[1] Legal nature of the proviso of Article 45(1) of the Political Funds Act (=the ground for dismissal of liability)

[2] Requirements for establishing a crime of violation of Articles 45(2)5 and 32 subparag. 1 of the Political Funds Act

[3] The case holding that it cannot be deemed that the donator expressed his intent to donate the above money to the above candidate in relation to the success of the candidate merely because the donator was expected to have been able to help the other party to the donation in putting the candidate for the election of the head of local government at the time of donation

[1] The proviso of Article 45(1) of the Political Funds Act provides that "the relationship between the donor or the recipient of the political fund is not the same as the relative under the provisions of Article 777 of the Civil Act." This provision provides that where the donor and the recipient of the political fund are in a relationship of relatives, it shall be a ground for exclusion from liability on the ground that there is no possibility of expectation of lawful act in consideration of

[2] The crime of violation of Articles 45(2)5 and 32 subparag. 1 of the Political Funds Act is established when a specific person is donated or received political funds in relation to the recommendation of a candidate in an election for public office. It should explicitly or implicitly indicate the intent to contribute money in relation to the recommendation of a candidate.

[3] The case holding that it cannot be deemed that the donator expressed his/her intent to donate the above money to a candidate for the election of the head of a local government solely on the ground that the donator was expected to have been able to help the other party to the donation when he/she made an election of the head of a local government

[1] Article 45(1) of the Political Funds Act / [2] Articles 32 subparag. 1 and 45(2)5 of the Political Funds Act / [3] Articles 32 subparag. 1 and 45(2)5 of the Political Funds Act

Defendant

Defendant

Woo-hoon

Attorney Park Sang-hoon

Chuncheon District Court Decision 2007MaMa30 decided April 13, 2007

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of grounds for appeal;

A. misunderstanding of legal principles

In light of the above legal principles, the Kim Young-chul, who received political funds from the Defendant, is in a relationship with the Defendant, and thus, the Defendant has a ground for dismissal of human punishment under the proviso of Article 45(1) of the Political Funds Act, which is the punishment law of this case. In addition, since Kim Young-su, Kim Young-su, who received the donation of political funds from the Defendant, was not a contribution act by immediately returning the donation to the Nonindicted Party 1, the judgment of the court below convicting the Defendant of the facts charged of this case by misunderstanding the legal principles

B. The assertion of unfair sentencing

Even if the Defendant was guilty, the Defendant’s and the Kim Young-sun (Seng) were to be convicted, the instant crime was not planned in advance by the Defendant, but caused by Nonindicted Party 1’s interest on the day of the commission of the crime, which was immediately returned to Nonindicted Party 1, the Defendant’s health status is not good, and the Defendant did not have any particular criminal record, the sentence of 10 months of imprisonment and 2 years of suspended sentence is too unreasonable.

2. Determination:

A. Ex officio determination

ex officio, the prosecutor added the new facts charged that the defendant donated political funds to the Kim Young-chan, in relation to the defendant's recommendation of Nonindicted Party 1 as a candidate in the local election at the trial court, as the primary facts charged, and applied for changes in the indictment at the court below to the ancillary facts charged, and since this court permitted this, the judgment of the court below cannot be maintained as it was.

However, despite the above amendment of the indictment, the defendant's assertion of the above misapprehension of the legal principles is still subject to the judgment of this court, and this is examined below.

B. Determination on the grounds for appeal

On the other hand, Article 45(1) of the Political Fund Act provides that "any person who contributes or receives political funds in a manner not prescribed by this Act shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 10 million won: Provided, That the same shall not apply where the relation between a person who contributes or receives political funds is a relative under the provisions of Article 777 (Scope of Relatives) of the Civil Act." The proviso of the above provision provides that where a person who contributes or receives political funds is a relative of a donor, the reason why the responsibility is removed for the reason that there is no possibility of expectation for lawful acts, considering the definition between the donor

However, according to the records, since the defendant who contributed political funds in collusion with the non-indicted 1 and the Kim Young-chan, who received such contribution, can be recognized as a relative as a village, the defendant is subject to the responsibility for the illegal act pursuant to the proviso of the above provision. Although the defendant, who is held such responsibility, is in a co-principal relationship with the non-indicted 1, etc. who has no such status, and in this case, even if the defendant is constituted a non-indicted 1, etc., he is not subject to punishment by the non-indicted 1, etc., the defendant does not support the crime of violation of Article 45 (1) of the Political Funds Act.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) and (6) of the Criminal Procedure Act and the defendant's appeal is justified, and the judgment of the court below is reversed and it is again decided as follows.

Summary of the facts charged of this case

The summary of the primary facts charged is that the defendant is the chairperson of the Seona City Council for Party Members in Ansan-si. While he did not contribute or receive any political funds in connection with the activities of recommending any specific person as a candidate in the election of public officials, on the first day of May 31, 2005, the defendant provided 20 million won in cash and 10 million won in accordance with the interview schedule with the National Assembly member Kim Sora-gu's Kim Young-si's Kim Young-si's Yok-si's Yok-si's 200 million won in collusion with Nonindicted 1 and 2, and the defendant provided the above 00 million won in collusion with the above 10 million won in the above 1st day of the 1st day of the 1st day of the 1st day of the 1st day of the 30th day of the 1st day of the 1st day of the 1st day of the 1st day of the 1st day of the 2nd day of the 1st day of the 1st day of the 200th day of the Y.

Maz.

First of all, the crime of violating Article 45 (2) 5 and Article 32 subparagraph 1 of the Political Funds Act is established when the defendant or non-indicted 1 has contributed or received political funds in connection with the activities of recommending a specific person as a candidate for the election of public officials. However, there is no evidence to prove that the defendant or non-indicted 1 explicitly or implicitly expressed his intention to recommend the above amount as the candidate for the Chuncheon City Mayor at the time of donation of the above KRW 20 million among the evidence submitted by the prosecutor, and rather, the defendant and non-indicted 1 had no effect on the record that they would have contributed the above money on August 17, 2005, on the premise that the defendant and non-indicted 1 had no effect on the recommendation of the candidate for the above 0,000 public opinion poll from around 9,000 to the 20,000 public opinion poll for the above 1,000 public opinion poll for the defendant's election of 20,000 won.

In addition, as examined in Section 2-B(b) above, the defendant's responsibility cannot be punished as the defendant's liability is removed, and it is also deemed not guilty.

Conclusion

Thus, the primary facts charged of this case constitute a case where there is no proof of crime, and since the facts charged of this case does not constitute an offense, the defendant is acquitted in accordance with Article 325 of the Criminal Procedure Act, and the summary of the judgment is publicly announced in accordance with Article 58(2) of the Criminal Act.

Judges Park Jong-dae (Presiding Judge)