A defendant shall be punished by imprisonment for six months.

However, the execution of the above punishment shall be suspended for one year from the date this judgment becomes final and conclusive.

The defendant shall be ordered to provide community service for 60 hours.

A. Defendant

(1) On the violation of the regulations on restrictions on transmission of the election campaign information

As the Defendant entered the phrase “when refusing to receive” in the transmission of text messages, the Defendant’s act did not constitute a crime of violating the Public Official Election Act due to a violation of the provisions on restrictions on transmission of election campaign information. Even if the Defendant’s act constitutes the above elements, the Defendant’s act constitutes a crime of violating the Public Official Election Act due to a violation of the provisions on restriction on transmission of election campaign information. Even if the Defendant’s act constitutes the foregoing elements, it cannot be said that the Defendant’s act was committed by mistake under the relevant Acts and subordinate statutes.

(2) As to the election campaign using a telephone with a automatic transmission device installed by computer

The telephone used by the defendant during the election campaign period shall not constitute a telephone installed with an automatic transmission system using computers.

(b) Prosecutors;

With regard to acquittal of facts or misunderstanding of legal principles (as to the acquittal of reasons for a candidate)

2. Determination

A. Defendant’s assertion on violation of the regulations on transmission restriction of the election campaign information

(1) The defendant's act does not constitute a violation of the regulations on transmission restriction of the election campaign information

Article 82-5 (2) 4 of the Public Official Election Act provides that a person who transmits by electronic mail information for the purpose of election campaign (hereinafter referred to as "election campaign information") or transmits by telephone (excluding direct conversations between transmission and receipt), shall specify matters concerning measures and methods that make it easy to refuse to receive the election campaign information, and Article 82-5 (5) of the same Act provides that a person who transmits the election campaign information shall take necessary measures so that an addressee does not bear the telephone charges and other monetary expenses incurred when he/she refuses to receive the information. Article 82-5 (2) of the same Act provides that a person who fails to specify or falsely states the facts, etc. falling under the election campaign information in violation of the provisions of Article 82-5 (2) of the same Act and a person who has an addressee bear the expenses in violation of the provisions of paragraph (5) of the same Article shall be punished by imprisonment for not more than one year or by a fine not exceeding one million won.

Comprehensively taking account of the evidence duly adopted and examined by the first instance court, the Defendant: (a) indicated in all text messages “The Election Campaign Information>”; (b) indicated Nonindicted 5’s “At the time of revocation of Nonindicted 5’s license to drive a candidate for drinking alcohol”; or (c) indicated Nonindicted 5’s “At the time of Non-Indicted 5’s revocation of his license to drive a candidate for drinking alcohol”; and (d) sent text messages by inserting the phrase “on the time of refusal to receive”, or read “on the time of refusal to receive,” or read “on the time of refusal to receive,” and sent text messages by automatically indicating or automatically indicating “○○-○○○○, etc.”.

However, transmission of text messages according to such a method cannot be deemed as having indicated in the election campaign information matters concerning measures and methods which an addressee may easily express his/her intention of refusal to receive, or having taken necessary measures so that an addressee does not bear the telephone charges and other monetary expenses incurred when an addressee refuses to receive the text messages. Therefore, it cannot be said that an addressee complied with the provisions on restrictions on transmission of election campaign information.

(2) The defendant's act does not constitute a crime that is committed by mistake of law

Article 16 of the Criminal Act provides that an act of misunderstanding that one's own act does not constitute a crime under the Acts and subordinate statutes shall not be punishable only when there are justifiable grounds for misunderstanding. However, it is generally accepted that his act constitutes a crime, but it does not constitute a crime under the Acts and subordinate statutes in his own special circumstances, and if there are justifiable grounds for misunderstanding, it shall not be punishable. Whether there exists a justifiable reason shall be determined depending on whether the act of misunderstanding is not aware of the illegality of his own act as a result of misunderstanding, even though it was possible to recognize the illegality of his act if the act was done with his intellectual ability, and there was a chance that the act of misunderstanding could have been aware of the illegality of his act, and the degree of efforts necessary for recognizing the illegality should be determined differently depending on the situation of the act of misunderstanding, the individual's awareness ability, and the social group to which the actor belongs (see Supreme Court Decision 2005Do3717, Mar. 24, 2006, etc.).

