[1] The meaning of "political funds" prohibited by the Political Funds Act

[2] In a case where a member of the National Assembly, as the president of the National Assembly, was indicted for violating the Political Funds Act by receiving money from Eul corporation, etc. as an adviser Gap through an assistant Gap, the case affirming the judgment below convicting the defendant on the ground that the defendant and Eul received money with a well-known knowledge of an illegal political fund.

[3] In a case where the issue is whether to accept money or valuables, the elements to acknowledge guilty of the remaining money by the statement where the court rejected the credibility of a considerable portion of the statement made by a person who asserts that he/she provided money several times

[1] Article 45(1) of the Political Funds Act provides that a person who contributes or receives political funds shall be punished by the method not prescribed by the Act. Article 3 Subparag. 1 of the same Act provides that “political funds” shall be construed as “political funds, such as party membership fees, support payments, deposits, subsidies, incidental revenues as determined by the party constitution and party rules, etc., persons who are elected through an election for public office, persons who intend to be candidates for public office, supporters’ associations, executives and employees in charge of clerical services of political parties or other persons who are engaged in political activities, money, securities and other goods provided to them, and expenses incurred in their political activities,” and Article 3 Subparag. 2 of the same Act defines “contributions” as “all acts of offering political funds to individuals, supporters’ associations and other persons for political activities, and gratuitous lending of money and valuables, facilities, exemption or reduction of debts, etc.” Therefore, political funds may be considered as donations to those who provide political activities prohibited by the Political Funds Act.”

[2] In a case where a member of the National Assembly, as the president of the National Assembly, was prosecuted for violating the Political Funds Act by receiving money from Eul corporation, etc. as an adviser Gap through his assistant Gap, the case affirming the judgment below convicting the defendant on the ground that the defendant and Eul corporation continued to receive money with a good knowledge of an illegal political fund.

[3] In a case where the issue is whether to accept money or valuables, or where the credibility of the statement is denied as a result of examining whether a person asserts that he/she provided money several times of the statement, the credibility of the statement that he/she provided money over several times should be deemed to have been considerably weak. Thus, even though there were no objective circumstances that make it difficult to believe that the part concerning the statement that provided money was made over several times of the statement, it is not permissible to recognize the remaining fact of receiving money without permission only on the ground of the statement made by the person who asserts that he/she provided money several times of the statement. In order to recognize the fact of receiving money, unlike the part rejecting credibility, there should be special circumstances to resolve reasonable doubts, such as where the statement is sufficiently presented to the extent that the grounds for credibility can be respected, or where the statement is sufficiently supported by other evidence that can reinforce the statement.

[1] Articles 2(1), 3 subparag. 1 and 2, and 45(1) of the Political Funds Act / [2] Articles 2(1), 3 subparag. 1 and 2, and 45(1) of the Political Funds Act / [3] Articles 2(1), 3 subparag. 1 and 2, and 45(1) of the Political Funds Act; Article 308 of the Criminal Procedure Act

[1] Supreme Court Decision 2008Do10422 Decided February 26, 2009 (Gong2009Sang, 426) Supreme Court Decision 2010Do17886 Decided June 9, 201 (Gong2011Ha, 1424) Supreme Court Decision 2013Do3940 Decided July 12, 2013 (Gong2013Ha, 1555) / [3] Supreme Court Decision 2008Do8137 Decided January 15, 2009 (Gong2009Sang, 183) Supreme Court Decision 2013Do7952 Decided January 23, 2014

Defendant 1 and one other

Defendants and Prosecutor

Law Firm Freedom, et al.

Seoul High Court Decision 2013No402 decided July 25, 2013

The conviction part of the judgment below against Defendant 2 is reversed, and that part of the case is remanded to the Seoul High Court. Defendant 1 and the Prosecutor’s appeal are dismissed.

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

1. As to the Defendants’ grounds of appeal

A. As to the part that the Defendants conspired to give and receive KRW 300 million from Nonindicted 1, thereby violating the Political Funds Act

(1) The co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, such as the implementation of a crime through functional control based on the intent of co-processing and the intent of co-processing. As such, even if a person who did not directly share and implement the elements of a crime among the competitors, he/she may be held liable for the so-called crime as a co-principal depending on whether the above requirements are met. However, for this purpose, taking into account the status and role of him/her in the entire crime, control and power over the progress of the crime, etc., it should be considered that the person has a functional control over the crime by essential contribution, not just as a mere conspiracy, but rather as a functional control over the crime (see, e.g., Supreme Court Decisions 2009Do2994, Jun. 23, 2009; 2011Do626, Jan. 27, 2012).

On the other hand, in a case where the issue is whether to accept money or valuables, in order to be convicted solely by a statement made by a person who provided money or valuables in a case where there is no objective evidence, such as financial data to support the receipt of money or valuables, the admissibility of evidence is required, and there is a credibility to exclude a reasonable doubt. In determining whether there is credibility, it is also necessary to also examine whether there is a relationship between the person's own rationality, objective reasonableness, consistency before and after the statement, as well as his human being, and in particular, if there is a suspicion of a crime committed against him, and there is a possibility that an investigation may be initiated against him/her, or if there is a possibility that his/her suspicion of the crime may be initiated or an investigation is being conducted, even if the admissibility of the statement does not reach the extent that the evidence of the person's statement is denied (see, e.g., Supreme Court Decisions 201Do1487, Apr. 28, 2011; 201Do1681, Dec. 16, 2010

In addition, since the statement of a money or valuables donor or a defendant contains the truth, and some of the statements are false, exaggerated, distorted, or erroneous, a fact-finding judge in charge of a criminal trial shall find out the truth-finding excluding false, exaggerated, distortion, or mistake among the statements that are mutually contradictory and contradictory between the money or valuables donor and the defendant, and shall endeavor to grasp the substance of the case by combining the truth. If the credibility of some of the statements made by the money or valuables donor is recognized without such efforts, and if the statements that correspond to the facts charged are mutually reliable and the defendant's assertion that are inconsistent with this is entirely rejected, it is difficult to accept that the defendant's argument that denies the facts charged is entirely reliable because there is some credibility in the statement made by the defendant, and that the conclusion therefrom is based on a sound argument (see, e.g., Supreme Court Decisions 2010Do14487, Jan. 23, 2014; 2013Do7952, Jul. 25, 2014).

