2018No1903 (a) Violation of the Political Funds Act

(b)False;

1.(a) A

2.(a) B

Both parties

In case of new (prosecution) and trial, the trial shall be held.

Law Firm Sobio (for Defendant A)

Attorney Yellow-gu et al., Counsel for the plaintiff-appellant

Law Firm Jung-won (for Defendant A)

Attorney Lee Ma-young, Attorneys Lee Ma-young, Man-ju

Attorney Cho Chang-chul (for the defendant B)

Daegu District Court Decision 2017Gohap1246 Decided May 14, 2018

February 19, 2019

All appeals by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendants

1) Defendant A

A) misunderstanding of facts or misunderstanding of legal principles

(1) Violation of the Political Funds Act

① Defendant A does not have a public offering with regard to the execution of illegal election funds with Defendant B, and there is no promise to repay the election funds in the first place. Therefore, Defendant B did not borrow the election funds.

② Even if Defendant A offered the above public offering with Defendant B, Defendant A did not have the right to dispose of the election fund, so it cannot be deemed that Defendant B borrowed money.

In addition, the said money is the money transacted within the boundary of the accomplices who conspired to violate the Public Official Election Act on the violation of the Restriction on Contribution Act, and it cannot be viewed as a "political fund" issued for political activities.

Therefore, Defendant A does not constitute a crime of violating the Political Funds Act.

(3) Even if the crime of violating the Family Funds Act is established, this is in a relationship between the crime of violating the Public Official Election Act and the legal concurrence and the ordinary concurrence, and in light of the purport of the Public Official Election Act with a short-term statute of limitations for six months, the crime of violating the Political Funds Act shall also be acquitted upon the completion of the statute

(2) A false accusation

① Defendant A’s accusation is consistent with objective facts, and is not a false fact. Defendant A’s promise to repay illegal election funds last to Defendant B. Thus, Defendant A’s complaint is not a false fact.

(2) Even though Defendant A borrowed money with the above promise, and accordingly, Defendant A was aware of a false accusation, the crime of fraud cannot be established because Defendant A had no intention to acquire it from the original point of view. Therefore, Defendant A’s accusation constitutes an impossible attempt to commit a crime of false accusation, and unless there is a provision for punishment for attempted crimes, Defendant A’s accusation constitutes an impossible attempt to commit a crime of false accusation.

B) Unreasonable sentencing

The sentence imposed by the court below (the sentence No. 1 of the original decision: the fine of KRW 5 million, the first-Na of the decision of the court below, and the second-crime: the suspended sentence of imprisonment in April, and the additional collection) is too unreasonable.

2) Defendant B

The punishment (the penalty No. 1 of the original judgment: the fine of one million won, and the penalty of two million won as stated in the original judgment: the penalty of two million won) imposed by the court below is too unreasonable.

(b) Prosecutors;

Each sentence sentenced by the court below to the defendants is too uneasible and unfair.

2. Determination

A. Judgment on the mistake of facts or misapprehension of legal principles by Defendant A

1) Determination on the violation of the Political Funds Act

A) Determination of misunderstanding of facts (whether there was a conspiracy by the Defendants on the enforcement of illegal election funds)

(1) The judgment of the court below

The lower court determined that there was a conspiracy by the Defendants for the enforcement of illegal election funds, on the grounds of various circumstances as indicated in the lower judgment.

(2) Judgment of the court below

In addition to the following circumstances acknowledged by the evidence duly adopted and examined by the lower court and the lower court in the trial, it is reasonable to view that Defendant A offered a public offering for the execution of illegal election funds with Defendant B, and that Defendant A promised to pay the money later upon the execution of the election funds first.

Therefore, the judgment of the court below which found Defendant A guilty of this part of the facts charged is not erroneous in the misconception of facts. The Defendant A’s assertion on this

(A) Whether an illegal election fund has been actually executed to the elector

① Defendant B was investigated by the Labor Relations Commission on February 29, 2016 and received the request from Defendant A to manage KRW 240 million, and Q made a statement to Q to the effect that Q would have distributed money to Defendant A’s 19th National Assembly member election funds by delivering money to M and N., and consistently repeated the same purport to the court of the first instance. Accordingly, Defendant B’s statements are consistent with Defendant B’s statements such as double delivery books M, N, BG, BF, B, B, etc. to deliver the said money to many people.

