[2] In a case where a defendant who registered as a candidate for the election of the Jeju Special Self-Governing Province Council education member, was prosecuted for violating the Public Official Election Act by transmitting text messages through automatic broadcast communication to many parents three times from 180 days before the election day to the election day, the case holding that the crime of distributing documents by unlawful means under Article 255 (2) 5 of the Public Official Election Act is established on the ground that the transmission of text messages violates the restrictions provided by Article 59 subparagraph 2 of the Public Official Election Act, since the transmission of text messages violates the restrictions provided by

[2] In a case where the Defendant, who registered as a candidate for the election of the Jeju Special Self-Governing Province Council education council members, was indicted for violating the Public Official Election Act by transmitting text messages to the parents of 1,955 in total on three occasions from 180 days before the election day to the election day, using the telephone number which was not reported in accordance with the National Election Commission Regulations, the case holding that the lower court erred by misapprehending the legal principles, inasmuch as the Defendant’s act of transmitting text messages violates the restrictions on only one telephone number reported under the National Election Commission Regulations whenever transmitting each time among the restrictions under Article 59 subparag. 2 of the Public Official Election Act, on the ground that the Defendant’s act of transmitting text messages constitutes an election campaign prohibited under Article 93(1) of the Public Official Election Act, and thus, the crime of distributing documents by unlawful means

(1) 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 collectively referred to as “document 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 Public Official Election Act provides that “No person shall distribute, post, distribute, play, show, or post any advertisement, poster, photograph, document, picture, printed matter, recording, video tape, and others similar thereto (hereinafter referred to as “written distribution by unlawful means”).” Article 255(2)5 of the Public Official Election Act provides that a person who violates this provision shall be punished. The act of sending text messages in bulk constitutes the distribution of documents by unlawful means

Meanwhile, where Article 59 Subparag. 2 of the Public Official Election Act was newly established on February 29, 2012 and text messages different from the previous one are subject to election campaign, the election campaign is permitted prior to the beginning date of the election campaign. In such cases, the candidates and preliminary candidates are limited to the persons eligible for election campaign by sending text messages by means of automatic broadcast communications utilizing computers and computer-based techniques, and the number of times such messages is limited to five times, and only one telephone number reported pursuant to the National Election Commission Regulations is used every time they are sent. Article 256(3)1(b) of the Public Official Election Act provides that the candidates and those who are not preliminary candidates shall be punished, even if they are candidates or preliminary candidates, by sending text messages through automatic broadcast communications, or by sending text messages through automatic broadcast communications more than five times.

In light of the language and purport of these provisions, even in cases where an act restricted by Article 59 subparag. 2 of the Public Official Election Act was committed to influence an election between 180 days before the election day and the election day, if such act does not constitute a violation of Article 256(3) subparag. 1 (b), it is reasonable to interpret that the act of distributing a document by unlawful means as provided by Article 93(1) constitutes a violation of Article 255(2) subparag. 5 of the Public Official Election Act (see Supreme Court Decision 2014Do17290, Sept. 10, 2015).

(2) According to the evidence duly admitted and examined by the lower court and the first instance court, the Defendant, who registered as a candidate for the election of the Jeju Special Self-Governing Province Council education members of the 6th nationwide provincial election, was using the phone number that was not reported in accordance with the National Election Commission Regulations, sent text messages to 1,955 parents in total on three occasions via automatic broadcast communications.

According to the above legal principles, the Defendant’s act of transmitting text messages constitutes a violation of the restriction to use only one telephone number reported under the National Election Commission Regulations whenever transmitting each instance among the restrictions under Article 59 subparag. 2 of the Public Official Election Act, and thus constitutes an election campaign prohibited under Article 93(1) of the Public Official Election Act. Therefore, the crime of distributing documents by unlawful means under Article 255(2)5 of the Public Official Election Act is established.

(3) Nevertheless, solely based on its stated reasoning, the lower court acquitted the Defendant on this part of the facts charged, deeming that it does not constitute an election campaign prohibited under Article 93(1) of the Public Official Election Act, even if the Defendant sent text messages by means of automatic broadcast communications as above, and rendered a judgment not guilty. In so determining, the lower court erred by misapprehending the legal doctrine on Article 93(1) of the Public Official Election Act

2. Scope of reversal

As seen earlier, the part on the violation of the Public Official Election Act due to the distribution of documents by unlawful means among the judgment below should be reversed. Moreover, the part on the violation of the Public Official Election Act due to the violation of the election period due to the violation of the ordinary competition relation cannot be exempted. Meanwhile, since the court below rendered a separate sentence as to the violation of the Act on Promotion, etc. of Information and Communications Network Utilization and Communications Network Utilization and Information Protection (Violation of Information and Communications Network Utilization

3. Conclusion

Therefore, the part of the judgment of the court below that violated the Public Official Election Act is reversed, and that part of 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

Justices Lee Sang-hoon (Presiding Justice)