정치자금법 이해

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박영사 2024년 02월 29일 출간 종이책 : 2024년 01월 31일 출간

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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 대통령선거경선후보자후원회의 등록························ 364
마. 해외에 후원회 지부 설치·············································································· 364
바. 지방자치단체장후보자 후원회의 후원금 모금시기··············································· 364
사. 후원회준비위원회의 후원금 약정서 체결행위····················································· 365
아. 후원회 창립총회 현장에서 후원금 모금···························································· 365
5 헌법재판소 결정······················································································· 365
6 처벌······································································································ 367
제도 개선 지역정당(Local Party) 설립 또는 지구당 부활과 그 후원회 설치 허용 367
제7조(후원회의 등록신청 등)
1 후원회의 설립과정····················································································· 377
가. 정관작성·································································································· 378
나. 창립총회 개최 및 회의록 작성······································································· 378
다. 지정 신청 및 지정서 교부············································································· 378
2 후원회 등록신청 ······················································································· 379
가. 등록신청 ································································································· 379
나. 후원회 등록신청 및 수리행위의 법적 성질························································· 380
1) 후원회 등록신청의 법적 성격 / 380
2) 등록 반려 · 거부행위의 항고소송 대상성 / 381
3 후원회의 겸임지정 및 신고·········································································· 382
4 후원회 변경등록신청 및 변경신고·································································· 383
가. 후원회 변경등록신청(신고) 사유····································································· 383
나. 예비후보자가 후보자가 되는 경우 변경등록신청 필요 여부···································· 383
5 처벌······································································································ 383
제8조(후원회의 회원)
1 의의······································································································· 384
2 내용······································································································ 385
가. 후원회의 회원 자격···················································································· 385
나. 후원회의 회원명부····················································································· 387
1) 회원명부의 조사와 영장주의 / 387 2) 회원명부에 관한 지득사실 누설금지 / 387
3) 「정당법」상 당원명부 강제열람 금지와 지득사실 누설죄 / 388
3 중앙선거관리위원회 행정해석······································································· 389
가. 한국마사회 회장의 후원회장 선임··································································· 389
나. 한국도로공사 임 · 직원의 후원회 회원가입························································· 389
다. 선거관리위원회위원의 후원회 회원가입··························································· 389
라. 국립대학 교수 등의 후원회후원금 기부···························································· 389
마. 국회의원후원회의 회원모집 등······································································· 389
바. 의정활동보고회 개최시 후원회 입회원서 징구···················································· 390
4 처벌······································································································ 390
제9조(후원회의 사무소)
1 후원회의 사무소와 연락소 설치 및 유급사무원수················································ 391
가. 후원회의 사무소와 연락소 설치 ··································································· 391
나. 유급사무직원···························································································· 392
다. 후원회 사무소 간판···················································································· 393
2 후원회의 연락소························································································ 393
3 국회의원이 지역에 두는 사무소와 유급사무원수················································ 393
가. 국회의원 지역사무소··················································································· 393
나. 유급사무직원···························································································· 394
4 중앙선거관리위원회 행정해석······································································· 395
가. 국회의원사무소 간판에 사진 · 슬로건 게재························································· 395
나. 후원회 사무소에 국회의원 홍보현수막 게시······················································· 395
다. 후원회사무소 간판의 규격 및 사진 게재··························································· 396
라. 국회의원 · 후원회 사무소에 작은도서관 · 북카페 설치 · 운영···································· 396
1) 국회의원의 작은도서관 설치 · 운영에 대하여 / 396
2) 국회의원의 북카페 설치 · 운영에 대하여 / 397
3) 국회의원이 운영하는 북카페 또는 작은도서관에 도서지원에 대하여 / 397
4) 후원회의 작은도서관 또는 북카페 설치 · 운영에 대하여 / 397
5 처벌······································································································ 397
제도 개선 지역구국회의원후원회사무소 등 설치지역 제한 완화 398
제10조(후원회의 모금·기부)
1 의의······································································································· 399
2 입법연혁································································································· 399
3 후원금 모금····························································································· 399
