Defendant

Both parties

The next parallel of prosecution, the subordinate constitutional court (public trial)

Attorneys Shin Sung-chul et al. and 12 others

Daegu District Court Decision 2013Gohap269 Decided December 13, 2013

All appeals by the defendant and the prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts and misapprehension of legal principles (guilty part of the judgment below)

A) Violation of the Public Official Election Act under the Act on the Election of Public Officials (Claim on Election Campaign under Article 58(1) of the Public Official Election Act)

The Defendant’s act of taking lectures (hereinafter “each of the instant teaching activities”) is limited to the scope of academic freedom (Article 22(1) of the Constitution) guaranteed by the Constitution, and cannot be deemed as an election campaign under the main sentence of Article 58(1) of the Public Official Election Act, where the purpose of promoting the defeat of a candidate for gambling is attached, or cannot be deemed as falling under an election campaign under the main sentence of Article 58(1) of the Public Official Election Act, under the premise that each of the instant teaching activities constitutes an election campaign, under the premise that each of the instant teaching activities constitutes an election campaign, under Article 58(1) proviso of the Public Official Election Act, since the Defendant’s act constitutes an election campaign under Article 58(1) by copying and distributing newspapers as indicated in the date and time indicated in each criminal facts as indicated in the judgment of the court below, and explaining the relevant contents and explanation of the relevant facts.

B) The violation of the Public Official Election Act based on the election campaign using the status (Article 85 (2) 1 of the Public Official Election Act)

The legislative intent of Article 85(2) of the Public Official Election Act is to prevent any person who has the right to direct and supervise from taking advantage of the nature of his/her duties to engage in an election campaign by taking advantage of an act related to his/her duties. However, insofar as the Defendant, a part-time lecturer, does not explicitly or explicitly indicate that the students will be at a disadvantage in the case of voting to a candidate for the benefit of gambling, or not exercising the right to direct and supervise, the Defendant cannot be deemed an illegal election campaign prohibited under Article 255(1)9 of the Public Official Election Act on the ground that each of the instant teaching acts constitutes “election campaign taking advantage of his/her status” as provided by Article 85(2).

C) Violation of the Public Official Election Act due to distribution other than ordinary methods such as newspapers (see Article 95(1) of the Public Official Election Act)

Article 95(1) of the Public Official Election Act applies to cases where the act of distributing materials conducted as part of lectures is assessed as election campaign. As seen earlier, insofar as each of the instant teaching activities, including copying and distributing newspaper articles, cannot be seen as election campaign of this case, it cannot be viewed as unlawful use of broadcasting, newspapers, etc. prohibited under Article 252(1) of the Public Official Election Act on the ground that the act of copying and distributing newspaper articles, which are mere lecture materials, constitutes “distribution other than ordinary methods of newspapers, etc.” under Article 95(1).

D) Sub-determination

Nevertheless, the lower court erred by misapprehending the legal principles and misunderstanding of facts, thereby adversely affecting the conclusion of the judgment, which found the Defendant guilty of all the teaching activities of this case conducted while distributing newspapers after copying them.

2) Unreasonable sentencing

The punishment of the lower court (one million won of a fine) is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts and misunderstanding of legal principles (not guilty part of the judgment below)

The issue of whether a newspaper article (the charge on the part of innocence in the original judgment; hereinafter “instant charge”) of the lecture published by the Defendant on October 8, 2012 constitutes an advance election campaign as of October 8, 2012 should be determined by taking into consideration the entire newspaper articles distributed on the same day. This part of the charges also must be found guilty as long as the Defendant distributed the relevant newspaper articles with intent to adversely affect the candidate for gambling. Nevertheless, the lower court acquitted the Defendant of this part of the charges. In so doing, the lower court erred by misapprehending the legal doctrine and thereby adversely affecting the conclusion of the judgment.

2) Unreasonable sentencing

The sentence of the court below is too unhued so as to be unfair.

