[2] Whether the proviso of Article 251 of the Act on the Election of Public Officials and the Prevention of Unlawful Election can be applied mutatis mutandis to Article 93 (1) of the same Act (negative)

[3] Whether an act of delivering a printed article at a joint speech meeting place for the candidate of the head of a Gun constitutes a justifiable act under Article 20 of the Criminal Act (negative)

[4] The purport of Article 16 of the Criminal Code concerning mistake of law

[5] The case holding that it does not constitute a mistake in law

[6] Whether Article 93 (1) of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts violates the Constitution (negative)

[2] The proviso of Article 251 of the Act on the Election of Public Officials and the Prevention of Unlawful Election provides that "if a candidate is true and is for the public interest, it shall not be punished." The legislative intent of the main sentence of Article 251 of the same Act is to protect the reputation of the candidate by regulating the illegal act that defames the candidate, etc., and to ensure the fairness of the election. However, the legislative intent of Article 93 (1) of the same Act is different as it ensures the fairness of the election by regulating the election campaign by an evasion of law in the procedural aspect that is not in accordance with the method prescribed by the Act on the Election of Public Officials and the Prevention of Unlawful Election Act. Since this provision differs from the timing, object, and form of the act to be regulated, the provisions of the proviso of Article 251 of the Act on the Election of Public Officials and the Prevention of Unlawful Election can not be applied mutatis mutandis to Article 93 (1) of the same Act.

[3] Other acts that do not violate social rules as referred to in Article 20 of the Criminal Code refers to acts that can be accepted in light of the overall spirit of legal order or the social ethics or social norms surrounding it. Thus, the delivery of printed articles by the defendant of this case does not constitute "act or work performed under the law and subordinate statutes" as referred to in Article 20 of the Criminal Code, and in light of the legislative intent of Article 93 (1) of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts and subordinate statutes, the act cannot be deemed as "act which does not violate social rules, which is ordinarily acceptable in social relations in light of the overall spirit of legal order or the social ethics or social norms surrounding it." Thus, there is no room to constitute a justifiable act as referred to in Article 20 of the Criminal Code.

[4] The purpose of Article 16 of the Criminal Code is not simply to punish a misunderstanding that one's act does not constitute a crime under the law, but to punish a misunderstanding if there is a justifiable reason for such misunderstanding. It is generally accepted that it does not constitute a crime under the law, which is permitted by the law, but it does not constitute a crime under the special circumstances of one's own, and that it shall not be punishable if there is a justifiable reason for

[5] The case holding that it does not constitute a mistake in law

[6] Article 93(1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election Act limits the acts prescribed therein in relation to the election. Since the legislative purpose of the Act is to ensure the freedom and fairness of the election and to ensure the common interest of the entire citizens, the legitimacy of such restriction is recognized. The restriction has the meaning as an institutional device to ensure the freedom and fairness of election in the sense of participating, and it is difficult to present any effective means other than prohibiting such acts for a certain period of time. In particular, it is recognized that the restriction takes place under the premise that the restriction is "in order to influence the election." Such restriction is necessary and minimum measures for securing the fairness of election, and inevitable regulations do not violate the minimum principle of infringement, and it does not violate the principle of balance because there is no significant imbalance between the public interest and the freedom of expression, the right to hold public office, etc., which are protected, and thus, it does not violate the principle of equality, and thus, it does not constitute an infringement on the freedom of election campaign or the freedom of press as well as the fundamental rights of the general public.

1. As to the violation of the rules of evidence and the misapprehension of the legal principle as to the "distribution" under Article 93 (1) of the Act on the Election of Public Officials and the Prevention of Election Malpractice

The act of distributing documents, books, etc. under Article 93(1) of the Public Official Election and Prevention of Unlawful Election Act (hereinafter referred to as the "Election Act") refers to the act of delivering documents, books, etc. prescribed under the same Article to many unspecified persons. However, even if documents, books, etc. are delivered to a certain person individually, if there is a possibility that the documents, books, etc. can be disseminated to many unspecified persons, the requirements

Examining the relevant evidence in light of the records, the defendant prepared a printed article in this case, copied more than 110 pages, and delivered them to the Non-Indicted Party Training Center at the entrance of the Yangyang Elementary School, which is the joint speech room for the candidate of Yangyang-gu, Yangyang-gu, to read them. It is found that the defendant transferred the place to a young young person on his name at the left-hand side of the joint speech center in Yangyang Elementary School, and was found to have been exposed to the delivery of the printed article in this case, and that the remaining printed article was seized at the time of detection. Thus, the judgment of the court of first instance which affirmed the judgment of conviction by recognizing it as an act of distribution under Article 93(1) of the Election Act, is justifiable, and there is no error of

The grounds of appeal pointing out this issue are rejected.

