The case holding that even if the chairman of a district party issues a political fund receipt in the name of the supporters' association while he receives political funds, it constitutes a violation of Article 30 (1) of the former Political Funds Act concerning the receipt of political funds in light of the details of funds received and the process

The case holding that even if the chairman of a district party issues a political fund receipt in the name of a supporters' association after receiving political funds, it constitutes a violation of Article 30 (1) of the former Political Funds Act (amended by Act No. 7191 of Mar. 12, 2004) regarding receipt of political funds in view of the details of funds received and the process of using the fund, etc.

Articles 3 subparag. 2 (see current Article 3 subparag. 1), 6(1) (see current Article 10(1)), 6-4(1) (see current Article 14(1) and (4) (see current Article 10(2) of the Political Funds Act), and 30(1) (see current Article 45(1) of the Political Funds Act) of the former Political Funds Act (Amended by Act No. 7191, Mar. 12, 2004)

Defendant

Defendant

Completion iron

Attorneys Full-time et al.

Daejeon District Court Decision 2005Gohap334 Decided December 28, 2005

The appeal is dismissed.

1. Summary of grounds for appeal;

Although the Defendant received political funds by the method prescribed by the former Political Funds Act (amended by Act No. 7191 of Mar. 12, 2004; hereinafter “Act”), and did not make a false accounting report to the former Election Commission, the judgment of the court below that recognized that the Defendant received political funds in violation of the Act and made a false accounting report in violation of the Act is erroneous in misunderstanding of facts or misunderstanding of legal principles.

2. Determination:

A. Part concerning receipt of political funds

(1) Defendant’s assertion

The Defendant asserted to the effect that the Defendant’s act of receiving political funds does not constitute the constituent elements of Article 30(1) of the Act, on the grounds that Article 30(1) of the Act provides that the Defendant’s act of receiving political funds does not constitute the elements of a crime under Article 30(1) of the Act, since Article 30(1) of the Act provides that the National Election Commission’s production-free receipt of a fixed amount of money and received KRW 50 million from Nonindicted Co. 2.

(2) Provisions of the law

Article 30 (1) of the Act provides that "a person who gives or receives political funds by means not prescribed in this Act (referring to a person who commits the relevant violation as a member of a political party, supporters' association, corporation, or any other organization) shall be punished by imprisonment for not more than three years, or by a fine not exceeding 30 million won." Article 3 subparagraph 2 of the Act provides that "political funds" means party membership fees, support payments, deposits, subsidies, donations for supporters' associations, money and other valuables provided for incidental activities as determined by the party constitution and regulations, and other money and securities or other things provided for incidental activities." The main sentence of Article 6 (1) of the Act provides that "after registration is made pursuant to Article 8, a supporters' association may receive support payments from members or raise money and goods from a person who is not a member and contribute them to the relevant political party, etc." Article 6-4 (1) of the Act provides that "a supporters' association shall collect money and goods by means of assembly, mail, advertisement, fund-raising by the National Election Commission and a fixed amount of money and goods collected pursuant to exchange receipts (hereinafter referred to "money."

(3) The duty to receive political funds through the supporters' association

In full view of these provisions, when political parties intend to receive political funds by means of means of fund-raising by assembly, mail or communication, advertisement, it is necessary to issue political fund receipts issued by the National Election Commission and to pass through a supporters' association registered with the competent election commission.

Meanwhile, inasmuch as money was received as a support fund without going through a supporters’ association, even if a political fund receipt is issued in the name of the supporters’ association, it constitutes a case where political funds are received in a manner that does not provide for in the Political Funds Act (see Supreme Court Decision 2003Do8294, Aug. 20, 2004). Therefore, considering the penal provisions and equity with respect to violations of Articles 30(2), 31, and 32 of the Act, the Defendant’s assertion that Article 30(1) of the Act is to punish only the act of receiving voice political funds that is not entirely disclosed, is not accepted.

(4) Relevant facts

Comprehensively taking account of the evidence duly admitted and examined by the court below, the following facts are recognized.

(A) At the time of the instant case, the Defendant was the chairperson of the district (the name omitted) Party (the name omitted), and Nonindicted 1 was the head of the Gu Affairs Cooperation Office and the head of the supporters’ association. Meanwhile, Nonindicted 3 and the person in charge of accounting were Nonindicted 4.

