Defendant

Defendant

Park Jong-young (prosecution), Jin-Jin-Jin (Public Trial)

Law Firm Yok, Attorney Park Jong-ok

Busan District Court Decision 2012Gohap27 Decided October 12, 2012

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 700,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

1) As to the violation of prohibition of donation of group funds (Article 31(2) of the Political Funds Act)

The members of Nonindicted Company 1’s branch (hereinafter “this case’s union”) as indicated in the holding of the lower judgment agreed on whether to make a contribution according to free will, and agreed on the support of KRW 132 of the union members per 100,000,000 per each member. In addition, the account used for the delivery of the instant fund does not constitute the instant union account, but the funds that the Defendant was the Defendant’s account and the funds that were the Defendant’s account were collected were immediately delivered without being managed from a separate account. Accordingly, even if the Defendant did not contribute political funds with “funds related to the organization,” the lower court erred by misapprehending the legal doctrine on “funds related to the organization,” thereby convicted the Defendant of this part of the facts charged.

2) As to the illegal receipt of political funds (Article 45(1) of the Political Funds Act)

The ○○○○○○ Party’s sponsoring party is recognized as “party members” under the party constitution and party regulations, and the money that such sponsoring party pays to a political party constitutes “party membership fee” as provided by Article 3 subparag. 3 of the Political Funds Act, regardless of the pretext thereof. The Defendant collected 100,000 won from 132 union members of the instant union and remitted money to the account of the ○○○○○ Party is merely that the member paid the party membership fee. However, the lower court found the Defendant guilty of this part of the facts charged by misapprehending the legal doctrine on the crime of receiving and receiving political funds.

B. Unreasonable sentencing

The sentence of the court below against the defendant (the fine of KRW 2,00,000) is too unreasonable.

2. Judgment on misconception of facts or misapprehension of legal principles

A. The part on the violation of prohibition of donation of organization-related funds

1) The judgment of the court below

The Defendant and the defense counsel asserted the same purport as the grounds for appeal in the lower court. The lower court rejected the Defendant and the defense counsel’s assertion and found the Defendant guilty of this part of the facts charged on the ground that it is reasonable to view that all of the donations of this case are funds that can be donated under the organization’s name and that they are “funds related to the organization” under Article 31(2) of the Political Funds Act, namely, funds that are primarily raised and raised by the organization using its name as funds that can be donated according to the organization’s decision making.

① At the expense of the Trade Union and Labor Relations Division, upon receiving the request for cooperation from the workers on duty or executives of the ○○○ Party at the expense of the instant Trade Union and Labor Relations Division, and accepted it.

② The Defendant, “If 100,000 won is donated to ○○○○○○○ Party, he may obtain a tax credit of 100% at the time of year-end year-end settlement.” The Defendant actively engaged in public relations activities, and a considerable number of the members who paid donations did not hear the explanation on the above business from the party executives on duty at ○○○○○○ Party, etc., and participated in the above business.

③ It appears that the above union members agreed to contribute contributions to ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○.

④ The donation behavior of this case does not require members to simply deliver money to the Defendant for convenience, but rather, send a list of the members participating in the project of this case to Nonindicted Company 1’s accounting department and then transfer the money to the Defendant by deducting 100,000 won from the benefits of December 2009 to be paid to the said members from the above accounting department.

⑤ The △△△△△△ and the ○○○○○○○○○○○○ established an irregular system that “after-the-job party,” in order to justify the above-mentioned contribution act. A majority of its members did not appear to have received any guidance on the support fund system.

2) Determination of the immediate deliberation

In order to constitute “funds related to corporations or organizations” which are the subject of donations under Article 31(2) of the Political Funds Act, a corporation or organization should be able to dispose of, or at least identical to, the funds raised and raised by, a corporation or organization by actively and actively participating in the raising and raising of funding (see, e.g., Supreme Court Decision 2013Do10823, Jun. 24, 2015).

In light of the above legal principles, in full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, it is difficult to deem that the fund raised from members of the union belonging to the union of this case can be disposed of by the union or that at least the same time the fund raised and raised could have been contributed to the process of raising and raising the fund, by participating in the process of raising and raising the fund. There is no evidence to deem otherwise as constituting “fund related to the organization”. Accordingly, the defendant’s above assertion is with merit.

① On December 2009, Nonindicted 2, who had been the chairman of the regional committee in Southern-gu, Busan-si, Busan-si, had attended the temporary representative meeting of the Trade Union in this case and explained about the tax credit project for the ○○○○○○○○○○○ Party and requested its members to participate actively. However, the said temporary representative meeting did not resolve the said tax credit project as an agenda item

② Each member decided to freely consent to the tax credit, and did not take any measure to notify or compel the trade union members who did not consent to the tax credit.

