[2] The case holding that the act of a candidate's failing to enter the term of study in the promotional materials, etc. "a master's degree of public administration graduate (a master's degree of public administration)" constitutes an act of publishing false facts under Article 250 (1) of the Public Official Election Act

[3] Whether the provision of non-entry in the education period of a foreign educational background under the Public Official Election Act unfairly discriminates against a candidate who has completed a foreign educational course or infringes on the basic rights of a candidate (negative)

[2] The case holding that the act of failing to state the period of education in the graduate from the Burd graduate school (public administration master's degree) is an act of publishing false information under Article 250 (1) of the Public Official Election Act, which is the academic background which a candidate completed a foreign educational course equivalent to the regular academic background in promotional materials, etc.

[3] Under Articles 250(1) and 64(1) of the Public Official Election Act, where a person publishes a foreign educational course equivalent to the regular academic background, he/she shall state the period of education and punish the same in violation of the same provision. In the case of domestic regular academic background, even if the period of education is not specified, it can be easily recognized by the relevant laws and regulations if it is stated in the department, school, and the year of study. However, in the case of a curriculum completed in a foreign country, it is difficult for the holder to clearly understand the meaning of the curriculum or the degree of difficulty in completing the curriculum. In addition, it is necessary to force the holder of the right to state the period of education to specify the period of education and secure its effectiveness by punishment. Since the limitation effect of the basic rights arising from compelling the recording of the period of education and the balance of legal interests between the public interest to secure the fairness of the election process centered on the democratic procedure, it cannot be said that the portion punishing a candidate who has completed the curriculum in a foreign country is unfairly discriminated against the candidate who has completed the curriculum in the foreign country.

1. As to the violation of the proviso of the Defendants’ party members’ rally

A. Article 141(1) of the Public Official Election Act provides that "a political party shall not hold a party member training meeting, etc. for its members within the constituency in which an election is being held, or for the party members who are electors, regardless of the pretext thereof, from 30 days before the election day to the election day," while Article 256(3) provides that "if a political party commits any of the following acts, the party shall be punished by a fine not exceeding 10 million won, and the party member shall be punished by imprisonment with prison labor for not more than 2 years, or a fine not exceeding 4 million won, for the party member or for the party member who commits or causes another person to commit an act in violation of the provisions of Article 141(1)."

Meanwhile, Article 3 of the Political Parties Act provides that "a political party shall be comprised of a central party located in waterworks and a City/Do party located in the Special Metropolitan City, Metropolitan Cities, and Dos," and Article 37 (3) of the Political Parties Act provides that "a political party may establish a party member council by constituency for a National Assembly member and autonomous Gu/Si/Gun, Eup/Myeon/Dong: Provided, That no person may establish an office of a party member council for the operation of subordinate organizations of a City/Do party, and Article 4 (8) of the Election Commission Act provides that "the recommendation of a party member recommended by a political party under paragraph (7) shall be submitted in writing along with documents proving that the party member is not a party member of the political party recommended by the political party, and a written consent of the party member and an abstract of a resident registration record card, as prescribed by Regulations of the National Election Commission. In such cases, the term "party father" may examine whether there is a right to vote for the National Assembly member, and if the party is recommended, it shall be recommended by the superior party."

Article 141(1) of the Public Official Election Act provides that “The meaning of Article 256(3)6 of the Public Official Election Act is to regulate an assembly as a political party activity related to an election, unlike Article 103(3) of the Public Official Election Act, which generally prohibits the holding of an assembly to affect the election during the election period.” The meaning of Article 256(3)6 of the Public Official Election Act is to be construed as punishing a party member who holds a party meeting only when the central party and a City/Do party’s representative organ or equivalent organ under Article 3 of the Political Parties Act directly holds a party member meeting or when such party member holds a party member meeting in accordance with their decision-making, only when such party member holds a party member meeting, the central party or City/Do party’s executive organ and its corresponding organ are deemed to have held the party member meeting, and in principle, the party member meeting is merely a subordinate institution belonging to the City/Do party, and it cannot be deemed to be subject to criminal punishment under Article 256(3) of the Public Official Election Act.”

