2012Do3969A. Violation of the Public Official Election Act

B. Violation of the Political Funds Act

(c) Acquisition of third-party brain;

(d) Delivery of third-party brain;

(e) A perjury;

1.(a)(c) A;

2.b. d. M

3.2.N

Defendants

Attorneys (at Law Firm A, M)

Law Firm CU (Defendant N)

Attorney CV, DI, CW

Law Firm CX (Defendant N)

Attorney DH, CY, DA

Gwangju High Court ( Jeonju) Decision 2011No246 Decided March 23, 2012

July 26, 2012

Of the judgment of the court below, the part against Defendant A and N, and the part against Defendant M’s violation of the Political Funds Act, and the third-party brain intercourse are reversed, and this part of the case is remanded to the Gwangju High Court. The appeal against the part on perjury by Defendant M is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to Defendant A’s violation of the Political Funds Act, the acquisition of third-party brain, the violation of the Political Funds Act by Defendant M, the delivery of third-party brain, and the violation of the Political Funds Act by Defendant N

A. (1) In a criminal trial, criminal facts should be found based on strict evidence of probative value, which leads a judge to have a reasonable doubt. Thus, in a case where the prosecutor’s proof is not sufficiently enough to have the aforementioned conviction, it should be determined in the interests of the defendant even if there is suspicion of guilt, such as the defendant’s assertion or defense contradictory or uncomfortable dismissal.

On the other hand, in a case where the issue is whether to accept money or valuables, and the defendant's statement that was identified as the recipient of money or valuables denies the fact of receiving money or valuables, in order to be found guilty on the sole basis of the statement made by the person who provided the money or valuables, the relevant person's statement must be admissible as evidence, and there should be credibility excluding a reasonable doubt. When determining credibility, not only the rationality, objective reasonableness, and consistency before and after the relevant statement itself, but also its human beings, and in particular, when there is a suspicion of a crime committed against him/her, and there is a possibility that an investigation may be initiated against him/her, or when an investigation is being conducted, there is a possibility that his/her efforts may affect the statement that he/she would escape from the imminent place of his/her statement even if it does not reach the extent that the admissibility of the statement is denied (see, e.g., Supreme Court Decisions 200Do5701, Jun. 11, 2002; 208Do378, Jan. 15, 2009).

(2) According to Article 3 subparag. 1 and subparag. 2 of the Political Funds Act, the term "political funds" refers to money, securities, and other goods provided to persons who engage in political activities, such as candidates for election of public officials, as well as expenses incurred in their political activities, and the term "contribution" refers to all acts of providing political funds to individuals, supporters' associations, and other persons for political activities, and the term "contributions" refers to free lending of money, valuables, or facilities. Article 45(1) of the same Act provides for the punishment of a person who contributes or receives political funds by means

In full view of these provisions, it is reasonable to view that the act of a candidate to run in an election for public office to borrow money free of charge constitutes the act of receiving political funds prohibited by the Political Funds Act, but the borrowed money itself does not mean to have received the donation, and that the person receiving pecuniary benefits equivalent to the interest has received the donation in comparison with the case where the borrowed money was ordinarily made. The subject of confiscation and collection should also be limited (see, e.g., Supreme Court en banc Decision 2009Do7436, Oct. 22, 2009).

B. The summary of this part of the facts charged was as follows: (a) around June 2, 2010, Defendant A, who was in charge of the election campaign-related affairs of Defendant N who was elected by going to the candidate for the head of the Gun office of Dong-si local election on June 2, 2010; (b) around May 28, 2010, at the time of the election of Defendant N’s N’s head of the Gun, left the Defendant M with the election campaign-related affairs; (c) KRW 84 million in total from Defendant M with the election fund; and (d) Defendant M donated political funds at the same time with Defendant A, who was in charge of the election campaign-related affairs of Defendant N; and (d) Defendant N, in collusion with Defendant A, received political funds amounting to KRW 84 million in total, which is the State-owned land at the time of the election of Defendant N’s head of the Gun; and (d) was not a person in charge of accounting or a person in charge of accounting, received political funds without a deposit account.

The most direct evidence corresponding thereto lies in the statement of the suspect interrogation protocol between the first and seventh times in the prosecution of the defendant M (hereinafter “first statement”). Meanwhile, the defendant A and N consistently argued from the investigative agency to the court below that the defendant A borrowed the above 84 million won from the defendant M individually and that the defendant N guaranteed in the process. The defendant M also argued to the same effect as the defendant A and the court of the first instance. In particular, the defendant N in the court of final appeal, when the defendant N was at the court of final appeal, they merely known that the defendant A was an individual loan of KRW 84 million from the defendant M, whether the purpose of the election fund was to obtain KRW 84 million from the defendant M, or not, and that the defendant M did not receive KRW 84 million from the defendant M.

