[1] The meaning of "false facts" and its standard for determining the crime of publishing false facts under Article 250 (2) of the Public Official Election Act

[2] The burden of proving and proving the falsity of the publication in the crime of publishing false facts under Article 250 (2) of the Public Official Election Act

[1] Article 250 (2) of the Public Official Election Act / [2] Article 250 (2) of the Public Official Election Act

[1] Supreme Court Decision 99Do4260 delivered on April 25, 200 (Gong2000Sang, 1350) Supreme Court en banc Decision 2001Do6138 delivered on February 20, 2003 (Gong2003Sang, 876) / [2] Supreme Court en banc Decision 2001Do6138 delivered on February 20, 2003 (Gong2003Sang, 876 delivered on July 22, 2005) (Gong2005Do4642 delivered on May 25, 2006)

Defendant

Defendant and Prosecutor

Law Firm Han-U.S. Law, Attorney Yellow-gi

Seoul High Court Decision 2008No2421 decided Nov. 27, 2008

All appeals are dismissed.

We examine the grounds of appeal.

1. As to the Defendant’s ground of appeal

Article 250 (2) of the Public Official Election Act provides that the term "a false fact" means a fact that is not consistent with the truth and is sufficiently detailed enough to allow the elector to make an accurate decision on a candidate, if it is sufficient to determine whether it is a true fact-finding or an expression of opinion, taking into account the overall circumstances, such as the ordinary meaning and usage of the language, the context in which the language in question is used, the possibility of proof, and the social situation in which the expression was made, in mind of the legislative intent of ensuring the fairness of election (see Supreme Court Decision 9Do4260 delivered on April 25, 200).

In addition, in order to establish the crime of publishing false facts, it is necessary for the prosecutor to actively prove the fact that the public prosecutor made public the fact is false, and the fact that the public prosecutor has no proof that it is true cannot establish the crime of publishing false facts (see Supreme Court Decision 2003Do5279, Nov. 28, 2003). Meanwhile, the person who actively asserts that there was a suspicion against the person who asserts that there was no suspicion in the crime of publishing false facts, shall be liable for the presentation of supporting evidence to affirm the existence of such a fact. The prosecutor can prove the credibility of the materials presented (see Supreme Court en banc Decision 2001Do6138, Feb. 20, 2003). In this case, the materials to be presented at this time are not sufficient to simply present the arguments in light of the above legal principles, but to the extent that the prosecutor's activity of establishing false facts can be possible, and if there is no suspicion that there is no suspicion or proof, it shall be 2005Do275, etc.

In light of the above legal principles and records, each of the facts charged in this case's facts finding as stated in the judgment of the court below guilty of "the part where the Gu has abandoned his duties while making an advance election campaign only" and "the part where the budget of KRW 10.4 billion was lost for the election trial" is just and acceptable, and there is no violation of the rules of evidence or any violation of the rules of evidence as otherwise alleged in the grounds of appeal.

The defendant's ground of appeal cannot be accepted.

2. As to the Prosecutor’s Grounds of Appeal

In light of the facts and overall circumstances of the judgment, the court below affirmed the first instance court's decision that acquitted the Defendant on the part of the non-indicted 1 candidate "the part where the non-indicted 1 candidate started to break down the non-indicted 2 candidate's election campaign speech" among the facts charged in this case on the ground that there was sufficient room to suspect that the Defendant, who was the cause of the election campaign speech of the non-indicted 2 candidate, who had conflicting interests with the non-indicted 1 candidate, distributed the printed matter as indicated in the judgment with the intention to undermine the evaluation of the candidate non-indicted 2 candidate, and that such suspicion had considerable grounds, and it is difficult to deem

In light of the foregoing legal principles and records, the judgment of the court below on this part can be deemed legitimate, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground of appeal. Therefore, the prosecutor's appeal is without merit.

3. Conclusion

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

Justices Ahn Dai-hee (Presiding Justice)