(영문) 서울중앙지방법원 2018.12.21. 선고 2018고합630 판결

Defendant A and B shall be punished by imprisonment with prison labor for one year, and Defendant C shall be punished by a fine of five million won. Where Defendant C fails to pay the above fine, Defendant C shall be confined in the workhouse for a period of one million won converted by one day.

However, with respect to Defendant A and B, the execution of each of the above punishments shall be suspended for two years from the date this judgment becomes final and conclusive. An order for the provisional payment of an amount equivalent to the above fines against Defendant C shall be issued.

Reasons

Criminal facts

No one shall contribute or receive any political fund by means that are not prescribed by the Political Funds Act, and no one shall contribute or receive any political fund in connection with the recommendation of any specific person as a candidate in an election for public office.

1. Defendant A

Defendant A issued L with a total of KRW 240 million over 11 times from that time to June 20, 2014, including giving L with a cash of KRW 10 million as political funds at the K member L office located in Yeongdeungpo-gu Seoul Metropolitan Government (J) around February 2013 of the Gu administration, as shown in attached Table 1, from that time to June 20, 2014.

As a result, Defendant A contributed a total of KRW 240,000,000 in a way not stipulated in the Political Funds Act.

2. Defendant B

A. Violation of the Political Funds Act relating to the contribution of Gongcheon

Defendant B, around March 20, 2014, issued KRW 20 million in cash (in the indictment, KRW 50 million is written, but it is apparent that it is wrong) from that time to April 20, 2014, issued KRW 70 million in total on two occasions, including the following: (a) Defendant B, at the K National Assembly L Office located in Yeongdeungpo-gu Seoul Metropolitan City, and with respect to the local election, which was scheduled to take place on June 4, 2014, to L who was in charge of the members of the recommendation board for candidate for public office of the Mparty Gyeonggi-do Party; and (b) Defendant B, upon request from L to the effect that his previous conviction does not put up any problem in the process of the official examination, issued KRW 20 million in cash (in the indictment, KRW 50 million is written, but it is apparent that it is wrong) to L by April 20, 2014.

As a result, Defendant B contributed to the total amount of KRW 70 million in connection with the recommendation of a specific person as a candidate in the election for public office.

B. On June 14, 2014, Defendant B provided L with KRW 10 million in cash as a political support at the office of the member of the National Assembly located in the Yeongdeungpo-gu Seoul Metropolitan Council, Yeongdeungpo-gu, Seoul, as well as at March 2016 through April 4 of the same year (in the indictment, “2015, April 1, 200), from that time, the Defendant B provided KRW 65 million in total three times as shown in [Attachment 2] Nos. 3 through 5 of the daily list of crimes.

As a result, Defendant B contributed the total amount of KRW 65 million in a way that is not stipulated in the Political Funds Act.

3. Defendant C. On January 2, 2016 through February 2, 2016, Defendant C granted KRW 10 million as a political support for L to the assistant P who received L’s instructions at the 8th floor office of the building in Yeongdeungpo-gu Seoul, Yeongdeungpo-gu, Seoul. Accordingly, Defendant C donated KRW 10 million for political funds in a manner not stipulated in the Political Funds Act.

Summary of Evidence

1. Defendants’ respective legal statements (However, Defendant B’s part)

1. Legal statement of witness P;

1. Copy of each protocol of examination of suspect to the prosecution concerning P and Defendant B (the first statement included in P)

1. Copies of each prosecutor's statement concerning P;

1. Copy of Defendant B’s prosecutorial statement dated November 29, 2017

1. Determination as to the assertion by the Defendant B and the defense counsel as to the copy of the investigation report (the note that P has been damaged in the course of search and seizure) and the copy of the damaged camera, etc. attached thereto, the copy of the investigation report (the copy of the bank passbook, which was remitted to KRW 20 million from L), and the copy of the passbook A (the copy of the bank passbook) attached thereto, the copy of the investigation report (the part of the amount deposited in Q20 million) and the copy of the R registration certificate, and the copy of the R registration certificate

1. Determination as to the crime of violation of the Political Funds Act listed in No. 1 and No. 2 of the annexed Table 2 (hereinafter referred to as "the crime in this part")

A. Summary of the assertion

Defendant B granted L members of the National Assembly the money set forth in 1 and 2 of the [Attachment Table 2] Nos. 2 (hereinafter in this paragraph referred to as “each of the instant money”) to L members of the National Assembly. However, this is merely an illegal political fund set forth in the main sentence of Article 45(1) of the Political Funds Act, not a so-called “public contribution money” related to Defendant B’s Swon candidate nomination.