다. 적법하게 채택된 증거들에 의하면, 피고인 M은 2004년경부터 이 사건 지방선거에 이르기까지 피고인 N을 지지한 소위 '구조직'의 구성원으로서 선거자금 조달 등의업무를 담당한 측근인 사실, 선거운동기간 막바지에 이른 2010. 5. 27.경 피고인 N에 대항한 AJ당 후보들이 단일화에 성공한 이후 선거 후반 판세가 요동칠 우려가 있는 상황이 되자 피고인 A은 피고인 N에게 추가 선거자금의 필요성을 주장한 사실, 피고인M은 2010. 5. 28.경 AM으로부터 2억 원을 차용하였는데, AM이 보증인을 요구함에 따라 피고인 N이 전주에 있는 부동산중개사무소에 가서 피고인 M이 2억 원을 차용하여 2010. 10. 31.까지 변제하기로 하는 내용의 차용증(이하 '이 사건 차용증'이라 한다)에 보증인으로 서명하고 돌아왔고, 그 후 피고인 M은 위 채무의 불이행 시 이 사건 임야의 불하와 동시에 그 소유를 AM 등에게 이전한다는 내용의 매매계약서를 작성하고 피고인 A이 위 매매계약의 매도대리인으로 기재된 사실, 피고인 M은 AM으로부터 위 2 억 원 중 선이자를 공제한 1억 7,000만 원을 받아 피고인 A에게 3,000만 원은 현금으로 교부하고, 5,400만 원은 피고인 N의 선거운동원이자 선거기간 중에 운전기사 역할을 했던 Y의 계좌를 이용하여 전달한 사실, 위 8,400만 원 중 1,100만 원이 피고인 N의 선거비용으로 사용된 사실을 알 수 있다. 선거 직전에는 선거운동에 바빴을 것이므로 임실군수 후보자인 피고인 N이 피고인A의 개인적인 채무를 보증하기 위해 임실에서 전주까지 가서 보증인으로 서명하였다.는 것은 쉽게 납득이 가지 않고, 피고인 N의 선거운동을 담당하였던 피고인 A이 받은 위 8,400만 원 중 1,100만 원이 피고인 N의 선거비용으로 사용되었는데, 피고인 A이 개인적으로 돈을 차용하면서까지 피고인 N의 선거비용을 지출한다는 것은 이례적인 사정들과 아울러 아래 라. 항에서 살펴보는 각 녹취록의 대화내용 등을 함께 고려하면, 위 8,400만 원은 피고인 A이 피고인 M으로부터 개인적으로 차용한 돈이 아니라 피고인 N의 선거자금으로 사용하기 위한 돈이라고 본 원심의 판단은 수긍할 수 있다.

D. However, even if the above amount of KRW 84 million was to be used as Defendant N’s election fund, whether Defendant A received the above amount of KRW 84 million as consideration of the forest of this case, and whether Defendant A and N borrowed the above amount to use as the election fund or received the above amount, as alleged in Defendant N’s grounds of appeal, should be determined based on objective evidence.

(1) According to the record, Defendant M. 1 and M. 2 had been tried to reverse Defendant N. 1’s election, but Defendant N. 2 had been tried to invalidate the election of Defendant N. 2 on the ground of the loan certificate that Defendant N. 2 had taken office with the head of the Gun, and Defendant M. 1 had been asked to pay KRW 300,000 to Defendant M. 2 for the first time following the 20th public prosecutor’s statement. According to the record on October 11, 2010, Defendant M. 1 and M. 2’s first statement to the effect that Defendant M. 1 and M. 1 had been recorded on the 20th public prosecutor’s office without any alternative, and that it is difficult for Defendant M. 1 and M. 4’s first statement to the effect that Defendant M. 2 would not be allowed to receive compensation even if Defendant M. 3 and M. 1 had been written on the 1st public prosecutor’s office.

