2014Do17497 Violation of the Political Funds Act

1. A;

2. B

Defendants

Law Firm C (for Defendant A)

Attorney D

Attorney EJ (for Defendant A)

Seoul High Court Decision 2014No3017 Decided December 4, 2014

April 23, 2015

The part of the lower judgment against Defendant A is reversed, and that part of the case is remanded to the Seoul High Court.

Defendant B’s appeal is dismissed.

1. Defendant A’s grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

A. As to the ground of appeal No. 1, where the defendant, who was selected as the recipient of the money in the crime at issue of receiving the money in question, denies the fact of receiving the money, and there is no physical evidence, such as financial materials to support this, in order to find him guilty only by the statement of the donor of the money, there is not only the admissibility of evidence, but also the credibility to exclude a reasonable doubt. In determining the credibility of the statement, it is also necessary to examine not only the rationality, objective reasonableness, and consistency of the contents of the statement itself, but also its human being, and whether the statement has an interest to obtain from the statement (see Supreme Court Decision 2007Do2178, Jun. 14, 2007).

The court below acknowledged the following facts in light of the legal principles and records: (a) there is no special reason for Defendant B to make a false statement; (b) there is a simple error from the investigative agency to the court; and (c) there is consistently made a statement that Defendant A provided KRW 210 million in total over five times in the core part; (d) there is no possibility for each of the statements to be made without direct experience; (e) there is no conflict between the circumstances leading up to the creation of money and goods; (e) the place and amount of money delivery; and (e) the method of delivery; and (e) there is no violation of objective facts or rule of experience; (e) the statement about the source of funds delivered by Defendant B corresponds to the statement of the related parties with Defendant B; (e) the recording and recording of conversations between Defendant B and X with Defendant B on May 21, 201; and (e) the fact that Defendant A actively actively provided election support activities by N, as alleged in the grounds for appeal, the court below erred in the misapprehension of the aforementioned legal principles and the record.

B. Regarding ground of appeal No. 2

The purpose of the Political Funds Act is to contribute to the sound development of democratic politics by guaranteeing the adequate provision of political funds, ensuring the transparency of their revenues and expenditures by disclosing the details of their revenues and expenditures and preventing irregularities related to political funds (Article 1) and Article 3 subparagraph 1 of the same Act is to provide the penal provisions for "political funds" with respect to party membership fees, support payments, deposits, subsidies, incidental revenues prescribed by the party constitution regulations, etc., and other political activities, including political parties, persons who are elected through an election for public office, persons who intend to be candidates for public office or candidates, supporters' associations, executives and employees of political parties or salaried clerical staff of political parties and other persons who are engaged in political activities, and expenses that are incurred in their political activities." Article 2 (1) provides that "any person shall not contribute or receive political funds in violation of this Act" and Article 45 (1) provides that "any person who contributes or receives political funds (referring to any person who commits such violation as a member of a political party, supporters' association, corporation or other organization)".

In full view of the contents of the above provisions, the "person who has received a donation of political funds" under Article 45 (1) of the Political Funds Act refers to the person who has received money, goods, etc. for the political activities of the principal or the organization to which the principal belongs. If the person who received the political funds received money, etc. under the pretext of delivering it to another person who is engaged in political activities, and if there is no room for discretion on the objects, methods, and amount of allocation, etc. of money, goods, etc., the person is merely a mere custodian or a person who has received the money, goods, etc. to deliver it to another person who is engaged in political activities

The court below affirmed the judgment of the court below that Defendant A received KRW 70,000,00 from Defendant B’s 10,000,000,000 from Defendant B to Defendant B’s local chairman of the AI local election commission, rather than actively demanding the use thereof, Defendant B’s election campaign at the time of N’s election campaign, and delivered Defendant A’s intent to appropriately distribute and use the cost of election campaign. Defendant A had broad discretion on expenditure, Defendant A’s election campaign, and Defendant B had no political influence within 00,000,00 won from Defendant B’s local election campaign. The court below held that Defendant A’s election campaign and delivery of KRW 70,000,00,000 to 10,000,000,000,000 won to Defendant A’s local election campaign. The court below affirmed Defendant A’s 100,000,000 won to Defendant A’s local election campaign and delivery of KRW 70,000,00.

Examining the purpose, background, and circumstances revealed in these facts in light of the aforementioned legal principles, Defendant B’s intent to donate KRW 140 million to Defendant A, an assistant to the National Assembly member in L. However, the remainder of KRW 70 million, based on the intention to donate to Defendant A, who is an assistant to the National Assembly member in L.S., is deemed to have been delivered to Defendant A, and Defendant A also received with the same purport. As such, Defendant A is merely a simple delivery of this part of funds and cannot be deemed a person who received political funds for his political activities.

Nevertheless, the lower court maintained the first instance judgment that found Defendant A guilty of the above KRW 70 million as well as Defendant A’s contribution of political funds. In so doing, the lower court erred by misapprehending the legal doctrine on criminal intent of contribution and the crime of illegal acceptance of and acceptance of political funds, thereby adversely affecting the conclusion of the judgment, and Defendant A’s ground of appeal pointing this out is with merit. As to the third ground of appeal, political funds prohibited by the Political Fund Act refer to all the money, etc. provided to a person who engages in political activities for political activities (see, e.g., Supreme Court Decision 2008Do10422, Feb. 26, 2009).

After finding the facts as stated in its reasoning, the lower court determined that Defendant A received money from Defendant B as political funds since Defendant A was a person engaged in political activities in relation to N's parliamentary activities of a member of the National Assembly belonging to L local constituency M; Defendant A was supported by election campaign for the head of N0's election with his local constituency; Defendant A's political influence not only L but also L's L's L's L's L's L's L's L's L's L's L's L's L's L's L's L's L's L's L's L's L's L's L's L's L's N's election if the N's N's support was elected to the head of Gu; Defendant A's management of the I's I's L's L's L's L's L's L's L's L's L's L's L's L's L's L's L's N's N's N's N's election

Examining the reasoning of the judgment below in light of the evidence duly adopted by the court of first instance, since the remainder of the money received by Defendant B, excluding KRW 70,000,000,000,000, which was paid by Defendant A, can be deemed as a fund for Defendant A’s political activities, the above judgment of the court below is just, and there is no error of law by misapprehending the legal principles on political funds.

2. As to Defendant B’s appeal

According to the records, Defendant B did not submit the appellate brief within a lawful period (the appellate brief submitted by the Defendant was received on January 20, 2015, after the expiration of the period), and Defendant B did not state the grounds for appeal in the petition of appeal.

3. Scope of reversal

Of the lower judgment, the part on the violation of the Political Funds Act that Defendant A received KRW 140 million in cash from Defendant B on May 19, 2010 should be reversed for the aforementioned reasons. Since the remainder of the violation of the Political Funds Act by Defendant A, which the lower court found Defendant A guilty, is in a relationship with the above reversed part, the entire part on Defendant A of the lower judgment should be reversed.

4. Conclusion

Of the lower judgment, the part against Defendant A is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. Defendant B’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok

Justices Lee In-bok

Justices Go Young-young

Justices Kim In-young