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무죄
서울남부지방법원 2010고합555 판결

공직선거법위반

Cases

2010Gohap555 Violation of the Public Official Election Act

Defendant

○ ○

Seoul Residence

Seoul basic domicile

Prosecutor

Kim Jong-do

Defense Counsel

Law Firm Cheong-han

Attorney Oh Dong-eng, Counsel for the defendant-appellant

Imposition of Judgment

January 27, 2011

Text

The defendant shall be innocent.

Reasons

1. Summary of the facts charged

The defendant is a person who was elected as a candidate for a democratic party in the election of the head of Yangcheon-gu Seoul Metropolitan Government head at the fifth local elections conducted on June 2, 2010.

No person shall publish or have another person publish or publish false facts with respect to a candidate, his/her spouse, lineal ascendant or descendant, or sibling, in a manner unfavorable to the candidate by means of a speech, broadcast, newspaper, communication, magazine, poster, propaganda document, or any other means, with the intention of preventing a person from being elected.

On May 21, 2010: Around 00: Around 00, ○○ candidate, who was going to a non-permanent election of the head of Yangcheon-gu Seoul Metropolitan Government head, entered into a policy agreement with the part of the desired production station in which Park○ attorney-at-law is a standing director while attending the press at the ○○ election campaign office located in the second floor of Samsung Electronic Building, Yangcheon-gu Seoul Metropolitan Government, the second floor of the new Samsung Electronic Building, and the part of the desired production site in which Park○-○ attorney-at-law is a standing director.

As a result, at around 15: 20 Asian Economic Newspapers: Around 20, a candidate for the head of Yangcheon-gu Office with the head of Yangcheon-gu Office to which it belongs (standing director ○○○○) entered into an agreement with the Yangcheon-gu Office to jointly implement the "Yancheon-gu Project" on a 21-day basis. This Convention provides that "The part of the desired production shop is capable of implementing grass roots democracy due to the lack of pledge ability among national local governments and the lack of political parties, and it is possible for the candidate to be selected as the head of Yangcheon-gu Office with high possibility of election, and the policy agreement was promoted for the first time on the national scale." On the same day, around 17: 49, 00 New Zealand reported that the head of the local government would not properly reflect the desire for the production of news and policies in accordance with the characteristics of the "Yancheon-gu Office's new political party", and that the head of the local government would not properly inform the residents of the desire to share it.

○ Giving false information through the dissemination of published statements and news report materials

On May 21, 2010: (a) around 03:03, the Defendant, at the Defendant’s election office located in the Yangcheon-gu Seoul Metropolitan Government New-dong 900 - 15 - the Defendant’s office, who is the head of the strategic planning office of the Defendant’s election campaign office, required to receive the title by facsimile; and (b) the title “B” was related to the policy agreement for the candidate for the head of Yangcheon-gu Office, Yangcheon-gu, Yangcheon-gu, the head of the office of the strategic planning of the Defendant’s election campaign office, and the title “B”. According to the media reports, the candidate participated in the adviser to manipulate the candidate for the candidate for the head of the office of Yangcheon-gu, Yangcheon-gu, Yangcheon-gu, Seoul. The Defendant wished to transmit to the above counter-production a statement of disclosure that “I wished to transmit it to the counter-agent.”

In addition, around May 22, 2010: at the election campaign office around 18, 2010: Around 18, a person who sent to 4,780 persons, including many reporters, using the Internet e-mail mail mail mail mail mail mail mail c. kr, and a person who sent it to 4,780 persons, including a large number of reporters, shall be open to ○○○○ (Act No. 2289, Mar. 2, 201.). The title "B" is open to ○○○, a candidate for the head of this ○○○○○○○○○ Office, made public questions with the executive director of the ○○○○○○○○○○ Office, and then sent it by attaching the news report materials and a statement of disclosure to ○○○○ Office, and according to the article No. 246, the above report materials are open to the public to ○○ Office’s attorney-at-law through the press report.

. In order to manipulate a new ○○ successful professor as a counter-espionage, an adviser was involved in the consultation, and there was a provision that ○○ standing director was aware of it, and the disclosure statement was the same as the transmission of the above facsimile.

In addition, on May 2, 2010: around 14 and on May 24, 2010: 09: (a) by facsimile of the election campaign office at around 18, the notice of disclosure was again transmitted to the said desired production office, respectively.

○ Publication of false information by posting the ○ Name on the website and on the Blue page.

