Defendant

Prosecutor

Completion of species

Attorney Park Gi-soo

Daegu District Court Decision 2006Gohap785 Decided April 18, 2007

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

A. Regarding the scope of “Intra-Party Competition”

The Public Official Election Act does not explicitly define the intraparty competition, and recommending candidates through document screening shall be included in the scope of the intraparty competition since public opinion, personal qualities, etc. are selected and recommended by examining the public opinion, personal qualities, etc. inside and outside of the party at the request of those who intend to be the candidate for the public election.

B. Whether the Defendant publicly announced “false facts”

In light of the fact that Non-Indicted 2 paid the party membership fee in Daegu Metropolitan City, Non-Indicted 2 was merely the fact that he paid the party membership fee to Non-Indicted 2, and the fact that Non-Indicted 2 paid the party membership fee to Non-Indicted 2 without any investigation into the fact that Non-Indicted 2 was not the party membership fee, the court below found that Non-Indicted 2 paid the membership fee to Non-Indicted 3, 4, 6, 8, 9, and 10 was not the party member fee for Non-Indicted 2, and that Non-Indicted 2 was not the party member fee for Non-Indicted 2, and there was no doubt that Non-Indicted 2 paid the membership fee for Non-Indicted 3, 4, 5, 6, 9, and 10 was the party member fee for Non-Indicted 2, and there was no doubt that Non-Indicted 2 paid the membership fee for Non-Indicted 2 to the Non-Indicted 3, 3, and there was no objection to the application form for joining the Non-Indicted 2.

C. Whether Nonindicted 2 had an intention to prevent the election in the “election for public office”

Considering that Nonindicted 1’s false information from the Defendant is the one who has the right to vote in the election of public officials for public office for the members of the open political party, and that the false information about the candidate is very strong and that the subject of dissemination is not always limited to the party members, the Defendant’s remarks, such as written in the facts charged, are objectively affected not only the intraparty competition but also the election. Therefore, it is reasonable that Nonindicted 2 had the intention not only to be recommended by Nonindicted 2 as the candidate for the election of public office for the open Korea, but also to prevent Nonindicted 2

2. Whether recommending candidates for election of political parties through examination of documents and interviews by the Public Official Election Act falls under the category of "Intra-party competition" as provided in Article 250 (3) of the Public Official Election Act;

A. The summary of the facts charged in the instant case is as follows: for the purpose of preventing Nonindicted 2, a candidate for the intraparty competition in connection with the intraparty competition for the recommendation of the candidate for the senior candidate for the Daegu Metropolitan City Suwon-gu Council of the Republic of Korea, the Defendant made a public announcement of each false fact as to the person who is disadvantageous to Nonindicted 2, by speaking to Nonindicted 1, a candidate for the intraparty competition on April 24, 2006 and April 29, 2006, for the purpose of prohibiting him from being elected in the intraparty competition; for the purpose of prohibiting him from being elected in the intraparty competition; for the purpose of prohibiting him from being elected in the intraparty competition, Nonindicted 2, a candidate for the intraparty competition; for the purpose of prohibiting him from being elected, Nonindicted 2, a candidate for the intraparty competition; for the purpose of speaking, broadcasting, communications, magazine, propaganda document, etc., the act of disclosing the candidate's name, lineal ascendant or descendant of the Defendant should first be punished or publicly announced to the public.

B. The meaning of "Intra-party competition" under Article 250(3) of the Public Official Election Act

Article 57-2 of the Public Official Election Act provides that "any political party may hold a competition campaign to recommend candidates for the intra-party competition ( Paragraph (1)), and where any political party holds the intra-party competition [including a public opinion poll replacing the intra-party competition that is conducted through the party constitution, regulations or the written agreement between the candidates for the intra-party competition for those who are listed as candidates], anyone who is not elected as a candidate for the relevant political party shall not be registered as a candidate for the same constituency of the relevant election (the first sentence of paragraph (2)), and Article 22 of the Political Parties Act shall not be a candidate for the intra-party competition." Article 57-3 of the same Act provides that "any person who is ineligible as a candidate for the intra-party competition shall not be a candidate for the intra-party competition," Article 57-4 of the same Act provides that any person who is listed as a candidate for the intra-party competition among the affairs of the intra-party competition and any person who is listed as a candidate for the intra-party competition shall be deemed a candidate for the intra-party competition.

