[1] The meaning of "public disclosure of facts" in the crime of publishing false facts under Article 250 (2) of the Public Official Election Act and the meaning of "public allegation of facts" and the criteria for determining such facts

[2] In a case where the Defendant was indicted for violating the Public Official Election Act (Publication of False Facts) on the ground that he published the phrase “AOUT head,” which called “A OUT head,” in the form of tweeting the phrase “A OUT head,” even though the Defendant, who wishes to be a candidate for a National Assembly member election, was merely cut off for agreed processing, to be a proposal for the ratification of the Korea-U.S. FTA, the case holding that the above phrase constitutes an expression of critical opinion in a anti-competuous manner when comprehensively considering all the circumstances, and that it is difficult to deem that the said phrase “a false fact

[3] In a case where the Defendant was indicted on charges of violating the Public Official Election Act (candidate counter-party) by inserting a letter stating that “A candidate intending to be a candidate for a National Assembly member’s election and Party B did not have a joint and several relationship with each other, he she saw “A candidate completely good, and participated in a meeting jointly and severally with Party B who sought to be a candidate for a National Assembly member.” The case holding that the illegality of the above act is excluded when considering all the circumstances, in light of all the above circumstances

[1] The term “public disclosure of facts” in the crime of publishing false facts under Article 250(2) of the Public Official Election Act and the term “public statement of facts” in the crime of aiding and abetting candidates under the main sentence of Article 251 of the same Act mean a report or statement on specific past or present facts in time and space, and the contents of expression can be proved by evidence. In determining whether a statement is a fact or an opinion, it shall be determined by considering the overall circumstances, such as the ordinary meaning and usage of language, possibility of proof, context in which the speech in question was used, social circumstances in which the expression was made.

[2] In a case where the Defendant was indicted for violating the Public Official Election Act (Publication of False Facts) on the ground that “A, who wishes to be a candidate for the election of the 19th National Assembly member, published the phrase “A’s OUT 1” (hereinafter referred to as “T-2”) that read the phrase “A’s OUT 1, which was the type of fasting of the Korea-U.S. FTA from the 19th National Assembly member, on the tweet to the tweet or deliver it to the tweet, even though the form of urginging the tweet to reach an agreement against the one side of the Korea-U.S. FTA and the United States of America (hereinafter referred to as “Korea-U.S. FTA”), the case holding that the Defendant’s 20th Public Official Election Act’s tweet the so-called “a’s tweet to the tweet the so-called “the tweet 20th National Assembly member’s tweet,” was expressed in a way.

[3] In a case where the Defendant was indicted on charges of violating the Public Official Election Act (candidate counter-party) on the ground that “A intending to be a candidate for the election of the 19th National Assembly member, and B intending to be a candidate for the 19th National Assembly member, did not jointly and severally agree with each other, but the Defendant took part in a meeting jointly and severally with B, who prepared a letter stating that “A saw to be a candidate for the 19th National Assembly member candidate. He participated in a meeting to be a candidate for the 19th National Assembly member with B, who tried to be a candidate for the 19th National Assembly member, in the camping line, the case holding that the illegality of the above act is denied on the grounds that A was believed to be true, and there was a considerable reason to believe that the Defendant was true and to be a public interest, and that it was for public interest.”

[1] Articles 250 (2) and 251 of the Public Official Election Act / [2] Article 250 (2) of the Public Official Election Act, Article 325 of the Criminal Procedure Act / [3] Article 251 of the Public Official Election Act, Article 325 of the Criminal Procedure Act

[1] Supreme Court Decision 99Do4260 delivered on April 25, 200 (Gong2000Sang, 1350) Supreme Court Decision 2006Do8368 Delivered on March 15, 2007 (Gong2007Sang, 580)

Defendant

Both parties

Civil Red and one other

Attorney Park Im-soo

Seoul Central District Court Decision 2012Gohap1253 Decided May 23, 2013

The guilty part of the judgment of the court below is reversed.

The defendant shall be innocent.

