[1] In a case where the designation authority of supporters' association delivers the support fund directly contributed without going through the supporters' association to a person in charge of accounting of the supporters' association in the manner provided for in Article 10(3) of the Political Funds Act, whether the designation authority of supporters' association can be punished for violating Article 45(1) of the Political Funds Act

[2] In a case where the designation authority of a supporters' association received political funds directly from a supporter and delivered them to a person in charge of accounting of the supporters' association within the short-term period, whether Article 10(3) of the Political Funds Act, and Article 10(3) of the same Act, which was amended and newly established by Act No. 10395 on July 23, 2010, constitutes "when the act does not constitute a crime due to a change in law

[1] Article 10(3) of the Political Funds Act (hereinafter “Act”) provides that where a designation authority of a supporters’ association delivers support payments and identity of a donor to a person in charge of accounting of a supporters’ association, the relevant supporters’ association shall be deemed to have been donated, and no further requirement is provided. Therefore, insofar as the designation authority of a supporters’ association delivers the support payments directly donated to the person in charge of accounting of the supporters’ association in the above manner, the amount of the support payments exceeds the limit provided by the Act, and the person in charge of accounting who received the support payments does not deposit them in the account of the supporters’ association, or does not report them to the election commission, and did not follow the procedures prescribed by the Act, such circumstance alone does not preclude the application of Article 10(3) of the Act. In such cases, the punishment of a person in charge of accounting is recognized, apart from the punishment of a violation of the designation authority, to arbitrarily interpret Article 10(3) of the Act or to punish the defendant against the principle of no punishment without law.

[2] Although Article 10(3) of the Political Funds Act was newly established by the amendment of the Act on July 23, 2010, it is understood that the designation authority of a supporters directly receive political funds from supporters and delivers them to a person in charge of accounting of a supporters' association within a short-term period, deeming that the previous measure, which is subject to punishment, is unfair by treating the supporters as being treated differently from the case where the supporters directly deposited in the supporters' association. Therefore, even if the time at which the designation authority of a supporters' association was transferred before the amendment of the above Act, this constitutes "when the act does not constitute a crime due to the amendment of the Act after the crime," and thus, the new Act ought to be applied (Article

[1] Article 12(1) of the Constitution, Article 1(1) of the Criminal Act, Articles 2(1), 10(1) and (3), and 45(1) of the Political Funds Act / [2] Article 1(2) of the Criminal Act, Articles 10(3) and 45(1) of the Political Funds Act

[1] Supreme Court Decision 2006Do2612 Decided March 12, 2009 (Gong2009Sang, 499), Supreme Court Decision 2010Do17886 Decided June 9, 201 (Gong2011Ha, 1424) / [2] Supreme Court Decision 2010Do2540 Decided April 14, 201

Defendant

Prosecutor

Law Firm LLC (LLC), Attorneys Kim Un-soo et al., Counsel for the defendant-appellant

Seoul High Court Decision 2012No158 decided June 21, 2012

The appeal is dismissed.

The grounds of appeal are examined.

According to Articles 2(1) and 10(1) of the Political Funds Act (hereinafter “Act”), no one shall receive political funds, and a supporters’ association shall receive contributions from supporters. Therefore, if the designation authority of supporters directly receives political funds without going through a supporters’ association, it constitutes “cases in which political funds are contributed in a manner not prescribed by the Act” and constitutes “cases in which political funds are contributed in a manner not prescribed by the Act” (see, e.g., Supreme Court Decision 2010Do1786, Jun. 9, 201). However, Article 10(3) of the Act provides that “In cases where a supporter directly contributes support funds to the designation authority, the relevant supporters’ association shall be deemed to have received contributions where the supporter delivers the donated support funds and personal information of a supporters’ association designated by himself/herself within 30 days from the date on which the designation authority of the designation authority of the relevant supporters’ association is donated.” Thus, if the designation authority meets the requirements prescribed in Article 45(1) of the Act, it shall not be punished.

However, Article 10(3) of the Act provides that where the designation authority of a supporters' association delivers the support fund and the identity of a donator to a person in charge of accounting of the supporters' association, the relevant supporters' association shall be deemed to have been donated, and no further requirement is provided. Therefore, as long as the designation authority of a supporters' association delivers the support fund directly donated to the person in charge of accounting of the supporters' association in the above manner, the amount of the support fund so donated exceeds the limit provided by the Act, and the person in charge of accounting who received the support fund does not deposit it in the account of the supporters' association, or does not report it to the election commission, but does not follow the procedures prescribed by the Act, such circumstance alone does not necessarily mean that the application of Article 10(3) of the Act is excluded. In this case, if it is acknowledged that a person in charge of accounting violates the duty to handle political funds in accordance with the method and procedure prescribed by the Act, it does not arbitrarily interpret Article 10(3) of the Act to the extent that it violates the principle of no punishment without the law.

Meanwhile, Article 10(3) of the aforementioned Act was newly established by the amendment of the Act on July 23, 2010. However, it is understood that the designation authority of supporters directly receive political funds from supporters and delivers them to a person in charge of accounting of a supporters’ association within a short-term period, deeming that the previous measure, which is subject to punishment, is unfair and treated differently from the case in which a supporter directly deposits into a supporters’ association (see Supreme Court Decision 2010Do2540, Apr. 14, 201). Therefore, even if the time of action by the designation authority of supporters was prior to the amendment of the above Act, it constitutes “when the act does not constitute a crime due to the amendment of the Act after the crime,” and thus, the new Act is applied (Article 1(2) of the Criminal Act).

In light of the above legal principles, the court below reversed the judgment of the court of first instance and rendered a judgment not guilty on May 20, 2010, inasmuch as the defendant received donations from co-defendants in the court below on or around May 20, 2010, and immediately delivered them to the non-indicted who is a person in charge of accounting of the defendant's supporters' association, and the donator knew that he is co-defendants in the court below, regardless of whether the non-indicted disposes of the above donations in accordance with the procedure prescribed by the law, it is justifiable to reverse the judgment of the court of first instance and to render a

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)