Supreme Court Decision 2013Do9866, Jun. 26, 2014). Meanwhile, political activities refer to the activities involving the exercise of power and the exercise of power surrounding the acquisition and maintenance of power (see Supreme Court Decisions 2012Do12394, Oct. 30, 2014; 2006Do1623, Dec. 22, 2006).

2) The receipt of political funds between Defendant A and B

Considering the following circumstances as revealed in light of the circumstances duly adopted and examined by the court below and the court below, i.e., ① Defendant A was entrusted with 0 political party 1 unit chairman from April 200 to March 2014, 200; and Defendant A was in the position of the chairman of the party Jone-do party branch from May 2012 to April 2013, the political activity means the activity of Defendant A’s exercise of power and power over the acquisition and maintenance of power, and acquisition, maintenance, and use of its authority. In light of the above circumstances, the court below’s determination that Defendant A had held the status as above and did not appear to be a political activity in itself regardless of whether Defendant A had a subjective intent to close to an election for public office or take a specific public office, ② Defendant B was aware of the facts that Defendant A and its subordinate organizations were donated to Defendant A’s political activity as well as Defendant A’s political organization’s establishment and operation of this case’s political fund. The court below also found Defendant A and its subordinate organizations as Defendant A’s political party’s establishment and operation of this case.

3) The following circumstances revealed through the receipt of political funds between Defendant A and C and the receipt of office expenses between Defendant A and the court below and the evidence duly adopted and examined by the court below. As seen earlier, Defendant A had the office of this case used as an office for the operation of subordinate organizations of this political party and City/Do. ② It could be sufficiently anticipated that the general maintenance expenses, purchase expenses, personnel expenses, etc. in the office of this case were incurred in order to carry out the above functions. ③ The office of this case was performed as a staff member of the political party and City/Do, or as a staff member of the political activities of Defendant A while working in the office of this case. ④ The person who paid the office of this case was a member of City/Do, party members of the local committee or representatives, election campaign members of Defendant A, assistant officers, etc., and all of Defendant A were in a considerable relationship with Defendant A, the court below erred by misapprehending the legal principles on the donation of political funds of this case, or by misapprehending the legal principles on the donation of political funds of this case, Defendant A and Defendant A (hereinafter referred to the judgment below).

4. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

【Discretionary Judgment】

Criminal facts

- As described in paragraph (1) of this Article.

Summary of Evidence

1. Defendants’ written statements in the original judgment and each part of the original judgment

1. Each prosecutor's protocol of interrogation of Defendants, V, and S

1. Each prosecutor's protocol of statement concerning the defendant B, AD, Y, BH, andN;

1. Each protocol of interrogation of the police officers against Defendant A, C, V, and S (in the case of Defendant C, the interrogation protocol No. 100 No. 100 of the evidence list);

1. Each of the police statements of the defendant B, V, S,N, Y, Z, and AD (each of the defendant's written statements is limited to the defendant A and C), and some of the defendant C's written statements

1. Payment of party members fees and membership fees, details of transactions of receiving party members' membership fees and membership fees, internal investigation reports (the contents of telephone conversations between AH representative AHK and its subsidiaries), internal investigation reports (AO-related to U telephone calls), reception notice by regional committees of Jado and relevant telephone details, details of S’s e-mail reception and reception (M-mail reception and reception, etc. with V), list of acquisitors by business, inquiries into the details of each request, inquiries into details of transactions of deposits and withdrawals, communications data, details of communications data, and the application of Acts and subordinate statutes on each account list;

1. Article applicable to criminal facts;

A. Defendant A: Article 59(1)3 of the Political Parties Act, the proviso to Article 37(3), Article 30 of the Criminal Act (the establishment of the office of the party members council of subordinate organizations of the City/Do party), the main sentence of Article 45(1) of the Political Funds Act, Article 30 of the Criminal Act, the selection of fines, respectively.

B. Defendant B and C: Each of the main sentence of Article 45(1) of the Political Funds Act (Selection of Fines)

1. Article 18 (3) and (1) 3 of the Public Official Election Act (Defendant A) separates concurrent crimes;

1. Invitation of a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Article 45 (3) of the Political Funds Act (Defendant A);

1. Reasons for sentencing under Article 334 (1) of the Criminal Procedure Act for an order of provisional payment;

1. Defendant A

The circumstances unfavorable to the Defendant are as follows. The Defendant, a person who arranges the president of the National Assembly, violates the Political Funds Act and the Political Parties Act, and the donated political funds are at least KRW 30 million. The circumstances favorable to the Defendant are as follows. In the case of the violation of the Political Parties Act, it is contradictory to allowing the establishment of subordinate organizations of City/Do parties but prohibiting the establishment of an office in which their assistants can work. However, in the case of a political party with a local constituency National Assembly member, it is difficult to punish those cases in the course of actual application and operation of the punishment provision, and ultimately, it is against the principle of equity by causing unfair results that restrict political activities by preventing the establishment of a local constituency office only in the case of a political party without a local constituency National Assembly member. The degree of illegality is lower in view of these factors. The degree of the Defendant’s participation in the instant crime is lower, and the Defendant’s receipt of an office only in his/her own political fund.

There is no history of criminal punishment against the defendant.

In addition, the age, character and conduct, career, environment, circumstances and result of the crime, etc. of the defendant shall be determined as the same as the order in consideration of all the sentencing conditions specified in the case records and pleadings.

2. Defendant B

The Defendant had caused Co-Defendant A to commit the instant crime in his or her personal respect, and there are circumstances to consider the background of the instant crime. The Defendant provided an office in which he or she was absent, and did not directly provide money. Other factors such as the Defendant’s age, character and conduct, career, environment, circumstances and result of the crime, circumstances after the crime, etc., shall be determined as ordered by taking into account all of the sentencing factors specified in the records and arguments.

C. Circumstances unfavorable to the Defendant are as follows. The Defendant contributed a lot of political funds, and the Defendant falsely listed V as an employee of the Defendant’s company operating the Defendant, and the method of committing the instant crime is not good.

The following circumstances favorable to the defendant shall be the following. There shall be no record of punishment exceeding a fine: