(영문) 서울중앙지방법원 2017.9.19. 선고 2016재고합46 판결

Of the Seoul Central District Court Decision 2011Gohap1056 decided May 10, 2013, part 1 of the violation of the Political Funds Act due to the violation of Article 45(1) of the Political Funds Act

Imposition of Judgment

September 19, 2017

Text

Defendants are not guilty.

Persons subject to disclosure: Defendant A, C, D, E, I, H, and J: Defendant B, F, and G

Reasons

1. Summary of the facts charged

The Political Funds Act, which was enforced on March 12, 2004, introduced a tax credit system, enabling a tax credit of 10,000 won per donator with respect to lawful political funds contributions. Accordingly, the AA Party and AB Federation (hereinafter referred to as the "AB") have donated the support directly to AA and have been promoted a tax credit program for the annual tax credit of 10,000 won per member. However, the Political Funds Act, which was enforced on March 13, 2006, abolished the system of the Political Funds Act, which was enforced on March 13, 2006, no political party is entitled to receive direct political support from the individual.

On July 2006, AB made the "Ex Post Facto Party" system that does not have rights and obligations as a member of a political party, and AB made it possible to get its members to join a sponsor and participate in the tax credit business through affiliated affiliated associations by establishing guidelines for the "Ex Post Facto Party Tax Credit Project", and by raising political support to the union members under AB by means, such as making a tour by AA Party's instruction center around the 50 business places determined by AA and AB, and punishing the promotion campaign.

On March 16, 2008, RA was divided from AA Party, and RA Party, a new political party, introduced and operated a tax credit project for the Huwonwon, which was implemented in AA Party, without any way to raise political funds, and decided to raise political funds by raising political support funds by means of raising political support funds to individual union members.

Accordingly, Defendant B, who is the chief executive officer of the RA, proposed a basic plan for fund-raising through tax credit projects at the end of the year, and reported this to Defendant A, who is the chief executive officer. Defendant A reviewed the above items of the plan and submitted them to the meeting of the party representative group, and confirmed the plan to collect political support through the annual tax credit project for X-MM, BTM, AB, etc. after undergoing a resolution at the meeting of the party representative group and the joint meeting of the chairman of the City/Do party.

Political Parties received political support money collected under the lead of higher-level organizations such as X-MM and individual union members of each union.

A. Defendant A and Defendant B planned to raise political funds through a tax credit project as above, and accordingly received 100 million won from the Vice-Chairperson of Telecommunication Union D, among the 'the Compensation Fund for Victims' that was in the custody of the said trade union against its members on December 29, 2009, as stated in the attached list of crimes, from around December 8, 2009, to December 31, 2009, the sum of KRW 17,966 million was transferred to the new bank account (AD, AE) in the name of B from December 31, 2009, or was delivered in one’s own check. Accordingly, Defendant A and B received political funds in collusion in a manner that is not set forth in the Political Funds Act.

B. Defendant C, while working as the Vice-Chairperson of S Trade Union Co., Ltd. on December 8, 2009, collected KRW 15 million per capita from 150,000 won from 150 union members on December 8, 2009, and remitted this to the new bank account (AD) in the above B name, and contributed political funds in a way that is not provided for in the Political Funds Act.

C. Defendant D, while in office as the Vice-Chairperson of T Trade Union Co., Ltd., transferred KRW 100 million to the new bank account (AD) in the above name of KRW 1,000, among the "victim Remedy Fund" that was raised and kept in custody by the above trade union, Defendant D, who was in office as the Vice-Chairperson of T Trade Union, to contribute political funds in a manner that is not determined by the Political Funds Act.

D. On December 30, 2009, Defendant E, while working as the Chairman of U Trade Union Co., Ltd., and collected KRW 500,000,000 per person from 50 union members on December 30, 200 and remitted this to a new bank account (AD) in the above name, and contributed political funds in a way that is not provided for in the Political Funds Act.

E. Defendant F, while in office as the Vice-Chairperson of VM Co., Ltd., he collected KRW 6.2 million per capita from 62 members of the Trade Union on December 30, 2009 to 100,000 won per capita, and remitted this to the new bank account (AD) in the above B’s name, and contributed political funds in a way that is not stipulated in the Political Funds Act.

F. Defendant G, while working as the Vice-Chairperson of W Trade Union Co., Ltd. on December 30, 2009, collected KRW 5,100,000 per person from 51 members of the Trade Union on December 30, 2009, and remitted this to the new bank account (AD) in the above B’s name, and contributed political funds in a way that is not stipulated in the Political Funds Act.

G. Defendant H collected KRW 16,620,00 from 180,000 on December 30, 2009 as political funds from 180,000 members of the Labor Union, Defendant H deposited KRW 16,450,00 in the National Bank Account (AH)’s name in the name of X-MM. Defendant I, as the Head of the General Affairs Bureau of X-MM, remitted KRW 11,450,000 out of the political funds deposited by the above H to the new bank account (AD) in the above name.

Accordingly, Defendant I and Defendant H conspired to contribute political funds in a manner not stipulated in the Political Funds Act.

H. Defendant J, while in office as the Vice-Chairperson of the Z Trade Union Co., Ltd., collected KRW 17 million per capita from 170,000 won on January 12, 2009 to 17,000 won per capita, and wired KRW 8,520,000 among them to the new bank account (AD) in the above B’s name, and contributed political funds in such a way as not stipulated in the Political Funds Act.

