[2] The case holding that the defendant shall be held liable for publishing false facts under Article 250 (2) of the Act on the Election of Public Officials and the Prevention of Unlawful Election, unless a new supporting document is presented, since it cannot be deemed that the defendant's materials submitted as supporting material for his/her statement that the defendant disclosed to the extent that the prosecutor can prove the falsity of the fact

[3] The criteria for determining whether there is a falsity in the crime of publishing false facts under Article 250 (2) of the Act on the Election of Public Officials and the Prevention of Unlawful Election

[2] The case holding that the defendant shall be held liable for publishing false facts under Article 250 (2) of the Act on the Election of Public Officials and the Prevention of Unlawful Election, unless a new supporting material is presented, since it cannot be deemed that the defendant's materials submitted as supporting material for his own statement have the possibility of proving the falsity of the facts disclosed by the prosecutor to the extent that the prosecutor can prove the existence of such facts

[3] In the crime of publishing false facts under Article 250 (2) of the Act on the Election of Public Officials and the Prevention of Election Malpractice, it constitutes the elements of a crime of publishing false facts, and therefore, it is necessary to recognize that the facts are false as the contents of an actor's intentional act. Since such subjective perception is difficult to know or prove it outside due to its nature, the existence or absence of such subjective perception should be determined normatively by comprehensively taking into account all the circumstances such as the Defendant's academic background, career, social status, process of publication, timing of publication, and expected ripple effect, etc. on the basis of the contents and identity of the publication, the existence and content of the explanation, the source of the fact

1. Summary of the judgment below

The gist of the facts charged in this case is that the defendant was a candidate for the 17th National Assembly member of Korea who was open to the election district of the 17th National Assembly member of Korea, and the facts were delivered to the President of the 17th National Assembly member of the 17th National Assembly member of the 17th National Assembly member of Korea (hereinafter referred to as "victim") and used in the 17th National Assembly member of the 17th National Assembly member of Korea (hereinafter referred to as "victim"). However, it is necessary to review to the effect that, at the 11th National Assembly member of the 17th National Assembly member of Korea on April 2004, the defendant, who was a candidate for the 17th National Assembly member of the 17th National Assembly member of Korea, to the effect that he was using for the 17th National Assembly member of the 17th National Assembly member of the 17th National Assembly member of the 17th National Assembly, and that the 10th National Assembly member of the 10th National Assembly member of the Ma was publicly announced.

As to the above facts charged, the court below rejected the defendant's assertion that "the defendant's statement of this case is used currently for corruption funds deposited in the Switzerland bank's secret account (hereinafter referred to as Switzerland's secret funds") by the victim, considering the ordinary meaning, context, circumstances, etc., since the defendant's statement of this case is inconsistent with the victim's ordinary meaning and the defendant's statement of this case, it is hard to find that the defendant's statement of this case was non-indicted 1's secret statement of Switzerland bank's Switzerland and non-indicted 1's secret statement of this case was delivered to the victim." On the other hand, in order to establish the crime of publishing false facts under Article 250 (2) of the Public Official Election and Prevention of Unlawful Election Act (hereinafter referred to as the "Public Official Election Act"), it is difficult to find that the defendant's statement of this case was non-indicted 6's secret statement of Switzerland bank's 1's secret statement of this case, or that non-indicted 1's secret statement of this case was not delivered to the victim.

2. Judgment of the Supreme Court

However, it is difficult to accept the decision of the court below that there is no proof of the falsity of the facts publicly announced by the defendant or the recognition of the defendant.

(1) First, considering the health stand, the content and context of the instant remarks admitted by the lower court, its timing and circumstances, and the political and social background at the time of the Defendant’s remarks, the part where it is necessary to examine whether the Defendant’s non-financial funds are currently used in the election can be evaluated as having raised an piracy based on the premise that the aforementioned non-financial funds have been delivered to the victim. Thus, the establishment of the instant crime depends on the falsity of the portion for which the said non-financial funds have been delivered to the victim (hereinafter “non-financial delivery portion”) and whether the Defendant is aware of the aforementioned non-financial funds.

(2) We examine the proof as to the falsity of the part of the delivery of the non-funds.

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 public prosecutor is false, and the crime of publishing false facts cannot be established only with the fact that the public prosecutor has no proof of truth (see Supreme Court Decision 2003Do5279, Nov. 28, 2003, etc.).

However, in determining whether or not the above burden of proof has been fulfilled, a prosecutor who is the active party must prove the absence of a specific act at a specific period and at a specific place, as well as the active existence of a certain fact. However, it is not possible for a prosecutor to prove the absence of a specific fact in an unspecified period and space, while it is more easy for the prosecutor to assert and prove the existence of a fact while it is not possible to prove the absence of a specific fact in social norms. Thus, such circumstance should be considered in determining whether the prosecutor fulfilled the burden of proof (see Supreme Court Decision 9Do5190 delivered on February 26, 2004). Accordingly, a person who claims that there was no suspicion against a person who asserts that there was a fact that there was no suspicion should be a burden of proving the existence of such fact, and the prosecutor can prove the credibility of the presented fact by impeachmenting its credibility (see Supreme Court en banc Decision 201Do6138 delivered on Feb. 20, 2003.).

According to the records, among the materials submitted by the defendant as a vindication of the above non-indicted 3's explanation of the above non-indicted 3, the corresponding part of the statement may be written. However, according to the suspicion on the creation and existence of the Switzerland Bank's non-indicted 1's funds managed by the non-indicted 1, it refers to a considerable amount of money, and some objective grounds are presented in a relatively detailed manner (in this case, it is introduced that the non-indicted 1 claims that the non-indicted 1's funds would be scarfy) while the above Switzerland Bank's non-indicted 1's non-indicted 1's statement was changed in the victim's name and the victim found the money, it is difficult to recognize the non-indicted 3's statement or the above non-indicted 4's statement of this case as materials stating that the above Switzerland bank's non-indicted 6's non-indicted 3's statement or non-indicted 4's statement of opinion without specifying the source, place or method after the defendant's statement of this case.

If so, in light of the above legal principles, the above explanatory materials alone cannot be deemed as having the existence of the falsity of the suspected facts of this case publicly announced by the defendant to the extent that the prosecutor can prove the falsity of the suspected facts of this case. However, in addition to the above explanatory materials, as long as the defendant failed to submit separate explanatory materials as to the above suspected facts until the investigation agency, the first instance court, and the lower court, the defendant should be held liable for publication of false facts as it falls under the case where the defendant failed to present additional explanatory materials supporting the existence of the suspected facts of this case.

(3) Next, we examine the lower court’s preliminary determination as to whether the Defendant perceived the falsity of the instant statement.

In the crime of publishing false facts under Article 250 (2) of the Public Official Election Act, the contents of the crime of publishing false facts constitute the element of the crime. Therefore, as long as it is difficult to know or prove it outside of the country due to its nature, the existence or absence of such subjective perception shall be determined in a normative manner by comprehensively taking into account all the circumstances such as the defendant's academic background, career, social status, circumstances surrounding the publication, time of publication, and expected ripple effect, based on the contents of the crime of publishing false facts. In light of these legal principles, it is difficult to see that the materials that the defendant submitted with the vindication are without any awareness of the falsity.

(4) Thus, the court below erred in the misapprehension of facts against the rules of evidence, incomplete hearing, or misunderstanding of legal principles as to the establishment of falsity and its recognition in the crime of publishing false facts under Article 250 (2) of the Public Official Election Act, and it has affected the conclusion of the judgment. Thus, the prosecutor's ground of appeal pointing this out has merit.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is 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.

Justices Park Jae- Jae (Presiding Justice)