Defendant

Prosecutor

Noting, indictment, trial (public prosecution, public trial), Lee Jae-in (public trial)

Law Firm LBBS et al., Counsel for the defendant-appellant

Suwon District Court Decision 2018Gohap266, 2018Gohap267 decided May 16, 2019

The part of the judgment of the court below that violated the Public Official Election Act by publishing false facts related to Nonindicted 3 is reversed.

Defendant shall be punished by a fine of KRW 3,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

The prosecutor's appeal on the remainder of the judgment below with the exception of the above reversal portion is all dismissed.

1. Summary of the grounds for appeal (misunderstanding of legal principles or factual errors);

A. Abuse of official authority and obstruction of use

1) From March 2012, the Defendant instructed or urged the head of the branch of the branch of the public health clinic, etc., directly or through Nonindicted 7, who is the head of the branch of the branch of the branch of the branch of the public health clinic, to proceed with the compulsory hospitalization procedure under Article 25 of the former Mental Health Act.

2) However, at the time of 2012, it cannot be deemed that Nonindicted 3 was suspected of having a risk of undermining himself/herself or others due to mental illness, and there was no face-to-face diagnosis, etc. with Nonindicted 3, and thus, Nonindicted 3 could not proceed with the procedure under Article 25 of the former Mental Health Act with regard to Nonindicted 3. Nevertheless, the Defendant, in collusion with Nonindicted 7, had the head of the relevant branch public health clinic, etc. conduct the procedure for compulsory hospitalization under Article 25 of the former Mental Health Act against Nonindicted 3 by unfairly exercising his/her authority as a private intention to isolate Nonindicted 3, who continuously opposed to the Defendant’s correction and operation in society, and had the head of the relevant branch public health clinic, etc. conduct the procedure for compulsory hospitalization under Article 25 of the former Mental Health Act against relevant laws and practices.

3) Therefore, even though the Defendant should be deemed to have committed the crime of abusing authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act, the lower court’s judgment that acquitted all of the facts charged is erroneous in matters of mistake or misapprehension

B. Violation of the Public Official Election Act by publicly announcing false facts concerning Nonindicted 3 ( abuse of authority and obstruction of another’s exercise of rights)

1) The Defendant attempted to hospitalize Nonindicted 3 at the ○○ Mental Hospital around 2010, and (2) led Nonindicted 3’s hospitalization around 2012, but the Defendant made a statement to the effect that Nonindicted 3 was not involved in Nonindicted 3’s compulsory hospitalization at the candidate TV forum of the Gyeonggi-do Governor. The Defendant intentionally distorted facts to the extent that the elector’s accurate judgment was distorted, and thus, constitutes publication of false facts.

2) In addition, the suspension of the compulsory hospitalization procedure against Nonindicted 3 around 2012 is due to Nonindicted 4, the head of the branch public health clinic, who was the head of the branch public health clinic, retired from the process. However, the Defendant’s statement to the effect that Nonindicted 4, the head of the branch public health clinic, made a statement to the effect that Nonindicted 3, the head of the branch public health clinic, was

3) Unlike the above, the judgment of the court below which acquitted all of the facts charged is erroneous in misunderstanding of facts or misunderstanding of legal principles.

C. Violation of the Public Official Election Act based on the publication of false facts related to the previous offense of prosecutor's name

1) The overall purport of this part of the Defendant’s statement is that “a person was punished with wrong contents that aided Nonindicted 12’s act of referring to Nonindicted 12’s inspector’s name on the ground that he had been engaged in an interview subsequent to the fact that he had not been involved in the prosecutor’s name call.”

2) This is contrary to the judgment of conviction by the prosecutor's name of the defendant against the defendant, and thus publishing false facts, and cannot be deemed as a simple expression of opinion of the defendant. In addition, the defendant's intention to publish false facts is also acknowledged

3) Unlike this, the judgment of the court below that acquitted this part of the facts charged is erroneous in misunderstanding of facts or misunderstanding of legal principles.

D. Violation of the Public Official Election Act by publishing false facts about the achievements of the Seoul Special Metropolitan City Development Project.

