[1] The requirements to deny the illegality of a contribution act that does not fall under the ordinary or official acts under Article 112(2) of the Public Official Election Act

[2] Requirements for a party member’s act of paying party membership fees constitutes an act that does not constitute a contribution act under the Public Official Election Act

[3] The case holding that the act of paying special party membership fees in violation of the party membership fees payment regulations constitutes an act of donation prohibited under the Public Official Election Act

[4] The case holding that since it cannot be seen that the intent to contribute money with respect to the act of paying special party membership fees was expressed explicitly or explicitly at the time of donation, it cannot be viewed that the donation act was made with respect to the election of candidates

[1] In light of the provisions of Articles 113, 112(1), and 112(2) of the Public Official Election Act, insofar as the act of offering money and goods falling under Article 112(1) does not constitute a formal or official act or ordinary political party activity according to Article 112(2) and the National Election Commission Regulations and the relevant committee’s decision, it constitutes the element of crime under Article 257(1)1 of the Public Official Election Act punishing a violation of the prohibition of donation by candidates, etc. provided that the act of donation by candidates, etc. does not constitute a formal or official act or ordinary political party activity under Article 112(2) of the same Act, but even if the act of donation by the candidates, etc. does not constitute an ordinary or ordinary political party activity under Article 112(2) of the same Act, if it can be deemed that it is within the scope of the social order created naturally as a kind of formal or official act, or ordinary political party activity under Article 112(1) of the same Act, and thus, it should be carefully justified.

[2] Where a member of a political party pays party membership fees or other charges pursuant to the party constitution, party rules, and other internal regulations of a political party, which are not considered as a contribution act under Article 112 (2) 1 (b) of the Public Official Election Act, intends to constitute “the act of a member of a political party to pay party membership fees or other charges pursuant to the party constitution, party rules, or other internal regulations of a political party, it shall be limited to cases under the party constitution, party rules

[3] The case holding that the act of paying special party membership fees in violation of the party membership fees payment regulations constitutes an act of donation prohibited under the Public Official Election Act

[4] The case holding that since it cannot be seen that the intent to contribute money was expressed explicitly or explicitly at the time of donation, with respect to the act of paying special party membership fees, it cannot be deemed that the above donation was made in relation to the success of the candidate

[1] Articles 112(1) and (2), 113, and 257(1)1 of the Public Official Election Act / [2] Article 112(2)1(b) of the Public Official Election Act / [3] Articles 112(2)1(b) and 257(1)1 of the Public Official Election Act / [4] Articles 32 subparag. 1 and 45(2)5 of the Political Funds Act

[1] Supreme Court Decision 95Do2820 delivered on May 10, 1996 (Gong1996Ha, 1937) Supreme Court Decision 2004Do7360 Delivered on January 13, 2005 (Gong2005Sang, 254)

Defendant

Defendant and Prosecutor

Law Firm Woo et al.

Gwangju High Court Decision 2006No145 decided Dec. 29, 2006

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

1. As to the prosecutor's appeal

With respect to the primary facts charged in the instant case (the violation of the Public Official Election Act by the act of contribution to Nonindicted Party 1), the lower court found the Defendant not guilty of the primary facts charged on the grounds that, among the evidence submitted by the prosecutor, the entry of Nonindicted Party 2, 3, 4, and 5 in each prosecutor’s statement, the entry of Nonindicted Party 4 in each prosecutor’s statement, Nonindicted Party 4’s statement in the first instance court, and the protocol of examination of Nonindicted Party 5 in each prosecutor’s protocol in each prosecutor’s protocol in each prosecutor’s protocol in each of the first and second prosecutor’s protocol in each of Nonindicted Party 1, which correspond to the primary facts charged, are not admissible for the reasons as indicated in its holding. The second prosecutor’s protocol in each of the second prosecutor’s protocol in each of the first and second prosecutor’s protocol in each of the first prosecutor’s protocol in each of the first prosecutor’s protocol in each of the following facts, each of the statements from the same person’s investigative agencies to the court below’s court, immediately

In light of the records, the judgment of the court below is just and acceptable, and it cannot be said that there is any illegality that misleads the facts against the rules of evidence.

2. As to the defendant's appeal

A. Violation of the Public Official Election Act under the Act on Contribution to Party (the omission of party name) among the ancillary facts charged

(1) Article 113(1) of the Public Official Election Act prohibits a candidate (including a person intending to become a candidate) and his/her spouse, regardless of whether he/she is related to the election in question, from providing a comprehensive provision of the kind of contribution act subject to punishment under Article 112(1) and, in light of the statutory method, limited cases where the act of offering money and valuables falling under Article 112(2) does not constitute a contribution act under Article 112(2) and the National Election Commission Regulations and its decisions based on Article 112(2) and the National Election Commission Regulations and the Committee, and the National Election Commission Regulations and their decisions based thereon, so long as the act of offering money and valuables falling under Article 113(1)1 does not fall under the category of a crime subject to Article 257(1)1 of the Public Official Election Act (including a person intending to be a candidate) and the act of offering money and valuables does not fall under the category of a contribution act under the category of ordinary activities, it is deemed unlawful or unlawful under Article 1507(20.

