In the case of “funds related to a corporation or organization” subject to the contribution provided for in Article 31(2) of the Political Funds Act, and the standards for determining

Articles 31(2) and 45(2)5 of the Political Funds Act

Supreme Court Decision 2008Do10658 Decided June 14, 2012 (Gong2012Ha, 1240) Supreme Court Decision 201Do15418 Decided March 14, 2013 Supreme Court Decision 2011Do8649 Decided October 31, 2013 (Gong2013Ha, 2178)

Defendant 1 and two others

Defendants and Prosecutor

Law Firm C&A, Attorneys Lee E-Ba

Daejeon High Court Decision 2014No132 decided September 19, 2014

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendants’ grounds of appeal

A. As to the assertion regarding the elements of the crime of violating the Political Funds Act by making an act of donation related to solicitation

The lower court: (a) premised on the premise that the act of solicitation does not necessarily require to exist in order to establish the crime of violation of the Political Funds Act (Article 45(2)5, and Article 32 subparag. 3 of the Political Funds Act) due to a solicitation-related contribution act; (b) determined that the lower court convicted all of the violation of the Political Funds Act due to each solicitation-related act listed in attached Table 4, 12, 14, and 17 of the list of crimes in the first instance judgment on the grounds stated

Examining the reasoning of the lower judgment in light of the relevant statutes and the relevant legal principles and the evidence duly admitted by the lower court, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the elements of violation of

B. As to the assertion regarding co-principals

The lower court determined that: (a) on June 29, 2010, Nonindicted 2, a group of Nonindicted 1 Association 1 (hereinafter referred to as the “Association”) requested the primary support for Nonindicted 3 and Nonindicted 4 members of each regional headquarters and the National Federation on June 29, 2010; (b) upon receiving the first request, the Busan Regional Headquarters of the Cooperative Federation requested the support for Nonindicted 3 and Nonindicted 4 members to the Cooperatives located in Busan; (c) the executives and employees of the Gyeongnam-gu Association, who were not participating in the first support, called that they would listen to the first support and participate in their support; (d) Nonindicted 5, an employee of the headquarters in Busan Metropolitan City, was in violation of the purpose of allowing Nonindicted 2 to give additional support to Nonindicted 1 and 4 members; and (e) Nonindicted 3, the executive officers and employees of the Association in Busan Metropolitan City, from around 30 to 40 on July 13, 2013, the Defendants were guilty on the grounds that they were in violation of its reasoning.

Examining the reasoning of the judgment below in light of the relevant legal principles and the evidence duly admitted, the judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, by exceeding the bounds of the principle of free evaluation of evidence, by misapprehending the legal principles on

C. As to the assertion on amendment of indictment

In a case where a court recognizes a minor criminal facts, which are included in the criminal facts charged within the scope recognized as identical to the facts charged, and where it is deemed that there is no concern that substantial disadvantage to the defendant’s exercise of his/her right to defense in light of the progress of trial may be judged as to the facts charged other than those stated in the indictment ex officio, even if the indictment has not been modified (see Supreme Court Decisions 94Do129, Nov. 4, 1994; 2009Do9122, Jul. 28, 2011, etc.).

According to the records, Defendant 2 and Defendant 3 did not appeal against the judgment of the court of first instance, which acknowledged the Defendants as indirect principal offender ex officio without changing the indictment, and Defendant 1 did not appeal as legitimate grounds for appeal. The Defendants asserted to the effect that “in order to be found guilty of the facts charged in this case, indirect criminal provisions shall apply” in the summary of pleadings submitted on June 18, 2014, which was after the closing of argument in the court below, the court below determined to resume pleadings on June 24, 2014.

Examining these factual relations in light of the above legal principles and the punishment imposed on the same punishment as the principal offender or a more mitigated punishment, the lower court cannot be deemed to have applied ex officio the provision of indirect crime without changing the indictment, thereby causing substantial disadvantages to the Defendants’ exercise of their rights to defense. In so doing, the lower court did not err by misapprehending the legal doctrine on changes in indictment, contrary to what is alleged in the grounds of appeal.

2. As to the Prosecutor’s Grounds of Appeal

A. On the part of innocence in violation of the Political Funds Act due to the act of donation related to solicitation

Examining the reasoning of the judgment below in light of the records, the court below was just in holding that the violation of the Political Funds Act by each solicitation-related act listed in attached Table 3, 5, 10, 13, and 20 of the list of crimes in the judgment of the court of first instance among the facts charged of this case constitutes a case where there is no proof of criminal facts. In so doing, contrary to the allegations in the grounds of appeal, the court below did not err by failing to exhaust all necessary deliberations, exceeding the bounds of the principle of logic and experience and free evaluation of evidence, or by misapprehending the legal principles on the violation of the Political Funds Act by means

B. As to the assertion on violation of the Political Funds Act due to the act of contribution to funds related to organizations

Article 31(2) of the Political Funds Act prohibits a corporation or an organization from contributing any political fund with a fund related thereto even if it does not contribute any political fund by itself, only if a corporation or an organization is involved in any form in raising the fund for contribution, it shall not be deemed a “fund related to a corporation or an organization” as the subject of the donation provided for in Article 31(2) of the Political Funds Act. A corporation or an organization may dispose of the fund raised and raised by itself or at least the same time participate in raising and raising the fund for contribution, and it shall be deemed a “fund related to a corporation or an organization” only if it can dispose of the fund raised and raised by a corporation or an organization or can be deemed as a “fund related to a corporation or an organization”. Furthermore, in specific cases, whether such fund is related to a corporation or an organization shall be determined by fully ascertaining the overall process of raising funds and raising funds, raising funds, raising funds, raising funds, the details of contributions, and the interests of donors, etc. (see Supreme Court Decisions 2008Do1065814, Jun. 14, 2014).

The lower court determined that, on the grounds of the following circumstances: (a) executive officers and employees of a cooperative are not funds owned by the cooperative but funds owned by them; (b) the funds were attributed to the cooperative; and (c) the funds were not distributed again to the executive officers and employees; (d) there was a cooperative that did not comply with a request for support; (e) there was an employee who did not contribute political funds even among the employees of an individual cooperative; (b) half of the executive officers and employees of a cooperative and a group of union are anticipated to comply with the support; and (c) the majority of the executive officers and employees of a cooperative who contributed political funds are expected to be in fact an economic loss with a tax credit benefit in the case of a small-amount support fund; and (d) the majority of the executive officers and employees of a cooperative who contributed political funds were contributed with a vague expectation that they will be able to contribute political funds; and (e) the central association’s contribution of political funds by force is not a superior.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on “funds related to a corporation or organization” as provided by Article 31(2)

C. Meanwhile, while the prosecutor appealed to the entire judgment of the court below, there is no specific reason in the petition of appeal as to the guilty portion and there is no reason in the appellate brief as to the grounds of appeal.

3. Conclusion

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

Justices Kim Chang-suk (Presiding Justice)