A. Although the Defendant, misunderstanding of facts and misapprehension of legal principles, as stated in the facts charged, distributed printed matter as follows, the Defendant did not aim to avoid winning D, a presidential candidate of the C Party, for the purpose of influencing the election or preventing him from being elected.

Nevertheless, the court below which found the defendant guilty has erred by mistake of facts or by misunderstanding of legal principles.

B. The punishment sentenced by the lower court (an amount of five million won) is too unreasonable.

2. Determination

A. Under the premise that “in order to influence an election” under Article 93(1) of the Act on the Election of Public Officials, the relevant legal principles restrict the acts set forth therein. However, in determining whether an act is an act to influence an election, it is not necessary to make an affirmative desire or conclusive perception to influence an election, but it is sufficient solely with dolusence.

It should be reasonably determined in light of social norms by comprehensively taking into account various circumstances, such as the Defendant’s social status, the relationship between the Defendant and the candidate and the competing candidate or political party, the motive, details and means of the act, the details and manner of the act, the social situation at the time of the act, etc. (see Supreme Court Decision 2004Do8969, Jun. 23, 2005, etc.). The term “purpose for the prevention of winning an election” under Article 250(2) of the Public Official Election Act refers to the purpose for the prevention of winning an election in an election for public office under Article 2 of the Public Official Election Act.

In addition, it is sufficient to recognize that the candidate is unable to be elected by the publication of false facts, and it does not require active desire or desire to result in such a result, and whether there is such objective or not, shall be the social status of the defendant, personal relations with the defendant, the candidate or the competitor, the motive and method of the publication, the details and method of the publication, the contents and form of the act, and the nature and scope of the other party where such publication was conducted.