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

A. The defendant (the part concerning the crime)

(1) misunderstanding of facts or misapprehension of legal principles

(A) The phrase “Non-Indicted 1 OUT Headquarters” (hereinafter “this case’s so-called “the so-called”) that the Defendant was the Defendant’s tweeted of the door-to-door “Stweeted” was a short-style farmer who urged Non-Indicted 1 to process the agreement under the Korea-U.S. FTA, and was present at the plenary session for the so-called “day-to-day” processing, and merely expressed criticism or rumor’s opinion as to the inconsistency in the quorum, and it cannot be deemed that the Defendant published “the false fact”, but the lower court erred by misapprehending the legal doctrine or by misapprehending the legal doctrine, thereby affecting the conclusion of the judgment.

(B) Although the Defendant did not recognize the phrase of this case, and even if he knew of family affairs, he did not do so with the awareness that he was aware that he was aware of the expression expressing critical opinion, and that he did not do so, the lower court recognized the Defendant’s intentional act as to the publication of false facts and the crime of publishing false facts premised on the purpose of abortion against Nonindicted 1 candidates, which erred by misapprehending the legal doctrine or by misapprehending the legal doctrine, which affected the conclusion of the judgment.

(2) Unreasonable sentencing

The punishment (fine 5 million won) sentenced by the court below is too unreasonable.

(b) Public prosecutor (not guilty part);

(1) Although the defendant could have a doubt that the defendant's joint and several information could be false, it was published without any specific confirmation, so the defendant's willful negligence in relation to the falsity should be recognized. However, the court below erred by misapprehending the legal principles or by misapprehending the legal principles, which affected the conclusion of the judgment.

(2) As the Defendant used the sacrific expression that “I have completely satisfyed the candidates for Nonparty 2’s inventive step” in Twitter bulletin, the Defendant constitutes a crime of unsatisfying candidates in fact.

2. Judgment on the defendant's assertion of mistake of facts or misapprehension of legal principles (the part concerning the crime)

A. Summary of this part of the facts charged

From July 2010 to March 13, 2012, the Defendant was engaged in activities as a member of the Seoul Metropolitan Council of the 8th National Assembly, and was engaged in an election campaign to make Nonindicted 3 elected as an election campaign worker in status as an election campaign worker from March 29, 201 to March 13, 2012, with respect to the election of the 19th National Assembly members from December 19, 2011 to March 13, 2012.

According to the Public Official Election Act, no one shall publish false facts about any person who intends to be a candidate or candidate in communication or by other means to be disadvantageous to any person who intends to be a candidate or candidate for the purpose of preventing him/her from being elected.

On November 13, 2011, when engaging in activities as the 18th National Assembly member belonging to Seongbuk-gu Seoul Metropolitan Government National Assembly member election, Nonindicted Party 1, a preliminary candidate non-party 1, who belongs to the Seongbuk-gu Seoul Metropolitan City local constituency Gap, began with a simple ceremony after having paid the name that the Free Trade Agreement between the Republic of Korea and the United States of America (hereinafter “Korea-U.S. FTA”) consented to ratification by agreement, the violence of the National Assembly becomes dead, and the assistance of the people and the members of the ship and the Gu. On November 22, 2011, the consent to ratification of the Korea-U.S. FTA continued to be held for at least ten days until the National Assembly plenary session to which the proposal for ratification was

On March 2, 2012, the Defendant, as seen above, only 10 minutes of the consent to the ratification of the Korea-U.S. FTA and the amendment of the National Assembly Act for the prevention of violent incidents in the National Assembly in Korea-U.S. National Assembly by mutual agreement, did not seem to have been processed by means of “day-to-day” expressed by some media from a critical point of view. However, even though the Defendant’s Twitter prepared the Defendant’s Twitter “(i.e., e., e., i., e., e., e., i., e., i., e., e., “(i., e., e., e., e., twitter)” and sent it to the Defendant’s Twitter, and published “Non-Indicted 1 OUT 1’s Twitter’s “T 1,000 and the Defendant’s Twitter’s “880 U.S.”.