On May 25, 2010: around 00 : 00, the title "the position of the Democratic Committee on Countermeasures against Candidates for the Election of the head of ○○○ Yangcheon-gu." It is well aware that, at the time ○○○○ candidate works for the 5th public security team, he participated in the adviser to manipulate the honorary professor for the 00th public team as a counter-espionage. We do not, however, conclude a policy agreement with 3rd public research institute, which is a clean candidate, with the view to promoting the past ethic administration: 1:00, 2000, 3rd public offices:00, 3rd public offices:00, 3rd public offices:00, 3rd public and private research institutes of the Republic of Korea, 4:00, 3rd public and private research institutes of the Republic of Korea, 4:00, 3rd public and 4:00, 196, 3rd public notice of the Defendant's name and body.

However, ○○○ was arrested in 1941 and graduated from ○○○ University in Seoul in 1963 and ○○ University graduate school in 1965, and was serving as ○○○○○○ University in 1966, and was detained by the Central Information Department of 1968 as the case of the Uniform Revolution, and the case of the so-called Uniform Revolution. On March 27, 1970, ○○ was released on August 15, 198 by being sentenced to imprisonment for life, and was released from 0th anniversary of 198, 198, 2nd anniversary of 198, 3th anniversary of 198, 2nd of 198, 3nd of 2nd of 196, 3nd of 19, 4th of 19, 2nd of 19, 2nd of 19, 3th of 196, 3th of 2nd of 196.

Meanwhile, even though ○○ had worked as a security officer from May 1976 to September 1985, the said ○○ was investigated by the Central Information Department in 1968 and did not undergo an investigation by the security officer. Moreover, since ○○ was the first-year student of the 13-year middle school, there was no fact that ○○ was investigating, advising, or involved in the investigation.

Therefore, the defendant was involved in the adviser to manipulate ○○ University as a counter-espionage at the time when ○○○ works for a security team. "It constitutes false facts without any grounds."

Accordingly, the Defendant, even though the candidate did not have investigated or advisered a successful professor prior to ○○○○○, did not have been involved in the adviser’s participation in manipulating the above new ○○○ as a counter-espionage, distributed the above news report materials and a statement of open character, and posted the above name on the website and on the Blue, by means of communication, propaganda document, or other means, for the purpose of preventing the election.

A false fact was published as to the candidate's disadvantage.

2. Determination

(a) Facts of recognition;

According to the defendant's legal statement, ○○○○○○○, ○○○○○, Kim○, ○○○, ○○○○○○, ○○○○○○, ○○○○○○○, and ○○○○○○○○, each of the suspect interrogation records on the defendant, ○○○○, Red○, ○○○○, ○○○○, ○○○○, ○○○○, ○○○, and ○○○○○, and ○○○○○○, respectively, prosecutor's statement on each of the prosecutor's offices, investigation report (in response, 55 pages of the suspect's personal records, ○○○, ○○○, ○○○, ○○○, ○○○, ○○, ○○, ○○○, ○○, ○○, ○○, ○○, ○○, ○○, and ○, ○○, ○○, 5-type, etc.).

2) On May 21, 2010, Da○○, a candidate for the head of the Yangcheon-gu Police Office, confirmed the conclusion of the above policy agreement through the Internet on the Internet on May 21, 2010, and then, at the election campaign office, notified the head of the situation office ○○ and the head of the strategic planning office ○○○○, who was in a relationship with the person related to the desired production establishment, and discussed the countermeasures accordingly. At the time, Da○, who claimed revocation of the policy agreement through direct telephone conversations between the Defendant and the Park○-○, and Jin○ expressed a reservation position to determine the response level after ascertaining the trend of public opinion.

3) On May 21, 2010, in order to arrange direct conversations between ○○○○ and the Defendant, ○○○○○○○○○○○ and ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, 5 minutes at around 04, 15:2 minutes at around 19, 33 seconds at around 15: 15: 16: 08: 16: 08: 51: 16: on May 21, 2010; 16: 30: 16:32: 16:4:38:48; 201: 4: 16:4; 201: 4; 30: 4; 14; 16:4; 14; 204. 4; 16: 4; 14; 1; 204; 30. 1. 1. ,4. 20. 1. hereinafter. hereinafter.

