[1] Whether Article 45(1) and Article 3 subparag. 1 of the Political Funds Act violate the principle of clarity of the principle of no punishment without law (negative)

[2] Whether Article 45(1) of the Political Funds Act goes against the principle of excessive prohibition (negative)

[3] Whether Article 45(1) and Article 3 subparag. 1 of the Political Funds Act are contrary to the principle of equality (negative)

[4] The meaning of the political fund prohibited by the Political Fund Act / Whether the political fund actually used for political activities after the crime of receiving or receiving the political fund was completed (negative)

[5] The meaning of "mediation" under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes, and the standard for determining whether there is a quid pro quo relationship between mediation and acceptance of money

[1] Article 12(1) of the Constitution, Articles 3 subparag. 1 and 45(1) of the Political Funds Act / [2] Articles 15 and 37(2) of the Constitution, Article 45(1) of the Political Funds Act / [3] Article 11 of the Constitution, Articles 3 subparag. 1 and 45(1) of the Political Funds Act / [4] Articles 3 subparag. 1 and 2, and 45(1) of the Political Funds Act / [5] Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes

[1] Supreme Court Decision 2006Do1623 Decided December 22, 2006 (Gong2007Sang, 255) en banc Decision 2004HunBa16 Decided June 24, 2004 (HunGong94, 675)/ [4] Supreme Court Decision 2010Do17886 Decided June 9, 201 (Gong2011Ha, 1424), Supreme Court Decision 2013Do3940 Decided July 12, 2013 (Gong2013Ha, 1555)/ [5] Supreme Court Decision 2008Do10496 Decided February 26, 2009

Defendant

Defendant

Law Firm Roon et al.

Seoul High Court Decision 2012No611 decided September 20, 2012

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the unconstitutionality of Article 45(1) of the Political Funds Act

A. Violation of the principle of clarity of the principle of no punishment without law

Article 45(1) of the Political Funds Act provides that "a person who contributes or receives political funds (referring to a person who commits the relevant violation as a member of a political party, a supporters' association, a corporation or any other organization; hereinafter the same shall apply) by means not prescribed in this Act shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 10 million won." Article 3 Subparag. 1 of the same Act provides that "political funds" means party members fees, support payments, deposits, subsidies, incidental revenues prescribed by the party constitution and regulations, etc. of a political party, persons who are elected through an election for public office (including a Preparatory Committee for Central Party Formation), persons who intend to become a candidate for a public official election or candidate, supporters' association, executive staff members of a political party or staff members in charge of clerical services of a political party or other persons who engage in

In light of the language and text of Articles 45(1) and 3 subparag. 1 of the Political Funds Act and the structure of the relevant provisions, political activities are activities of exercising power and power (see, e.g., Supreme Court Decision 2006Do1623, Dec. 22, 2006). Article 3 subparag. 1 of the Political Funds Act, where political funds prohibited by the Political Funds Act are excluded from the examples of political funds, their substantial meaning is “the money, securities, or other goods offered to a person who engages in a political activity for a political activity and the expenses required for that person’s political activities.” As such, there is no doubt about what is subject to the Political Funds Act’s regulation. In light of the above, inasmuch as Article 45(1) and Article 3 subparag. 1 of the Political Funds Act, it cannot be said that the concept of “political funds” and “the expenses required for a supplementary interpretation of a judge’s Constitution is inconsistent with the principle of no punishment without the law even if it is necessary.”

B. Whether the principle of excessive prohibition is violated

Article 45(1) of the Political Funds Act recognizes the legitimacy of its purpose to contribute to the sound development of democratic politics by guaranteeing the proper provision of political funds, ensuring the transparency of the revenue and expenditure details thereof, and preventing any malpractice related to political funds. In order to prevent the illegal receipt of and payment of political funds, the measures imposing a penal provision on such provision are appropriate and effective means or methods to achieve the above legislative purpose, and its propriety or reasonableness is recognized. The above provision does not prohibit and punish the act of receiving and receiving all money and valuables provided for political activities, which are provided for political activities, and which are clearly anticipated to be disbursed as expenses for political activities, not to prohibit and punish the act of receiving and receiving money and valuables, which are provided for political activities, which are clearly anticipated to be disbursed for political activities, thereby infringing on the freedom of choosing occupation of persons engaging in political activities. In light of the legislative purpose and purport of the Political Funds Act, the value of securing transparency, etc. of political funds protected under the above provision has an important meaning in the public interest of sound development of democratic politics. On the other hand, restriction on fundamental rights thereby cannot be deemed to violate the principle of excessive prohibition.

