(영문) 서울동부지방법원 2016.12.16. 선고 2016고합285 판결

The defendant, as a proportional representative member of the F Party, was elected in the election of the 20th National Assembly member that was implemented on April 13, 2016.

A member of the National Assembly or a candidate for a member of the National Assembly who intends to be a person in the relevant constituency, or an institution, organization, or facility, or a person who has relations with the electorate, or an institution, organization, or facility outside the relevant constituency, shall not make a contribution.

On October 13, 2015, when the Defendant prepared to go to Seoul G constituency in the election of the National Assembly members of the 20th National Assembly, the Defendant opened a “H safety inspection site conference (hereinafter referred to as the “instant conference”) meeting with the participation of the employees belonging to related agencies, such as H police stations, H fire-fighting centers, and the Korea Traffic Safety Authority, and the executives of the parents’ volunteer organizations, such as the H Green Lics Federation, in total, of 17 elementary schools in the said constituency, and listen to on-site civil petitions related to the safety environment surrounding the school from the parents of the relevant schools.”

1. Contributions made in return for attendance;

On October 20, 2015, the Defendant deposited 120,000 won (i.e., 40,000 won per day x 3 days) in the account as the price for attending the instant meeting with the secretary in charge of accounting at the Defendant’s regional office located in Seoul I and IV, and deposited 1,160,000 won (hereinafter referred to as “the money of this case”) in a single account with the electorate or 7 executives of H parents’ volunteer service organizations with the electorate as shown in the attached list of crimes.

As a result, the Defendant, who wishes to be a candidate for the National Assembly member in Seoul G constituency, made a contribution to the person who is in the election organization or who is related to him.

2. Contributions made by furnishing meals;

At around 18:59 on October 20, 2015, the Defendant rendered food and alcoholic beverages in total amounting to KRW 529,000, such as Ha, k, and so on, the Ham M in Seoul L and the first floor, 7 executive officers of HN police officers in the HM station, such as K, etc., of the president of the HWn Federation, and N1 police officers of the H police station), H fire-fighting library, Q, Council member R, S, Road Traffic Authority, T, Defendant, his assistant officers, V, W, X, Y, and Z, during the 20 participants of the HM conference in the instant case, on the following occasions.

As a result, the Defendant provided the president of K, vice president AA, AB, AC, Audit AD, and Children's Safety Guards Association head AE, vice president AF, N of H police station, H fire officer N of H police station, P, and Q for each 26,450 won per head (=26,50 won x 26,450 won x 10) with food and alcoholic beverages (hereinafter referred to as "the instant meals").

Judgment

1. Summary of the defendant and his defense counsel

○ Since the instant money and meals were executed by the Secretariat of the National Assembly with the legislative and policy development costs, the subject that paid the money is not the Defendant.

The inter-party conference of this case is a kind of policy debate held by the defendant, who is a member of the National Assembly. The money and meal of this case constitute "act of supporting, donating or providing money and goods in accordance with the provisions of Article 112 (2) 4 (j) of the Public Official Election Act" or "act of supporting, donating or providing money and goods in accordance with the provisions of Article 112 (2) 5 of the same Act" and "act of supporting, donating or providing money and goods in accordance with the provisions of Article 113 (1) of the same Act". Thus, the provision of money and meals of this case constitutes "act of supporting, donating or providing money and goods in return for the payment of expenses for the purchase of goods, construction, and services" or "act of supporting, donating or providing money and goods in accordance with the provisions of Article 112 (2) 5 of the same Act".

○ The Defendant received a report from the assistants on the progress of the instant simple meeting, and was present at the instant simple meeting and the meal place, but did not know the details of whether to pay allowances to the participants or the details of the execution of meal expenses. Thus, even if the provision of the instant money and meal constitutes “contribution,” there was no intention for the Defendant to make a contribution in violation of the Public Official Election Act at the time, even if the provision of the money and meal constitutes “contribution.”

2. Facts of recognition;

The following facts are acknowledged according to the evidence adopted by this Court.