In particular, Q consistently stated that Q had consistently executed illegal election funds through M and N, even though Q had been suffering from cancer at the time of this case’s investigation and had been in a very good health condition, it had consistently stated that Q had consistently received money from Defendant B and executed it through M and N. In addition, at the time of the investigation on January 25, 2017, which was conducted two weeks prior to Q’s death, and had made a statement to the same effect even if Q had been placed in a state of being dead because the health condition was not very good at the time of the investigation on January 25, 2017. Such statement is particularly reliable.

② From among those who wish to pay money, M, N, BG, BF, and DY, they stated that they received money from those who were in exchange for money. In particular, M, Q, B, B, Q, Q, Q, BV, B, B, B, BW, BW, BU, BD, B, B, B, Y, CB, and DY denied the receipt of money from those who were in exchange for the same amount. In particular, the fact that they were in return for the first time of the investigation that they were in return for a false confession for the Defendant B was reversed. In the last time, the aforementioned persons were not deemed to have made a false confession for the Defendant B.

③ It appears that only the amount of money calculated by the statements from those who led to the confessions that received the said money, such as CD, Q, and B, exceeds KRW 80 million. Moreover, considering the following, ① is not revealed by all electors who received the illegal election fund; ② is executed by means of paying the price of the people’s breath in lieu of direct cash; ② is used as an intermediate sender’s own expense in the course of delivery of the said money; and ② Q Q with a large number of election campaign experience is also stated as “the amount of money actually distributed by the intermediary with each other is 60%” (see, e.g., evidence 3: 1299 pages). In addition, it appears that there is a considerable amount of money exceeding KRW 80,000 as a statement of the said people.

④ Defendant A asserts that since “I.J.K area is strong, G party is a strong area, so as long as the election was publicly announced by G party, the election did not have any reason to spread illegal election funds.”

However, in the election of the National Assembly members of the 18th National Assembly in the above constituency in 2008, there was an winning and winning of the AF candidate who belongs to S Party at the time of the 18th National Assembly candidate, and the AF seems to have been significantly high in recognition in the local constituency at the time of the 19th National Assembly member election following the 18th National Assembly member election. Moreover, the AF returned the AF Park on March 16, 2012, and immediately returned it to the Defendant A, and the Defendant A was not high at the time of the Defendant A’s election.

Defendant A’s results of various public opinion polls conducted around March 26, 2012, according to the above facts. First, according to the results of ER’s public opinion poll conducted on March 24, 2012 from March 24 to March 25, 2012, 33.2% of Defendant A’s 34.7% of Defendant A’s 33.2% of the 34.7% of the 34.7% of the 333.2% of the 37% of the 34.3% of the 37% of the 34.3% of the 37% of the AF’s 4.3% of the 37% of the AF’s 38.3% of the 37% of the 34.3% of the 37% of the 35% of the 34.37% of the 38.1% of the 35% of the 2012.37% of the 35% of the 37.20.37% of the G.201.

Ultimately, according to each of the above public opinion pollss that Defendant A had an election power on the ground of the results of the public opinion poll conducted on April 5, 2012 and April 6, 2012 (Evidence Record 8: 4893 through 4897) by G EU and CL conducted on April 5, 2012 (Evidence Record 8: evidence record) but the result of the public opinion poll was carried out after considerable time of election campaign, and it is difficult to view that Defendant A had an election power on the ground that Defendant A had an election power on the ground that it was carried out after considerable time of election campaign since it was carried out after the commencement of active election campaign.

Rather, according to the results of each of the above public opinion pollss, it seems that the possibility of election to AF has been followed by the time when the defendant A started election campaign, and that the result of active election campaign, such as the execution of illegal election funds by the defendant B, has influenced the public opinion.

⑤ Defendant A asserted that there is no reason to borrow money from Defendant B because of the lack of self-reliance, and if the person who will execute the election fund required, Defendant A could request the near his family members to do so. However, as seen earlier, Defendant A was not aware of the fact that he was subject to the official election, and there was no high recognition on the local premises. As such, Defendant A was in need of an election campaign by using the organization of people such as the head of the Gun, the Gun, the Gun, the Gun, the Gun, and the National Assembly members prior to the Gun, and the Gun, the Gun, the Gun, the Gun, the Gun, the Gun, the Gun, the Gun, the Gun, the Gun, the Gun, the Gun, and the Gun, the Gun, the Gun, the Gun, the Gun, the Gun, the Gun, and the Gun, the Gun, the Gun, the Gun, and the Gun, the Gun were not a public official.