5) On May 21, 2010, the Defendant completed an election campaign at around 22:20, and returned to the election campaign office on the same day immediately following the date: 22:25, a high ○○ called a call with the Defendant and the vice president of the Defendant’s leap ○○○ (hereinafter referred to as “the vice president of the Defendant’s leap ○○”). Around 22:37:0 on the same day, the Defendant asked the Defendant to point out the illegality of the policy agreement, and to cancel the leap ○○ (hereinafter referred to as “the policy agreement”). Around 22:37:0, the Defendant responded to the purport that the policy agreement will be reviewed.

6) On May 21, 2010, 2010, after the call between the Defendant and the vice president of ○○○○ is terminated.

23:03 Around May 22, 2010, 201: Around 01:00 on May 22, 2010, 201: Around 01: Around 00, 01: Around 01: Around 18, 200, 01: Around 0: Around 18, 200, 201: Around 07: Around 18, 4,780 persons, including reporters of a press organization, who are open to the public, sent a report material containing a written statement of disclosure to 4,780 persons, including a written statement of disclosure, was sent by facsimile; Around 07:00 on May 22, 201, 201: Around 14:00 on May 22, 200, 201, 2014; Around 2014, 2014 of the Defendant’s desire to transmit the report to the public.

7) On May 22, 2010: around 08: 40, the Defendant responded to the purport that the cancellation of the policy compromise from leap○○○ by communicating with leap○○○ in a way that it is difficult and re-examineed. On the same day: 12:24 years and around 19:54 days, the Defendant, on the part of the Defendant, made an disclosure of the illegality of the policy agreement to the desired production station by citing the career of advisory experts, etc. in the past security history of leap○○○○, and that the desired production station said to review the policy agreement, was published in New Zealand, and the said policy agreement was not revoked thereafter, but there was no controversy over this.

8) On May 22, 2010: around 52: Around 52, 2010, E○○○○, a citizen movement, sent the title "before entering into a policy support agreement between the executive director of the desired production site and the head of Yangcheon-gu Office, and sent the title "the title "" to the head of Yangcheon-gu Office. On May 21, 2010, the title "the situation at night is an emergency where the facts of the policy agreement are being published in a press organization, and this title "the head of this ○○ candidate candidate will hold an emergency countermeasures meeting and include the character of this situation as the head of ○○ and ○○○○○○ candidate's ○○○○○○○○○○○ candidate's Lee, who had tried to wage the Defendant's election campaign."

9) On May 25, 2010, Jin-○ had ○○, a working-level employee of the Defendant’s election campaign office website and Blols, posted a letter of name prepared on May 21, 2010 in the form of pop-up shop on the above website and block.

10) On May 1976, from around September 1985 to around September 5, 1985, YO actually worked as a security agent. From around December 1984 to around September 1985, ○○○ worked as a security agent. On September 14, 2006, she raised suspicion that she had been engaged in an adviser to manipulate ○○ as a counter-espionage, and on September 14, 2006, she described the news articles (title : the former head of one Gu was hidden, : ○○○○’s name on September 19, 2006 and ○○○’s name on the Internet; ○○○○’s name on September 19, 2006, she described the news articles (name : ○○○○’s name on the victim and ○○’s name on the Internet; ○○’s name on each page’s name on each of the instant facts charged.

B. As to whether the Defendant was aware of the above disclosure statement, etc. and participated in the transmission and posting process

The Defendant took part in the advice to manipulate ○○○ University as a counter-espionage at the time when ○○ works for a security engineer. The Defendant asserts that, even though recognizing that the part is different from the fact, there was no entry in the process of transmitting or posting a statement of public nature, news report material, and name, and that even if not, even if not, it did not know that the part was included in the above disclosure statement, news report material, and name book included the contents of ○○○ University’s teaching.

However, in this court, the Defendant was aware of the fact that he sent an open bill and news material in advance. The following circumstances, namely, ① ○○○, Jin, ○○ upon entering into a policy agreement between ○○ and a desired producer, which could have been known through the aforementioned facts, appears to have been carried out after discussing prompt and systematic countermeasures against the Defendant. ② The Defendant, who is the final decision-making authority of the countermeasures, completed a telephone conversation between ○○○ and 14 minutes at the election campaign office and 10 minutes later on May 23, 2010: (a) the Defendant was aware of the fact that ○○○○○○’s election campaign office and 03 days later, sent an open statement of the Defendant’s desire production to 20 days later; and (b) the Defendant appeared to have been aware of the fact that ○○○○ and 00 days later on the Defendant’s website, and (c) the Defendant was aware of the fact that 00 days later on the Defendant’s website and 18 days later on the same page.

