(영문) 대구지방법원 2010.11.17.선고 2010고합189 판결

2. When Defendant A does not pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.

3. Of the facts charged in the instant case, the charge of violating the Political Funds Act against the Defendants is not guilty, and the summary of the judgment of innocence as to the Defendants’ violation of the Political Funds Act is publicly notified.

Reasons

Criminal facts

[2010고합318] 피고인 A은 2010. 6. 2. 실시한 제5회 전국동시지방선거 대구F구청장선거에 무소속으로 출마하여 낙선하였다. 선거운동기간 전에 공직선거법에 규정된 방법을 제외하고 정보통신의 방법으로 선거운동을 할 수 없고, 누구든지 선거에 관한 여론조사의 결과를 공표하는 때에는 조사의 뢰자와 조사기관·단체명, 피조사자의 선정방법, 표본의 크기, 조사지역 · 일시 · 방법, 표본오차율, 응답률, 질문내용 등을 함께 공표하여야한다. 그럼에도 불구하고, 피고인 A은 자신의 당선을 위하여 2010. 3. 15. 20:10경부터 22:00경까지 사이에 대구 G아파트 106동 1401호에서 피고인의 휴대전화를 이용하여 H 등 F구 거주자 약 225명을 포함하여 401명에게【★F구청장선거 여론조사결과 3월13~14일 양일간 F구민 1500명 대상 전화조사 IT I11.9% A 42.7% J3.0% K9.3% 아직모름 33.1%) 라는 내용으로 피고인 A이 가장 많은 지지를 받고 있는 것처럼 홍보하는 문자메시지를 전송하였다.

As a result, Defendant A announced the results of the public opinion poll without indicating the client, the name of the institution, and the method of selecting those to be polled at the same time prior to the election campaign period.

Summary of Evidence

1. Defendant's legal statement;

1. Statement of the police concerning L;

1. A statement prepared by H;

1. The application of Acts and subordinate statutes to each investigation report (the other party to whom text messages are confirmed, specific person to whom text messages are sent, public opinion poll reports, and letter delivery details of a suspect A are sent, respectively);

1. Article applicable to criminal facts;

Article 254(2) of the Public Official Election Act (the point of a prior election campaign), Article 256(2)1(m) and Article 108(5) of the Public Official Election Act (the point of violation of the method of publication of public opinion polls as a result of public opinion polls

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (Punishments imposed on the violation of the Public Official Election Act due to the violation of methods of publication as a result of a public opinion poll with heavy quality of crimes)

1. Selection of punishment;

Selection of Fines

1. Detention in a workhouse;

According to Articles 70 and 69(2) of the Criminal Act, the publication of the result of the public opinion poll on the reason of sentencing requires the electors to pre-examine the free decision-making by the electors. As such, Article 108(5) of the Public Official Election Act requires that in order to ensure fairness in election, the public opinion poll published together with the client of investigation, the name of the institution or organization, the method of selecting those polled, the size of samples, the area and date and time of survey, the error rate of samples, response rate, and the contents of questions. In light of such legislative purpose, the results of public opinion poll published by the Defendant are as follows: (a) the public opinion poll conducted by the Defendant around March 13, 2010; (b) the public opinion poll conducted by the Defendant against 1,500 members of the F-Gu and 900 members of the N Party, which had been reported in advance to the election commission; (c) the Defendant appears to have expressed the above language and behavior of the Defendant at the time of competition with the Defendant’s phone number in favor of the Defendant.

Parts of innocence

[2010 Highest 189]