가. 원칙······································································································· 399
나. 예외······································································································· 400
1) 제3항 간주 규정 / 400 2) 제10조 제3항 간주 규정 적용 / 401
4 후원금의 기부·························································································· 403
가. 후원금 외의 차입금 등 금품 기부금지(제1항 후단)·············································· 403
나. 모금에 직접 소요된 경비 공제(제2항)······························································ 403
5 후원회의 지정권자 관련 정치활동·································································· 404
6 판례······································································································ 405
7 헌법재판소 결정························································································ 405
8 처벌······································································································ 407
제11조(후원회의 기부한도 등)
1 의의······································································································· 408
2 후원인의 기부·························································································· 408
3 후원인의 연간 기부한도·············································································· 409
4 후원인의 하나의 후원회 기부한도·································································· 409
5 후원인의 익명기부한도··············································································· 410
6 타인의 명의 또는 가명으로 기부받은 불법후원금의 국고귀속································ 411
7 판례······································································································· 412
8 처벌······································································································ 413
제12조(후원회의 모금 · 기부한도)
1 의의······································································································· 415
2 중앙당후원회 및 국회의원후원회의 후원금 모금 현황(2022년도)··························· 415
3 각국의 기부한도액 및 모금한도액 현황···························································· 419
4 후원회의 연간 모금한도액··········································································· 420
가. 연간 모금한도액························································································ 420
나. 후보자후원회의 선거일 후에 후원금 모금 · 기부·················································· 421
다. 제1항 단서조항 의미··················································································· 422
5 후원회의 연간 기부한도액··········································································· 424
6 연간 기부한도액을 초과한 후원금의 다음 연도 이월 기부····································· 425
7 후원회지정권자가 같은 종류의 새로운 후원회를 두는 경우···································· 425
8 처벌······································································································ 426
제13조(연간 모금 · 기부한도액에 관한특례)
1 의의······································································································· 427
2 연간 모금 · 기부한도액의 2배를 모금할 수 있는 후원회········································ 427
가. 대통령선거······························································································· 427
나. 임기만료에 의한 국회의원선거······································································· 428
다. 임기만료에 의한 동시지방선거······································································· 429
3 공직선거가 있는 연도················································································· 430
4 같은 연도에 2 이상의 공직선거가 있는 경우 연간 모금 · 기부한도액························ 430
5 처벌······································································································ 431
제14조(후원금의 모금방법)
1 의의 ······································································································ 431
2 후원금 방법에 따른 모금 현황······································································· 432
3 홈페이지, 펀드에 의한 방법으로 후원금 모금···················································· 433
가. 온라인후원회의 후원금 모집········································································· 433
나. 후원회홈페이지를 통한 후원금 모금································································ 433
다. 모바일 블로그를 이용한 정치자금 모금···························································· 433
라. 크라우드펀딩 사이트 ‘텀블벅’을 이용한 후원금 모금············································ 434
4 우편 · 통신(전화, 인터넷 전자결제시스템 등을 말함)에 의한 후원금 모금·················· 434
가. ARS시스템을 이용한 후원금 모금·································································· 434
나. 휴대전화 소액결제방식의 후원금 모금····························································· 434
다. 후원금납부자에 대한 감사전화의 대행····························································· 434
라. 전화자동응답장치를 운용하는 회사 등을 통한 후원금 모금···································· 435
5 신용카드 방법에 의한 모금·········································································· 435
가. 신용카드 단말기를 사용한 후원금 모금···························································· 435
나. 신용카드 조회기(단말기)를 이용한 후원금 모금·················································· 435
다. 신용카드를 이용한 후원금품 모금 및 기부························································· 435
라. 모바일 애플리케이션의 신용카드 결제기능을 이용한 후원금 모금···························· 436
마. 신용카드사의 제휴카드 가입 홍보··································································· 436
바. 정치인 후원카드 발급·················································································· 436
