Defendant shall be punished by a fine of KRW 3,000,000.

When the above fine is not paid, the defendant shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.

Two days of detention before the pronouncement of the judgment of the court below shall be included in the period of detention in the workhouse.

In order to order the provisional payment of an amount equivalent to the above fine.

The prosecutor's appeal on the remainder of the judgment below is dismissed.

The court below held that Article 93 (1) of the Public Official Election Act does not apply to the defendant's election campaign using the Internet, regardless of whether the contents of the notice violate the restriction under Article 82-4 (2) of the Public Official Election Act, but in light of the legislative intent of Article 82-4 (2) of the Public Official Election Act that limits the methods of election campaigns using the Internet, etc., acts contrary to this prohibition are prohibited under Article 93 (1) of the Public Official Election Act. Furthermore, the court below held the defendant's act of publishing the notice on the Internet constitutes a violation of Article 82-4 (2) of the Public Official Election Act and constitutes a violation of the aforementioned provisions of Article 93 (1) of the Public Official Election Act, although the notice in this case is an expression that the defendant's act of publishing it on the Internet constitutes a violation of Article 82-4 (2) of the Public Official Election Act and constitutes a violation of the aforementioned provisions of Article 93 (1) of the Public Official Election Act, it did not err in the misapprehension of the legal principles as to the facts charged.

2. Determination on the grounds for appeal

The relevant provisions of the Public Official Election Act and Article 93(1) of the Public Official Election Act stipulate that no one may distribute or post documents containing the contents of support, recommendation, or opposition to any political party or candidate in order to influence the election from 180 days before the election day to the election day. Article 82-4(1) of the Public Official Election Act provides that "Any person eligible for election campaign may conduct an election campaign by posting information on the Internet homepage or its bulletin board or telephone room, etc., or transmitting e-mails through an information and communications network under Article 2(1)1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. during the election period, and Article 60 of the Public Official Election Act lists those who are not eligible for election campaign under Article 60 of the Public Official Election Act. In full view of each of the above provisions, any person other than those listed in Article 60 of the Public Official Election Act may post documents that include the contents of support, recommendation, or opposition to any political party or candidate through an information and communications network during the election period.

However, Article 82-4(2) of the Public Official Election Act prohibits “an act of spreading false information about a candidate, his/her spouse, lineal ascendants or descendants, or siblings using information and communications or slandering them by openly pointing out facts.” As to whether a public prosecutor violates this provision is entitled to rate under Articles 255(2)5 and 93(1) of the Public Official Election Act, Article 82-4(2) of the Public Official Election Act merely appears to limit the contents of information to be posted on the Internet bulletin board, etc. through an election campaign using information and communications networks permitted pursuant to Article 82-4(1) of the same Act, and it cannot be deemed to be a provision restricting the method of expression. In addition, with respect to an act of spreading false information or an act of offering candidate's improper information under the above provision, it may be punished by Article 250(1) of the Public Official Election Act or Article 251(1) of the Public Official Election Act, regardless of whether the provision of Article 93(1) of the Public Official Election Act does not apply to the said provision.

Therefore, in the above purport, the fact-finding and judgment of the court below that acquitted the primary facts of this case are legitimate, and there is no reason to discuss the prosecutor's appeal against this.

3. Ex officio determination

A. Judgment on the ancillary facts charged

Before determining the remaining grounds for appeal by the public prosecutor, the public prosecutor maintained the facts charged in this case as the primary facts charged and applied for changes in the indictment to add "Article 250(2) and Article 251 of the Public Official Election Act, and Article 40 of the Criminal Act" as the conjunctive applicable provisions of the Act, and this court permitted it. Thus, we will examine the ancillary facts.

B. Facts recognized

원심이 적법하게 조사, 채택한 증거들에 의하면, 피고인은 2006. 5. 31. 실시되는 제4회 전국동시지방선거와 관련하여 서울시장 선거의 한나라당 오세훈 후보 등이 당선될 것으로 예상되자 이를 막기 위하여 한나라당 및 위 오세훈 후보를 반대하는 내용을 포스터 형식으로 패러디한 것을 인터넷에 널리 게시하기로 마음먹고, 2006. 5. 25. 별지 범죄일람표 1, 범죄일람표 2의 순번 1, 범죄일람표 3의 순번 2 기재와 같이 인터넷 사이트 (사이트 이름 생략)의 ‘패러디놀이터게시판’ 등에 ‘테러의 배후는?? 칼풍’이라는 제목 등으로 박근혜 한나라당 대표의 피습사건 사진과 함께 ‘테러는 상대방을 주범으로 몰아 곤경에 빠뜨리고 동정심을 자극하여 자기세력을 확대하고 공천비리, 성추행, 서민공방 등 불리한 조건을 한 번에 무마시킬 수 있는 강력한 신종정치공작’, ‘안풍으로 돈을 풀고 북풍으로 위기를 조장하던 때는 갔다’, ‘엄청난 배후가 있는 신종정치공작 칼풍’이라는 문구가 기재된 패러디 포스터(이하 ‘제1게시물’이라 한다)를 각 게시한 사실, 또한 피고인은 같은 날 별지 범죄일람표 2의 순번 2, 범죄일람표 3의 순번 1, 범죄일람표 4 기재와 같이 네이버의 불특정 개인블로그 (블로그 주소 생략) 등에 ‘행복한 오세훈’이라는 제목 등으로 근조라고 쓰인 등을 한 손에 든 채 자전거를 타는 오세훈 후보의 합성사진과 함께 ‘할일 없이 빈둥거리다 시장되기! 억세게 운좋은 행복한 오세훈’, ‘차떼기, 공천비리, 성추행 모두 잊게 해주시는 대표님!! 우리 구호 한 번 외치죠 근혜 대표님 고맙습니다’라는 문구가 기재된 패러디 포스터(이하 ‘제2게시물’이라 한다)를 각 게시한 사실을 인정할 수 있다.

