[1] Whether an act of a member of the National Assembly to present his/her opinion on policies to a public official in charge in the course of policy-making constitutes a "request or arrangement for duties to be performed by a public official" under Article 32 subparag. 3 of the Political Funds Act

[2] The case holding that the donation of political funds to a member of the National Assembly by a member of the National Assembly constitutes a legitimate policy proposal for a member of the National Assembly, and that the donation of political funds to a member of the National Assembly does not fall under the "contribution related to solicitation or good offices for a member of the National Assembly," which is prohibited by Article 32 subparagraph 3 of the Political Funds Act, because it constitutes a legitimate policy proposal for the member of the National Assembly, to suggest that a member of the National Assembly arranged a meeting between a member of the oil company and the head of the local government

[3] The meaning of the case where a member of the National Assembly can be deemed to have received political funds because he/she received political funds through a supporters' association in the form of a member

[4] The case holding that although a member of the National Assembly received political funds through the above supporters' association, a member of the National Assembly cannot be deemed to have received political funds directly in light of the operational status of the majority of the supporters' association, etc., in the situation where the assistant of the member of the National Assembly concurrently holds a person in charge of accounting of the supporters' association and the

[5] The case holding that in a case where employees belonging to the oil refining company contributed political funds in the form of small-amount support payments to a supporters' association of a certain member of the National Assembly with their own contribution upon the recommendation or encouragement of the company, an indirect crime of violation of Article 32 subparagraph 3 of the Political Funds Act cannot be charged to the managers of the oil refining company

[1] A member of the National Assembly is an intermediary of the people who assume the responsibility to reflect the will of the people in the national affairs, and thus widely reflecting the will of the people in the process of policy-making process belongs to the scope of the member's duty. To such extent, the member's duty activities are indivisible in the decision-making process or execution of policies by the relevant policy authorities or public officials in charge. Therefore, a member of the National Assembly is not always prohibited by the act of presenting his opinion on policies to a public official in charge in the process of policy-making process because it falls under the "request or mediation for the affairs in charge and handling of public officials" as provided by Article 32 subparagraph 3 of the Political Funds Act. However, in order to constitute a policy proposal that belongs to the legitimate scope of the member's legitimate duty of a member of the National Assembly, the opinion on policies in the first aspect is not difficult to agree with such policies even if it itself is in conflict with the objective nature of sound social norms. Second, in the motive, the National Assembly member's intent to intervene in any specific person or organization, but not in the relevant policy-making process or resolution.

[2] The case holding that the donation of political funds to a member of the National Assembly is not an act of donation related to solicitation or intermediation for public officials' affairs related to public officials' affairs related to solicitation or handling, since it constitutes a legitimate policy proposal for a member of the National Assembly, a member of the National Assembly presented an opinion that a prompt change in the purpose of use is necessary for the site to be planned to build a refined factory to the head of a local government and the head of a group.

[3] Where a member of the National Assembly has contributed political funds to his/her supporters' association with respect to the affairs of a public official, unless there exist circumstances such as receiving political funds through a formal supporters' association, the member himself/herself shall not be deemed to have received contributions. Furthermore, in a case where a member of the National Assembly receives political funds through a formal supporters' association, it refers to a case where a member of the National Assembly demands a contribution of political funds actively or a person who receives political funds receives such political funds.

[4] The case holding that a member of the National Assembly cannot be deemed to have received political funds directly, considering the fact that the Political Funds Act does not prohibit a member of the National Assembly from holding concurrent office as an assistant to a member of the National Assembly, and that the majority of the members of the National Assembly operate a supporters' association in a similar form as above in terms of actual operational status, in case where the assistant of the member of the National Assembly concurrently holds office as an assistant of the National Assembly while using a member's office without having a separate office and an employee belonging thereto, and the member of the National Assembly receives political funds through the said supporters' association in a situation where a member of the National Assembly actually administers the affairs of the

[5] In a case where more than 500 employees belonging to refining companies contributed political funds in the form of small-amount support payments, which are eligible for tax credits, to the supporters' association of a member of the National Assembly who provided policy proposals to attract the head of merit of the above company to local areas, the case holding that the above employees were well aware of the circumstances leading to the contribution of political funds as above, and that they did not arrange for the contribution by unfairly suppressing the employees' intentions, and thus, they cannot be held liable for indirect principal offense against the violation of Article 32 subparagraph 3 of the Political Funds Act

[1] Article 32 subparag. 3 of the Political Funds Act / [2] Articles 32 subparag. 3 and 45(2)5 of the Political Funds Act / [3] Articles 3 subparag. 7, 32 subparag. 3, and 45(1) of the Political Funds Act / [4] Article 32 subparag. 3 of the Political Funds Act / [5] Articles 32 subparag. 3 and 45(2)5 of the Political Funds Act, Article 34 of the Criminal Act

[3] Supreme Court Decision 96Do837 delivered on June 9, 1998 (Gong1998Ha, 1921)

Defendant 1 and one other

Defendants and Prosecutor

Kim Jong-soo et al.