In addition, in a criminal trial, criminal facts should be acknowledged based on strict evidence with probative value, which leads a judge to have no reasonable doubt. Thus, in a case where the prosecutor’s proof does not sufficiently reach the extent of causing such conviction, it should be determined in the interests of the defendant even if the suspicion of guilt is doubtful, such as the defendant’s assertion or defense is contradictory or uncomfortable (see Supreme Court Decisions 2001Do2823, Aug. 21, 2001; 2005Do8675, Mar. 9, 2006, etc.).

(2) The summary of this part of the facts charged is as follows: Defendant 1 received a proposal to provide money and goods for political funds from Nonindicted 1 through Defendant 2, who was the cause of the same party’s affiliation around October 2007, and consented thereto; Defendant 1 received the statement that the Defendants had prepared for cash KRW 300 million from Nonindicted 1 at the National Assembly Secretariat at around October 2007 at the National Assembly Secretariat of the National Assembly (hereinafter “Secretariat”) and Defendant 1 received money from Defendant 2, who was present in company, and Defendant 2 received cash KRW 300 million from Nonindicted 1 at the National Assembly’s parking lot immediately thereafter.

In light of the facts and circumstances stated in its holding, the lower court determined that the credibility of the statement made at the first instance court, the first instance court, and the lower court’s court and the investigative agency, which is a money provider, has rationality and objective reasonableness, most of the contents, consistent and concrete, and consistent with the objective data, such as the statement or telephone details of the persons concerned, can be sufficiently recognized. (2) According to this, it is sufficiently recognized that Defendant 1 received a proposal from Defendant 2 to offer political funds from Defendant 1 and received KRW 300 million, and received money from Defendant 1 to Defendant 30 million, and (3) Defendant 2 attempted to provide money and valuables to Defendant 1 to assist the Nonindicted 2 candidate, and that Defendant 1 and the Vice-Speaker received the above Defendant 1’s express communication or delivery of money from Defendant 1 and Nonindicted 140 million won to Defendant 130 million won on the grounds that Defendant 1 received the above Defendant 1’s express communication with Defendant 1 and Nonindicted 1’s own secret.

(3) Examining the reasoning of the judgment below in light of the aforementioned legal principles and the evidence duly admitted, it is inappropriate to view that the court below found Defendant 1 guilty and included Defendant 2’s conspiracy in the facts constituting the crime. However, even if the above Defendant’s conspiracy part is excluded, the court below’s conclusion that recognized Defendant 1’s crime of receiving political funds provided by Nonindicted 1 through Nonindicted 4 is acceptable. Thus, the court below’s judgment that found Defendant 1 guilty cannot be said to have erred by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or failing to exhaust all necessary deliberations, or by misapprehending the legal principles on the evaluation of credibility of statements made by the lender and the collection of additional charges, as alleged in the grounds of appeal.

(4) However, it is difficult to accept the part of the judgment of the court below that recognized Defendant 2 as a joint principal offender’s liability for the following reasons.

(A) The lower court determined that: (a) the following statements, consistent with the facts charged against Defendant 2, among Nonindicted 1’s statements, (i) expressed his intention to monetary support for Nonindicted 2, i.e., to Defendant 2; (b) expressed his intention to provide KRW 300 million to Defendant 1 at the Vice-Speaker’s office around October 2007, Defendant 2, along with Defendant 1, expressed his intention to provide money to Defendant 1 to assist in the election; (c) Defendant 1 received the above money from Defendant 2 at the National Assembly parking lot to Nonindicted 3; and (d) rejected Nonindicted 1’s statement to the effect that “Nonindicted 4, a letter of execution cost of Defendant 2, 300 million won, was raised to Nonindicted 1’s Vice-Speaker, and that the statement partially reversed or added at the court of first instance or the court of the lower judgment, was difficult to recognize that Defendant 1 provided money to Defendant 1 in the process of offering the money to Defendant 2, and that it was difficult to recognize the credibility of Nonindicted 1’s/or 1’s testimony.

There is no objective evidence to acknowledge that Defendant 2 was directly involved in an illegal political fund contribution. However, in this case, the above Defendant consistently arranged from the investigative agency to the original trial, and did not participate in the act of Nonindicted Party 1’s offering money, and denies the crime, the statement made by Nonindicted Party 1 is the most direct evidence corresponding to the facts charged against Defendant 2 and the only evidence in fact.

(B) First of all, the part of the statement made by Nonindicted 1 that Defendant 1 left Defendant 2 at the Vice-Speaker’s office after meeting, or that Defendant 2 was also Defendant 2 at the site of delivering the boxes containing KRW 300 million (A4 size duplicate boxes) to Nonindicted 4, among the statements made by Nonindicted 1, is not consistent as follows, and it is difficult to recognize the reasonableness of the contents of the statement itself, and there are circumstances where it is difficult to recognize its credibility because it is contradictory or inconsistent with other evidence.