2. Determination on the grounds for appeal

A. As to the defendant's assertion of mistake of facts and misapprehension of legal principles

1) Violation of the Public Official Election Act under the Act on Preliminary Election

A) Relevant legal principles

“Election campaign” under Article 58(1) of the Public Official Election Act refers to any active and planned act that is necessary for, or favorable to, the election or winning of a specific candidate, and that is objectively recognized by the intention of promoting the election or defeat of a specific candidate. As such, in determining whether an act constitutes an election campaign, it should be determined simply by observing not only the name of the act, but also the form of the act, i.e., the time, place, method, etc. of the act, and whether the act is an act accompanying the purpose of promoting the election or defeat of a specific candidate (see Supreme Court Decision 2010Do907, Nov. 29, 2012, etc.).

B) Determination

(1) Whether it constitutes an election campaign

In full view of all the following circumstances revealed by the evidence duly admitted and examined by the court below, namely, the timing, place, method, etc. of each of the instant teaching activities by the Defendant, each of the instant teaching activities cannot be deemed as a simple statement of opinion on the election or a simple expression of support and opposition on the recommendation of a candidate for a political party, as alleged by the Defendant, and rather, it is reasonable to view that each of the instant teaching activities is an active and planned act involving the students who are students to have negative impacts on the candidates for the newly selected fright candidates, thereby promoting the abortion.

㈎ 피고인이 각 운영위원으로 활동 중인 ‘(명칭 1 생략)(이하 ‘△△△’라 한다)’과 ‘(명칭 2 생략)(이하 ‘□□□□□’라 한다)’은 각 2012년 사업계획(안)에서 아래와 같이 의결하였다.

(1) The 18th executive members general meeting on February 25, 2012

- Business direction and membership concentration practice project: 2012 The policy for the 2012 total line and the lease are prepared in a way that △△△△ is keeping the identity as a national democratic organization, and reflects the objectives and orientation that the Consolidated Party and the Democratic Integration Party must always be changed and reflects the objectives and orientation that the Consolidated Party and the Democratic Integration Party should be changed, and prepares a position in consideration of the political inclination and needs of the members and the conditions inside and outside (Investigation Records No. 441).

-participation in activities to take place in the group of regional lines and the group of lines ( April, 12)

- The 18th General Assembly Resolution: We set aside the right to emulgion-Newsar Party, which was abandoned, by making the inter-Korean relations and external relations, democracy and civil life in the line with the general line, a entrhetort a entrhetort. We will make it possible to advance the realization of the peace agreement on the Korean Peninsula by polying the public pressure on the line with the general line and polying it from the presidential line (Investigation Records No. 464, 465 pages).

(2) The third ordinary meeting on March 6, 2012

- The general and presidential outlook and the campaign for the conclusion of the Peace Agreement: it is difficult to expect a big progress when democracy and truth-fighting failure in the presidential election and the presidential election (Article 491 of the Investigation Records).

- The △△△△ business direction and the national membership concentration project: the policy on the 2012 total line and the presidential election shall be prepared in a manner that the △△△△△ is keeping the identity of the national democratic organization, reflects the objectives and orientation that the integrated election party and the democratic integrated party must be replaced with their political power, and reflects the political inclination and needs of the members, and prepares a position in consideration of the conditions inside and outside the country (the investigative record No. 494).

③ The Defendant alleged that he was not aware of the contents of the resolution as above because he was actually and actively engaged in the activities as an operating committee. However, the Defendant was present at the △△△△△ Central Steering Committee held on January 21, 201 and February 22, 2011, and at the 17th general meeting of the △△△△△△△△ Group held on February 19, 2011. Meanwhile, the Defendant did not appear at the △△△△△ Committee held on January 26, 2010, and did not appear at the 11st regular meeting. In light of the fact that the Defendant was unable to easily accept the Defendant’s assertion that he was present at the △△△△△△ Committee’s △△△△△ Committee’s 18 general meeting, the Defendant was present at the 16th regular meeting of the △△△△ Committee’s 16th general meeting, and the Defendant was present at the 17th regular meeting.

㈏ 피고인은 ○○대학교 사회학과 시간강사로서 2012년도 2학기 ‘현대 대중문화의 이해’라는 교양과목을 ○○대학교 ◇◇관 202호에서 강의하면서 이 사건 각 교수행위를 하였는데,

① On September 28, 2012, 2012, October 12, 2012, and October 31, 2012, a professor’s act took place is about 2-3 months from July 12, 2012, which was conducted by a candidate for gambling to make a preliminary registration for the 18th presidential election under the jurisdiction of a new candidate for entertainment.