Attorneys Kim Young-young et al.

Daejeon District Court Decision 2006Gohap60 Decided February 20, 2007

The judgment of the first instance is reversed.

The Defendants are not guilty.

The summary of the judgment against the Defendants is published.

1. Summary of grounds for appeal;

A. Defendants

(1) Defendant 1

(A) misunderstanding of facts

Defendant 1 has not received political funds from Defendant 2 in relation to solicitation or mediation of the affairs in charge of and dealt with by the Seosan market.

(B) misunderstanding of facts or misapprehension of legal principles

Since Defendant 1’s supporters’ association was contributed to Defendant 1’s supporters’ association, Defendant 1’s supporters’ association is a separate entity from Defendant 1, Defendant 1 cannot be deemed to have received political funds through Defendant 1’s supporters’ association in form.

(C) Unreasonable sentencing

(2) Defendant 2

(A) misunderstanding of facts

Defendant 2 has not contributed political funds to Defendant 1 in relation to solicitation or mediation for the affairs in charge of and managed by the Seosan market.

(B) Legal principles

① Since the subject of punishment for violation of Article 32 of the Political Funds Act is limited to “the donator of political funds” and the penal provisions for “a person who has made a contribution” are separately provided for in the same Act, the first instance court determined that a third party, who is not the defendant, is liable for the support fund contributed by the defendant under the principle of no crime without law, despite the fact that the third party, who is not the defendant, cannot be held liable for the violation of the same Act, shall be liable for the political fund contributed by the third party

② It is not specifically specified in the facts charged as the “specified solicitation or intermediation” related to the act of donation in this case.

(C) Unreasonable sentencing

(b) Swords;

(A) Mistake of facts (not guilty part of the grounds for violating the Political Funds Act)

The Defendants contributed or received political funds in relation to arranging various matters such as authorization and permission issues in the construction of the factory of this case.

(B) Meritorious of legal principles (the part concerning acquittal of the grounds for violating the Act on the Aggravated Punishment, etc. of Specific Crimes)

Even if Defendant 1 received political funds from Defendant 2 through the supporters’ association, the support fund contributed to the supporters’ association under the Political Funds Act is ultimately contributed to Defendant 1, and Defendant 1 receives money from Defendant 2, taking the form of the support fund.

(C) Unreasonable sentencing

2. Determination:

A. As to the defendants' grounds of appeal

(1) As to the Defendants’ assertion of mistake of facts that there was no contribution act with respect to solicitation or mediation for the affairs in charge and handling by the Seosan market

(A) A member of the National Assembly, as a public official elected by election of the people, has a status as a representative of the entire people, must act for the benefit of the entire people, but may act for the benefit of the residents in his constituency to the extent that it does not conflict with activities for the benefit of the entire people.

In addition, although the principal duties of a member of the National Assembly participate in the legislative process as a member of the National Assembly in charge of legislative power, unless the duties of a member of the National Assembly are limited to those of the member of the National Assembly, and unless the Constitution or laws are prohibited, it should be considered that the widely reflecting the will of the member of the National Assembly as a member of the member of the National Assembly is within the scope of the member's duties (the prosecutor also presents to this court on July 13, 2007 about how the scope of duties of a member of the National Assembly who takes political responsibilities for citizens outside the National Assembly can be determined by the general principles of representative system, and the member of the National Assembly can be said to be the member of the National Assembly as a representative of the whole, and the scope thereof should be widely recognized, as seen earlier, Defendant 2 recommended large-scale areas as the site of the second factory of the member of the National Assembly, and obtained a meeting with the Mayor and then did not constitute the act of a member of the National Assembly beyond the scope of duties of a member of the National Assembly.

(B) We look back to this case in mind in mind.