1. Summary of the facts charged

A. Status of the Defendants and 0

피고인 A은 1998. 1.경부터 2000. 8.경까지 N정당 경북도지부 사무부국장으로, 2000. 8.경부터 2003. 7.경까지 N정당 경북도당 사무처장으로, 2003. 7.경부터 2004. 7.경까지 대구경북 N정당 정치개혁연대 공동 대표 겸 N정당 중앙연수원 교수로, 2004. 8.경부터 2005. 1.경까지 상임위 전문위원, N정당 정책위의장실 보좌역 겸 국회정책연구위원으로, 2005. 1.경부터 2005. 10.경까지 N정당 대변인 행정실 국장 겸 국회정책연구위원으로, 2005. 11.경부터 2006. 1.경까지 대변인 행정실장으로, 2006. 1.경부터 2006. 1. 31.경까지 N정당 상근전략기획위원으로 각 근무하던 중, 2002. 6. 13.에 실시된 3대 지방선거에서 대구 F구청장 N정당 후보로 공천을 신청하였으나 당내 경선에서 지는 바람에 공천을 받지 못하였으며, 2004. 4. 15. 실시된 제17대 국회의원 선거에서 대구 P 지역구에 N정당 예비후보로 등록하여 공천을 신청하였으나 공천을 받지 못하였고, 2006. 5. 31. 실시된 4대 지방선거에서 F구청장으로 당선되어 F구청장으로 근무하고 있는 사람이다. 피고인 B는 1999. 7.경부터 1999. 10.경까지 N정당 중앙당 청년국 청년부장으로, 1999. 10.경부터 2000. 8.경까지 N정당 중앙당 대변인 지원팀 부장으로, 2000. 8.경부터 2002. 8.경까지 의원국 의사부장 및 부국장으로, 2002. 8.경부터 2003. 7.경까지 사이에 N정당 정책위의장실 보좌역 겸 국회정책연구위원으로, 2003. 7.경부터 2004. 6.경까지 N정당 중앙당 정책위 건설교통위원회 지원팀 전문위원으로, 2004. 6.부터 2005. 1.경까지 대변인 행정실 수석팀장으로, 2005. 1.경부터 2005. 5.경까지 서울시당 사무부 처장으로, 2005, 5.경부터 2008. 4.경까지 원내대표실 보좌역, 정책위 농해수 전문위원, 원내행정국 의사팀장, 사무총장실 보좌역, 정책위 정무위 수석전문위원, 상근전략기획 위원 등으로, 2008. 4.경부터 2009. 1.경까지 N정당 서울시당 사무처장으로, 2009. 1.부터 현재까지 N정당 중앙당 조직국장으로 각 근무하던 중, 2004. 4. 15. 실시된 제17대 국회의원 선거에서 Q, R, S, T지역에 N정당 국회의원 예비후보로 등록하여 선거운동을 하면서 N정당에 공천을 신청하였으나 공천을 받지 못하였고, 2006. 5. 31. 실시된 4대 지방선거에서 대구 U구청장 N정당 후보로 공천 신청하였으나 공천을 받지 못하였고, 2008. 4. 9. 실시된 18대 국회의원선거에서 대구 V 지역구에 N정당 예비후보로 등록하여 선거운동을 하면서 공천을 신청하였으나 공천을 받지 못하였다.

On the other hand, from around 1997, he operated a pharmacy with the trade name of "W pharmacy", "X pharmacy", "Y pharmacy", etc. From March 2006 to November 2008, he operated a pharmacy establishment brokerage business on the third floor of the Daegu Z building in the name of "AA" and "AA", from the end of 1998 to the end of November 2008, and was working as the Chairman of the Youth Party Youth Association from the end of 1998 to the end of 2000, and was working as the representative of the N Party North Do Party from the end of 2001 to the end of 2002, from the end of 2003 to the end of 2008 to the end of 2005, and was serving as the representative of the central party in the Daegu 4th local election of the Metropolitan City and the elected representative of the Metropolitan City as the member of the Gu in the election of the Metropolitan City.