6 집회에 의한 방법으로 후원금 모금································································· 436
가. 거리 등에서의 후원금 모금··········································································· 436
나. 후원회원 모집을 위한 집회 개최····································································· 436
다. 후원회 총회시 식전행사··············································································· 437
7 처벌······································································································· 437
제15조(후원금 모금 등의 고지 · 광고)
1 의의······································································································· 438
2 후원금 모금 등의 주체별 고지방법(규칙 제19조)················································ 439
가. 후원회···································································································· 439
1) 후원회홈페이지에서 모금액현황 공개 이벤트 / 440
2) 후원금 결제방법에 대한 문자메시지 발송 / 440
3) 후원회사무소 개소식 개최 등 / 440
4) 국회의원후원회의 후원회 가입 및 후원금 기부 권유 등 / 441
5) 후원회 공동대표제 및 안내장 · 신문광고의 게재내용 등 / 441
나. 중앙당(후원회를 둔 중앙당 창당준비위원회 포함)··············································· 441
1) 정당의 정책홍보물에 후원금 납부 약정서 게재 / 442
2) 정당의 후원금 모금 홍보 등 / 442
3) 정당의 업무용 차량을 이용한 정당의 후원금 모금 홍보 / 444
다. 중앙당 외의 후원회지정권자········································································· 444
1) 국회의원의 명함에 후원회의 ARS전화번호 게재 / 444
2) 국회의원의 후원금 모금을 위한 명함 / 445
3) 의정활동을 담은 뉴스레터의 일부 지면에 후원금모금 안내사항 게재 / 445
4) 지방의회의원의 의정보고서에 당원모집 및 중앙당후원회 후원 안내 문구 게재 / 445
5) 후원회지정권자의 수첩 제작 · 배부 / 445
6) 출판기념회 초청장에 후원회 계좌번호 게재 / 446
7) 후원회지정권자의 출판기념회에서 후원회 회원 모집행위 등 / 446
라. 후원회 및 후원회지정권자의 회계책임자 등······················································· 446
1) 국회의원후원회 회계책임자 등의 명함에 후원금의 모금 고지 / 447
2) 국회의원 보좌관 등의 명함에 후원금 모금 고지를 위한 후원회지정권자 사진 등 게재 / 447
마. 기타 ······································································································ 447
1) 인터넷홈페이지 등을 이용한 후원금 기부 권유 · 안내 / 447
2) 공무원의 소속 단체 홈페이지에 정치자금 기부관련 내용 게재 / 447
3) 서울지방변호사회의 정치자금 기부 안내 / 447
4) 동창회보 등에 후원회 연락처 등의 게재 / 448
3 안내장(지로용지 포함) 발송········································································· 448
가. 발송주체·································································································· 448
나. 규격 및 내용····························································································· 448
다. 봉투 게재사항··························································································· 448
라. 발송통수·································································································· 449
마. 발송방법·································································································· 449
1) 중앙당후원회의 안내장에 소속 국회의원 사진 게재 / 449
2) 국회의원후원회의 후원금 모금 안내장 발송 / 449
3) 국회의원의 교육감후보자후원회 대표자 겸임 등 / 450
4) 후원회 안내장에 회원가입 신청서 등 동봉 / 450
5) 후원금모금 안내장 제작 및 발송 / 450
6) 후원회의 후원금 모금 안내장 직접 배부 / 450
7) 반송된 안내장을 재발송한 경우 발송통수 산입여부 / 451
8) 후원금 모금안내장을 의정보고서와 동봉발송시 비용부담 주체 등 / 451
9) 지로용지를 이용한 후원금 모금 / 451
4 후원금모금 또는 회원모집 광고····································································· 451
가. 광고주체, 광고매체 및 횟수 · 규격··································································· 451
나. 광고내용·································································································· 452
1) 국회의원예비후보자후원회의 후원금 모금광고 / 452
2) 소액다수의 후원금 기부참여를 위한 인터넷 광고 / 453
3) 정기간행물로 등록된 동문회보에 후원금 모금광고 / 453
4) 연간 모금한도액 모금 이후 후원금 모금광고 가능 여부 / 453
5 처벌······································································································ 453
제도 개선 후원회의 인터넷언론사 인터넷홈페이지 이용한 후원금 광고 허용 454
제16조(정치자금영수증과의 교환에 의한 모금)
1 의의······································································································· 455
2 입법 연혁································································································ 455
3 후원회가 정치자금영수증과의 교환에 의한 모금을 위임하는 경우··························· 456
가. 후원회로부터 위임을 받은 자········································································ 456
나. 위임모금 절차 ·························································································· 457
다. 위임자의 후원금 모금시 유의사항··································································· 457
4 판례······································································································ 458
5 처벌······································································································ 459
제17조(정치자금영수증)
1 의의······································································································· 461
2 정치자금영수증 발행 · 교부··········································································· 461
가. 무정액영수증···························································································· 462
나. 정액영수증······························································································· 462
3 정치자금영수증 관련 사무 처리····································································· 463
4 정치자금영수증의 일련번호 미공개 ······························································· 466
5 판례······································································································ 466
6 처벌······································································································ 467
제도 개선 금융기관의 후원회 후원금 입금의뢰인 정보제공 협조 지체에 대한 제제 근거 마련 468