(3) Members who have participated in the collection of money individually agreed to participate in the above business and participated by 132 of all members.

④ The employee in charge of Nonindicted Company 1’s accounting department remitted the total of KRW 13,200,000 to the Defendant’s account by deducting KRW 100,000 from the amount of wages on December 2009, among the members of the association who agreed to deduction of benefits. In light of this process, the Defendant wired this to the Defendant’s account. In light of this process, the Defendant did not raise the instant union fund or receive it from many members of the association, but rather, play a role of simply collecting and delivering funds from the said members upon delegation of the management of funds necessary for the tax credit project.

⑤ Both partners’ 100,000 won and 100,000 won, which were contributed by each partner, were deducted from the wages of all partners, and the said partners were refunded 100,000 won, which was paid by each partner, through the deduction of annual income from the beginning of 2010. As such, the funds that were contributed through the deduction of annual income from the beginning of 2010 were money owned by each of the said partners, and were not funds that can be managed or disposed of by the labor union.

B. The part on the illegal acceptance of political funds

The issue of whether a party member constitutes a “party member” as provided in the Political Parties Act shall not be determined solely by the name determined by the party’s constitution and party rules, but by whether a party member has the right and duty as a party member as provided in the party constitution and party rules, and whether a party member has applied for admission and permission for admission and admission. The mere fact that the procedures provided in Article 23 of the Political Parties Act are formally equipped is not a “party member” as provided

In light of the interpretation of the meaning of the "party members", the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, namely, ① the support party members system was established for the purpose of continuing to walking supporters' association expenses that ○○○○○○ was abolished on March 13, 2006 and did not have voting rights. ② The party members of the ○○○○○○○ party attended the temporary conference of the union members in this case on December 2009 and did not inform the party members of the method of joining the 100,000 won for each party member and requested the participation of the 100,000 won for each party member. ③ Although the members of the ○○○○○ party submitted a written consent for the payment of benefits to the accounting department or consented orally, it is difficult to recognize that the party members of the ○○○○ party did not have any other obligation to participate in the election of the political party members from the beginning on the ground that they did not have any other obligation to participate in the election of the political party members.

3. Conclusion

Therefore, the defendant's appeal is partially reasonable, and the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act without examining the defendant's argument of unfair sentencing, and the defendant's appeal is again decided as follows.

Of the facts stated in the judgment of the court below, the provisions of Articles 1 and 2 of the [criminal Facts] "No political fund shall be contributed to the Political Funds Act", "no political fund shall be contributed (or any support fund to a political party) by means not specified in the Political Funds Act", and the provisions of the 12 and 13 of the 12 and 13 of the 12 and the 13th 13 are different from the judgment of the court below.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 45(1) of the Political Funds Act (Generally, Selection of Fines)

1. Detention in a workhouse;

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

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Scope of applicable sentences under law: Fines of 50,000 to 10,000,000;

2. As to the violation of the Political Funds Act, the sentencing guidelines have not been enacted up until now.

3. Determination of sentence: Fines of 700,000 won;

The purpose of the instant crime is to contribute to the sound development of democratic politics by guaranteeing the adequate provision of political funds, securing the transparency of political funds, and preventing any malpractice related to political funds, and the nature of the instant crime is not weak. The Defendant, as an executive member of the instant union, was involved in the instant crime by guiding tax credit projects and raising funds to the said union members. As such, the Defendant was involved in the instant crime in depth, and the amount of funds raised by the Defendant reaches a considerable amount of KRW 13,200,000, etc., which is disadvantageous to the Defendant.

On the other hand, the fact that the Defendant received active cooperation from the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

The punishment shall be determined as per the order, comprehensively taking into account such circumstances and other conditions of sentencing as prescribed in Article 51 of the Criminal Act.

The summary of this part of the facts charged is as follows: “No person shall contribute political funds to the Political Funds Act” in the first, second, and third deeds of “donations, such as illegal support payments,” among the facts charged in the instant case; “No person shall contribute political funds from funds related to any domestic or foreign corporation or organization with funds related to any organization;” and “this portion of the facts charged is as follows: “The Defendant has contributed political funds from funds related to any organization” in the first6 and 17. “This portion of the facts charged, with the exception of changing “the Defendant has contributed political funds from funds related to any organization.”

However, as stated in the above 2.A., the evidence presented by the prosecutor alone is insufficient to acknowledge the fact that the defendant contributed political funds with funds related to the organization, and there is no other evidence to acknowledge it. Therefore, inasmuch as the facts charged constitute a case where there is no evidence of crime and thus, it is found not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, or guilty of the violation of the Political Funds Act due to the illegal acceptance of political funds in the holding that there is no evidence to prove a crime

Judges Park Jae-young (Presiding Judge)