The purport of Article 250(3) of the Public Official Election Act provides that a person who publishes false facts in connection with the intraparty competition shall be punished. The meaning of the intraparty competition should be interpreted as above in light of the fact that if false facts are published, the party members who have voting or participate in the intraparty competition or public opinion poll and many unspecified persons may mislead accurate judgments on candidates. Even if the Public Official Election Commission published false facts in the procedure of recommending candidates for the election of public officials through document screening, it is reasonable to interpret the meaning of the intraparty competition as above in light of the fact that such publication of false facts is not highly likely to mislead the decision of candidates due to the nature of the public official

(c) Method of recommending candidates for proportional representation to the Daegu Metropolitan City Suwon-gu Council of the Republic of Korea;

According to the evidence duly adopted and examined by the court below, the open Daegu Metropolitan City Party (hereinafter referred to as the "Gongcheon-gu Party") recommended candidates for proportional representative members of the 4th regular local election council on May 31, 2006, following an examination by the Qualification Examination Committee for Candidates and the Recommendation Examination Committee for Candidates for Public Office (hereinafter referred to as the "Examination Committee"), and mainly examined the candidate for proportional representative members of the 4th regular local election council, before the examination committee on candidates for public office, taxation, and other ethics as public officials. This was conducted on the recommendation of candidates for public office only for those who passed the examination as a preliminary procedure for the recommendation of candidates for public office. The examination by the Examination Committee on candidates for public office consisting of the first document examination based on the documents submitted by the applicant, the second document examination and the second interview by the 20th regular examination of candidates for public office, and the defendant finally decided to recommend candidates for public office for the 2nd regular examination of candidates for public office by the 2nd regular examination of candidates for public office of Daegu Metropolitan City.

D. Sub-determination

According to the above, the open Daegu Metropolitan City Party only recommended the political party candidates of proportional representative members of the Sung-gu Metropolitan City Suwon-gu Council by means of document screening and interview by the examination committee of candidates for public election. The recommendation of candidates for public election by this method shall not be deemed to constitute the election of candidates recommended by the relevant political party through voting action by the electors, such as party members, or the election of candidates for the intra-party competition by a public opinion poll replacing the intra-party competition conducted in accordance with the party constitution, regulations or a written agreement among the candidates for the intra-party competition, and there is no evidence to recognize that the defendant conducted a public opinion poll replacing the intra-party competition or the intra-party competition for the recommendation of the candidate. Thus, it cannot be recognized that the defendant's act was conducted

3. Whether the defendant's statement constitutes public announcement of "false facts"

(a) recognised facts

According to the evidence duly adopted and examined by the court below, the following facts can be acknowledged:

(i) On February 13, 2006, Non-Indicted 11 of the Secretary General of the Office General of the Daegu Metropolitan City Party in Korea conducted self-inspection of the payment of the party membership fee to the Daegu Metropolitan City Party in Korea by means of asking Nonindicted 12 from the Central Party of Korea opened from February 13, 2006 to the 18th day of the same month in order to employ part-time students and asking for whether he directly pays the party membership fee by telephone to the party members.

According to the above investigation, Nonindicted 11 stated that “30 of the Daegu Metropolitan City party members under 700 and 117 of the telephone conversations did not have paid the party membership fee directly. Of that, Nonindicted 2’s number of the local constituency is 20 party members, and the body and signature on Non-Indicted 2 are similar to the body of Non-Indicted 2’s hand, and Non-Indicted 2’s three of Non-Indicted 13 from among the party members suspected of paying the party membership fee by substitute, Non-Indicted 2 had already died on January 206.

