[2] The case affirming the judgment below which held that the act of preparing a false statement to the effect that a specific school club shall support a candidate Gap's disclosure and providing it as news materials to a press company constitutes "an act of distributing documents by unlawful means" under the Public Official Election Act

[3] Whether an organization supports and recommends a specific candidate is included in the facts of “career, etc.” in the crime of publishing false facts under Article 250(1) of the Public Official Election Act (negative)

[4] The case holding that the judgment below erred in the misapprehension of legal principles in holding that the act of preparing and distributing a false statement to the effect that a specific school club "to support the disclosure of the candidate A" constitutes a crime of publishing false facts under the Public Official Election Act

[2] The case affirming the judgment below holding that, in a case where a specific school club did not issue a false statement to the effect that "A candidate who is a dong local election," and the defendant prepared a false statement to the effect that "A candidate who is a dong local election," and distributed the report materials to a press organization via Gap election campaign workers and distributed them on the Internet, the defendant's above act is not an election person of Gap, but a representative of the above dong local council, and it is obvious that the above act of Gap's person who is not a person engaged in the election affairs and is not a person who represents the above dong local council constitutes "an act of distributing documents by unlawful means" prohibited under Article 93 (1) of the

[3] In the crime of publishing false facts under Article 250(1) of the Public Official Election Act, “career, etc.” refers to a candidate’s “career, academic background, degree, prize, etc.” (Article 64(5) of the same Act), and “career, etc.” refers to matters that affect the fair judgment of electors by recognizing the candidate’s performance and ability as a candidate’s performance and capacity, such as candidate’s behavior or private history. Therefore, whether a certain organization supports or recommends a specific candidate is not included in the facts pertaining to “career, etc.” as mentioned above, since it cannot be deemed as matters pertaining to candidate’s behavior or private life, it is not included in the facts pertaining to “career, etc.” as mentioned above, and interpreting the same differently,

[4] The case holding that the court below erred in the misapprehension of legal principles as to "career, etc." under Article 250 (1) of the Public Official Election Act, on the ground that the act of preparing and distributing a statement to the effect that a specific school club did not issue a statement of intent to support the candidate Gap, who is the same question, in the five-time regional election of Dong-dong local government, and that the defendant's act of preparing and distributing the statement to the effect that "the above Dong-dong council is supporting the candidate Gap to disclose the candidate Gap," constitutes an act

1. Violation of the legal principles as to Article 93(1) of the Public Official Election Act

Article 93 (1) of the Public Official Election Act provides that "no one shall distribute, post, play, or post any advertisement, letter, poster, photograph, photograph, document, picture, picture, document, picture, printed matter, recording tape, recording tape, and others similar thereto which include the contents supporting, recommending, or opposing a political party (including the preparatory committee for the formation of a new political party and the party platform and policy of a political party; hereafter the same shall apply in this Article) or candidate (including a person who intends to be a candidate; hereafter the same shall apply in this Article) or indicating the name of a political party or candidate in order to influence the election from 180 days before the election day (in the case of a special election, the time when the reason for holding the election becomes final) to the election day, and prohibits any distribution, posting, screening, or posting, etc. of documents and books by unlawful means, and any act of providing reporting materials to the press in order to have an influence on the election beyond normal methods, may be prohibited from distributing documents by unlawful means as referred to in the above provision.

According to the lower judgment and the evidence duly examined by the lower court, etc., the Defendant: (a) was not a person who is the secretary general of the Council for Party Members at ○○○○○○ City, and was not a person who represents the Assembly for Middle and High Schools; and (b) the Defendant, around 14:00 on May 29, 2010, issued a false name stating that “I will support Nonindicted Party 1’s candidate in an election for the △△ Middle and High Schools and High Schools on June 2, 2010” using the above computer of the election office to the effect that “I will open to the public in the election for local elections on June 2, 2010, publish the report by Nonindicted Party 2 of the said Nonindicted Party 1’s election campaign material, and then publish the fact on May 24, 2010 through the Internet: 30 on May 24, 2010.

According to the above legal principles and facts, it is clear that the defendant's act of preparing a false statement and providing it as news materials is for the purpose of influencing the election, rather than a person who is not an election-related person of the above non-indicted 1 candidate, but a person who represents the above △△ Central and High-dong Council, and thus, it constitutes an act of distributing documents by unlawful means prohibited under Article 93 (1) of the Public

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to Article 93 (1) of the Public Official Election Act.

2. Violation of the legal principles as to Article 250(1) of the Public Official Election Act

Article 250(1) of the Public Official Election Act provides, “A person who publishes or makes another person publish false facts (in cases where he/she publishes academic background, including cases in which he/she is not published by the method provided for in Article 64(1)) with respect to the place of birth, status, occupation, career, property, personality, conduct, etc. of a candidate, etc. of a candidate, his/her spouse, lineal ascendant or descendant, lineal ascendant or descendant, or sibling, or an organization to which he/she belongs, or who possesses a propaganda document containing false facts for the purpose of distributing a false fact, shall be punished by imprisonment with labor for not more than five years or by a fine not exceeding 30 million won.” Here, “career, etc.” refers to a candidate’s “career, academic background, academic degree, or upper punishment” (Article 64(5) of the Public Official Election Act; Article 250(1) of the Public Official Election Act refers to a candidate’s “a person who is recognized as a candidate’s private action, academic ability, etc.” and thus, should not be construed as a candidate’s private action or punishment.

Nevertheless, the lower court erred by misapprehending the legal doctrine on “career, etc.” under Article 250(1) of the Public Official Election Act and thereby adversely affecting the conclusion of the judgment, where the lower court determined that: (a) although the general meeting of △△△ Middle and High Schools issued a statement of intent to support Nonindicted Party 1 candidates, the act of preparing and distributing a statement of name to the effect that “the same literary council supports Nonindicted Party 1 candidates to open to the public,” as recorded in the criminal facts in its judgment, constitutes a false disclosure of the facts regarding “career, etc.” of Nonindicted Party

3. Conclusion

Therefore, the part of the judgment of the court below that violated the Public Official Election Act due to the publication of false facts shall be reversed. Since this part is related to the remaining crimes, the whole judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)