1) The general voters do not understand that “the income of KRW 50.3 billion from the development profit was completed due to Sungnam-si, and the amount of KRW 276.1 billion was completed due to each of the construction cost of the infrastructure in the region where the building site was completed, and thereby, each of the above construction works was completed,” when the expressions of the Defendant’s election campaign bulletin of this case and the election campaign speech of this case were sent to the Defendant.” It did not understand that “The distribution of the instant election campaign bulletin of this case and the election campaign speech of this case were to be paid to the special purpose corporation as the construction cost of the park of the 1st Corporation, and the amount of KRW 276.1 billion is to be paid to the special purpose corporation as the construction cost of the 1st Corporation, and the amount of KRW 92.2 billion is to be paid as the construction cost of the infrastructure in the region where the building site was built and the election campaign speech of this case constitutes false information.”

2) In light of the fact that the Defendant, as an attorney-at-law and the Sungnam market, was well aware of the revenue structure of the project, such as directly claiming for the benefit structure of the project, and was able to confirm the progress of the project and the size of profit before and after the retirement of the Sungnam market, it may be recognized that there was an incomplete intention for the Defendant to publish false facts in light of the fact that the Defendant did not confirm the exact amount of the estimated value of the construction cost, and rather rather was somewhat unrefilled. Furthermore, even though the Defendant is in the process of the infrastructure project or it was not clearly stated that the amount of KRW 18.2 billion is future revenue, the lower court erred by recognizing such fact and denying the Defendant’s intentional act.

3) Therefore, the judgment of the court below which acquitted the Defendant of this part of the facts charged is erroneous in misunderstanding of facts or misunderstanding of legal principles.

2. Determination on the legality of the instant indictment

A. Defendant's assertion of defense counsel

As to the abuse of authority and obstruction of exercise of rights and the violation of the Public Official Election Act by publication of false facts with respect to Nonindicted 3, the Defendant’s defense counsel asserts that the indictment procedure for each of the above parts constitutes invalid in violation of the provisions of law, on the grounds that the Defendant abused the right to institute a public prosecution by violating objective duties, such as concealing major evidence favorable to the Defendant, obstructing the examination of evidence and the withdrawal of evidence, and violating the principle of an indictment only by excessively

B. Determination as to whether the right to prosecute was abused

A) In a case where it is deemed that a prosecutor voluntarily exercised his/her authority to institute a public prosecution and gives a substantial disadvantage to the defendant, the effect of the indictment may be denied by deeming it as an abuse of the authority to institute a public prosecution. However, the arbitrary exercise of the authority to institute a public prosecution is not sufficient simply by negligence in the course of performing his/her duties, and at least dolusent or complete intention is required (see, e.g., Supreme Court Decisions 2017Do1623, Dec. 13, 2017; 2018Do10447, Sept. 28, 2018).

B) In light of the above legal principles, in full view of the background leading up to the Defendant’s defense counsel’s application for inspection and copying of the materials in custody of the Prosecutor during the trial in the lower court, the lower court’s determination of allowing inspection on April 1, 2019, the lower court’s determination of allowing inspection and copying on April 16, 2019, each of its reasons, the Defendant’s defense counsel obtained the above materials and submitted them as evidence, the circumstances leading up to the Defendant’s defense counsel’s submission of the materials as evidence, and the prosecutor’s opinions at the lower court’s trial, the prosecutor cannot be deemed to have abused the right of prosecution by violating the duty of prosecution by concealing the important evidence favorable to the Defendant with any intention, or interfering with the investigation and withdrawal of evidence. Accordingly, this part of the defense counsel’s assertion is without merit.

C. Judgment on the violation of the principle of an indictment only

A) In light of the type and contents of the crime as stated in the facts charged, the issue of violation of the principle of an indictment only shall be specifically determined in the relevant case on the basis of whether the contents of the documents or other articles attached or quoted in the indictment, and the facts recorded in the indictment, other than those required by law, may hinder the judge or jury from understanding the substance of the crime (see, e.g., Supreme Court en banc Decision 2009Do7436, Oct. 22, 2009; Supreme Court Decision 2012Do2957, Jan. 29, 2015).

