Defendant 1 and two others

Defendants and Prosecutor

Kim Jae-sik et al.

Law Firm Lee & Lee LLC, Attorneys Kim Jong-hwan et al.

Seoul Central District Court Decision 2008Gohap877, 899 (Consolidated), 10777 (Consolidated) Decided October 29, 2008

All appeals filed by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant 1’s assertion

(1) As to the demand for contribution to Nonindicted 1

Although Defendant 1 received request from Nonindicted 1 for the withdrawal and delivery of Nonindicted 2, Defendant 1 did not demand money and valuables from Nonindicted 1 in relation thereto, the lower court found Defendant 1 guilty of this part of the facts charged. In so doing, the lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

D. As to the receipt of KRW 1 billion in relation to the recommendation of a candidate by a political party on March 7, 2008

Defendant 1 received KRW 1,00,000,000 from March 7, 2008 under the name of donation to ○○○○○○○ Association, not from the recommendation of a candidate for a political party. Thus, it cannot be deemed as a violation of Article 47-2 of the Public Official Election Act. Thus, the lower court found Defendant 1 guilty of this part of the facts charged. In so doing, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, which affected the conclusion

Then, as to the fraud of Nonindicted 3 and acceptance of good offices

Although Defendant 1 merely borrowed KRW 100 million from Nonindicted 3, and did not have obtained money by deceiving Nonindicted 3 under the pretext of arranging the appointment of public corporation auditors, which are matters belonging to the duties of the president who is a public official, the lower court found Defendant 1 guilty of this part of the facts charged. The lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

m. As to the fraud and good offices against Nonindicted 4

Defendant 1 received support payments of KRW 50 million from Nonindicted 4, but did not have obtained money by deceiving Nonindicted 4 under the pretext of mediating the appointment of public corporations, which are matters belonging to the duties of the president who is a public official, by deceiving him. The lower court found Defendant 1 guilty of this part of the facts charged. In so doing, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, which affected the conclusion of the judgment.

(v) argument on unreasonable sentencing;

In light of the various factors of sentencing in the instant case, the sentence of the lower judgment is too unreasonable.

B. Defendant 2’s assertion

(1) As to the fraud against Nonindicted 5

Defendant 2 did not say that the victim Nonindicted 5 et al. had a construction plan, such as a golf course, a golf club, and a real-time association, or a return of the money invested in an election campaign. Even if Defendant 2 made such remarks, it cannot be deemed a deception because it was conducted regardless of the act of borrowing money from the victim Nonindicted 5. Defendant 2 merely did not pay the money from the victim Nonindicted 5 at the time of borrowing the money from the victim Nonindicted 6, but did not pay the money due to the non-indicted 6’s failure to pay the money. Thus, the court below found Defendant 2 guilty of this part of the facts charged. The judgment below erred by misapprehending the facts or by misapprehending the legal principles on fraud, which affected the conclusion of the judgment.

As to the mediation and acceptance of Nonindicted 3

Defendant 2, who wanted to be a good job for Nonindicted 3, transferred it to Defendant 1, and was unaware of the fact that Nonindicted 3 wanted to be an auditor of an institution affiliated with the Ministry of Construction and Transportation. Even if Defendant 2 knew of such fact, it cannot be readily concluded that Defendant 2 knew of the fact that he wanted to be an auditor of a public corporation or quasi-governmental institution as provided in Article 5 of the Act on the Management of Public Institutions, and thus, it cannot be viewed as a crime of acceptance of good offices. However, the lower court found Defendant 2 guilty of this part of the facts charged. In so doing, the lower court erred by misapprehending the legal doctrine on the crime of acceptance of good offices, thereby adversely affecting the conclusion of the judgment.

