[2] In a case where the act restricted by Article 59 subparagraph 2 of the Public Official Election Act was committed in order to influence the election from 180 days before the election day to the election day, whether the act of distributing a document by unlawful means as provided by Article 93 (1) 1 (b) constitutes a violation of Article 255 (2) 5, separate from the crime of violating Article 256 (3) 1 (b) (affirmative)

In addition, whether a place is open to the free access of the general public should be determined by comprehensively taking into account various circumstances, such as the structure of the place, the relationship of use, the disclosure and accessibility, and the specific control and management method of electors.

[2] In light of the language and purport of Article 59 subparag. 2 and 3, Article 93(1), Article 255(2)5, and Article 256(3)1(b) of the Public Official Election Act, where an act restricted by Article 59 subparag. 2 of the Public Official Election Act intended to influence an election from 180 days before the election day to the election day, the act of distributing documents by unlawful means as provided by Article 93(1) and constitutes a violation of Article 255(2)5, separate from a violation of Article 256(3)1(b).

1. As to the prosecutor's and the defendant's ground of appeal on door-to-door visit

A. Article 49(1) of the Local Education Autonomy Act provides that Article 106 of the Public Official Election Act shall apply mutatis mutandis to the election of Superintendent of the Office of Education, and Article 106(1) of the Public Official Election Act provides that "any person shall not visit door to door for an election campaign or for the solicitation of admission during the election period," and Article 106(2) of the same Act provides that "a person eligible for an election campaign may appeal to support a political party or candidate at a road, market, shop, store, bank, large room, or other open place where he/she is held with a ceremony of coming-of-age, marriage, funeral and funeral, regardless of the provisions of paragraph (1)."

In light of the legislative intent and legal interest of the crime of door-to-door visits to prevent illegal or unlawful promotion of election, such as the purchase of voters at a place that is not open to the public for the form of provision and election campaign under Article 106 of the Public Official Election Act, the act of door-to-door visits falls under Article 106(1) of the Public Official Election Act if not only a daily life but also a widely accessible place, a place for business, etc. or a place attached thereto, but also if a public place is open to the public for free access of the general public, it shall be interpreted that a door-to-door visits may be made for election campaigns pursuant to Article 106(2) of the Public Official Election Act.

In addition, whether a place is open to allow free access of the general public should be determined by comprehensively taking into account various circumstances, such as the structure of the place, the relationship of use, disclosure and accessibility, and the elector's specific control and management method (see Supreme Court Decision 2009Do14558, Jul. 8, 2010, etc.).

B. The gist of this part of the facts charged is that the Defendant visited each other for an election campaign by visiting 24 schools and government offices located in △△-Gun and △△-si, such as △△ Office of Education Support and △△ Office of Education, and 24 offices of government offices, as indicated in the attached Table of the lower judgment from February 5, 2014 to the next day after the Defendant registered as a preliminary candidate with respect to the election of the Superintendent of the Office of Education of the ○○○ City Office of Education of the 6th nationwide City/Do Office of Education, and filed an appeal for support.

(1) A school is a place where education for students is provided, unlike other government offices, those who are allowed to enter the school without having a civil petition as its main duties are limited to school personnel, students, parents, etc. who work for the school, and in principle, the creation of educational conditions, the protection of students, or the prevention of crimes. In fact, it is confirmed that the entrance of each school of this case is allowed to obtain prior permission, such as confirmation of the status at the entrance of the school, the purpose and place of the visit, and the receipt of a visiting certificate after recording on the visiting record. Thus, each office of this case is a place where many people have not opened to the public, and thus, the act of the Defendant visiting each school of this case constitutes door-to door visit.

