The meaning of "funds related to corporations or organizations" and criteria for determining "funds related to corporations or organizations" subject to the contribution under Article 12 (2) of the former Political Funds Act.

Article 12(1) of the former Political Funds Act (wholly amended by Act No. 7682, Aug. 4, 2005; hereinafter “former Political Funds Act”) provides that “no foreigner, domestic or foreign corporation or organization shall contribute any political funds.” Paragraph (2) of the same Article provides that “no person shall contribute any political funds with funds relating to any domestic or foreign corporation or organization.” The purport of the former Political Funds Act prohibiting the donation of political funds of any corporation or organization is to block any act detrimental to the exercise of sound political influence and the fairness of election and to prevent any distortion of the intent of the corporation or organization members. In addition, “funds related to a corporation or organization” under Article 12(2) of the former Political Funds Act refers to funds that can be contributed as a whole according to the formation of funds and decision-making of any corporation or organization, as well as any corporation or organization’s inherent assets forming the foundation of the corporation or organization, and any contribution or contribution-raising organization should be deemed to fall under the scope of the contributions or contribution-raising of any corporation or organization.”

Articles 12(1) and (2) (see current Article 31(1) and (2) of the former Political Funds Act (wholly amended by Act No. 7682, Aug. 4, 2005) and 30(2)5 (see current Article 45(2)5 of the Political Funds Act) of the former Political Funds Act

Constitutional Court en banc Order 2008Hun-Ba89 Decided December 28, 2010 (HunGong171, 120)

Defendant 1 and two others

Defendants

Law Firm Gyeongsung et al.

Seoul High Court Decision 2008No2031 decided Oct. 30, 2008

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Seoul High Court. Defendant 2 and 3’s appeals are all dismissed.

The grounds of appeal are examined.

1. As to the Defendants’ violation of the Political Funds Act

A. Article 12(1) of the former Political Funds Act (amended by Act No. 7191 of Mar. 12, 2004 and wholly amended by Act No. 7682 of Aug. 4, 2005; hereinafter “former Political Funds Act”) provides that “no foreigner, domestic or foreign corporation or organization may contribute any political funds,” and Article 12(2) of the former Political Funds Act provides that “no person shall contribute any political funds from any domestic or foreign corporation or organization. No person shall contribute any political funds from any domestic or foreign corporation or organization.” The purport of the former Political Funds Act prohibiting the donation of political funds of any corporation or organization is to prevent any act detrimental to the exercise of sound political influence and the fairness of election, and to prevent any distortion of the intent of any corporation or organization members. Thus, the term “corporation or organization related to the fund raising” under Article 12(2) of the former Political Funds Act includes not only the establishment of a foundation or organization, but also the establishment of a corporation or organization, etc., which constitutes a foundation or organization, 20.

In light of the language and purport of these regulations, if a corporation or organization is involved in raising funds for contributions in any form, all of them shall not be deemed to fall under “funds related to a corporation or organization” subject to the donation under Article 12(2) of the former Political Funds Act. A corporation or organization shall be deemed to fall under “funds related to a corporation or organization” only when it can dispose of funds raised and raised by the corporation or organization or at least the same time it can be offered by actively and actively involved in raising, raising, raising, and raising funds for contributions. Furthermore, in a specific case, whether such funds are related to a corporation or organization shall be determined by comprehensively taking account of the overall process of raising funds, raising funds, raising funds, raising funds, raising funds, raising funds, raising funds, details of contributions, and the relationship between donors and raising funds.

B. According to the evidence adopted by the court of first instance as cited by the court below, the National Press Union (hereinafter "Labor Union") and the National Democratic Labor Union Federation (hereinafter "Korean Labor Union") were collected from each member of the 17th National Assembly members' general election which will be held on April 15, 2004 through a resolution of the representatives' rally for the purpose of supporting each member of the 17th National Assembly members' general election and the candidates belonging thereto, and were established and managed with the fund for the purpose of contributing political funds. The political funds separately managed by the trade union at the time of raising and establishing the fund under its name may be contributed in the name of the union. However, on March 12, 2004, since the amendment of the former Political Fund Act prohibited the donation of political funds by a juristic person or organization, Defendant 1's general chairperson of the National Labor Union was not entitled to contribute political funds in the name of the trade union, Defendant 2's general chairperson of the National Labor Relations Commission and the chairman of the Labor Relations Commission, the chairman of the Labor Relations Commission and Defendant 3.