B. Defendant A

피고인은 N정당 경북도당 부처장으로 근무하던 1997년경부터 "W약국", "X 약국", "Y 약국" 등의 상호로 약국을 운영하면서 N정당 경북도당 청년위원장으로 근무 중이던 이와 잘 알고 지내면서 이에게 수시로 "정치를 하기 위해서는 월급 외 수익이 필요하다. 우리는 사업을 하지 않고 월급쟁이니까 월급 외에 고정수익이 있어야 된다"고 말하여 오던 중, 2002. 11.경 대구 AC 소재 N정당 당사 및 대구시내 일원에서 대통령선거가 다가오자 이에게 "대선에서 승리를 하면 서로 갈 길이 있는데, 만약에 패배를하게 되면 또 험난한 야당생활을 해야 된다, 야당생활을 하고 또 나중에 선거에 출마하려면 당직자로서 월급 이외에 일정한 돈이 필요하다. 1억 5,000만 원을 돈이 되는대로 투자할 테니 약국 사업 등에 사용한 후 이자 또는 수익금 명목으로 고정적으로 월 3부(연 36%)로 달라, 원금은 나중에 변제해달라고 할 때 변제하면 된다"는 취지로 말하면서 이에게 투자금 명목으로 1억 5,000만 원을 빌려 주기로 하였다. 그래서 피고인은 2002. 11. 5. 0 명의의 제일은행 계좌(계좌번호 : AD)로 5,000만 원, 2003. 6. 10. 위 계좌로 5,000만 원, 2004. 8. 11. 위 계좌로 5,000만 원을 각 송금하여 주었고, 그 후 이로부터 정기적으로 많은 이자를 받게 되어 많은 수익이 발생하자 2005. 8.경 0에게 추가로 투자금 명목으로 5,000만 원을 더 빌려주기로 하고 같은 달 31, 0의 위 제일은행 계좌로 5,000만원을 송금하여 결국 2002. 11, 5.부터 2005. 8. 31.까지 사이에 이에게 4회에 걸쳐 2억 원을 투자금 명목으로 빌려주었다. 그런 다음 피고인은 (1) 2002. 12. 6.부터 2003. 6. 10.까지 사이에 대구시내 일원에서 피고인 명의의 국민은행 계좌(계좌번호 : AE)로 7회에 걸쳐 위 5,000만 원에 대한 월 3부(월 150만 원) 상당의 이자를 매월 송금 받고, (2) 2003. 7. 7.부터 2004. 8. 6.까지 사이에 대구시내 일원에서 피고인 명의의 위 국민은행 계좌로 13회에 걸쳐 1억 원에 대한 월 3부(월 300만 원) 상당의 이자를 매월 송금 받고, (3) 2004. 9. 6.부터 2005. 8. 9.까지 사이에 대구시내 일원에서 피고인 명의의 위 국민은행 계좌로 10회에 걸쳐 1억 5,000만 원에 대한 월 3부(월 450만 원) 상당의 이자를 매월 송금 받고, (4) 2005.9.14.부터 0의 부도 직전(부도시점 : 2008.11,31.)인 2008.8.21.까지 사이에 대구시내 일원에서 피고인 명의의 위 국민은행 계좌로 37회에 걸쳐 2억 원에 대한 월 3부(월 600만 원) 상당의 이자를 매월 송금 받는 등 합계 266,500,000원 상당을 이자 명목으로 송금받았다.

Accordingly, even if the Defendant did not receive political funds in a way that is not provided for in the Political Fund Act or the Political Fund Act, he received interest equivalent to 36% per annum (26,50,000 won per annum) exceeding the average loan interest rate (64% per annum, 60,123,835 won per annum) from 77 times as shown in the attached list of crimes (1) from December 6, 2002 to August 21, 2008, and received 206,376,165 won as political funds. Defendant B received 77 times as above.

Around September 199, the Defendant, while working as the head of the N Party’s central youth department, operated a pharmacy with the name of “W pharmacy”, “X pharmacy”, “Y pharmacy”, etc., and was working as the Chairperson of N Party Gyeong-do Youth Party Do, and became aware of the fact that he was able to run a window in the AF discount store located in Incheon Gyeyang-gu, Incheon. On the other hand, the Defendant, from time to time, 0, was unable to live in the daily daily daily lives. In addition, the Defendant, at all times, should put his body in the politics, such as leaving an election in the future. There is thought that he will take place in the National Assembly or local elections.” On April 2001, the Defendant, while working as the head of the N Party Do branch of Seoul City and Japan, made it difficult for the N Party Do to live in the daily daily election and gave his consent to use money later than 3 weeks in the form of investment management, etc., and made it necessary to use money later.