B. Determination

In full view of the following facts and circumstances admitted by the prosecutor’s evidence, Defendant B provided each of the instant money in relation to the official recruitment of Swon candidate. Since it can be sufficiently recognized, Defendant B and the defense counsel’s allegation in this part is not acceptable.

① P는 수사기관에서 "(순번 1 기재 2,000만 원과 관련하여) 피고인 B가 S의회 시의원으로 출마하려면 M정당 공천을 받아야 되는데 대부분의 지역에서 지구당 위원장에게 당비 형식으로 돈을 주고 중앙당 실세에게도 돈을 준다. 그래서 당시 T 실세 중의 실세인 U 의원의 심복이자 T 핵심으로 불리우는 L에게도 공천을 받을 수 있도록 힘써 달라는 의미로 돈을 주려고 한 것이다. 그런데 피고인 B가 교통사고 같은 전과가 좀 있어서 이게 괜히 문제가 될까 싶어 L 의원과 상의를 좀 하고 싶다고 하였고, 그 얘기를 전화로 나누는 도중 금액도 피고인 B가 저에게 얘기를 해서 2,000만 원으로 알게 되었으며, 제가 의원님과 일정을 조율하여 만나게 해주었던 것이다. (순번 2 기재 5,000만 원과 관련하여) 피고인 B가 L 의원에게 '(피고인 B 자신이) 공천을 받으려면 J이나 V에게도 인사를 하셔야 되지 않겠습니까'라는 취지로 말하는 것을 들었다."라고 진술하였고(수사기록 제440면, 제441면), 이 법정에서도 일관되게 이 사건 각 금원은 피고인 B의 S의원 공천과 관련하여 교부된 것이라는 취지로 진술하였다(증인 P에 대한 증인신문 녹취서 제3면), 그런데 P가 정치자금을 수수한 리스트를 작성해 놓은 수첩에는 "3/20 B 15:00(30분 지연 후 면담) 의원님에게 5만 원권 2,000 지원 협조요청(전 과) 문제없게"라는 내용이 구체적으로 기재되어 있는바, P가 당시 순번 1 기재 2,000만 원의 지급 경위에 관하여 허위의 내용을 추가로 기재할만한 동기나 이유를 찾기 어려운 점을 고려해 보면, 이 부분 범죄사실에 부합하는 P의 수사기관 및 이 법정에서의 위 진술내용은 위 수첩의 내용 등 다른 증거에도 부합하는 것으로서 신빙성이 있다.

② At the 6th local election which was scheduled as of June 4, 2014, L was appointed as a member of the Mparty member recommended management members of the Gyeonggi-do party for candidate for public office of Mparty at the time of the 6th local election (in the face of 522 pages of investigation records), and Defendant B, a candidate for S Council members in Gyeonggi-do, was in the position to have considerable influence on the success of Defendant B. Therefore, even if Defendant B had received an official election in the previous local election, Defendant B was in the position of having received an official election in the previous local election. Even if Defendant B was in the previous local election, criminal records, such as violent crimes, etc., might have a problem again in the process of the public election again in light of their contents, and it seems that the official examination related to the previous offense at the time was more strict than before, it is reasonable to view Defendant B as a member of the 6th local election, as a matter of course, that Defendant

③ On the other hand, around November 28, 2017, Defendant B also stated that “The payment of money to L members at the time was made” in relation to the process of paying KRW 20,000,00,00 as No. 1 as at the time of the prosecutor’s investigation, “it was true that there was a mind that Defendant B had the intention to help him as the Marine Corps’s ship ship, and on the other hand, there was also a fact that Defendant B also stated that he did not cause any problem in local election (in the face of No. 512 of the Investigation Records)

