[1] Requirements for a party member’s act of paying party membership fees constitutes an act that does not constitute a contribution act under the Public Official Election Act

[2] Whether a candidate for proportional representation or candidate for a National Assembly member may be the subject of a crime of violating the restriction on contribution under Article 113(1) of the Public Official Election Act (affirmative)

[3] Whether the act of donation under Article 112 (1) of the Public Official Election Act includes a case where money and valuables are provided to the intermediary

[4] The meaning of "related to the recommendation of a candidate" under Article 47-2 (1) of the Public Official Election Act, which provides for the prohibition of receiving money or valuables related to the recommendation of a political party

[5] The relation between the receipt of money and valuables related to a fine and the violation of the Restriction on Contribution Act

[6] The liability for a crime of deceiving a member of the National Assembly to receive money and other valuables in relation to public order and the relation to the receipt of such crimes (=the relation between accepting money and other valuables relating to public order and the ordinary relation between crime of fraud and receiving money and other valuables)

[7] The case holding that a crime of receiving money and valuables related to official affairs is established on the ground that the crime of receiving money and valuables related to the candidate's recommendation was established, in case where the proportional representative candidate candidate delivered the special party membership fee, etc. to the above candidate for the purpose of official nomination by deceiving a person who is not capable of getting the candidate to be elected by a political party, even if there was any defect in the decision making

[1] Where a member of a political party pays party membership fees or other charges pursuant to the party constitution, party rules, and other internal regulations of a political party pursuant to Article 112 (2) 1 (b) of the Public Official Election Act, which are not considered as a contribution act under Article 112 (2) of the same Act, intends to constitute “the act of a member of a political party to pay party membership fees or other charges pursuant to the party constitution, party rules, and other internal regulations, such act shall

[2] In light of the Public Official Election Act, the candidate or candidate for proportional representative National Assembly member is likely to actively engage in an election campaign in preparation for the election of proportional representative National Assembly members. In the case of the candidate or candidate for proportional representative National Assembly member, the "election district concerned" under the provisions of Article 113 of the Public Official Election Act means the whole country and it is sufficiently possible to interpret that the candidate or candidate for proportional representative National Assembly member is a nationwide elector. In the case of proportional representative National Assembly member, the substantial necessity to prohibit an act of contribution at a nationwide level may be more severe than the local constituency for the National Assembly member. Even if the act of contribution to the national elector of the candidate for proportional representative National Assembly member or candidate for proportional representative National Assembly member is restricted under the provisions of Article 113(1) of the Public Official Election Act, the scope of restriction is not particularly ambiguous. If the interpretation is made by limiting the inclusion of the candidate for proportional representative National Assembly member or candidate for proportional representative National Assembly member, the legislative intent of the candidate or candidate for proportional representative National Assembly member may be damaged through Article 1113 of the Public Official Election Act.

[3] The "providing money and goods" under Article 112 (1) of the Public Official Election Act does not necessarily mean only the "providing money and goods to the other party". Even if money and goods are provided to the intermediary, it is reasonable to interpret that the intermediary is not a person who is a simple custodian or a person who is a blind person to deliver a specified money and goods, and as long as there is a certain degree of judgment or discretion as to the object or method of distributing money and the amount of allocation, etc., and as long as there is room for discretion, it is reasonable to interpret that the money and goods are included in the "providing" under the above provision even if the portion to be reverted is not designated.

[4] Article 47-2 (1) of the Public Official Election Act, which provides for the prohibition of receiving money or valuables related to the recommendation of a political party, "related to the recommendation as a candidate" means that the provision of money or valuables constitutes a case where the offer of money or valuables falls under the price or case of recommendation of a candidate or where the offer of such money or valuables may affect any form in the recommendation of a candidate.

[5] The act of donation under the Public Official Election Act is to offer or promise to the other party the benefits free of charge. The restriction is likely to contribute to, or be associated with, the establishment of a foundation for supporting the candidates, etc., and if such restriction is allowed, it is prepared in order to prevent the danger that the election itself will face with the candidate's financial ability, rather than being an opportunity to evaluate the candidate's personality, awareness, policies, etc. The act of giving and receiving money and valuables related to public ceiling is an act of offering property benefits or a public or private position in relation to the recommendation of a specific person as a candidate by a political party. The restriction is to enhance fairness in recommendation of a candidate as a candidate, to enhance transparency and business ethics of a political party, and to ultimately guarantee a fair election from the candidate's recommendation stage to the candidate in an election for public office, and further, to ensure that the political party ultimately prevents the influence of the right of donation from the candidate's recommendation stage. Meanwhile, the two are different in terms of the constituent elements and legislative intent of the crime.