(1) On April 201, the following defendant: A. 2,5 million won in total from A. 2,400 to A. 2,400,00 won in the name of A. 2,50,000 won in the above account on April 2, 200, 3,000 won in the above account on April 2, 200, 3,000 won in the above account on April 15, 200, 15, 15 million won in the above account on November 19, 200, 2,000 won in the above account on May 2, 2003, 200 KRW 1,5 million in the above account on May 2, 200, 3,000 in the above account on April 2, 205, 200 won in the above account.

Accordingly, even if the Defendant did not receive political funds in a way that is not prescribed by the Political Fund Act or the Suspension Fund Act, he received from May 14, 2001 to September 4, 2008 the interest amounting to 36% per annum (amounting to 342,50,000 won per annum) exceeding the average interest rate of the first financial right (amounting to 6.56% per annum, KRW 79,962,805), as shown in the attached list of crimes (2) from May 14, 2001 to September 4, 2008, and received a contribution of 262,537,195 won per annum as political funds.

2. Summary of the Defendants’ assertion

The Defendants and their defense counsel agree that the Defendants lent money to the Defendants for the purpose of investment as stated in the above facts charged, and received money equivalent to three minutes per month from them as interest or profit. However, they suggest that the above Defendants and their defense counsel would recommend the Defendants to make an investment in money in their own pharmacy business, and first give the Defendants the amount equivalent to three minutes per month as interest or profit from the invested money, and they would be made by the Defendants through the receipt of it. Thus, even if the Defendants received money equivalent to three minutes per month from the Defendants as interest or profit, they cannot be deemed to have received political funds.

3. Determination

(a) Facts of recognition;

In full view of each of the legal statements of 0, AM, N, and AO, AP, Q, AR, AS, AS, and AT, each of the police statements, each of the following facts is recognized.

(1) Defendants and their relation

① From around 198 to April 1998, Defendant A served as the head of the Ministry of Government Administration and Home Affairs, and was first appointed as the Chairperson of the N Party Gyeong-do Youth Party, a non-regular employee, as the N Party’s head of the N Party Do Youth Party. From that time, Defendant A, as the N Party’s head of the Ministry, was able to play a role in the election of National Assembly members, presidential election, local election, etc.

② Defendant B served as the head of the planning department of the AU Party Planning and Coordination Bureau around 1997, and first served as the head of the NU Party Central Youth Department around 199, and became a member of the City/Do Youth Committee meetings or meetings.

(2) The process of expanding the salesroom occupants in a 0-scale discount store

① From around 197, 00: (a) around 2001 to 2002, the Defendants had been operating a pharmacy with the trade name of W pharmacy, X pharmacy, and Y pharmacy; (b) around 2001 to 2002, more than 10 pharmacies were located in nationwide large-scale discount stores and directly operated the pharmacy; and (c) thereafter, the entire country’s large-scale discount stores opened more than 10 pharmacies in one year on an average, and expanded the pharmacy’s business, and (d) opened more than 70 pharmacies in the nationwide large-scale discount stores and directly operated the pharmacy or managed the pharmacy by taking charge of managing the pharmacy and receiving deposits and monthly payments from other pharmacists.

O) In order to expand the business of a pharmacy and prepare deposit, interior expenses, drug value, etc. required for the establishment of a pharmacy in a large retailer (a pharmacy is excluded every time a pharmacy is opened), the principal from the two, to whom the sum of KRW 70 million is less, is to be returned later, and the interest is to be paid at a high rate of interest, and the following money is borrowed under the name of the investment, subject to the condition that the amount of the principal is to be returned later and the high rate of interest is to be paid.

-O borrowed money from AO from September 4, 2001 to November 5, 2009 for the purpose of its investment from time to time. The sum of borrowed money during the above period reaches KRW 3 billion. Meanwhile, from the beginning of 2003, on the condition that interest on January 5 to February 2, 2003 was given, it borrowed money from AO on the condition that the interest on the 3rd of each month is given, and the AO has not received a refund of part of its principal.

O borrowed KRW 100,000 from AP, which was the Director of the Department of the City of Daegu City of the N Party at the time of December 2003, under the conditions of giving interest on KRW 2,000,000,000 from the Director of the Department of the City of Daegu City of the Party. AP has been transferred every month from November 2, 2008 to the interest name of KRW 2,000,000,000,000,000 won, which is not yet returned.