1) On June 12, 2012, Non-Indicted 1 stated that “At the first investigation (2012 type No. 59693), as Defendant 2, Non-Indicted 1, 2012, she moved 3 boxes of cash 300 million won on the front side of the above Defendant’s vehicle parked along with Non-Indicted 1, who is the secretary of the above Defendant’s office, and moved her inside the said Defendant’s vehicle.” After that, on the 4th examination process (2012 type No. 79519) of Defendant 2, Non-Indicted 1, 2012, Non-Indicted 1 stated that “at the time of delivery of money from the office of office, Non-Indicted 2, 2012 type No. 1, Non-Indicted 1, 2012 type No. 3000 on the front side of the said Defendant’s vehicle, Non-Indicted 1, 2016>

However, while Nonindicted Party 1, in the initial prosecutor’s statement, took the vice-chairperson as above, he did not make any specific statement about the criminal conduct of the above Defendant from the time of delivering money to Nonindicted Party 4, and even before he she hedging. In addition, it is difficult to accept the fact that Nonindicted Party 1, who was for the purpose of delivering money through Defendant 2, was unable to memory whether the said Defendant was accompanied to the place of delivery of money. Moreover, Nonindicted Party 1, in the first instance trial, made a statement that Nonindicted Party 1 was on the top of the above Defendant 4, who was in custody with Nonindicted Party 4, was on board the said Defendant’s seat. Moreover, it is difficult to further understand that Nonindicted Party 1 was on board the said Defendant’s seat, and Nonindicted Party 5, who driven Nonindicted Party 1’s vehicle at the time, made a statement to the effect that there was no other person other than the presumed Nonindicted Party 4 from the prosecutor’s office and the court, and even if Nonindicted Party 1 was on the day of Nonindicted Party 1’s visit or his secretary.

Ultimately, insofar as there is no memory as above, and there is no evidence from Nonindicted 1 left the Vice-Speaker, and there is no evidence to know about Defendant 2’s criminal conduct, Defendant 2 is reasonable to argue that there is no accompanying fact after Nonindicted 1 left the Vice-Speaker’s office.

2) Nonindicted 4, who stated from Nonindicted 1 to Nonindicted 8, Nonindicted 3’s execution cost of Nonindicted 3, stated that Nonindicted 4 consistently entered the first prosecutor’s investigation to the trial court to the trial court, and that the said Defendant entered the Vice-Speaker’s office on the day of Defendant 2, and that he first and first asked Nonindicted 4 to cut down Nonindicted 1, and left the Vice-Speaker’s office. Although Nonindicted 4 was working as the secretary of Defendant 2, the said Nonindicted 4 did not dismiss the said statement solely on the ground that it is against Nonindicted 1’s statement in that it is a relatively objective witness in that it is a relatively objective witness that was specifically and clearly revealed by the investigation agency.

3) In addition, the court below determined that the aforementioned reversal of Non-Indicted 1’s statement was derived from the unwritten appraisal against Defendant 2, but it is difficult to view that Non-Indicted 1’s statement that he had already changed the previous statement in the prosecutor’s investigation to the purport favorable to the above defendant, but, as seen in the follow-up, Defendant 1 had to receive money from Non-Indicted 1 from Non-Indicted 1, among Defendant 1 and Defendant 1 together with Non-Indicted 1, maintained the first instance court. Furthermore, it is difficult to view that the statement that Non-Indicted 1 provided the above defendant with a separate amount of KRW 140 million for three times until the court below maintained its principal part until the court below ruled that the first statement was reversed from the motive as pointed out by the court below.

4) According to the reasoning of the lower judgment and the record, Defendant 1 was working as the president of the National Assembly as a five-line member of the National Assembly, and not only was working as the president of the National Assembly, but also was the pro-friendly type of the presidential candidate, whose election had been held in full after getting on the presidential election, and Nonindicted 3, who was in charge of the head of the tax support group, was the head of the tax support group, was the above Defendant, as the highest person in the election campaign organization or the △△△△△△ branch, in making a substantial decision on the election, in which the overall election was in charge of overall election, and Defendant 2 stated that he was in a position to plan and strategy the entire election, as compared to Defendant 2. In light of Defendant 1’s status and role within the election campaign organization, the difference between Defendant 1 and the political career, and his personal relationship with Defendant 1 and the presidential candidate, it is difficult to view that he was in receipt of Nonindicted 1’s request and did not have the authority to directly receive the money and valuables from Defendant 1.

5) According to the above circumstances, it is difficult to view that Defendant 2 was a vice-chairperson or was at the site of receiving money with Nonindicted Party 1, and rather, there is sufficient probability that Defendant 2 was a vice-chairperson’s room in the Do between Nonindicted Party 1 and Defendant 1 and Defendant 1.

(C) Next, among Non-Indicted 1’s statements, the part that Defendant 1 received the money from Non-Indicted 1 to Defendant 2 and gave it to Non-Indicted 3 is also difficult to accept as it is, and the following circumstances are revealed.

1) From the first investigation to the first trial court, Nonindicted Party 1 consistently stated that Defendant 1 had the vice-chairperson from the office of the prosecutor’s office to the first trial court, and Defendant 2 had Defendant 1 talked about Defendant 1 to Defendant 3, and that Defendant 1 expressed that Defendant 1 expressed to Defendant 2 “is given to Defendant 3” in the court of the lower trial, but the previous statement was reversed to the effect that Defendant 2 did not memory as to whether Defendant 2 was accompanied at the time.

2) According to Non-Indicted 1’s statement, only two times prior to the introduction of Defendant 1 to Defendant 2, and Defendant 1 and the Vice-Speaker were first visited on the day he visited Defendant 1. Defendant 1, who was in the position to substantially supervise the presidential election and election campaign organization, stated that Defendant 1 received illegal political funds from a money provider at first time and made it specific to the money provider and the delivery place, is not easy in itself, but it is not easy to understand that it does not mean that the intention is not resolved even if considering the circumstances as stated in the judgment of the court below, and thus, it is highly questionable whether the aforementioned statement by Non-Indicted 1 is reasonable or objective.