제18조(불법후원금의 반환)
1 의의······································································································· 468
2 내용······································································································ 469
가. 반환 의무자······························································································ 469
나. 반환대상·································································································· 469
다. 반환시기·································································································· 469
라. 국고귀속 ································································································· 469
3 중앙선거관리위원회 행정해석······································································· 470
제19조(후원회의 해산 등)
1 의의······································································································· 471
2 내용······································································································ 472
가. 후원회의 해산··························································································· 472
나. 후원회의 해산신고····················································································· 472
다. 후원회의 등록말소····················································································· 473
라. 후원회를 둔 중앙당창당준비위원회가 정당으로 등록하거나 후원회를 둔 국회의원
후보자가 국회의원으로 당선되는 경우 ···························································· 473
마. 후원회를 둔 대통령예비후보자 · 국회의원예비후보자 · 지방의회의원예비후보자 · 지방
자치단체장예비후보자가 대통령후보자 · 국회의원후보자 · 지방의회의원후보자 · 지방
자치단체장후보자로 등록된 경우···································································· 474
3 처벌······································································································ 474
제20조(후원회의 합병 등)
1 합병으로 신설 또는 존속하는 후원회······························································· 475
가. 존속 절차································································································· 475
나. 합병으로 신설 또는 존속하는 후원회가 모금 · 기부할 수 있는 후원금························ 475
다. 사례 예시································································································· 475
2 기존 후원회 해산······················································································· 476
3 처벌······································································································ 476
제21조(후원회가 해산한 경우의 잔여재산 처분 등)
1 의의······································································································· 477
2 입법연혁································································································· 478
3 후원회의 잔여재산 처분 등·········································································· 478
가. 처리기한·································································································· 479
나. 잔여재산 처분방법····················································································· 479
1) 후원회의 잔여재산 처분 / 479
2) 후원회지정권자(중앙당은 제외한다)의 잔여재산 처분 / 481
4 처벌······································································································ 483