B) In light of the above legal principles, this part of the facts charged can be seen as having somewhat unnecessary or neglectedly stated the background, motive, and progress of the act in relation to abuse of authority, obstruction of exercise of rights, and the publication of false facts related thereto, and it is difficult to view that it can be an obstacle to grasping the substance of the crime by causing a judge to pre-assessment. Accordingly, the defense counsel’s assertion on this part is without merit.

3. Determination on abuse of official authority and obstruction of another’s exercise of rights

A. Summary of this part of the facts charged

1) Correction of Nonindicted 2’s written evaluation of Nonindicted 3, etc.

In collusion with Nonindicted 7, for the purpose of allowing Nonindicted 3 to appear to be subject to the diagnosis and protection application under Article 25(1) of the former Mental Health Act, the Defendant abused the authority of the Sungnam market and let Nonindicted 1 revise the evaluation questions with respect to Nonindicted 3 prepared by Nonindicted 1, Nonindicted 2, in violation of Nonindicted 2’s professional knowledge and judgment, and against Nonindicted 2’s intent, and affixed Nonindicted 2’s seal on the revised evaluation text so that it can be seen as a medical opinion. ② Nonindicted 2, as a mental health specialist, had Nonindicted 2 revise the said evaluation text in violation of his professional knowledge and judgment, thereby having Nonindicted 2 perform an act without any obligation.

2) Preparation, delivery, etc. of official documents for diagnosis and preparation of application for protection against Nonindicted 3

In collusion with Nonindicted 7, the Defendant: (a) abused the authority of the Sungnam City market to allow Nonindicted 3 to initiate the hospitalization procedure under Article 25 of the former Mental Health Act; and (b) let a person related to the Sungnam City Health Center, including Nonindicted 4, request Nonindicted 5 to hold an interview with the Seongbuk-gu Mental Health Center “Seongnam-si Mental Health Center” (current “Seongnam-si Mental Health Welfare Center; hereinafter “Center”); (c) urged Nonindicted 3 to file an application for diagnosis and protection; and (d) demanded the relevant person, including Nonindicted 2, etc., to send the results of the interview with Nonindicted 5 to the Seoul Metropolitan City Health Center; and (e) caused him/her to perform an act without any obligation.

3) Diagnosis and preparation and dispatch of a written application for protection against Nonindicted 3

In collusion with Nonindicted 7, for the purpose of hospitalizing Nonindicted 3 pursuant to Article 25 of the former Mental Health Act, the Defendant abused the authority of the Sungnam market and caused a person related to Nonindicted 2, etc. to file an application for diagnosis and protection under Article 25(1) of the former Mental Health Act with Nonindicted 3, thereby having the person related to Nonindicted 3 to do an act without any obligation.

4) The attempt to enforce hospitalization against Nonindicted 3 pursuant to Article 25(3) of the former Mental Health Act

In collusion with Nonindicted 7, the Defendant: (a) abused Nonindicted 3’s authority in the Sungnam market for the purpose of hospitaling Nonindicted 3 pursuant to Article 25 of the former Mental Health Act; (b) let the person related to Nonindicted 4, etc. of the branch public health clinic request the Center to accompany the vehicle and mental health specialist; and (c) let Nonindicted 4, Nonindicted 2, and Nonindicted 9 move Nonindicted 3 to a place where Nonindicted 3 was on the part of Nonindicted 3 in order to force the hospitalization of Nonindicted 3.

B. Relevant statutes

The main contents related to this case in the former Mental Health Act (wholly amended by Act No. 14224, May 29, 2016; hereinafter “former Mental Health Act”) and the former Enforcement Decree of the Mental Health Act (wholly amended by Presidential Decree No. 28074, May 29, 2017; hereinafter “former Enforcement Decree of the Mental Health Act”) are as follows (On the other hand, Article 25 of the former Mental Health Act was amended by Act No. 1105, Aug. 5, 201; Article 25 of the former Mental Health Act referred to as “mental health specialist,” and Article 25 of the former Mental Health Act prior to the amendment on August 5, 2011 referred to as “mental health specialist,” and the contents prior to the amendment are as follows.

