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