[6] In a case where a member of the National Assembly received money and valuables by deceiving him as if he did not have an intention or ability to get a person to serve as a political party in an election of a member of the National Assembly, both the crime of receiving money and valuables related to public service under the Public Official Election Act and the crime of fraud are both established, and both are in a mutually competitive relationship

[7] The case holding that in a case where a person scheduled to be proportional representative candidates for a National Assembly member delivered money and valuables under the pretext of the political party's special party membership fee and the recommendation and mediation of a specific organization for the purpose of deception by deception of a person who is not capable of obtaining the official nomination of a political party, the crime of accepting money and valuables related to the official nomination is established on the ground that even if there were some defects in the process of offering money to the said candidate in the process of making a decision

[1] Article 112 (2) 1 (b) of the Public Official Election Act / [2] Articles 20 (1) and 113 (1) of the Public Official Election Act / [3] Article 112 (1) of the Public Official Election Act / [4] Article 47-2 (1) of the Public Official Election Act / [5] Articles 47-2 (1), 112 (1), 113 (1), 230 (6), and 257 (1) 1 of the Public Official Election Act / [6] Articles 47-2 (1) and 230 (6) of the Public Official Election Act, Articles 40 and 347 of the Criminal Act / [7] Articles 47-2 (1), 112 (1), 13 (1), 230 (6), and 257 (1) 1 of the Public Official Election Act

[1] Supreme Court Decision 2007Do218 decided Apr. 26, 2007 (Gong2007Sang, 815) / [3] Supreme Court en banc Decision 2001Do2819 decided Feb. 21, 2002 (Gong2002Sang, 734)

Defendant 1 and one other

Defendants

Attorneys Park Yong-ju et al.

Seoul High Court Decision 2008No2864 decided January 9, 2009

All appeals are dismissed. As regards Defendant 1, 24 days shall be included in the principal sentence for the crimes listed in Articles 2 and 3 in the judgment of the court of first instance, and as regards Defendant 2, 89 days shall be included in the principal sentence.

We examine the grounds of appeal.

1. As to Defendant 1’s ground of appeal

Examining the reasoning of the lower judgment in light of the record, it is justifiable for the lower court to have convicted the Defendant of all the charges.

As alleged in the grounds of appeal, the court below did not err by violating the rules of evidence, and therefore, it did not err by misapprehending the rules of evidence selection or fact-finding, which belong to the exclusive jurisdiction of the court below, as a fact-finding court.

2. As to Defendant 2’s ground of appeal

A. Regarding the violation of the restriction on contributions

(1) As to the assertion that the 2 billion won is a special party membership fee and cannot be a contribution act under the Public Official Election Act

When a member of a political party pays party membership fees or other charges to a party under Article 112 (2) 1 (b) of the Public Official Election Act that is not considered as a contribution act under Article 112 (2) 1 (b) of the same Act, if a member of a political party falls under “the act of paying party membership fees or other charges to a party in accordance with the party constitution, party regulations and other internal regulations of the political party, it shall be limited to cases under the party constitution, party regulations and other internal regulations of the relevant political party (see Supreme Court Decision 2007Do218, Apr. 2

According to the facts duly admitted by the court below, the defendant listens to the speak of the defendant 1 for the necessity of a special membership fee in order to request the membership of the proportional representative National Assembly member of ○○○○○○○○ party, and delivered 2 billion won to Defendant 1, who is not related to the party officially, on two occasions. This act of the defendant does not constitute "the act of a party member to pay the party membership fee or other charges in accordance with the party constitution, party regulations or other internal regulations of a political party" under Article 112 (2) 1 (b) of the Public Official Election Act.

In this regard, the judgment of the court below that found the defendant guilty of this part of the facts charged on the premise that the part of KRW 2 billion among the money provided by the defendant constitutes a contribution act prohibited under the Public Official Election Act is justifiable.

The judgment of the court below is not erroneous in the misapprehension of legal principles as to contributions or intentional acts under the Public Official Election Act.