2. Determination as to the crime in violation of the Political Funds Act listed in No. 3 of the annexed Table 2 of the List of Crimes (hereinafter referred to as "the crime in this part")

A. Summary of the assertion

Defendant B did not deliver KRW 10 million to L members of the National Assembly around June 14, 2014. B. Relevant legal principles

The mere reason why the confession, etc. at the prosecution is different from the statement in the court cannot be deemed to be the reason that the credibility of the confession is doubtful. In determining the credibility of the confession, the determination of the credibility of the confession should be made based on the following: (a) whether the content of the confession itself has objectively rationality; (b) the motive or reason behind the confession; (c) what is the motive or reason of the confession; and (d) the reason why the confession does not conflict with or conflict with the confession among the circumstantial evidence other than the confession, and (e) whether there is a situation in which the confession would give a reasonable doubt in the motive or process prescribed in Article 309 of the Criminal Procedure Act (Supreme Court Decision 2001Do2064 Decided March 12, 202).

In full view of the following circumstances acknowledged by the prosecutor’s evidence, Defendant B’s confessions to the prosecution on this part of the facts constituting the crime are acknowledged to be discretionary and credibility, and there are evidence of reinforcement of the confessions to the prosecution above. Thus, it can be sufficiently recognized that Defendant B provided KRW 10 million to L members as stated in this part of the facts constituting the crime. Accordingly, this part of the allegation by the Defendant B and the defense counsel cannot be accepted.

① On November 29, 2017, Defendant B, who was investigated as a suspect, prepared and submitted a written statement stating that “I will not memory 10 million won from K to U members through this statement. Specifically, I will not accurately memory the above amount.” On December 5, 2017, at the time of the prosecutor’s investigation, I would like to find out that “I would not have to cooperate with U members because I would have much expenses for the election of the representative of the political party. I would like to find out that I would not know that I would like to know that I would like to know that I would like to know that I would like to know that I would like to know that I would like to know that I would like to know that I would like to know that I would like to know that I would like to know that I would like to know that I would like to know that I would like to know that I would like to know that I would like to know that I would like to know that I would like to know that I would like to know that I would not know the above facts.

② The pocket book in which P prepared a list of receipt of political funds is indicated as “the 1,000 National Assembly office, B, and U representative election campaign subsidies on June 14, 2014, and directly delivered 1,000 won.” P made a statement in an investigative agency that “Defendant B was elected as S in the local election in 2014, and Defendant B declared U as the representative of the Mparty that is scheduled to be in the police officer on July 14, 2014, and Defendant B made a statement that Defendant B would use 10 million won as U member election subsidies for L members and decided to use 14:30,000 won as U member election subsidies” (the investigative record No. 445 of the investigation record, No. 446 of the investigation record), and in this court, “P witness was either changed or recorded to the extent that Defendant B made a statement that he would have been required to be 100 million won by having requested for the ex post facto cooperation from L member.”

③ Meanwhile, Defendant B’s defense counsel asserted to the effect that L was not present at the National Assembly member’s office on the day on June 6, 2014, and that L was not present at the National Assembly member’s office, and that P was present at the L’s criminal trial on June 14, 2014, and that P was stated to the effect that “If L was a Saturday, it would have been present at the L’s Council member office and recorded the date on which it was wrong.” However, the P stated to the effect that “It is difficult to view it as an exceptional case because the exercise of National Assembly members is due to the fact that there are many discussions,” in this court, the P stated to the effect that “It is difficult for a National Assembly member to attend the National Assembly member’s office (section 8 of the witness examination record)” (in light of the general rule of experience, it is difficult to accept that the date on which 3 years recorded in the list was given and received from the prosecutor’s office cannot be seen as the credibility and credibility of Defendant B’s testimony or investigation agency.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

(a) The main sentence of Article 45(1) of the Political Funds Act in general against Defendant A;

