Do 2008 3723(a) Violation of Public Official Election Act

B. Violation of the Political Funds Act

Defendant

Defendant and Prosecutor

Attorney Kim Yang-nam

Daejeon High Court Decision 2008No93 decided April 23, 2008

July 24, 2008

all appeals shall be dismissed.

The grounds of appeal are determined.

1. Article 45(1) of the Political Funds Act provides that the grounds for appeal by Defendant 1 shall be punished by a person who has contributed political funds in a manner not prescribed in the above Act, and Article 3 subparag. 2 of the same Act provides that “Contribution” is defined as “an act of providing political funds to individuals, supporters’ associations, or other persons for political activities”. Thus, if a person has provided political funds in a manner not prescribed in the above Act, it would directly lead to the number of crimes of denying receipt of political funds under this Act. The other party to the offer does not necessarily require the establishment of a crime of denying receipt of political funds, and even if the other party has received a return from the other party after the return, there is no influence on the already established crime.

In the same purport, it is reasonable to maintain the judgment of the court of first instance which found Defendant guilty of the charge of violating the Political Funds Act as stated in the judgment of the court below, and there is no illegality such as the legal scenario on the establishment of the crime of illegal receipt of political funds at the same time.

In addition, the ground of appeal that the court below did not properly apply the sentencing condition under Article 51 of the Criminal Code is nothing more than the ground of appeal for the unfair sentencing, and this cannot be a legitimate ground of appeal in the instant case where the defendant was sentenced to imprisonment for less than 10 years against the defendant.

2. On the grounds of appeal by the public prosecutor, "a person who wishes to become a candidate" under Article 113 (1) of the Public Official Election Act is not necessarily required to have the intention of candidate confirmed or expressed in the outside in a conclusive manner, but at least a person who has an intention to be candidate in an election in light of his/her status, speech and behavior, etc., at least should have an objective recognition of his/her intention (see Supreme Court Decision 2007Do5435, Oct. 12, 2007).

In addition, the responsibility to prove the facts of the offense prosecuted in a criminal trial is against the public prosecutor, and the conviction of the guilty ought to be based on evidence with probative value, which leads to the judge to feel true, beyond a reasonable doubt. Thus, if there is no such evidence, even if there is a doubt of guilt against the defendant, it is inevitable to determine it as the interest of the defendant (see Supreme Court Decisions 2001Do2823, Aug. 21, 2001; 2002Do6110, Feb. 11, 2003, etc.).

The court below rendered a judgment of not guilty on the ground that there is a lack of evidence to see that the public prosecution of this case constitutes a candidate in the 18th National Assembly election of this case. The above judgment of the court below is acceptable in light of the above legal principles and records, and there is no violation of the rules of evidence, etc. as alleged in 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.

Justices Cha Han-sung

Justices Kim Ji-hyung

Justices Jeon Soo-ahn