제14장 / 기탁금
제22조(기탁금의 기탁)
제23조(기탁금의 배분과 지급)
제24조(기탁금의 국고귀속 등)
1 의의······································································································· 487
2 입법연혁································································································· 487
3 현행법상 기탁금의 특성·············································································· 489
가. 의제된 공익성을 지닌 정치자금 및 사실상 간접적인 보조금의 성격·························· 489
나. 정치 · 정당발전기금의 성격··········································································· 490
4 기탁금 지급 현황(2022년)··········································································· 491
5 기탁금의 기탁과 수탁················································································· 491
가. 기탁금의 기탁··························································································· 491
나. 기탁금의 수탁··························································································· 492
6 기탁금의 배분과 지급················································································· 492
가. 기탁금의 모금에 직접 소요된 경비 공제··························································· 492
나. 지급대상·································································································· 493
다. 지급시기·································································································· 493
라. 배분대상 기탁금 및 배분기준 ······································································· 493
마. 지급방법 ································································································· 494
7 기탁금의 국고귀속 등················································································· 494
8 처벌······································································································ 494
제도 개선 법인 · 단체의 선거관리위원회 정치자금 기탁 허용 495

제15장 / 국고보조금
제25조(보조금의 계상)
제26조(공직후보자 여성추천보조금)
제26조의2(공직후보자 장애인추천보조금)
제26조의3(공직후보자 청년추천보조금)
제27조(보조금의 배분)
1 의의······································································································· 502
가. 정의······································································································· 502
나. 정당의 기능과 보조금 제도··········································································· 502
2 입법 연혁 ······························································································· 503
3 한국의 국고보조금 지급 현황(2022년도)························································· 504
4 각국의 보조금 제도···················································································· 506
5 보조금의 배분 · 지급··················································································· 507
가. 배분 · 지급비율·························································································· 507
나. 배분 및 지급시기······················································································· 508
다. 보조금의 종류별 배분기준············································································ 508
1) 경상 · 선거보조금 / 508 2) 여성추천보조금 / 509
3) 장애인추천보조금 / 512 4) 청년추천보조금 / 513
6 창당 또는 합당시 배분방법·········································································· 513
7 현행 보조금 배분 · 지급의 적정여부(헌법재판소 결정)·········································· 514
제도 개선 국고보조금 배분 방식 개선 등 515
제27조의2(보조금을 지급받을 권리의 보호)
1 의의······································································································· 519
2 내용······································································································ 520
제28조(보조금의 용도제한 등)
1 의의······································································································· 522
2 보조금의 사용용도 제한 등··········································································· 522
가. 원칙(제1항, 제3항 후문) ············································································· 522
1) 보조금 사용(제1항) / 522 2) 여성추천보조금 등 사용(제3항 후문) / 523
나. 경상보조금 배분에 관한 특칙(제2항)······························································· 524
1) 경상 보조금 배분 · 지급 / 524 2) 경상보조금 지출 가능한 경우 / 525
3) 경상보조금 지출 가능하지 않는 경우 / 527
다. 공직선거 후보자 및 예비후보자 지원(제3항 전문)··············································· 527
3 보조금 지출내역 조사················································································· 528
4 처벌······································································································ 528
제29조(보조금의 감액)
1 의의······································································································· 529
2 보조금 감액 등 주체 · 대상··········································································· 529
3 보조금 감액 등 사유 ·················································································· 529
제도 개선 「공직선거법」 제265조의2 제1항 후단에 따른 비용 반환 의무 불이행시 경상보조금에서 회수 · 감액 530
4 회수 또는 감액조치···················································································· 530
제30조(보조금의 반환)
1 의의······································································································· 532
2 반환대상································································································· 532
3 반환사유································································································· 533
가. 정당이 해산된 경우···················································································· 533
나. 정당이 등록취소된 경우··············································································· 533
다. 정책연구소가 해산 또는 소멸하는 경우···························································· 534
4 반환방법································································································· 534
5 미반환시의 처리절차·················································································· 534
6 처벌······································································································ 534

제16장 / 양벌규정과 과태료
제50조(양벌규정)
1 의의······································································································· 536
가. 양벌규정 개념··························································································· 536
나. 본 조의 양벌규정······················································································· 537
2 자연인 지위로서의 처벌 여부········································································ 537
3 「정치자금법」양벌규정의 특이성···································································· 538
4 양벌규정의 적용요건·················································································· 538
5 정당 · 후원회 등이 범죄의 주체로 규정된 경우의 처벌·········································· 539
6 면책요건································································································· 539
제51조(과태료)
1 의의······································································································· 543
가. 과태료의 법적 성격···················································································· 543
나. 본 조 과태료····························································································· 544
2 「질서위반행위규제법」과의 관계···································································· 544
3 과태료 부과대상 행위················································································· 545
가. 300만원 이하의 과태료··············································································· 545
나. 200만원 이하의 과태료··············································································· 545
다. 100만원 이하의 과태료··············································································· 545
4 과태료의 부과 및 징수················································································ 546
가. 부과권자·································································································· 546
나. 사전통지 및 의견제출·················································································· 546
다. 과태료의 부과··························································································· 546
라. 보조금 등에서 공제···················································································· 548
마. 이의제기·································································································· 549
바. 과태료의 징수··························································································· 549
사. 과태료의 소멸시효 및 제척기간······································································ 550