① 제1심은, 거시 증거를 종합하여, 피고인 1이 2005. 8. 초순경 사우디아라비아에서 우연히 피고인 2를 만난 자리에서 자신이 에쓰오일 제2공장을 지역구인 서산 대산지역에 유치하겠다고 말한 사실, 그 후 피고인 2의 부탁으로 피고인 1이 공소외 1 서산시장에게 전화하여 에쓰오일이 제2공장을 대산지역에 신축할 의향이 있으니 만나보라고 권유함으로써 2005. 8. 22. 서산시청 시장실에서 공소외 1과 피고인 1, 2 및 에쓰오일 관계자, 서산시청 담당 직원들이 참석한 간담회가 개최된 사실, 간담회에서 서산시청측에서는 에쓰오일이 제시한 지역 중 일부를 그 인근 지역으로 대체하여 자연녹지 약 33만 평(도시관리계획 기본계획상으로 공업지역이었기 때문에 용도변경이 가능하다)이 포함된 약 70만 평을 제2공장 신축부지로 제시하였고, 당시 위 자연녹지지역의 도시계획변경 문제가 언급되었는데 이에 대하여 공소외 1 서산시장이 긍정적인 태도를 보인 사실, 피고인 2가 2005. 8. 25. 제2공장 신설을 위한 태스크포스팀 회의에서 피고인 1과 도시계획변경 문제를 결부하여 말하였고, 2005. 9. 23.에는 신라호텔에서 개최된 사우디아라비아 국경일 만찬 석상에서 피고인 1을 만나 ‘도시계획을 변경하여야 한다더라’는 취지로 말하여 피고인 1로부터 ‘그럼 해결해야지요’라는 취지의 답변을 들은 사실, 그 후 피고인 1이 2005. 10. 5. 피고인 2에게 전화하여, ‘사업을 계속하여 추진하라’는 취지의 말을 하였고, 피고인 2는 이를 피고인 1이 공소외 1 서산시장에게 도시계획변경과 관련한 말을 해둔 것으로 받아들인 사실, 피고인 2는 일반지방산업단지 지정신청이 임박한 2005. 10. 말경 공소외 2에게 피고인 1을 만나보라고 지시하여 공소외 2가 2005. 11. 3. 제2공장과 관련한 사업계획서 등을 가지고 피고인 1의 사무실에서 피고인 1을 만나 제2공장 사업계획을 설명하고, 곧 일반지방산업단지 지정신청을 할 것인데 신청을 하면 잘 좀 되게 협조 부탁드린다고 말한 사실, 피고인 2는 일반지방산업단지 지정신청서가 서산시청에 제출된 2005. 11. 7. 피고인 1에게 전화하여 위 제출사실을 알리고 신경 써 달라는 취지로 부탁한 사실, 그런데 서산시는 2005. 11. 11. 위 지정신청에 대하여 관계 법령상 자연녹지지역에 대하여는 일반지방산업단지 지정신청 자체가 허용되지 않는다는 이유로 위 지정신청서의 접수를 거부한 사실, 이에 에쓰오일은 일반지방산업단지지정신청을 위하여는 위 자연녹지지역의 용도변경이 선결과제임을 인식하고, 그 직원들이 서산시장이나 서산시청 담당 직원들을 방문하여 조속한 용도변경을 요청하였으나, 서산시장이나 서산시청 담당자들은 그 무렵부터 대산지역 번영회 및 시민단체를 중심으로 하여 조직적으로 일기 시작한 제2공장의 대산지역 입주를 반대하는 여론을 의식하여 그 민원문제부터 해결할 것을 요구한 사실, 이에 에쓰오일은 그 무렵부터 대산지역 이장 등 여론에 영향력 있는 인사들을 접촉하고, 지역주민의 동향을 파악하였으며, 서산지역 출신의 직원 공소외 3을 서산시에 상주시키기도 하였으며, 대산지역 영세민들에게 난방유를 공급하는 등 민원문제 해결을 위한 활동을 시작한 사실, 한편 공소외 1 서산시장은 2005. 12. 2. 전화로 피고인 2에게 용도변경을 서둘지 말아달라는 취지의 요구를 한 사실, 그런데 에쓰오일은 2005. 12. 22. 서산시청에 위 자연녹지지역의 용도변경을 요청하는 공문을 보냈고, 2006. 1. 6. 공소외 2가 서산시장을 방문하여 용도변경절차를 신속히 진행해 달라고 요청하였는데, 공소외 1이 서두르지 말라고 한 사실, 서산시는 2006. 1. 16. 용도변경은 주민제안사항이 아니라고 통보하여 사실상 에쓰오일의 조속한 용도변경 요구를 거부한 사실, 그 후 에쓰오일은 제2공장 신축 예정부지 중 공업지역인 약 37만 평에 대하여만 먼저 일반지방산업단지지정신청을 하기로 방침을 변경하여, 2006. 2. 8. 그러한 취지의 일반지방산업단지지정신청서를 서산시청에 제출한 사실, 한편 에쓰오일로서는 제2공장 신설을 추진함에 있어 그 무렵 국제원자재 값이 상승하고 있었고, 제2공장의 신설을 위한 중요기자재 중 일부는 발주로부터 그 제작기간이 30개월 이상 걸리는 점에서 시급히 행정절차를 밟아야만 이사회의 의결을 거쳐 부지 매수 작업 및 위 중요 기자재의 발주 등의 후속절차를 진행시킬 필요가 있었던 사실 등을 인정한 다음, 에쓰오일측으로서는 도시계획변경절차나 일반지방산업단지지정절차가 조속히 개시되어야 할 필요가 있었으므로, 비록 서산시장이 이에 대하여 긍정적인 입장을 취하였다고 하나 서두르고 있지는 아니하였으므로, 피고인 1을 통하여 그와 정치적 동지의 관계에 있는 서산시장 공소외 1에 대하여 영향력을 행사해 줄 것을 기대하면서 이를 부탁할 필요성이 있었다고 보이는 점 등에 비추어, 피고인 2나 공소외 2가 피고인 1과 도시계획변경 및 일반지방산업단지지정신청과 관련하여 대화를 나누고 나아가 협조를 부탁한 것은 도시계획변경 및 일반지방산업단지지정과 관련하여 서산시장에게 협조를 구해달라는 청탁 또는 알선 요청을 한 것이라고 봄이 상당하므로 이와 관련하여 정치자금을 기부하거나 기부받은 것은 정치자금법 제32조 가 금하는 기부행위에 해당한다고 판단하였다.