3) As to this, the lower court determined that Nonindicted 1’s credibility of Nonindicted 1’s statement was high on the ground of the circumstances that Nonindicted 1 stated that Nonindicted 3 could not have known that the money it provided was against Nonindicted 3, if he did not hear the said remarks on the spot, and that Nonindicted 1’s statement was made before hearing Nonindicted 4’s remarks that Nonindicted 1 sent money to Nonindicted 3 during the investigation process.

However, even if Nonindicted 1 voluntarily made the above statements at the investigative agency before Nonindicted 4’s statement, as seen in the following, Nonindicted 4 testified that he was requested by the staff of the Vice-Speaker’s office waiting in the office of Vice-Speaker at the time, and by delivering Nonindicted 1’s goods to Nonindicted 3, as well as Nonindicted 1’s Vice-Speaker’s statement that Nonindicted 1 and Nonindicted 1 made a statement that “I would have been able to get the said members of Nonindicted 3 who would be subject to the proposal to be made.” In the first instance trial, Nonindicted 1 also stated that Nonindicted 1 had the words that Nonindicted 4 delivered money from Nonindicted 4, etc. to Nonindicted 3, but it is not accurate memory that Nonindicted 4 and it is thought that the vice-Speaker were able to have come together with Nonindicted 4, but that Nonindicted 4 and Nonindicted 4 were given testimony in the court of the lower trial, and that Nonindicted 1 and Nonindicted 1 were given testimony to the effect that he would have come to know at the National Assembly’s own parking lot.

In light of the circumstances that there is no record of Nonindicted 1’s entry into the National Assembly at the time Nonindicted 1 and Nonindicted 4’s respective statements and vice-chairpersons, the fact that Nonindicted 1 received Nonindicted 4’s guidance at the time of entering the Vice-Speaker’s office or leaving the Vice-Speaker’s office is deemed to be sufficiently recognized. In addition, according to the records, Nonindicted 1 could actually know the fact that Non-Indicted 1 had conversationsd with Non-Indicted 4 several times from around the end of 2011 to April 2012, and accordingly, Non-Indicted 1 explained that Non-Indicted 4 sought to assist in the advertising business in the first prosecutor’s investigation on June 11, 2012, which also supported Non-Indicted 1’s statement at the lower court.

Therefore, it is difficult to deny the probability that Nonindicted 1 was in contact with Nonindicted 1’s Vice-Speaker and Nonindicted 4, or in currency with Nonindicted 4, and thus, it would be difficult to deny the probability of having been in contact with Nonindicted 1. Thus, it is difficult to view that the credibility of the statement made by Nonindicted 1 as to the part of Defendant 1’s statement that Defendant 1 stated that the delivery of money to Nonindicted 3 was carried out by the investigative agency prior to Nonindicted 4’s statement, solely on the circumstances required by the lower court, including that Nonindicted 1 could have made a statement to the effect that he was Nonindicted 3.

4) In addition to the above circumstances, if it is deemed that Nonindicted 4 received a request from Nonindicted 7, who is the secretary of Defendant 1, to deliver money to Nonindicted 3, as seen earlier, Defendant 1 said Nonindicted 4 would have violated the rule of experience to again give the same order to Defendant 2. Considering that Nonindicted 1’s delivery of money to Defendant 2 would be contrary to the rule of experience, it appears that Nonindicted 1 would be more likely that the content pertaining to Nonindicted 3 would have been made from Nonindicted 1, not Defendant 1, but Nonindicted 4. Thus, the possibility that this part of the statement made by Nonindicted 1 would be a distorted memory or a mistake may not be ruled out. Ultimately, it is difficult to view that Nonindicted 1’s statement that Defendant 2 received such an order from Defendant 1, had credibility to the extent that it would be excluded from a reasonable doubt.

(D) On the other hand, Nonindicted 4’s statement that Nonindicted 1 received the money from Nonindicted 7, a secretary of Defendant 1, and delivered Nonindicted 3’s performance expenses to Nonindicted 3 is difficult to dismiss the credibility in light of the following circumstances.

1) Unless Nonindicted 4 made a statement to the effect that he is an employee of the Vice-Speaker or Defendant 2, with respect to a person who was asked to deliver the boxes received from Nonindicted 1 to Nonindicted 3 on July 17, 2012 from each prosecutor’s office, Nonindicted 4, except for the first investigation on July 5, 2012 and the third investigation on July 8, 2012, after Nonindicted 2 and Nonindicted 1 entered the Vice-Speaker’s office, and Nonindicted 4 first asked Nonindicted 2 to make a statement to the effect that “Nonindicted 1 was sent to Nonindicted 1 upon Nonindicted 1’s request from the Vice-Speaker, Nonindicted 1, who was waiting for Nonindicted 4 to have Nonindicted 1’s testimony by Nonindicted 7, who was asked to have Nonindicted 1, an assistant to Nonindicted 1, who was given testimony at the prosecutor’s office and the first trial on July 1, 2012.” On the other hand, Nonindicted 1 and Nonindicted 1, who had given his testimony to Nonindicted 4.

2) As to this, in the first instance court, Nonindicted 1 stated in the court of first instance that “At the time of the visit room, Defendant 1 sent her b and bring out of the house room, and Defendant 1 instructed Defendant 1 to the affiliated staff staff.” Furthermore, in the lower court court’s judgment, Nonindicted 1 stated that “at the time of Defendant 1’s instruction, employees of the affiliated staff who were instructed by Defendant 1 were female employees, was fluent at the middle height of the 30th latter half, and that there was a fact that the female employee was talking Nonindicted 4.”