(B) The Defendant, either directly or through Nonindicted 1, requested the Chairperson of Nonindicted Co. 2, Nonindicted 5, Nonindicted 6, Nonindicted 7, and Nonindicted 1 to request support payments to Nonindicted 7, etc. on November 5, 2003. On November 5, 2003, the Defendant provided meals together with the Defendant, Nonindicted 6, Nonindicted 7, and Nonindicted 1, and received KRW 50 million from Nonindicted 7 by moving Nonindicted 1 to another place. Nonindicted 1 received money, and then Nonindicted 7 issued three copies of a fixed amount receipt for production of the National Election Commission where the seal of the (name omitted) seal of the head of the Gu Party’s supporters’ association is affixed. At the time, the Defendant or Nonindicted 1 was not specifically delegated by the supporters’ association with respect to the receipt of support payments as above.

(C) Although there are two bank accounts in the name of Nonindicted 4, a person in charge of accounting of a supporters’ association, the Defendant directly used KRW 5 million and deposited the remaining KRW 45 million into the personal account of Nonindicted 1. The Defendant issued a political fund receipt and reported the details of receipt of the fund to the competent election commission, but did not follow procedures such as informing the supporters’ association of the details of receipt of political funds separately.

(5) Whether a supporters' association can be deemed to have received political funds through the supporters' association

In this case, the Defendant, while entirely participating in the process of receiving the instant political funds, received political funds without being delegated by the supporters’ association, and paid the money received to the person in charge of accounting of the supporters’ association, without going through the procedures for raising political funds through the supporters’ association, used directly and deposited the remainder into the personal account of Nonindicted 1, and used it. Only the Defendant issued the political fund receipts on which the seal of the supporters’ association head is affixed through Nonindicted 1, the secretary general of the supporters’ association.

Even if the defendant issued a political fund receipt under the name of a supporters' association, it cannot be deemed that the defendant received political funds through the supporters' association in light of the situation before and after the defendant directly used the fund and deposited the fund into the account related to the supporters' association without depositing it in the account related to the supporters' association. Thus, the defendant's act constitutes a violation of Article 30 (1) of the Act.

(6) This part of the conclusion

Therefore, it is just that the court below found the defendant guilty of the facts charged concerning the receipt of the political funds of this case, and there is no error of misunderstanding the facts or misunderstanding the legal principles that affected the conclusion of the judgment of the court

B. The portion concerning the accounting report

(1) Since the Defendant was aware that the instant support payment was received from the corporation of Nonindicted Co. 2, not from the individual but from the corporation of Nonindicted Co. 2, the Defendant asserts that Nonindicted Co. 8, a business assistant, should be reflected in the accounting report in the corporate support payment, and that, in making the accounting report in 2003 at the former Election Commission (former omitted), even if a receipt made after the fact was attached, the Defendant believed that the items and the aggregate amount of the revenue and expenditure are consistent with the facts, and thus, the Defendant was not guilty.

(2) However, according to the evidence duly adopted and examined by the court below, the following circumstances are acknowledged.

(A) Nonindicted 6 stated in an investigative agency that the Defendant paid the support money to the Defendant, and stated that the investigative agency clearly stated that the instant support payment was made in the name of the Defendant, and that the Defendant also stated in the investigative agency to the effect that he memorys the fact that “the low salary passbook was less.”

(B) When using the instant support payment, the Defendant recognized that Nonindicted 8 did not inform Nonindicted 8 of the specific amount and details of the use thereof, and Nonindicted 8 also stated in the investigative agency that the Defendant was aware of the details thereof. Nonindicted 8, who did not know the use thereof, made it clear that the instant support payment report was false, and that the Defendant was aware of it.

(3) In full view of these circumstances, the Defendant’s assertion that he was unaware of the fact that the instant accounting report was prepared in a false manner is difficult to accept. Thus, the lower court’s finding the Defendant guilty of the false accounting report among the facts charged in the instant case is justifiable, and it cannot be deemed that there was an error of misunderstanding of facts or misunderstanding of legal principles that affected the conclusion of the

3. Conclusion

Therefore, the appeal is dismissed.

Judges Kang Il-won (Presiding Judge)