(2) It does not mean that a civil petitioner’s access to a government office is permitted, and it does not mean that a civil petitioner’s access to a government office is limited to the provision of services or convenience for the government office, and the entry is prohibited by allowing access without any guidance. Thus, even if each government office’s access to a government office of this case is conducted with guidance and control, if multiple persons are expected to visit the office in question for civil petition affairs, it does not constitute a place prohibited by door-to-door

The office of each of the government offices of this case (hereinafter referred to as the "office of this case") excluding the attached office of △△ Branch and the attached office of the head of △△ District Prosecutors' Office (hereinafter referred to as the "affiliated office of this case") may be deemed to be a place open to many people, since all of the offices of this case (hereinafter referred to as the "office of this case") are scheduled to have access by the general public or civil petitioners, or the civil petitioners

In addition, the Defendant’s act of visiting the attached office of this case appears to have visited the head of the agency for the purpose of seeking an understanding of the head of the agency and having visited the head of the support office or branch office for the purpose of conducting an election campaign, and it is difficult to view that the Defendant visited the head of the support office or branch office for the purpose of conducting an election campaign

Therefore, the defendant's visit to each government office of this case cannot be viewed as a door-to-door visit prohibited under the Public Official Election Act.

C. Examining the reasoning of the judgment below in light of the aforementioned legal principles, the following is determined.

(1) The part of the judgment of the court below that the office of each of the schools of this case is an office located in a building prepared for business, etc., which constitutes "house-to-house visit" under Article 106 (1) of the Public Official Election Act, and it cannot be seen as a place open to many people under Article 106 (2) of the same Act because ordinary people's ordinary access is restricted in principle, and therefore the defendant's visiting the office of each of the schools of this case constitutes a door-to-door visit prohibited under the above provision is acceptable. The judgment of the court below in this part did not err by misapprehending the legal principles

(2) However, it is difficult to accept the judgment of the court below that the defendant's visiting each government office of this case does not constitute a door-to-door visit prohibited under the Public Official Election Act for the following reasons.

(A) First, the annexed office of this case is an office in a building established for the work of the pertinent government office, and not only falls under the “title” of Article 106(1) of the Public Official Election Act, and it cannot be said that the ordinary access of the general public is permitted without going through prior consent procedures. Thus, it cannot be said that the annexed office of this case is an open place where many people pass and pass from the public under Article 106(2)

In addition, even if the defendant visited the head of the support and branch office for the purpose of seeking an understanding of the head of the agency and providing personnel affairs in order to visit other offices of the relevant government office, it is reasonable to view that the defendant itself constitutes an act of visiting "for election campaign" as stipulated in Article 106 (1) of the Public Official Election Act, since he/she informs his/her name as a candidate and received convenience of election campaign.

(B) Next, the instant office also constitutes an office in a building established for the pertinent work, etc. under Article 106(1) of the Public Official Election Act.

However, if a civil petitioner’s free access to the office of this case is possible and multiple people pass to and depart from the office of this case, visit for an election campaign can be permitted, and it is not different solely on the basis that the office of this case must take certain procedures such as guidance during the process of entering and leaving the office. However, in order to recognize the office of this case as a public place where many people pass to and depart, it is not determined that the office of this case has the possibility of ordinary people’s access, and it is not permissible to conduct an election campaign in a general and ordinary manner in light of the purpose, structure, accessibility, etc. of the internal space of the office of this case, such as where the office of this case is established for civil petitioners or where exclusive space

Therefore, without examining these circumstances in detail, it cannot be readily concluded that the instant office is a place open to the majority of people solely on the ground that the access of the general public is scheduled as shown in the lower judgment.

(C) Nevertheless, the lower court determined that the act of visiting each government office of this case does not constitute door-to-door visits prohibited under the Public Official Election Act for reasons contrary to its stated reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on door-to-door visits prohibited under the Public Official Election Act, thereby adversely affecting the conclusion of the judgment. The Prosecutor’s ground of appeal assigning this error

2. As to the grounds of appeal by the prosecutor on sending text messages by unlawful means

A. Article 93(1) of the Public Official Election Act provides that “No person shall distribute, post, distribute, play, or post any advertisement, letter, poster, photograph, document, picture, picture, printed matter, recording, video tape, and others similar thereto (hereinafter referred to as “distribution by unlawful means”) that contains contents supporting, recommending, or opposing a political party or candidate in order to influence an election from 180 days before the election day to the election day, or that the name of a political party or candidate is indicated, and Article 255(2)5 of the same Act provides that “No person shall distribute a document by unlawful means.” Article 255(2)5 of the same Act provides that the act of sending text messages in bulk constitutes the distribution of a document by unlawful means (see Supreme Court Decisions 2006Do7847, Feb. 22, 2007; 2007Do3940, Aug. 23, 2007, etc.).