2. Case progress

A. In the case of violation of the Political Funds Act, etc. by Seoul Central District Court Decision 201Gohap1056, May 10, 2013, on the grounds that the above act constituted “an act of contributing political funds by means not stipulated in the Political Funds Act” and Article 45(1) of the former Political Funds Act (amended by Act No. 8880, Feb. 29, 2008) was sentenced to a judgment imposing a fine on the Defendants (hereinafter referred to as “the judgment on review”), the appeal was dismissed in entirety, and the judgment for review became final and conclusive.

B. On February 29, 2015, the Constitutional Court rendered a ruling of inconsistency with the Constitution to the effect that “The provisions on Article 6 of the former Political Funds Act (amended by Act No. 88880, Feb. 29, 2008; Act No. 9975, Jan. 25, 2010); Article 6 of the former Political Funds Act (amended by Act No. 9975, Jan. 25, 2010); Article 45(1) of the former Political Funds Act (amended by Act No. 8880, Feb. 29, 2008); and Article 6 of the former Political Funds Act (amended by Act No. 8880, Feb. 29, 2008); and that “The provisions on Article 6 continue to apply until legislators amended on June 30, 2017” (hereinafter referred to as “the Constitutional Court ruling of inconsistency with the Constitution”).

C. According to the instant decision of inconsistency with the Constitution, Article 6 of the former Political Funds Act (amended by Act No. 9975, Jan. 25, 2010) was amended to add the “Central Party (including the Central Party Party Preliminary Committee) to the person authorized to designate the supporters’ association by Act No. 14838, Jun. 30, 2017, and was enforced on the same day.

D. On June 8, 2016, the Defendants filed a petition for a new trial on the instant judgment subject to a new trial. On September 9, 2017, this court rendered a decision to commence a new trial on the grounds that there were grounds for a new trial under Article 47(4) of the Constitutional Court Act in the instant judgment subject to a new trial, and the said decision to commence a new trial became final

3. Determination 3

According to the evidence duly adopted and examined by this court, the defendant C, D, E, F, G, H, I, and J have collected from the members of the trade union under the pretext of the tax credit project for the Rriwon, and the defendant C has remitted the amount of KRW 15 million on December 8, 2009, the amount of KRW 100 million on December 29, 2009, the amount of KRW 30,500,000 on December 30, 2009, the amount of KRW 6220,000 to the defendant F, the amount of KRW 30,510,000 on December 30, 2009, the amount of KRW 1,1450,000 to the defendant H and the defendant J, and the amount of KRW 1,1452,00 on December 31, 209 to the account under the name of the defendant B.

With respect to the Defendants’ above act of receiving funds, the Prosecutor instituted the instant prosecution by applying Article 45(1) of the former Political Funds Act (amended by Act No. 8880, Feb. 29, 2008) as the applicable provisions of the same Act. However, as seen earlier, the Constitutional Court sentenced the part concerning Article 6 of the former Political Funds Act and the main sentence of Article 45(1) of the former Political Funds Act concerning Article 45(1) of the former Political Funds Act concerning Article 6 of the former Political Funds Act.

The Constitutional Court’s ruling of inconsistency with the Constitution is a modified form that is not prescribed by the Constitution and the Constitutional Court Act, but constitutes a ruling of unconstitutionality as to legal provisions. In a case where the above ruling of constitutionality as to legal provisions is rendered, the validity of the said legal provisions shall be retroactively lost (see Supreme Court Decisions 2004Do711, Jan. 15, 2009; 2008Do7562, Jun. 23, 201).

In this case, Article 45(1) of the former Political Funds Act stipulates that the act of a party is against the provisions of Article 6 of the former Political Funds Act. Article 6 of the former Political Funds Act is combined with Article 45(1) of the former Political Funds Act, and Article 45 of the same Act establishes a legal provision relating to punishment. The above legal provision that is declared by the decision of inconsistency with the Constitution by the decision of inconsistency with the Constitution becomes retroactively null and void in accordance with the main sentence of Article 47(3) of the Constitutional Court Act. This does not change even if the “central Party (including a Central Party)” was added to the person authorized to designate a supporters’ association, which was amended and enforced June 30, 2

4. Conclusion

Therefore, the case in which a public prosecution was instituted by applying the above legal provision which retroactively lost its effect constitutes a case in which the said provision does not constitute a crime pursuant to the former part of Article 325 of the Criminal Procedure Act, and thus, the Defendants are acquitted. The remaining Defendants except Defendant B, F, and G who do not wish to make a public disclosure are excluded. The summary of the judgment is published in accordance with the main sentence of Article 440 of the Criminal Procedure Act, and the summary of the judgment is not publicly announced in Defendant B, F, and G in accordance with the proviso of Article 440

It is so decided as per Disposition for the above reasons.

Judges

presiding judge, judges, vibration

Judges Lee Jae-py

Power of Judge

Note tin

1) In the judgment subject to a retrial, the part concerning the violation of Article 45(1) of the Political Funds Act, in order to distinguish the part concerning the violation of the Political Funds Act due to the illegal acceptance of and acceptance of the political funds, but the not-guilty verdict, from those concerning the violation of the Political Funds Act due to the violation of Article 45(2)5 of the Political Funds Act, the part concerning the violation of Article 45(1) of the Political Funds Act (hereinafter

2) As to the portion of the violation of the Political Funds Act (Article 45(2)5 of the Political Funds Act), which provides that “the political funds were contributed with funds related to the organization in a mutually competitive relationship,” the Defendant was acquitted, but the sentence was not pronounced otherwise.

3) Relevant statutes are as listed in the separate sheet.