On the contrary, interpreting that a party member council is included in the subject of punishment under Article 256 (3) 6 of the Public Official Election Act even in a case where the party member council convened a party member and holds a meeting shall not be permitted since the above provision is inconsistent with the principle of accountability, which is based on the principle of punishment, which restricts the scope of application to "when a political party conducts an act .........." and it is not permitted because it is against the principle of liability, which is based on the punishment, by excessively expanding

B. According to the reasoning of the judgment below and the record, the party members' rally in this case was held by Defendant 2, according to Defendant 2's proposal, and was held by contact with some party members who were aware of Defendant 1, and the fact that ○○○○ Party Central Party or Seoul Special Metropolitan City Party was either involved in holding the party members' rally in this case, or that there was no resolution to hold it. In light of the aforementioned legal principles, even if Defendant 2 had the position of the secretary general of the party members' meeting in Seoul, it cannot be deemed that Defendant 2 held the party's rally in this case. Thus, this part of the facts charged does not constitute a violation of Article 256 (3) 6 of the Public Official Election Act.

Nevertheless, the court below held a party members' rally on the premise that if an executive or a member of a political party holds a party's rally, it constitutes the time when a political party intends to punish under Article 256 (3) 6 of the Public Official Election Act, and without examining whether the party members' rally in this case was held directly or in accordance with its decision-making, the court below applied the above provision without examining whether the representative agency or a corresponding agency of the central party and City/Do party members' rally in this case was held directly or in accordance with its decision-making

2. As to the publication of false facts by Defendant 1

Article 250(1) of the Public Official Election Act provides that any false information about his or her academic background shall not be published in favor of the candidate by means of a speech, broadcast, newspaper, communication, magazine, poster, propaganda document, etc. for the purpose of being elected or having another person elected in an election, and that any false information about his or her academic background shall also be included in the case where the period of study is not entered contrary to the provisions of Article 64(1) in a foreign educational course equivalent to the regular academic background. As such, Defendant 1 stated the academic background which completed a foreign educational course equivalent to the regular academic background, such as this part of the facts charged in this part as “HD graduate School(public administration master’s degree)” and did not state the period of education in the same manner constitutes the crime of publishing false information under Article 250(1) of the Public Official Election Act (see Supreme Court Decision 2004Do7116, Dec. 22, 2005

In addition, the intent of the crime of publishing false facts, which is established by failing to state the period of study in a foreign educational course equivalent to that of the regular educational background, is sufficient to have awareness that the education is published without stating the period of study, and it is not necessary to know that the entry of the period of study is forced by the law. In addition, even if Defendant 1's assertion was mistaken that the period of study would not be specified, it is difficult to view that the above Defendant had justifiable reasons for such mistake solely based on the circumstance alleged by the above Defendant, such as that Defendant 1 did not explicitly indicate that the promotional materials, etc. were produced by requesting the production company of election campaign materials with extensive experience in the relevant affairs and the review of the draft thereof

In addition, the crime of publishing false facts should be determined reasonably in light of social norms by comprehensively taking into account various circumstances such as the motive and process of publication, means and method of publication, the content and mode of the act, the nature and scope of the other party to whom such publication was conducted, and the social situation at the time of the act, etc., as well as the above intentional and excessive subjective illegal factors, and the crime of publishing false facts should be determined reasonably in light of social norms (see Supreme Court Decisions 96Do2910, Apr. 25, 1997; 2007Do5953, Sept. 20, 207; 2007Do5953, Sept. 20, 2007). In particular, considering the following circumstances acknowledged by the evidence duly adopted by the first instance court and the lower court, the period of education of Defendant 1 is less than one year and the promotional materials, etc. written in foreign educational background without such a statement, it appears that the above Defendant published false facts for the purpose of election.

In the same purport, the court below is just in finding guilty of this part of the facts charged, and there is no error in the misapprehension of legal principles as to the establishment of a crime of publishing false facts under the Public Official Election Act which affected the conclusion of the

In addition, Articles 250(1) and 64(1) of the Public Official Election Act provide that the term of study shall be stated in the case of violation of the provision of the provision of the provision of the provision of the provision of the provision that the term of study shall be stated in a foreign educational course equivalent to that of the regular educational background, even if the term of study is not stated in the case of the domestic regular educational background, it can be easily recognized by the relevant Acts and subordinate statutes if it is stated in the department, school, and the year of study. On the other hand, in the case of the curriculum completed in a foreign country, it is difficult for the holder of the right to education to clearly understand the meaning of the curriculum or the degree of difficulty in completing the curriculum. The provision of the above provision of the provision of the Act requires the holder of the right to enter the term of study to secure its effectiveness and the balance between the public interest to secure the limitation effect of the basic rights and the fairness of the election process centered on the democratic procedure. Thus, it cannot be said that the provision of the above provision unfairly discriminates the candidate who has completed the curriculum in the foreign country.

However, as seen earlier, as long as the part of the judgment of the court below reversed the Defendants’ violation of the provision on the restriction of party members’ rally, the part concerning the facts charged in this part which was sentenced to one punishment in substantive concurrent relations with them

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)