2. As to the misapprehension of legal principles as to a legitimate act, by applying the proviso of Article 251 of the Election Act mutatis mutandis.

The proviso of Article 251 of the Election Act provides, however, that "if the facts are true and for the public interest, it shall not be punished." The legislative purport of the main sentence of Article 251 of the Election Act is to protect the reputation of candidates, etc. by regulating illegal acts that impair reputation against candidates, etc., thereby securing the fairness of election. However, the legislative purpose of Article 93 (1) of the Election Act differs as the legislative purpose is to ensure the fairness of election by regulating election campaigns in accordance with the evasion of laws in the procedural aspect that are not in accordance with the election law, and the timing, object, and attitude of such acts are different, so the proviso of Article 251 of the Election Act does not apply mutatis mutandis to Article 93 (1) of the Election Act.

On the other hand, "other acts which do not violate social rules" under Article 20 of the Criminal Act refers to acts which can be accepted in light of the overall spirit of legal order or the social ethics or social norms surrounding it (see, e.g., Supreme Court Decision 2000Do4415, Feb. 23, 2001). The defendant's act of delivering printed articles in this case does not constitute "act or work performed under the Acts and subordinate statutes" under Article 20 of the Criminal Act, and in light of the legislative intent of Article 93 (1) of the Election Act as seen earlier, the act cannot be deemed as "act which does not violate social rules," which is an act ordinarily acceptable in light of the overall spirit of legal order or the social ethics or social norms surrounding it, so there is no room to constitute a justifiable act under Article 20 of the Criminal Act.

In the same purport, the judgment of the court of first instance which affirmed the judgment that found the defendant guilty is just, and there is no error of law by misapprehending the legal principles on the application of the proviso of Article 251 of the Election Act by analogy and the justifiable act

The grounds of appeal pointing out this issue are rejected.

3. As to the misapprehension of legal principles as to the mistake of law

The purpose of Article 16 of the Criminal Act is not simply to punish a misunderstanding that one’s act does not constitute a crime under Acts and subordinate statutes if there is a justifiable ground for such misunderstanding, but to not punish a misunderstanding if it is aware that it is a general crime but it does not constitute a crime under Acts and subordinate statutes in his/her special circumstances, and that it does not punish a misunderstanding if there is a justifiable ground for such misunderstanding (see, e.g., Supreme Court Decision 9Do5026, Jun. 29, 2001).

According to the records, if the defendant distributes the printed matter of this case to many unspecified persons for the purpose of influencing the election in connection with the election, not specifically questioning whether it conflicts with the election law, but merely questioning whether the defendant's crime of the defendant constitutes "when there is a justifiable reason for misunderstanding" as referred to in Article 16 of the Criminal Act in the case where he delivers the printed matter to Dongyang-si, which is ordered to move to a large number of unspecified persons on behalf of oral answers, and the contents of the election commission's replies are not subject to the election law or that such acts are not against the election law. In light of these circumstances, even if the defendant asked or consulted with the election commission and distributed the printed matter of this case after he asked or consulted with the election commission, the defendant's crime of this case does not constitute "when there is a justifiable reason for misunderstanding" as referred to in Article 16 of the Criminal Act.

The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to errors in law under Article 16 of the Criminal Act

The grounds of appeal pointing out this issue are also rejected.

4. As to the unconstitutionality of Article 93(1) of the Election Act

Article 93(1) of the Election Act limits acts related to the election. Since the purpose of the restriction is to ensure the freedom and fairness of the election and to ensure the common interest of the entire citizens, the legislative purpose of the restriction is legitimate. It is recognized that the restriction has the meaning as an institutional device to guarantee the freedom and fairness of election, and it is difficult to present an effective means in addition to prohibiting such acts for a certain period of time, and in particular, it takes place under the premise that the restriction is "in order to influence the election". Such restriction is a measure or minimum measure for securing the fairness of election, and it is an inevitable regulation, and it does not violate the minimum principle of infringement, and it does not violate the principle of balance because it does not violate the principle of prohibition of excessive restriction, and thus it does not violate the principle of equality, and thus, it does not violate the principle of freedom of election campaign or the freedom of press, and thus does not infringe on the fundamental rights of the general public (see, e.g., Article 90(2) of the Election Act).

In the same purport, the decision of the court below that Article 93 (1) of the Election Act cannot be deemed unconstitutional is just, and there is no error of law by misapprehending the legal principles on the unconstitutionality of Article 93 (1) of the Election Act.

The grounds of appeal pointing out this issue are not accepted.

5. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)