② The Defendant distributed each newspaper article to students in the lower court’s holding that the number of times did not reach 10 times, furthermore, did not duplicate one or more newspaper articles per day, but distributed them at intervals of time, and copied newspaper articles for two months and distributed them.

③ From among the 78 students attending the above lecture, the majority of the students in the first and second years of college who graduated from a high school [15 students in the first and second years in the second grade [4-66 students in the investigation records] and approximately 60 students in the second grade have voting rights.

㈐ 피고인이 학생들에게 배부한 원심 판시 신문기사들은, ‘박근혜 후보의 위험한 역사인식(2012. 9. 18.자 한겨레신문)’, ‘종박의 추억 - 유신괴물(2012. 9. 10.자 한겨레신문)’, ’유신 흔적 청산하지 않으면 변종유신 나올 수도 있다(2012. 10. 11.자 한겨레신문)‘, ‘박근혜 대통령 불가론의 출처(2012. 10. 12.자 한겨레신문)’, ‘누가 누구를 친일파라 욕하는가(2012. 10. 24.자 한겨레신문)’라는 등의 내용으로, 모두 당시 새누리당의 대통령선거 후보자였던 박근혜 후보자를 직접 혹은 간접적으로 비판하는 부정적인 기사들이다.

㈑ 피고인은 이 사건 각 교수행위를 하면서 학생들에게 배부한 원심 판시 각 신문기사들 외에도 다른 내용의 기사 또한 복사하여 학생들에게 배부한 사실이 있긴 하지만, 그 기사들 중에 박근혜 후보자에 대한 긍정적인 내용의 기사나 박근혜 후보자 외의 다른 대선 후보자들에 대한 부정적인 내용의 기사는 없었던 것으로 보인다(수사기록 제354면).

㈒ 피고인은 2010학년도 2학기와 2011학년도 1학기 뿐만 아니라, 이 사건 교수행위가 이루어진 2012학년 2학기에도 ‘현대 대중문화의 이해’라는 교양과목을 맡아 학생들에게 강의를 하였는데,

① Of the lecture plan in 2012, the part on the introduction of the lecture includes “The opportunity to share new audio-visual materials related to the heavy culture together.” Based on the understanding of the process of forming popular culture (in addition to the introduction of the concept and theories of the social science about the popular culture) of the U.S. public culture “based on the active acceptance of the forced influence and its social and political implications” (Article 564 of the Investigation Records). The part on the introduction of the lecture plan in 2012 includes “The understanding of the dynamics of the U.S. and their social and political implications” (Article 564 of the Investigation Records). It appears that there is no direct connection with the contents of each newspaper article in the judgment of the court below.

② Furthermore, in the class program in 2012, no learning using each newspaper technician as indicated in the judgment below is scheduled in the class program (as to this, the Defendant asserted that there is similarity between each newspaper technician’s act and the class program in the instant case using each newspaper engineer as indicated in the judgment below, and presented it on the ground of “the Korean Society and Public Culture problems in the 21st century.” However, the aforementioned plan only plans to provide “Announcement,” and it is not intended to discuss each newspaper engineer as indicated in the judgment below, or to have a student express his opinion, but it is difficult to accept this part of the claim).

③ Unlike the case of two semesters in 2010 and the case of one semester in 2011, the lecture evaluation of students for each of the instant teaching activities conducted in the course of two semesters seems to have a majority of the contents that indicate the Defendant’s complaint regarding the Defendant’s political opinion indication, such as “It is not for all candidates, but for dividing only the negative articles against one of the candidates into students, rather than for all candidates, it is an unchip that affects voting by creating a good image for a specific candidate.”

(2) Restrictions on freedom of study

㈎ 한편 피고인은 이 사건 각 교수행위가 허위의 사실을 학생들에게 강의한 것이 아닌 이상, 그러한 교수행위는 헌법적으로 보장되어야 하는 학문의 자유, 대학의 자율성의 본질적인 내용에 해당한다. 따라서 이러한 행위를 공직선거법에서 규정하고 있는 ‘선거운동’의 개념에 포함된다고 해석하는 것은 학문의 자유 등의 본질적인 내용을 침해하는 것이므로, 선거운동의 개념에 포함되지 않는다고 해석하는 것이 헌법에 부합하는 해석이라는 취지로 주장한다.