As such, each recording reveals that Defendant M received money from Defendant MN and made the first statement at the prosecution and there was a false or exaggerated part in the first statement, there is doubt about the credibility of the contents of the first statement, and even in the process of the declaration of conscience to reverse the original statement, Defendant N received money from Defendant N even in the process of the declaration of conscience to make a statement to reverse the original statement, and thus, Defendant M’s statement is reversed several times thereafter. Therefore, it is difficult to believe that Defendant M’s statement is nothing more

Rather, according to the recording on October 18, 2010, Defendant M, a relatively objective evidence in this case, stated the following: (a) Defendant M, a statement that Defendant M borrowed money from Defendant N on May 28, 2010, should be resolved; (b) Defendant M, a prosecutorial office stated that “I did not prepare money for the due date, so I did not request an alternative to A; and (c) Defendant M did not have any way to pay I money.” (d) Defendant M, a recording on October 11, 2010, stated that “I would like to pay I money if I would like to do so.” (e.g., the money) is not a donation to Defendant N, but a statement that Defendant M borrowed money from Defendant N on the premise that I would not know that I would like to give money, and (e) Defendant M would not know that I would have made the first statement in the process of giving IM’s testimony to Defendant M 10 and that I would like to know that I would not know it.

According to the recording on October 18, 2010, the recording on the conversation between Defendant M and Defendant N, as seen above, Defendant M only speaks on the resolution of the above loan problem, and does not talk about the reasons for not impairing the fire of the forest of this case while receiving the above money, and Defendant N’s dialogue related to personnel affairs after Defendant N’s taking office is formed, and Defendant N is in a situation where it is difficult for Defendant N to give an understanding due to personnel-related solicitation, etc. It is nothing more than that Defendant M made an understanding and disturbing only. Considering that Defendant M donated money equivalent to the above loan with the above loan with the cash payment or political funds, there is little possibility that Defendant M& will demand the return of the above loan, and that it is no longer possible that Defendant M&N will receive the above money from the above Defendant M&N to secure the above money without going against the rule of experience and the point of view that it is impossible to do so with Defendant M&N’s offering of the above loan and the point of view that it is invalid without going against the above general rule of experience.

As above, the above KRW 84 million is deemed to have been a bribe or to have been donated with election funds as the price for the instant forest as stated in the Defendant M’s initial statement. There are many materials opposed thereto, and there is no objective evidence other than the Defendant M’s initial statement. Rather, according to the circumstances seen above, there is only room to deem that Defendant A and N borrowed KRW 84 million through Defendant M to be used as election funds.

E. Therefore, it is difficult to view that Defendant A and N borrowed the above KRW 84 million from Defendant M as free of charge for the purpose of using the said money as election funds, apart from the fact that there is room for constituting an act of receiving political funds prohibited under Article 3 subparag. 2 of the Political Funds Act, by borrowing the money and valuables free of charge as provided by Article 3 subparag. 2 of the Political Funds Act. Moreover, there is insufficient proof to the extent that there is no reasonable doubt as to the facts charged that Defendant A and N received the said money in return for the nonperformance of forest land in this case, or that the said money is merely a nominal loan, and that there is no doubt as to the facts charged that the said money was donated. Moreover, insofar as it is difficult to view that the said KRW 84 million was donated, there is no evidence

Nevertheless, the court below affirmed the judgment of the court of first instance which found Defendant M guilty of all the charges by reliance only on the first statement contrary to objective data, such as recording, among various statements that conflict with the upper and contradictory of Defendant M., it erred in the misapprehension of legal principles as to the evaluation of credibility of the statement by money or valuables providers, etc., or by recognizing facts beyond the bounds of the principle of free evaluation of evidence against logical and empirical rules and beyond the bounds of the principle of free evaluation of evidence. The ground of appeal pointing this out is with merit.

2. As to Defendant A’s violation of the Public Official Election Act and Defendant M’s perjury, the above Defendants filed an appeal against this part of this part. However, the appellate brief does not contain any description of the grounds for objection to this part, and the appellate brief does not contain any specific reasons.

3. Scope of reversal

As seen earlier, there exists a ground for reversal of the whole facts charged against Defendant N, and there exists a ground for reversal of only part of the facts charged against Defendant A, but the remaining facts charged which the court below found as guilty were imposed on the grounds that there exists concurrent crimes under the former part of Article 37 of the Criminal Act, and the part on Defendant A and N among the judgment below regarding Defendant M is bound to be reversed in its entirety. Meanwhile, there is a ground for reversal of only the part on the violation of the Political Funds Act and the part on the third party bribe delivery, as seen earlier. Since the court below rendered a separate sentence on the part on perjury found guilty, only the part on the charge of violating the Political Funds Act and the part on the third party bribe delivery among the

4. Conclusion

Therefore, without examining the remaining grounds of appeal by the Defendants, the part concerning Defendant A and N, and the part concerning Defendant M’s violation of the Political Funds Act, and the third-party brain delivery crime are reversed, and this part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The appeal against the part concerning perjury by Defendant M is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding Justice Yang Chang-soo

Justices Lee Sang-hoon

Justices Kim In-bok, Counsel for the defendant