3) The above statement made by Nonindicted 1 is consistent with the statement made by Nonindicted 4, Nonindicted 7, Defendant 1’s secretary, and in particular, according to the reasoning of the lower judgment, Nonindicted 1 stated that the start-up of the female employee’s appearance on the part of Nonindicted 7, which Nonindicted 1 stated was fit for Nonindicted 7. However, in this case, there is no evidence to deem that Nonindicted 1, who was detained at the time of the above statement, was aware of the advance about Nonindicted 7’s appearance or the specific statement made by Nonindicted 4, and there is no other evidence to deem that Nonindicted 1, who was in custody at the time of the above statement, was aware of the advance about Nonindicted 7’s appearance or the specific statement made by Nonindicted 4, Nonindicted 1’s Vice-Chairperson at the time of Nonindicted 1’s visit the Vice-Chairperson’s entrance, taking into account all the circumstances that Nonindicted 1 had three employees including Nonindicted 7, etc., the above statement made by Nonindicted 1’

In addition to the above statements made by Nonindicted 1, Nonindicted 7, unlike those who were female employees, was the secretary of the office of Vice-Speaker and the actual person in charge of the office of Vice-Speakers. Nonindicted 4 was well-known with all employees of the office of Vice-Speakers. Defendant 2 and Nonindicted 6’s statement to the effect that access to the office of Vice-Speakers was frequent with Defendant 2, and Defendant 1 from 1991 to February 201, Defendant 7 were the persons who gather the above defendant for the long time among the employees of the office of Vice-Speakers, and Nonindicted 7’s statement to the effect that he was in charge of accounting affairs, and Nonindicted 6’s structure of the office of Vice-Speakers submitted at the time of investigation by the prosecution, was located between the office of Vice-Speakers and the office of Vice-Speakers at the office of Vice-Speakers, and Nonindicted 4 appears to have been sufficiently aware of the fact that the Defendants were in charge of election campaign affairs within the office of Non-Indicted 4 and the defendant 2’s office.

4) If Nonindicted 7 directly requested Nonindicted 4 to deliver illegal funds, such circumstance is not involved in the receipt of money, but only the introduction of Nonindicted 1 to Nonindicted 2 is supported by Defendant 2’s objection suit, and if the circumstances are the same, it is not resolved that Defendant 1, who was willing to receive political funds from Nonindicted 1, instructed Nonindicted 7, who was his secretary, to deliver political funds, and Nonindicted 7 did not know of the fact that Nonindicted 7 performed the said instruction through Nonindicted 4.

(E) In addition, Non-Indicted 1 stated to the effect that he had prepared KRW 300 million for Defendant 2 who was met in the Vice-Speaker’s office from the prosecution to the court of first instance. However, the court below reversed the statement to the effect that the defendant’s statement in the investigative agency or the court of first instance is accurately and indirectly, and that the statement in the investigative agency or the court of first instance is stated in the presumption of various circumstances, and that it may not deliver money to Defendant 1 because he did not express the specific amount of money or delivery method in advance. The above defendant's intent of economic support was expressed, but it was once prepared for money in the idea that he would return if he was refused, and the possibility of delivering prepared money was considered to be counter-convened.

Even according to the statement made by Nonindicted Party 1 itself, the issue of whether it is possible to deliver KRW 300 million to Defendant 1 was against Defendant 1’s will. Thus, it is doubtful whether Defendant 2 could be determined that Nonindicted Party 1 and Defendant 1 knew that he would deliver a large amount of political funds within the National Assembly in an abnormal manner on the day on which Nonindicted Party 1 and Defendant 1 met, depending on his own initiative. As seen earlier, as long as it is difficult to recognize credibility in various parts of the statement made by Nonindicted Party 1 on the criminal administration of Defendant 2 among the statements made by Nonindicted Party 1, as seen earlier, the part of the statement that Nonindicted Party 1 called Nonindicted Party 1’s Vice-Speaker that he prepared for KRW 300 million in the office of Vice-Speaker would also be difficult to avoid the possibility of false, abstract or inaccurate memory.

(F) Ultimately, in relation to Defendant 2, part of the statement made by Nonindicted 1, who corresponds to this part of the facts charged, cannot be recognized as credibility, and even if Defendant 2 attempted to provide the election fund to Defendant 1 and gave convenience thereto, it is reasonable to deem that Defendant 2 was an essential contribution to the receipt of illegal political funds from Nonindicted 1 under the contact with Defendant 1, on the sole basis of the fact that Defendant 2 was involved in the process of delivery without clearly knowing that Nonindicted 1 and Defendant 1’s secretary was abnormal money, or that Defendant 2’s secretary upon Defendant 1’s request by Defendant 1 was involved in the process of delivery.

(5) Nevertheless, without examining and excluding the possibility different from the above questions, the lower court determined that Defendant 2 is liable for the joint principal offense of violating the Political Funds Act with respect to Defendant 2 by selectively believing only some of the statements that correspond to the facts charged, among Non-Indicted 1’s various conflicting statements, which are contrary to this part of the facts charged. In so doing, the lower court erred by misapprehending the legal doctrine on the credibility evaluation of the statements made by the money donor, etc., the requirements for joint principal offense, and the degree of proof necessary for the recognition of facts charged, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds

B. As to the part regarding Defendant 1’s violation of the Political Funds Act by receiving money on the pretext of advisory activity expenses from Nonindicted Co. 10, etc.

(1) Article 45(1) of the Political Funds Act provides that a person 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, such as party membership fees, support payments, deposits, subsidies, incidental revenues as determined 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, supporters’ associations, executives and employees in charge of clerical services of political parties or other persons who are engaged in political activities, money, securities and other goods provided to persons who are engaged in political activities, and expenses incurred in providing political activities.” Article 3 Subparag. 2 of the same Act defines “contributions” as “all acts of providing political funds to individuals, supporters’ associations and other persons for political activities, and gratuitous lending of money and valuables, facilities, exemption or reduction of debts, and other benefits, etc.” Therefore, political funds can be deemed as donations to those who are provided for political activities prohibited by the Political Funds Act.”