(4) Where a mental health doctor or a mental health specialist finds a person suspected of undermining himself/herself or others due to mental illness under Article 25 of the former Mental Health Act, he/she shall immediately request the head of the competent Si/Gun/Gu to diagnose and protect the person suspected of having mental illness pursuant to paragraph (1). (2) Where it is deemed necessary to conduct accurate diagnosis of the person suspected of having mental illness under paragraph (2) of this Article, the head of the competent Si/Gun/Gu shall request the head of the competent Si/Gun/Gu to examine him/herself or others.

C. Summary of the judgment of the court below

Based on the facts and circumstances stated in its reasoning, the lower court found the Defendant guilty of all the charges on the following grounds on the premise that: (a) there is room to view that Nonindicted 3’s behavior at the time of Nonindicted 3 was due to mental illness; and (b) there is room to deem that Nonindicted 3 was intended to be hospitalized in a mental medical institution and receive diagnosis and treatment by exercising legal authority as a sexual south market; and (c) accordingly, it can be deemed that Nonindicted 3 was undergoing the procedure under Article 25 of the former Mental Health Act with respect to Nonindicted 3

① The request for revision of the assessment report to Nonindicted 2 is not an unlawful or unjust ex officio exercise, but a request for Nonindicted 2’s official seal on the revised assessment report is not an unlawful or unjust exercise, and Nonindicted 1’s delivery of Nonindicted 2’s opinion or official seal to Nonindicted 2 is merely a fact supporting the delivery of the Defendant’s opinion, and thus, cannot be deemed an act of abuse of authority.

② Since requesting or sending the result of an interview with Nonindicted 5 can be seen as part of the collection of data, it is difficult to view it as an unlawful or unjust abuse of authority, and (b) urging Nonindicted 3 to conduct diagnosis and protect Nonindicted 3, merely because it is difficult to view it as abuse of authority.

③ Nonindicted 2, etc. filed an application for diagnosis and protection under Article 25(1) of the former Mental Health Act with Nonindicted 3 and the Defendant’s exercise of authority cannot be deemed to have reached the extent that the ex officio exercise against Nonindicted 2 cannot be deemed to have reached the said application for diagnosis and protection irrespective of his/her medical judgment. The said application for diagnosis and protection is the inherent area of Nonindicted 2, a psychiatrist, and thus, cannot be deemed to have caused Nonindicted 2 to perform an act without any legal obligation.

④ ㉮ 공소외 3에 대한 대면진단 없이 구 정신보건법 제25조 제3항 의 입원 집행을 시도하는 것은 위법한 행위이나, ㉯ 당시 공소외 4가 차량을 타고 ▷▷경찰서로 간 것이 공소외 3에 대한 구 정신보건법 제25조 제3항 에 따른 강제입원 시도행위라고 단정하기 어렵고, ㉰ 오히려 이는 구 정신보건법 제25조 제2항 에 따른 진단 절차로 볼 수 있는데 그 진단을 위한 물리력 행사는 구 정신보건법 제25조 제2항 이 예정하는 집행 방법이므로, 당시 공소외 3에 대한 강제 호송이 예정되어 있었더라도 이를 위법·부당한 행위로 평가할 수 없으며, ㉱ 공소외 4가 당시 센터에 차량 및 정신보건전문요원의 동행을 요청한 것도 입원 집행을 시도한 것이 아니라 구 정신보건법 제25조 제2항 의 절차를 완성하기 위한 것이므로 위법·부당한 행위로 볼 수 없다.

D. Judgment of the court below

1) Basic facts

The following facts can be acknowledged according to the evidence duly adopted and examined by the court below and the court below.

A) Around June 2, 2010, the Defendant won the 5th nationwide local election, from around July 2010 to June 2, 2014, and served as the 5th Sungnam City Mayor from around July 201 to around June 2014. Nonindicted 7 was in office as the secretary who assists in the duties of the Sungnam City Mayor from around May 1, 201 to April 30, 201.