(2) As to the assertion that proportional representation cannot be the subject of the crime of violating the restriction on contribution under the Public Official Election Act

Article 113 of the Public Official Election Act provides that the head of a political party or a candidate (including a person who intends to become a candidate) and his/her spouse may not make contributions to a candidate within the relevant constituency or an institution, organization, or facility even if they are outside the relevant constituency. The Public Official Election Act separately prescribes that the voting for the election of the National Assembly members and the voting for the election of the National Assembly members may be distributed based on the result of the voting for the National Assembly members (one-half vote), and that the number of candidates or candidates for the National Assembly members may actively make an election campaign in preparation for the National Assembly members' proportional representative elections, and that there is no possibility that proportional representative will be elected nationwide, and that the number of candidates or candidates for the National Assembly members may be restricted by the Act on the Election of National Assembly members with respect to the election acts of the National Assembly members and the Act on the Election of National Assembly members with respect to the election acts of the National Assembly members and the Act on the Election of National Assembly members with respect to the election acts of the National Assembly members. Therefore, the provision of Article 113 of the Public Official Election Act means the nationwide election Act.

In the same purport, the lower court’s determination that the person scheduled to be proportional representative National Assembly members may be the subject of the crime of violating the restriction on contribution as stipulated in Article 113(1) of the Public Official Election Act is justifiable as it is in accordance with

The court below did not err by misapprehending the legal principles as to the subject of contributions under the Public Official Election Act, as alleged in the grounds of appeal.

(3) As to the assertion that the money given by the Defendant cannot be deemed as having been “providing” to Defendant 1

The "providing" under Article 112 (1) of the Public Official Election Act does not necessarily mean that money and other valuables belong to the other party. Even if money and other valuables are provided to the intermediary, it is reasonable to interpret that money and other valuables are included in the "providing" under the above provision, even if the intermediary is not a simple custodian or a person who does so in mind to deliver specific money and other valuables to the specific person, as long as there is room for judgment and discretion on the object and method of distributing money and other things, and there is no designated portion to be attributed to him/her (see Supreme Court en banc Decision 2001Do2819 delivered on February 21, 2002).

Based on the evidence duly admitted, the lower court determined that Defendant 1 et al. provided KRW 3 billion in total on the grounds that Defendant 1 et al. paid the special party membership fee or provided it to ○○○○○○○○○○○○○○○○○○○○○○○○○○○○, but it did not simply provided it to Defendant 1 et al. or provided it to Defendant 1 et al. at necessary places in connection with the recommendation of the candidate for proportional representative National Assembly members, and that Defendant 1 et al. was likely to have a certain degree of judgment and discretion on the subject, method, time, amount, etc. of the distribution of money and valuables, and that such act constituted “providing” money and valuables under Article 112(1)

Examining the reasoning of the lower judgment in light of the above legal doctrine and relevant evidence, we affirm the lower court’s above fact-finding and determination as justifiable.

The court below did not err in the misapprehension of legal principles as to the definition of contribution act under the Public Official Election Act, or in the misapprehension of reasoning.

(4) As to the assertion of mistake in law on the crime of violating the Contribution Act

This part of the argument was not a reason for independent appeal, and it was first asserted for the first time as the ground for appeal, and thus cannot be deemed a legitimate ground for appeal. In addition, ex officio examination is conducted, the defendant's act of providing money and goods to a political party as a candidate for a member of the National Assembly constitutes a general crime. However, in its special case, there is no circumstance to see that there was a justifiable reason to see that there was a mistake in recognizing that there was a justifiable reason for misunderstanding. Thus, this part of the argument cannot be accepted.

B. As to the allegation of denial of relevance to 1.03 million won received on March 7, 2008

Article 47-2(1) of the Public Official Election Act prohibits a political party from offering or receiving money or valuables, etc. “related to the recommendation of a specific person as a candidate.” The term “related to the recommendation of a candidate” under the above Act refers to a case where the offer of money or valuables falls under the price or case of recommendation of a candidate, and even if not, it shall be deemed that the offer of such money or valuables falls under any form that may affect the recommendation of a candidate (see Supreme Court Decision 2006Do6307, Sept. 6, 2007).

