[1] Whether the provisions of Article 30(1) of the former Political Funds Act violate the constitutional clarity principle or the principle of no punishment without law (negative)

[2] Whether a prosecution against the defendant against a person who committed an act that constitutes the same criminal constituent element as the defendant infringes on the right to equality on the sole ground that the indictment against the defendant was not instituted (negative)

[3] The criteria for determining whether the received money or goods constitute a "political fund" and the scope of money or goods provided or used in connection with competition within the party constitutes a political fund

[4] Whether a defendant, who is in a position to form an individual supporters' association under the provisions of the former Political Fund Act, may assert that the above provisions violate the principle of equality (negative), and whether the above provisions of the Act which allow only a member of the National Assembly to form an individual supporters' association and collect political funds violate the principle of equality (negative)

[5] Criteria for determining whether a crime constitutes a joint commission of crime by conspiracy

[1] Article 2 (1) of the former Political Funds Act (amended by Act No. 7191 of Mar. 12, 2004) clearly states that "the method in which this Act is not applicable" means "all methods other than the specific methods prescribed in each of the individual provisions of the above Act." This is clearly clear considering that the act of receiving and receiving voice political funds, which is prohibited under the above Act, has a characteristic of being unable to be regulated by daily heating individual and specific acts. If the general public has a sound common sense and ordinary legal sentiment, it can be sufficiently recognized the method of receiving and receiving political funds through the individual provisions of the above Act, and furthermore, it cannot be said that the receipt and payment of political funds is punished by means other than those prescribed in the above Act. Thus, it cannot be said that the provisions of Article 30 (1) of the former Political Funds Act, etc. are contrary to the principle of clarity under the Constitution or the principle of no punishment without law.

[2] A prosecutor may decide whether to institute a public prosecution in consideration of the age, character, intelligence, and environment of the suspect, relationship with the victim, motive, means and consequence of the crime, circumstances after the crime, etc. (Article 247(1) of the Criminal Procedure Act). Even if an act falls under the requirements for the constituent of the crime, there may be cases where illegality is excluded or liability is removed depending on the situation at the time of the act. Thus, a person who was prosecuted on the ground that his act constitutes the requirements for constituent of the crime cannot be asserted as having violated the right of equality solely on the ground that there is another person who did not institute a public prosecution, even though he/she performed an act that meets the requirements for constituent elements of the crime like himself/herself.

[3] Whether the received money or goods constitute "political fund" or not depends on whether the money or goods were provided for the "political activity", and in light of the fact that the political activity is an activity of exercising power and power over the acquisition and maintenance of power, it is reasonable to deem that the election of a candidate for a political party to run in the presidential election or the competition within the party elected as a representative of a political party constitutes a political activity in nature. Therefore, the money or goods provided to the candidate for an election campaign for the intraparty competition shall be deemed a political fund, and the external activity expenses used by the candidate after the election as representative of the political party shall also constitute a political fund for the political activity.

[4] The former Political Fund Act (amended by Act No. 7191 of Mar. 12, 2004) permits a member of the National Assembly or a candidate for a member of the National Assembly to organize an individual supporters' association and to raise political funds, while a member of the National Assembly, who is not qualified as a member of the National Assembly, is unable to form an individual supporters' association. Since the defendant is at a position to form an individual supporters' association, it cannot be said that any legal interest is infringed due to the above legal provisions. Thus, the defendant's own assertion that other person who is unable to form an individual supporters' association because he/she is not qualified as a member of the National Assembly is not in violation of the principle of equality as to the above provisions. In addition, since the supporters' association system enhances the awareness of voluntary political participation by all members of the National Assembly, thereby allowing a member of the National Assembly to voluntarily sponsor a political party or a member of the National Assembly, thereby raising trust in politics and raising a non-public political fund, it is in essence necessary to form a legislative or political fund-raising system of the above law.

[5] Joint execution of a crime through the conspiracy is not based on the premise that all accomplices realize the elements of a crime by themselves, but can also cooperate with accomplices who conduct the realization act to strengthen their decision on the act. Whether it falls under this should be determined by comprehensively taking into account the degree of understanding about the result of the act, the size of participation in the act, intent to control the act, etc.

