The meaning of “career” in Article 250(1) of the Public Official Election Act and whether “performance in arrears” by candidates, etc. constitutes career experience (affirmative)

Article 250(1) of the Public Official Election Act refers to "career, academic background, degree, and reward" of a candidate, his/her spouse, lineal ascendant, descendant, or sibling (hereinafter "candidate, etc.") (Article 64(5) of the Public Official Election Act). In light of Article 250(1) of the Public Official Election Act, "career" refers to matters that affect the fair judgment of electors by recognizing the candidate's performance and ability as a candidate's behavior or private figure. The "performance of default" of a candidate, etc. is a major election information disclosed to the electorate pursuant to Articles 49(12) and (4)4 and 65(8)3 of the Public Official Election Act, and is recognized as a candidate, etc. for matters that affect the fair judgment of electors, such as compliance, morality, and loyalty in the process of performing tax liability. Thus, it constitutes "career."

Articles 49(4)4 and (12), 64(1) and (5), 65(8)3, and 250(1) of the Public Official Election Act

Supreme Court Decision 2010Do16942 Decided March 10, 2011 (Gong2011Sang, 790) Supreme Court Decision 201Do3717 Decided June 9, 2011

Defendant

Defendant

Law Firm Barun Law LLC, Attorneys Park Il-hwan et al.

Busan High Court (Chowon) Decision 2014No357 decided January 7, 2015

The appeal is dismissed.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 250(1) of the Public Official Election Act provides, “A person who publishes or makes another person publish false facts (including cases where he/she is not published in the manner provided for in Article 64(1) in relation to his/her spouse, lineal ascendant, descendant, or sibling (hereinafter “candidate, etc.”) in favor of a candidate (including a person who intends to become a candidate; hereafter the same shall apply in this Article) by means of a speech, broadcast, newspaper, communication, magazine, poster, propaganda document, or any other means for the purpose of being elected or made another person to be elected shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 30 million won.” As such, the term “career, etc.” refers to a candidate’s “career, academic ability, academic ability, etc.” (Article 64(5) of the Public Official Election Act) and Article 250(1)4 of the Public Official Election Act, and a person who possesses a propaganda document containing false facts, such as a candidate’s personal ability, etc. (see Supreme Court Decision 20101Da164, etc.).).

Examining the record in light of the above legal principles, the court below is just in holding that the act of the defendant, who is a candidate for military election, submitted an election campaign bulletin to the election commission and sent it to the electorate by mail, and the act of publishing and submitting falsely the amount of arrears and the current amount of arrears of the defendant and his/her lineal ascendants in the column of "performance of arrears" in the information disclosure data about the candidate's candidate's candidate's information disclosure constitutes an act of publishing false facts as to "career, etc." under Article 250 (1) of the Public Official Election Act, and contrary to what is alleged in the grounds of appeal, the court below did not err

2. As to the grounds of appeal Nos. 2 and 3

The credibility of a confession made by a defendant in the court of first instance cannot be said to be doubtful solely on the grounds that the confession in the court of first instance differs from the testimony in the investigative agency or the appellate court. In determining the credibility of a confession, the credibility of a confession shall be determined by taking into account whether the contents of the confession’s statement have objectively rationality, what is the motive or reason of the confession, what is the motive or reason of the confession, what is the developments leading up to the confession, and what is either contrary to or contradictory to the confession among other evidence than the confession (see Supreme Court Decision 2010Do2556, Apr. 29, 2010).

Meanwhile, in the crime of publishing false facts under Article 250 (1) of the Public Official Election Act, it constitutes the elements of the crime of publishing false facts, and therefore, it is necessary to recognize that the facts are false as the content of the actor's intentional act. The existence of such subjective perception is, inasmuch as it is difficult to know or prove it outside the country due to its nature, by taking into account all the circumstances such as the Defendant's academic background, career, social status, circumstances surrounding the publication, time of the publication, and the influence expected objectively (see Supreme Court Decision 2005Do2627, Jul. 22, 2005, etc.). The crime of publishing false facts is established by willful negligence (see Supreme Court Decision 99Do5190, Feb. 26, 2004, etc.). Thus, as long as it is difficult to know or prove it, the "the purpose of publishing false facts or the content of the crime of publishing false facts" is not sufficient to determine it as the result of 205Do2654, etc.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and the evidence duly admitted by the court below, the court below acknowledged the fact that the defendant led to the confession in whole of the facts charged at the court of first instance on the grounds as stated in its reasoning, and determined that the defendant was aware that the fact of publication was false for the purpose of election at the time of publication of this case in light of the evidence and circumstances supporting the credibility of confession and that the confession was false. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by violating the rules of evidence or failing to exhaust all necessary deliberations, thereby violating the rules of evidence as to the purpose of publication of false facts in Article 250(1)

3. Conclusion

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

Justices Park Poe-young (Presiding Justice)