2013Do4075 (a) Occupational embezzlement

(b) Violation of the Public Official Election Act;

1. (a) A;

2. B. C.

Defendants

Attorney J, L (for Defendant A)

Law Firm EK

Attorney EL (for Defendant C)

Attorney EM (for Defendant C)

Seoul High Court Decision 2013No249 Decided March 22, 2013

January 16, 2014

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. As to the violation of the Public Official Election Act due to the Defendants’ purchase and inducement for understanding

A. The crime of violation of Article 230(1)4 and Article 135(3) of the Public Official Election Act is subject to the punishment of offering money, valuables, or other benefits in connection with the election campaign or expressing an intention to offer them or promising to provide them. The subject of the punishment is not limited to offering money or goods during the election campaign period as provided by the Public Official Election Act. "in relation to the election campaign" as provided by Article 135(3) of the Public Official Election Act, "in relation to the election campaign", "in the election campaign, the motive of the election campaign is for the election campaign." Even if there was no purpose of affecting the election purpose or election, the act itself is set in the need to regulate acts that are highly likely to infringe on the freedom and fairness of the election. Thus, the provision of money or goods does not necessarily need to be the consideration for the election campaign, and it includes the election campaign related to the election campaign, such as the cost of providing information related to the election campaign, cost of election campaign-related persons, expenses of election campaign.

In addition, the term "provision" does not necessarily mean the reversion of money, goods, etc. to the other party, and even if the other party in receipt of such money, goods, etc. is the so-called middle-called person who is not the party to whom such money, goods, etc. belong, it shall be included in the "providing money, etc." under the above provision, as long as there is room for judgment and discretion as to the object or method of distribution, the amount of allocation, etc. to the other party, as long as it is not a simple custodian or a person who acts in the name of the other party to whom such money, goods, etc. belong to the other party, and as long as there is room for judgment and discretion as to the object or method of distribution, the amount of allocation, etc. to the other party, even if not designated (see Supreme Court Decision 2006Do986, May 1

B. According to the reasoning of the lower judgment, the lower court: (a) granted money and valuables to Defendant A or the Defendants from around December 13, 201, on the following grounds: (b) from around December 13, 2011, Defendant A had been registered as a preliminary candidate for the election of the 19th National Assembly member of the Republic of Korea; (c) performed activities as the core staff, such as executing election funds, recruiting election workers, determining the terms and conditions of employment, and paying remuneration; (d) the Defendants prepared an election fund by borrowing real property owned by the Defendants as collateral, and remitted KRW 63 million to T’s personal account several times; (e) Defendant A used alternative passbook deposit method to prevent actual remitter from appearing in the remittance process; (e) Defendant A used the above loan to use it for the election fund; (e) Defendant A’s use to use part of it; (e) Defendant A’s request Defendant A’s election campaign to use it after the completion of the election; and (e) Defendant A’s 200 Da 20130.

4. In full view of the facts as follows: (a) the election campaign workers and volunteers remitted KRW 1,6150,00 to the election campaign workers from 13. to 14.1 of the same month; (b) the election campaign workers registered have already been paid lawful election campaign allowances; (c) the Defendants did not provide T with funds necessary for election campaign; (d) T’s account transfering KRW 33 million to the Defendants was opened on December 16, 2011 near Defendant A’s preliminary candidate registration date; and (e) the above account was established on April 10, 2012 near Defendant A’s preliminary candidate registration date; and (e) there were several details of transactions related to the election, on the other hand, not only T’s personal details, but also the Defendants stated that T’s money was carried out without reporting to Defendant A separately from the court of original judgment; and (e) the Defendants provided money to Defendant A or T to the extent that it had considerable influence on the motive or amount of money to be distributed to Defendants 1 and 3.

C. Examining the above legal principles and records, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, there is no error of law by misapprehending the legal principles as to the purchase, inducement by interest, or specific facts charged under the

D. Meanwhile, the lower court rejected the Defendant C’s assertion that the amounting to KRW 33 million was the loan, on March 19, 2012 and April 12, 2012, on the grounds indicated in its reasoning.

In light of the records, the above judgment of the court below is just, and there is no error of law such as misconception of facts or omission of judgment due to the violation of the rules of evidence.

E. In addition, Defendant A alleged in the grounds of appeal that, although Defendant A paid wages in arrears on December 20, 201, Defendant A paid wages in arrears, Defendant A provided such wages in compensation for election campaign, Defendant A alleged that there was an error of mistake of facts or omission of judgment due to a violation of the rules of evidence, but the court below did not explicitly state that Defendant A paid the above amount due to delayed payment due to the grounds of appeal, although the court below did not make a decision on the above, Defendant A could be deemed to have paid the above amount due to an election campaign, as seen earlier, as seen in the above, the court below's determination that Defendant A paid the above amount due to delayed payment. Therefore, this part of the grounds of appeal cannot be accepted.

2. As to the violation of the Public Official Election Act due to Defendant A’s contribution act and instruction for contribution act

According to the reasoning of the judgment below, the court below found Defendant A not guilty on the grounds that Defendant A did not obtain the constituent status of Defendant A, among the facts charged of violation of the Public Official Election Act by giving instructions for contribution and giving instructions for contribution to Defendant A on June 1, 2011, and found Defendant A not guilty on the grounds that the other party to the contribution was either the electorate or a person who has a relationship with the electorate, and found Defendant not guilty on the grounds that the other party to the contribution was not the electorate or a person who has a relationship with the electorate. The court below found Defendant guilty on all the remaining parts of the charges of violation of the Public Official Election Act by each contribution act and violation of the Public Official Election Act (excluding the part not guilty) by each instruction for contribution act, respectively.

In light of the relevant legal principles and records, the above judgment of the court below is just, and contrary to what is alleged in the grounds of appeal, there is no violation of the rules of evidence or the principle of no appeal, or any violation of the rules of evidence or the principle of no appeal, or any violation of the legal principles as to the act of contribution or the instruction of contribution under the

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 Yang Chang-soo

[Attachment-dae]

Justices Ko Young-han

Justices Kim Chang-suk