As a result, the Defendant published false facts with respect to Nonindicted 1 in a manner unfavorable to Nonindicted 1, who wishes to become a candidate for the 19th National Assembly election by means of telecommunication such as Twitter, etc., with the aim of preventing election.

B. The judgment of the court below

In the crime of publishing false facts under Article 250 (2) of the Public Official Election Act, the court below held that it is sufficient for the elector to have the identity sufficient to correct the accurate judgment of the candidate or the person who intends to be a candidate, and that the concept is replaced by an expression of opinion, the value judgment or evaluation of which means a report or statement on specific past or current facts in time and space, and that the contents of the expression can be proved by evidence (see Supreme Court Decision 2008Do11847, Dec. 22, 2011, etc.). After considering the legal principles, the court below determined that the contents of the instant Tweet text of this case are reports or statements on the past specific facts of the past stating that “non-party 1 was called as soon as possible,” and it is sufficiently possible to prove whether Non-Party 1 was aware of it for such purpose by evidence, and thus, it constitutes a “fact” in this case, because it has the identity to the extent that it could mislead the accurate judgment on Non-Party 1.

In addition, Non-Indicted 1 determined that Non-Indicted 1’s consent to ratification by the agreement of the Korea-U.S. FTA and the amendment of the National Assembly Act to prevent physical fightings in the National Assembly was just a single fact, and that the above tweet that the Defendant tweeted constituted “public announcement of false facts” and that there was a perception of such falsity on the Defendant.

After determining as above, the lower court found the Defendant guilty of publishing false facts as to this part of the facts charged.

C. Judgment of the court below

(1) Relevant legal principles

The term "public announcement of facts" in the crime of publishing false facts under Article 250 (2) of the Public Official Election Act and "public allegation of facts" in the crime of publishing candidate corruption under the main sentence of Article 251 of the same Act mean a report or statement of facts with respect to the time and space of specific past or current facts, which is a substitute for an expression of opinion with respect to value judgment or evaluation, and its contents can be proved by evidence. The distinction between whether a statement is a fact or an opinion should be made in consideration of the overall circumstances, such as the ordinary meaning and usage of language, possibility of proof, context in which the statement in question was used, social circumstances in which the expression was made (see Supreme Court Decision 2006Do8368, Mar. 15, 2007, etc.).

(2) Determination as to whether the tweet language of this case is “fact” or “fact”

(A) Only the ordinary meaning and usage of the language used in the instant tweet text, and the elements of the possibility of proof, there is no room to regard it as “facts”. In other words, even if the phrase itself is in itself, the part of “the “Wal” and “OUT head” contained in the instant tweet text can be seen as an expression of opinion. However, if the part of “Non-Indicted 1, who called the Korea-U.S. FTA as soon as possible, was limited to the ordinary meaning of that language,” the part of “Non-Indicted 1, who was called the Korea-U.S. FTA, can read it as to the specific past facts that “Non-Indicted 1, as soon as possible,” and it can be seen that it is possible to prove how Non-Indicted 1 actually had any intention.

(B) However, in light of the context in which the instant Tweweing sentence is used, the purport of the instant Tweing sentence is that Nonindicted Party 1 called the Korea-U.S. FTA as soon as possible, and that the National Assembly member urged the ratification or resolution of the National Assembly on a certain bill by means of “pathing,” and urged the National Assembly member to do so as soon as possible, is very exceptional that it is an ordinary member’s act, and it is difficult to accept that such an act has actually existed. In other words, in light of the context of the instant sentence, rather than delivering or reporting actual facts, it appears that the context itself itself appears that the instant sentence appears to have revealed that there was a reflect or rare opinion or evaluation, or that at least it is likely to do so.

(C) Next, we examine the social circumstances at the time.

① According to the evidence duly adopted and examined by the lower court and the lower court, the following facts can be acknowledged.