Then, as to the good offices and acceptance of Nonindicted 4

Defendant 2 was aware of the fact that Nonindicted 4 wanted to be the audit place of an energy-related public corporation, and did not know that it wants to be the audit place of an agency. Thus, it cannot be readily concluded that Defendant 2 knew that he wanted to be the audit place of a public corporation or quasi-governmental institution as provided in Article 5 of the Act on the Management of Public Institutions, and that he wanted to be the audit place of an energy-related public corporation or quasi-governmental institution. However, the court below found Defendant 2 guilty of this part of the facts charged. In so doing, the court below erred by misapprehending the legal principles on the crime of receiving good offices or brokerage, which affected the conclusion of the judgment.

x argument on unreasonable sentencing

In light of the various factors of sentencing in the instant case, the sentence of the lower judgment is too unreasonable.

C. Defendant 3’s assertion

(1) As to the violation against prohibition of contribution act

㈎ 피고인 3이 피고인 1, 2에게 금원을 기부한 사실이 없고, 단지 피고인 1, 2에게 속아서 특별당비 명목으로 20억 원을, ○○회 추천서 비용으로 10억 원을 각 교부하였으나, 실제로는 피고인 3의 의사와는 달리 피고인 1이 위 30억 원을 개인용도로 사용한 것으로서 사실의 착오가 있는 경우에 해당되어 고의와 결과가 서로 부합한다고 할 수 없음에도, 원심은 이 부분 공소사실을 유죄로 인정하였으니, 원심판결에는 사실을 오인하거나 법리를 오해하여 판결에 영향을 미친 위법이 있다.

㈏ 공직선거법 제113조 제1항 은 기본적으로 지역구 선거만을 그 대상으로 하는 것으로서 비례대표 국회의원 후보자는 위 조항에서 말하는 후보자에 포함된다고 볼 수 없고, 이와 달리 해석하는 것은 헌법이 정하고 있는 평등의 원칙, 과잉금지의 원칙, 선거운동자유의 원칙, 죄형법정주의를 위반하고, 비례대표 국회의원 선거 후보자의 일반적 행동자유권, 행복추구권을 침해하는 것임에도, 원심은 이 부분 공소사실을 유죄로 인정하였으니, 원심판결에는 위 조항에 관한 법리를 오해하여 판결에 영향을 미친 위법이 있다.

As to the offering of money or valuables relating to the recommendation of candidates for political parties

Defendant 3 delivered KRW 1 billion to obtain the recommendation of the ○○○○○○○○○ Council, regardless of the recommendation of a political party, but in fact, Defendant 1 used the case of recommending candidates for proportional representative National Assembly members as a means to acquire money from Defendant 3 without having the intention or ability to obtain the recommendation of Defendant 3 as a candidate for proportional representative National Assembly members. Defendant 3 was merely a victim of the fraud, but the lower court found Defendant 3 guilty of this part of the facts charged. In so doing, the lower court erred by misapprehending the legal doctrine, which affected the conclusion of the judgment.

【Improperness Claim

In light of the various sentencing factors of this case, the sentence of the judgment of the court below is too unreasonable.

D. Prosecutor's assertion

(1) On February 13, 2008 and February 25, 2008 on the receipt of money and valuables relating to the recommendation of the candidate by the political party

Defendant 1 and 2 received a total of KRW 3 billion over three occasions on February 13, 2008, February 25, 2008, and March 7, 2008 with respect to the recommendation of a candidate for a political party, since all of the acts of receiving money and valuables of KRW 3 billion should be punished for violation of Article 47-2 of the Public Official Election Act, which takes effect from February 29, 2008, since all of the acts of receiving money and valuables of KRW 3 billion constitute a simple crime. However, the court below did not prohibit the acts of receiving money and valuables of February 13 and February 25, 2008, since each of the above acts did not meet the requirements for crime and cannot be evaluated as a comprehensive crime with the act of receiving money and valuables of March 7, 2008, which affected the conclusion of the judgment. The court below erred by misapprehending the legal principles, which affected the conclusion of the judgment.

