(영문) 대법원 2019.11.28. 선고 2017도13629 판결

1. “Election campaign” under Article 58(1) of the Public Official Election Act refers to an active and planned act that can be objectively recognized by the intent of promoting the election or defeat of a specific candidate in a specific election (see, e.g., Supreme Court Decision 2013Do15113, Dec. 23, 2015). Whether an act constitutes an election campaign ought to be objectively and objectively determined against the act indicated outside, rather than the intent of the principal agent engaging in the act. In addition, to deem the existence of the aforementioned intent, the mere fact that the relationship with the election can be inferred or the motive for the election is insufficient solely for the mere reason that the elector can be inferred, and the fact that the elector was obviously aware of the election of a specific candidate in a specific election ought to be based on an objective circumstance, and the time, place, method, etc. of the act is simply not only on the pretext of the act, but also on the pretext of the act (see, e.g., Supreme Court en banc Decision 2015Do11812, Aug. 26).

Therefore, even if a private school teacher, who is unable to engage in an election campaign under the Public Official Election Act, expresses his/her political opinion or belief to the outside through a social network such as a "Pest" (so-called "social network service"), and the contents of the election are recognized to be related to the election, he/she shall not be subject to a prepaid election campaign solely for that reason.

On the other hand, there are three ways to express another's opinion on the one's face-to-face bulletin: ① 'Good anger', ② Expression of comments, ③ 'Good anger', when the user wants to express another's face-to-face bulletin, the user uses the function of 'Good anger', and 'share' when the user wishes to present his opinion'. However, the purpose of sharing another's face-to-face bulletin may be due to the consent to the opinion expressed on the one's face-to-face, but it may be due to the conflict, and it may be said that the contents need to be collected, and it may be reasonably determined that the content may be stored for the purpose of viewing the one's face-to-face bulletin without reading the contents, and there may be no specific aspect of 10's election or 2's election or 9's election' on the other's face-to-face on the one's face-to-face on the other's face-to-face bulletin.

2. On the grounds stated in its reasoning, the lower court determined that the Defendant, as a teacher of a private school, was conducting an election campaign by sharing a notice on the Facebook (hereinafter referred to as “instant notice”) on nine occasions in total, as indicated in the table of crime Nos. 2, 3, 5 through 8, 11, 14, and 15, from February 26, 2016 to April 13, 2016.

3. However, according to the records, the following circumstances are acknowledged.

A. From around 2010 to April 13, 2016, the election day of the 20th National Assembly member, the Defendant posted approximately KRW 3,296 to the Defendant’s Facebook account. From around October 2015, the 180 days prior to the above election day, the Defendant posted approximately 318 notices during the said period. However, the instant notices that the lower court found guilty are only nine.

B. Of the instant notices, two have stated a simple opinion that “I shall extract the horses at the end,” “I,” and “I shall extract the articles of the press or other person,” and the remainder is simply sharing the articles of the press or the articles of the other person without their opinion.

C. The main contents of the instant notice are the legislative issues of the Anti-Terrorism Act, criticism of the government policies and the attitude of some National Assembly members on the issue of Korean history textbooks nationalization, and criticism of the election of the 20th National Assembly members in front of the election of each political party and National Assembly members. The Defendant may share these contents so that he/she can bring about the political preference of the Defendant, but it cannot be clearly seen that the Defendant has an intention of election or defeat in a specific election.

D. The Defendant, even before the act of sharing the instant notices, posted similar contents on several occasions.

(e) On the election day, the Defendant opened a Face North Korea account by stuffing the Defendant and added an excessive amount of Facebook-friendly tool, and preparing and sharing a similar post on an exceptional basis.

There was no special circumstance.

F. The Defendant accused of the instant act to the election commission, but the election commission issued a warning to the Defendant, but did not accused the Defendant to the prosecution.

4. Examining the aforementioned circumstances in light of the legal principles as seen earlier, the act of inserting short opinions on sharing or sharing press articles or other letters prepared by others, as described in the facts charged in the instant case, cannot be deemed as an act that objectively clearly expresses the intent to promote the defeat of a specific candidate in a specific election, and thus, it cannot be deemed as an election campaign prohibited to teachers of private schools under the Public Official Election Act.

Nevertheless, the lower court found the Defendant guilty of the act of sharing the instant notices solely based on the circumstances indicated in its reasoning. Therefore, the lower court erred by misapprehending the legal doctrine on election campaign under the Public Official Election Act, thereby adversely affecting the conclusion of the judgment, and the allegation in the grounds of appeal

5. Therefore, the guilty portion of the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.