(2) In full view of the circumstances as indicated in its reasoning, the lower court found Defendant 1 guilty of this part of the facts charged against Defendant 1, on the ground that Defendant 1 received illegal political funds under the pretext of the advisory activity from July 2007 to December 201 through Nonindicted 11, 201, and Defendant 1 and Nonindicted 10 were continuously aware of the aforementioned circumstances and continued to receive the said money.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court 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 political funds, contrary to what is alleged in the grounds of appeal.

C. As to the part that Defendant 2 violated the Political Funds Act by receiving KRW 100 million from Nonindicted 1 and KRW 10 million from Nonindicted 1

(1) In a case where the issue is whether to accept money or valuables, where the credibility of the statement of a person who asserts to have provided money over several occasions is denied as a result of the examination in accordance with the criteria set forth in the above legal principles, where the credibility of the statement was revealed in the objective circumstances, etc. that make it difficult to believe that a considerable part of the statements is in fact, the credibility of the statement that provided money over several times shall be deemed to have been considerably weak. Thus, even though there were no objective circumstances, etc. that make it impossible to believe the remaining part of the statement, it shall not be permitted to recognize the fact of receiving money without permission on the ground of only the statement of a person who asserts to have provided money over several times. If it is possible to acknowledge the fact of receiving money, unlike the statement rejecting credibility, there is a reasonable doubt, such as where the statement is sufficiently presented to the extent that it can be reliable, or where it is sufficiently supported by other evidence that can be reinforced, etc. (see, e.g., Supreme Court Decision 2008Do371589, Jul. 27, 19, 20198.

(2) In full view of the circumstances stated in its reasoning, the lower court affirmed the first instance judgment convicting Defendant 2 of this part of the charges, citing that Nonindicted Party 1 received illegal political funds of KRW 100 million from Nonindicted Party 1 to April 1, 2008 in the vicinity of the office of a district party, and KRW 10 million from the same district party office around April 3, 2012.

(3) However, we cannot agree with the above determination by the court below for the following reasons.

(A) The only evidence directly consistent with this part of the facts charged is Nonindicted Party 1’s statement.

However, the lower court rejected the first instance judgment convicting Defendant 2 of this part of the charges, including this part of the charges, on the ground that with respect to the portion of the charges that Defendant 2 received KRW 30 million from Nonindicted 1 on or around September 12, 2007, which was directly provided with illegal political funds of KRW 140,000,000, including the charges, on three occasions, on the grounds that it cannot be readily concluded that the time of delivery conforms to the date indicated in the facts charged, the lower court revoked the first instance judgment convicting him of this part and acquitted him, and that there was no error of law in the lower judgment as seen later.

Therefore, as long as credibility of Non-Indicted 1’s statement on some facts among the contributions made by Non-Indicted 1 is not recognized, and it is also rejected as to the part of Non-Indicted 1’s statement that Defendant 2 participated in the receipt of KRW 300 million above, the credibility of Non-Indicted 1’s statement on the remainder of the money and valuables should be deemed as considerably weak. In light of the aforementioned legal principles, unlike the above part of the non-Indicted 1’s statement, in order to recognize credibility of Non-Indicted 1’s statement, unlike the above part of the non-Indicted 1’s statement, the mere statement on the facts charged in this part of this case is sufficiently presented to the extent that the grounds for credibility can be proven, or sufficiently supported by other evidence that can reinforce the statement, there is a need to examine whether there is any circumstance to resolve a reasonable doubt about whether

(B) First of all, in the case of the part related to the receipt of KRW 100 million among the facts charged, the circumstances revealed by the record, including the duly admitted evidence, cannot be seen as having any special circumstance to resolve reasonable doubts with respect to Nonindicted 1’s statement. Rather, there are circumstances in which it is difficult to recognize reasonableness and objective reasonableness, which are inconsistent with the statements of the relevant persons or are difficult.

1) In relation to this part of the facts charged, Nonindicted Party 1 stated that “At the front of the 2008 presidential line and the office of Defendant 2’s district party, I brought the Defendant “at the time of election,” and that Nonindicted Party 4 was “I would bring Nonindicted Party 1 to the Defendant,” and that Nonindicted Party 4 was “I would bring Nonindicted Party 1 to the Defendant.” In addition, Nonindicted Party 4, along with Nonindicted Party 4, instructed Nonindicted Party 12, who was an engineer, to leave the district party’s office and drive the vehicle, followed Nonindicted Party 4 using a knife car similar to that driven by Nonindicted Party 4. Nonindicted Party 4 stopped on the alley behind the district party’s office. Nonindicted Party 1 stated that Nonindicted Party 4’s vehicle immediately side or several meters in front of the vehicle that was stopped from the marc road near the district party’s office, and brought the boxes of KRW 100 million from the marc line to Nonindicted Party 4.”

2) However, at the time, Nonindicted 12, who driven Nonindicted 1’s vehicle at the prosecution and the first instance court around 2008, went to the office of the district party, along with Nonindicted 1 at the prosecution and the first instance court. Nonindicted 12, upon Nonindicted 1’s instruction, made a statement corresponding to Nonindicted 1’s statement on the ground that: (a) Nonindicted 1’s vehicle was stopped from the vehicle in front of the vehicle in front of the vehicle in front of the vehicle in front of the vehicle in front of the vehicle in front of the vehicle in front of the vehicle in front of the vehicle in front of the vehicle in question; and (b) Nonindicted 12, upon Nonindicted 1’s instruction, consistently stated that the vehicle in front of the vehicle in front of the vehicle in front of the vehicle in front of the vehicle in front of the vehicle in front of the vehicle in front of the vehicle in front of the vehicle in front of the vehicle in front of the vehicle in front of the vehicle in front of the vehicle in question; (c) Nonindicted 1 was placed on the side of the vehicle in front of the vehicle in front.

