Defendant

Defendant and Prosecutor

1 other than the Prosecutor

Attorney Senior Gyeong-soo

Seoul Central District Court Decision 2004Gohap257 Delivered on May 12, 2004

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not more than ten months.

68 days of detention before pronouncement of the judgment below shall be included in the above sentence.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

290,000,000 won shall be additionally collected from the defendant.

1. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of facts as to the violation of Political Fund Act No. 1 of the decision of the court below

Although the Defendant did not receive political funds of KRW 200 million from Nonindicted 6’s representative director of Nonindicted 6 Co. 7 on September 2002 and October 2002, the lower court convicted him of this part of the charges by reliance on Nonindicted 7, 8, and 9’s statement without credibility. The lower court erred by misapprehending the value judgment of evidence and thereby adversely affecting the conclusion of the judgment (it is true that the Defendant received KRW 200 million from Nonindicted 7 twice on or around January 2, 2001, and there is sufficient evidence to support the Defendant’s assertion, and thus, the judgment of acquittal on this part of the charges shall be rendered after the statute of limitations has expired).

(2) misunderstanding of facts against the Act on Regulation and Punishment of Criminal Proceeds Concealment

The Defendant, around December 2002, received the money as activity expenses from the Secretary General of the Party 1 (name omitted) from Non-Indicted 2 as well as KRW 50 million at the time of receiving the said money, although he was unaware of the fact that it was an illegal political fund, the lower court acknowledged that the Defendant was to have received KRW 120 million for 10 million, which is a political fund that was received by Non-Indicted 1 (name omitted) in a manner not prescribed by the Political Fund Act, on three occasions, even though he was unaware of the fact that it was a political fund that was received by Non-Indicted 1 (name omitted). In so doing, the lower court erred by misapprehending the fact

(3) misunderstanding of facts or misunderstanding of legal principles concerning unfair sentencing and collection

(A) In consideration of various circumstances, such as the practice of receiving political funds at the time of the instant crime, the fact that the Defendant was dedicated to the State as a member of the National Assembly, the fact that the Defendant was dedicated to the State in depth, and the fact that the Defendant was dissiped from the due diligence, etc., the punishment (one year of imprisonment and two years of suspended execution) sentenced by the

(B) Even though the Defendant used the political funds or presidential election funds received from Nonindicted 10 and Nonindicted 2 as the food expenses, district party operation expenses, or the funds for presidential election activities with other National Assembly members depending on the intent of the person who provided them, the lower court determined that the Defendant used them for personal purposes, thereby having determined that it was used for such personal purposes, and thus, sentenced the Defendant to a collection of the total amount of KRW 360 million which the lower court found guilty, but it erred by misapprehending the legal doctrine on the mistake

(b) Prosecutors;

(1) misunderstanding of facts against the Act on Regulation and Punishment of Criminal Proceeds Concealment

In full view of the evidence submitted by the prosecutor, in particular, Nonindicted 2 and Nonindicted 4’s respective statements and the circumstances at the time of delivery supporting the credibility of their statements, and the legal principles on the degree of specification of criminal facts in the blanket crime, the court below found the whole facts charged that “the defendant was delivered KRW 150 million from Nonindicted 2 on four occasions with the knowledge of the fact that the defendant was knowingly delivered KRW 150 million from Nonindicted 1 (name omitted).” However, the court below found the defendant guilty of only KRW 120 million over three occasions, and found the remainder of KRW 30 million as not having any supporting evidence. The court below erred by misapprehending the facts against the rules of evidence, thereby adversely affecting the conclusion of the judgment.

(2) Unreasonable sentencing

Considering the various circumstances of this case and the fact that there is a need to strictly punish the Defendant for receiving illegal political funds, such as that the Defendant demanded a company in the workshop to receive large amounts of money, and that the money received as a political fund will be used for an individual purpose, the sentence of the lower court against the Defendant is too uneasible and unreasonable.

2. Determination

A. Judgment as to the violation of the Political Fund Act in Article 1 of the judgment below

In light of this part of the facts charged, the defendant, who was in the name of the non-indicted 3 (name omitted), was promised to provide KRW 200 million by requesting the representative director of the non-indicted 6 corporation on September 202. However, the defendant, who was not the non-indicted 1's assistance from the non-indicted 1's non-indicted 2's non-indicted 3's non-indicted 1's non-indicted 2's statement, was not the defendant's non-indicted 1's non-indicted 2's non-indicted 1's non-indicted 2's non-indicted 3's non-indicted 2's non-indicted 1's non-indicted 2's non-indicted 3's non-indicted 1's non-indicted 2's non-indicted 1's statement and the defendant's non-indicted 1's non-indicted 2's non-indicted 3's non-indicted 2's non-indicted 1's statement, and the defendant's non-indicted 1's statement is not the defendant's new.

Ultimately, the judgment of the court below that found the defendant guilty of this part of the facts charged and the selection of evidence that was conducted in the process thereof is acceptable, and there is no error of law that affected the conclusion of the judgment by misunderstanding the facts against the rules of evidence and misunderstanding the facts.