⑤ In full view of the above circumstances, it is reasonable to deem that the illegal election fund was actually executed to the elector, etc. in the process of Defendant A’s election for the 19th National Assembly member.

(b) The existence of the countermeasures meeting

① On March 2012, Defendant B, N, and M made a relatively concrete and consistent statement on the fact that her fluencing period on the enforcement of illegal election funds was the first time (hereinafter referred to as “first fluencing session”).

In particular, Defendant B was investigated by the prosecution on March 17, 2016 and stated that “O and P had attended the first countermeasures.” However, Defendant B had already expressed the phrase “I did not attend the first countermeasures meeting by telephone prior to the date of the investigation.” However, Defendant B had the intention to falsely take the first countermeasures against which Defendant B did not exist, but did not nominate those who had denied the fact of the meeting as the participants. In addition, Defendant B and N argued that Defendant B and N had made the second countermeasures related to the execution of election funds because they were Defendant B, A and N, and they were those in the form of opening the election campaign office, and they had made a false statement in view of the fact of election funds public offering with Defendant B and made a false statement, Defendant B made a statement in favor of Defendant B, the method of making a false statement, and the method of making a false statement in favor of Defendant B, and the method of making a false statement in favor of Defendant B, and the method of making a statement in favor of Defendant B.

② According to the monetary recording on March 2, 2016, which contains a conversation divided by Defendant B and 0 (see, e.g., evidence record 2: 598 pages); Defendant B, after the election of this case, refers to the fact that Defendant A had not repaid the money borrowed to him/her on two occasions or more; Defendant A has already requested two times or more of assistance; Defendant A has referred to as “consoring the above problem and solving the problem clean”; Defendant B had already requested two times or more of assistance in resolving the related problem.

As to this, 0 stated that Defendant B did not attend the first countermeasures and that Defendant B did not make a statement that Defendant A would first use the election fund and that Defendant A would not have paid the money. However, Defendant B did not have any connection with the election and did not have any relation to the election and that Defendant A would have known all the facts of Defendant A’s denial of election and would have received money. In addition, on March 2, 2016, including the conversation between Defendant B and P (see, e.g., record 2: 595 pages), Defendant B expressed that Defendant B would have known that “I would like to know .........” in relation to the first countermeasures and the first countermeasures, P would be well aware that there was a 0-year punishment.”

③ P also stated to the effect that “P does not attend the first countermeasures and is in full in the election office at the opening ceremony” (see, e.g., Supreme Court Decision 1314Du144, Mar. 2, 2016). However, according to the record of Defendant B and P divided on March 2, 2016, Defendant B and P, “B ”, “B , 0 , and N , and the Nonet , and I , and the Nonet , became inside the office,” the P . B . B . B was attached. B. B. b. b. b. other than the time, it appears to be that there was a first countermeasure at the time, but it appears to the purport that the P did not actively respond to the above passive fact at the time of the election office’s meeting, and that it appears that there was no reason to view that the P did not actively respond to it.

In addition, P, after being investigated by the prosecution on July 7, 2016, refused to attend without any particular reason within the investigation period, P, at the time of the investigation by the prosecution by the prosecution by the defendant EA, the secretary general of the prosecution by the defendant A, and at the time of the investigation by the defendant A, received several text messages related to the defendant A, and even after the P's investigation by the prosecutor, it was reported to EA several times after the P's investigation by the prosecutor, and it was sent again by the P, but even upon the P's repeated request, it was again sent the text message called 'the physical and simple preparation '(see, e.g., evidence record 5: 2198 to 220 pages). Accordingly, P appears to have been in cooperation with the defendant at the time of the investigation, it is difficult to believe that P's statement that it was not present at the time of the first countermeasures.

④ Therefore, in full view of the above circumstances, it is reasonable to deem that the first and second countermeasures meetings asserted by Defendant B existed.

(C) Defendant B’s process of raising illegal election funds

① Until the second examination of the witness, Defendant B made a statement that the cash withdrawal of KRW 91,185,600 from the L account of the company was made in cash to Q Q. It is true that Defendant B, prior to the three-time examination of the lower court, deposited the said money in cash, and Defendant B deposited the said money once deposited the said money to QL by means of reorganization of AM (N)’s factory management, which was managed by AL. However, it is true that Defendant B reversed Defendant B’s statement that 50,000 won and KRW 100,000,000,000,000,000 won, which he had been returned in cash, were returned to Q in cash.