C. Whether the principle of equality is violated

In light of the fact that Article 45(1) of the Political Funds Act provides that the purpose of legislation of the Political Funds Act is to secure the transparency of political funds by punishing the number of voice political funds, and that it is difficult to deem that there is an essential difference between a member of the National Assembly elected by an election for public office and a candidate for an election for public office, a person who wishes to become a candidate for an election for public office, or other persons who engage in political activities, etc., Article 45(1) and Article 3 subparag. 1 of the Political Funds Act cannot be deemed to contravene the principle of equality

D. Therefore, the argument that Article 45(1) of the Political Funds Act is contrary to the Constitution is groundless.

2. As to the violation of the Political Funds Act with respect to Nonindicted Co. 1

A. Article 45(1) of the Political Funds Act provides that anyone who contributes or receives political funds shall be punished by means not stipulated in the Act. Article 3 Subparag. 1 of the same Act provides that “political funds” shall be construed as “political funds for party membership fees, support payments, deposits, subsidies, revenues incidental thereto as provided by the party constitution or party rules, etc., persons who are elected through an election for public office, persons who intend to be candidates for public office or candidates, supporters’ associations, executives and employees of political parties or salaried clerical staff and other persons who are engaged in political activities, and expenses incurred in their political activities.” Article 3 Subparag. 2 of the same Act defines “contributions” as “all acts of providing political funds to individuals, supporters’ associations or persons who are engaged in political activities, or persons who are provided with political activities, such as free loans of money and other facilities, exemption or reduction of debts, etc.” Therefore, whether a person who actually receives political funds from a person who is prohibited by the Political Funds Act is not determined by the Supreme Court Decision 1081Do1606, supra.

B. In full view of the circumstances and the circumstances in its holding, including the first instance court’s ruling, the lower court found the Defendant guilty of this part of the modified charges and additionally collected KRW 115,369,950, as a penalty surcharge, on the following grounds: (a) the Defendant’s participation in the events in the position of the chairperson of the Korea-Japan Party Member Council in the Incheon Gyeyang constituency Gap (hereinafter “Nonindicted Company 1”) for the purpose of local management in the position of the chairman of the party members council; and (b) the Defendant’s continuous receipt of money from Nonindicted Company 1 constitutes political activities as provided by the Political Funds Act; and (c) it is reasonable to deem that the payment form of the money was used for the Defendant’s political activities; and (d) how the Defendant used the said money does not affect the establishment of the offense of receiving political funds

Examining the reasoning of the judgment below in light of the aforementioned legal principles and the evidence duly admitted by the court below, the above fact-finding and judgment of the court below are just and acceptable. In so doing, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles

C. In addition, the argument of misapprehension of legal principles as to the statute of limitations in the grounds of appeal is not a legitimate ground of appeal, since the defendant's ground of appeal is the ground of appeal, or the court below's decision was not subject to ex officio

Furthermore, even after examining the record, it is reasonable to view that the Defendant received political funds from Nonindicted Company 1 under the same name. As such, each act of receiving political funds in the judgment of the Defendant constitutes a case where each act of receiving political funds repeatedly commits the same kind of crime under the single and continuous criminal intent for a certain period and the legal benefits from such damage are the same, and thus, each act constitutes a single comprehensive crime. The statute of limitations for a single comprehensive crime begins from the time when the final criminal act was completed (see, e.g., Supreme Court Decision 2002Do2939, Oct. 11, 2002). Therefore, the lower court did not err by misapprehending the legal doctrine as to the

3. As to the violation of the Political Funds Act against leap women

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court was justifiable to have found the Defendant guilty of this part of the facts charged on the grounds stated in its reasoning, and there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules,

4. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

A. Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes is a crime established by receiving money or other valuables under the pretext of arranging matters belonging to the duties of a public official. As a general sense, the term “mediation” means the act of helping a party to deliver a certain matter belonging to the duties of a public official to the public official, to ensure convenience, or to make a decision in the direction that the party wants by exercising his/her influence upon the public official’s request or by exercising influence upon the public official’s request concerning a certain matter. In addition, the duties of a public official are included in cases of legitimate duties, and there is no need to specify the other party or the content of such duties, and if a public official received money or other valuables under the pretext of such good offices, regardless of which good offices actually act, the above crime is established.

In addition, whether there exists a quid pro quo relationship between a broker and a beneficiary of a public official’s duties shall be determined by comprehensively taking into account all the circumstances, such as the contents of the relevant good offices, whether there is a friendship relationship between the broker and a beneficiary, how much benefits are received, and how and when benefits are received. Furthermore, in cases where the nature of the quid pro quo as a consideration for the good offices and other acts are indivisible with the money received by the broker, it is reasonable to deem that the entire quid pro quo has the nature of the quid pro quo as consideration for the good offices, if the nature of the quid pro quo for the good offices and other acts are indivisible (see, e.g., Supreme Court Decision 2013Do6

B. In full view of the various circumstances as indicated in its reasoning, the lower court determined that the Defendant received cash of KRW 20 million with respect to the referral of matters pertaining to the duties of a member of the National Assembly who is a public official, and upheld the first instance judgment convicting this part of the facts charged.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted by the first instance court, the lower court’s aforementioned fact-finding and determination are justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the credibility of witness statements

5. Conclusion

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

Justices Park Poe-young (Presiding Justice)