3) While evaluating the Nonindicted 12’s statement as the most important evidence to reinforce the credibility of Nonindicted 1’s statement in this part of the facts charged, the lower court determined that the part of Nonindicted 1’s statement that differs from that of Nonindicted 1’s statement is sufficiently recognized in view of the passage of time and the impresiveness of memory as a natural result.

원심판단과 같이 비록 공소외 12의 진술 일부가 이 부분 공소사실 중 특유한 부분인 ‘피고인 2의 지구당 사무실에서 카니발 차량을 따라 으슥한 골목으로 가서 공소외 1이 카니발 차량을 타고 온 사람과 만났다’는 공소외 1의 진술 부분과 부합하기는 하나, 정작 공소사실의 핵심이라 할 수 있는 금품수수와 관련하여 공소외 1이 돈이 든 상자를 들고 내리거나 이를 공소외 4의 차량에 싣는 것을 본 적이 없다는 공소외 12의 진술은 공소외 1의 진술과 정면으로 배치되고 있다. 만약 공소외 1의 진술과 같이 공소외 4의 차량 바로 옆이나 앞 불과 수 미터 떨어진 곳에 정차한 차량의 트렁크에서 상자를 꺼내 공소외 4에게 건네주었다면 이를 차량 안에 있던 공소외 12가 보지 못할 수 있을지 강한 의심이 든다.

In addition, Nonindicted 12, who is a driver, appears not to show the experience following the driver's vehicle from the night in accordance with Nonindicted 1's order. In fact, Nonindicted 12, from the first prosecutor's investigation to the prosecutor's office before and after the end of 2008, stated that there was only one time in the vicinity of Defendant 2's office, which was written in accordance with Nonindicted 1's order from the second prosecutor's office since the end of 2008, and the prosecutor's office continued to reduce the number of times after the end of 2008, there is a high possibility that his memory may be relatively clear. Even when considering the night, there is a considerable difference in the color of the vehicle that actually observed Defendant 2's vehicle and Nonindicted 12. Furthermore, Nonindicted 12, as an open situation, stated that there was an individual size of money packages in cash within the vehicle at the time, and thus, it is questionable that the upper part of Nonindicted 12's statement and the inside and outside part of Nonindicted 2's statement can be easily stated.

4) Nonindicted 4, who was designated as the other party by Nonindicted 1 to whom KRW 100 million was transmitted from Nonindicted 1, stated that he was hospitalized in the election office of Defendant 2 from March 7, 2008 to March 25, 2008, due to the storm immediately before the first instance court in April 2008, and that he was hospitalized in the election office of Defendant 2 even after discharge, and that he was asked Nonindicted 13, who was aware of his failure to drive, to act as a performance cost on behalf of him.

The certificate and the diagnosis attached to the record on the non-indicted 4 stated that the non-indicted 4 was hospitalized for the above period, and the above statement of the non-indicted 4 is consistent with objective data, and the non-indicted 4's testimony also supported the non-indicted 13's testimony of the non-indicted 4 by the non-indicted 4, stating that the non-indicted 4 was hospitalized for the above period, from February 2008 to April 208 upon the request of the non-indicted 4, that the non-indicted 4 was the driver and the execution fee of the defendant 2 until the election is completed.

If the statements of Nonindicted 4 and Nonindicted 13 are true, it would be difficult to believe that Nonindicted 1’s statement is not reliable, and in particular, as part of the time when Nonindicted 1 offered money and valuables overlaps with the hospitalization period of Nonindicted 4, it would be necessary to sufficiently present the grounds for trusting Nonindicted 1’s statement. At the end of April 2008, it seems difficult to reject each of the above statements only by Nonindicted 14, that there was Nonindicted 4’s principal entry in the district party office of Defendant 2 at the end of April 2008, and there is no other obvious evidence to exclude this. Accordingly, it is difficult to view that Nonindicted 1’s statement is reinforced to the extent that it resolves a reasonable doubt with Nonindicted 12’s statement.

In addition, as Nonindicted Party 1’s branch, Nonindicted Party 1, who confirmed that Nonindicted Party 1 had met before the investigation of Nonindicted Party 1 on the beginning, or that Nonindicted Party 15 told Nonindicted Party 1 that he aided Defendant 2 at the time of election from the court of first instance, and from Nonindicted Party 1, it is insufficient to use the said statement as evidence to reinforce Nonindicted Party 1’s statement because it is merely an abstract and vague content of the statement made by a person other than the Defendant.

5) In addition to the above circumstances, even if based on the facts acknowledged by the court below, Defendant 2 had been aware of the fact that Nonindicted Party 1 had already received the shopping bags for futures trading in the amount of KRW 20 million from Nonindicted Party 1 around January 2008, which was 20 million, from the time when Nonindicted Party 1 had already delivered KRW 100 million, and around January 2008, Defendant 2 had a concern about the surveillance and check of himself and returned it through Nonindicted Party 14. Thus, considering the fact that it is difficult to obtain a large amount of money after the Defendant’s surveillance and check of himself, it is also difficult to grant credibility in Nonindicted Party 1’s statement.

(C) Next, we examine the part concerning the receipt of KRW 10 million among the facts charged in this part.