B) Pursuant to the Ordinance on the Establishment of Seongbuk-gu Administrative Organizations, the branch public health clinic was established as an agency under the direct jurisdiction of the Mayor pursuant to the said Ordinance. Nonindicted 1, as a medical specialist in the family department, served as the head of the branch public health clinic from May 2, 2011 to May 1, 2012, and Nonindicted 4 served as the head of the branch public health clinic from May 2, 2012 to May 2013.

C) around 1999, the center (the first name was “Ssung City Mental Health Center”) was established as an institution affiliated with the branch of the branch of the regional public health clinic for the mental health project of Sungnam City (However, the central office of the center is within the Sungnam City). The center is originally entrusted by the ○○ Mental Hospital and operated by the branch of the branch of the branch of the Seoul National Hospital from January 1, 2012. The head of the center is responsible for the overall control of the center’s affairs and the direction and supervision of its employees. Nonindicted 2 of the department of mental health affiliated with the branch of the branch of the Seoul National Health Hospital from January 1, 2012 to February 2014, 2014.

2) Judgment on the premise of the facts charged

A) Determination on the Defendant’s instructions

In full view of the following facts and circumstances that can be recognized by the evidence duly adopted and investigated by the lower court and the lower court, the Defendant ordered the head of the branch public health clinic, etc., directly or through Nonindicted 7, to proceed with the compulsory hospitalization procedure under Article 25 of the former Mental Health Act.

① On April 2012, the Defendant, either directly or through Nonindicted 7, directed Nonindicted 1, the head of a branch of a public health clinic, directly or through Nonindicted 7, to review whether compulsory hospitalization under Article 25 of the former Mental Health Act regarding Nonindicted 3 (Death omitted) is possible. Nonindicted 1, as a result of the review, reported to the effect that it is impossible for the Defendant to proceed with the aforementioned compulsory hospitalization procedure several times, and the Defendant, whenever so, instructed Nonindicted 1 to re-examine or proceed with the said compulsory hospitalization procedure, by expressing his view that compulsory hospitalization procedure may be possible under the interpretation of Article 25 of the former Mental Health Act.

② On April 2012, the Defendant sought from Nonindicted 1 on the place of receiving a report on the said compulsory hospitalization from Nonindicted 1, 2012, the Defendant also sought from Nonindicted 1 regarding the procedure for “inpatient treatment” under Article 25(6) of the former Mental Health Act or the subsequent procedure.

③ On May 2, 2012, the period of regular personnel management in Seongbuk-gu, Sungnam-si changed from Nonindicted 1 to Nonindicted 4, and the Defendant instructed Nonindicted 4 to proceed with the compulsory hospitalization procedure under Article 25 of the former Mental Health Act, either directly or through Nonindicted 7, on several occasions, between June 2012 and August 2012 (the Defendant, even during the period of a business trip from June 13, 2012 to June 22, 2012).

④ Around August 27, 2012, the Defendant, at the time, directed Nonindicted 4, Nonindicted 8, and Nonindicted 9 to the effect that the procedure under Article 25(2) of the former Mental Health Act had been completed with respect to Nonindicted 3 as of August 27, 2012. At the time, the Defendant was urged the said Nonindicted 4, Nonindicted 8, and Nonindicted 9 to the effect that “The reason for the failure to process work is changed. The failure to process a legitimate matter is a abandonment of duty.” The Defendant was also urged to take disciplinary action against Nonindicted 4, Nonindicted 8, and Nonindicted 9.

⑤ At around September 13, 2012 and around September 17, 2012, the Defendant, either directly or through Nonindicted 7, directed the persons related to the branch public health clinic, including Nonindicted 4 and Nonindicted 8, to prepare a question to ask the relevant agencies, such as Ministry of Government Legislation and Ministry of Health and Welfare, about whether it is possible to take compulsory hospitalization measures under Article 25 of the former Mental Health Act at the present stage.

6) The Defendant asserts to the effect that the head of a branch public health clinic, the head of a public health clinic, and his employees and Nonindicted 3 may proceed with the procedure under Article 25 of the former Mental Health Act, and that this issue was discussed together, and that there was no order to proceed with the procedure. However, the above Nonindicted 1, 4, 8, and 9 stated to the effect that the Defendant appeared as a witness of the lower court and received an order to comply with the above procedure several times, and that he was even subject to an examination. The statement is mutually consistent with each other, and there is no other circumstance to deem that the above statement is not reliable.