㈏ 그러나 헌법 및 공직선거법의 규정, 그리고 원심이 적법하게 채택하여 조사한 증거에 의하여 알 수 있는 아래와 같은 사정들을 모두 종합하여 보면, 이 사건 각 교수행위를 공직선거법에서 규정하고 있는 ‘선거운동’에 해당한다고 해석하더라도 헌법에서 보장하고 있는 학문의 자유 등의 본질적인 내용을 침해한다고 볼 수는 없으므로, 이를 전제로 한 피고인의 위 주장 역시 받아들이기 어렵다.

① Article 22(1) of the Constitution provides that “All citizens shall have freedom of learning (Article 22(1)), educational independence, speciality, political neutrality, and autonomy of universities shall be guaranteed under the conditions as prescribed by Act (Article 31(4)).” However, the Constitution provides that the restriction may be made only when necessary for national security, maintenance of order, or public welfare to the extent that such restriction does not infringe on the essential elements of freedom and rights (Article 37(2)).

② Although the Public Official Election Act provides that an election campaign refers to an act of being elected or getting another person to be or not to be elected, mere expression of opinion, expression of opinion, etc. is not deemed an election campaign (Article 58(1)), it is permitted to simply express opinions as an academic person, or to express support or criticism to a specific candidate or political party. As seen earlier, an election campaign prescribed by the Public Official Election Act does not refer to all acts affecting the election or defeat of a specific candidate, but must have an intention to pursue them, and it is limited to an active and planned act that can be objectively recognized. Therefore, in the course of conducting a study of political or public culture, insofar as it does not prohibit any academic research in a way that does not appear for the purpose of affecting the success at the time of the election campaign, it is sufficiently possible to do so in a way that does not conflict with the aforementioned statutory text and interpretation, and thus, it is difficult to view that such academic research is difficult or seriously hindered in the relevant academic area even if it is difficult to do so.

(3) The Public Official Election Act provides a separate prohibition provision in cases where an election campaign is carried out by false information (Article 82-4(2) (i.e., election campaign using information and communications networks), Article 96 (Prohibition of False Speech, Report, etc.), Article 110 (Prohibition of Slanders, etc.)), and Article 110 (Prohibition of Slanders, etc.) cannot be limited only by such prohibition provision. In addition, in cases where an election campaign is carried out with a content consistent with the truth, there is no ground to deem that all the freedom of study may not be restricted. Therefore, if the restriction on fundamental rights under Acts conforms to the purpose of restriction provided by the Constitution and it does not infringe on the essential contents thereof, it is reasonable to

④ In relation to the “election campaign by taking advantage of his/her status,” which appears directly related to the academic freedom, the Public Official Election Act prohibits not all election campaigns, but only the “election campaign by taking advantage of any occupational act within the organization” (Article 85(2)), and further, prohibiting distribution other than normal methods such as newspapers, etc. is premised on the fact that such act is an election campaign. As seen earlier, restricting election campaigns is included in the scope of statutory reservation pursuant to the Constitution, as long as it is included in the scope of statutory reservation.

(3) Sub-determination

Therefore, the judgment of the court below which held that each of the acts of professor in this case constitutes an election campaign under Article 58 (1) of the Public Official Election Act and constitutes an advance election campaign under Article 254 (2) of the Public Official Election Act is just and acceptable, and there is no error in the misapprehension of legal principles as alleged in the grounds for appeal by the defendant.

2) Violation of the Public Official Election Act due to an election campaign using status

A) Relevant legal principles

Article 85(2) of the Public Official Election Act prohibits “an election campaign to be carried out by taking advantage of an official act within the organization of educational, religious or professional institution, organization, etc.” Specifically, when determining whether a certain act constitutes “using an official act within the organization”, it shall be determined whether an act is related to his/her duties by comprehensively observing not only the duty to be dealt with based on the position of the organization, but also various circumstances, such as the time, place, method, etc. of the act (see Supreme Court Decision 2011Do1925, Apr. 28, 201, etc.).

