[2] The standard for determining whether the “purposes to be, or not to be, a party” under the main sentence of Article 251 of the Public Official Election Act

[3] The meaning of and criteria for determining "a statement of fact" under the main sentence of Article 251 of the Public Official Election Act

[4] The requirements to eliminate illegality pursuant to the proviso of Article 251 of the Public Official Election Act

[5] In a case where the defendant registered as a candidate for a specific political party council member as a candidate for a specific political party council member, posted a notice that explicitly states the activities, attitudes, academic background, etc. of Gap who wishes to be a candidate for the same party proportional representative candidate, on several occasions, the case affirming the judgment below which recognized the defendant's crime of non-party-recommended under Article 251 of the Public Official Election Act

[6] Whether Article 251 of the Public Official Election Act is invalid against the principle of clarity in the principle of no punishment without law (negative)

[2] The phrase “purposes to make a candidate or not to be a candidate” under the main sentence of Article 251 of the Public Official Election Act is sufficient when there is insufficient perceptions that do not require active desire or conclusive recognition, and whether there was such objective should be determined reasonably in light of social norms by taking into account various circumstances, such as the Defendant’s social status, personal relation with the Defendant, candidate or candidate for competition, motive and details, means, and method of the act, details and manner of the act, nature and scope of the other party, and social situation at the time of the act.

[3] The phrase "statement of fact" under the main sentence of Article 251 of the Public Official Election Act refers to a report or statement of specific past or present facts in time and space, and the contents thereof can be proved as evidence, as a concept substitute for an expression of opinion, which is a value judgment or evaluation. When distinguishing between whether a statement is a fact or an opinion, it shall be determined by considering the ordinary meaning and usage of language, possibility of proof, the context in which the expression at issue is used, social circumstances in which the expression was made, etc. When there is a mixture of expression of opinion and a statement of fact, it shall be determined by viewing it as a whole and pointing out the fact.

[4] In order for the public allegation of facts to be dismissed pursuant to the proviso of Article 251 of the Public Official Election Act, the first statement of facts must be deemed to conform to the truth as a whole, and second, its contents are objectively related to the public interest, and third, the perpetrator is also required to have the motive to indicate the facts for the public interest. However, if the public interest is not a superior motive than the private interest, and it is merely an incidental motive compared to the private interest, it cannot be deemed to be related to the public interest.

[5] The case affirming the judgment below holding that in case where the defendant registered as the preliminary candidate for a specific political party council member of the Gu and posted a notice stating that Gap's activities, attitudes, academic background, etc. should not be a City Council member at the same website bulletin board 11 times with a complaint to the idea that the defendant would be a candidate at the same time during proportional representation, and that Gap would not be a City Council member, in a case where the defendant posted a notice stating that he would not be a City Council member of the same political party's activities, attitudes, academic background, etc., and he would not be a City Council member, the defendant merely urged the fairness of the official recruitment process or would not express his opinion on the recommendation of the candidate, but slander the candidate by stating the fact that Gap who wishes to be a candidate would not be elected in the election, and in light of all the circumstances, the defendant posted the above notice as the important motive to prevent him from being elected as a City Council member, and thus, the defendant's public interest should not be dismissed even

[6] In light of the legislative purpose, overall contents, structure, etc. of punishment laws and regulations, if there is a reasonable interpretation standard to standardized or limit the types of acts corresponding to the elements of punishment by understanding and judgment of the general public who have the ability to distinguish things, it does not go against the principle of clarity in the penal law required by the principle of no punishment without the law. In light of the above legal principles, Article 251 of the Public Official Election Act is deemed to have clarity required by the principle of no punishment without the law. In light of the above legal principles, Article 251 of the Public Official Election Act

1. As to the grounds of appeal Nos. 1 and 2

A person who intends to become a candidate" in the main sentence of Article 251 of the Public Official Election Act includes not only persons who are scheduled to run in an election but also persons whose candidate's intention to run in an election is definitely expressed, such as punishment, but also persons who can objectively recognize that they have an intention to run in an election in light of their status, contact, speech, etc. (see Supreme Court Decisions 2003Do4363, Apr. 28, 2004; 2008Do10365, Jan. 15, 2009, etc.).

