2013Do5505 A. Violation of the Public Official Election Act

(b) Violation of the Political Funds Act;

(c) Acquisition of third-party brain (the name of the ancillary crime: Violation of the Political Funds Act);

1. (a). (b)

A.

2.(b)

A person shall be appointed.

Defendants

Attorney J orO (for Defendant A)

Law Firm (LLC) CX (For Defendant N)

Attorney DA, DH, CY

Supreme Court Decision 2012Do3969 Decided July 26, 2012

Supreme Court Decision 2012Do12152 Decided December 27, 2012

Gwangju High Court ( Jeonju) Decision 2012No168 Decided September 28, 2012

Gwangju High Court Decision 2013No14 decided April 25, 2013

August 22, 2013

All appeals are dismissed.

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

1. When a judgment on Defendant A’s grounds of appeal on a violation of Article 18(3) of the Public Official Election Act becomes final and conclusive at the same time, a punishment shall be imposed in accordance with the case of punishment stipulated under Article 38 of the Criminal Act. Therefore, in order to exclude the application of Article 38 of the Criminal Act to several crimes indicted as concurrent crimes, and to sentence a sentence different from the above punishment, an exception should be explicitly acknowledged. However, Article 18(3) of the Public Official Election Act provides that “The provisions of Article 18

Article 45 (Offense of Illegal Giving or Receiving of Political Funds) and Article 49 (Punishment concerning Offense related to Election Expenses) of the Political Funds Act provides that the concurrent crimes committed by those who commit the crimes as provided in Article 45 (Offense of Giving or Receiving of Political Funds) and Article 49 (Punishment concerning Offense related to Election Expenses) and other crimes shall be tried and tried separately to sentence them. Article 18 (1) 3 of the Public Official Election Act does not provide that the concurrent crimes among the crimes provided in Article 18 (1) 3 of the Public Official Election Act shall be sentenced to a separate sentence, and no other provision exists, so the punishment shall be sentenced in accordance with the case of punishment provided in Article 38 of the Criminal Act as in other concurrent crimes (see Supreme Court Decision 2009Do832,

In the same purport, the lower court is justifiable to render a single sentence in accordance with the penal provisions under Article 38 of the Criminal Act on the portion (violation of the Political Funds Act) in which Defendant A’s provision of money and valuables related to Defendant A’s election campaign (violation of the Public Official Election Act) and a person in charge of accounting receive political funds without going through the reported deposit account. In so doing, the lower court did not err by misapprehending the

2. In a case where there is no concern that the Defendants’ grounds of appeal on the violation of the principle of no accusation may seriously disadvantage the Defendant’s exercise of the Defendant’s right to defense, it does not violate the principle of no accusation even if the court acknowledged facts different from those of the facts charged without going through changes in indictment.

Examining the record in light of the above legal principles, it cannot be deemed that there was any substantial disadvantage to the Defendants’ exercise of their right to defense in light of the following: (a) the facts constituting a violation of the Political Funds Act against the Defendants and the facts charged as to their portion of the facts charged, which the lower court found the Defendants guilty, are identical in factual relations; and (b) the process of the deliberation up to the lower court, in particular, the Defendants appears to have sufficiently testified on the facts charged above; and (c) the lower court’s measure that found the Defendants guilty of the above facts charged without due process of Amendments to Bill of Indictment did not err

3. As to the remaining grounds of appeal by the Defendants

A. The court below found Defendant N guilty of the violation of the Political Funds Act relating to KRW 10 million among the ancillary charges of this case against the Defendants, on the following premise: (a) based on the following circumstances: (b) Defendant N was aware that Defendant A borrowed KRW 84 million with his own election fund, and the said money was likely to have been used for election funds without going through an official accountant in charge or an election commission’s deposit account reported to the election commission; and (c) Defendant A paid KRW 11 million out of the said money to the election campaign commission; and (d) Defendant A could be deemed to have publicly recruited by proxy as to the act of receiving election expenses without going through an accountant in charge or a reported deposit account; and (e) Defendant N was found guilty of the violation of the Political Funds Act relating to KRW 11 million among the ancillary charges of this case against the Defendants. In light of the relevant legal principles and records, the court below held that the Defendants conspired to receive election expenses in the election campaign after the election campaign was reported.

In light of the legislative purpose of the Stopping and Parking Fund Act, the time when the above 84 million won out of the election expenses was actually paid to Defendant N after the election of the head of the Gun from the local election of this case does not constitute a violation of the Political Funds Act solely on such circumstance. Accordingly, the lower court’s aforementioned determination is justifiable as it is in accordance with the purport of the judgment of remanding. In so doing, contrary to what is alleged in the grounds of appeal, the lower court 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 doctrine on the binding force of the judgment of the court of final appeal.

B. Meanwhile, the court below's finding Defendant A not guilty of the primary charge of violation of the Political Funds Act against Defendant A without having sentenced Defendant A not guilty in the main charge of violation of the Political Funds Act, and found Defendant A guilty of only the ancillary charge in the order is justifiable measures in accordance with the relevant legal principles. In so doing, the court below did not err by

4. Conclusion

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

Justices Ko Young-han

Chief Justice Park Poe-dae

Justices Kim Chang-suk