정치자금법 이해
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| Publication Date | 2024/01/31 |
| Pages/Weight/Size | 188*254*40mm |
| ISBN | 9791130345949 |
| Categories | 대학교재 > 법학계열 |
Description
이 책은 정치자금법의 중요성과 실무적 적용 가능성을 강조하기 위하여 기획되었다. 정치자금법의 기본원리부터 자금조달과 사용, 모니터링과 제재 등 다양한 주제를 다루며, 실무적 관점에서 정치자금법을 이해하고 적용시키는 것을 돕고자 노력하였다.
〈정치자금법 이해: 이론과 실제, 그리고 전망〉이라는 제목에 걸맞게 「정치자금법」 각 조항을 순차적으로 해설하면서 법 이론과 함께 「공직선거법」 등 타 정치관계법과의 관계 등을 깊게 탐구하였다, 판례 및 중앙선거관리위원회 행정해석 등 구체적 타당성이 구현되는 실제를 탐색하고, 해외 정치자금 제도 소개를 통한 폭넓은 시야 확보와 더불어 품질 높은 정치자금 제도 개선 방안도 모색하였다.
〈정치자금법 이해: 이론과 실제, 그리고 전망〉이라는 제목에 걸맞게 「정치자금법」 각 조항을 순차적으로 해설하면서 법 이론과 함께 「공직선거법」 등 타 정치관계법과의 관계 등을 깊게 탐구하였다, 판례 및 중앙선거관리위원회 행정해석 등 구체적 타당성이 구현되는 실제를 탐색하고, 해외 정치자금 제도 소개를 통한 폭넓은 시야 확보와 더불어 품질 높은 정치자금 제도 개선 방안도 모색하였다.
Contents
제1장 / 총론
1 정치자금의 중요성························································································ 2
2 정치자금의 정의··························································································· 3
3 각국의 정치자금 정의···················································································· 5
4 정치자금의 구분·························································································· 6
가. 선거비용······································································································6
1) 선거공영제 / 7 2) 선거비용제한액 / 9
3) 선거비용의 보전 / 9 4) 선거비용보전의 제한 / 9
5) 당선무효된 자 등의 비용반환 / 10
나. 선거비용외 정치자금····················································································· 10
5 정치자금의 규제 필요성················································································12
가. 규제의 필요성····························································································· 12
나. 정치자금 규제에 대한 세계 동향······································································· 12
다. 규제의 방향································································································ 14
6 입법연혁···································································································15
7 정치자금법의 목적 ······················································································20
제1조(목적)
가. 정치자금의 적정한 제공 보장·········································································· 20
나. 정치자금의 수입과 지출내역 공개····································································· 20
다. 정치자금과 관련한 부정 방지·········································································· 20
라. 민주정치의 건전한 발전················································································· 21
8 「정치자금법」의 기본원칙··············································································21
제2장 / 「정치자금법」과 타법과의 관계
1 「정치자금법」과 헌법·····················································································24
2 각국의 정치자금 관련 헌법규정 비교································································24
3 「정치자금법」과 「공직선거법」·········································································25
가. 선거운동과 정치활동····················································································· 25
나. 「정치자금법」과 「공직선거법」의 연관································································ 26
1) 선거권과 피선거권 제한 / 27 2) 당선무효 / 27
3) 공무담임 등의 제한 등 / 30 4) 분리 선고 / 33
5) 공소시효 / 38 6) 「정치자금법」과 「공직선거법」의 ‘보칙’ 규정 비교 / 39
4 「정치자금법」과 「정당법」··············································································40
5 「정치자금법」상 현행 제도·············································································41
제3장 / 정치자금 부정수수
제2조(기본원칙) 제1항
제3조(정의)
제45조(정치자금부정수수죄) 제1항
1 의의·········································································································45
가. 「정치자금법」 제2조와 제3조 정치자금의 정의····················································· 45
나. 「정치자금법」 제45조 제1항 개요····································································· 46
다. 「정치자금법」 제45조 제1항 위반죄와 당선무효 등 제재········································· 47
2 ‘정치활동을 하는 자’·····················································································47
가. 의미········································································································· 47
나. ‘정치활동을 하는 사람’에 해당하는 사례····························································· 48
다. ‘정치활동을 하는 사람’에 해당하지 않는 사례······················································· 52
라. 정치자금과 교육감선거·················································································· 54
3 ‘정치활동을 위한 자금’··················································································58
가. 의의 및 판단기준························································································· 58
1) 정당, 공직선거 당선자, 후보자, 후원회 · 정당의 간부 등 / 58
2) 그 밖에 정치활동을 하는 자 / 58
나. ‘정치활동을 위한 자금’에 해당되는 사례····························································· 59
다. ‘정치활동을 위한 자금’에 해당되지 않는 사례······················································· 66
4 금전 등 일체······························································································70
5 무상대여···································································································80
가. 의미 및 판단방법 ······················································································· 80
나. 유상대여와 차이·························································································· 82
다. 무상대여의 목적물······················································································· 86
6 채무의 면제 · 경감 그 밖의 이익·······································································87
7 기부·········································································································87
8 범의 등·····································································································89
9 ‘대향범’ 문제······························································································92
10 기수시기·································································································93
11 친족간 특례······························································································97
12 죄수관계··································································································99
가. 제45조 제1항과 제45조 제2항········································································ 99
나. 포괄일죄···································································································· 99
다. 정치자금범죄와 뇌물죄················································································ 101
라. 정치자금범죄와 정당법위반죄······································································· 102
마. 정치자금범죄와 공직선거법위반죄·································································· 103
13 몰수와 추징···························································································· 103
14 중앙선거관리위원회 행정해석····································································· 107
가. 「정치자금법」위반으로 본 사례······································································ 107
1) 정당과 당원의 정치활동 관련 / 107
2) 국회의원, 지방의원, 자치단체장의 정치활동 관련 / 108
3) 기타 정치활동을 하는 자의 정치활동 관련 / 110
나. 「정치자금법」위반으로 보지 아니한 사례·························································· 110
1) 정당과 당원의 정치활동 관련 / 110
2) 국회의원, 지방의원, 자치단체장의 정치활동 관련 / 112
3) 기타 정치활동을 하는 자의 정치활동 관련 / 113
15 정치자금법상 소셜미디어 수익활동 관련 기준·················································· 115
제도 개선 소셜미디어 후원서비스를 통한 후원금 모금 허용과 출판기념회를 통한 음성적인 정치자금 모금 차단 119
제4장 / 정치활동 경비외 지출
제2조(기본원칙)제3항
1 의의······································································································· 122
2 판례······································································································ 125
3 중앙선거관리위원회 행정해석 ····································································· 128
가. 정치치자금 사용이 허용되는 사례··································································· 128
1) 정당의 경비 지출 관련 / 128 2) 국회의원 관련 경비 / 129
3) 장학금 관련 경비 / 138 4) 변호사 선임비용 · 소송비용 관련 / 139
나. 정치자금 사용이 허용되지 않는 사례······························································· 142
1) 정당(창준위) 경비 지출 / 142 2) 국회의원 경비 지출 / 142
4 처벌······································································································ 143