First of all, the lower court is difficult to view that there is a rationality or physical integrity beyond the level that can be formed if Defendant 2 had access to the office of the district party to which Nonindicted Party 1 delivered money, namely, the place and situation where Nonindicted Party 1 delivered money, the conversation between the Defendant and the Defendant, and the method of delivering money. In addition, the lower court’s lawful disposal of the money that Defendant 2 received from Nonindicted Party 1, who was the chairman of the National Assembly △△△△ Special Committee on the Bank of Korea, in April 2012, when the amount of money was received in KRW 10 million due to the extreme public interest in connection with the savings bank situation, could have an adverse impact on the Defendant’s image, and it is difficult to view that the credibility of Nonindicted Party 1’s statement is not doubtful in view of the circumstances such as the one’s annual maximum amount of donation, etc., and that there was no possibility that the said money was returned to Nonindicted Party 1, even if the said amount was given to Nonindicted Party 1, the first instance bank.

In addition, Non-Indicted 1’s statement that became known to Non-Indicted 1, who her phone around the 2012 presidential election, and confirmed that Defendant 2 was in a district party’s office and confirmed that he was well aware of the above Defendant, and the currency records corresponding thereto, and weather search data consistent with the weather conditions as at the time Non-Indicted 1 stated, merely suggest that Non-Indicted 1 visited the above Defendant’s office on the date of his assertion, and cannot be directly proven that he received money and valuables. Non-Indicted 16’s statement that she sent several million won on an envelope cannot be deemed as a direct evidence to prove the receipt of money and valuables by the above Defendant, because it is difficult to recognize the independent probative value of evidence. Unlike otherwise, there is no special circumstance that only this part of Non-Indicted 1’s statement among Non-Indicted 1’s statements whose overall credibility had already been considerably weak, could be resolved to the extent that it could be trusted.

(4) Ultimately, insofar as it is difficult to believe that Nonindicted 1’s statement consistent with the facts charged that the above Defendant received KRW 100 million from Nonindicted 1 and KRW 10 million, it is difficult to view that this part of the facts charged was sufficiently proven to the extent that there is no reasonable doubt.

Nevertheless, the lower court, on the sole basis of the circumstances indicated in its reasoning, concluded that the said Defendant received money and valuables from Nonindicted 1. In so doing, the lower court erred by misapprehending the legal doctrine on the evaluation of credibility of a statement made by a person who provided money and valuables, thereby affecting the conclusion of the judgment. Defendant 2’s ground of appeal

2. As to the Prosecutor’s Grounds of Appeal

A. As to the part that Defendant 1 violated the Political Funds Act and the Act on the Aggravated Punishment, etc. of Specific Crimes by receiving KRW 300 million from Nonindicted 17 to Nonindicted 17

Of the facts charged in the instant case, the lower court found Defendant 1 not guilty of this part of the facts charged on the grounds that, in light of the circumstances as indicated in its reasoning, Defendant 1’s statement to the effect that “as of December 2007, in the 18th presidential election day, Defendant 1 did not look at Defendant 1 or the above Defendant 300 million won in cash,” Defendant 1’s statement to the effect that “as of December 2007, Defendant 1 gave and receives KRW 300 million from Nonindicted 17 to Nonindicted 17, 2007, the chairman of the △△△△△△△ Bank, which was the 18th presidential election day, Defendant 1 and Defendant 300 million won in cash, was not recognized, and the other evidence submitted by the Prosecutor alone is insufficient to acknowledge

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, even if the circumstances cited in the ground of appeal concerning the credibility of the statement by Nonindicted 17, which correspond to this part of the facts charged, are considered, it is difficult to view that the judge is highly confiscing conviction as to the probability of guilt to the extent that it cannot make a reasonable doubt, and therefore, the judgment below does not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules

B. As to the part that Defendant 2 violated the Political Funds Act by receiving KRW 30 million from Nonindicted 1

Since the date and place of a crime specified in the facts charged are mainly subject to the Defendant’s right to defend, the facts charged should be recognized through strict certification, and it should not be recognized that there is proof of the facts charged on the ground that there is a possibility that the crime was committed at another time and place despite such lack of proof (see Supreme Court Decisions 2010Do1487, May 13, 201; 2010Do1628, May 13, 201, etc.).

Of the facts charged in the instant case, the lower court determined that this part of the facts charged is not guilty on the grounds that it is difficult to readily conclude that Defendant 2 received KRW 30 million from Nonindicted 1 on September 12, 2007, on the sole basis of the evidence submitted by the prosecutor, in light of the following circumstances as stated in its reasoning, as to the violation of the Political Funds Act and the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (reconciliation) by receiving KRW 30 million from a limited restaurant around September 12, 2007.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court did not err in its judgment 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 judgment

C. As to the part that Defendant 2 violated the Act on the Aggravated Punishment, etc. of Specific Crimes by receiving KRW 10 million from Defendant 2

In full view of the circumstances stated in its reasoning, the lower court affirmed the first instance judgment that acquitted Defendant 1 on this part of the facts charged on the ground that: (a) Non-Indicted 1’s payment of KRW 10 million to Defendant 2 as election funds was expected to be able to receive direct and indirect assistance from the above Defendant in operating the ○○ Savings Bank; and (b) it cannot be deemed as money and valuables provided for mediating matters belonging to the public official’s duties.

As seen earlier, as long as it is difficult to view that Nonindicted 1’s provision of the above KRW 10 million to Defendant 2 was proven beyond a reasonable doubt, the crime of taking good offices based on such premise may not be established.

Therefore, the reasoning of the judgment of the court below that judged on the premise that Defendant 2 received KRW 10 million is inappropriate, but the conclusion of the court below that acquitted this part of the facts charged is justifiable. Therefore, it 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 on the establishment of the crime

3. Conclusion

Therefore, the part of the judgment of the court below against Defendant 2 is reversed, and that part of the case is remanded to the court below for a new trial and determination. Defendant 1 and the prosecutor’s appeal are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)