2018Do8338 Violation of the Public Official Election Act

A

Prosecutor

Seoul High Court (Chuncheon) Decision 2018No40 Decided May 9, 2018

December 13, 2018

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Main facts charged;

The court below, only by the evidence submitted by the prosecutor, has the defendant elected the 'E candidate' in the D election.

The purpose is to prevent the rest of the candidates except for the EE candidates from being elected in excess of the purpose.

The primary facts charged of this case are insufficient to recognize that the above facts were published.

The judgment of the court of first instance which acquitted the Defendant. The reasoning of the judgment of the court below is relevant legal principles and records.

In light of the above, the judgment of the court below is a publication of false facts under Article 250 (2) of the Public Official Election Act.

There is no error of misapprehending the legal principles on the violation of the Public Official Election Act.

2. Preliminary facts charged;

A. Article 96(1) of the Public Official Election Act provides that "any person shall distort the results of public opinion poll on election."

No vote or report shall be given or made, while Article 252(2) of the Act provides that "a person who violates Article 96(1)."

shall be punished by imprisonment for not more than five years or by a fine not less than 3 million and not more than 20 million won.”

(b) the decision of the elector by taking advantage of the trust in objectivity and fairness of the public opinion poll.

It is a provision to ensure the fairness of election by punishing wrong acts.

The prior meaning of ‘distort' is ‘distort or misunderstanding differently from the fact', and ‘misunderstanding'.

Preliminary meaning is that "any day does not fit Dog....... is distorted about fact.

the truth as a whole by hiding or concealing a false fact, or by making an exaggeration, color or manipulation;

Public Official Election Act is a way to express facts that may not be referred to. The Public Official Election Act is a false fact.

The term “distort of fact” is defined as a selective determination (Article 96(2)), and does not exclude falsity.

(4) The meaning of such distortions and the use of such distortions are also used in the meaning of the meaning of the expression of distortions (Article 8-6(4)).

In full view of the legislative purpose of Articles 96(1) and 252(2) of the Public Official Election Act as seen earlier, the same shall apply.

In the act of distorted the result of the opinion survey, the opinion survey actually conducted and all or part of the result; or

A false part of the public opinion poll that is being created or carried out, thereby causing artificial manipulation;

In addition to the case of drawing the results of the public opinion poll, there is a false representation without conducting the public opinion poll.

It is reasonable to view that the act of creating the result of the investigation also includes the act.

On the other hand, it is known that others distort the results of the public opinion poll as above.

The disclosure of the results of the public opinion poll is also made public by distorting the results of the public opinion poll, as above.

The perception is sufficient to do so even if the perception is not influence.

B. The lower court acquitted the instant conjunctive charges on the following grounds.

1) The defendant's results of the public opinion poll posted in G account (hereinafter "the results of the public opinion poll in this case")

C) there is no evidence that there has been artificial manipulation or change.

2) An actor who publishes the outcome of a public opinion poll with a different content from the fact by himself/herself

was delivered by a third party and only made public;

Even if the actor was aware of the falsity of the result of the public opinion poll at the time of publication, public officials

It is the act of publicly announcing the results of public opinion poll referred to in Article 96 (1) of the Election Act.

shall not be deemed to have been dismissed.

C. According to the legal principles seen earlier, the result of the public opinion poll conducted by falsity without conducting the public opinion poll.

The act of creating a public opinion poll also constitutes an act that distorts the results of the public opinion poll, and the third party as above.

The act of publishing distorted results of the public opinion poll by being delivered from the public opinion poll knowing the circumstances also includes the act of publishing them.

A case where the results of a public opinion poll are distorted and publicly announced by the lower court.

The defendant received the results of the public opinion poll in this case and published them as they are.

in this case, the defendant is aware that the defendant was distorted at the time of publication of the results of the public opinion poll.

In the absence of special circumstances, where it was deemed that there was a perception of the fact after an examination;

The facts charged in this case should have been convicted.

Nevertheless, the court below did not examine and decide on the above part and did not decide otherwise.

The act of simply publishing the results of the instant public opinion poll delivered by a third party, etc.

The lower court acquitted the Defendant of the instant conjunctive charges solely on the sole basis of the facts charged.

Law relating to the act of publishing distorted results of public opinion poll under Article 96 (1) of the Public Official Election Act

In so doing, the lower court erred by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

(c)

3. Scope of reversal

For the foregoing reasons, the part of the lower judgment’s ancillary charges should be reversed.

As long as the facts charged are reversed, the entire judgment of the court below, including the primary facts charged, shall be reversed.

It is inevitable to say that there is no choice.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion.

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

Justices Lee Dong-won

Justices Kim Jong-il

Justices Park Il-san

Justices Kim In-bok, Counsel for the defendant