제도 개선 정치자금 사적 사용 규제 강화 144
제5장 / 비실명방법 등 정치자금 기부 · 지출
제2조(기본원칙)제4항
1 의의······································································································· 146
2 판례······································································································ 148
3 처벌······································································································ 149
제6장 / 타인 명의 정치자금 기부
제2조(기본원칙)제5항
1 의의······································································································· 152
2 판례······································································································ 154
3 처벌······································································································ 156
제7장 / 단체 등의 정치자금 기부 · 수수
제31조(기부의 제한)
1 의의······································································································· 158
2 입법 연혁································································································ 160
3 각국의 입법례·························································································· 160
4 구성요건································································································· 162
5 판례······································································································ 164
가. ‘단체와 관련된’ 자금의 판단기준···································································· 164
나. ‘단체와 관련된’ 자금으로 본 사례··································································· 166
다. ‘단체와 관련된’ 자금으로 보지 않는 사례·························································· 169
6 중앙선거관리위원회의 행정해석···································································· 171
가. SNS 활동 관련·························································································· 171
나. 기업의 수익금··························································································· 172
다. 법인 · 단체 자금 관련··················································································· 172
라. 지방의회 활동 관련···················································································· 173
마. 기타······································································································· 174
7 「정치자금법」위반죄와 불법영득의사의 업무상 횡령죄 성립 여부···························· 174
8 처벌······································································································ 175
제8장 / 특정행위 관련 기부 · 수수
제31조(특정행위와 관련한 기부의 제한)
1 의의······································································································· 179
2 입법 연혁································································································ 179
3 내용 ····································································································· 180
가. 특정행위와 관련한 정치자금 기부의 제한························································· 180
나. 공직선거에 있어서 특정인을 추천하는 일(제1호)················································ 180
1) 입법취지 / 180 2) 주체 / 181
3) ‘특정인을 후보자로 추천하는 일과 관련하여’ 의미 / 183 4) 주관적 구성요건 / 186
5) 「공직선거법」상 매수 및 이해유도죄와 「정치자금법」위반죄 죄수관계 / 187
다. 지방의회 의장 · 부의장 선거와 교육위원회 의장 · 부의장,
교육감 · 교육위원을 선출하는 일(제2호)··························································· 189
라. 공무원이 담당 · 처리하는 사무에 관한 청탁 또는 알선하는 일(제3호)························ 192
1) 주체 / 192 2) 공무원 / 192
3) 공무원이 담당 · 처리하는 사무 / 195 4) 청탁 또는 알선 / 198
5) 정치자금과 뇌물의 관계 / 198
마. 일정한 법인과의 계약이나 그 처분에 의하여 재산상의 권리 · 이익을 취득하거나
이를 알선하는 일(제4호)·············································································· 199
1) 의의 / 199 2) 내용 / 199
4 중앙선거관리위원회 행정해석······································································· 200
5 처벌······································································································ 201
제9장 / 의사 억압 기부 알선
제33조(기부의 알선에 관한 제한)
1 의의······································································································· 204
2 내용······································································································ 205
가. ‘타인의 의사를 억압하는 방법’의 의미······························································ 205
나. ‘알선’의 의미····························································································· 205
3 판례······································································································ 206
4 처벌······································································································ 208
제10장 / 정치자금의 회계 및 보고 · 공개
제34조(회계책임자의 선임신고 등)
1 의의······································································································· 212
가. 회계책임자······························································································· 212
나. 회계책임자 임무 ······················································································· 212
다. 회계책임자 선임 및 겸임·············································································· 213
1) 회계책임자 선임신고 / 214 2) 회계책임자 겸임제한 / 215
라. 예금계좌 개설신고····················································································· 216
2 중앙선거관리위원회 행정해석······································································· 217
가. 선임권자의 회계책임자 겸임········································································· 217
나. 선거사무원 등의 회계책임자 겸임··································································· 217
다. 국회의원보좌관의 국회의원후원회 회계책임자 선임············································ 217
라. 당대표선거 단독 출마자에 대한 찬반투표 선거에서의 회계책임자 신고····················· 217
마. 새마을금고의 금융기관 해당여부···································································· 217
3 처벌······································································································ 218
제35조(회계책임자의 변경신고 등)
1 의의······································································································· 219
2 회계책임자 변경신고·················································································· 220
3 처벌······································································································ 220
제36조(회계책임자에 의한 수입·지출)
1 의의······································································································· 222
2 회계책임자에 의한 수입 · 지출······································································· 223
가. 회계책임자 수입 · 지출················································································· 223
나. 회계사무보조자 위임 지출············································································ 226
다. 회계책임자의 관리 · 통제 아래 지출································································· 227
3 정치자금 회계처리 원칙·············································································· 227
4 정치자금 지출 방법···················································································· 228
5 공직선거후보자 · 예비후보자의 선거운동비용 지출·············································· 229
6 후원회 등록 전에 지출의 원인이 발생한 용도 지출 가능여부································· 229
7 판례······································································································· 230
8 중앙선거관리위원회 행정해석······································································· 231
가. 정당 수입 · 지출························································································· 231
1) 당원집회 소요경비 지출 / 231 2) 당원협의회의 당원연수회 개최비용 / 232
3) 정당선거사무소의 후보자 경비지원 가능여부 등 / 232
나. 국회의원 수입 · 지출···················································································· 233
1) 국회의원의 해외에서 현금(정치자금) 사용 / 233
다. (예비)후보자 수입 · 지출··············································································· 233
1) 비례대표지방의회의원선거 인터넷광고비 집행 / 233
2) 정기적으로 자동이체를 통해 납부해 온 선거사무소 관리비 지출 / 233
3) 예비후보자등록 전부터 자동이체를 통해 납부해 온 당비 지출 / 233
4) 선거사무장 등의 수당 · 실비 지출 등 / 234
라. 경선후보자 수입 · 지출················································································· 234
9 처벌······································································································ 234
제37조(회계장부의 비치 및 기재)
1 의의······································································································· 236