B. In general, Defendant B, Articles 45(2)5 and 32 subparag. 1 of the Political Funds Act (the fact that political funds are contributed to the recommendation of candidates to run in an election for public office, the choice of imprisonment), each of the main text of Article 45(1) of the Political Funds Act (the fact that political funds are contributed, the fact that political funds are contributed, and the fact that political funds are contributed by the sequence 3 and 4 in attached Table 2 of

C. The main sentence of Article 45(1) of the Political Funds Act of Defendant C

1. Aggravation for concurrent crimes (Defendant B);

Article 37 (former part of Article 37, Articles 38 (1) 2 and 50 of the Criminal Act (Aggravation of concurrent crimes with punishment prescribed in the violation of Political Funds Act in relation to the recommendation of candidates for an election for public office with the largest offense)

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Suspension of execution (Defendant A and B), each subparagraph of Article 62 (1) of the Criminal Act (Consideration favorable circumstances among the reasons for sentencing the defendant A and B);

1. Article 334 (1) of the Criminal Procedure Act (Defendant C) of the Provisional Payment Order;

Sentencing)

1. Defendant A

(a) The scope of applicable sentences under law: Imprisonment for one month to five years; and

B. Determination of sentence: One year of imprisonment with prison labor and two years of suspended sentence are crimes of illegal receipt of political funds by securing transparency of political funds and preventing any malpractice related to political funds, and the purpose of legislation of the Political Funds Act to promote the sound development of democratic politics, as well as criminal acts that seriously undermine the public confidence in election for public office and political activities; the total amount of illegal political funds that Defendant A contributed to L is at least 240 million won; Defendant A contributed illegal political funds in expectation that L may have de facto influence on the personnel affairs of WW and X corporations, an incorporated member of the National Assembly; and in fact, from around 2014, Defendant A contributed illegal political funds in light of the fact that there is no criminal history of the same kind of crime; Defendant A appears to have contributed political funds at the request of P, an assistant to L; Defendant A seems to have been at the latest divided into the following circumstances; Defendant A is at the age of 200 million won; Defendant A is at the age exceeding 80,000, and Defendant A is at the age of occupation and behavior.

2. Defendant B

(a) The scope of applicable sentences under law: Imprisonment for one month to seven years; and

B. Determination of sentence: One year of imprisonment with prison labor, two years of suspended sentence, Defendant B had the record of being sentenced to a fine for the same kind of crime. As seen earlier, the crime of illegal receipt of political funds is a crime that impedes the sound development of democratic politics and seriously undermines the public confidence in election for public office and political activities. Of these, the total amount of illegal political funds contributed by Defendant B to L is a large amount of amount of KRW 135 million up to 10,000,000,000, which was donated in connection with Defendant B’s local election for the same purpose. As such, the crime is more poor in the contents and motive of the crime, and there is an attempt to conceal the crime by presenting a false pocket book to an investigation agency with L who is a political party in the course of the investigation. Although there is no good condition after the crime was committed, Defendant B appears to have been contributed to illegal political funds at the request of P, and even if some of the crimes are disputed, Defendant B appears to have been divided into one’s overall crime, Defendant B’s social relationship and environment and behavior, etc.

3. Defendant C.

(a) The scope of punishment by law: A fine not exceeding ten million won;

(b) Determination of sentence: Fines of five million won; and

As seen earlier, the crime of illegal acceptance of political funds is a crime that undermines the sound development of democratic politics and seriously undermines the public confidence in election for public office and political activities, and the nature of the crime is not easy because it is difficult to see that the amount of illegal political funds contributed by Defendant C is less than that of the public. However, Defendant C does not have any criminal power except a fine imposed on this type of crime; Defendant C appears to have contributed to illegal political funds at the P’s request; Defendant C appears to have made a contribution of illegal political funds at the latest; Defendant C repents his mistake; Defendant C’s age, character and conduct, occupation, environment, family relationship, etc.; and other circumstances that are the conditions for sentencing, such as Defendant C’s age, character and behavior, occupation, family relationship, etc.