○ The Defendant was acting as a member of the Safety Administration Committee and the Women’s Family Committee as proportional representative members of the 19th F Party’s political party. On April 13, 2016, at the 20th National Assembly member election conducted on April 13, 2016, he was elected as a F Party candidate in Seoul G constituency.

On May 13, 2015, the Defendant established a regional office in the Seoul G constituency, and began regional activities, such as a policy conference meeting for the purpose of living alley, a safe-care policy meeting, and a policy discussion meeting for creating a elderly job.

On September 2015, the defendant, assistant U, etc. (hereinafter collectively referred to as the "defendants side") planned to hold a meeting of this case with a view to directly visiting 17 elementary schools in SeoulG constituency and inspecting the parts related to the safety of students, and correcting and improving the discovered problems by inspecting the parts related to the safety of students, together with green language society, children safety guards, parents organization, Dong office, the National Police Agency, children crime prevention officer of the National Police Agency, the fire headquarters safety prevention officer of the fire headquarters, the Road Traffic Authority, and other researchers in charge of the Road Traffic Authority.

The defendant's side made contact to K, AA, and H Children Safety Guards Association Head AE of the H Green Care Federation, notify the fact that the meeting of this case was held, and explain the purpose of holding the meeting, and requested that five and seven executive officers of H Green Care Federation, such as the list of crimes attached to the attached table, and the H Children Safety Guards Association executives of the H Green Care Association (hereinafter referred to as "executive officers of the above two organizations") attend the meeting. In addition, when visiting each elementary school, the defendant requested that the Green Care Association of the relevant elementary school or children safety guards of the relevant elementary school, as well as the children's safety guards of the relevant elementary school, may contact members so that they can attend the meeting. The parents' executive officers accepted the above request and decided to participate in the meeting of this case.

On October 1, 2015, the defendant's side sent to the Minister of Public Safety and Security, the head of the Seoul Police Agency, the head of the Seoul Regional Police Agency, the head of the HH and the chief of the Road Traffic Authority "request for cooperation in an on-site safety inspection conference in the vicinity of an elementary school of a member of the National Assembly." From October 13, 2015 to October 20 of the same month, the National Police Agency and the Ministry of Public Safety and Security (Fire Safety) and experts such as the Road Traffic Authority, and the surrounding schools and schools in Seoul G to inspect the improvement of the recommendation of parents, and to hear the recommendations of parents. At the on-site visit, the National Police Agency's female juvenile and children crime prevention officer, the person in charge of the H-gu office's autonomy and traffic administration and the person in charge of the traffic safety inspection of the Ministry of Public Safety and Security, the Minister of Land, Infrastructure and Transport, and the head of the NA's Road Traffic Safety and Fire Agency and the Director of the PH Information Agency.

The Defendant’s side also requested 17 elementary schools in Seoul Metropolitan constituency to cooperate by giving notice of the fact of holding the instant briefing session and the purport thereof. Among them, 12 schools expressed their intent to cooperate in holding the instant briefing session.

From October 13, 2015 to October 15, 2015, and from October 19, 2015 to the 20th of the same month, 17 elementary schools were inspected for the total period of 17 elementary schools. Two elementary schools were held from 1 p.m. a day to 1 p.m. day, and four elementary schools were inspected for the number of hours per elementary school. The Defendant visited each elementary school along with police officers, firemen, Road Traffic Authority, and school parents organizations, and visited each elementary school, and visited the school’s school’s school’s school’s school’s school’s school’s school’s school’s school’s school’s school’s school’s school’s school’s school’s school’s school’s school’s school’sss school’s safety facilities, etc. After examining the school’s surrounding school’s school’s school’s surrounding safety management facilities, the Defendant did not cooperate with the school’s surrounding school’s school’s safety management measures.

○ The Subdivision of this case mainly raises issues of new installation of CCTV around the school, additional designation of children protection zones or installation of safety facilities, problems of indicating children protection zones, problems of installation of speed limit on the front road of the school, problems of second-hand smoke due to illegal parking and pedestrians' smoking, problems of accident of school wintering, noise and smoke of school located on the side of the road, problems of emulation of school in the vicinity of the school, problems of securing school roads around the construction site, etc., and discussions were conducted on how to solve these problems.