2 회계장부의 종류························································································ 237
가. 정당(대통령선거 정당추천후보자 선거사무소 · 선거연락소, 비례대표국회의원선거 및
비례대표지방의회의원선거 선거사무소 포함)····················································· 237
1) 수입 · 지출계정 (정치자금사무관리 규칙 별표 1 ‘수입 · 지출과목 해소표’ 참조) / 237
2) 회계장부: 〈규칙 별지 제33호 서식〉 / 241
나. 후원회···································································································· 241
1) 수입 · 지출계정 / 241 2) 수입계정 / 241
3) 지출계정 / 242 4) 회계장부: 〈규칙 별지 제33호 서식〉 / 243
다. 후원회를 둔 국회의원, 대통령선거경선후보자, 당대표경선후보자등, 공직선거
후보자 · 예비후보자···················································································· 245
1) 수입 · 지출계정 / 245 2) 수입계정 / 245
3) 지출계정 / 246 4) 회계장부: 〈규칙 별지 제34호 서식〉 / 246
3 지출방법································································································· 246
4 지출시기································································································· 247
5 회계장부 비치 · 기재··················································································· 247
가. 비치장부·································································································· 247
나. 장부 기재요령··························································································· 247
다. 기재시 유의사항 ······················································································· 248
6 회계장부 마감·························································································· 248
가. 마감기한·································································································· 248
나. 마감방법·································································································· 249
7 판례······································································································· 249
8 헌법재판소 결정······················································································· 250
9 처벌······································································································ 252
제38조(정당의 회계처리)
1 의의······································································································· 253
2 정당의 회계처리························································································ 254
가. 당헌 · 당규로 정하여야 할 회계처리 절차 등······················································· 254
나. 매분기 분기별 회계처리상황 확인 · 검사 및 그 결과 공개······································· 254
3 정치자금 지출처리····················································································· 255
가. 구입 · 지급품의·························································································· 255
나. 지출원인행위(계약체결 등)··········································································· 255
다. 지출결의서······························································································· 255
4 중앙선거관리위원회 행정해석······································································· 256
가. 중앙당의 당사 임대 및 회계처리····································································· 256
나. 정당의 국회의원 사무소운영비 등 지원···························································· 256
다. 정당이 지방의회의원선거 후보자등에게 선거지원금 지급······································ 256
라. 중앙당의 당사 임대 및 임대수입료 회계처리······················································ 257
5 처벌······································································································ 257
제39조(영수증 그 밖의 증빙서류)
1 의의 ······································································································ 257
2 영수증 구비 의무······················································································· 258
3 영수증 구비 예외 사유················································································ 259
4 회계보고시 영수증 제출 생략사유·································································· 260
5 공직선거에서 회계보고 관련 자주 묻는 질문 ···················································· 260
가. 후보자가 자신이 소유하고 있는 자동차 등을 공개장소 연설 · 대담을 위하여 사용하는
경우 회계처리방법····················································································· 260
나. 선거운동과 관련하여 선거사무관계자, 자원봉사자 또는 후보자의 친족 소유 차량을
무상으로 지원받을 수 있는지 여부와 가능한 경우 그 회계처리 방법························· 261
다. (예비)후보자 본인 소유의 건물(사무실)을 임차한 경우 임차료를 지급할 수 있는지 여부······· 263
라. 후보자가 타인으로부터 금전을 차입하는 경우의 회계처리방법······························· 263
마. 선거사무소 개소식 시 내방객들이 가져온 음료수 등의 회계처리방법························ 263
바. 선거사무소나 선거연락소에서 단순 업무처리(워드작업, 차대접, 청소 등)를 담당한
노무자에게 지급할 수 있는 임금의 범위··························································· 263
제40조(회계보고)
1 의의 ······································································································ 267
2 회계보고 주체·························································································· 267
3 회계보고 시기·························································································· 268
가. 정당······································································································· 269
1) 공직선거에 참여하지 아니한 연도 / 269
2) 전국단위로 실시되는 공직선거에 참여한 연도 / 269
3) 일부 지역에서 실시되는 공직선거의 보궐선거 등에 참여한 연도 / 269
4) 기타(사유발생 정당, 후원회를 둔 중앙당창당준비위원회) / 269
나. 중앙당 후원회(중앙당창당준비위원회 후원회 포함) 및 국회의원 후원회···················· 270
다. 대통령선거경선후보자 및 당대표경선후보자등과 그 후원회··································· 270
라. 공직선거의 후보자 · 예비후보자 및 그 후원회····················································· 270
마. 후원회를 둔 국회의원·················································································· 271
4 회계보고 사항·························································································· 271
5 회계보고 서류·························································································· 272
6 정치자금 지원내역보고··············································································· 272
가. 지원금···································································································· 272
나. 지원금 수입 · 지출······················································································ 273
다. 지원금 사용잔액 등 정산방법········································································ 273
라. 정치자금 지원금 내역 보고··········································································· 274
7 후원회의 기부자명단 보고············································································ 274
8 연대서명 · 날인························································································· 275
9 판례······································································································ 275
10 중앙선거관리위원회 행정해석····································································· 276
가. 선거일 후에 후원금 기부 등·········································································· 276
나. 예비경선 탈락자의 회계보고 기한 등······························································· 276
다. 당선된 국회의원후원회의 회계처리································································· 276
11 처벌······································································································ 277
제41조(회계보고의 자체 감사 등)
1 의의······································································································· 278
2 내용······································································································ 278
가. 정치자금 회계처리에 대한 내부통제································································ 278
1) 대의기관(그 수임기관 포함) 또는 예산결산위원회의 심사 · 의결 / 278
2) 자체 감사기관 감사 / 279
나. 정치자금 회계처리에 대한 외부통제 ······························································· 279
1) 공인회계사에 의한 감사 / 279 2) 회계보고 내역에 대한 공고 / 280
3) 재산 및 수입 · 지출내역 등 회계보고서에 대한 열람 · 이의신청 및 사본교부 / 280
4) 선거관리위원회의 회계관련 조사권 / 280
3 처벌······································································································ 280
제42조(회계보고서 등의 열람 및 사본교부)
1 의의······································································································· 281
2 입법 연혁································································································ 282
3 회계보고서 등의 열람 및 사본교부································································· 283