The court below, after compiling the adopted evidence, found facts as stated in its reasoning, and found that the defendant and defendant 1 received 1.3 billion won from the defendant and defendant 1 as a candidate for proportional representative members of the National Assembly on March 7, 2008, on the ground that they were received as the candidate for proportional representative members of the National Assembly for ○○○○○○○○○○○○○ party's recommendation, and that such act constitutes a case where a candidate's recommendation falls under the price or case of a candidate's recommendation or where the offer of such money and valuables may affect any form in the recommendation of the candidate, and determined that such act is related to the recommendation of a specific person by a political party as provided in Article

In light of the records, the above fact-finding and judgment of the court below are justifiable in accordance with the above legal principles.

The court below did not err in the misapprehension of legal principles as to the public relations relationship under Article 47-2 of the Public Official Election Act.

C. As to the assertion on the relation between the crime of violation of the restriction on contribution and the receipt of money and valuables related to public relations

Trade concurrence refers to a case where a single act substantially satisfies several elements of a special law. Legal concurrence refers to a case where a single act appears to constitute several elements of a crime, but actually constitutes one crime. Whether a single crime or several crimes are actually established shall be determined by considering the evaluation of the elements of a crime and the legal interests and interests protected by the law (see, e.g., Supreme Court en banc Decision 2002Do669, Jul. 18, 2002). Meanwhile, in a special relationship where a legal concurrence agreement forms existence other elements than all other elements of a special law, the act that satisfies the elements of a special law in a special relationship satisfies the elements of a special law, but on the contrary, the act that satisfies the elements of a special law does not satisfy the elements of a special law (see Supreme Court Decision 2006Do1713, May 26, 2006).

On the other hand, a contribution act under the Public Official Election Act is to provide or promise a benefit free of charge by one party, and it is likely that it will contribute to, or be associated with, the establishment of a foundation for supporting a candidate, etc., and if such restriction is allowed, it is prepared to prevent it from being likely that the election itself will take place in the process of enhancing the candidate's financial ability rather than being an opportunity to be assessed on the candidate's personal figures, dogs, policies, etc., and money and valuables related to public administration is an act of providing property benefits or public or private positions in relation to the act of recommending a specific person as a candidate by a political party. The restriction is to enhance the fairness of recommendation of a political party and transparency and morality in the operation of a political party, and further to guarantee ultimately an election for public administration by fundamentally preventing the influence of the right of gold from the candidate's recommendation stage in an election for public office. Meanwhile, it is not recognized that there is no special relation between the National Assembly members of local constituency and giving or receiving money and valuables, etc., or that there is no special relation to the money and valuables provided.

The judgment of the court below to the same purport is justifiable.

As alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles as to the relation between the crime of restricting contributions and the crime of receiving money related to public relations.

D. As to the assertion that the victim of a crime of fraud cannot be the subject of the crime of giving and receiving money and valuables related to the Incheon Metropolitan City.

In the election of a member of the National Assembly, in a case where money and valuables are received by deceiving a person as if the person had no intention or ability to get the person to become a member of the National Assembly, the crime of receiving money and valuables related to the public election law and the crime of fraud are both established, and both are in a relationship of commercial concurrence.

According to the reasoning of the judgment below, the court below determined that Defendant 1's act constitutes a violation of Article 47-2 (1) of the Public Official Election Act, separate from fraud, and the crime of fraud as seen earlier constitutes a crime of violation of Article 47-2 (1) of the Public Official Election Act, even if Defendant 1 used the means of deception, such as exaggeration of his influence, as long as Defendant 1 received money in relation to the recommendation of the candidate for the proportional representative National Assembly member at ○○○○○○○○○○○○○ by such intention, even though he did not have the ability to recommend the candidate. On the other hand, the court below determined that Defendant 1's act constitutes a violation of Article 47-2 (1) of the Public Official Election Act, separately from fraud. On the other hand, Defendant 1's act of deceiving Defendant 1 from Defendant 1 to exercise its influence on the recommendation of the candidate, but it is reasonable to deem that Defendant 1's act of offering money and valuables constitutes a violation of Article 7 of the Public Official Election Act's Act.

In light of the above legal principles and records, the judgment of the court below is just and acceptable.

As alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles as to the relation between fraud and the crime of receiving or receiving money or goods relating to public relations under the Public Official Election Act.

3. Conclusion

Therefore, all appeals are dismissed, and some of the detention days after the appeal shall be included in each original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)