Dod Defendant 2’s fraud against the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and Nonindicted 3 and 4

Defendant 2 was aware of the fact that Defendant 1 was recommended as a candidate for the proportional representative National Assembly member of ○○○○○○ Party or that the victim Nonindicted 3 and 4 had no intention or ability to arrange the public corporation to appoint Defendant 1 as a candidate for the proportional representative National Assembly member, in collusion with Defendant 1 and acquired money by deceiving Defendant 3, victims Nonindicted 3 and 4. However, the lower court acquitted Defendant 2 of this part of the charges on the grounds that there is no evidence to acknowledge the criminal intent of acquiring each of the fraud by Defendant 2. Accordingly, the lower court erred by misapprehending the fact and thereby adversely affecting

【Improperness Claim

In light of the various factors of sentencing in the instant case, the sentence of the lower judgment against the Defendants is unreasonable as it is too uneasible.

2. Determination

A. Judgment on the assertion that Defendant 1’s demand for contribution to Nonindicted 1 was made

○○○○○○○○○○ Party’s statement that was adopted by the lower court as evidence and Nonindicted Party 1’s statement that Nonindicted Party 1’s act was necessary for Nonindicted Party 1’s election campaign, and Nonindicted Party 1’s election campaign statement that was made at the time of Nonindicted Party 1’s demand, and Nonindicted Party 1’s election campaign statement that it was necessary for Nonindicted Party 1’s election campaign. However, Nonindicted Party 1’s election campaign statement and Nonindicted Party 1’s election campaign statement that it was necessary for Nonindicted Party 2’s election campaign, and Nonindicted Party 1’s election campaign statement that was made at the time of Nonindicted Party 1’s election campaign, and Nonindicted Party 1’s election campaign statement that was made at the time of Nonindicted Party 1’s election campaign, and Nonindicted Party 1’s election campaign statement that was made at the time of Nonindicted Party 1’s election campaign, and Nonindicted Party 2’s election campaign statement that was made at the time of Nonindicted Party 1’s election campaign. It is difficult to believe the remainder of Nonindicted Party 1’s statement.

B. Judgment on March 7, 2008 on the assertion that Defendant 1 and 3 received money or valuables related to the recommendation of a candidate of a political party

(i) Whether money or goods are received in connection with the recommendation of a candidate for a political party

According to the evidence duly adopted and examined by the court below, Defendant 1 recommended Defendant 2 to 00 billion won on October 207, 1, 2007, which was the first 00 million won of the National Assembly members, and the first 00 million won of the non-indicted 8 to 00 million won of the non-indicted 2 as well as Defendant 2, but the non-indicted 8 introduced Defendant 3 on his behalf to 00 million won of the non-indicted 1 and 2. Defendant 1 promised to 3 to 00 million won of the non-indicted 3's proportional representative members at 00 million won of the non-indicted 2's election. Defendant 1 and the non-indicted 2 recommended Defendant 3 to 00 million won of the non-indicted 2's election to 00 billion won of the non-indicted 3's proportional representative members. The non-indicted 3's recommendation to 00 billion won of the non-indicted 2's election to 300 million won of the defendant.

According to the above facts, the defendants received KRW 1.03 billion from March 7, 2008 on the recommendation of the ○○○○○○○○ party as a candidate for the proportional representative National Assembly member, and the defendant 1's act of arranging the recommendation. This constitutes either a case where the recommendation of the candidate is made or the offer of such money and valuables may have an impact on any form on the recommendation of the candidate. Thus, it is reasonable to deem that the defendant 1 and 3 accepted the above KRW 1.03 billion in relation to the recommendation of a specific person as a candidate by the political party under Article 47-2 (1) of the Public Official Election Act.

