[1] The purport of the regulation and punishment on the method of raising political funds under the former Political Fund Act, and whether a member of the National Assembly can receive political funds directly without going through a supporters' association (negative)

[2] The method to determine whether a member of the National Assembly is exempted from liability for a violation of Article 30 (1) of the former Political Funds Act in the event that he/she asserts that he/she received political funds directly without going through a supporters' association and then received them to deliver them to

[3] Details of a crime of violation of Article 30 (1) of the former Political Funds Act, and whether the existence of an intention to deliver to a supporters' association or the actual delivery of such intent has an impact on an already established crime (negative)

[4] The case holding that where a member of the National Assembly receives political funds directly without going through a supporters' association, it constitutes a violation of Article 30 (1) of the former Political Funds Act, and thus, it does not affect an already established crime, since a receipt was prepared later or a person in charge of accounting of the supporters' association delivered it to him/her to use it as a district expense

[1] Article 2(1) of the former Political Funds Act (amended by Act No. 7191, Mar. 12, 2004) provides that “No person shall contribute or receive political funds unless otherwise prescribed by this Act” shall be allowed to receive political funds only by the method of receiving contributions from an individual or corporation to a supporters’ association, and Article 3 subparag. 8, 5, and 6 provides that the act of receiving political funds in a manner that is not prescribed by the Act shall be punished. The purport of the above provision is to ensure that a member of the supporters’ association is ultimately attributed to a designated supporters’ association, but that a member of the National Assembly is not entitled to receive political funds directly from a member of the National Assembly, and that a member of the National Assembly is not entitled to receive political funds from a member of the National Assembly in accordance with the purport of the above Act and the provisions of Article 6-7 thereof, and that a member of the National Assembly directly receives political funds from a member of the National Assembly and is not entitled to receive political funds from a member of the National Assembly.

[2] In cases where a member of the National Assembly asserts that he/she received money and valuables directly without going through a supporters' association and received them to deliver them to the supporters' association, it shall be determined whether he/she is able to accept such assertion by thoroughly examining all circumstances, such as the situation at the time of receiving money and valuables, necessity of requesting a member of the National Assembly to deliver political funds, deposit into the supporters' association or political fund account, time of deposit, immediate issuance of receipt of political funds, and lawful reporting to the election commission. Notwithstanding the inconsistency with objective circumstances, such an intention shall not be inferred without permission.

[3] The intent of the crime of violating Article 30(1) of the former Political Fund Act (amended by Act No. 7191 of Mar. 12, 2004) is sufficient only with the awareness that the method of contributing political funds does not fall under the method prescribed by the Act. Thus, inasmuch as a member received political funds in a way different from that prescribed by the Act, unlike his/her intent, the member of the National Assembly cannot be exempted from the liability for the crime of violating Article 30(1) of the said Act solely on the ground that he/she had expressed his/her intent to deliver the contributed money to the supporters' association or that he/she has actually delivered it to the supporters' association after the fact that he/she actually received it. Furthermore, how to use the contributed political funds does not affect the establishment of the crime of violating

[4] The case holding that since a member of the National Assembly is in itself a violation of Article 30 (1) of the former Political Fund Act (amended by Act No. 7191 of Mar. 12, 2004) in a case where he receives political funds directly without going through a supporters' association, it does not affect an already established crime, the circumstance that he prepared a receipt after the receipt or delivered it to a person in charge of accounting of the supporters' association and used it for expenses for the district party

[1] Articles 2(1) (see current Article 2(1)), 3 subparag. 8 (see current Article 3 subparag. 7), 5 (see current Article 6 of the Political Funds Act), 6 (see current Article 10), 6-7 (see current Article 16, 17), and 30(1) (see current Article 45(1)) of the former Political Funds Act / [2] Article 30(1) (see current Article 45(1)) of the former Political Funds Act (Amended by Act No. 7191, Mar. 12, 2004) / [3] Article 10(1) (see current Article 45(1) of the Political Funds Act (Amended by Act No. 7191, Mar. 12, 2004) of the former Political Funds Act (Amended by Act No. 7191, Mar. 14, 2004) / [194(1) of the Political Funds Act)

[1] Supreme Court Decision 2004Do7670 Decided February 10, 2006 (Gong2006Sang, 467) Supreme Court Decision 2006Do2495 Decided June 27, 2006

Defendant

Prosecutor

Attorney Yu Hong-han et al.

