[2] The extent to which a person who was designated as a person subject to abortion by the so-called abortion movement or by the announcement of a name group of persons subject to abortion may be able to make an explanation or a counterargument against it

[3] In a case where a member of the National Assembly makes and distributes an parliamentary report containing the contents of supporting, recommending, or opposing a specific political party or candidate during the period from 180 days before the election day to the election day, whether the crime of violating Article 93 (1) of the former Election Act is established (affirmative)

[4] The case holding that in case where a member of the National Assembly selected as a person subject to abortion by a civic organization makes and distributes a report on parliamentary activities, which carried out a counterargument news, it constitutes an act of distributing documents in a unlawful manner as prohibited by Article 93 (1) of the former Election of Public Officials and Prevention of Election Illegal Act

[5] The purpose of Article 16 of the Criminal Act concerning the mistake of law and the method of determining whether there are justifiable grounds

[6] The case holding that there is no justifiable reason under Article 16 of the Criminal Act that misleads a National Assembly member into misunderstanding that a National Assembly member does not conflict with the election regulations in the course of publishing a parliamentary report

[2] Even if it is necessary to ensure that a person who was designated as a person in accordance with the so-called abortion movement or the announcement of a list of persons in need of abortion is given an opportunity to explain that person's content is included in the person in need of abortion, considering equity, it is not bound to have the character of an expression of opinion and expression of intent in support as to the selection of the person in need of abortion. Thus, it does not exceed a mere statement of opinion and expression of opinion regarding the recommendation of a political party, as the movement does not exceed a mere statement of opinion and expression of opinion regarding the recommendation of a candidate, it is permitted only to the extent that it does not exceed a mere statement of opinion and expression of opinion regarding the recommendation of a political party, and any act in excess thereof is allowed only to the extent of an election campaign and to the extent permitted by the former Public Official Election and Election Prevention Act (amended by Act No. 6265 of Feb. 16, 200).

[3] A report on parliamentary activities by assembly, report, computer, telephone, etc. which a member of the National Assembly prior to the commencement date of the election period shall be permitted. However, the permission in this context is only a pure report on parliamentary activities conducted by a member of the National Assembly as a representative of local residents, and any form of election campaign conducted under the name of reporting on parliamentary activities shall not be permitted. If a member of the National Assembly produces an parliamentary report within a period from 180 days before the election day to the election day and distributes it to the electorate during a period of 180 days, if any content of supporting, recommending, or opposing a specific political party or candidate for the purpose of influencing the election beyond the scope of a report on parliamentary activities such as activities in the constituency and other matters necessary for promoting achievements, such part constitutes a document distribution in accordance with the law prohibited by Article 93 (1) of the former Election of Public Officials and Prevention of Unlawful Election Act (amended by Act No. 626

[4] The case holding that in case where a member of the National Assembly who is selected as a person subject to abortion by a civic organization makes and distributes a report on parliamentary activities, which carried out a counterargument news, it constitutes an act of distributing documents in a unlawful way prohibited by Article 93 (1) of the former Election of Public Officials and Prevention of Election Malpractice Act (amended by Act No. 6265 of Feb. 16, 200)

[5] Article 16 of the Criminal Act provides that an act of misunderstanding that one's act does not constitute a crime under the Acts and subordinate statutes shall not be punishable only when there is a justifiable ground for misunderstanding. However, if one's own act is aware that it does not constitute a crime permitted under the Acts and subordinate statutes, and there is a justifiable reason to mislead misunderstanding, it shall not be punishable. Whether there is a justifiable reason should be determined depending on whether the act was not aware of illegality of one's own act as a result of failure to meet his/her intellectual ability even though there was a possibility that the act could have been aware of illegality if the act was done with his/her own intellectual ability. The degree of efforts necessary for recognizing illegality should be determined differently depending on the situation of the act, the offender's awareness ability of an individual, and the social group to which the actor belongs.