(2) Relationship between a violation of Article 47-2(1) of the Public Official Election Act and fraud

According to the above facts, even though Defendant 1 did not have the ability to recommend Defendant 3 as a candidate for the proportional representative National Assembly member by ○○○○○○○○○ party, the President promised to grant one member of the proportional representative National Assembly member to ○○○○○○○○○○○○○○ Council. Since Defendant 1 was delegated the right to recommend one member of the proportional representative National Assembly member by ○○○○○○○○○○○ Council member, he was able to be recommended as a candidate for the proportional representative National Assembly member if he was only recommended as a candidate for the proportional representative member by ○○○○○○○○○○ Council member by obtaining the above KRW 1.0

Meanwhile, comprehensively taking account of the above evidence, Defendant 1’s act of recommending ○○○○○○○○○○○○○○○○○○○○○○○○○○○○ University’s recommendation letter was introduced by Defendant 1, and then became aware of its executives including Nonindicted 9, which had been the president of the Seoul○○○○○○○○○○○○○○○○○○○○○○○○○○○ Association’s recommendation letter. Defendant 1 had the president attend the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Association’s recommendation letter. Defendant 1, who had been on the 17th presidential election, had the 10th presidential candidate be on the 18th presidential election.

In addition, according to the above facts, Defendant 3 erred by misapprehending Defendant 1’s ability to exercise influence on the recommendation of the candidate by deceiving Defendant 1, but it is reasonable to deem that Defendant 3’s act constitutes a violation of Article 47-2(1) of the Public Official Election Act, as long as it is acknowledged that Defendant 3 was related to Defendant 1’s recommendation, and that Defendant 1’s act constitutes a crime of violating Article 47-2(1) of the Public Official Election Act, even if there was any defect in the degree of decision making in the process of providing the above money, on the ground that Defendant 1 was able to obtain recommendation as a candidate for proportional representative member of ○○○○○○○○○○○○○○ party upon the recommendation of ○○○○ Council, even if Defendant 1 believed Defendant 1’s speech and provided money and valuables to Defendant 1.

【Court Decision】

Therefore, each of the defendant 1 and 3's arguments is without merit.

C. Determination as to Defendant 1’s fraud against Nonindicted 3 and Defendant 1 and Defendant 2’s acceptance of good offices against Nonindicted 3

According to the evidence duly adopted and examined by the court below, Non-Indicted 3 was retired from the Korea Railroad Corporation on July 2006, and Non-Indicted 1 was engaged in activities at the Central Election Countermeasure Committee at the time of the 17th presidential election, Non-Indicted 3 was aware of his career and expertise to Non-Indicted 12 who had been employed as a senior public official belonging to the Ministry of Construction and Transportation, and Non-Indicted 12 was able to become an auditor of the agency under the Ministry of Construction and Transportation. Non-Indicted 12 asked Non-Indicted 3 to request Non-Indicted 1 to provide funds to Non-Indicted 12, and then the Non-Indicted 12 asked Non-Indicted 3 to provide funds to Non-Indicted 10,000 won to Non-Indicted 2, and then the Non-Indicted 12 asked to provide funds to Non-Indicted 3 to Non-Indicted 1, 200,000 won to Non-Indicted 2.

According to the above facts, Defendant 1 and 2 knew that they want to be appointed as auditors of the public corporation related to Nonindicted 3’s past experience and the pertinent public corporation’s position, and receive a note or document stating the name of the specific public corporation wishing to be appointed as auditors. Thus, it is reasonable to deem that the above Defendants conspired to receive money and have received money for arranging the appointment of auditors of the public corporation, which is a matter belonging to the public official’s duties. Furthermore, in addition, if Defendant 1 stated that he had been unable to arrange the appointment of the public corporation to be appointed as auditors since the prosecutor’s office and to this court, and that he stated that Defendant 1 had no ability to arrange the appointment of the public corporation to be appointed as auditors of the public corporation, it is determined that Defendant 1 knew Nonindicted 3 to be appointed as auditors of the public corporation and acquired KRW 100 million from them. Thus, this part of the above argument by

D. Judgment on the assertion that Defendant 1’s fraud against Nonindicted 4 and Defendant 1 and Defendant 2’s good offices and good offices against Nonindicted 4