Comprehensively taking account of the evidence duly adopted and examined by the first instance court, Nonindicted 3’s response that Nonindicted 4, a defendant, entered the contents of “the prime time by eliminating or rejecting the receipt of the election campaign information” from employees of the Seongbuk-gu Election Commission is acknowledged as having been written “the prime time by deleting or restricting the methods and restrictions on the election campaign during the election campaign period, and providing information on prohibited matters” as a guide to refuse the receipt. However, it is difficult to view that the “election campaign information for a political party or candidate” as a guide to refuse the receipt of the text messages as the method of transmitting the text messages, and it is difficult to view that Nonindicted 3 did not have any legitimate reasons to believe that the Defendant did not have any right to receive the election campaign information in a way corresponding to the time of preparation of the election campaign information, without being misunderstanding the details of the election campaign information, but rather, by making it difficult to consider that the Defendant did not have any legitimate means to make it difficult for him to use the message to receive the information in a separate way as prescribed in Article 48(2) of the Public Official Election Act.”

(b) Defendant’s assertion on the election campaign using a telephone installed with an automatic transmission device using a computer;

(1) Summary of the facts charged

While no one is allowed to conduct an election campaign using a phone installed with a computer during the election campaign period, the defendant made Nonindicted 1 purchase of approximately one million won per unit of the mobile phone in which the program for sending large numbers of text messages is installed (number omitted), and the defendant made Nonindicted 3 send text messages to the above Nonindicted 6 mobile phone using the aforementioned mobile phone (number omitted), from around 16:07 to April 23, 2008, at the election office of the defendant located in the Daejeon Sung-dong (number omitted and floor number omitted), and made Nonindicted 3 send text messages to the above Nonindicted 6 mobile phone using the aforementioned mobile phone (number omitted), and from around 21:11 to April 23:01, 208, the defendant made the above two text messages sent to 32,205 times as shown in the attached Table (1) during the election campaign period using the automatic computer during the election campaign period. < Amended by Act No. 8879, Apr. 3, 2008>

(2) Determination

(A) Article 109(1) of the Public Official Election Act provides that “No one shall carry out an election campaign using letters, telegramss, facsimiles, or other means of telecommunication during the election period: Provided, That the same shall not apply to cases where a personal computer or telephone (excluding telephones installed with automatic transmission devices using computers) is used.” The legislative intent of the provision is to prevent election campaign by simply transmitting and receiving text messages on a one-time basis, one-time and without discrimination, and where the full permission is granted, by means of massive or non-discrimination transmission and reception of letters and telecommunications. Therefore, the election campaign using such methods of correspondence and telecommunications is, in principle, prohibited, inasmuch as it is intended to prevent such acts from being carried out, only when it is intended to carry out an election campaign using a personal computer, or when it is intended to transmit text messages on a one-time basis without installing automatic transmission devices, such as a large number of telephones or non-discrimination transmission and transmission of text messages on a computer (see, e.g., Supreme Court Decision 201Do4164, Apr. 2015).

(B) In light of the aforementioned legal principles, comprehensively taking account of the evidence duly adopted and examined by the first instance court and the testimony of Nonindicted 7 and 8 witnesses of the party trial, the following circumstances acknowledged by the Defendant’s act of transmitting text messages to the instant mobile phone to the instant mobile phone cannot be deemed as constituting sending text messages by the phone using the computer. Therefore, this part of the facts charged constitutes a case where there is no proof of a crime.

(1) Generally, the mobile phone apparatus includes the function of sending text messages at a time after choosing several reception numbers with a reception number. The number of reception numbers by which the defendant can send text messages at a time when he/she purchases and uses text messages at a time is only more than the general mobile phone operator, and it does not use computers in transmitting text messages at a time.

② In case of transmitting text messages via the Internet by means of a computer, it is possible to freely transmit text messages without limitation on the number of telephone numbers by taking the method of display. However, in the case of sending text messages by the cellular phone of this case, the number of telephone numbers by which text messages can be sent once is limited to a maximum of 1,00 cases, and the time required for sending text messages is far longer than the time required for sending, because the number of telephone numbers by which text messages can be sent by the cellular phone of this case is limited to a total of 1,00 cases. As such, the method of sending text messages by using the cell phone of this case does not lead to large-scale and non-discrimination transmission of text messages.

(3) However, when inputting the recipient’s phone number from which text messages are sent into the instant mobile phone device, the phone number x-rayed by the computer instead of inputting the phone number into one’s daily hand is capable of using the computer in such cases as it has the function of moving it into the cable line or the USB line to the mobile phone device, and it cannot be said that the phone installed with the automatic transmission system using the computer.