Referencely, the case of paying party membership fees from the Daegu Metropolitan City Party to the Internet homepage of the Daegu Metropolitan City Party, and the case of paying party membership fees from the Seoul Seocheon-dong on February 13, 2006 is being investigated by the City/Do party. The public notice was registered on February 21, 2006 to the effect that “voluntary reporting on the payment of party membership fees for the party membership fees is made.”

Then, on February 25, 2006, Non-Indicted 11 asked personal questions about the person suspected of being suspected of being suspected by investigating Non-Indicted 2, and asked him about the payment of the party membership fee for the party membership fee, but the related persons denied the suspicion, and there is no specific evidence to prove that he paid the party membership fee for the party, and then, the list of Non-Indicted 2 was reported to the chairperson of the Daegu Metropolitan City Party of the Republic of Korea and the central party.

(v) Non-Indicted 11’s above investigation was called a strong pressure investigation, and it was investigated on March 2006 by the Standing Committee of the Daegu Metropolitan City Party of Daegu, Daegu, which was open in order to organize a fact-finding sub-committee, and submitted a written statement separately from those who are suspected of being suspected.

⑹ 열린우리당 대구광역시당원 공소외 14 외 20인은, 위와 같이 당비대납과 관련한 조사가 이루어졌고 그와 관련한 혐의자들의 이름이 당원들 사이에 오르내림에도 대구광역시당이 구체적인 조치를 취하지 않는다고 판단하여, 2006. 4. 18. 대구광역시당이 당비대납을 인지한 후의 절차 규정에 따라 즉각적인 조치를 취할 것을 요구하고, 이에 응하지 아니할 경우 사법적 판단을 구하는 등의 방법을 강구할 것이라는 취지의 게시물을 열린우리당 대구광역시당 홈페이지에 게시하였고, 그 후 같은 달 25.과 같은 달 28. 열린우리당 대구광역시당원 90여 명이 이와 같은 취지의 선언문에 서명하여 인터넷에 게시하였다. 한편, 위 당원들 중에는 참여정치연대(약칭, 참정연)에 소속된 당원들도 있었다.

⑺ 피고인이 2006. 4. 24. 16:22경 열린우리당 대구광역시당 수성구 노인위원장인 공소외 1에게 전화하여, “ 공소외 2가 당비대납을 한 혐의에 대해서 참정연에서 조사를 한 결과 그런 내용이 확인되었고, 열린우리당 대구광역시당에서 조치를 취하지 않으면 참정연에서 검찰에 고발한다고 들었는데, 이런 사람이 어떻게 열린우리당 수성구 비례대표 자격이 있느냐.”는 취지로 말하였고, 같은 달 29. 14:58경 공소외 1에게 전화하여, “ 공소외 2는 상업고등학교 밖에 못 나왔고, 죽은 사람의 당비도 대납하는 등 당비대납 문제가 발생한 사실이 있는데 이런 사람을 어떻게 공천하느냐, 절대로 공천받지 못하도록 하겠다”는 취지로 말하였다.

⑻ 공소외 2는 2006. 5. 2. 비공개로 개최된 열린우리당 대구광역시당 상무위원회에 출석하여, 현재 당내에 공소외 2가 당비대납을 하였다는 소문이 돌고 있다며, 공소외 2가 당비대납을 한 적이 있느냐고 항의하였다.

⑼ 한편, 공소외 2는 경북여자상업고등학교를 졸업하였다.

B. The meaning of false facts in the crime of publishing false facts under Article 250(2) and (3) of the Public Official Election Act

“False facts” as provided in Article 250(2) of the Public Official Election Act refers to matters that are inconsistent with the truth and are insufficient to have the elector make accurate judgments on candidates for intra-party competition and candidates for public elections. However, if a statement is merely an expression of opinion on a simple value judgment or evaluation, it does not constitute such an expression of opinion. Whether a statement is true or an expression of opinion, taking into account the legislative intent of ensuring the fairness of election, the determination shall be made in full view of the ordinary meaning and usage of language, the context in which the given statement was used, the possibility of proof, and the social circumstances in which the expression was made.