-O, around July 2003, borrowed KRW 100,000 as investment money on condition that Q, who was the Chairperson of the N Party, will pay the interest of KRW 2,500,000,000,000,000,000,000 from the above A Q, on condition that Q would pay the interest of KRW 2,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00,00.

C at the time of November 2003, AS borrowed KRW 200,000,000,000 from AS, who was a professor of Npolitical Central Political Training Institute, as a loan for investment. AS borrowed interest amounting to KRW 244,00,000,000,000,000,000,000,000,000,000,000,000,000,000.

D. At the time of July 204, BY 10 million won was borrowed from B. 0.2 to B. 07.2, from B. 05 to B. 07.2, from B. 00, to B. 10 billion won was loaned from B. 7.2 to B. 07, and from B. 9 to B. 300, from B. 100 to B. 700 to 300,000 won was refunded from B. 9 to B. 30,000 won on the condition that C. 200,000 won was refunded from B. 9 to B. 30,000 won was refunded from B. 70,000 won on the condition that C. 20,000 won was refunded from B. 30,000 won on the said terms and conditions that C. 107,000 won was refunded from C. 30,000 won on the said terms and conditions that C.

(3) The circumstances in which the Defendants lent money to 0 for the purpose of investment

① At the time of introduction by Defendant B around March 0, 199, at the time of the introduction, Defendant B operated a window for a period of two years within the AF store, which is a large retailer in Incheon BE, a pharmacy. The enemy did not recover KRW 30 million and closed down only as a loss.

② Along with the above circumstances, Defendant B recommended that he will pay interest on KRW 3,000 per month if he/she invested in his/her pharmacy business. Defendant B lent KRW 25,00,000 to Defendant B as investment money on April 20, 201. From that point to February 20, 2007, Defendant B lent KRW 265,000,000 over 14 times as investment money.

③ On the other hand, from the end of 2001 to the N Party Gyeongdo Party, this would give 3 copies per month to workers on duty who worked in the N Party Do Party from time to time make an investment in its pharmacy business. Defendant A actively recommended an investment. Defendant A, upon the said0 investment recommendation, lent 50 million won to this Party as an investment deposit, and Defendant A lent 4 times more than 200 million won as an investment deposit (in the case of Defendant A under an investigation by an investigation agency, 00 won would be required to make an investment in the pharmacy business, and thus, Defendant A’s first statement at the time of the said investigation agency to 10 million won to the effect that it would have been made an investment. However, it would be difficult to say that Defendant A made an investment first to have made an investment under the name of 10 million won and 200 won when Defendant A made an initial statement at the time of this court. However, it would be difficult to say that Defendant A made an investment first to have been made in this court.

④ Meanwhile, on May 31, 2006, Defendant A reported the public official’s property as a result of winning the 4th local election as the head of Franchis election, which was implemented on May 31, 2006, and reported the above loaned KRW 200 million to Defendant A.

(4) Around the time when the Defendants first lent money to 0 million won for the purpose of investment, the Defendants owned 2,000 shares out of 2,027 shares of 16,027, 200 shares of Gyeong-gun, Chungcheongnam-gun, Chungcheongnam-do, and BH religion land in Chungcheongnam-si, Chungcheongnam-do. As to the above Seopo-si forest land, the establishment registration of a neighboring mortgage was completed on November 2, 2004 with the mortgagee BD and maximum debt amount of 200 million won. In relation to the above Seopo-gun forest land, the establishment registration was completed on November 5, 2001 with regard to the establishment registration of a mortgage with the mortgagee BI and maximum debt amount of 50,000,000 won with respect to the above Seopo-si forest land. In addition, the donation was completed on April 2, 2004 with respect to the above Seopo-si religion land for the purpose of offsetting the ownership transfer registration to BJ under the name of set-off against the above money borrowed.

(5) Examining the loan relationship with 0-year financial institutions around the time when the Defendants first lent money to 0-years for investment purposes, this was a loan status of 50 million won from the National Bank on December 11, 2001, and 100 million won from the National Bank on July 18, 2002.