제17장 / 정치자금범죄 조사
제52조(정치자금범죄 조사 등)
1 의의······································································································· 555
2 입법연혁································································································· 556
3 각국의 정치자금위반 조사 관련 규정······························································ 557
4 「공직선거법」 선거범죄 조사권과 비교···························································· 559
5 「개인정보 보호법」과 정치자금범죄 조사권······················································· 560
6 조사권의 종류·························································································· 562
가. 장소출입권······························································································· 562
나. 질문 · 조사권····························································································· 563
다. 자료제출 요구권························································································ 563
라. 금융거래자료 제출요구권············································································· 564
1) 주체 / 564 2) 행사요건 / 564
3) 제출요구 대상자료 / 565 4) 비밀보장 / 565
마. 증거물품 수거권························································································ 566
바. 출석요구권 및 동행요구권············································································ 566
사. 현장제지권 허용여부··················································································· 567
아. 경찰공무원 등에게 원조 요구 미규정······························································· 567
7 적법절차 준수 등 ······················································································ 567
가. 적법절차 준수··························································································· 567
나. 진술거부권 고지 의무 여부··········································································· 569
다. 조사내용 공표시 유의 사항··········································································· 570

제18장 / 정치자금범죄 신고자의 보호 및 포상금 지급
제53조(정치자금범죄 신고자의 보호 등)
1 의의······································································································· 573
2 보호 대상자····························································································· 573
3 보호사유································································································· 574
4 보호의 내용····························································································· 574
가. 인적사항 기재 생략 및 공개 금지 ··································································· 574
1) 위원회 조사 절차(규칙 제46조) / 574
2) 형사 절차(「특정범죄신고자 등 보호법」 제7조) / 575
나. 불이익 처우의 금지(「특정범죄신고자 등 보호법」 제5조)······································· 575
다. 신원관리카드의 열람(「특정범죄신고자 등 보호법」 제9조)····································· 575
라. 영상물 촬영(「특정범죄신고자 등 보호법」 제10조)·············································· 576
마. 증인소환 및 신문의 특례(「특정범죄신고자 등 보호법」 제11조)······························ 576
바. 소송진행의 협의(「특정범죄신고자 등 보호법」 제12조)········································· 577
사. 범죄신고자 등에 대한 형의 감면(「특정범죄신고자 등 보호법」 제16조)····················· 577
5 처벌······································································································ 577
제도 개선 정치자금법 위반행위 자수자특례 규정 신설 578
제54조(정치자금범죄 신고자에 대한 포상금 지급)
1 의의······································································································· 578
2 포상금 업무처리 흐름도·············································································· 579
3 포상금 지급····························································································· 580
가. 지급주체·································································································· 580
나. 지급 대상 범죄·························································································· 580
다. 지급요건·································································································· 580
라. 포상금 지급 제한······················································································· 580
마. 포상금 추가 지급······················································································· 581
4 포상금 환수····························································································· 581

제19장 / 정치자금범죄로 인한 공무담임 등의 제한
제57조(정치자금범죄로 인한 공무담임 등의 제한)
1 의의······································································································· 585
2 공무담임 제한 대상 범죄············································································· 585
3 공무담임이 제한되는 기간··········································································· 586
4 공무담임이 제한되는 직·············································································· 586
5 공무담임 제한내용····················································································· 587
6 타 법률 적용의 배제여부············································································· 587
7 헌법재판소 결정························································································ 587

제20장 / 후보자의 반환기탁금 및 보전비용의 처리
제58조(후보자의 반환기탁금 및 보전비용의 처리)
1 의의······································································································· 591
2 주체······································································································ 591
3 처리대상 비용·························································································· 591
4 처리방법································································································· 592
5 국고귀속································································································· 592
6 헌법재판소 결정······················································································· 593
7 처벌······································································································· 593
제도 개선 반환기탁금 및 보전비용 정치자금 조건부 사용 허용 593

제21장 / 조세 감면
제59조(조세의 감면)
1 의의······································································································· 596
2 각국의 기부금 등에 대한 세제혜택 규정··························································· 597
3 입법 연혁································································································ 597
4 면세내용································································································· 598
5 면세영수증······························································································ 598
6 면세 예외································································································ 599