[6] The case holding that there is no justifiable reason under Article 16 of the Criminal Act that misleads a National Assembly member to believe that it does not conflict with the election regulations in the course of publishing a parliamentary report

According to Article 58(1) of the former Act on the Election of Public Officials and the Prevention of Election Malpractice (amended by Act No. 6265 of Feb. 16, 200, hereinafter “Public Official Election Act”), a simple statement of opinion and expression of opinion on election have not been considered as an election campaign. After the amendment of the same Act as the current provision, not only a simple statement of opinion and expression of opinion on election but also a simple statement of opinion and expression of opinion on the recommendation of a political party should not be considered as an election campaign. Thus, where a simple statement of opinion and expression of opinion on the recommendation of a political party is supported or opposed, an election campaign shall be conducted to the extent exceeding a simple statement of opinion and expression of opinion on election before the amendment of the same Act, and within the extent permitted by the Public Official Election Act (see, e.g., Supreme Court Decision 200Do162, Feb. 26, 2002).

Therefore, even if it is necessary to ensure that a person who was designated as a person subject to abortion by the announcement of so-called abortion movement or that of a list of persons subject to abortion is given an opportunity to explain his/her inclusion in that person, as such, it is necessary to consider fairness, the explanation or reply to the selection of a person subject to abortion has the nature of the expression of opinion and expression of intent in support as to whether he/she should be recommended by a candidate of a political party. Thus, as the movement does not exceed a simple statement of opinion and expression of intent regarding the recommendation of a candidate of a political party, it is permitted only to the extent that it does not exceed a simple statement of opinion and expression of opinion regarding the recommendation of a political party, and the act in excess is limited to the methods and scope permitted by the Public Official Election Act because it constitutes an election campaign and constitutes an election campaign.

However, Article 93 (1) of the former Public Official Election Act provides that "no one shall distribute, post, spread, show, or run an advertisement, letter of personnel affairs (including the preparatory committee for the formation of a new political party and the platform or policy of a political party) or candidate (including a person who intends to be a candidate) or a candidate, or distribute, post, play, run, or run an advertisement, poster, photograph, document, picture, picture, printed matter, recording, video tape or others similar thereto, which includes contents of supporting, recommending, or opposing a political party (including a person who intends to be a candidate) or candidate, in order to have an influence on the election from 180 days before the election day (including the time when the reason for holding the election becomes final, in the case of a special election) to the election day." Article 111 (1) of the same Act provides that "National Assembly members or local council members may report on parliamentary activities (including activities of the election district and other matters necessary for publicity in the election district, regardless of the change in the name of election district or election district."

Therefore, a report on parliamentary activities by an assembly, report, computer, telephone, etc. which a member of the National Assembly prior to the commencement date of the election period shall be permitted. However, the permission in this context is only pure report on parliamentary activities conducted by a member of the National Assembly as a representative of local residents, and a form of election campaign conducted under the name of reporting parliamentary activities shall not be permitted (see Supreme Court Decision 2003Do1789, Jul. 11, 2003). If a member of the National Assembly produces an parliamentary report during the period from 180 days prior to the election day to the election day and distributes it to the electorate, and if the contents that support, recommend, or oppose a specific political party or candidate are included in order to influence the election, such as activities in the election district and other matters necessary for promoting achievements, such contents constitute an act of distributing documents by a law method prohibited under Article 93(1) of the Public Official Election Act, and thus, it is illegal (see Supreme Court Decision 2004Do8717, Mar. 10, 2005).

However, explanation or counterargument on the selection of a person subject to abortion is related to the recommendation of a political party in the next election, and in principle, it is not related to the report on parliamentary activities of a member of the National Assembly. On the other hand, when a member of the National Assembly prepares and distributes a parliamentary report during the period from 180 days before the election day to the election day, it is a counterargument to his/her selection of a person subject to abortion, and it is necessary for him/her to publish a third party's counterargument, etc. or to transfer such a report to a third party on the selection of a person subject to abortion. Ultimately, it is inevitable to include any content supporting, recommending, or opposing a specific political party or candidate in order to influence the election beyond the scope of the report on parliamentary activities, such as the election district activities and other matters necessary for publicity of his/her achievements, and that part constitutes a document distribution act in accordance with the law prohibited under Article 93 (1) of the Public Official Election Act and thus, it is unlawful.