가. 회계보고내역 등 공고·················································································· 283
나. 회계보고서 등의 열람·················································································· 283
1) 장소설비 / 284 2) 열람기간과 대상 / 284
다. 회계보고서 등의 사본교부············································································ 286
라. 열람 및 사본교부대상 서류··········································································· 287
4 「공공기관의 정보공개에 관한법률」의 비공개 사유 해당여부································· 288
5 정치자금 기부내역의 정치적 목적 이용 금지····················································· 290
6 회계보고 내역에 관한 이의신청····································································· 291
가. 이의신청 기간 · 주체 및 방법········································································· 291
나. 이의신청에 대한 처리 ················································································· 291
7 처벌······································································································· 292
8 각국의 회계보고 공개 ················································································ 292
가. 각국의 회계보고 공개 현황··········································································· 292
나. 영국 · 미국의 회계보고 · 공개 시스템································································ 294
1) 영국: 선거위원회의 회계보고시스템 / 294 2) 미국 / 294
다. 한국과 미국의 정치자금 공개제도 비교···························································· 298
라. 한국의 오픈와치(openwatch.kr)··································································· 299
제도 개선 정치자금 수입 · 지출의 상시 인터넷 공개 300
제43조(자료제출요구 등)
1 의의······································································································· 302
2 선거비용의 수입과 지출 관련 조사권······························································ 302
가. 조사주체·································································································· 302
나. 조사사유·································································································· 303
다. 조사범위·································································································· 303
3 정치자금범죄 조사권(「정치자금법」 제52조)과의 관계········································· 303
가. 제43조와 제52조의 조사권 내용 비교····························································· 303
나. 제43조와 제52조의 벌칙 비교······································································· 304
4 타 법률과의 충돌문제················································································· 304
5 처벌······································································································ 305
제44조(회계장부 등의 인계·보존)
1 의의······································································································· 306
2 회계장부 등 선임권자에 대한 인계································································· 306
3 회계장부 등 보존 · 위탁··············································································· 307
4 처벌······································································································ 307
제11장 / 선거비용관련 주요위반행위
제49조(선거비용관련 위반행위에 관한 벌칙)
1 의의······································································································· 311
2 주요 쟁점································································································ 314
가. 회계보고서 미제출 등의 죄(제1항)·································································· 314
1) 의의 / 314 2) 주체 / 316
3) 행위 / 316 4) 판례 / 317
5) 죄수 관계 / 322
나. 증빙서류 허위기재죄(제2항 제6호)································································· 324
1) 의의 / 324 2) 영수증 그 밖의 증빙서류 / 324
3) 판례 / 325
다. 비회계책임자 수입 · 지출죄(제2항 제3호)·························································· 327
1) 주체 / 327 2) 회계사무보조자에 의한 지출 여부 / 328
3) 정치자금 지출사유 발생 시기에 따라 회계책임자에 의한 지출 적용범위 / 329
4) 후보자가 개인재산을 신고된 회계책임자 및 ·
예금계좌를 통하여 수입 · 지출하지 아니한 경우 / 329
5) 「정치자금법」 제49조 제2항 제3호와 「공직선거법」의 매수 및 ·
이해유도죄 등과의 법조경합 관계 여부 / 330
라. 미신고계좌 수입 · 지출죄(제2항 제3호)···························································· 330
1) 주체 / 330 2) 선거관리위원회에 신고되지 아니한 정당의 예금계좌를 통한 수입 · 지출 / 331
3) 회계책임자의 선임 · 신고전 예금계좌를 통하지 않은 선거비용 수입 · 지출행위 / 331
4) 죄수관계와 분리 선고 / 332 5) 선거사무장 등의 수당 · 실비 지급 / 332
마. 예금계좌 및 회계책임자 미신고죄(제2항 제2호)················································· 332
제도 개선 허위 선거비용 보전청구 제제 방안 등 333
제12장 / 당비
제4조(당비), 제5조(당비영수증)
1 의의······································································································· 337
2 한국 정당의 당원수와 당비현황(2022. 12. 31. 현재)········································· 338
가. 당원의 수································································································· 338
1) 정당별 당원의 수 / 338 2) 선거인수 대비 당원의 수 / 338
나. 당비현황 ································································································· 339
1) 전년대비 당비납부자 현황 / 339 2) 정당별 당비납부자 현황 / 340
3 각국의 당비 현황······················································································· 340
4 내용······································································································ 341
가. 「정당법」과의 관계····················································································· 341
나. 특별당비·································································································· 342
다. 당비의 회계보고························································································ 343
라. 후원당원 및 후원당비 제도와 성격 등······························································ 343
마. 공무원 신분 취득후 당비납부········································································ 344
바. 「공직선거법」상 기부행위 해당여부································································· 345
사. 타인 명의 · 가명으로 납부된 당비의 처리·························································· 345
아. 「정치자금법」과 「정당법」상 국고 귀속대상······················································· 346
1) 정치자금법 / 346 2) 「정당법」 / 348
자. 당비영수증······························································································· 348
1) 당비영수증 제작 / 348 2) 영수증 발행 / 349
3) 당비영수증과 후원회의 정치자금영수증 비교 / 350
5 중앙선거관리위원회 행정해석······································································· 351
가. 중앙당 등록 전 당비 납부 가능······································································· 351
나. 같은 정당의 다른 시 · 도당에의 당비납부 등······················································· 352
다. 정당운영위원회 회비의 성격 및 경선기탁금 반환················································ 352
라. 급여에서 당비 공제 납부·············································································· 352
마. 당원들의 당비조성 활동··············································································· 353
바. 법인의 당비 납부······················································································· 353
사. 당사랑채권에 의한 당비 모금········································································ 353
아. 당비 등의 면세·························································································· 353
자. 창당준비위원회에 기부한 당비의 면세혜택························································ 353
차. 「KT포인트」로 당비납부··············································································· 354
카. 은행지로를 통한 당비 납부··········································································· 354
타. 전화결제시스템 등에 의한 당비 납부 시 당비영수증 교부시기································ 354
파. 당비총액영수증 교부··················································································· 354
6 벌칙······································································································ 354
제13장 / 후원회와 후원금
제6조(후원회지정권자)
1 후원회제도 의의························································································ 359
2 후원금에 대한 법적 규제············································································· 359
가. 규제 필요성······························································································ 359
나. 규제 내용································································································· 360
다. 후원회의 유사기관화 금지············································································ 361
3 후원회지정권자 확대·················································································· 362