제22장 / 피고인의 출정 및 기소 · 판결 통지 등
제55조(피고인의 출정)
1 의의······································································································· 602
2 요건······································································································ 603
3 궐석재판의 진행······················································································· 603
제56조(기소 · 판결에 관한 통지)
1 의의······································································································· 603
2 기소통지································································································· 604
3 판결통지································································································· 605
제63조(비밀엄수의 의무)
1 의의······································································································· 607
2 주체······································································································ 607
3 내용······································································································ 607
4 처벌······································································································ 608

에필로그······································································································ 609
사항색인······································································································ 610


판례색인······································································································ 621

출판사 서평

정치자금은 사회의 모습을 반영하는 거울이다. 한 시대의 정치자금은 그 시대를 살아가는 사람들의 정치적 활동과 상호작용을 비춘다. 정치공동체의 문법이며 자화상이다.
과거의 정치자금은 종종 부패의 무게를 지탱하는 데 사용되어 왔다. 그러나 오늘날, 우리는 정치자금이 더 이상 부패의 중력이 아니라 민주주의의 발전을 촉진하는 동력임을 발견하고 있다. 정치자금이 밀실에 머무르면 부패의 원천이 되나, 투명한 광장으로 나오니 정치발전의 원동력이 되고 있다. 정치자금은 권력의 도구가 아니라 분배와 돌봄으로의 정치의 언어가 될 수 있다.
정치자금의 모금과 사용은 정치의 기반이다. 이제 정치자금은 단순한 자금의 유입이 아니라, 다양한 의견과 관점을 품은 시민들의 참여와 목소리를 대변하는 도구로서 역할을 하고 있다. 더 공정하고 투명한 정치문화를 형성하는 데 기여한다.
정치자금은 마치 눈처럼 보이지 않는 작은 입자들로 시작하여, 민주주의의 큰 눈 덩어리를 형성하는 과정과 유사하다. 일반적인 돈의 속성이다. 그러나 돈이 합법적인 정치자금으로 변모할 때 이 작은 입자들은 정치활동을 뒷받침하는 복리 이자이자 디딤돌이다. 시장통과 지하철 안의 평범한 시민들의 목소리를 듣고 실현시키는 핵심적인 원천이다. 이러한 소액다수의 정치자금 입자들은 마치 눈덩이처럼 더 커지고, 구슬 같은 다양한 이해관계자들의 지지와 협력으로 둘러싸여 점차 ‘스노우볼 효과’처럼 강력한 힘을 발휘한다. 정치자금은 생명과 온기가 없는 눈 덩어리를 기쁨과 공감의 눈사람으로 만든다. 민주주의의 진화와 성장을 나타내는 상징이 된다. 정치과정에 스며드는 정치자금은 민주주의의 원칙을 더욱 견고하게 하고 권력과 책임을 현명하게 분배하여 민주주의가 심화되는 밀알이다. 씨앗이 땅속에서 썩어야 꽃을 피우고 열매를 맺을 수 있는 것처럼 말이다.
그동안 우리나라의 정치 · 사회의 변화와 발전에 따라 정치자금법은 변화하며 진화해왔다. 정치자금법이 제정되거나 개정될 때마다 그 내용과 이론을 소개한 논문은 많았으나, 실무적인 측면에서 현장에서 직접 적용할 수 있는 사례와 실제 지침을 체계적으로 정리한 책은 그 수가 드물다.
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.
치열한 선거현장에서 민주주의를 수호하기 위해 고군분투와 헌신하고 있는 각급 선거관리위원회 직원 동료들의 넉넉한 생각의 증류와 지혜 그리고 눈과 귀를 통해 수집된 이야기를 양피지로 삼았다. 공정과 정의라는 책임윤리와 신념윤리로 펜을 손에 쥐었다. 굽이치는 현실 정치의 강과 같이 속깊고 끊임없이 흐르는 정치자금의 속성과 강도, 굴곡, 은밀함에 숨겨진 민주주의의 파도를 잉크로 쓰고자 했다. 그러나 중과부적(衆寡不敵)이다.
정치자금법을 비롯하여 공직선거법, 정당법 등 정치관계법이 진정한 법치주의의 버팀목이 되었으면 한다. 정치관계법이 시민의 것이었으면 한다. 어느 법학자의 다음의 글처럼 정치관계법도 인권과 평화와 민주주의를 담아내는 마중물이었으면 한다.
“문제는 그 통치하는 사람과 법의 관계다. 통치자 위에 법이 자리하는 경우를 우리는 ‘법의 지배(Rule of Law)’ 혹은 ‘법치주의’라 이름하고, 반대로 통치자 아래에 법이 자리하는 경우를 ‘법에 의한 지배(Rule by Law)’라 한다. 전자의 법은 국민의 자유와 권리를 보호하기 위하여 권력을 통제하고 억제하는 법이다. 후자의 법은 통치자가 권력을 행사하는 수단이자 폭력으로서의 법이다. 전자의 법은 인권과 평화와 민주주의를 담아내는 그릇이지만, 후자의 법은 국민을 정치로부터 소외시키고 타자화하는 통치전략이 흘러가는 통로를 이룰 뿐이다. 그래서 법이 정치를 규율하는 민주사회와 달리 권위주의 사회는 법이 아닌, 법의 외관을 띤 폭력을 정치의 수단으로 삼는다. 법으로써 국가의 폭력을 은폐하고 또 엄폐하고자 하는 것이다.”
이 책을 쓸 수 있게 직접적인 동기와 영감을 준 수원에서 양주까지 출퇴근 지하철에서 마주친 모든 분들께, 칼 세이건의 아름다운 헌사를 빌려 그들의 삶이 더 밝고 풍요로워지길 기원한다.
“헤아릴 수 없이 넓은 공간과 셀 수 없이 긴 시간 속에서 지구라는 작은 행성과 찰나의 순간을 그대와 함께 보낼 수 있음을 나에게 큰 기쁨이었습니다(코스모스)”
마지막으로 이 책의 완성에 따뜻한 응원과 무한한 이해를 보내준 너무나도 아름다운 아내 명미와 사랑하는 딸 서현, 아들 서준에게 감사의 뜻을 전하고 싶다. 그들과 함께하는 모든 순간이 저에게 큰 힘이 되었고, 이 책은 그 감사와 사랑의 표현이기도 하다.
“풍파는 전진하는 자의 벗이다(니체)”에서 용기를,
“너의 행위의 결과가 인간적 불행을 가능하면 가장 많이 회피하거나 혹은 줄일 수 있는 것과 부합하도록 행동하라(아르투어 카우프만)”에서 관용을,
서현, 서준이가 성장과 성숙의 길에서 기억했으면 하는 소박한 바람이다.