B) Determination on the Defendant’s intent or motive

1) The Defendant’s perception of Nonindicted 3’s mental health status, etc.

However, in full view of the following facts and circumstances, which can be recognized by the evidence duly adopted and examined by the lower court and the lower court, it is difficult to view that Nonindicted 3 instructed Nonindicted 3 to proceed with compulsory hospitalization procedures under Article 25 of the former Mental Health Act, with the sole intention of being isolated from Nonindicted 3 in society, with the knowledge of the fact that the evidence submitted by the prosecutor alone does not have any circumstance to suspect that the Defendant was in danger of undermining himself/herself and others due to mental illness.

① There are various circumstances suspected of having mental illness with Nonindicted 3 around the date and time indicated in this part of the facts charged, and in detail, the following are established:

Around February 2002, Non-Indicted 3 posted on the Sungnam Viewing website a letter stating that “Nonindicted 3 was entrusted with preferential treatment to a juvenile training shop in Sungnam-si, the Sinnam-si, and that there was a scarbial relationship with women two times.” Nonindicted 3 has a lot of statements made it difficult for reporters and their neighbors to understand the meaning easily at that time, and this statement is more peculiar to the point of view of ordinary people. In addition, there are reasonable circumstances to deem that there is little little doubt that there was a little doubt about mental illness from the point of view of ordinary people.

(b) From February 2012 to the date and time indicated in the instant facts charged, Nonindicted 3 had been engaged in excessive verbal abuse, humiliation, intimidation, etc. among a large number of male and female viewing public officials, general citizens, etc., as well as excessive verbal abuse, indecent speech, and indecent speech, etc., and various relatives, including Nonindicted 5 and the Defendant. In addition, Nonindicted 3’s above acts are difficult to understand as the average of the general public in light of its frequency, contents, relationship with the other party, etc.

C. On May 28, 2012, Non-Indicted 3 threatened Non-Indicted 5, who is the mother on May 28, 2012; (b) assaulted Non-Indicted 5 and Non-Indicted 14 and Non-Indicted 15, who are their births, thereby causing each injury; (c) interfere with the election of candidates for the chairman of the Sinuri City Council on July 1, 2012 by intrusioning Non-Indicted 5 and Non-Indicted 14 and Non-Indicted 15, who are their births; (d) interfere with the election of candidates for the chairman of the Sinuri City Council on July 1, 2012; (d) interfered with the business by avoiding disturbance from the disturbance on the second floor of the Sinnam City of Sungnam on July 26, 2012; and (d) assaulted the staff of the △△ Department (Non-Indicted 3 received a summary order of KRW 5 million on May 27, 2013).

㉱ 이 부분 공소사실 기재 일시 이후의 사정으로서, 공소외 3은 ⓐ 2013. 2. 20. ‘◇◇한의원’에서 심신안정을 위한 약재를 처방받았고(공판기록 제26권 15411∼15413면), ⓑ 2013. 3. 13. ‘☆☆☆☆☆’ 정신건강의학과 의원에서 우울증, 불면증 등으로 진료를 받았으며(공판기록 제18권 10740면), ⓒ 2013. 3. 16. 처인 공소외 11에게 죽으러 간다는 이야기를 한 후 차량을 운전하다가 중앙선을 침범하여 트럭과 충돌하는 교통사고를 일으키기도 했고, ⓓ 결국 2014. 11. 21. 처인 공소외 11과 딸인 공소외 16에 의해 정신병원인 국립▽▽병원에 강제입원되었고, 그때부터 2014. 12. 29.까지 위 병원에서 정신건강 치료를 받았다.