According to the evidence duly adopted and examined by the court below, Non-Indicted 4, who was retired while working in △△ for 27 years and was experienced in the energy system to Defendant 2 through Non-Indicted 13, around June 2008. Defendant 2, during the same month, wanted to be audited by the public corporations, including the Gas Corporation and the Water Resources Corporation. Defendant 2 demanded the Non-Indicted 4 to pay money for the purpose of supporting money through Non-Indicted 13 on July 14, 2008, and Non-Indicted 4 demanded the Korea Gas Corporation to deliver KRW 50 million to Defendant 2, who was admitted to Defendant 2, or prepared to receive money from his spouse. Defendant 1 and Non-Indicted 4, who continued to receive money from Non-Indicted 24, 208 (the resume).

According to the above facts of recognition, it is reasonable to view that Defendant 1 and 2 conspired to receive money and valuables from Nonindicted 4 regarding the intermediation of appointment of public corporation auditors, which are matters that belong to the public official's duties, and further, the above facts are acknowledged, and if Defendant 1 stated that Nonindicted 4 had no ability to arrange the appointment of public corporation auditors from the prosecution to the court, and Defendant 1 stated that he had no capacity to arrange the appointment of public corporation auditors, it is determined that Defendant 1 would have the appointment of public corporation auditors by deceiving Nonindicted 4, thereby deceiving Defendant 1 to acquire money and valuables from Defendant 50 million won. Thus, this part of the allegation by Defendant 1 and 2 is without merit.

E. Determination on Defendant 2’s assertion of fraud against Nonindicted 5

According to the evidence duly adopted and examined by the court below, non-indicted 14, an employee of the victim non-indicted 5, was visited the office of the defendant 2, who became aware of around September 2007, and was engaged in the business with the defendant 1, who was the wife of the candidate for the long-term President 2, and the candidate for the long-term President 2, would be a big day when he was elected, and the golf course and the construction of the real-time road would be constructed. The victim non-indicted 14 knew that the defendant 2 was a person with sufficient financial capacity. The defendant 2 was able to receive the above 0 billion won from the non-indicted 5's office at the time of borrowing the above 6's loan from the non-indicted 6's office. However, the defendant 14 was able to receive the above 6's loan from the non-indicted 5's office at the time of borrowing the above 6's loan from the non-indicted 14 and the conditions for the loan were changed by the defendant 2014.

According to the above facts, Nonindicted 6 attempted to make a loan to raise the age club construction cost, and it was inevitable for Defendant 2 to use the money from another person as construction cost because Nonindicted 6 did not have any ability to pay the construction cost, so even if Defendant 2 borrowed the money from the victim Nonindicted 5 to the victim Nonindicted 5, there was no guarantee that he would pay the construction cost within the period agreed by Nonindicted 6, and even if Defendant 2 did not have any other effort to prepare the repayment fund, it is reasonable to view that Defendant 5, who was the victim Nonindicted 5, by deceiving the victim Nonindicted 5 and by deceiving the victim under the pretext of borrowing money in the nearest time by taking advantage of the fact that the victim Nonindicted 5 was in excess of Defendant 2’s ability. Thus, this part of the allegation by Defendant 2 is without merit.

F. Judgment on the assertion on Defendant 3’s violation of the Restriction on Contribution Act

(1) The relationship between the violation of Article 113(1) and Article 47-2(1) of the Public Official Election Act

Article 113(1) of the Public Official Election Act provides that "A National Assembly member, local council member, head of a local government, representative of a political party, or candidate (including a person who intends to become a candidate) and his/her spouse shall not make contributions to persons in the relevant constituency, institutions, organizations, facilities, or persons, organizations, or facilities having relations with the electorate even if they are outside the relevant constituency." This provision provides that if such contributions contribute to, or are likely to be associated with, the establishment of the foundation for support of candidates, etc., and such contributions are allowed, the election itself does not become an opportunity for evaluation of the candidate's personal character, knowledge, policy, etc., rather than an opportunity for evaluation of the candidate's personal character, knowledge, and policy, it is established to prevent such acts from being carried out in the process of raising the candidate's financial ability. Meanwhile, Article 47-2(1) of the Public Official Election Act provides that "any person who intends to become a candidate shall not offer, express his/her intention to provide, or promise to provide them, or shall not ultimately receive or consent to provide them, such acts." This provision is established from the 1.