B) Determination

As seen earlier, the Defendant is an educational institution or organization of ○ University’s social department and part-time lecturer. Since July 12, 2012, the 18th presidential election had been registered as the 18th presidential election under the jurisdiction of the 18th presidential election since July 12, 2012, the Defendant’s election campaign against more than 60 students with voting rights using the strong term “the understanding of the modern popular culture,” which is the subject of the Defendant’s lecture from December 19, 2012, which was conducted by the 18th presidential election since around 2 to 3 months before December 2012, the Defendant constitutes “an election campaign to which 60 students have voting rights by taking advantage of an official act within the organization of educational or professional institution or organization” under Article 85(2) of the Public Official Election Act.

Therefore, we affirm the judgment of the court below that each of the acts of professor in this case constitutes "election campaign taking advantage of his status" under Articles 255 (1) 9 and 85 (2) of the Public Official Election Act, and there is no error in the misapprehension of legal principles as alleged in the grounds for appeal by the defendant.

3) Violation of the Public Official Election Act due to distribution other than ordinary methods of newspapers, etc.

The judgment of the court below that the act of professor in this case committed after copying each newspaper article in the judgment of the court below constitutes an election campaign is identical as seen earlier. Thus, the defendant's assertion that the act of copying and distributing such newspaper article is merely an act of distributing lecture materials under the premise that the act of distributing lecture materials does not constitute an election campaign is acceptable. The judgment of the court below that the defendant's above act constitutes an "distribution other than ordinary methods such as newspapers" under Articles 252 (1) and 95 (1) of the Public Official Election Act is justified and there is no error of misconception of facts or of law as alleged in the defendant's grounds for appeal [On the other hand, the "distribution by ordinary method" under Article 95 (2) of the Public Official Election Act shall not be excessively infringed upon the freedom of election campaign in interpreting and applying Article 95 (1) of the Public Official Election Act to guarantee the fairness of election, and since the defendant's act of distributing the above newspaper article should not be seen to constitute an "an act of distributing newspaper article 200 after publishing it in the original way and 2000.

B. As to the prosecutor's assertion of mistake and misapprehension of legal principles

The court below found the defendant not guilty of this part of the facts charged on the ground that the contents of the article as stated in this part of the facts charged are merely an article that they should have long-term vision and goals in order to become the President who can make the whole of the people a successful figure, and it cannot be deemed that they are disadvantageous contents to the criticism of the candidates for gambling or the outcome that may adversely affect the candidates for gambling. Thus, the court below found the defendant not guilty of this part of the facts charged on the ground that it cannot be viewed as an election campaign on the ground that the reproduction of the article and distribution to the students, and then the relevant lectures were made. However, this part is not guilty as long as it was convicted of the violation of each Public Official Election Act as stated in paragraph (2) of the facts charged in the judgment of the court below, which was prosecuted on

Examining the reasoning of the lower judgment in comparison with records, the lower court’s fact-finding and determination are justifiable. In so doing, it did not err by misapprehending the legal doctrine as otherwise alleged in the prosecutor’s grounds of appeal.

C. As to the assertion of unreasonable sentencing by the defendant and prosecutor

The Defendant’s crime of this case is not an educational institution’s crime in light of the legislative intent of the Public Official Election Act, such as: (a) the Defendant, a part-time lecturer at the university, copied newspaper articles against the 18th presidential election candidate; and (b) making a prior election campaign by distributing or making negative remarks on the candidates for the 18th presidential election; and (c) making a prior election campaign in light of the legislative intent of the Public Official Election Act that intends to be fair

However, considering the fact that the defendant did not seem to have performed each teaching act of this case in connection with a specific candidate, the defendant's act does not seem to have actually had a significant impact on the election, and other various sentencing conditions, such as the defendant's age, character and conduct, environment, health conditions, motive and means of the crime, as well as the circumstances after the crime, and the scope of the punishment of the crime of this case, it is not determined that the defendant's punishment is too heavy or unreasonable. Thus, the defendant and the prosecutor's assertion on this point are without merit.

3. Conclusion

Therefore, the appeal by the defendant and the prosecutor is without merit, and all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Hyun-tae (Presiding Judge)

1) After the lower judgment was sentenced, Article 85(2) of the Public Official Election Act was amended by Act No. 12393 on February 13, 2014 to Article 85(3).