In light of the above legal principles, the Defendant’s speech made by phone call to Nonindicted Party 1 was used as a result of the contents related to the payment of the party membership fee to Nonindicted Party 2, and the problems related to the payment of the party membership fee in the Daegu Metropolitan City Party of the Republic of Korea opened at the time were discussed, it is reasonable to deem that the Defendant’s statement to Nonindicted Party 1, “ how Nonindicted Party 2 has the right to proportional representation of the Seongbuk-gu Party of the Republic of Korea opened on April 24, 2006,” “whether Nonindicted Party 2 has the right to proportional representation of the party membership fee in the Republic of Korea,” “whether Nonindicted Party 2 has contributed to, and absolutely not to be authorized,” is merely an expression of the Defendant’s opinion on the premise of the fact of paying the party membership fee to Nonindicted Party 2 or the controversy over it.

(c) The burden of proving and proving the falsity of publication in the crime of publishing false facts under the Public Official Election Act;

In order to establish the crime of publishing false facts, it is necessary for the prosecutor to actively prove that the public prosecutor's disclosure is false, and the public prosecutor's disclosure of false facts cannot establish the crime of publishing false facts only with the absence of proof that the public prosecutor is true. In determining whether or not the public prosecutor fully bears the above burden of proof, the prosecutor who is the active party must prove it without reasonable doubt if the absence of a specific act at a specific period and at a specific place is involved. However, it is impossible for the prosecutor to prove the absence of a fact that is not concrete in the specified period and space in the social norms, while it is more easy to prove the existence of a fact, it is more easy to prove the existence of such fact. Therefore, such circumstance must be considered in determining whether the prosecutor fulfilled the burden of proof. Thus, a person who actively asserts that there is a suspicion against the person who asserts that there is no suspicion should be a burden of proving the existence of such fact, and the prosecutor can present the credibility of the materials presented by him to the extent that it can be presented by the prosecutor at least 205,205.25.25.25.64

D. First, we examine the part of the Defendant’s statement to Nonindicted Party 1 on April 29, 2006 that “ Nonindicted Party 2 did not reach an area outside the commercial high school.”

According to the above facts, since the academic background of Nonindicted Party 2 is deemed to have graduated from the Gannam Commercial High School, it cannot be deemed to have been false [The resume (public trial record 139) of Nonindicted Party 2 stated that it was completed two years at the Daegu University Family Law College, but according to the witness Nonindicted 2’s statement in the second public trial record of the lower court, it cannot be deemed to have been recognized that Nonindicted Party 2 was a high school graduate on his own).

E. Next, we examine the part of the Defendant’s statement to Nonindicted 1 on April 24, 2006, stating that “ Nonindicted 2’s investigation was conducted on the charge of paying party membership fees for the party members fee, and it was confirmed that it was filed with the prosecutor’s office at the meeting, and that Nonindicted 2’s accusation was made at the meeting, such as paying for the party members fee for the dead person,” and that “No. 2 paid for the party members fee for the deceased person.”

Before the Defendant made the above remarks to Nonindicted Party 1, Nonindicted Party 2 was investigated by Nonindicted Party 11 on charges related to the payment of the party membership fee, and some party members including the party members belonging to the Party of Daegu Metropolitan City opened by the Party of Daegu Metropolitan City, and posted a notice on the Internet homepage of the Party of Daegu Metropolitan City of the Republic of Korea open to the public that would take judicial measures if no judicial measures are taken by the Party of Daegu Metropolitan City of the Daegu Metropolitan City of the Republic of Korea. Furthermore, as seen earlier, in relation to the phrase “ Nonindicted Party 2’s suspicion of paying the party membership fee has been confirmed, and Nonindicted Party 2 paid the party membership fee by proxy,” it means as a whole “Nonindicted Party 2 paid the party membership fee by proxy,” and it is examined whether there is a prosecutor’s proof as to whether such fact is false.”