4 중앙선거관리위원회 행정해석······································································· 363
가. 정당의 청년최고위원경선후보자의 후원회 지정·················································· 363
나. 정당의 부대표경선후보자의 후원회 지정·························································· 363
다. 최고위원 선출을 위한 당내경선후보자후원회 지정·············································· 364
라. 예비경선후보자로 등록한 자가 대통령선거
1 정치자금의 중요성························································································ 2
2 정치자금의 정의··························································································· 3
3 각국의 정치자금 정의···················································································· 5
4 정치자금의 구분·························································································· 6
가. 선거비용······································································································6
1) 선거공영제 / 7 2) 선거비용제한액 / 9
3) 선거비용의 보전 / 9 4) 선거비용보전의 제한 / 9
5) 당선무효된 자 등의 비용반환 / 10
나. 선거비용외 정치자금····················································································· 10
5 정치자금의 규제 필요성················································································12
가. 규제의 필요성····························································································· 12
나. 정치자금 규제에 대한 세계 동향······································································· 12
다. 규제의 방향································································································ 14
6 입법연혁···································································································15
7 정치자금법의 목적 ······················································································20
제1조(목적)
가. 정치자금의 적정한 제공 보장·········································································· 20
나. 정치자금의 수입과 지출내역 공개····································································· 20
다. 정치자금과 관련한 부정 방지·········································································· 20
라. 민주정치의 건전한 발전················································································· 21
8 「정치자금법」의 기본원칙··············································································21
제2장 / 「정치자금법」과 타법과의 관계
1 「정치자금법」과 헌법·····················································································24
2 각국의 정치자금 관련 헌법규정 비교································································24
3 「정치자금법」과 「공직선거법」·········································································25
가. 선거운동과 정치활동····················································································· 25
나. 「정치자금법」과 「공직선거법」의 연관································································ 26
1) 선거권과 피선거권 제한 / 27 2) 당선무효 / 27
3) 공무담임 등의 제한 등 / 30 4) 분리 선고 / 33
5) 공소시효 / 38 6) 「정치자금법」과 「공직선거법」의 ‘보칙’ 규정 비교 / 39
4 「정치자금법」과 「정당법」··············································································40
5 「정치자금법」상 현행 제도·············································································41
제3장 / 정치자금 부정수수
제2조(기본원칙) 제1항
제3조(정의)
제45조(정치자금부정수수죄) 제1항
1 의의·········································································································45
가. 「정치자금법」 제2조와 제3조 정치자금의 정의····················································· 45
나. 「정치자금법」 제45조 제1항 개요····································································· 46
다. 「정치자금법」 제45조 제1항 위반죄와 당선무효 등 제재········································· 47
2 ‘정치활동을 하는 자’·····················································································47
가. 의미········································································································· 47
나. ‘정치활동을 하는 사람’에 해당하는 사례····························································· 48
다. ‘정치활동을 하는 사람’에 해당하지 않는 사례······················································· 52
라. 정치자금과 교육감선거·················································································· 54
3 ‘정치활동을 위한 자금’··················································································58
가. 의의 및 판단기준························································································· 58
1) 정당, 공직선거 당선자, 후보자, 후원회 · 정당의 간부 등 / 58
2) 그 밖에 정치활동을 하는 자 / 58
나. ‘정치활동을 위한 자금’에 해당되는 사례····························································· 59
다. ‘정치활동을 위한 자금’에 해당되지 않는 사례······················································· 66
4 금전 등 일체······························································································70
5 무상대여···································································································80
가. 의미 및 판단방법 ······················································································· 80
나. 유상대여와 차이·························································································· 82
다. 무상대여의 목적물······················································································· 86
6 채무의 면제 · 경감 그 밖의 이익·······································································87
7 기부·········································································································87
8 범의 등·····································································································89
9 ‘대향범’ 문제······························································································92
10 기수시기·································································································93
11 친족간 특례······························································································97
12 죄수관계··································································································99
가. 제45조 제1항과 제45조 제2항········································································ 99
나. 포괄일죄···································································································· 99
다. 정치자금범죄와 뇌물죄················································································ 101
라. 정치자금범죄와 정당법위반죄······································································· 102
마. 정치자금범죄와 공직선거법위반죄·································································· 103
13 몰수와 추징···························································································· 103
14 중앙선거관리위원회 행정해석····································································· 107
가. 「정치자금법」위반으로 본 사례······································································ 107
1) 정당과 당원의 정치활동 관련 / 107
2) 국회의원, 지방의원, 자치단체장의 정치활동 관련 / 108
3) 기타 정치활동을 하는 자의 정치활동 관련 / 110
나. 「정치자금법」위반으로 보지 아니한 사례·························································· 110
1) 정당과 당원의 정치활동 관련 / 110
2) 국회의원, 지방의원, 자치단체장의 정치활동 관련 / 112
3) 기타 정치활동을 하는 자의 정치활동 관련 / 113
15 정치자금법상 소셜미디어 수익활동 관련 기준·················································· 115
제도 개선 소셜미디어 후원서비스를 통한 후원금 모금 허용과 출판기념회를 통한 음성적인 정치자금 모금 차단 119
제4장 / 정치활동 경비외 지출
제2조(기본원칙)제3항
1 의의······································································································· 122
2 판례······································································································ 125
3 중앙선거관리위원회 행정해석 ····································································· 128
가. 정치치자금 사용이 허용되는 사례··································································· 128
1) 정당의 경비 지출 관련 / 128 2) 국회의원 관련 경비 / 129
3) 장학금 관련 경비 / 138 4) 변호사 선임비용 · 소송비용 관련 / 139
나. 정치자금 사용이 허용되지 않는 사례······························································· 142
1) 정당(창준위) 경비 지출 / 142 2) 국회의원 경비 지출 / 142
4 처벌······································································································ 143
제도 개선 정치자금 사적 사용 규제 강화 144
제5장 / 비실명방법 등 정치자금 기부 · 지출
제2조(기본원칙)제4항
1 의의······································································································· 146
2 판례······································································································ 148
3 처벌······································································································ 149