작가정보

저자(글) 이창술

중앙선거관리위원회 해석과(행정사무관, 2017~2019)

중앙선거관리위원회 정치자금조사과(행정사무관, 2020)

제주도특별자치도선거관리위원회 지도과장(서기관, 2021~2022)

양주시선거관리위원회 사무국장(2023~)

중앙선거관리위원회 5급 공개경쟁시험출제위원 다수 역임

중앙선거관리위원회 선거연수원 사이버 강사, 초빙강사

정치관계법 출강 다수

- 정당의 중앙당 당직자 및 당원협의회, 당원연수 출강 다수

- 국회의원의원 보좌관 대상 출강 다수

- 지방자치단체 공무원, 지방의회의원, 전국 교직원 대상 출강 다수

- 시민단체 대상 출강 다수

- 중앙선거관리위원회 선거연수원 온 ·오프라인 직무강의 다수


「공직선거법」, 「정치자금법」, 「정당법」 등 정치관계법이 ‘불신의 제도화’가 아닌 민주주의의 원리인 ‘불확실성의 제도화’로 정치공간에서 튼실하게 자리매김하고, 통치자와 기득권이 법을 이용하여 권력을 행사 · 유지하는 수단으로의 기능하는 ‘법에 의한 지배(Rule by Law)’가 아닌 통치자와 기득권으로부터 국민의 자유와 권리를 보호하고 인권과 민주주의를 담아내는 그릇으로 ‘법의 지배(Rule of Law)’가 실현되길 바라며 헌법상 부여받은 선거관리의 책무를 수행하고 있습니다.