② However, it is difficult to accept the judgment of the first instance court as above in the following respects:

As seen above, reflecting widely the will of the National Assembly member as a broker of the National Assembly member who is responsible for reflecting the will of the people in the process of policy-making should be deemed to belong to the scope of the member’s duty. To such extent, the member’s duty activities within such scope are indivisible with decision-making or policy enforcement of the relevant policy authorities or public officials in charge. Therefore, the act of presenting opinions on the policies of the National Assembly member at all times by the public officials in charge in the process of policy-making shall not be deemed to be prohibited as falling under solicitation or mediation concerning the affairs in charge and handling of the public officials as provided by Article 32 subparag. 3 (hereinafter “instant provision”) of the Political Funds Act. However, to reflect such opinion in the process of policy-making, it is reasonable to consider and determine whether such expression of will or duty activities of the National Assembly member constitutes a policy proposal belonging to the legitimate scope of the member’s duty, and if it is always the same as that of the National Assembly member’s political fund act prohibited under the legislative proposal that is prohibited by our political fund act and its legitimate purpose.

In addition, in order for a National Assembly member to present his opinion on a policy to a public official in charge in the course of policy-making process to constitute a policy proposal that belongs to the legitimate scope of a National Assembly member's legitimate scope of duty, the first content of the policy should not be that it is difficult for any member to agree with such policy by having his opinion objectively reasonable under a sound social norms. Second, while recognizing that the motive is contrary to the public interest of the entire people or local residents related thereto, there is only the intention that a National Assembly member would intervene in the interest of a specific person or organization, and the third method of opinion submission shall not be used for unfair pressure, illegal presentation of consideration or political influence, and fourth, the procedure that objectively verifies the validity of the policy should be planned in advance in the course of formulating or implementing the policy in accordance with the opinion presented in accordance with related administrative procedures, and such procedure should not be likely to be punished by unlawful or unlawful means by the relevant National Assembly member, etc.

Accordingly, it is examined as to whether the Defendants’ act constitutes a contribution act with respect to solicitation or arrangement for the affairs in charge and handling by the public officials provided in this case.

