[1] The meaning of "contribution" under Article 112 (1) of the Public Official Election Act

[2] The case holding that in a case where a person, who had no basis for supporting a specific political party in connection with a local election, provided money under the pretext of political consulting expenses such as activity expenses, etc. with the request of the head of the relevant political party to help the defendant et al. receive a celebity as a candidate for the head of the relevant political party, since the above money was actually purchased by having the defendant et al. contact a large number of people related to public service and provided it for such unlawful campaign as securing their assistance or support, the above money offering constitutes a contribution act under Article 112 (1) of the Public Official Election Act

[1] Article 112 (1) of the Public Official Election Act / [2] Article 112 (1) of the Public Official Election Act

[1] [2] Supreme Court Decision 96Do1558 delivered on December 23, 1996 (Gong1997Sang, 569) / [1] Supreme Court Decision 96Do500 delivered on November 29, 1996 (Gong1997Sang, 260) / [2] Supreme Court en banc Decision 2001Do2819 delivered on February 21, 2002 (Gong2002Sang, 734)

Defendant

Defendant

Attorney Mayang-yang

Seoul High Court Decision 2006No1430 decided September 27, 2006

The appeal is dismissed. 65 days out of detention days after the appeal shall be included in the original sentence.

The defendant and public defender's grounds of appeal are also examined.

1. The term "contribution" under Article 112 (1) of the Public Official Election Act means, in principle, an act of offering money, goods, and other property benefits to the other party free of charge, an expression of intent to offer benefits, or an act of promising such an act. Thus, in a case where such an act is performed with legitimate consideration such as performance of an obligation, it shall not be a contribution act. On the other hand, even if such an act is performed with no compensation or a certain consideration relationship, it shall not be deemed a legitimate consideration relationship if a part is made free of charge (see, e.g., Supreme Court Decisions 96Do500, Nov. 29, 196; 96Do1558, Dec. 23, 196).

In light of the facts admitted by the first instance court as cited by the court below, in particular, the defendant and co-defendant 2 (hereinafter referred to as "defendants, etc.") with respect to local election scheduled to take place on May 31, 2005, upon the request of the head of (the name of the political party omitted) Gu (the name of the local government omitted) who were not the basis of support from the non-indicted 1, who purchased the local election scheduled to take place on May 31, 2005, and then, upon the request of the head of the (the name of the political party omitted), the non-indicted 1 was introduced to the council members and workers on duty (the name of the political party omitted) (the name of the political party omitted), and the non-indicted 1 did not receive money from the non-indicted 20,000 to 30,000,000 won from the non-indicted 1 to the non-indicted 2's (the fact that the non-indicted 2's office was ordered to take part in the political party).

Although the reasoning of the judgment of the court below is somewhat inappropriate, the conclusion that the defendant et al. received the money of this case from the non-indicted 1 does not due to due consideration relations, but constitutes an act of receiving a contribution under the Public Official Election Act is just, and there is no violation of law such as misunderstanding of legal principles as to contribution acts under the Public Official Election Act, as argued in the Grounds for Appeal.

2. The conspiracy in which two or more persons jointly process the crime does not require any legal punishment, but is a combination of intent to realize the crime by combining two or more persons jointly process the crime, and even if there was no process of the whole conspiracy, if there was a combination of intent to do so in order or impliedly, among several persons, the conspiracy relationship is established, and even if there was no direct participation in the act of the conspiracy, even if there was no direct participation in the act of the conspiracy, the person is liable for the act of the other conspiracy as a co-principal (see, e.g., Supreme Court Decisions 2004Do1465, May 28, 2004; 2006Do638, Apr. 14, 2006).

The court below acknowledged the facts as stated in its decision after comprehensively taking account of the adopted evidences, and held that even if the defendant et al. received the money in this case from the non-indicted 1 in advance without communication individually, the defendant et al. shall be deemed to have reached an agreement with the intention of receiving the money from time to time as the activity fund for the cooperation of the non-indicted 1, and accordingly, the defendant et al. shall be deemed to have received the money needed. In light of the above legal principles, the above fact-finding and decision of the court below is just, and there is no error of law such as misconception of facts against the rules of evidence as alleged in the grounds for appeal.

3. Therefore, the appeal shall be dismissed, and part of the number of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Si-hwan (Presiding Justice)