However, as seen earlier, the fact that Defendant B executed illegal election funds on a substantial scale through Q Q 1 is recognized; ④ Defendant B’s 200 million won out of the total amount of KRW 48 million is sufficiently explained through L, AP, AS, and QU’s account details; Defendant B’s withdrawal out of the remainder of KRW 48 million was made in cash from the passbook in the name of Defendant B, and Q Q 10 million was also made out of the passbook to the effect that it was difficult to find that there was no possibility that Q 10 million out of the account, including the fact that it was written in cash, and that there was no possibility that Q 10 million won out of the account, including the fact that it was written in cash, and that there was no possibility that Q 10 million won out of the account would be made out to the effect that there was no difference between Defendant B and Q 100 million in cash at the time of sale. The same is applicable to AW 100,000,000 won.

② In addition, Defendant B testified to the effect that Defendant B would have withdrawn KRW 100 million from the examination of the first witness of the lower court on the grounds for withdrawing KRW 16,91,185,600 on March 16, 2012, and that Defendant A had made a contradictory statement to the purport that Defendant A had already withdrawn the said money prior to receiving official approval. However, it does not seem that Defendant A made a false statement with intent to give rise to inconsistency as it was an objective fact clearly revealed that the time of withdrawal of money and the date of official approval was clearly revealed.

(D) As pointed out by Defendant A, it is true that Defendant B made each of the above people’s statements on the specific amount of money delivered through Q to the intermediate delivery books, including M, N, BG, BF, and B, during the instant investigation.

① The point at which each of the above people’s statements was made is about four years after the enforcement of the election fund. C Q paid money to the intermediate delivery book more than one time, and the intermediate delivery book is also divided immediately into money. Rather, it is natural that Q and the intermediate delivery book is not possible to accurately memory the amount of the money executed, and it is more natural that the statements made in the situations where there are no objective data such as account books, etc., Q are accurately consistent with their statements from the beginning of the prosecutor’s investigation, and Q were stated as follows (see, e.g., three right 113 pages of evidence record), and there is no specific amount of money from 00 billion won to 40 billion won, and there is no specific amount of money from 20 billion won to 40 billion won, and there is no difference between the above Defendants B and B’s initial inspection into the above facts charged.

(e) Reporting on the enforcement of illegal election funds.

① Defendant B stated that the consistently executed election funds from the police investigation stage to the trial court at the court of the trial, and the N consistently reported to Defendant A, from the police investigation stage to the court of the trial at the court of the trial, to the court of the trial at the court of the trial at the court of the trial at the same time, Defendant B made an interim report to Defendant B and was in the position of Defendant B.

② Defendant A entered the office immediately after the end of the election campaign day. At night, Defendant B stated that the election campaign office would not have any other contact with Defendant B at the election campaign office, and denied Defendant B’s statement (see, e.g., Supreme Court Decision 6Do2504 delivered on evidentiary records).

However, the CF, an assistant of the Defendant A, was found to have been in the election campaign office at night. The other basic members did not go at the election campaign office at night, and only Defendant B had been in the election campaign office at night at night at night at night at night. Defendant A finished an election campaign and most of Defendant B testified at the election campaign office. Defendant B made a statement to the effect that “I are waiting for Defendant A at the election campaign office at night (see, e.g., the evidence record, 7: 3380 to 3388 pages).” Defendant A’s execution expenses at the time of the election campaign (see, e.g., the evidence record, 7: 3380 to 3388 pages) was also returned to the election campaign office at night. Defendant A was made a statement to the effect that “I will go back to the election campaign office after completion of the election campaign (see, e.g., the evidence record, 5934 pages).” Defendant B appears to have made a statement to the effect that I would not have been able for Defendant B’s.

(f) The circumstances after this case

① On November 9, 2015, Defendant B has discussed that “BI, an assistant to Defendant A, does not grant any money to Defendant A” in Eunpyeong-gu Seoul, and BI would address the problem of money by the end of December 2015. It is true that Defendant B would be able to assist in the construction business (see, e.g., right to investigation record 5, 2080 pages).

In this regard, BI asserted that it was merely a personal settlement of money, rather than Defendant A’s instructions. However, at the time, BI argued that “Defendant B used a large amount of election funds for Defendant A” (see, e.g., Supreme Court Decision 7Du331, Nov. 9, 2015; Supreme Court Decision 2007Du13331, Oct. 2, 2015; Supreme Court Decision 2007Du148, Nov. 9, 2015; Supreme Court Decision 2006Da1331, Oct. 22, 2015).