[1] Articles 2(1) and 30(1) of the former Political Funds Act (amended by Act No. 7191 of March 12, 2004) (see current Article 2(1) and Article 45(1) of the Political Funds Act), Article 12(1) of the Constitution of the Republic of Korea / [2] Article 247(1) of the Criminal Procedure Act, Article 11(1) of the Constitution of the Republic of Korea / [3] Article 3 subparag. 2 of the former Political Funds Act (amended by Act No. 7191 of March 12, 2004) (see current Article 3 subparag. 1 of the Political Funds Act), Article 30(1) of the former Political Funds Act (amended by Act No. 7191 of March 12, 2004) / [4] Article 5(1) of the former Political Funds Act (amended by Act No. 7191 of March 12, 2004)

[1] [3] Constitutional Court en banc Order 2004Hun-Ba16, Jun. 24, 2004 (Hun-Ba94, 675) / [2] Supreme Court Decision 90Do646, Jun. 8, 1990 (Gong1990, 1500) Supreme Court Decision 2004Do482, Apr. 27, 2004 (Gong2004Sang, 99Do404, 813) / [3] Supreme Court Decision 99Do404, Mar. 23, 199 (Gong199Sang, 813) / [4] Constitutional Court Order 2000Hun-Ba5, Oct. 25, 2001 (Hun-Ba62, 1035)

Defendant

Defendant

Law Firm Boba, Attorneys Soh Sohn et al.

Seoul High Court Decision 2005No996 decided Feb. 8, 2006

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on the specification of the facts charged

Article 1 of the former Political Fund Act (amended by Act No. 7191 of Mar. 12, 2004; hereinafter "the former Act") provides that "the purpose of this Act is to contribute to the sound development of democratic politics by guaranteeing the proper provision of political funds and disclosing the status of their revenues and expenditures." Article 2 (1) provides that "no person shall contribute or receive any political funds unless otherwise provided for in this Act." Article 30 (1) provides that "a person who gives or receives any political funds in a manner not provided for in this Act." Article 30 (2) through (7) provides that "a person who gives or receives any political funds in a manner not provided for in this Act." Article 12 provides for the definition of the concept of political funds and the methods of receiving or receiving such political funds, and Article 30 (2) and (31) of the former Act provides a detailed accounting report on the methods of contributing or receiving any political funds, and Article 30 (2) and (31) of the former Act provides that any person who violates this Act.

In full view of these provisions, it is apparent that Article 2(1) of the former Act provides that the term “other methods than those specifically provided for in each individual provision of the former Act” refers to all methods other than those specifically provided for in the former Act. This is also clear that the act of receiving and receiving voice political funds, which is prohibited under the former Act, has a characteristic of being unable to regulate by means of heating individual and specific daily acts. In light of the fact that the act of receiving and receiving voice political funds, which is prohibited under the former Act, has a characteristic of being unable to regulate by means of heating each individual and specific act, it can be sufficiently recognized through individual provision of the former Act stipulating the method of receiving and receiving the political funds, and further, it is not clear that the receipt and receiving of the political funds is punished by means other than those provided for in the former Act.

Therefore, it cannot be deemed that Article 30(1) of the former Act violates the principle of clarity under the Constitution or the principle of no punishment without the law, etc. (see, e.g., Constitutional Court en banc Decision 2004Hun-Ba16, Jun. 24, 2004).

In light of the above legal principles and the records, the indictment of this case was based on the premise that "any person shall not receive political funds except as provided by the Political Funds Act," and it can be known that the defendant was receiving political funds at each time and place in the original judgment, so it is sufficient to view that the facts charged are specified. And since the former Act stipulates that a receipt shall be issued for support payments, etc., it is sufficient to view that the facts charged of this case include the fact that a receipt for political funds has not been issued. Therefore, in recognizing each facts charged of this case in the judgment of the court below, it cannot be said that it violates the principle of no objection against the principle of no objection.

The judgment of the court below in the same purport is just, and there is no violation of the principle of no punishment without the law or misunderstanding of legal principles as to the specification or identity of facts charged.

2. As to the ground of appeal on abuse of authority to prosecute

A prosecutor may decide whether to institute a public prosecution in consideration of the age, character, intelligence and environment of the suspect, relationship with the victim, motive, means and consequence of the crime, etc. (Article 247(1) of the Criminal Procedure Act). Even if an act meets the requirements for the constituent of the crime, there may be cases where illegality is excluded or responsibility is removed depending on the situation at the time of the act, even though the act constitutes an act that meets the requirements for the constituent of the crime. Thus, a person who was prosecuted on the ground that the act constitutes an act that constitutes the requirements for the constituent of the crime, even though he/she performed an act that meets the requirements for the constituent of the crime with himself/herself, cannot be asserted that the right of equality is infringed solely on the ground that there is another person for whom the public prosecution was not instituted (see Supreme Court Decisions 90Do646, Jun. 8, 190; 2004Do482, Apr. 27, 2004).