Seoul High Court Decision 2005No1357 decided April 7, 2006

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

We examine the grounds of appeal.

1. Article 2(1) of the former Political Fund Act (amended by Act No. 7191, Mar. 12, 2004; hereinafter “Act”) provides that “No person shall contribute or receive any political fund unless otherwise prescribed by this Act” shall be allowed to receive any political fund only by the means that an individual or corporation receives contributions from the relevant supporters’ association, and Article 3 subparag. 8, 5, and 6 provides that any member of the National Assembly shall be punished to receive any political fund in a manner that is not prescribed by the Act under Article 30(1). The purport of the above provision is, even if a member of the National Assembly, who is a designated supporters’ association, ultimately belongs to a member of the National Assembly, who is a designated supporters’ association, separates any person who is ultimately a member of the National Assembly and who is ultimately a member of the National Assembly, who is a member of the National Assembly, from a member of the National Assembly, who is a member of the supporters’ association, in the method of donation, to prevent any contribution directly to the National Assembly.

In light of this, exchanging political funds directly by supporters and members of the National Assembly is not a method of raising political funds or a method of contributing political funds recognized by the law, but a member of the National Assembly cannot receive a direct contribution of political funds in any case. Therefore, a member of the National Assembly cannot be exempted from the responsibility of violating Article 30 (1) of the Act by itself, when he/she receives political funds directly from an individual or corporation without going through a supporters' association (see, e.g., Supreme Court Decisions 2004Do7670, Feb. 10, 2006; 2006Do2495, Jun. 27, 2006).

However, if a supporter simply requests a member of the National Assembly to deliver political funds contributed to a supporters' association and a member of the National Assembly immediately delivers such political funds to a supporters' association, it shall not be deemed to constitute a violation of Article 30(1) of the Act. However, in the situation where the Act recognizes various means of contribution to a supporters' association, such as account transfer, it is difficult to easily present the case where it is required to request a member of the National Assembly to deliver the political funds to be contributed to a supporters' association, and it is difficult to see that the supporters' intent is also the same. Thus, in most cases where a member of the National Assembly claims that he/she received money and valuables directly without going through a supporters' association and received money and valuables to deliver them to the supporters' association, it is necessary to request a member of the National Assembly to deliver the political funds to the member of the National Assembly, whether it is necessary to deposit the political funds into the supporters' association or political funds account, whether the receipt of the political funds is immediately issued, and whether it is possible to accept such assertion without permission, regardless of the objective circumstances.

In addition, the intent of the crime of violation of Article 30 (1) of the Act is sufficient only with the awareness that the method of contributing political funds does not fall under the method prescribed by the law. As long as political funds are received in a way different from that prescribed by the law, a member of the National Assembly, unlike the intent of sponsor, cannot be exempted from liability for the crime of violation of Article 30 (1) of the Act solely on the ground that he/she had expressed his/her intent to deliver the contributed money to a supporters' association or has actually delivered it to the supporters' association after the fact that he/she actually delivered it, and further how to use the contributed political funds, shall not affect the establishment

2. According to the evidence duly examined by the court below and the court below, the defendant's above act constitutes a violation of Article 30 (1) of the Act, unless the defendant received the above political funds to deliver it to the supporters' association in light of the legal principles as seen earlier, since the defendant who was a member of the National Assembly, as shown in the facts charged in this case, did not receive the receipt from the defendant at the time of receiving the receipt from the non-indicted 1, 2002 because the defendant's bill was not opened to the public, and it was hard to view that the non-indicted 1 received the receipt from the non-indicted 2 and the defendant received the receipt from the non-indicted 30 months after receiving the receipt from the non-indicted 1, 200, since the defendant did not receive the above political funds from the non-indicted 1, 300,000 won from the date of receiving the receipt from the non-indicted 1.

Nevertheless, the court below affirmed the judgment of the court of first instance that acquitted the defendant of the facts charged in this case on the sole ground that the defendant issued the above cashier's checks to the person in charge of accounting of the supporters' association and used them for the expenses of the district party, etc. on the ground that it does not obstruct the establishment of the crime of violation of Article 30 (1) of the Act, such as that the person in charge of accounting has used them for cash exchange and cash exchange, etc.

3. Therefore, the lower judgment is reversed, 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 Yang Chang-soo (Presiding Justice)