On October 20, 2015, around 18:59, 7 executives of parents' associations, N police officers of the H police station, Q, council members of the H fire station P, H Council, S and Road Traffic Authority Research Institute of T, Defendant, U, V, W, X, Y, Y, and Z, and 20 participants of the instant liver conference were gathered in the 'M' restaurant located in Seoul L and in the first floor, and the instant liver conference was organized and assessed, and the instant meals were discussed on how to realize the results of the instant liver conference. Meanwhile, 529,00 won of meal expenses of the instant case was settled by U.S.’s credit card in his name.

On October 20, 2015, the Defendant’s side, registered in the National Assembly and used for the account for operating expenses and policy development expenses, calculated 40,000 won per day from the account under the name of the Defendant, and transferred each relevant amount to the bank account in the name of the relevant recipient as shown in the list of crimes in the attached Table, and transferred 250,000 won per day (=50,000 won x 50,000 won x 5 days) to the account in the name of the relevant recipient.

The defendant's side produced the data collection of this case. The data collection includes the matters requiring correction and improvement related to children's safety, processing process, fire-fighting inspection details, etc. for each school of the relevant elementary school, and there is a consensus on the comprehensive inspection of children's traffic safety at H area elementary school and the opinion of the Road Traffic Authority on the traffic civil petition by school.

On November 25, 2015, the Defendant delivered the requirements related to elementary schools in Seoul G G and requested a review to the head of the H police station and the head of the H/H office. On November 27, 2015, the Defendant demanded that the Prime Minister take measures against AL elementary schools that did not secure school routes due to reconstruction of Seoul AK Apartment, and requested the Prime Minister to prepare alternative measures to prevent school interruption due to reconstruction and redevelopment.

Around December 2015, Defendant 2 (i.e., KRW 1.160,00 in total + KRW 2.50,000 in total) paid to the participants at the Secretariat of the National Assembly of the Republic of Korea (i.e., KRW 1., KRW 1.160,00 in total + KRW 2.50,00 in total). Defendant paid the amount equivalent to the above amount from the Secretariat of the National Assembly to the policy development cost. Defendant transferred KRW 529,00 in total from the policy development cost account registered in the National Assembly’s name to the account in U’s name.

3. Major issues and relevant legal principles

First of all, we examine whether the defendant's act of providing the money and meals of this case constitutes "contribution act" under Article 113 of the Public Official Election Act.

Article 113 of the Public Official Election Act provides that a candidate for a National Assembly member shall not be allowed to make any "contribution" regardless of whether he/she is related to an election, and in principle, the term "contribution" refers to an act that one of the parties provides money, goods, or other property benefits to the other party for free, or an expression of intent to provide such benefits or promise to provide such benefits (Article 112(1) of the Public Official Election Act). Therefore, even if a candidate for a National Assembly member provided money, goods, or other property benefits to the other party, if a legitimate consideration relationship is acknowledged between the consideration provided by the other party, it does not constitute "contribution" under Article 113 of the Public Official Election Act. However, even if a certain consideration relationship exists, if it is paid only in the form of payment for labor provided in comparison with that provided by an imbalance between the consideration and the consideration, the portion of money and goods provided that cannot be viewed as a legitimate consideration for labor can be a contribution act (see, e.g., Supreme Court Decisions 2007Do4966, Nov. 15, 20137>

4. Determination

The prosecutor presented the instant public prosecution on the premise that the instant public gathering was held to make a tour of elementary schools located in the district where the Defendant would run in the future and listen to civil petitions related to the safe environment around the school from the parents of the relevant school at the site. Accordingly, the executives of the parents’ associations were merely to attend the instant public gathering and file a civil petition. Therefore, the nature of the instant public gathering and the services provided by the participants of the instant public gathering, including the executives of the parents’ organizations, for the instant public gathering, should first be examined, and whether there is a legitimate price relationship between the instant funds, meals and the services provided by the public gathering and the participants at the instant public gathering.