④ The National Election Commission also sent election campaign information by installing a program to increase the volume of text messages sent on a cell phone base without linking computers, the National Election Commission sent out the election campaign information in violation of Article 255(1)19 and Article 109(1) of the Public Official Election Act (the reply of the Chairperson of the National Election Commission on April 19, 2006). This also states the following matters in the National Election Commission’s “Method of, and restrictions on, election campaign campaigns during the period of election campaign, and guidance on prohibited matters” published by the Neong-gu Election Commission.

C. misunderstanding of facts or misunderstanding of legal principles as to the prosecutor's non-compliance of candidate

(1) Summary of the facts charged

Although anyone was unable to defame a candidate by openly pointing out false facts for the purpose of preventing election, on June 27, 2007, the right of self-injury train business, which had been a lodging train business at Daejeon, had Non-Indicted 5 attend the interview between Incheon on June 27, 2007 and Non-Indicted 3 (the decision was not at issue in the process of examination or points calculation, there was no political logic, and was technical and objective evaluation). The Defendant told Non-Indicted 3 to the effect that on March 28, 2008, Non-Indicted 4, including Non-Indicted 3’s debate on the TJB broadcasting station on April 1, 2008 and Non-Indicted 2’s debate on April 2, 2008 and Non-Indicted 3’s mobile phone number omitted from Non-Indicted 5 to Non-Indicted 48’s election campaign.

(2) The first instance judgment

Even if the Defendant sent a text message to Nonindicted 5’s “Nonindicted Party 5’s self-injury train support statement,” it is merely a critical reference to Nonindicted Party 5’s political activities, and it cannot be deemed as a content of Nonindicted Party 5’s personal criticism, and thus, it cannot be deemed as a defamation. Even if such text message constitutes a defamation, it is recognized that the content of the text message was for the public purpose of providing data to the electorate to select a member of the National Assembly suitable for the election of National Assembly members by meeting objective facts as a whole and explaining the candidate’s political opinions, etc. on regional pending issues, and that it was reasonable and found the Defendant not guilty of this part of the facts charged on the ground that it was reasonable.

(3) Judgment of this Court

(A) The meaning of “a person who slanders a candidate by pointing out facts” in Article 251 of the Public Official Election Act refers to a person who defames the candidate by pointing out facts related to the candidate, and includes indirect facts that may interfere with the candidate’s election (see, e.g., Supreme Court Decision 2006Do8368, Mar. 15, 2007). The term “abrupting” refers to the person who renders the other party to the extent that the other party’s social evaluation against the other party would be infringed without a justifiable reason or who closed the srash (see Supreme Court Decision 2007Do2824, Sept. 21, 2007).

(B) However, considering the evidence duly adopted and examined by the first instance court as to this part, ① the government decided to operate a pilot project in Incheon with regard to the self-injury train project, which was a long-standing accommodation project in the Daejeon area; ② the government’s de facto sense at that time took place in Daejeon area; ② Nonindicted 5’s statement about the above decision was made in the newspaper reporter’s interview with the newspaper reporter; and ② Nonindicted 5’s statement about the above decision at the debate of the broadcasting station was not supported by the Incheon, but it was evident that the government could not find the procedural defects of the above decision made by the Defendant; ③ Nonindicted 5 was well aware of this; ③ Nonindicted 5’s mobile phone text messages sent by the Defendant to the elector, namely, Nonindicted 5’s mobile phone text messages, Nonindicted 5’s act of sending the candidate’s text messages to the candidate’s candidate’s candidate’s candidate’s election, and Nonindicted 5’s act of abusing Nonindicted 5’s candidate’s election to the elector in light of the contents of his election campaign.

(C) In relation to the crime of aiding and abetting candidates under Article 251 of the Public Official Election Act, the facts alleged in the statement are consistent with the truth in light of its content and nature, as a whole, and objectively viewed the public interest in light of its substance and nature, and there is a motive for an actor to indicate the facts for the public interest. It does not necessarily mean that the public interest is superior to the private interest, and if there is both parties, the illegality is excluded pursuant to the proviso of the same Act (see Supreme Court Decision 2008Do6337, Sept. 25, 2008, etc.).