Of the grounds of appeal, the argument that a person who did not receive official seal among the grounds of appeal does not constitute “a person who intends to become a candidate” under Article 251 of the Public Official Election Act is not a legitimate ground of appeal, and it does not constitute a legitimate ground of appeal, since the defendant's grounds of appeal are asserted that it did not constitute “a person who intends to become a candidate” or that the court below did not make ex officio determination. In addition, according to the evidence adopted by the court below, the non-indicted was aware that the non-indicted was working as the chairperson of the Regional Committee on ○○ River as the chairperson of the Regional Committee on Seoul Metropolitan City, and that he would run as a member of the Seoul Metropolitan City around 2009. From January 20, 2010, the non-indicted actively revealed the intention of candidate as a candidate to the local committee members including the defendant, or the standing members of the ○○ City Party with the authority to recommend proportional representation.

Therefore, the Defendant’s assertion to the effect that the lower court did not err by misapprehending the legal doctrine as to a person who intends to become a candidate for an election for public office, violating the rules of evidence, etc., and that only a candidate who has received the official election of a political party constitutes “a person who intends to become a candidate” under Article 2

2. Regarding ground of appeal No. 3

Article 251 of the Public Official Election Act provides that “The purpose of causing or preventing a candidate from being elected or going to be elected” is sufficient if there is dolusent perception without requiring active desire or conclusive recognition. Whether there was such purpose should be reasonable determination in light of social norms by comprehensively taking into account various circumstances, such as the Defendant’s social status, personal relation with the Defendant or candidate for the competition, motive and details of, and method and method of, the act, details and manner of, the act, nature and extent of the other party, social situation at the time of the act, etc. (see, e.g., Supreme Court Decisions 2003Do4363, Apr. 28, 2004; 2008Do5917, Sept. 11, 2008).

Based on evidence adopted, the lower court clearly stated that ① the Defendant: (a) registered as the preliminary candidate for the ○○○○○○○ Party Party in the Gangnam-gu Seoul Special Metropolitan City, and anticipated the Nonindicted Party to be elected as a political party; (b) posted each of the instant notices with objection to the preliminary candidate; (c) the Defendant explicitly stated the facts regarding the activities, attitudes, academic background, etc. of the Nonindicted Party, who is the local chairperson, and the Nonindicted Party should not become the member of the Seoul Special Metropolitan City; and (c) criticize the Nonindicted Party by using stimulative expressions; and (d) the Defendant’s opposition to the candidate’s candidate’s candidate’s candidate’s candidate’s election by strong language; (c) the Defendant posted the free bulletin board of the Seoul Special Metropolitan City for the political party from March 28, 2010 to March 30, 201, which was posted on the election of the said political party; and (d) determined that the Nonindicted Party’s objection to the election of the said political party was more likely to freely increase in terms and conditions of the election of the local election.

In light of the aforementioned legal principles and records, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in violation of the rules of evidence regarding “the purpose of preventing a party from being elected”

Meanwhile, the Supreme Court precedents cited in the supplemental appellate brief may differ from the instant case where the Defendant clearly expresses his intention that the Nonindicted Party should not become a member of the Seoul Metropolitan Government for proportional representation per ○○○○ Party, and it is inappropriate to invoke the instant case.

3. As to the grounds of appeal Nos. 4 and 5

The term "public allegation of fact" in the main text of Article 251 of the Public Official Election Act means the report or statement of a specific past or present fact in time and space, and the contents thereof can be proved by evidence. Whether a statement is a fact or an opinion should be determined by considering the ordinary meaning and usage of a language, the possibility of proof, the context in which the speech in question is used, the social circumstances in which the expression is used, etc. When the expression of opinion and a statement of fact are mixed, it should be determined by viewing it as a whole and pointing out the facts (see, e.g., Supreme Court Decision 2004Do2062, Jun. 25, 2004).