(6) Meanwhile, since around 2006, it became difficult to operate a pharmacy business due to the decrease in the sales of the pharmacy and the burden of interest on the money borrowed from the land in the name of investment, etc., and eventually, around November 2008, the Defendants did not return the entire principal borrowed from the land in the name of investment.

B. Article 45(1) of the Political Funds Act provides that anyone who contributes or receives political funds shall be punished by means not stipulated in this Act. Article 3 subparag. 2 of the same Act provides that "contributions" means all acts to provide political funds for individuals, supporters' associations and other persons. In such cases, where a third party bears or disburses expenses for political activities of a person who engages in a political activity, and money and valuables or facilities are leased free of charge, exemption from or reduction of an obligation, and other benefits are deemed contributions, and free lending of money is also included in the scope of contributions. However, in cases of a person engaged in a political activity, it may be possible to lend money to another person for a certain time in daily life. Thus, if the interest rate that a person engaged in a political activity agrees to receive as a contribution of political funds on the sole basis of a high rate of interest rate, it shall not be readily concluded that the Defendants received political funds under the pretext of making a contribution by taking into account the circumstances leading up to the lending of money on the basis of interest rate. Therefore, it is reasonable to determine whether the Defendants received money from other investors under the pretext of the purpose of this agreement.

C. However, the following circumstances revealed through the facts recognized as above and the facts of its recognition, i.e., ① before and after the date of borrowing money from the Defendants for the first time as the first time as investment money, this requires a large amount of money to expand its pharmacy business to nationwide large-scale discount stores; ②0 can be seen as a large amount of profit when investing in one’s pharmacy business in order to raise funds for such expansion of business; and, by actively soliciting the Defendants to make an investment, borrowed money for the purpose of paying high-interest (3.3 copies per month from 1.5 to 3rd) to many persons including the Defendants; ③ Defendant B did not seem to have lent money for the above purpose of lending money to the Defendants under the pretext of remarkably good conditions compared to others; ④ Defendant B was unable to offer money to the Defendants at the time of borrowing money under the pretext of 00 million won or 00 million won, and it was difficult for them to offer money to the Defendant under the pretext of making an investment in the forest and forest under the pretext of his own investment.

In light of the fact that the above real estate was disposed of to another person or registered the establishment of a mortgage, 60 years before and after the date of the first borrowing of money from the financial institution under the name of investment, it seems that 0 was difficult for the Defendants to obtain a considerable amount of credit loan from the financial institution, and only on credit, to obtain a loan from the financial institution. Whether it was possible to obtain a loan from the financial institution as security, as much as possible, it was unclear whether it was possible to obtain a certain amount of loan from the financial institution. 70 years before and after the bankruptcy, 708, 00 interest rate was paid to many persons, including the Defendants, who borrowed the above money as interest for the last several years until the date of the default on payment on November 208. 8 through 9, 2008.

In addition, it is difficult to believe that Defendant A refused to make a statement at an investigative agency around 2007 because it stated that Defendant A was merely about 1.5 minutes per month and that Defendant A was merely about 1.5 minutes per month and did not clearly lower the interest. Defendant A stated that it was merely about 1.5 minutes per month and that she did not express that she was able to pay her interest. Defendant A stated that she was able to return her principal to 006 and she did not know that she was able to pay her interest at the time of doping and that she was able to pay her interest for the first time on 1.5 minutes per month, and that it was difficult to say that she was able to make a statement that she was able to receive interest from Defendant A under the name of her own financial institution and that she was able to pay her interest for the first time in 2007 and that she was able to pay her interest to Defendant A-I and she was able to pay her interest for her own business.

Therefore, monetary transactions between the Defendants and 0 shall be deemed as ordinary transactions conducted in the course of borrowing money under the pretext of investment from many persons in order to raise funds for the expansion of pharmacy business. Although the Defendants received a high rate of interest equivalent to the third portion of each month in return for lending money, it shall not be deemed that the Defendants received a contribution of political funds.

5. Conclusion

Thus, each of the above facts charged against the defendants constitutes a case where there is no proof of crime, and thus, a judgment of innocence is rendered pursuant to the latter part of Article 325 of the