Whether it constitutes an act of contribution to Defendant 1 and 2

With respect to the meaning of "providing money and goods" under Article 112 (1) of the Public Official Election Act, which is the definition provision of "contribution act" under the Public Official Election Act, the meaning of "providing money and goods" does not necessarily be interpreted to be limited to the meaning of "providing money and goods to the other party." Even in the case of offering money and goods to the middle person, it is reasonable to interpret that the provision is included in "providing" under the above provision, even if there is no designated portion to the middle person, or a person who is merely a custodian, or a person who does so to deliver a specific amount of money and goods to the specific person, as long as there is a certain degree of judgment or discretion on the object, method, and amount of money and goods distribution to him/her (see Supreme Court en banc Decision 201Do2819, Feb. 21, 2

In the instant case, the lower court: (a) provided Defendant 1 and Defendant 2 with money for KRW 1 billion to Defendant 3 on or around February 5, 2008; and (b) provided Defendant 1 and Defendant 2 with money for KRW 1 billion on or around February 13, 2008; (c) provided Defendant 1 and Defendant 2 with money for KRW 1 billion to Defendant 3 on or before, or after, KRW 1 billion for the purpose of offering money for KRW 30 billion; (d) provided Defendant 1 and Defendant 2 with money for KRW 1 billion on or around February 25, 2008; and (e) provided Defendant 3 with money for KRW 1 and KRW 1 billion on or after, offering money for KRW 300,000,000,000 to Defendant 1 and KRW 2 for the purpose of offering money for proportional representation.

• Whether a person who wishes to be a candidate for proportional representation is included in the subject of restrictions on contribution acts

In this case, we examine whether the candidate who wishes to become a candidate for proportional representative (hereinafter referred to as "candidate") is included in the subject of restrictions on contribution acts as provided in Article 113 of the Public Official Election Act. ① The current Public Official Election Act separates the vote on the election of National Assembly members in local constituency and the vote on the election of National Assembly members in holding an election for National Assembly members (one-person two votes), and there is a high possibility that the candidate for proportional representative National Assembly members or candidate for proportional representative National Assembly members may actively participate in an election for National Assembly members in preparation for an election for proportional representative members. ② According to Article 20(1) of the Public Official Election Act, the public official Election Act prohibits proportional representative members from being elected across the country. It means that the public election act of the candidate for proportional representative National Assembly members or candidate scheduled to be subject to restrictions on the election act of National Assembly members can be interpreted as the subject of nationwide restrictions on the election acts of National Assembly members or candidate for proportional representative National Assembly members, and it can be interpreted as the subject of restrictions on the election acts of National Assembly members and candidate for National Election Act.

In this case, Defendant 3, who is a candidate for proportional representative National Assembly members, asked Defendant 1 and 2 to exercise influence so that he can obtain a recommendation from a candidate for a specific political party, and provided money to use it for the necessary purpose. This constitutes a case where a candidate for proportional representative National Assembly members made a contribution in connection with an election, and thus, it constitutes a violation of Article 113(1) of the Public Official Election Act. Thus, this part of the allegation by Defendant 3 is without merit.