On November 13, 201, Non-Indicted 1, a member of the National Assembly at the time, who was in a state of a long-term substitution between the parties and the opposition party with respect to the ratification of the Korea-U.S. FTA in the political right of the State Council, announced his name to oppose the unilateral settlement of the Korea-U.S. FTA and to urge him to process the agreement, and to oppose the exercise of physical power at the National Assembly, and began a ceremony at the National Assembly hall.

The above short ceremony of Nonindicted Party 1, a member of the National Assembly of the Republic of Korea, became a major news report through the media, and Nonindicted Party 1 himself also had an interview with a journalist or made a public announcement of the purport and progress of a short ceremony using his Twitter account from time to time, and on November 15, 201, Nonindicted Party 1 stated that “if the short ceremony is terminated without prejudice and physical conflicts occur due to the forced treatment of the conduct and the lack of the power, it will go to the general line of the internal election.”

On November 22, 2011, 201, the Republic of Korea-U.S. FTA(U.S.) opened the plenary session of the National Assembly, decided ex officio the ratification of the Korea-U.S. FTA(s) and dealt with it by voting. In the process, physical conflicts between the National Assembly members were occurred.

㉣ 공소외 1은 단식을 중단하고 위 본회의에 출석한 후 표결에서는 기권하였다. 공소외 1의 이러한 행위에 대하여 합의처리를 촉구하는 단식까지 하였음에도 위와 같은 일방처리 본회의에 출석하여 의사정족수를 채우는 역할을 하였다는 이유로 일부 언론과 트위터 등에서 비판이 제기되었다.

In order to criticize the above acts of Nonindicted Party 1 from November 22, 2011, some citizens made a so-called “food farming” that they drink in front of Nonindicted Party 1’s office, and such contents were known through the media and Twitter.

In the 19th election of the National Assembly members, Non-Indicted 1 went to the 19th National Assembly members.

② According to the above facts, prior to the tweeting of the instant Tweweet text, there was criticism that even though Nonindicted 1 of the National Assembly members did not agree on the one-way process of the Korea-U.S. FTA and urged the agreement process, it was contradictory to the quorum for the attendance at the plenary session where one process and physical conflict occur, and such critical opinion was expressed in a anti-constition and stituous manner, and the contents of such criticism and rumor were known through the press.

In light of the social circumstances at the time, it is reasonable to view that the instant Tweweets expressed critical opinions on Nonindicted 1’s act that was being raised at the time rather than simply delivering or reporting the facts.

(D) As examined above, the following circumstances are acknowledged by the context of the instant Tweweet text, the social circumstances of the lower court and the evidence duly admitted and investigated by the lower court. ① Nonindicted Party 1’s purpose and background of the instant short sentence, and the passage process of the National Assembly ratification Draft of the Korea-U.S. FTA are not only considerably known through the media but also social issues as its own. ② The instant Tweet text contacts search the instant text by using the Defendant’s Tweet or Internet, and it is difficult to see that Nonindicted Party 1’s initial expression of the instant Tweet text, including Nonindicted Party 1’s opinion, or that Nonindicted Party 1’s initial expression of the Defendant’s non-indicted 1 or 18’s opinion, or that Nonindicted Party 4’s initial expression of the instant article’s private life, including the fact that Nonindicted Party 1’s initial expression of the instant article appears to have known or could have easily known that it constitutes a candidate for the instant election campaign.

(3) Sub-decisions

Therefore, the term “twebing” of this case constitutes an expression of critical opinion, and it is insufficient to view that the evidence submitted by the prosecutor alone constitutes a case where “a false fact” is publicly announced. Nevertheless, the lower court’s determination that found the Defendant guilty of the crime of publishing false facts as to this part of the facts charged is difficult to accept, and the Defendant’