The medical record on Non-Indicted 3 is indicated as follows. The medical record on February 9, 2015, by Non-Indicted 17-2 of the Department of Mental Health of the National ▽△△△ Hospital, stating that “Non-Indicted 3 began to provide symptoms such as excessive behavior, over-the-counter and decrease of WIG desire, etc. since 2012, which have repeated depression and symptoms, and was hospitalized in the original state due to the symptoms such as over-the-counter, damage network, and over-the-counter behavior which were repeated in 2014 (No. 24, 14081 of the trial record).” (b) On August 17, 2017, Non-Indicted 18-2 of the Department of Mental Health of Man University Hospital, Non-Indicted 17-2 of the Department of Mental Health of the National Assembly, and Non-Indicted 3 inserted the contents of “at the time of the public trial record, Non-Indicted 3 appeared to have experienced 20 days before his family stur.”

② Among the aforementioned various circumstances suspected of having a mental illness of Nonindicted 3, circumstances that may cause harm to others, such as Nonindicted 3’s assault and intimidation. In particular, among them, the criminal facts of the said criminal case, which Nonindicted 3 was punished, are doubtful in light of social norms when considering the motive, background, method, mode, etc. of the crime. Moreover, a considerable number of of the above circumstances suspected of having a mental illness of Nonindicted 3, among the above circumstances, can easily be seen by the Defendant at the time.

③ Nonindicted 14, the husband of the Defendant, and Nonindicted 19, Nonindicted 14, who was the husband of the female her mother, had the family ability to have been suffering from depression or depression before this part of the charges (Evidence No. 4, 1845, 1846 of the evidence record, No. 11, 6556 of the trial record), and Nonindicted 5, and his brothers and sisters, including the Defendant, showed Nonindicted 3’s speech and behavior, there is more room for doubt as to whether there was any depression or any similar mental illness with Nonindicted 3 even if the Defendant and Nonindicted 3, who was the spouse of the female her mother, was hospitalized in a mental hospital on November 11, 2012 (Evidence No. 444 of the evidence record), and was recommended to receive direct treatment on July 17, 2013 (Evidence No. 184 of the record).

④ The Prosecutor asserts to the effect that it is unreasonable to determine the mental health condition of Nonindicted 3 at the time following the date and time indicated in this part of the facts charged, based on the circumstances following the date and time indicated in this part of the facts charged. However, in light of the content thereof, the circumstance of Nonindicted 3’s mental health status after the date and time indicated in this part of the facts charged, may sufficiently take account of the circumstances that could undermine the mental health condition of Nonindicted 3 at

⑤ Meanwhile, according to each of the above evidence, it is recognized that Nonindicted 3 operated an accounting office as an accountant and obtained considerable income from the time as stated in this part of the facts charged. However, even in addition to the evidence submitted by the prosecutor and various circumstances pointed out by the prosecutor, the mental illness can be determined differently depending on its seriousness and the degree of social function of the mentally ill person depending on whether it is repeated due to its nature, and it is difficult to think that the problems caused by mental illness occur in all areas of the person suffering from the disease (see the inquiry result by Nonindicted 21 of the department of mental health in the first instance). Considering that Nonindicted 3 had a certain normal and equitable life, it is difficult to view that Nonindicted 3 had no mental illness at any time around the time specified in this part of the facts charged, regardless of the aforementioned various circumstances, it is difficult to view that there was no mental illness at any time until the time indicated in this part of the facts charged.

(6) In addition, Nonindicted 3’s mental health conditions around the date and time indicated in this part of the facts charged, there are medical records or psychological evaluation results to the effect that Nonindicted 3 did not have any particular mental illness. However, this is difficult to consider it as materials to accurately grasp the mental health conditions of Nonindicted 3 for the following reasons.

㉮ 2013. 3. 11. 및 3. 13. 두 차례에 걸쳐 공소외 3을 진료하였던 ‘☆☆☆☆☆’ 정신건강의학과 의원 공소외 22의 2019. 1. 21.자 소견서(증거기록 제10권 10661면)에는 “공소외 3의 진료 당시 심각한 정신증적 소견은 보이지 않았다”는 취지로 기재되어 있다. 그러나 위 공소외 22는 당시 공소외 3에 대하여 우울증 치료는 하였던 점, 그 진료 기간과 시간이 비교적 짧은 점, 위 소견서는 공소외 3의 처 공소외 11이 2019. 1.경 언론중재위원회에 제출할 용도로 의뢰한 것인 점 등에 비추어 볼 때, 위 소견서만으로 앞서 든 여러 사정에도 불구하고 이 부분 공소사실 기재 일시 무렵 공소외 3의 정신건강상태에 특별한 문제가 없었다고 보기는 어렵다.