1) First of all, the alteration of the use of the newly built site of this case, which was presented by Defendant 1, is already scheduled because the newly built site of this case is an industrial area under the urban management plan as seen above, and it cannot be deemed that the content itself constitutes a matter that shows a positive attitude in the Seosan market, and that it is difficult for anyone to agree with such a policy with the intention of a sound social norms (the fact that the Seosan market, stating that the use of the newly built site of this case should not be avoided or unreasonable, is likely to cause a civil petition in the relevant region, rather than the prompt alteration of use, because the use of the new site of this case was denied or unreasonable.)

2) Second, Defendant 1, as a member of the National Assembly, who is a member of the Financial and Economic Committee in charge of overall economic policies and who fails to find an appropriate factory site, presented his opinion on the change of the use of the factory site of this case in the process of attracting a meeting between the manager and the local market and making efforts to promote the development of his local constituency in order to facilitate the development of his local constituency, and thereby, proposing the above opinion on the change of the use of the new site of this case, while recognizing that Defendant 1 is contrary to the public interest of all citizens or the residents of the local constituency related thereto, it does not seem that Defendant 1 presented the above opinion solely on the basis of the intention to intervene in the right of publication in the right of publication.

3) Third, as recognized by the first instance court, there is no record that Defendant 1 unfairly used unfair pressure, presentation of unfair consideration, or political influence in presenting opinions that prompt change of use is necessary to the Mayor of Seosan.

4) Fourth, the administrative procedures related to the change of use are as follows. In light of such administrative procedures, the change of use can not be made only by exercising the authority of the Seosan market, and if the Seosan market formulates a policy, it is determined that the policy’s feasibility is objectively verified in advance. There are no circumstances suggesting that such procedures might be punished by unlawful or unlawful means by Defendant 1, etc.

【Administrative Procedure Concerning Change of Use】

The concept of industrial complex development (development plan and feasibility study, the selection of business types), the investigation of land and rights, the formulation of a plan for the development of industrial complex / the development of cultural heritage indices / the formulation of a plan for the development of industrial complex / (including the master plan, the pre-environmental review, and the pre-disaster impact review) / Consultation with the relevant offices and departments for resident inspection / Consultation with the relevant industrial complex designation application / the relevant industrial complex designation application / the relevant agencies, the consultation with the relevant departments, the consultation with the relevant departments, the consultation with the competent Do Governor / the Do Governor / The designation of industrial complex, the announcement / the establishment of the public announcement / the establishment of the industrial complex implementation plan / the environmental impact assessment, the traffic impact assessment, the traffic impact

In full view of the above points, it is reasonable to view that Defendant 1’s presentation of the opinion that Defendant 2 arranged a meeting with Defendant 2 and the Seosan market and the prompt change of the purpose of use is within the original scope of a member of the National Assembly, which constitutes a policy proposal to reflect the will of the people in the process of policy making as an intermediary of the people responsible for reflecting the will of the people during a series of policy making processes. Accordingly, even if Defendant 2, the manager of Emmpi who gains profits as a result of such request made the above act to Defendant 1 and made a contribution of the relevant political funds, the Defendants’ act does not constitute a contribution act related to the solicitation or arrangement of the affairs that the public official is prohibited from the instant provision.

On the contrary, the first instance court determined that the Defendants’ act constitutes a contribution act with respect to solicitation or mediation for the affairs in charge and handling the instant provision, or erred by misapprehending the legal principles on the scope of contribution acts in connection with solicitation or mediation for the affairs in charge and handling the instant provision (the Defendants are not only those of the residents in the mountain area (hereinafter referred to as “civil petition issues”) but those of the Defendants were given and provided assistance or advice for solving civil petition problems, and there is no solicitation for the administrative measures such as change of purpose of use, etc. The first instance court determined that there was a separate crime since the public officials' civil petition of the residents in the mountain area was separated into those of before and after November 2005. However, the issue of civil petition and administrative measures cannot be viewed as closely related to one another, and it is reasonable to view that the Defendants’ request for consultation or mediation for all the affairs before and after the National Assembly members’ request is not related to the above affairs.

The grounds for appeal by the Defendants in this part are justified.

