Whether a political party as the other party to a contribution act falls under the “institution or organization having relations with a specific elector” under Article 113(1) of the Public Official Election Act (affirmative)

Articles 112 and 113 of the Public Official Election Act

Defendant 1 and one other

Defendants

Law Firm Hank et al.

Seoul High Court Decision 2006No2049 Delivered on December 22, 2006

All appeals are dismissed.

We examine the grounds of appeal.

1. As to the violation of the Political Funds Act

The court below determined as follows: Defendant 2 contributed KRW 400 million to Defendant 2 as political funds under the pretext of paying special party membership fees for the “(name of the political party omitted)” in relation to Defendant 2’s recommendation of the candidate for the Kim Jong-ran market, on the grounds that Defendant 2 was the progress of the official examination for which the candidate for the “(name of the political party omitted) party” was not finally determined at the time of paying the instant special party membership fees; the process of paying the instant special party membership fees; the method of delivering the funds provided as the special party membership fees; and Defendant 2 requested Defendant 1 to assist in good faith when paying the special party membership fees; and Defendant 1 was aware of such circumstances.

In light of the records, the judgment of the court below is just and acceptable, and it cannot be said that there is any illegality that misleads the facts against the rules of evidence.

2. As to the violation of the Public Official Election Act

A. Article 113(1) of the Public Official Election Act prohibits a candidate (including a person intending to become a candidate; hereinafter the same shall apply) and his/her spouse, regardless of whether he/she is related to the election in question, by stipulating that all contributions cannot be made, regardless of whether they are prohibited. Article 112(1) of the same Act comprehensively provides for the types of contributions subject to this punishment, and where the act of offering money and valuables falling under Article 112(1) through (2) does not constitute a contribution act under Article 112(2) and its decision based on Article 112(2) and Article 112(1)1 of the same Act and Article 257(1)1 of the same Act, insofar as the act of offering money and valuables, etc. falling under Article 112(1) of the same Act does not constitute an ordinary act or ordinary political party activity, and thus, it does not constitute a sort of act that is likely to violate social order or its determination of illegality under Article 250(1)105) of the same Act.

In addition, where a member of a political party pays party membership fees or other charges to the party under Article 112 (2) 1 (b) of the Public Official Election Act that is not considered as a contribution act under Article 112 (2) 1 (b) of the same Act, if a member of a political party falls under “the act of paying party membership fees or other charges by the party under the party constitution, party regulations and other internal regulations of the political party, it shall be subject to the party constitution, party regulations and other internal regulations (see Supreme Court Decision 2007Do218, Apr. 26, 2007).

Examining the records in light of the above legal principles, the (name of a political party) provision of the party membership fee at the time of the instant case provides that the special party membership fee shall be paid to the central party; the deposit of the party membership fee shall be made only by automatic account transfer, mobile phone or wire telephone settlement and other settlement methods determined by the central committee; Defendant 2 delivered KRW 400 million to Defendant 1, who is the Secretary General of the (name of a political party omitted) in cash instead of the above provision of the party membership fee; and Defendant 2 paid the special party membership fee. Thus, Defendant 2’s act of providing such special party membership fee does not constitute “the act of paying the party membership fee or other charges to a political party member pursuant to the party constitution or regulations or other internal regulations of a political party” under Article 112(2)1(b) of the Public Official Election Act, and therefore, it constitutes a crime composition requirement under Article 257(1)1 of the Public Official Election Act, and such act does not violate the ordinary social order within the scope of social order.

Therefore, the lower court’s conclusion that the act of paying the instant special party membership fee does not fall under Article 112(2)1(b) of the Public Official Election Act and found the Defendant guilty of violating the Public Official Election Act is justifiable. In so doing, the lower court did not err by misapprehending the legal doctrine on the act related to the ordinary political party activities that are not considered as a contribution act under the

B. According to Article 113(1) of the Public Official Election Act, the lower court rejected the Defendants’ assertion that the provision of money and valuables to a political party can only be excluded from the scope of contributions under Article 112(2)1(b) of the Public Official Election Act, since the other party to a contribution act provides that an institution, organization, or facility outside the relevant constituency, or an institution, organization, or facility with the electorate, and the “person, institution, organization, or facility with the electorate concerned” has a certain relation with the electorate in question and may affect the electorate’s decision-making. However, a political party has unique existence of an effect on the elector’s decision-making in an election, and has a unique organization for each constituency, and is actually engaged in such an act. Article 112(2)1(b) of the Public Official Election Act provides that “The party to the contribution act is excluded from the scope of contributions under the party constitution, regulations, or other internal regulations of a political party, and that the provision of money and valuables to a political party differs from the provision of contribution act under the Political Funds Act.

In light of the organization and activities of the “party (party name omitted)” as shown in the record, the above judgment of the court below is just and acceptable, and there is no error of law by misapprehending the legal principles as to the other party to the contribution act.

3. Conclusion

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

Justices Ahn Dai-hee (Presiding Justice)