[공직선거및선거부정방지법위반][공2005.6.15.(228),1004]
[1] The meaning of " newspapers, communications, magazines, or the organ or other publications of institutions, organizations, or facilities that are allowed to distribute pursuant to Article 95 (1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election
[2] The case holding that the publication of a magazine does not constitute a newspaper, communication, magazine, or an organ of an institution, organization, facility, or other publication as provided by Article 95 (1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election
[1] In light of the purport of Article 95 as a special rule for Article 93 of the Act on the Election of Public Officials and the Prevention of Unlawful Election Act and the overall structure of the Act on the Election of Public Officials and the Prevention of Unlawful Election, which take strict restrictions on the election campaign, the term "examination, etc." under the above provision shall be limited to those issued with certain types of signs, such as a document, an issuer, and a publishing date, for a considerable period exceeding the level of simple documentation and drawings. Although the form of newspaper and magazine was conducted, if it was not published and distributed repeatedly for a considerable period of time to determine whether it was distributed in a normal way, it shall not be limited to "documents, pictures, printed materials, etc." under Article 93 (1).
[2] In a case where an article on the election of National Assembly members was published and distributed free of charge, the case holding that the above magazine does not constitute "a newspaper, communication, magazine, or the organ of an institution, organization, or facility, or other publication" under Article 95 (1) of the Act on the Election of Public Officials and the Prevention of Election Malpractice on the ground that it was not published and distributed repeatedly for a considerable period of time to determine whether the above magazine was distributed in a normal way as a publication
[1] Article 95 of the Act on the Election of Public Officials and the Prevention of Election Violations / [2] Article 95 (1) of the Act on the Election of Public Officials and the Prevention of Election
Defendant
Prosecutor
Busan High Court Decision 2004No934 delivered on January 12, 2005
The appeal is dismissed.
We examine the grounds of appeal.
Article 95 (1) of the Public Official Election Act (hereinafter referred to as the "Public Official Election Act") provides, apart from Article 93, that prohibits the distribution or posting of documents and drawings by unlawful means, that "shall not distribute newspapers, communications, magazines, institutions, organizations, or other publications carrying articles related to election in any way other than ordinary one, or reproduce and distribute such articles." Paragraph (2) of the same Article provides, "distribution by ordinary means" shall be issued and distributed within the previous method and scope, and Article 252 (1) provides, "any person who violates the provisions of Article 95 (1) shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding 6 million won," which is more severe than that of a violation of Article 93 (1) of the Public Official Election Act (hereinafter referred to as "the act of distributing newspapers, such as newspapers, telecommunications, magazines, or institutions, organizations, facilities, or other publications, which are more than that of an ordinary news report than that of an ordinary newspaper, which is more than that of an ordinary news report."
According to the reasoning of the judgment of the court below, the court below affirmed the judgment of the court of first instance that acquitted the defendant on the ground that "the defendant did not have any evidence to acknowledge the fact that the defendant distributed the title of the magazine of this case to residents free of charge in a way other than ordinary methods, as the title of the magazine of this case, in relation to the number of publication, distribution area, and distribution method as the title of the magazine of this case," by distributing the title of the newspaper of this case to the 17th National Assembly election from March 29, 2004 to April 3, 2004, "the defendant violated Article 95 (1) 2 of the Public Official Election Act by distributing the title of the newspaper of this case, which is a magazine of the 17th National Assembly election."
However, it is evident that even according to the facts charged in the instant case, the instant magazine does not have been published and distributed repeatedly for a considerable period to determine whether it is distributed in a normal way as a creative title, and in light of the above legal principles, the instant magazine does not constitute “a newspaper, etc.” as provided in Article 95(1) of the Public Official Election Act. Thus, apart from punishment for a violation of Article 93(1), the facts charged in the instant case does not constitute a violation of Article 95(1) of the Public Official Election Act, without examining whether the Defendant’s method of distributing the instant magazine constitutes an ordinary method.
Therefore, although the above decision of the court below is different from its reasoning, it is just in its conclusion, and the argument in the grounds of appeal on the premise that the magazine of this case constitutes "the newspaper, etc." under Article 95 (1) of the Public Official Election Act is without merit.
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Yang Sung-tae (Presiding Justice)