(2) As to Defendant 1’s assertion of mistake of facts or misapprehension of legal principles that Defendant 1’s contribution of the political fund of this case was made to Defendant 1’s supporters’ association, and Defendant 1’s supporters’ association is separate from Defendant 1, and thus, Defendant 1 cannot be deemed to have received political funds through Defendant

(A) A member of the National Assembly cannot be deemed to have received a contribution from a member of the National Assembly unless there are circumstances, such as having a member of the National Assembly contributed a political fund to his/her supporters' association with respect to the affairs in charge and management of a public official, even though he/she received a contribution of the political fund through the form of a supporters' association (see Supreme Court Decision 96Do837 delivered on June 9, 19

(B) Although the first instance court is unable to receive political funds without going through the current supporters' association under the Political Funds Act, considering the legislative purport of the Political Funds Act that stipulates that a public official may not make or receive political funds in connection with the affairs to be in charge or handled by him/her, and punish a violator of this Act, if at least the supporters' association exists formally to the extent that he/she can be deemed to substantially manage the said supporters' association in light of the human structure and operation status of the supporters' association, even though the supporters' association contributed the supporters' association with the support fund, it shall be deemed to have received political funds by the farmer. Based on the premise that the supporters' association used the office of Defendant 1 to make a contribution, it shall be assumed that the supporters' association did not have an employee belonging to the above supporters' association, and that the supporters' association was merely an assistant officer of Defendant 1, and that the supporters' association did not have a separate statement about the fact that the supporters' association received political funds from the head of the Tong and the head of the Tong from time to time to time, and that the supporters's's association did not have a political fund as Defendant 1 and an employee.

(C) The judgment of the first instance court above is not acceptable in the following respect.

First, the first instance court acknowledged the criminal facts to the effect that Defendant 2, Nonindicted 2, 6, 7, and 8 paid 1 million won or 100,000 won to Defendant 1 at Defendant 2’s office. However, according to the records, Defendant 2, etc. is not directly paid support money to Defendant 1, but also remitted to Defendant 1’s supporters’ association account. Thus, this is examined on this premise.

A supporters' association is designated as a member of the National Assembly under the Political Funds Act, and is established and operated to contribute the collected support fund to the relevant member of the National Assembly, and has independent authority and duties in accordance with the Political Funds Act, and the Political Funds Act does not prohibit the assistant officers, etc. of the relevant member of the National Assembly from holding concurrent office as an accountant in charge of or an employee of the supporters' association in respect of the personnel composition, etc. of the supporters' association, and in reality, the National Assembly member of 86.9% as of the last day of December 22, 2005 operates the National Assembly hall or local constituency office as an office without a separate supporters' association office and operates the National Assembly hall or local constituency office as an office for the National Assembly member as of December 22, 206 as of December 22, 2006, considering the situation that the National Assembly member of 49.5% as of December 22, 206 is concurrently holding office as an accountant in charge of the supporters' association (the result of inquiry of the Chairperson

The case where a member of the National Assembly receives political funds through a supporters' association in the form of this point refers to the case where the member of the National Assembly actively demands the contribution of political funds or the person who receives the political funds, and the member of the National Assembly has a prior intention or contact with them (the case where Defendant 1 does not request Defendant 2 to contribute the political funds of this case and there is no prior prior intention or contact, the same as the case recognized by the first instance court), and the personal organization or operational status of the supporters' association cannot be viewed as a case where a member of the National Assembly receives political funds through a supporters' association in the form of

Unlike this, the first instance court erred by misapprehending the legal principles on the requirements to constitute a case where Defendant 1 received political funds from Defendant 2, etc. through a supporters' association in the form of a supporters' association or received political funds through a form of a supporters' association.

The grounds for appeal by Defendant 1 are well-grounded in this respect.

(3) As to Defendant 2’s assertion of misapprehension of the legal principle that it is unreasonable to punish Defendant as an indirect offender with respect to political funds contributed by a third party

(A) The court of first instance rejected Defendant 2’s assertion that it is unfair to punish Defendant 2 as an indirect offender, on the contribution act of those who are recognized as being used as an instrument by Defendant 2, on the premise that Defendant 2 can be held liable for a crime as an indirect offender, in light of the facts stated in the judgment, on the ground that it can be acknowledged that the employee who is written on the judgment of the court of first instance was used as Defendant 2’s instrument.

(B) However, it is difficult to accept the first instance judgment in the following respect.

Since the provisions of this case prohibit the act of contributing political funds in relation to a specific act, they should be punished as a principal offender who violated this provision, the act that the defendant himself/herself has contributed political funds or that the defendant can be evaluated as having contributed political funds at least.