In addition, in order for the public allegation of facts to be dismissed pursuant to the proviso of Article 251 of the Public Official Election Act, ① the alleged facts to conform to the truth as a whole, ② their contents are objectively related to the public interest, ③ the perpetrator is required to have the motive to indicate the facts for the public interest. However, if the public interest is not necessarily superior to the private interest, it is merely a nominal motive compared to the private interest, and it is merely an incidental motive to the public interest.

After recognizing the facts, the court below held that the defendant did not merely urge the fairness of the process of public administration or present a political party's opinion on the recommendation of candidates, but it is reasonable to deem that the non-indicted intending to become the candidate of the proportional representative Seoul Metropolitan City Council member slandered the candidate by pointing out facts for the purpose of preventing the election from being elected in the election. In full view of all the circumstances such as the motive for posting each of the instant notices, the contents and purport of the notices, the contents of the expressions used, the number of times and methods of posting, etc., the defendant's complaint against the non-indicted 1 was an important motive for preventing him from being elected as a member of the Seoul Metropolitan City as proportional representative City, and thus, the illegality of each of the instant notices is not dismissed even if the defendant posted each of the above notices to the non-indicted 1, and in light of the above legal principles and records, the judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the statement of facts

4. Regarding ground of appeal No. 6

The purport of Article 254(4) of the Criminal Procedure Act that stipulates the date, time, place, and method of crime to specify the facts charged is to limit the object of trial to the court and facilitate the exercise of the defense right by specifying the scope of defense against the defendant. Thus, considering the nature of the indicted crime, it is sufficient to specify the date, time, place, method, and purpose of the public prosecution to the extent that it can distinguish the facts constituting the cause of the public prosecution from other facts in light of the nature of the indicted crime. Even if some of them are unclear, the facts charged can be specified along with the stated other matters. Thus, if there is no obstacle to the defendant's exercise of the defense right, the effect of the public prosecution does not affect (see Supreme Court Decision 2010Do2556, Apr. 29,

In light of the above legal principles, the term “election which aims to prevent a candidate from being elected” can be seen as the election of proportional representative members in Seoul, and even if the non-indicted does not provide a detailed basis for those who wish to be a candidate, it does not impede the court’s limitation on the subject of adjudication and the exercise of the defendant’s right to defense, and thus, the validity of the indictment does not affect. Therefore, the lower court did not err by misapprehending the legal doctrine on

5. As to ground of appeal No. 7

In light of the legislative purpose, overall contents, structure, etc. of punishment laws and regulations, if there is a reasonable interpretation standard to standardized or limit the types of acts corresponding to the elements of punishment as an understanding and judgment of the general public who have the ability to discern things, it shall not be in violation of the principle of clarity of punishment laws and regulations (see, e.g., Supreme Court Decisions 2001Do3531, Nov. 13, 2001; 2002Do1855, Jul. 26, 2002).

The term "person who intends to become a candidate" in the main sentence of Article 251 of the Public Official Election Act includes not only the person who is scheduled to run in an election but also the person who has objectively been aware that he/she has an intention to run in an election in light of his/her status, contact, speech, etc. as well as his/her external expression of intention to run in an election, such as punishment for an activity to obtain a candidate from a general elector (see Supreme Court Decisions 2003Do4363, Apr. 28, 2004; 2008Do10365, Jan. 15, 2009; 2008Do10365, Apr. 15, 2009). The term "when a candidate intends to be a candidate" in the proviso to Article 251 of the Public Official Election Act includes not only the person who is widely known to a political party, but also the overall interest of a specific social group or its members (see Supreme Court Decision 2008Do6325, Nov. 13, 20008).

6. Conclusion

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

Justices Lee In-bok (Presiding Justice)