Meanwhile, where a member of a political party pays party membership fees or other charges to a party under Article 112 (2) 1 (b) of the Public Official Election Act that is not considered as a contribution act under Article 112 (2) of the same Act, if a member of a political party falls under “the act of paying party membership fees or other charges to a party according to the party constitution, party regulations and other internal regulations of the political party, it shall be subject to the party constitution, party regulations and other internal regulations

(2) Examining the record in light of the above legal principles, the provisions of the party membership fee at the time of the instant case provide that the special party membership fee shall be paid to the central party; the deposit of the party membership fee shall be made only by means of automatic account transfer, mobile phone or wire telephone settlement, and other settlement methods determined by the central committee; and the Defendant, not by the aforementioned provisions at the time of the instant case, takes the method of delivering KRW 10 million in cash to Nonindicted 1, who is the director general of the organization of the former North Korean Dos party (the name of the political party omitted) and pays it as the special party membership fee at the former North Korean Dos party that is not the central party. Accordingly, the Defendant’s act of paying the party membership fee does not constitute “an act of paying the party membership fee or other charges pursuant to the party constitution or other internal regulations of the political party” under Article 112(2)1(b) of the Public Official Election Act, and therefore, the constituent elements of the crime under Article 257(1)1 of the Public Official Election Act fall under the category of ordinary social order.

(3) Although the reasoning of the lower judgment in this part is inappropriate, it is reasonable to find the Defendant guilty of violating the Public Official Election Act by making contributions to (the name of a political party omitted) party among the ancillary facts charged. Therefore, it cannot be said that there is an error of misapprehending the rules of evidence or misapprehending the legal principles on activities related to ordinary political party activities that are not considered as a contribution act under the Public Official Election Act.

B. Violation of the Political Funds Act among the ancillary facts charged

(1) The summary of this part of the facts charged is that the defendant was elected by going to the candidate for the Gun (name omitted of the political party) of the local election (name omitted) held on May 31, 2005, and anyone is not entitled to contribute political funds in connection with the election of public officials. In the election of public officials, the central party of the party (name omitted) selected candidates for public office per party (name omitted of the political party) by means of public opinion polls on the party members residing in the area concerned and residents, and by means of public opinion polls on the election of public officials of the central party (name omitted). Based on the result, in the situation that the special committee on the examination of candidate for public office of the central party conducted competition in a manner of examining and determining eligibility at the Special Committee on the examination of candidate for public office of the political party, it is difficult to allow the chairperson to get direct and indirect assistance from the chairman of the Do political party and to offer money to the 100 Do 30 Do 100 Do 200 Do 260 Do 30.

(2) After compiling the evidence adopted, the court below acknowledged the facts as stated in its reasoning. (The time when the defendant contributed the above money to the political party (the name of the political party omitted). (The time before the (name of the local government) candidate was discussed about the (name of the political party omitted), the (name of the political party omitted), the (name of the political party omitted), the (name of the political party) party candidate was placed in the place where it was difficult for the (name of the political party omitted), or the (name of the political party) the party candidate was recommended to pay the party membership fee through the party members, and the (name of the political party omitted) Nonindicted Party 6, who was the chairperson of the former North Korean political party, appealed to refrain from paying the party membership fee. (name of the political party omitted) The court below decided that the defendant was not the party member candidate who was the party member candidate of the new political party, and that the defendant was not the party member candidate who was the party candidate of this case, and that he was not the party member candidate of this case, and that he was not the party member of this case.

(3) However, we cannot agree with the judgment of the court below for the following reasons.

The conviction in a criminal trial shall be based on evidence with probative value, which can lead a judge to believe that the facts charged are true beyond a reasonable doubt, and if there is no evidence to form such a conviction, it is inevitable to determine the defendant as the benefit of the defendant even if there is doubt that the defendant is guilty (see Supreme Court Decision 2004Do1365, Oct. 15, 2004, etc.).

According to the records, among the evidence submitted by the prosecutor, it is not possible to find out evidence that the defendant explicitly or implicitly expressed his intention to contribute the above money to the (a party name omitted) party (the party name omitted) at the time of delivering KRW 10 million to the non-indicted 1. In addition, considering all the circumstances such as the time and method of paying the defendant's special party membership fee as cited by the court below, the (a party name omitted) party at the time of paying the party membership fee and the situation where the defendant was faced, the above defendant can only be viewed as having the expectation of deliberation that "it would not help or be treated at least disadvantageously by paying the party membership fee" at the time of delivering the above KRW 10 million to the non-indicted 1,000,000, and it cannot be deemed that the central party of the non-indicted 1 and the defendant has expressed his intention to contribute the above money to the (a party name omitted) party in connection with the donation of the political fund at the time of the court below's approval of the court below.

Nevertheless, the court below determined that the act of donation by the defendant in this case was conducted in relation to the official election of the candidate (the name of the local government omitted) for the (the name of the local government omitted) head of the Gun, and found the defendant guilty of violating the Political Funds Act among the preparatory facts charged. Therefore, the court below erred by misunderstanding the facts contrary to the rules of evidence, and such illegality has affected the judgment

3. Scope of reversal

Therefore, the part of the judgment of the court below on the violation of the Political Funds Act among the ancillary facts charged should be reversed, and the part on the violation of the Public Official Election Act by a contribution act to the (party name omitted) among the ancillary facts charged in relation to the commercial concurrence cannot be reversed together. As long as such ancillary facts charged are reversed, the part on the main facts charged in relation to the same body should be reversed.

4. Conclusion

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 Sung-tae (Presiding Justice)