B. Judgment on violation of the Act on the Regulation and Punishment of Criminal Proceeds Concealment (the grounds for appeal by the defendant and the prosecutor)

(1) Summary of this part of the facts charged

The Defendant, at the beginning of December 2002, received from the Secretary General of Non-Indicted 1 (name omitted) the sum of KRW 150 million in total, while he received KRW 30 million from the seat of the Secretary General of Non-Indicted 1 (name omitted) the political funds, which are political funds received by Non-Indicted 1 (name omitted) in a manner that is not prescribed by the Political Fund Act, on or before December 19, 2002, at the seat of Non-Indicted 1 (name omitted), on three occasions from the seat of the Secretary General of the Headquarters of Non-Indicted 1 (name omitted) to the seat of Non-Indicted 1 (name omitted), before the presidential election is held on or before December 19, 2002.

(2) The judgment of the court below

According to evidence, even if the defendant was admitted to Nonindicted Party 1 (name omitted), he stated to the effect that he received KRW 50 million from Nonindicted Party 2, and Nonindicted Party 4, who was the director general of the finance bureau for Nonindicted Party 1 (name omitted), paid approximately KRW 40 million to newly admitted members, KRW 30 million, and KRW 30 million for each additional person, and the defendant received KRW 30 million to the office of the director general of the finance bureau and received KRW 40 million from Nonindicted Party 3,00,000 through KRW 40,000,000 to KRW 30,000 to KRW 40,000,00 from Nonindicted Party 13, and in light of the fact that he received KRW 30,000 through KRW 40,00 from Nonindicted Party 2, who was aware of the fact that he received KRW 40,000 from Nonindicted Party 4 and KRW 2,000,000,000 from Nonindicted Party 4.

However, with respect to the fact that the Defendant received more than KRW 120 million than KRW 120 million, Nonindicted 4 did not specifically state how to deliver the money to anyone, at any time, where, and how to deliver it, and the place, etc. However, although the amount paid to the recruited members was 150 million won, there was no statement about when and how to check the money, and there was no evidence to acknowledge this portion of the facts charged, and there was no evidence to prove otherwise. In addition, Nonindicted 2’s statement merely purports to the purport that if the Defendant did not know about the amount paid to each of the invited members, and that Nonindicted 4 paid money to the Defendant, the summary of Nonindicted 2’s statement is nothing more than that of the amount paid to each of the invited members, and that Nonindicted 4 paid money to the Defendant, it would correspond to the fact that the statement alone is insufficient to acknowledge this part of the facts charged and there is no evidence to prove this otherwise.

(3) Judgment of this court on the amount received

First of all, according to the statement of Nonindicted 4 and Nonindicted 14, who was the Director General of the Finance Bureau for Nonindicted 1 (name omitted), acquitted the Defendant on the part of KRW 30 million which the lower court rendered, Nonindicted 4, who was the Director General of the Finance Bureau for Nonindicted 1 (name omitted), testified in the lower court, again under investigation by the prosecution, stated that “this part of KRW 30 million was offered at first 50 million to the Prosecutor, and it was confirmed by the Secretary General that the sum of the amount paid to the Defendant is KRW 150 million.” Nonindicted 14, who was the assistant officer of the Director General for the first time, still relied on the fact that the prosecutor submitted the evidence that there was no consistency in the amount of money to be provided to the Defendant.” However, Nonindicted 4, who again appeared as a witness, still presented the evidence that was insufficient to confirm whether the amount of money was KRW 200,000,000,000,000,000,000 won.

Next, according to each statement of the defendant among KRW 120 million which the court below found guilty, the fact that the defendant is the Secretary-General of the Party 1 (name omitted) rather than a restaurant in 63 buildings as stated in the indictment is not a restaurant in the 63th written indictment, but the fact that the place of receipt is the Director-General of the Party 1 (name omitted) is not a restaurant in the 63th building as stated in the indictment shall be the same as the judgment of the court below) shall be examined as to the remainder of KRW 70 million, and Nonindicted 4 shall make a concrete statement about the situation in which he paid money to the defendant when he paid money to him in this court, and in particular, it seems that Nonindicted 4 or Nonindicted 2 had no reason to make a false statement unfavorable to the defendant, as decided by the court below.

However, the finding of guilt in a criminal trial should be based on evidence with probative value sufficient to have a reasonable doubt. Thus, even if there is no such evidence, it is inevitable to determine the defendant's interest. The following circumstances acknowledged in this case, i.e., to receive activity expenses directly from the director of the fiscal branch of the political party, as the chairperson of the National Assembly Industrial Resources Committee at the time, and the admission of Nonindicted 3 (name omitted) and Nonindicted 1 (name omitted) to the effect that the defendant directly delivered KRW 40,000 to the defendant, on account of the fact that the defendant's statement was not consistent with the above 400,000 won, and that the defendant's statement was no more than 30,000 won, and that there was no doubt that there was no evidence to acknowledge that the defendant's act was no more than 40,000 won, and that there was no evidence to prove that the defendant was no more than 40,000 won.

(4) The decision of this court on whether the court knew of the fact that the crime was committed.