C. Determination

First, Article 250(2) of the Public Official Election Act provides that "a person who publishes or makes another person publish false facts about a candidate, his/her spouse, or lineal ascendant, descendant, or sibling, to be unfavorable to the candidate by means of a speech, broadcast, newspaper, communication, magazine, poster, propaganda document, or any other means for the purpose of preventing the candidate from being elected." As seen earlier, the defendant, as seen above, up to the fourth nationwide local election, posts a notice on the Internet of the first "political work operated by the Hanna City City Party" clearly stating that the candidate's act of publishing false facts is obviously false in order to prevent the candidate from being elected at the fourth nationwide local election, and thus, it does not constitute an act of publishing false facts about the candidate's election, but it does not constitute an act of directly interfering with the candidate's election (Article 250(2) of the Public Official Election Act, since the defendant's act of publishing false facts about the candidate's candidate's election is merely an act of publishing false facts about the candidate's election.

Furthermore, Article 251 of the Public Official Election Act provides that "a person who slanders a candidate (including a person who intends to become a candidate), his/her spouse, lineal ascendant or descendant, or sibling by openly pointing out facts through a speech, broadcast, newspaper, communication, magazine, poster, propaganda document, or any other means, shall be punished against a candidate (including a person who intends to become a candidate) with the intention of getting a candidate to be elected or not to be elected," and as seen earlier, the first notice is only a political work operated by Korea-Japan Party, and it does not refer to a candidate, and therefore, it cannot be concluded that a candidate slanders a candidate, regardless of whether a candidate is a political party to which he/she belongs or his/her representative."

다음으로 제2게시물에 관하여 보건대, 공직선거법 제250조 제2항 , 제251조 의 각 규정내용을 종합하면, 공표하거나 적시하는 내용이 ‘사실’이어야 하고 단순한 가치판단이나 평가를 내용으로 하는 의견표현에 불과한 경우에는 허위사실공표죄나 후보자비방죄를 구성하지 아니하고, 그 구별은 언어의 통상적인 의미와 용법, 입증가능성, 문제된 말이 사용된 문맥, 그 표현이 행하여진 사회적 정황 등 전체적 정황을 고려하여 판단하여야 할 것인바( 대법원 1996. 11. 22. 선고 96도1741 판결 참조), 이 사건 제2게시물의 경우 ‘차떼기, 공천비리, 성추행 모두 잊게 해주시는 대표님!! 우리 구호 한 번 외치죠 근혜 대표님 고맙습니다’ 등의 문구는 그 문맥이나 정황 등을 고려하더라도 가치판단이나 평가를 내용으로 하는 의견표현에 불과하고, 사실을 적시하는 것으로 보기는 어려우므로, 제2게시물에 관하여는 허위사실공표죄나 후보자비방죄가 성립되지 않는다고 할 것이다.

4. Conclusion

Therefore, the part of the judgment of the court below as to the notice No. 2 among the judgment below is without merit, and the prosecutor's appeal as to that part is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act, and since there is a ground for ex officio reversal as to the notice No. 1 among the judgment below, the corresponding part of the judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act, and it is

On May 31, 2006, the Defendant: (a) anticipated that the candidate will be elected for the 4-time nationwide election of the Seoul City Mayor; and (b) appears to have increased the support rate per one party due to the occurrence of the 3-time election, such as the one-way candidate, in relation to the 2-time election of the Seoul City Mayor, the Defendant: (c) intended to create a notice stating that the candidate was a political work operated by Hanna Party without any connection with Hanna Party; and (d) intended to publish the fact that the candidate was posted on the Internet-related website in the form of a 3-day election campaign, such as the one-time election of the candidates; and (c) opened the 2-year election campaign site in the name of Hanyang University Hospital located on May 25, 2006, with the content of the 1-year election campaign, the Defendant’s website’s name and the 2-day election campaign site’s name and the 3-day election campaign site’s name and the content of the 3-party election campaign.

1. Examination protocol of the accused by prosecution;

1. Records of access to thenet trial Internet;

1. Each report on investigation;

Article 250 (2) of each Public Official Election Act (Selection of Fines)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Aggravation of Punishment on Violation of Public Official Election Act in Table 1 of Crimes at Time of Sales)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judges Lee Jae-hwan (Presiding Judge) Kim Jong-ho