② On March 14, 2016, Defendant A’s birth CH stated that Defendant B would pay money after Defendant B met or 20 lines end (see, e.g., evidence record 5: 2137 pages). Defendant B told Defendant B on March 18, 2016, on the following day after Defendant B was investigated by the first prosecutor’s office, that “the withdrawal of Defendant B’s complaint by telephone” (see, e.g., evidence record 5: 2125, 2135 pages).

이에 대하여 CH은 개인적인 차원에서 돈을 주겠다고 한 것일 뿐이라고 주장하나, ① 앞서 본 바와 같이 피고인 A의 불법 선거자금에 대한 언론 보도 및 2016년 2 월경 피고인 B 등에 대한 J군선거관리위원회의 조사가 있었던 조심스러운 상황에서, 피고인 A의 지시나 승인 없이 CH이 개인적으로 돈을 주어 문제를 해결하겠다고 나선다는 것은 이해하기 어려운 점, Ⓒ 피고인 B과 CH은 2016. 3. 14. 20시 무렵 서울 강동구에서 만난 것으로 보이는데, 그 전후로 CH과 피고인 A은 수시로 통화했고, 피고인B과 CH이 2016. 3. 18. 통화한 날 전후로도 CH과 피고인 A이 수시로 통화한 점(증거기록 7권 3304, 3306쪽 참조) 등에 비추어, CH의 위 주장을 그대로 믿기 어렵다. 오히려 CH과 피고인 B이 나눈 대화가 담긴 2016. 3. 18.자 녹취록에 따르면(증거기록 2권 574 내지 584쪽 참조), CH은 피고인 B에게 고소 취하를 종용하며 '그래도 우리가 좀 듣고 가야 우리도 입을 맞춰가지고 하지 싶어 가지고, 뭐 묻던고 그런 이야기를 좀 듣고.'라는 말을 하여, 피고인 A측이 피고인 B의 진술에 맞춰 진술할 것이라는 말을 하기도 했고, 또한 피고인 B이 CH에게 공소사실 기재 내용과 같은 1차 대책회의. 불법 선거자금 집행 등을 그대로 모두 얘기했음에도, CH은 이에 전혀 이의를 제기하지 않은 채 오히려 '마지막에 뭐 좀 얘기 했습니까? 어제 내가 말씀드린대로 서로 좋게 뭐 이야기 좀 안했나? M이가 양심선언하는 바람에.'라고 말하기도 했으며, 피고인 B이 '형님이 힘이 있으면 위에 빨리 눌라가 검찰에서 끝내야 된다.'라고 하자, 이에 CH은 '그거는 하고 있어요. 지금.'이라는 말을 하는바, 결국 앞서 든 사정 및 위 통화 내용 등을 종합하면, CH은 피고인 A의 지시로 피고인 B의 문제에 적극 개입해 피고인 B에게 합의 내지 고소 취하를 종용하고, 피고인 A에 대한 유리한 진술을 해줄 것을 부탁하는 한편, 그 진술을 토대로 피고인 A측의 진술을 서로 맞추고자 했던 것으로 보인다. ③ 피고인 A은 피고인 B에게 앞서 본 바와 같이 보좌관, 자신의 동생 등을 통해 피고인 B에게 지속적으로 합의 내지 고소 취하를 종용했을 뿐만 아니라, 피고인 B과 잘 아는 사이인 J군수 CE에게 합의 중재를 요청하기도 했다(공판기록 1188쪽 참조). 또한 피고인 A은 2016. 3. 20. 피고인 B을 직접 만나는 자리에서 '다 내가 부덕해서 그런 거 아니가. 우리가 그 전에 몰랐던 사이였으면 이런 일도 없었을 건데, 안그러냐? 내가 늘 얘기했지만 그래도 아는 사람이 니뿐이라 카고'라는 말을 하며(증거기록 2권 1003쪽 참조), 피고인 B에게 고소 취하만을 요구할 뿐, 피고인 B이 허위 사실로 고소한 것에 대해 별도로 따지지도 않았다. 그런데 이러한 피고인 A의 태도는 '피고인 B은 10년 동안 한 번 본 사이에 불과하다. 피고인 B이 허위 사실로 나에게 돈을 요구한다'는 현재 태도와는 상반된다.