G. Determination as to the prosecutor's assertion on the receipt of money and valuables related to the recommendation of the candidate for the political party dated February 13, 2008 and February 25, 2008 (ex officio, determination as to the provision of money and valuables related to the recommendation of the candidate for the political party dated February 13, 2008 and February 25, 2008)

(i)whether it constitutes a simple crime

The prosecutor acknowledged that the Defendants did not limit the amount of money and valuables to a specific amount at the first time of promising to pay a candidate recommendation; the Defendants’ activities to get a candidate recommendation may get more expenses in order; therefore, Defendant 3, Defendant 1, and Defendant 2’s refusal to pay money and valuables on the ground that there was an advance agreement between Defendant 3, Defendant 1, and Defendant 2 to pay money and valuables according to the circumstances of activities to obtain a candidate’s recommendation for proportional representative National Assembly members; the Defendants thereafter, on February 13, 2008, the Defendants were able to get more expenses in order to get a candidate recommendation; and for this reason, Defendant 3, Defendant 1, and Defendant 2’s refusal to receive money and valuables KRW 3 billion in total,00,000,000 from February 13, 2008, and KRW 100,000,000 to March 7, 200,0030,000.

Therefore, according to the above evidence, Defendant 3 was recommended as a candidate for the proportional representative National Assembly member of ○○○○○○ through the recommendation of the ○○○○○○○○ Council. Defendant 1 and 2, who delivered KRW 1 billion to Defendant 1 and 2 on February 13, 2008, but there was no promise to pay additional money between the Defendants at the time. After that, Defendant 3 did not intend to pay the special membership fee more, Defendant 3 delivered additional KRW 1 billion on February 25, 2008, and again, Defendant 1 and 2 did not receive the same amount for the first time to receive KRW 1 billion on the recommendation of the ○○○○○○○○○○ Council. Accordingly, it is difficult to view that the Defendants did not receive additional money and valuables for the first time to receive KRW 3 billion on March 7, 2008, and the Defendants did not receive additional money and valuables for the first time to receive KRW 1 billion on the recommendation of each candidate.

She Whether Article 47-2(1) of the Public Official Election Act can be applied

Even if there was an enactment or amendment of a penal provision during the course of an act constituting a single comprehensive crime, a comprehensive crime is not divided, and the comprehensive crime is not committed after the enactment or amendment of a penal provision. However, according to Article 13(1) of the Constitution, all citizens shall not be prosecuted as an act that does not constitute a crime under the law at the time of an act. Article 47-2(1) of the Public Official Election Act prohibiting the receipt or payment of money or goods related to a candidate recommendation of a political party and Article 230(6) of the Public Official Election Act, which is its penal provision, was newly established on February 29, 2008 and enforced on the same day, and there was no penal provision for such an act under the Public Official Election Act. Thus, it is reasonable to deem that each act of receiving money or goods between the Defendants, which was made before the enforcement of the above amendment provision under the principle of no appeal against punishment, cannot be punished by applying the above amendment provision.

【Court Decision】

Therefore, the prosecutor's assertion that the Defendants' act of receiving money and valuables on February 13, 2008 and February 25, 2008 should be evaluated as one crime and punished as a violation of Article 47-2 (1) of the Public Official Election Act, along with the act of receiving money and valuables on March 7, 2008, is not acceptable.

H. Determination as to the prosecutor's assertion on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the fraud against the non-indicted 3 and 4

Defendant 1’s prosecutor, the lower court, and the evidence submitted by the prosecutor, including each statement in this court, are insufficient to recognize that Defendant 2 had been aware that there was no promise to recommend a candidate for the proportional representative National Assembly member to the ○○○○○○○○○○○○ Council, or Defendant 1 was not capable of recommending Defendant 3 as a candidate for the proportional representative National Assembly member due to the lack of the right to recommend ○○○○○○○○○○○ Council, and Defendant 1 had been aware of the fact that Defendant 1 had no intention or ability to arrange the appointment of the public corporation’s auditor, in collusion with Defendant 1 with the criminal intent of deceptiveation, and there is no other obvious evidence to acknowledge this otherwise.