Meanwhile, Article 59 Subparag. 2 and 3 of the Public Official Election Act was newly established on February 29, 2012 and, unlike the previous one, in cases where an election campaign is carried out by posting a text message or sending a text message on an Internet homepage or its bulletin board or video room or by sending an e-mail, an election campaign is permitted before the beginning date of the election campaign period, but Article 59 Subparag. 2 of the same Act limits persons who are able to carry out an election campaign to candidates and preliminary candidates, and the frequency thereof shall not exceed five times, and Article 256 Subparag. 1(b) of the same Act provides that a person who violates this provision shall be punished.

In light of the language and purport of these provisions, in cases where the act restricted by Article 59 subparag. 2 of the Public Official Election Act is intended to influence the election between 180 days before the election day and the election day, it is reasonable to interpret that the act of distributing documents by unlawful means as stipulated in Article 93(1) is a violation of Article 255(2)5, separate from the crime of violating Article 256(3)1(b).

B. The gist of the facts charged in this part of the facts charged is as follows: (a) from January 28, 2014, before the Defendant’s election of the superintendent of education conducted on June 4, 2014 to the next day, the Defendant sent text messages (hereinafter “instant text messages”) to 378,681 electors on four occasions in order to have an impact on the election, on the election, from January 28, 2014 to the next day, on four occasions; (b) distributed documents by means of an automatic broadcast communication method; and (c) according to the reasoning of the lower judgment, the Defendant is aware of the fact that

C. Examining these facts in light of the provisions and legal principles of the Public Official Election Act as seen earlier, the Defendant’s act of sending text messages of this case by means of automatic broadcast communication without a candidate or preliminary candidate at the above office of education constitutes a violation of Article 59 subparag. 2 of the Public Official Election Act, which constitutes a violation of Article 59 subparag. 1(b) of the Public Official Election Act, and constitutes a violation of Article 256(3) subparag. 1(b) of the same Act, and the act of distributing documents by one way to influence an election between 180 days before the election day and the election day constitutes a violation of Article 2

D. Nevertheless, on the erroneous premise that the act of carrying out an election campaign by sending text messages does not constitute a document distribution by means of a law prohibited under Article 93(1) of the Public Official Election Act, the lower court acquitted this part of the charges charged as charged for violating the Public Official Election Act by distributing documents by means of a wrongful method.

Therefore, in so determining, the lower court erred by misapprehending the legal doctrine on Article 93(1) of the Public Official Election Act, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit

3. As to the remaining grounds of appeal by the defendant

For the reasons indicated in its holding, the lower court determined that the transmission of the instant text messages constitutes an election campaign prohibited under Article 59 subparag. 2 of the Public Official Election Act, based on (1) the content, time and motive of the instant text messages, differences from the time and motive of the transmission, and whether the recipient of the instant text messages received the instant text messages as an election campaign, and rejected the Defendant’s allegation in the grounds of appeal that the instant text messages constitute an election campaign prohibited under Article 59 subparag. 2 of the Public Official Election Act, and (2) the sending of the instant text messages constitutes “the sending of the instant text messages to a person, etc. of courtesy,” and that the Defendant did not constitute an

Examining the reasoning of the lower judgment in light of the relevant legal principles at the time of the original adjudication, the lower court did not err in its judgment by misapprehending the legal doctrine regarding election campaign under the Public Official Election Act, or by exceeding its interpretation, thereby affecting the conclusion of the judgment.

4. Scope of reversal

As seen earlier, the part of the judgment of the court below regarding the violation of the Public Official Election Act due to door-to-door visits and the part regarding the violation of the Public Official Election Act due to the distribution of documents by means of unlawful means should be reversed.

However, the part is related to the guilty part of the violation of the Public Official Election Act due to door-to-door visits, and the part is related to the violation of the Public Official Election Act due to the violation of the Public Official Election Act due to the violation of the election period and the violation of the Public Official Election Act due to the transmission of text messages by a candidate or preliminary candidate, and each commercial concurrent crime due to the transmission of text messages by the automatic broadcast communication method. Accordingly

5. 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 on the bench.

Justices Ko Young-han (Presiding Justice)