According to the records, the reason why the defendant was selected as a person subject to abortion by the organization of the general citizen's solidarity on April 15, 2004 is a violation of the Political Funds Act, and it is irrelevant to the defendant's parliamentary activities. The articles written in the facts charged in this case are different from other members of the Doctrine or Nitle Preferreds to the purport that it is unfair that the defendant is selected as a person subject to abortion. The contents posted them in the parliamentary report exceed the scope of simple support and opposition as to the recommendation of the candidate of the political party under Article 58 (1) 3 of the Public Official Election Act, and it goes beyond the scope of the report on parliamentary activities. In light of the fact that the parliamentary report was distributed to the electors at the time of leaving two elections, it constitutes an act of withdrawing documents in accordance with the law that is prohibited under Article 93 (1) of the Public Official Election Act.

Therefore, the court below held that it is permissible to post such contents in the legislative report even if it does not correspond to a report on the direct parliamentary activities of the defendant, and on the premise that the publication and distribution of contents for pure harm should not be an advance election campaign by document distribution in order to affect the election, rather than the contents of supporting and recommending the defendant as a candidate for the 17th National Assembly election, it is difficult to determine that the act of posting the contents as stated in the legislative report of this case as stated in the 16th National Assembly member's written report of this case constitutes an unlawful act of distributing it to the defendant's right holder in the legislative report of this case, thereby affecting the conclusion of the judgment. Furthermore, it is difficult to view that the act of the defendant's act of distributing it to the defendant's legislative activities of the 16th National Assembly member and the contents of evaluation by the members and citizens of the 16th National Assembly member's selection of the defendant as the candidate for the 17th National Assembly member's election of the National Assembly member.

2. Whether it falls under an error in law;

Article 16 of the Criminal Act provides that an act of misunderstanding that one's own act does not constitute a crime under the Acts and subordinate statutes shall not be punishable only when there is a justifiable reason for misunderstanding. However, in one's own special circumstances, it shall not be punishable if the misunderstanding is recognized that it does not constitute a crime under the Acts and subordinate statutes (see, e.g., Supreme Court Decisions 91Do2525, May 22, 1992; 2000Do1696, Jan. 25, 2002). Whether there is a justifiable reason should be determined depending on whether the misunderstanding is not aware of the illegality of one's own act as a result of the failure to recognize the illegality of the act, which would have been done by the misunderstanding of his intellectual ability, and whether the misunderstanding of the misunderstanding of his own act should be determined depending on the degree of the misunderstanding of his own ability and the degree of his ability to recognize the illegality as a result of the misunderstanding of his own act.

According to the records, part of the election-related books published by the National Election Commission, which is the data that the assistant officer of the defendant or the employee of the Gyeyang-gu Election Commission, referred to the election commission, shall not include and prepare some of his/her explanatory descriptions about the matters included in the person who was presented by a civic organization in the parliamentary report, and distribute them to the electorate. It is recognized that the document written and distributed in the form of a single parliamentary report even though it is not directly related to the parliamentary activities, such as political matters, academic background and career, explanation about his/her personal affairs, newspaper articles, etc., but is not related to the parliamentary activities.

However, as seen earlier, the Supreme Court held that if a member of the National Assembly prepares a parliamentary report during the period from 180 days before the election day to the election day and distributes it to the electorates the contents that support, recommend, or oppose a specific political party or candidate in order to have an influence on the election by deviating from the scope of a report on parliamentary activities, such as activities in the constituency and other matters necessary for publicity of achievements, such part constitutes an act of distributing documents by unlawful means prohibited under Article 93(1) of the Public Official Election Act, and that the printing and distribution of such contents exceeds the scope of a legitimate parliamentary report (see Supreme Court Decision 97Do1294 delivered on September 5, 197, etc.).