(G) Defendant A asserts that the possibility that Defendant B would have executed the election funds voluntarily would have been executed, Defendant B would lose the contribution to the election of a member of the basic election that would have been later in the future and voluntarily executed the election funds.

① However, the issue of donating illegal election funds to voters is not only a significant impact on the election if the fact is discovered, but also a serious issue may lead to the criminal punishment of candidates. It is difficult to understand that Defendant B, who was a candidate, voluntarily helps to carry out an election campaign without the direction or approval of Defendant A at the time, voluntarily executed the enormous illegal funds of KRW 248 million. A witness EA at the stage of the election of the National Assembly member at the beginning of April 2012, 201, the 19th election of the National Assembly member at the beginning of April, 2012, the 19th election of Defendant B, which called that Defendant B would have been able to receive money. Accordingly, Defendant B appears to have demanded money from Defendant A immediately after the election. If Defendant B voluntarily demanded money without the direction of Defendant A, it appears that he did not immediately demand money immediately after the election of Defendant A.

B) Judgment on the misapprehension of legal principles

(1) Determination on whether the crime of violating the Political Funds Act is established

Defendant A asserts that since he did not have the right to dispose of his election funds, he does not borrow money, and that the money is not a "political fund for political activities".

However, the following circumstances acknowledged by the court below and the court below's duly adopted and examined the evidence, i.e., (1) Defendant A promised to pay back the election funds first to Defendant B, and accordingly Defendant B actually executed the election funds. It is reasonable to view Defendant B as lending money to Defendant A; (2) there is no individual authority to execute the loan between Defendants A; and (3) unless there is no agreement on interest on the loan between the Defendants, it is reasonable to deem that Defendant B lent the election funds free of charge to Defendant A; and this constitutes a provision for the political activities of Defendant A, a candidate under the Public Official Election Act; (3) Defendant A contributed the financial interest equivalent to the interest accrued from the loan; and (4) Defendant A's lending money to Defendant A's 2005Do7112, Oct. 12, 2007; and (4) Defendant B's lending money to Defendant 2 cannot be viewed as constituting a separate crime under the Public Official Election Act, and there is no reason to view that each of the above crimes constitutes a separate crime under the Political Funds Act.

Therefore, Defendant A is subject to the crime of violating the Political Funds Act. Defendant A’s assertion on this part is without merit.

(2) Determination as to whether the statute of limitations has expired

Defendant A asserts that even if the violation of the Political Funds Act is established, this is in conflict between the crime of violating the Public Official Election Act and the legal concurrence or commercial concurrence, and the statute of limitations for short-term period of six months has expired.

① However, while the Public Official Election Act’s legal interest is to prevent unlawful election and to implement fair election, the Political Funds Act’s legal interest is to secure transparency of political funds and to prevent unlawful election related to political funds, and thus, the same legal interest is not applicable to the development of democratic politics. The crime of violating the Public Official Election Act due to the violation of contribution-restricted act or the purchase of elector’s political funds does not include both the crime of violation of the Political Funds Act and the crime of violation of the Political Funds Act due to the payment of political funds, which are not by a person in charge of accounting, and one of the two crimes cannot be deemed to include all the other crimes. Therefore, it is reasonable to view that the above two crimes are separate crimes, the legal interest and constituent elements of which are different, and they are in a commercial competition relationship, not the total legal interest and constituent elements (see, e.g., Supreme Court Decision 2008Do11040, May 14, 2009).

2) Determination as to the crime of false accusation

A) While Defendant A did not use political funds for Defendant B in the election process of the 19th National Assembly member of the National Assembly, Defendant A made a false statement to a reporter at a press organization and made the said contents reported, Defendant A submitted a false statement to the effect that “A submitted a false statement of fraud with the intention of having the reporter at the press organization punished,” and Defendant B submitted a false statement of fraud with the intent of having the reporter at the press organization receive criminal punishment.”

However, as seen earlier, Defendant A instructed Defendant B to execute the election fund first, and actually borrowed the election fund. As such, Defendant A’s complaint constitutes an accusation of false facts for the purpose of criminal punishment against Defendant B.

B) Defendant A asserts that Defendant A’s complaint to the effect that, since there is no room for fraud to be established because there is no intention to obtain fraud from the original point of view, Defendant A’s “Defendant A did not commit fraud,” constitutes an impossible attempted crime.