A. As to the nature of the instant simple conference

Comprehensively taking account of the reasons and method for holding the instant simple meeting, the problems and improvement measures related to the safety management of surrounding areas of the school presented at the instant simple meeting, and the details of the Defendant’s parliamentary activities after holding the instant simple meeting, it is reasonable to deem that the Defendant was holding the instant simple meeting to establish laws and policies to improve, correct, or prevent safety management problems that may occur in various schools through the on-site inspection of the children’s safety issues around the school, and to establish laws and policies to improve, correct, or prevent such problems, and to reflect them in the budget. It is difficult to view that the instant simple meeting, like the prosecutor’s assertion, was held to listen to civil petitions, such as the pending issues in the district where the Defendant will go out

B. As to the content of the services provided by the participants at the instant conference

Comprehensively taking account of the facts acknowledged earlier and the evidence admitted by the court and the following circumstances, police officers, fire-fighting officers, and the Korea Transportation Safety Authority’s officers and employees of the parents’ association were present at the Subdivision of this case to confirm the safety management situation around elementary schools, present the problems or improvements related to the safety of students at the site, and discuss them. As alleged by the prosecutor, the executives of the parents’ association merely attended the Subdivision of this case and filed a civil petition.

○ H Green Care Federation and H Children Safety Care Association consisting of 26 elementary schools in the entire region of H. The Green Care Association are engaged in traffic safety volunteer activities around the school route of the H. The Green Care Association is engaged in 11 elementary schools that are affiliated with the H from among those who are affiliated with the H from among the elementary schools in the region of the H, and those who are engaged in volunteer activities that patrol the lower school of the elementary school of the P.M. and the lower school of the elementary school.

The executive officers of the ○○ parent group were urged to attend the instant conference to hear the problems of the relevant elementary school while attending the school and to make sure of the matters related to the safety of children in the region of the lower school in order to have the relevant agencies attend the school and confirm the matters related to the safety of children.

The executive officers of the ○○ School Group have continued to engage in transportation service activities and patrol activities around elementary schools for about two to six years as green language society or children safety guards at the time of the instant livers Association. The period of being entrusted with the executive officers of the H Green Language Federation or the H children safety guards association is about one to three years. Therefore, the parents’ associations have been continuously interested in the safety issues of children, including traffic problems for a considerable period of time, and have knowledge and experience in the field. Therefore, the matters concerning the safety of students at H elementary schools and their surrounding areas in order to smoothly achieve the purpose of holding the instant livers Association as seen in the above paragraph. Therefore, in order to smoothly achieve the purpose of holding the livers Association as seen in the above paragraph, it was necessary to raise the issues and opinions of the executive officers of the parents’ associations on the safety-related matters of students at H elementary schools and their surrounding areas in the field.

K and AB, the executive officers of the ○ parent group, for three days, for four days, AC and AF, and for five days, AA, AD, and AE, respectively, shall attend the liver conference of this case for five days. The executive officers of the parent group pointed out the matters of safety management around the school that may be generally problematic based on their knowledge and experience accumulated during that period, and requested improvement by discovering problems about the safety management around the elementary school at which they visited the site, and also suggested opinions on the problems of safety management at the site.

The police officers, fire-fighting officers, and the Korea Transportation Safety Authority Institute present at the livers meeting of the instant case, who take charge of, or specialized in, affairs concerning traffic safety facilities or fire-fighting safety facilities in the vicinity of the instant school, inspected safety in relation to the instant field at the site of the instant guard association, suggested measures for the problems raised by parents' organizations' executives, etc., or responded to the requests of parents' associations' executives, etc. based on the relevant statutes, etc.

The 20 persons present on the last day of the Transboundary Conference, including the Defendant, parents' organization officers, police officers, fire officers, and fire officers, were moved to a meal place, organized and assessed the instant Transboundary Conference on the extension of the Transboundary Conference, and discussed the methods for realizing the results of the Transboundary Conference.

