The case holding that a crime of violation of Article 30 (1) of the former Political Fund Act is committed unless a legitimate procedure was followed, such as allowing the issuance of receipt of a political fund within a reasonable period of time, where the receipt of a political fund was not received directly or all of the political fund was consumed after the consumption of the political fund.

The case holding that, in light of the fact that political funds are provided in cash and received in a way that is closed at night, and that the recipient is not an executive of a political party's supporters' association, the above political funds were already provided in an unlawful way other than that prescribed by the Political Funds Act at the time of receiving them, and even if the recipient is a supporters' association, since the former Political Funds Act (amended by Act No. 7191 of March 12, 2004) does not specify the time of receiving receipt of political funds, a supporters' association may issue receipt of political funds within a reasonable period from the receipt of the political funds, and if the political funds are actually consumed within a considerable period of time, a receipt of political funds may be issued, and since the defendant received political funds within one month from the receipt of the said political funds, and the period of receipt of the said political funds has not passed since it was sufficiently possible to take legitimate procedures such as allowing the issuance of receipt of political funds, it constitutes a person who receives political funds under Article 30 (1) of the same Act.

Articles 7(1) and 30(1) of the former Political Funds Act (amended by Act No. 7191 of March 12, 2004)

Defendant

Cho Jae-in

Attorney Lee Jong-chul

A defendant shall be punished by imprisonment for not less than eight months.

However, the execution of the above punishment shall be suspended for two years from the date of the final judgment.

20,000,000 won shall be additionally collected from the defendant.

Punishment of the crime

The defendant was a candidate for the President of the Union of the People's Republic of Korea at the time of the 16th presidential election that was implemented on December 29, 202;

A person, in collusion with Non-Indicted 1, who is a partner of the defendant, shall not receive political funds in a manner that is not provided for in the Political Funds Act;

Nonindicted 1 received KRW 200 million in cash as a substitute fund for the Defendant from Nonindicted 3 of the head of the group restructuring headquarters of the same group, who was instructed by Nonindicted 2 from the president of the Sk Group in the mutual Buddhist parking lot near the Hongk University located in Mapo-gu Seoul Metropolitan Government during the period from November 1, 2002 to the early December 1, 200, and used it as a substitute fund for the Defendant, and the Defendant was granted political funds in a manner not prescribed by the Political Fund Act, by failing to follow the procedures prescribed by the Political Fund Act, such as issuing a receipt for KRW 200 million.

Summary of Evidence

1. Partial statement of the defendant;

1. Partial statement of the witness, Nonindicted 4’s legal statement, and Nonindicted 3’s legal statement

1. Partial statement of the suspect interrogation protocol of the accused by the prosecution;

1. Statement of the transcript of the protocol of interrogation of Nonindicted 2 by prosecution

1. Each of the statements made by the prosecution against Nonindicted 2, 3, and Kim Young-young, and Nonindicted 1

1. One copy of the report of the Director General of the National Assembly in 2002, one copy of the report of the Director General and one copy of the report of the Director General of the National Assembly in 2002 and one copy of the report of the Director General of the National Assembly in 2002

Application of Statutes

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

Article 30 (1) of the former Political Fund Act (amended by Act No. 7191 of March 12, 2004; hereinafter the same shall apply) (Appointment of Imprisonment)

1. Suspension of execution;

Article 62(1)(b) of the Criminal Code shall be taken into account for the reasons described below

1. Ratification;

Article 30 (3) of the Political Funds Act

Judgment on the argument of the defendant and defense counsel

1. The defendant's assertion that he did not conspired with non-indicted 1 regarding the receipt of illegal political funds

A. Summary of the assertion

The Defendant, in collusion with Nonindicted 1, was found not guilty of the facts charged in the instant case on the premise that Nonindicted 1 received KRW 200 million from the SK Group, in collusion with Nonindicted 1, and received KRW 200 million from Nonindicted 1 after the completion of the 16th fleet.

(b) Markets:

In relation to co-offenders who are jointly engaged in a crime, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no process of the whole conspiracy, if the combination of the intent is made in order or implicitly through the agreement among several persons, the conspiracy relationship is established, and even if there was no direct participation in the act of the execution, the person is held liable as co-principal for the other co-principal's act (see Supreme Court Decision 2004Do520, Jun. 24, 2004, etc.).

