[2] In the crime of publishing false facts under Article 250 (2) of the Public Official Election Act, the burden of proof on the "falseness" of the publication (=public prosecutor) and the degree of proof

[3] The scope of allowing suspicions as to the candidate's corruption, etc. in an election for public office

[4] Method of proving the “false” of publishing false facts in the crime of publishing false facts under Article 250(2) of the Public Official Election Act

1. As to the ground of appeal on the violation of Article 250(1) of the Public Official Election Act

Article 250(1) of the Public Official Election Act provides that “A person who, for the purpose of being elected or going to be elected, has published or made another person publish false facts with respect to the place of birth, status, occupation, career, property, personality, conduct, organization to which he/she belongs, etc. of a candidate, his/her spouse, lineal ascendant, descendant, or sibling (hereinafter “candidate, etc.”) in favor of a candidate (including a person who intends to become a candidate; hereinafter the same shall apply in this Article) by means of a speech, broadcast, newspaper, communication, magazine, poster, propaganda document, or any other means, and a person who possesses a propaganda document containing false facts for the purpose of distributing a false fact shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 30 million won.” In this context, the term “career, etc.” refers to a candidate’s “career, academic degree, prize, etc.” (see Article 64(5) of the Public Official Election Act) and Article 250(1)25 of the Public Official Election Act, etc.

On June 2, 2014, the lower court determined that, for the purpose of election, the Defendant made a false statement on the candidate’s career to the effect that he/she himself/herself “candidate for a public official wished to be certified at a desired production station” was publicly announced.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted and investigated by the first instance court and the lower court, the lower court’s aforementioned determination is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the meaning of false facts

2. As to the ground of appeal on the violation of Article 250(2) of the Public Official Election Act

In order to establish the crime of publishing false facts under Article 250(2) of the Public Official Election Act, it is necessary for a prosecutor to actively prove the fact that the published fact is false, and the fact that the published fact is true cannot be established solely with the fact that there is no proof. In this regard, in determining the burden of proof, if the absence of a certain fact is related to the absence of a specific act at a specific period and place, a prosecutor still bears the duty to prove it without reasonable doubt (see Supreme Court Decision 2005Do6375, Nov. 10, 2006, etc.).

Under a democratic political system, freedom of the press is the most fundamental right and it is not easy to say that it should be sufficiently guaranteed in the election process. Since it is necessary and important to verify the candidate's eligibility to take charge of public service in an election for public office, the freedom of the press for verification of eligibility should also be guaranteed. For this purpose, in a case where there is a circumstance to doubt the candidate's illegality or morality, it should be allowed to raise a question, and prior to the public decision is made, the raising of suspicion should not be easily obstructed. Meanwhile, in a case where the public decision is widely permitted, even though the suspicion is revealed in fact, it would be prejudicial to the candidate's reputation, as well as even if the suspicion is revealed later, it would result in a serious result that misleads the candidate's choice in an election for public office, and it would substantially go against the public interest, and even if it is necessary to verify the candidate's eligibility to take charge of public service, it is not permissible to grant punishment for such a case where it is not permissible after the decision of the Supreme Court.

In addition, in the crime of publishing false facts, a person who actively asserts that there was no suspicion against a person who asserts that there was no suspicion of such a fact, bears the burden of presenting materials supporting the existence of such fact, and the prosecutor may prove the falsity by impeachmenting the credibility of the materials presented. In such a case, the materials to be presented are insufficient to simply present a written complaint in light of the above legal principles, and at least to the extent that the prosecutor’s verification activities on the falsity are practically feasible, and the credibility of the presented materials should be held liable for the publication of false facts when there is no presentation of such materials or when the credibility of such materials is impeachmentd (see Supreme Court Decision 2008Do11847, Dec. 22, 2011, etc.).

For the reasons indicated in its reasoning, the lower court determined that it is difficult to see that: (a) Nonindicted Party 2’s statement was false to the effect that the Defendant made a statement to the effect that Nonindicted Party 1 was changing the waste incineration place business operator into the culp construction after his inauguration on May 24, 2014 and May 29, 2014; (b) the Defendant was aware of the fact that such statement was false, and that there was a considerable reason to believe that such a statement was true.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted and investigated by the first instance court and the lower court, the lower court’s aforementioned determination is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the recognition of false evidence or falsity in the crime of publishing false facts

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)