In fact, discussions on children's traffic safety, etc. held by members of the National Assembly have many cases where the Chairperson, etc. of the Green Languages Association attended a debate and received compensation therefor, and a debate and a development system have been made in the form of introducing cases he/she experienced in various testimony competitions, and the compensation therefor has been paid.

C. Whether there exists a legitimate quid pro quo relationship between the provision of the instant money or meal and the service

In light of the nature of the instant guard conference, the executive officers and police officers of the parents organization and police officers, and the contents of the service provided by the instant guard conference, etc., it is deemed that the instant funds and meals provided to the parents organization, police officers and police officers, and fire officers were provided as compensation for the service provided by the instant guard conference.

Furthermore, with regard to whether the provision of the instant money and meals is in a reasonable consideration relationship with the services provided by parents' organizations, police officers and police officers, and police officers of parents' organizations and police officers recognized earlier, and the contents of the services provided by the instant Telecommunication Association, the schedule of the instant Telecommunication Association, and the time and time required to move to and effort to the executives of the parents' associations, the amount of KRW 40,000 per day paid to the executives of the parents' associations, the amount of meals of KRW 26,450 per person provided to the fire officers shall be deemed to be a reasonable consideration for the services provided to the instant Telecommunication. On the contrary, it is difficult to view that “contribution act without compensation” is established even for a part of the benefits and consideration.

○ The Prosecutor asserts that the executives of the parents’ association participated in the instant liver conference but did not receive money. According to the records of this case, the parents of the elementary school subject to the visit attended and pointed out or presented their opinions about the safety management of the relevant school and its surrounding areas, and the fact that the parents did not have been paid separate fees for their attendance. However, the other parents did not participate in the schedule of the school where they attend the liver conference as those who became aware of the fact that the liver conference is held, through school-related persons, etc., while the executives of the parents’ association participated in the schedule of the school where they attend, they were directly invited by the Defendant, and they did not attend the liver conference of this case for 3 to 5 days, and did not attend the liver conference of this case for 4 or more hours a day, and they did not take part in the safety management of the elementary school at the time of the liver conference of this case, and they did not participate in reasonable safety management of the parents association at the 5 or more times in the surrounding areas of Seoul elementary school.

Although ○ Green Languages Association and Children's Safety Security Guards are voluntary parents volunteer groups, the participation of the Transboundarys Association in this case is not originally assigned to the above groups, but it is not determined that the executives of the parents' associations will attend the Transboundarys Association at any time without any consideration.

As seen earlier, the executives and police officers of the ○○ parents’ association, and the firemen provided services at the instant livers association. On the extension line of the instant livers association, the Defendant deemed to have provided the instant meals to the extent necessary for achieving the purpose of holding the instant livers association, and the Defendant should be deemed to have provided the participants of the instant livers association with ordinary meals to the extent necessary for achieving the purpose of holding the instant livers association, and it is difficult to view that the amount of meals equivalent to 26,450 won per head is excessive in light of the content of the services provided at the instant livers association, the nature and form of the instant meal group, etc.

The case cost paid by a member of the National Assembly to a speaker who can be an interested party at a debate and debate held in a regional unit, such as a local constituency, seems to be ordinarily a cause of KRW 100,000 or KRW 200,000. Meanwhile, according to the legislative and policy development support budget execution guidelines, expert honorariums are set forth below KRW 30,00 in relation to seminars for legislative and policy development, public hearings, social meetings, discussions, etc.

D. Sub-committee

Ultimately, since the money and meal of this case are deemed to have been provided for a legitimate consideration to the services provided by a parent organization's executives, police officers, and fire officers at the instant simple conference, it is not recognized that the provision of the money and meal of this case does not constitute a "contribution prohibited under the Public Official Election Act", and there is no evidence to acknowledge that the provision of the money and meal of this case constitutes a contribution act under the Public Official Election Act.

5. Conclusion

If so, without the need to further determine the remaining arguments of the defendant and his defense counsel, each of the facts charged in this case constitutes a case where there is no proof of crime, and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of this judgment is publicly announced pursuant