Examining these facts in light of the legal principles as seen earlier, the instant political funds are contributed by the instant trade union, which corresponds to the “organization” under Article 12(2) of the former Political Funds Act, in order to contribute political funds in its name and manage funds raised from its members as a separate fund. It is a case where the instant trade union primarily and actively participated in raising and contributing funds. While the reasoning of the lower court is inadequate, the lower court’s determination that the instant political funds constituted “funds related to a corporation or organization” under Article 12 of the former Political Funds Act is eventually justifiable.

On the contrary, on the premise that the Defendants merely delivered political funds contributed by members, the lower court erred by misapprehending the legal principles as to the interpretation of Article 12(2) of the former Political Funds Act, or by arbitrarily interpreting and applying the aforementioned provisions, thereby infringing on the essence of the freedom of political activities and association and infringing on the freedom of association and infringing on the invalidation of the principle of no punishment without law, all of the arguments in the grounds of appeal are without merit.

2. As to Defendant 1’s occupational embezzlement

A. The crime of occupational embezzlement is established when a person who keeps another's property in the line of his/her duty and embezzleds another's property. The act of embezzlement refers to the act of realizing the intent of unlawful acquisition. Thus, only an objective act that can be externally perceived is established (see, e.g., Supreme Court Decisions 92Do299, Mar. 9, 1993; 97Do3282, Feb. 24, 1998). However, the intent of unlawful acquisition is to dispose of another's property with the intent to pursue his/her own interest or a third party's own interest. Thus, if the property is used in line with the inherent purpose of his/her business, it shall not be readily concluded that there is an intention of unlawful acquisition (see, e.g., Supreme Court Decisions 94Do2911, Feb. 10, 195; 2003Do4275, Dec. 4, 2004).

B. The summary of this part of the facts charged is that "the defendant, as the chairperson of the Press Labor Relations Adjustment Committee from January 17, 2003 to February 27, 2007, he/she has been in the custody of union expenses and funds for specific purposes for the press labor union for business purposes, without going through a resolution, etc. by the Central Press Labor Relations Adjustment Committee from December 30, 2003 to June 29, 2004, he/she arbitrarily withdrawn 12,607,50 won in total on seven occasions during the period from June 30 to June 29, 2004, and embezzled it for the purpose of monthly wage preservation by making the defendant deposit as his/her personal account for the purpose of monthly wage preservation."

However, even if based on the facts acknowledged by the court below, it is clear that the defendant did not conduct the withdrawal of the Fund of this case as shown in the facts charged, or let Nonindicted 2 or Nonindicted 1 withdraw it and deposit it into the defendant's account. Thus, the facts charged that the defendant voluntarily withdrawn the Fund or participated in the withdrawal of Nonindicted 1 cannot be deemed as proved.

Furthermore, according to the reasoning of the judgment of the court of first instance and the facts cited by the court below, the press union has deposited KRW 500,000 per month from the union funds paid by its members in order to support the union labor union at workplaces under the National Labor Relations Adjustment Act, and has separately managed the union funds. According to Articles 16, 27, 37, and 49 of the Press Union Regulations, the above fund is established and operated for the purpose of receiving certain compensation from the above fund in cases where the union members of the press union suffer disadvantages in status due to the union labor union activities, and the management and operation thereof are prescribed by a separate provision regarding the above fund. However, it is difficult to conclude that the above fund was executed for the purpose of protecting the defendant's wages by not later than the date when the fund operation guidelines were established on September 7, 2007. Since the above criteria were virtually established, it is difficult to hold the amount equivalent to the above funds for the defendant's funds to be executed for the purpose of protecting the defendant's wages by the National Labor Relations Commission or the Central Executive Committee.

In contrast, the court below reversed the judgment of the court of first instance which acquitted the defendant on the ground that the defendant's use of the money remitted from the union as the compensation for benefits constitutes embezzlement, while the defendant did not withdraw the above rupture fund. In so doing, the court below erred by misapprehending the legal principles as to the elements for establishing the crime of occupational embezzlement and the intention of unlawful acquisition, and the grounds for appeal pointing this out are with merit.

C. Therefore, the part of the judgment of the court below regarding occupational embezzlement against the defendant should be reversed. Since the court below rendered a single sentence in relation to concurrent crimes under the former part of Article 37 of the Criminal Act with the violation of the Political Funds Act which was found guilty, the part of the judgment of the court below against the defendant

3. Conclusion

Therefore, the part of the judgment of the court below against Defendant 1 is reversed, and that part of the case is remanded to the court below for a new trial and determination, but all appeals by Defendants 2 and 3 are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)