However, in the case of this case, even though the contents of the above text message are weak and its meaning is not very meaningful, in light of the overall context of the expression, method of expression, etc., the defendant's act is not unlawful since the statement of the non-indicted 5 candidate that the decision made by the Incheon Government as the operator of the pilot project of the pilot project of the self-injury train was an objective decision without procedural defects, rather than an expression that the non-indicted 5 candidate's statement was a littlely expressed, rather than an expression that the non-indicted 5 candidate's statement was well made by the operator of the pilot project of the self-injury train area Incheon, it is difficult to regard it as a true contents. In addition, it is difficult to view it as a true contents, and the purpose thereof is to provide the candidate's political opinion on the regional pending issues with the explanation of the candidate's political opinion about the local pending issues, rather than that it was a public interest to provide the elector with the candidate's political opinion distorted by the non-indicted 5 candidate's political opinion.

3. Conclusion

Therefore, pursuant to Article 364(6) of the Criminal Procedure Act, all of the judgment of the first instance is reversed, and it is again decided as follows after pleading.

1. Violation of the regulations on restrictions on transmission of the election campaign information;

Where any person transmits the election campaign information by e-mail or a telephone, he shall specify the facts corresponding to the election campaign information, and the measures and methods therefor which make it easy to refuse to receive the election campaign information, and any person who transmits the election campaign information shall take measures necessary to prevent the receiver from bearing the telephone charge, and other financial expenses which occur when the receiver refuses to receive the election campaign information.

Nevertheless, on April 3, 2008, the Defendant sent a text message to Nonindicted 6’s cell phone (number omitted) using Nonindicted 1’s cell phone (number omitted) from the above election office, which was located in the Sungdong-dong (number omitted) of Daejeon Seodong-gu, Daejeon, the Defendant sent to Nonindicted 3, the Defendant, using Nonindicted 1’s cell phone (number omitted) from the above election office, “○○-○○○○○○○○, which is at the time of the cancellation of the driver’s license to drive a candidate for drinking alcohol,” at the same place on April 5, 2008, at the same time on April 11:23, 2008, using Nonindicted 3’s cell phone (number omitted) in the above Nonindicted 10’s cell phone (number omitted), and did not send a text message to Nonindicted 5’s mobile phone number from around 31 to April 21, 208, or entered the same phone number from around 30 days to 31:48.21.

Accordingly, while transmitting the election campaign information, the defendant did not specify the measures and methods to facilitate the expression of intention to refuse to receive the information, or did not take necessary measures so that the receiver does not bear the telephone charges and other monetary costs incurred when the receiver refuses to receive the information.

2. Slandering candidates;

No person shall defame a candidate by openly pointing out false facts, with intent to prevent him/her from being elected.

On June 27, 2007, the right of self-injury train business, which had been a lodging train business at Daejeon City, stated that “The decision did not have any problem in the process of review or calculation of points, there was no political logic intervention, and technical and objective evaluation was conducted.”

On March 28, 2008, at the TJB Broadcasting Station debate, on April 1, 2008, and the CMB Broadcasting Station debate on April 2, 2008, the Defendant asked Nonindicted 5 candidates questions about the above remarks three times in total, and asked Nonindicted 5 candidates about the above remarks, and from Nonindicted 5 candidates “the above decision was not well made, but it was impossible to find any procedural defect in the above decision.”

Nevertheless, the Defendant sent a text message to the electorate that “Non-Indicted 5’s self-injury train support report” was “Non-Indicted 5’s self-injury train support report” to the electorates, thereby inducing the electorates to misunderstand that Non-Indicted 5’s self-injury train business right was well known to be Incheon, thereby leading the electorates to be used in favor of their election campaign.

On April 5, 2008, the Defendant sent a text message to Nonindicted 3 as Nonindicted Party 9’s cell phone, as stated in paragraph 1, at around 21,370 times from March 30, 2008 to April 8, 2008, which read “the statement of support for Nonindicted Party 5’s self-injury trains to Incheon,” as well as the above text message from March 30, 2008 to April 208.

Accordingly, the defendant slandered the candidate by openly pointing out facts for the purpose of election.

1. Investigation protocol of Nonindicted 3 by prosecution

1. Each police protocol on Nonindicted 5, 9, 11, 12, and 13

1. Statement of seizure of each police;

1. Each report on investigation;

1. Notification of communications data;

1. Two books on account of the details of telephone communications;

1. Each letter or photograph;

Article 251 of the Public Official Election Act (the point of a candidate). Articles 255 (4), 82-5 (2) and (5) of the Public Official Election Act (the point of violation of the Restriction on Transmission of Election Campaign Information)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act

1. Selection of punishment;

Imprisonment Selection

1. Suspension of execution;

Article 62(1) of the Criminal Act

It is so decided as per Disposition for the above reasons.

[Attachment Table 1, 2, and community service order]

Judges Kim Sang-ok (Presiding Judge)