제6장 / 타인 명의 정치자금 기부
제2조(기본원칙)제5항
1 의의······································································································· 152
2 판례······································································································ 154
3 처벌······································································································ 156
제7장 / 단체 등의 정치자금 기부 · 수수
제31조(기부의 제한)
1 의의······································································································· 158
2 입법 연혁································································································ 160
3 각국의 입법례·························································································· 160
4 구성요건································································································· 162
5 판례······································································································ 164
가. ‘단체와 관련된’ 자금의 판단기준···································································· 164
나. ‘단체와 관련된’ 자금으로 본 사례··································································· 166
다. ‘단체와 관련된’ 자금으로 보지 않는 사례·························································· 169
6 중앙선거관리위원회의 행정해석···································································· 171
가. SNS 활동 관련·························································································· 171
나. 기업의 수익금··························································································· 172
다. 법인 · 단체 자금 관련··················································································· 172
라. 지방의회 활동 관련···················································································· 173
마. 기타······································································································· 174
7 「정치자금법」위반죄와 불법영득의사의 업무상 횡령죄 성립 여부···························· 174
8 처벌······································································································ 175
제8장 / 특정행위 관련 기부 · 수수
제31조(특정행위와 관련한 기부의 제한)
1 의의······································································································· 179
2 입법 연혁································································································ 179
3 내용 ····································································································· 180
가. 특정행위와 관련한 정치자금 기부의 제한························································· 180
나. 공직선거에 있어서 특정인을 추천하는 일(제1호)················································ 180
1) 입법취지 / 180 2) 주체 / 181
3) ‘특정인을 후보자로 추천하는 일과 관련하여’ 의미 / 183 4) 주관적 구성요건 / 186
5) 「공직선거법」상 매수 및 이해유도죄와 「정치자금법」위반죄 죄수관계 / 187
다. 지방의회 의장 · 부의장 선거와 교육위원회 의장 · 부의장,
교육감 · 교육위원을 선출하는 일(제2호)··························································· 189
라. 공무원이 담당 · 처리하는 사무에 관한 청탁 또는 알선하는 일(제3호)························ 192
1) 주체 / 192 2) 공무원 / 192
3) 공무원이 담당 · 처리하는 사무 / 195 4) 청탁 또는 알선 / 198
5) 정치자금과 뇌물의 관계 / 198
마. 일정한 법인과의 계약이나 그 처분에 의하여 재산상의 권리 · 이익을 취득하거나
이를 알선하는 일(제4호)·············································································· 199
1) 의의 / 199 2) 내용 / 199
4 중앙선거관리위원회 행정해석······································································· 200
5 처벌······································································································ 201
제9장 / 의사 억압 기부 알선
제33조(기부의 알선에 관한 제한)
1 의의······································································································· 204
2 내용······································································································ 205
가. ‘타인의 의사를 억압하는 방법’의 의미······························································ 205
나. ‘알선’의 의미····························································································· 205
3 판례······································································································ 206
4 처벌······································································································ 208
제10장 / 정치자금의 회계 및 보고 · 공개
제34조(회계책임자의 선임신고 등)
1 의의······································································································· 212
가. 회계책임자······························································································· 212
나. 회계책임자 임무 ······················································································· 212
다. 회계책임자 선임 및 겸임·············································································· 213
1) 회계책임자 선임신고 / 214 2) 회계책임자 겸임제한 / 215
라. 예금계좌 개설신고····················································································· 216
2 중앙선거관리위원회 행정해석······································································· 217
가. 선임권자의 회계책임자 겸임········································································· 217
나. 선거사무원 등의 회계책임자 겸임··································································· 217
다. 국회의원보좌관의 국회의원후원회 회계책임자 선임············································ 217
라. 당대표선거 단독 출마자에 대한 찬반투표 선거에서의 회계책임자 신고····················· 217
마. 새마을금고의 금융기관 해당여부···································································· 217
3 처벌······································································································ 218
제35조(회계책임자의 변경신고 등)
1 의의······································································································· 219
2 회계책임자 변경신고·················································································· 220
3 처벌······································································································ 220
제36조(회계책임자에 의한 수입·지출)
1 의의······································································································· 222
2 회계책임자에 의한 수입 · 지출······································································· 223
가. 회계책임자 수입 · 지출················································································· 223
나. 회계사무보조자 위임 지출············································································ 226
다. 회계책임자의 관리 · 통제 아래 지출································································· 227
3 정치자금 회계처리 원칙·············································································· 227
4 정치자금 지출 방법···················································································· 228
5 공직선거후보자 · 예비후보자의 선거운동비용 지출·············································· 229
6 후원회 등록 전에 지출의 원인이 발생한 용도 지출 가능여부································· 229
7 판례······································································································· 230
8 중앙선거관리위원회 행정해석······································································· 231
가. 정당 수입 · 지출························································································· 231
1) 당원집회 소요경비 지출 / 231 2) 당원협의회의 당원연수회 개최비용 / 232
3) 정당선거사무소의 후보자 경비지원 가능여부 등 / 232
나. 국회의원 수입 · 지출···················································································· 233
1) 국회의원의 해외에서 현금(정치자금) 사용 / 233
다. (예비)후보자 수입 · 지출··············································································· 233
1) 비례대표지방의회의원선거 인터넷광고비 집행 / 233
2) 정기적으로 자동이체를 통해 납부해 온 선거사무소 관리비 지출 / 233
3) 예비후보자등록 전부터 자동이체를 통해 납부해 온 당비 지출 / 233
4) 선거사무장 등의 수당 · 실비 지출 등 / 234
라. 경선후보자 수입 · 지출················································································· 234
9 처벌······································································································ 234
제37조(회계장부의 비치 및 기재)
1 의의······································································································· 236
2 회계장부의 종류························································································ 237
가. 정당(대통령선거 정당추천후보자 선거사무소 · 선거연락소, 비례대표국회의원선거 및
비례대표지방의회의원선거 선거사무소 포함)····················································· 237
1) 수입 · 지출계정 (정치자금사무관리 규칙 별표 1 ‘수입 · 지출과목 해소표’ 참조) / 237
2) 회계장부: 〈규칙 별지 제33호 서식〉 / 241