3. Judgment on the prosecutor's assertion of mistake or misapprehension of legal principles (not guilty part)

A. Summary of this part of the facts charged

around 7:00 on March 15, 2012, the Defendant participated in the Defendant’s office located in Seongbuk-gu Seoul Yungdong, and Nonindicted 2 of the 19th election campaign team for the National Assembly member of Seongbuk-gu was jointly or indirectly in front of the 19th election campaign period and the so-called the 19th election campaign period and sought solidarity or solidarity with Nonindicted 1 in a direct or indirect manner. However, the Defendant’s Twitter published the Defendant’s 10th election campaign in a way that “Nonindicted 2 of the Seoul Seongbuk-gu election campaign is open to the front of the 19th election campaign period and the 19th election campaign period. Nonindicted 2 of the 19th election campaign period and the 19th election campaign period and the 19th election campaign period, and the 10th election campaign period and the 10th election campaign period, and published the 10th election campaign period and the 1st election campaign period in the 0th election campaign period.”

B. The judgment of the court below

The lower court determined that it was difficult to view that Nonindicted Party 1 and Nonindicted Party 2 were present at a meeting that had talked to the effect that Nonindicted Party 2 would help Nonindicted Party 3 make a reverse selection in the middle line of the right of way, but Nonindicted Party 2 participated in the said meeting to promote solidarity with Nonindicted Party 1, and that Nonindicted Party 3 was present at the democratic integration party in Seongbuk-gu Seoul Metropolitan City, with regard to the election of the 19th National Assembly Members, there was a complaint between Nonindicted Party 3 as a candidate for the democratic unification party in Seongbuk-gu, Seoul, and that there was insufficient reason to view that Nonindicted Party 5 and Nonindicted Party 2 were present at that meeting, and that Nonindicted Party 5 and Nonindicted Party 2 were present at that meeting, and that Nonindicted Party 5 and Nonindicted Party 3 were not present at that meeting, and that Nonindicted Party 5 and Nonindicted Party 2 were present at that meeting, and that Nonindicted Party 5 and Nonindicted Party 3 were not present at that meeting.

C. Judgment of the court below

The reasoning of the judgment below is as follows. ① Some members of the Democratic Integration Party against Nonindicted 3 at the time met at a meeting of Nonindicted Party 2, and some members found Nonindicted Party 1’s election campaign office and met Nonindicted Party 1. ② The aforementioned partial members of the Democratic Integration Party wished to assist Nonindicted 2 at the meeting or divide Nonindicted Party 1’s opinions in the course of Nonindicted Party 1’s election campaign in order to fall from the presidential election for the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right of the party.

Therefore, the decision of the court below that the defendant did not have awareness of the falsity is reasonable, and the prosecutor's assertion of the dispute is without merit.

4. Judgment on the ancillary charges added at the trial

A. Addition of the ancillary charge

On March 15, 2012, the prosecutor maintained the charge as to the part concerning the publication of false facts (the part concerning innocence in the original trial) on March 15, 2012 as the primary charge, and applied for the amendment of indictment with respect to the application of the provisions of the Act as "crimes of Non-Party Election", "Article 251 and Article 40 of the Criminal Act", "Article 251 and Article 40 of the Criminal Act", and applied for the amendment of indictment with respect to the addition

B. Preliminary charges

Nonindicted 2 preliminary candidates in the Seongbuk-gu election for the National Assembly member Gap in the election for the Seongbuk-gu National Assembly member Gap are going to the so-called election for the 19th National Assembly member, the so-called election for the 19th National Assembly member by Nonindicted 3 preliminary candidates and the so-called election for the 19th National Assembly member. Meanwhile, Nonindicted 2 and Nonindicted 1, who belongs to the same local constituency, are also in front of the 19th election for the 19th National Assembly member. There is no fact that they shared with each other because they are completely different from the head of a political caution and position, and there was no fact that they conspired with Nonindicted 3 in order to get the success of the Democratic Integration Party, who was dissatisfied with Nonindicted 3, and eventually attempted solidarity by indirect means through the pages of the preliminary candidates belonging to the Democratic Integration Party.