Rather, according to the records, Defendant 1 and Defendant 2 were aware of the following circumstances, i.e., that the instant case was about 00 million won upon the request of Nonindicted Party 1 to the prosecution, and that the instant case was about 00 million won, and Defendant 1 was released to the office of the Seoul Special Metropolitan City, which was about 15, and that the instant case was about 00 million won upon the request of Nonindicted Party 1 to the prosecution, and Defendant 2 was about 00 million won, and Defendant 1 had been released to the office of the public corporation, which was about 100 million won before the presidential election was completed, and Defendant 2 was about 00 million won upon the request of Defendant 1 to the office of the public corporation, and there was no evidence suggesting that Defendant 1 was about 3’s proportional representation, which was about 00 million won before the end of the election.

Therefore, among the facts charged in this case, Defendant 2's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and each fraud against Nonindicted 3 and 4 constitutes a case where there is no proof of crime. Therefore, this part of the prosecutor's argument is without

A. Determination on the grounds of unfair sentencing by Defendants and prosecutors

(1) Defendant 1

Defendant 1's old age of 74 years is not good, there have been no previous crimes, the victim's non-indicted 3, 4, and 16 appear to be divided to some extent, the victim's punishment was not imposed, and the defendant 3 returned a considerable portion of the money received from the defendant 3. However, this case is about the recommendation of the ○○○○○ Council's proportional representative members, as long as the defendant 1 was the promise of this case, it was possible for the defendant 1 to be recommended as a candidate for the National Assembly member on the ground of the fact that the defendant 3's punishment was refused to make a contribution act of KRW 3 billion to the spouse of the person who wishes to become a candidate for the National Assembly member on the ground of the fact that the defendant 1 was not guilty of the crime, and since there was a big damage to the defendant 3,000,000 won in total, it was still necessary for the defendant 3,000,000 won in total, and the other reasons for the defendant 3,00,00,00 won.

Doz. Defendant 2

Although there are extenuating circumstances such as Defendant 2’s health status beyond the age of Defendant 1, the fact that there is no same criminal record, the fact that there is considerable penure for Defendant 3, Nonindicted 3, and 4, most of the money provided by Defendant 1 brought about by Defendant 2, and Defendant 2 did not directly manage or use the money, Defendant 3, Nonindicted 3, 4, and 5 did not punish Defendant 2, Defendant 2 shall obtain KRW 30 million under the name of borrowed money, Defendant 1 is expected to exercise influence over the recommendation of candidates for proportional representative members of the National Assembly or the appointment of public corporations by introducing Defendant 3, Nonindicted 3, and 4 to Defendant 1, and the fact that the circumstances of the lower court’s decision that caused damage to the environment of the public corporation, including the fact that Defendant 2 would have caused damage to the environment of the public corporation, and thus, it is necessary for the lower court to take account of the following circumstances, which correspond to the purpose of legislation to the relevant public corporation’s appointment.

【Defendant 3】

Defendant 3 has no previous record of being older than 67 years of age, and as a result, failed to obtain recommendation as a candidate for proportional representative National Assembly member from ○○○○○○ party as well as to obtain a large amount of money from Defendant 1’s fraudulent act, which is a victim who has not yet been paid KRW 490 million among them, and most facts of crime are recognized and his errors are divided. However, this case provides a large amount of money to Defendant 1 and 2 as proportional representative National Assembly member even though Defendant 3 gave money by using Defendant 1’s influence, which is the relative of the President, even though he gives money to Defendant 3 as a proportional representative member, and thus, this case has seriously damaged the purpose of legislation of the Public Official Election Act to restrict acts of donation and prohibit the receipt of money and valuables related to the recommendation of a candidate for a political party, and it is not good that it has actively taken advantage of the presidential relative relationship with the President, and thus, it is necessary to take into account the circumstances and circumstances corresponding to the punishment of Defendant 1 and 3 years of punishment.

· Sub-committee theory

Therefore, each of the above unfair sentencing arguments by the Defendants and the prosecutor is without merit.

3. Conclusion

Therefore, all appeals filed by the Defendants and the prosecutor are without merit, and they are dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Park Jong-nam (Presiding Judge)