나. 후원회···································································································· 241
1) 수입 · 지출계정 / 241 2) 수입계정 / 241
3) 지출계정 / 242 4) 회계장부: 〈규칙 별지 제33호 서식〉 / 243
다. 후원회를 둔 국회의원, 대통령선거경선후보자, 당대표경선후보자등, 공직선거
후보자 · 예비후보자···················································································· 245
1) 수입 · 지출계정 / 245 2) 수입계정 / 245
3) 지출계정 / 246 4) 회계장부: 〈규칙 별지 제34호 서식〉 / 246
3 지출방법································································································· 246
4 지출시기································································································· 247
5 회계장부 비치 · 기재··················································································· 247
가. 비치장부·································································································· 247
나. 장부 기재요령··························································································· 247
다. 기재시 유의사항 ······················································································· 248
6 회계장부 마감·························································································· 248
가. 마감기한·································································································· 248
나. 마감방법·································································································· 249
7 판례······································································································· 249
8 헌법재판소 결정······················································································· 250
9 처벌······································································································ 252
제38조(정당의 회계처리)
1 의의······································································································· 253
2 정당의 회계처리························································································ 254
가. 당헌 · 당규로 정하여야 할 회계처리 절차 등······················································· 254
나. 매분기 분기별 회계처리상황 확인 · 검사 및 그 결과 공개······································· 254
3 정치자금 지출처리····················································································· 255
가. 구입 · 지급품의·························································································· 255
나. 지출원인행위(계약체결 등)··········································································· 255
다. 지출결의서······························································································· 255
4 중앙선거관리위원회 행정해석······································································· 256
가. 중앙당의 당사 임대 및 회계처리····································································· 256
나. 정당의 국회의원 사무소운영비 등 지원···························································· 256
다. 정당이 지방의회의원선거 후보자등에게 선거지원금 지급······································ 256
라. 중앙당의 당사 임대 및 임대수입료 회계처리······················································ 257
5 처벌······································································································ 257
제39조(영수증 그 밖의 증빙서류)
1 의의 ······································································································ 257
2 영수증 구비 의무······················································································· 258
3 영수증 구비 예외 사유················································································ 259
4 회계보고시 영수증 제출 생략사유·································································· 260
5 공직선거에서 회계보고 관련 자주 묻는 질문 ···················································· 260
가. 후보자가 자신이 소유하고 있는 자동차 등을 공개장소 연설 · 대담을 위하여 사용하는
경우 회계처리방법····················································································· 260
나. 선거운동과 관련하여 선거사무관계자, 자원봉사자 또는 후보자의 친족 소유 차량을
무상으로 지원받을 수 있는지 여부와 가능한 경우 그 회계처리 방법························· 261
다. (예비)후보자 본인 소유의 건물(사무실)을 임차한 경우 임차료를 지급할 수 있는지 여부······· 263
라. 후보자가 타인으로부터 금전을 차입하는 경우의 회계처리방법······························· 263
마. 선거사무소 개소식 시 내방객들이 가져온 음료수 등의 회계처리방법························ 263
바. 선거사무소나 선거연락소에서 단순 업무처리(워드작업, 차대접, 청소 등)를 담당한
노무자에게 지급할 수 있는 임금의 범위··························································· 263
제40조(회계보고)
1 의의 ······································································································ 267
2 회계보고 주체·························································································· 267
3 회계보고 시기·························································································· 268
가. 정당······································································································· 269
1) 공직선거에 참여하지 아니한 연도 / 269
2) 전국단위로 실시되는 공직선거에 참여한 연도 / 269
3) 일부 지역에서 실시되는 공직선거의 보궐선거 등에 참여한 연도 / 269
4) 기타(사유발생 정당, 후원회를 둔 중앙당창당준비위원회) / 269
나. 중앙당 후원회(중앙당창당준비위원회 후원회 포함) 및 국회의원 후원회···················· 270
다. 대통령선거경선후보자 및 당대표경선후보자등과 그 후원회··································· 270
라. 공직선거의 후보자 · 예비후보자 및 그 후원회····················································· 270
마. 후원회를 둔 국회의원·················································································· 271
4 회계보고 사항·························································································· 271
5 회계보고 서류·························································································· 272
6 정치자금 지원내역보고··············································································· 272
가. 지원금···································································································· 272
나. 지원금 수입 · 지출······················································································ 273
다. 지원금 사용잔액 등 정산방법········································································ 273
라. 정치자금 지원금 내역 보고··········································································· 274
7 후원회의 기부자명단 보고············································································ 274
8 연대서명 · 날인························································································· 275
9 판례······································································································ 275
10 중앙선거관리위원회 행정해석····································································· 276
가. 선거일 후에 후원금 기부 등·········································································· 276
나. 예비경선 탈락자의 회계보고 기한 등······························································· 276
다. 당선된 국회의원후원회의 회계처리································································· 276
11 처벌······································································································ 277
제41조(회계보고의 자체 감사 등)
1 의의······································································································· 278
2 내용······································································································ 278
가. 정치자금 회계처리에 대한 내부통제································································ 278
1) 대의기관(그 수임기관 포함) 또는 예산결산위원회의 심사 · 의결 / 278
2) 자체 감사기관 감사 / 279
나. 정치자금 회계처리에 대한 외부통제 ······························································· 279
1) 공인회계사에 의한 감사 / 279 2) 회계보고 내역에 대한 공고 / 280
3) 재산 및 수입 · 지출내역 등 회계보고서에 대한 열람 · 이의신청 및 사본교부 / 280
4) 선거관리위원회의 회계관련 조사권 / 280
3 처벌······································································································ 280
제42조(회계보고서 등의 열람 및 사본교부)
1 의의······································································································· 281
2 입법 연혁································································································ 282
3 회계보고서 등의 열람 및 사본교부································································· 283
가. 회계보고내역 등 공고·················································································· 283
나. 회계보고서 등의 열람·················································································· 283
1) 장소설비 / 284 2) 열람기간과 대상 / 284
다. 회계보고서 등의 사본교부············································································ 286