Around 7:00 on March 15, 2012, the Defendant took part in a gathering jointly with Non-Indicted 1's non-indicted 3 candidate who was born from the Republic of Korea, who had been employed in the camping region in the middle of Seongbuk-gu, Seoul. Around 7:00, at the Defendant's office located in Seongbuk-gu, the Defendant entered the Defendant's Twitter in the front line of Seongbuk-gu, Seoul. Around 15, the Defendant’s Twitter (“Seoul Seongbuk-gu”) written a letter stating the Defendant's “Twit” and sent it to Non-Indicted 1,00, and the Defendant's Twitter "Seong-gu,” which was linked to the above Twitter to Non-Indicted 80 persons, for the purpose of prohibiting the election from being elected. As a result, the Defendant publicly announced the fact that the Defendant was a candidate for the election of the National Assembly member by publicly pointing out the fact that he could not be elected.

C. Determination

(1) Even if another candidate slanders a candidate by openly pointing out facts by means of a speech for the purpose of preventing an election, it is true that the statement is not punishable when it is about the public interest. The proviso of Article 251 of the Public Official Election Act is stipulated, and if there is no proof that the statement is true, it is believed that the actor is true, and there is no reasonable reason to believe that it is true (see Supreme Court Decision 96Do519, Apr. 23, 1996, etc.).

(2) As seen earlier, it is difficult to view that the content of the instant Twitter bulletin that Nonindicted Party 2 participated in a meeting with Nonindicted Party 1 or in order to jointly and severally and severally with Nonindicted Party 1 is proven to be true. However, there was a reasonable reason to believe that the content was true and that the Defendant believed that it was true and that there was a reasonable reason to believe that it was true.

In addition, according to the public interest, it can be said that the purpose of the election of the National Assembly members to be a competitor in the election of the National Assembly members with a view to avoiding the counter-party candidate, and that the political opinion is shared with or attempted to be jointly with the candidate from a female candidate who is entirely different from the political position in the election of the National Assembly members, and the election of the National Assembly members itself may distort the intention of the elector in the election of the National Assembly members and infringe on the fairness of the election. Therefore, preventing this and informing the elector of the intention of the elector in the election of the National Assembly members, and such public interest interest is considerably important. This is the following circumstances recognized by the evidence duly adopted and investigated by the court below, namely, ① the defendant's mobile voting and the public opinion polls for the election of the National Assembly members in the election of the National Assembly members with a view to the fact that the defendant's right to vote was given in advance, ② the defendant's right to vote and the defendant's right to vote immediately before the posting of this case, ③ the meaning and purpose of the defendant's right to vote.

(3) Therefore, this part of the facts charged was believed to be true by the defendant, and there are reasonable grounds to believe that this part of the facts charged is related to the public interest, and thus, the illegality of this part of the facts charged is dismissed (On the other hand, the twitter bulletin of this case includes the expression "the candidate who is not affiliated with Non-Indicted 11 Ghana," but it constitutes a statement of true facts, except for the value judgment or appraised factors contained in the expressions, such as sub-party evidence, grix, v.g., budget, media music, and g., if the twitter bulletin of this case, it appears that the use of the above expression is intended to emphasize that the political position between Non-Indicted 2 and Non-Indicted 1 is different, as seen earlier, since it is recognized as the purpose and reasonableness for the public interest, it is difficult to view the illegality of this expression even if there is such expression).

5. Conclusion

Therefore, the part of the judgment of the court below which found the defendant guilty in the judgment of the court below on the grounds that the defendant's appeal is well-grounded, it is reversed pursuant to Article 364 (6) of the Criminal Procedure Act without examining the defendant's argument of unfair sentencing, and it is again decided as follows. The prosecutor's appeal on the part of innocence is without merit. Thus, it is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act since the prosecutor's appeal on the part of the judgment of the court below as to the part of the preliminary facts added in the trial should be dismissed (

The summary of this part of the facts charged is the same as that of the above 2. A. C., and on the same grounds as seen in the above 2.C., this part of the facts charged falls under a case where there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article 325

Judges Kim Dong-ok (Presiding Judge)

Note 1) Evidence No more than 388 pages