Meanwhile, according to the records, the above voters related to the election, which are published by the National Election Commission, shall not be allowed to transfer the contents related to the parliamentary activities of the National Assembly members to the parliamentary report and distribute them to the general electors. However, the contents leading to the election campaign, such as supporting lakes and marshes from the next election, shall not be included in the election, and the posting of the career within the ordinary scope in the parliamentary report is an act incidental to the parliamentary report, but it shall be described in the way that they go through from birth and growth to the present time through the process of political entry, and the posting of another person's personnel report or time, etc. to support and recommend the National Assembly members who wish to become the candidate, even if a part of the report on parliamentary activities is added, it shall be deemed that the purpose of advertising the person who wishes to become a candidate, and since the parliamentary information is directly reported by a National Assembly member or local council member, it shall not be stated in the fact that another person makes a report or publish another person's writing or not.

The defendant is a member of the National Assembly qualified as an attorney-at-law (at the time of the general election in 2000, allowing unlimited circulation of the report on the agenda by the day preceding the statutory election day while making an election campaign against a candidate who is a candidate for active duty National Assembly member at the time of the general election in 2000 is unconstitutional, and the Constitutional Court has made a constitutional complaint by asserting that the contents of the report cannot be permitted as long as the contents of the report are in substance of election campaign. See 98 pages). In a case where there is doubt as to whether posting or transfer of the same contents as mentioned above in the report on parliamentary affairs is permitted, the defendant should have made every effort, such as investigating relevant precedents or literature, and if so, it should not be distributed in the report on parliamentary activities unless the reasons for being selected as a person subject to abortion are related to parliamentary activities, and it should not be sufficiently recognized that the report on parliamentary affairs is not permitted as being carried out in the report on parliamentary activities, and it should not sufficiently exceed the scope of the report.

Therefore, the defendant's answer that publishing the same contents as mentioned above in the legislative report of this case is permitted through his assistant officer to the competent election commission (In addition, as recognized by the court below, in relation to the production of the legislative report of this case, the defendant's oral inquiry is made to the non-party 1, who is the leader of the competent election commission, and does not receive an official answer by making an inquiry in a regular manner to the competent election commission). It cannot be deemed that the defendant has made a serious effort to avoid this by fully meeting his intellectual ability, and as a result, it is difficult to find that there is a justifiable reason.

On the other hand, even if the defendant interpreted the content of the above election-related book and judged that it is not an error in the publication of the above election report, it is clear that the above booker did an act on the basis of only a reply favorable to himself even though there are other answers about the same issue, as seen earlier, and the above booker stated that "it is unnecessary to include and prepare part of his explanation about the matters included in the person who was announced by civic groups in the parliamentary report, and distribute it to the electorate." This is merely the purport that it is unnecessary to include and prepare part of his explanation about the selection of the person who is in need of abortion, and further it is not permissible to publish a third party's writing to the effect that it is improper to select the person who is in need of abortion, or to send a counterargument report to the third party. Therefore, it is unreasonable that the defendant did not have any legitimate reason that the person who was selected as the person who was in need of abortion, and there is no reason for other than the content of his explanation about the person who was selected as the person subject to abortion.

Therefore, the court below determined otherwise on the ground that the defendant's publication of the parliamentary report of this case constitutes a case where there is a justifiable reason to believe that the defendant's publication of the written parliamentary report of this case constitutes a crime under the law, on the ground that the court below erred by misapprehending the legal principles as to legitimate grounds under Article 16 of the Criminal Act, and thereby affecting the remaining judgment, which affected the conclusion of the judgment, on the ground that the court below erred by misapprehending the legal principles as to legitimate grounds under Article 16 of the Criminal Act, and by misapprehending the legal principles as to legitimate grounds.

3. Conclusion

Therefore, the lower judgment is reversed and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)