The defendant's defense counsel suspected that non-indicted 2 paid the party membership fee on behalf of the party members, and the non-indicted 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 44, 45, 47, 48, 49, and 50 of the application forms for joining the Republic of Korea (the defendant's defense counsel submitted the application forms for joining the Republic of Korea with the signature of the non-indicted 2 as evidence of open inquiry into the Daegu Metropolitan City of the open Republic of Korea, and the application forms for joining the Republic of Korea with the signature of the non-indicted 2 as evidence.

Meanwhile, according to Non-Indicted 5’s report on the investigation of Non-Indicted 5’s party membership fees (such as whether Non-Indicted 5’s application for membership fees and investigation records), Non-Indicted 5’s written statement (169), Non-Indicted 51’s investigation records (177’s telephone confirmation, investigation records), and records of Non-Indicted 5’s investigation (178’s investigation records), Non-Indicted 5’s request for investigation of the violation of the Political Funds Act (182), Non-Indicted 5’s submission of Non-Indicted 6’s written statement regarding Non-Indicted 5’s submission of the above party membership fees to Non-Indicted 5, Non-Indicted 4, Non-Indicted 5, Non-Indicted 5, Non-Indicted 5, Non-Indicted 5, Non-Indicted 4, Non-Indicted 5, Non-Indicted 5, Non-Indicted 5, and Non-Indicted 4, Non-Indicted 5’s admission and investigation records).

Thus, the above evidence submitted by the prosecutor alone that the prosecutor did not impeachment the prosecutor's credibility with respect to the defendant's specific supporting materials related to the payment of the party membership fee by the non-indicted 2. Therefore, it is difficult to view that the prosecutor's active proof on the falsity of the above fact exists, and there is no other supporting evidence

4. Judgment on the ancillary facts charged

A. The summary of the instant conjunctive facts charged is as follows: (a) with the purpose of preventing Nonindicted 2 from being elected as a member of the Suwon-gu Council at the fourth nationwide local election that was implemented on May 31, 2006 by the Defendant, Nonindicted 1, who was the chairperson of the Daegu-gu, Daegu-gu, Daegu-gu, Seoul, the elderly, from being opened on April 24 and April 29, 2006, announced that “Nonindicted 2 paid the party membership fee to Nonindicted 2, who was disadvantageous to Nonindicted 2,” thereby publicly announcing each false fact as to the said person, in a manner unfavorable to Nonindicted 2.

B. Determination

As seen earlier, it is difficult for the prosecutor to prove that some of the horses made by the Defendant to Nonindicted 1 is merely an expression of opinion, and as to the remaining parts, it is difficult to prove that there is a lack of proof by the prosecutor on the fact that it is a false fact, and further, whether the Defendant had “the purpose of Nonindicted 2 to prevent him from winning as a member of the Seongbuk-gu Council” at the time of the Defendant’

According to the above facts, according to the contents of the Defendant’s speech to Nonindicted Party 1 by telephone, it may be acknowledged that the Defendant had the objective of preventing Nonindicted Party 2 from becoming a candidate for our open political party. However, such objective cannot be presumed to coincide with the purpose of the election for public office, which is punished among the candidates recommended by a political party, or that the latter is presumed by electronic means.

Furthermore, in light of the fact that Nonindicted Party 1, as a member of the open political party, has been an internal member of the political party and has maintained a friendly relationship with Nonindicted Party 2 as well as the Defendant, and the public office competing with Nonindicted Party 2 and the Defendant on the recommendation of the open candidate for political party public office, is proportional representative members of the Suwon-gu Metropolitan City Council. As for each political party in which the election commission has obtained at least 5/10 of the total number of valid voters, the election commission’ proportional representative members of the local council has obtained at least 5/100 of the total number of valid voters, it is difficult to conclude that the Defendant expressed the negative facts or opinions against Nonindicted Party 2, and that there is no other evidence to support that there was any other purpose for the Defendant.

5. Conclusion

Therefore, the facts established and the judgment of the court below which acquitted the defendant after all of the facts charged in this case were judged to fall under a case where there is no proof of crime is just, and there is no error of mistake of facts or misapprehension of legal principles as argued by

Therefore, since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Kang-won (Presiding Judge) (Presiding Judge)