라. 열람 및 사본교부대상 서류··········································································· 287
4 「공공기관의 정보공개에 관한법률」의 비공개 사유 해당여부································· 288
5 정치자금 기부내역의 정치적 목적 이용 금지····················································· 290
6 회계보고 내역에 관한 이의신청····································································· 291
가. 이의신청 기간 · 주체 및 방법········································································· 291
나. 이의신청에 대한 처리 ················································································· 291
7 처벌······································································································· 292
8 각국의 회계보고 공개 ················································································ 292
가. 각국의 회계보고 공개 현황··········································································· 292
나. 영국 · 미국의 회계보고 · 공개 시스템································································ 294
1) 영국: 선거위원회의 회계보고시스템 / 294 2) 미국 / 294
다. 한국과 미국의 정치자금 공개제도 비교···························································· 298
라. 한국의 오픈와치(openwatch.kr)··································································· 299
제도 개선 정치자금 수입 · 지출의 상시 인터넷 공개 300
제43조(자료제출요구 등)
1 의의······································································································· 302
2 선거비용의 수입과 지출 관련 조사권······························································ 302
가. 조사주체·································································································· 302
나. 조사사유·································································································· 303
다. 조사범위·································································································· 303
3 정치자금범죄 조사권(「정치자금법」 제52조)과의 관계········································· 303
가. 제43조와 제52조의 조사권 내용 비교····························································· 303
나. 제43조와 제52조의 벌칙 비교······································································· 304
4 타 법률과의 충돌문제················································································· 304
5 처벌······································································································ 305
제44조(회계장부 등의 인계·보존)
1 의의······································································································· 306
2 회계장부 등 선임권자에 대한 인계································································· 306
3 회계장부 등 보존 · 위탁··············································································· 307
4 처벌······································································································ 307
제11장 / 선거비용관련 주요위반행위
제49조(선거비용관련 위반행위에 관한 벌칙)
1 의의······································································································· 311
2 주요 쟁점································································································ 314
가. 회계보고서 미제출 등의 죄(제1항)·································································· 314
1) 의의 / 314 2) 주체 / 316
3) 행위 / 316 4) 판례 / 317
5) 죄수 관계 / 322
나. 증빙서류 허위기재죄(제2항 제6호)································································· 324
1) 의의 / 324 2) 영수증 그 밖의 증빙서류 / 324
3) 판례 / 325
다. 비회계책임자 수입 · 지출죄(제2항 제3호)·························································· 327
1) 주체 / 327 2) 회계사무보조자에 의한 지출 여부 / 328
3) 정치자금 지출사유 발생 시기에 따라 회계책임자에 의한 지출 적용범위 / 329
4) 후보자가 개인재산을 신고된 회계책임자 및 ·
예금계좌를 통하여 수입 · 지출하지 아니한 경우 / 329
5) 「정치자금법」 제49조 제2항 제3호와 「공직선거법」의 매수 및 ·
이해유도죄 등과의 법조경합 관계 여부 / 330
라. 미신고계좌 수입 · 지출죄(제2항 제3호)···························································· 330
1) 주체 / 330 2) 선거관리위원회에 신고되지 아니한 정당의 예금계좌를 통한 수입 · 지출 / 331
3) 회계책임자의 선임 · 신고전 예금계좌를 통하지 않은 선거비용 수입 · 지출행위 / 331
4) 죄수관계와 분리 선고 / 332 5) 선거사무장 등의 수당 · 실비 지급 / 332
마. 예금계좌 및 회계책임자 미신고죄(제2항 제2호)················································· 332
제도 개선 허위 선거비용 보전청구 제제 방안 등 333
제12장 / 당비
제4조(당비), 제5조(당비영수증)
1 의의······································································································· 337
2 한국 정당의 당원수와 당비현황(2022. 12. 31. 현재)········································· 338
가. 당원의 수································································································· 338
1) 정당별 당원의 수 / 338 2) 선거인수 대비 당원의 수 / 338
나. 당비현황 ································································································· 339
1) 전년대비 당비납부자 현황 / 339 2) 정당별 당비납부자 현황 / 340
3 각국의 당비 현황······················································································· 340
4 내용······································································································ 341
가. 「정당법」과의 관계····················································································· 341
나. 특별당비·································································································· 342
다. 당비의 회계보고························································································ 343
라. 후원당원 및 후원당비 제도와 성격 등······························································ 343
마. 공무원 신분 취득후 당비납부········································································ 344
바. 「공직선거법」상 기부행위 해당여부································································· 345
사. 타인 명의 · 가명으로 납부된 당비의 처리·························································· 345
아. 「정치자금법」과 「정당법」상 국고 귀속대상······················································· 346
1) 정치자금법 / 346 2) 「정당법」 / 348
자. 당비영수증······························································································· 348
1) 당비영수증 제작 / 348 2) 영수증 발행 / 349
3) 당비영수증과 후원회의 정치자금영수증 비교 / 350
5 중앙선거관리위원회 행정해석······································································· 351
가. 중앙당 등록 전 당비 납부 가능······································································· 351
나. 같은 정당의 다른 시 · 도당에의 당비납부 등······················································· 352
다. 정당운영위원회 회비의 성격 및 경선기탁금 반환················································ 352
라. 급여에서 당비 공제 납부·············································································· 352
마. 당원들의 당비조성 활동··············································································· 353
바. 법인의 당비 납부······················································································· 353
사. 당사랑채권에 의한 당비 모금········································································ 353
아. 당비 등의 면세·························································································· 353
자. 창당준비위원회에 기부한 당비의 면세혜택························································ 353
차. 「KT포인트」로 당비납부··············································································· 354
카. 은행지로를 통한 당비 납부··········································································· 354
타. 전화결제시스템 등에 의한 당비 납부 시 당비영수증 교부시기································ 354
파. 당비총액영수증 교부··················································································· 354
6 벌칙······································································································ 354
제13장 / 후원회와 후원금
제6조(후원회지정권자)
1 후원회제도 의의························································································ 359
2 후원금에 대한 법적 규제············································································· 359
가. 규제 필요성······························································································ 359
나. 규제 내용································································································· 360
다. 후원회의 유사기관화 금지············································································ 361
3 후원회지정권자 확대·················································································· 362
4 중앙선거관리위원회 행정해석······································································· 363
가. 정당의 청년최고위원경선후보자의 후원회 지정·················································· 363
나. 정당의 부대표경선후보자의 후원회 지정·························································· 363
다. 최고위원 선출을 위한 당내경선후보자후원회 지정·············································· 364
라. 예비경선후보자로 등록한 자가 대통령선거