B. Whether the public notice of false facts under Article 250(2) of the Public Official Election Act is made

1) “False facts” under Article 250(2) of the Public Official Election Act is sufficient to establish a crime of publication of false facts, which is inconsistent with the truth, and is sufficient enough to have the elector correct judgment on candidates. However, in light of the overall purport of the published facts, if important parts are consistent with objective facts, it cannot be deemed a false fact even if there is a little exaggerated expression (see, e.g., Supreme Court Decision 2009Do26, Mar. 12, 2009). In addition, in order to establish the crime of publication of false facts under Article 250(2) of the Public Official Election Act, it is necessary to actively prove the fact that the public prosecutor published is false, and it is not possible to establish a crime of publication of false facts solely on the basis that there is no proof that the published facts are true. In determining whether or not the above burden of proof has been fulfilled, not only is it proven actively, but also if there is no specific period and absence of such fact at the specific place, it should be proved by a public prosecutor without reasonable room 27205.

2) As seen earlier, the entire content of the report materials and the name of the Defendant’s public announcement is as follows. The purport of each of the above contents is “○○○○ has had the record of participating in the advisor during his past security service, and is the person responsible for managing and supervising the 2.6 billion won embezzlement case, etc. which occurred at the time he serves as the head of Yangcheon-gu, and how the desired producer may enter into a policy agreement with the above person?” Of which, in light of the following circumstances, the part related to the adviser is “, ○○○ has been involved in advising the new ○○○○○○○○” rather than “the fact that the ○○○○○○○ was not involved in the 6th public announcement of the fact that the ○○○○○○○○○○○○○’s public announcement of the fact that the 6th public announcement of the 9th public announcement of the 9th public announcement of the fact that the 6th public announcement of the 9th public announcement of the fact that the ○○○○○ was a new news.

○ Professor It is difficult to view that “A” was added to the teaching adviser content.

B) The title of the open quality statement is “The title of the news report material” related to the Yangcheon-gu policy agreement for the candidate for the head of Yangcheon-gu Office to which he belongs, and “The title of the news report material is “the position of the Democratic ○00 Yangcheon-gu candidate election campaign committee relating to the policy agreement entered into with the candidate for the head of the Yangcheon-gu Office of Yangcheon-gu Office.” The title of the name document was “the position of the Democratic ○00 candidate election campaign committee related to the policy agreement entered into between the candidate for the post-O00 candidate and the desired producer,” and even after examining the title of each published material, it is difficult to view that the title of the letter used in the main sentence was not used to emphasize that the post-O0 was involved in the consultation about the new ○○○○○○○○○○'s new espionage. The part of the report is not a new espionage, and it is difficult to emphasize the entire part of the report and the part of the report to which the ○○○ was not a new espionage.

C) On the day of the publication of the statement and news report materials, only mentions the advisory expert experience at the time of the publication of the statement and news report materials, but did not mention at all about ○○ or ○○, which is indicated as an adviser victim from the statement or news report materials, and there was no controversy about the part of advisory on ○○ in the election process. 3) Whether the material part of the fact that the Defendant published is false or false.

As seen earlier, there was a press report that ○○○ had been advisered to manipulate ○○ as a counter-espionage during the work period of a security engineer, and Kim○○, working at the first time as an interpreter at the time, who had been working at the same time as ○○○○, argued that ○○ had been present at the time, and that ○○ had been present at the scene where ○○ had opened the scene where ○○ had been advisered, and that he had expressed a detailed statement of the situation at the time. In full view of the fact that ○○ also stated that the person who had been adviserd at the fifth degree of investigation while serving at the fifth world of a security engineer investigation, he was supposed by the ○○○ was involved in the adviser at the time of the security engineer’s duty. “The important part is difficult to readily conclude that ○○ was false, and there is no other evidence to acknowledge it otherwise.

4) Sub-decisions

Therefore, even if the above disclosure statement, news report material, and name book included the contents that ○○ participated in the adviser’s ○○ at the time of the security company’s duty, it is difficult to deem that the Defendant published false facts solely on such circumstance.

3. Conclusion

Thus, the above facts charged constitute a case where there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure

Judges

Justices Kim Hong-hoon

Judges fixed interference

Judges Kim Gin-jin

Site of separate sheet

A person shall be appointed.