In full view of the evidence duly examined and adopted by the court below, 50 million won, which the defendant received from Nonindicted 2 as activity expenses, was in full cash as part of the presidential fund that was kept without being deposited in the official account after Nonindicted 1 (name omitted) was collected by means not stipulated in the Political Fund Act. The time when the defendant received money was an election of the President, where the central party provides official funds to district parties, etc., the defendant shall conduct accounting after preparing evidentiary documents, such as receipts, and reported it to the relevant election commission, but the defendant did not demand such procedures while receiving cash, and the defendant also did not conduct any official accounting procedure while receiving cash. In addition, it is difficult to view that the prosecutor of the court below's office that the defendant himself was just and accounts for the above non-indicted 2's public funds in violation of the Political Fund Act, and thus, it is difficult to see that the defendant's official statement of the court below was not a unconstitutional one, but a statement of the fact that he received money from the general public in the name of a political party.

3. Conclusion

Therefore, the part of the judgment of the court below against the Act on the Regulation and Punishment of Criminal Proceeds Concealment among the guilty part of the judgment of the court below is no longer maintained, and since the part of the judgment of the court below is related to a blanket crime and the remaining part of the judgment of the court below is a concurrent crime under the former part of Article 37 of the Criminal Act, it is not necessary to judge the grounds for appeal of unfair sentencing by the defendant and the prosecutor (the part of the judgment of the court below as to the collection of penalty among the grounds for appeal related to sentencing of the defendant is judged as follows) pursuant

The summary of the facts constituting the crime recognized by this court and the summary of the evidence is as follows, since all the facts constituting the crime are the same as the entries of each corresponding column of the judgment below except for the alteration of the facts constituting the crime in Article 369 of the Criminal Procedure Act.

3. On December 2002, the Defendant received criminal proceeds by being aware of the fact that he received KRW 50 million from the Secretary-General of the Party (name omitted) in a manner not stipulated in the Political Fund Act from Nonindicted Party 2, the Secretary-General of the Party (name omitted) of Nonindicted Party 1 (name omitted) in a manner not stipulated in the Political Fund Act, at the office of Secretary-General of the Party, who is located in the branch of Yeongdeungpo-gu Seoul Metropolitan Government.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 30 (1) of the former Political Funds Act (amended by Act No. 7191 of March 12, 2004; hereinafter the same shall apply) (The receipt of each political fund at the market No. 1 and 2, the choice of each imprisonment), Article 4 of the Act on Regulation and Punishment of Criminal Proceeds Concealment (the receipt of criminal proceeds at market No. 3 and the choice of imprisonment)

1. Aggravation of concurrent crimes;

Article 37 (Aggravation of Punishment for Violation of Political Funds Act under the former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravation of Punishment for Crimes and Punishment for Crimes)

1. Calculation of the number of detention days before sentencing;

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

1. Additional collection:

Article 30(3) of the former Political Funds Act, Articles 10(1) and 8(1) of the Act on the Regulation and Punishment of Criminal Proceeds Concealment

(1) As stated in the above grounds of appeal, the defendant alleged that the portion used for a purpose consistent with the intent of a funding provider should be excluded from the additional collection. Thus, the purpose of the above appeal is to deprive the violator of the provisions of the Political Funds Act and the Act on the Regulation and Punishment of Criminal Proceeds Concealment of money and other property benefits provided to him/her and prevent him/her from holding unlawful profits. For example, in cases where the receipt of illegal political funds is made in connection with the presidential election, and the person who provided it is delivered to the party or the candidate according to the purport of the person who provided it, only the remaining amount of money and other valuables except for the portion shall be confiscated or collected. However, in this case where the defendant used the money by himself/herself as a result of the defendant's assertion, regardless of its specific purpose of use, the defendant's assertion is not acceptable, and thus, regardless of its specific purpose of use.

Each of the crimes of this case is to receive illegal political funds through presidential election in 2002. Some of the funds were received by the defendant first from an enterprise at the workshop, which was requested to provide financial support, which eventually leads to the difficulty in corporate rehabilitation and causing damage to the national economy. In light of the fact that the receipt of a large number of illegal political funds, which is likely to enhance the sound development of democratic politics through the fair operation of political funds and the disclosure of the accounts thereof, the crime is not weak, but it is likely that the defendant has been donated to the State as a member of the National Assembly, the president of the Federation of Small and Medium Enterprise Cooperatives, and the head of the Federation of Small and Medium Enterprise Cooperatives, and the defendant's age, character and conduct, motive of each of the crimes of this case, means of each of the crimes of this case, etc. are collected in full, and the punishment shall be determined by taking into account the circumstances after the crime, etc.

The summary of this part of the facts charged is that the defendant received KRW 100 million from the beginning of December 2002 to the presidential election day of the same month from the beginning of December 19, 2002, as stated in paragraph (3), as well as KRW 50 million as stated in paragraph (3) of the facts charged, and since there is no evidence to acknowledge this as stated in the above grounds for appeal, there is no evidence to prove it and there is no evidence to prove it, so the defendant should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, but as long as he is found guilty of violating the Act on Regulation

It is so decided as per Disposition for the above reasons.

Judges Lee Ho-won (Presiding Judge)