In the instant case, even if the prosecutor brought a public prosecution only against the receipt of illegal political funds by another person who participated in the presidential candidate at the end of the new YY, without taking any question, such circumstance alone does not necessarily mean that the instant public prosecution deviates from the right of prosecution discretion or infringes on the defendant’s right to equality.

In the same purport, the judgment of the court below that held on the premise that the indictment of this case is lawful is just, and there is no error in the misapprehension of legal principles as to abuse of authority.

3. As to the ground of appeal as to the crime No. 1 of the judgment

In light of the records, the court below is justified in finding that the defendant received political funds under the same method and name as stated in the criminal facts in the judgment of the court below, and there is no error of law such as misconception of facts or misapprehension of legal principles due to violation of the rules of evidence, as alleged in the grounds of appeal.

4. As to the ground of appeal on the nature of funds received by the defendant

A. In light of the various provisions of the former Act, particularly Article 3 subparagraph 2 of the former Act provides that "political funds" refers to party membership fees, support payments, deposits, subsidies, fund-raising funds by supporters' associations, incidental revenue prescribed by the party constitution and regulations, etc., and money, securities, or other things provided for political activities." Whether the received money or goods constitute "political funds" or not depends on whether the money or goods were provided for "political activities" (see Supreme Court Decision 99Do404 delivered on March 23, 199, etc.). The political activities constitute the activities of exercising the strike and power surrounding the acquisition and maintenance of power (see, e.g., Constitutional Court en banc Decision 2004Hun-Ba16 delivered on June 24, 2004), it is reasonable to view that the election of a candidate for the presidential election or the election of a political party representative after the election of a political party constitutes a democratic political activity provided to the defendant for the election campaign.

The judgment of the court below on the same purport is just, and there is no error in the misapprehension of legal principles concerning political funds as alleged in the grounds of appeal.

B. The former Act permits a person who registered as a member of the National Assembly or a candidate for a member of the National Assembly (hereinafter referred to as "member of the National Assembly, etc.") to form a personal supporters' association and to collect political funds, while a person who is not qualified as a member of the National Assembly, etc. cannot form a personal supporters' association. Since the Defendant, who was a member of the National Assembly, was at a position to form a personal supporters' association, it cannot be said that any legal interest is infringed due to the above provisions of the former Act, and therefore, it does not mean that another person who is unable to form a personal supporters' association due to the absence of a member of the National Assembly, etc. violates the principle of equality as to the above provisions of the former Act.

In addition, the legislative purpose of the supporters' association system is to increase the awareness of voluntary political participation by having all the members of society sponsor a political party or a politician by raising the trust in politics and further to foster non-official political funds. The issue of whether to establish the individual supporters' association system and the degree or contents of the regulation on it is essentially a matter of legislative policy that belongs to the freedom of legislative formation of legislators (see, e.g., Constitutional Court en banc Order 2000Hun-Ba5, Oct. 25, 2001). It is based on the fact that the former law allows the members of the National Assembly, etc. to form an individual supporters' association only for the members of the National Assembly, etc., and allow them to collect political funds, which is essentially specialized in the performance of their duties, is based on the fact that there is a reasonable reason to treat the members of the National Assembly, etc. as a need for considerable political funds in performing their duties, and thus, it does not violate the principle of equality under the former law.

The judgment of the court below on the same purport is just, and there is no violation of the Constitution such as violation of the principle of equality, or any misapprehension of the legal principles concerning the interpretation and application of Article 30 (1) of the former Act.

5. As to the ground of appeal on the establishment of an accomplice

A public invitation of two or more accomplices who jointly commit a crime does not require any legal penalty, but are sufficient when there is an implied communication on the joint execution of the crime directly or indirectly between the accomplices who intend to jointly commit a crime, and can be recognized by the circumstantial facts and empirical rules without any direct evidence (see, e.g., Supreme Court Decisions 98Do3169, Mar. 9, 199; 2004Do5494, Dec. 24, 2004). Further, a public invitation of two or more accomplices is not premised on the fulfillment of the elements of a crime by themselves, but it is possible to cooperate with all accomplices who realize the crime to strengthen their decision to commit the crime. Whether it falls under this should be determined by comprehensively taking into account the degree of understanding about the result of the act, the size of participation in the act, the intent to control the crime, etc.

Examining the above legal principles and the evidence admitted by the court below in light of the records, it is reasonable to recognize the same facts as the judgment of the court below, and to rate the defendant as a co-principal with respect to the facts constituting the crime set forth in Article 2 of the judgment, and there is no error of law such as incomplete deliberation, misconception of facts due to the violation of the rules of evidence or misapprehension of legal principles

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

Justices Park Si-hwan (Presiding Justice)