However, in view of the fact that Defendant A promised to repay election funds to Defendant B, but the loan itself is denied without paying to Defendant B for a few years, there may be room for the establishment of Defendant A’s fraud, and therefore, it is difficult to deem Defendant A’s complaint as an impossible attempt to commit a crime without accusation. Defendant A’s assertion on this part has no merit.

B. Determination on the assertion of unfair sentencing by Defendants and prosecutors

1) Defendant A

The arguments of the defendant A and the prosecutor are also examined.

The court below held that: (a) Defendant A borrowed political funds exceeding KRW 200,000 from Defendant B as a non-person in charge of accounting and granted them as funds for the mobilization of an election organization to M and N, etc.; (b) such illegal receipt of political funds obstructs transparency in revenue and expenditure of political funds necessary for the sound development of democratic politics; and (c) Defendant A committed the instant illegal receipt of political funds in order to raise the illegal receipt of political funds necessary for the mobilization of an election organization in the immediately preceding strategic planned area without certainty; (c) in light of the motive and circumstances of the relevant crime, it is difficult to conclude that such crime did not have any influence on the actual result of the election; and (d) Defendant A did not return the above money until now on the grounds that Defendant B was an incumbent member of the military council with public authority, and furthermore, Defendant A’s election campaign is likely to have any influence on Defendant A’s election campaign, and thus, Defendant A’s election campaign’s election campaign and election campaign’s status was maintained solely based on the following circumstances.

① Defendant A, who had been outside the election at the time, actively accepted the matters determined at the election campaign meeting of this case, and was not demanded Defendant B to actively lend political funds. ② Although the amount of political funds borrowed by Defendant A is large, the illegal profit is assessed to the extent of KRW 8 million, which is the amount equivalent to the financial profit, ③ there is no evidence to deem that the actual election result had an effect. ① In the case of a crime without doubt, Defendant A, etc., failed to present clear materials related to election funds, which could have a certain doubt about the amount of money, is likely to have a partial impact on the complaint. ⑤ Defendant A was sentenced to the above punishment, taking into account favorable circumstances, such as the fact that Defendant B, etc. did not have any criminal power, and Defendant A was the first offender who has no criminal power.

In full view of the fact that there is no change in circumstances to change the sentencing of the lower court, other than the flexible and unreasonable circumstances taken into account by the lower court, and all other conditions of sentencing, including Defendant’s age, character and conduct, environment, background leading to the commission of the crime, means and consequence, size of the crime, and circumstances after the crime, it cannot be deemed that the lower court’s determination of sentencing exceeded the reasonable bounds of discretion or maintaining it as it is is unreasonable (see, e.g., Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015). Therefore, Defendant A and the Prosecutor’s assertion

2) Defendant B

The arguments of Defendant B and the Prosecutor are also examined.

The court below sentenced the above punishment by taking into account the circumstances that Defendant B was an incumbent member of the election campaign committee at the time of the crime of this case, although Defendant B was the incumbent member of the election campaign committee at the time of the crime of this case, lent Q to Defendant A as an interest-free member, and participated in spreading the election fund led by setting the fund management measures. The crime of this case is serious, its nature is serious, its harm is considerable, and the necessity to strictize it is also significant, etc. The crime of this case is considered as a disadvantageous condition; ① Defendant B recognizes all the crime; ② Defendant B also lent political funds in accordance with the matters set by the election campaign committee at the election campaign committee at this case; ② it was not actively proposed; ③ Defendant B was not a member of the election campaign committee at this case; ③ was unable to obtain any profit; ④ Defendant B was unable to receive political funds from the crime of this case; ④ Defendant B was not subject to any punishment power other than the fine of this case once every ten years

In full view of the fact that there is no change in circumstances to change the sentencing of the lower court, other than the flexible and unreasonable circumstances taken into account by the lower court, and all other conditions of sentencing, including the Defendant’s age, character and conduct, environment, background leading to the commission of the crime, means and consequence, size of the crime, and circumstances after the crime, it cannot be deemed that the lower court’s judgment exceeding the reasonable bounds of discretion or maintaining it as it is is unreasonable (see, e.g., Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015). Therefore, Defendant B and the Prosecutor’s assertion are without merit.

3. Conclusion

Therefore, the appeal by the defendants and the prosecutor is without merit, and all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The presiding judge, appointed judge and assistant judge

Judges Kim Gin-ju

Judges No. Roon