In this case, the employee who contributed political funds seems to have reached a contribution act due to the company's solicitation or encouragement. However, as long as he contributed political funds by his own will, it is reasonable to deem that the employee contributed political funds, and Defendant 2 cannot be deemed to have contributed political funds (the subject of tax credit based on the contribution of political funds is an employee and there is no reason to deliver the amount of tax credit to Defendant 2. In addition, if Defendant 2 arranges the contribution by unfairly suppressing the intention by taking advantage of business, employment and other relations, it may be punished pursuant to Article 33 of the Political Funds Act, but there is no evidence to acknowledge this).

In addition, in order to constitute an indirect crime, a person who is not punished for any act or who is punished as an offender through negligence is required to use his/her tool to commit a crime.

In this case, the majority of the employees who contributed political funds to Defendant 1 was well aware that Defendant 1 could assist Defendant 1 in attracting a second-factory factory in the Seosan as a member of the National Assembly in Seosan. As long as Defendant 2 does not arrange for the contribution by unfairly suppressing the employee’s intention, it cannot be deemed that Defendant 2 was used as a tool by Defendant 2.

(C) Therefore, the court below erred by misapprehending the legal principles as to indirect principal offenders, which held that the employee who is marry cannot be held liable for indirect principal offenders against the portion contributed, and that the first instance court may punish Defendant 2 as indirect principal offenders against this part.

The grounds for appeal by Defendant 2 are well-grounded in this respect.

(4) Therefore, without examining the remaining grounds for appeal by the Defendants, the judgment of the first instance cannot be maintained any more.

B. Regarding the prosecutor's grounds for appeal

(1) As to the charges of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

Of the facts charged in this case, although Defendant 1 cannot receive money and other valuables or benefits with respect to the intermediation of matters belonging to public official's duties, the court of first instance determined that Defendant 1 violated Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes by taking out the form of support money and receiving KRW 56 million with respect to the intermediation of matters belonging to public official's duties as stated in the facts charged in paragraph (1) of the judgment of the court of first instance, in light of the legislative intent of the Political Fund Act where the supporters' association has a supporters' association, once the support money paid to the supporters' association was reverted to the above supporters' association and contributed to the relevant member of the National Assembly, and since Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes does not have a provision for acquiring a third party, it cannot be deemed that Defendant 1 acquired property from Defendant 2 (see Supreme Court Decision 96Do837, Jun. 9, 198).

Examining the reasoning of the judgment of the first instance in comparison with the records, the judgment of the first instance is just and acceptable, and there is no error of misapprehending the legal principles as alleged by the prosecutor.

The grounds for appeal by the prosecutor in this part shall not be accepted.

(2) As to the facts charged of partially not guilty of the facts charged of violating the Political Funds Act

The first instance court affirmed Defendant 1 as not guilty on the ground that among the facts charged in this case, Defendant 1 received an application for the designation of a general local industrial complex with respect to the amount of 70,000 square meters including the natural green area of 330,000 square meters around November 205, on the ground that the aforementioned application was included in the pre-determined site of the factory from Seosan City, but there was no evidence to acknowledge the change in the above usage and the change in the pre-scheduled site of the factory, from January 2006 to January 2006, it made efforts to make it possible to obtain the designation of a general local industrial complex as soon as possible. The portion that Defendant 2 received political funds from Defendant 2 in relation to mediating the establishment of a factory and the portion that Defendant 2 contributed political funds in relation to this decision.

According to the records, the first instance court’s decision that there is no evidence to acknowledge this part of the facts charged is acceptable. However, although this part of the facts charged does not specify the contents thereof, if it refers to an act that is merely a policy proposal as seen above, it is not applicable to the act within the original scope of duty of a member of the National Assembly as seen above. Thus, the first instance court’s decision not guilty on the ground that there is no evidence to acknowledge this on the premise that this part of the facts charged can be punished pursuant to the provisions of this case,

This part of the prosecutor's appeal cannot be accepted.

3. Conclusion

Therefore, under Article 364(6) of the Criminal Procedure Act, the judgment of the first instance court is reversed without considering the remaining grounds for appeal by the Defendants and the grounds for appeal of unfair sentencing by the prosecutor, and the following is again decided as follows.

The summary of the facts charged in this case against the Defendants is as shown in the attached facts charged, and there is no evidence to acknowledge it, and thus, the Defendants are acquitted under the latter part of Article 325 of the Criminal Procedure Act.

[Attachment Form 5]

Judges Kim Sang-sung (Presiding Judge)