According to the evidence as seen above, the Defendant was a political person with six National Assembly members’ career in 1981, who was invested in the regular world, and resigned from the Prime Minister on July 12, 2002 to leave the six National Assembly members’ career, and was launched on November 1, 2002, “IEAEA”. ② The Defendant was in considerable difficulty in election campaign due to the shortage of funds such as the deposit money for the presidential candidate around November 2002. ③ Nonindicted 4, who was the Minister of Commerce, Industry and Energy with the Defendant’s recommendation from the same political party, was informed of the above circumstances, and requested the Defendant to the Chairman of SK Group 2 to provide the Defendant’s preferential fund support, and Nonindicted 2, who was the Defendant’s telephone number on the Defendant’s birth, was reported to Nonindicted 1 to the Chairman on July 12, 2002, and Nonindicted 2, who was the Defendant’s early 100 million won on May 23, 2013.

The above facts are as follows: (a) KRW 200 million of the political fund of this case is cash, (b) at night, and (c) at night, it is considerably different from the case of legitimate political fund receipt in the process of receiving the fund; (b) Nonindicted 4 and Nonindicted 1, while they have known of each other, they did not appear to have been able to deliver contact information to Nonindicted 2 Chairperson; (c) it seems possible for Nonindicted 4 to inform Nonindicted 1’s contact address to the Defendant or one side of the National Election Campaign Headquarters; (d) the Defendant was unable to receive a report on the situation of the election fund from the person in charge of the election fund, such as Kim Young-ro’s secretary, at least KRW 200 million of the Defendant’s deposit money, and (d) at least KRW 140 million of the Defendant’s election campaign fund, which was appropriated to the election campaign headquarters, to the extent that it was possible to have been given the Defendant’s deposit money, and thus, the Defendant’s general election relation was given and received at least KRW 200 million of the Defendant’s political fund.

Therefore, the above assertion is rejected on different premise.

2. The assertion that the requirement of Article 30 (1) of the former Political Funds Act is not satisfied;

A. Summary of the assertion

The Defendant is obligated to issue a receipt of political funds only in cases where the Defendant directly receives political funds or becomes aware of the fact that political funds deposited to a political party are used at least before they are used. Since the Defendant became aware of the receipt of political funds only after all of the instant political funds were consumed as a substitute fund, the Defendant is not obligated to issue a receipt thereafter. This does not constitute the elements of establishment under Article 30(1) of the former Political Funds Act, which is premised on the above obligation.

(b) Markets:

Article 30 (1) of the former Political Funds Act provides that "a person who gives or receives political funds in a manner not prescribed by this Act" shall be punished. Meanwhile, Article 7 (1) of the same Act provides that "a supporters' association shall issue receipts using the forms of political fund receipts that are prepared by the National Election Commission when it receives money or goods from a member or a person other than a member."

In this case, in light of the fact that the political funds in this case are provided in cash and received in cash at night, and that the recipient is a partner of the National Federation of Political Funds who is not an executive of the National Federation of Political Funds, the political funds in this case appears to have been provided in an unlawful way other than the one prescribed by the Political Fund Act at the time of receipt. Even if the recipient is a supporters' association, as seen above, the former Political Fund Act does not specify the time of receipt of receipt of political funds. Thus, a supporters' association may issue receipt of political funds within a reasonable period of time after receipt of political funds. In fact, a supporters' association may issue receipt of political funds within a reasonable period of time even after the political funds are consumed for election expenses. Accordingly, the political funds in this case may be received within a period of one month from the time of receipt of the political funds in this case, and the year has not passed since the defendant was fully able to take legitimate procedures such as issuing receipt of political funds.

Therefore, we cannot accept the aforementioned assertion of the prior counsel on different premise.

Reasons for sentencing

The Defendant received 200 million won from SK Group as illegal substituted fund, which was a candidate going to the 16th substitute line. Such illegal political funds have functioned as a serious obstacle to the formation of transparent and fair market order in our society and the democratic development of politics. Therefore, the aforementioned transit must be eradicated in order to develop into a mature level of political and economic climate of our society, and the receipt of illegal political funds must be subject to strict punishment.

However, the amount of this case's political funds received by the defendant is smaller than that of other political parties that come short of time at the same time, and the defendant is a first offender with no previous conviction, and the part recognized by the defendant is divided by mistake, and the execution of the punishment is suspended only once in consideration of various circumstances, such as the age, character and conduct, environment, etc. of the defendant.

Judges Kim Byung-chul (Presiding Judge)