[2] The meaning of "the case of telephone call" and "the case of Internet" under the proviso of Article 109 (1) of the Public Official Election Act

[3] The case holding that the act of sending a large amount of text messages to elector's mobile phones using Internet text messages constitutes an election campaign using "other means of telecommunication" prohibited under the main sentence of Article 109 (1) of the Public Official Election Act

[2] In light of the legislative purport of Article 109(1) of the Public Official Election Act and the form of a provision that exceptionally permits election campaigns by telephone, but excludes “teles with automatic transmission system using computers” from the concept of “teles,” and Article 82-5(2) of the Public Official Election Act provide that “Any person who transmits information for election campaign (excluding those who transmit or receive messages directly) by telephone shall specify the following matters in the election campaign election campaign information,” the term “case where a telephone is made by telephone” under the proviso of Article 109(1) of the Public Official Election Act refers to a case where a person who engages in election campaigns engages in election campaigns by sending text messages to voters or directly communicating with electors by means of using his own telephone. Meanwhile, in light of Article 82-4(1) of the Public Official Election Act, the term “in cases where an election campaignee posts or transmits information for election campaign using the Internet homepage or bulletin room using the information and communications network as provided in Article 2(1)1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.”

[3] In a case where a large amount of text messages were sent to an elector's mobile phone upon a request for the transmission of text messages by accessing the company's website that engages in the business of sending text messages by means of Internet, the case holding that such act of sending text messages constitutes an election campaign using "other methods of telecommunication" prohibited under the main sentence of Article 109 (1) of the Public Official Election Act

1. Article 109(1) of the Public Official Election Act provides that "no one shall carry out an election campaign using letters, telegramss, facsimiles or other means of telecommunication during the election period: Provided, That this shall not apply to the case of Internet [in the case of advertisements, limited to the advertisements under the provisions of Article 82-7 (Internet Advertisements)] and telephone (excluding the case of telephones who have installed automatic transmission devices using computers)." The legislative purport of the above provision is to prevent election campaign inasmuch as the method of correspondence and telecommunications is one-time and one-time act, and where it is completely permitted, it is deemed as a large-scale or non-discriminatory transmission and reception of letters and telecommunications, and thus, it is highly dangerous that the campaign materials circulated and the election campaign may cause excessive competition. Therefore, in principle, the above provision is prohibited in the election campaign using letters and telecommunications among methods of telecommunications, but it is intended to allow a large-scale or non-discriminatory election campaign using computers (see Supreme Court Decision 2005Do41450, Apr. 25, 2005).

In light of the legislative purport of Article 109(1) of the Public Official Election Act and Article 82-5(2) of the Public Official Election Act that exceptionally allow election campaigns by telephone, but excludes “tele who has installed an automatic transmission device using a computer” from the concept of such “tele,” the following matters shall be specified in the election campaign information: “Where a person transmits information for election campaign (excluding a case of direct conversations via a telephone) by telephone,” referred to in the proviso of Article 109(1) of the Public Official Election Act means where a person who engages in election campaign engages in election campaign by sending the election campaign information in the form of text message, etc. or in direct conversations with an elector. Meanwhile, in light of Article 82-4(1) of the Public Official Election Act and Article 82-5(2) of the Public Official Election Act, the phrase “in the case of posting an election campaign by means of an Internet homepage or bulletin room using an information and communications network under Article 2(1)1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.” means “in the case of information on the Internet” under Article 108(2 of the Public Official Election Act.

Therefore, rather than sending text messages by using the phone, the Defendants’ request for the sending of text messages to an elector’s cell phone by accessing the website operated by an enterprise engaging in the business of sending text messages in large volume via the Internet, and allowing the said enterprise to send text messages in large volume to the elector’s mobile phone cannot be deemed an election campaign via “Internet or telephone”, which is permitted under the proviso of Article 109(1) of the Public Official Election Act, and it is an election campaign using “other means of telecommunication” prohibited under the main sentence of Article 109(1) of the Public Official Election Act.

Therefore, it is wrong for the court below to interpret that the sending of text messages to cell phone does not fall under the category of telephone because the sending of text messages to cell phone does not fall under the category of telephone. However, the defendants' sending of text messages of this case does not fall under the category of "telec" under the proviso of Article 109 (1) of the Public Official Election Act, and it is justified in the conclusion that the court below found the defendants guilty by deeming them as falling under election campaign by means of telecommunication under the main sentence of Article 109 (1) of the Public Official Election Act. Thus,

2. In addition, in a case where a fine is imposed on the Defendants, the grounds that the amount of punishment is unreasonable cannot be a legitimate ground for appeal.

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

Justices Park Ill-sook (Presiding Justice)