(C) According to the 14th 708th 1st 201, Nonindicted 3, as the result of the 14th 708th 14th 2012 psychological evaluation of Nonindicted 3, stated that the 14th 708th 14th 708 of the 14th 2012, “Nonindicted 3 does not present any significant mental disorder and emotional difficulties.” However, this is difficult for the prosecutor who investigated Nonindicted 3’s criminal facts on December 14, 2012, to make the 1st 3th 1st 1st 2012, on the ground that the prosecutor who was investigating Nonindicted 3’s criminal facts, voluntarily suspended indictment until the result of the 14th 703th 1st 703th 14th 14th 201 of the 14th 3th 2017 of the 14th 2017 of the 14th 2014).

7) The mere fact that the Defendant was not good between Nonindicted 3 and Nonindicted 3 around 2012 is insufficient to readily conclude that the Defendant had an intention to isolate Nonindicted 3 from the society with knowledge that there was no mental illness with Nonindicted 3.

2) The recognition of a defendant as to whether the procedure under Article 25 of the former Mental Health Act is unlawful

In addition, in full view of the following facts and circumstances acknowledged by the evidence duly adopted and examined by the lower court and the lower court, it is difficult to view that the Defendant, despite being aware that Nonindicted 3’s implementation of the compulsory hospitalization procedure under Article 25 of the former Mental Health Act was illegal, ordered the process without any reasonable doubt.

① In light of the language and meaning of “finding” under Article 25(1) of the former Mental Health Act, there is no provision restricting the means or method of “finding” under the former Mental Health Act, or any other Acts and subordinate statutes related to medical services; the subject of “finding” is limited to a mental health specialist or mental health specialist; and the fact that it is naturally planned to diagnose a mental health specialist in subsequent proceedings after Article 25(1) of the former Mental Health Act, it is reasonable to interpret that “a person suspected of undermining himself/herself or others due to a mental disease” (hereinafter “guilty person”) can be reasonably determined according to his/her discretion by a mental health specialist or a mental health specialist. In general, it is difficult to interpret that there is a limitation in the procedure to detect a person suspected of having a mental illness by “explosion” in light of the purport of Article 25(1) of the former Mental Health Act and Article 40(2) of the former Mental Health Act without face-to-face diagnosis of a mental patient.

② In full view of the following, it is difficult to deem that the interpretation of Article 25 of the former Mental Health Act or the relevant legal doctrine was clearly revealed at the time of the date and time indicated in the facts charged.

Supreme Court Decision 200Do4415 Decided February 23, 2001 ruled that "in the case of hospitalization by the legal guardian as provided by Article 24 of the former Mental Health Act, even if the legal guardian consented, the medical specialist directly examines the mentally ill person and diagnosed him/her as requiring hospitalization, and accordingly, the head of the medical institution for mental illness shall determine hospitalization, and only when the mentally ill person resists the hospitalization, the exercise of physical power within the reasonable scope deemed reasonable in terms of mental and social aspects shall be allowed." However, the Supreme Court precedents on the interpretation of Article 25 of the former Mental Health Act are difficult.

Article 25(3) of the former Mental Health Act provides that hospitalization pursuant to Article 25(3) of the former Mental Health Act is aimed at accurate diagnosis of a person suspected of having a mental illness, but it is unreasonable to interpret that the “face-to-face diagnosis” should first be conducted in order to conduct the above diagnosis, or there is no room to think that the practical benefit of the procedure would decrease. Therefore, there is room for dispute over the accurate interpretation of Article 25 of the former Mental Health Act.

A prosecutor who causes a disaster asserts that the “finding” under Article 25(1) of the former Mental Health Act also requires a psychiatrist or mental health specialist to face-to-face detection of a person suspected of having a mental illness (see, e.g., the statement of Nonindicted 24 and Nonindicted 25). However, the Ministry of Health and Welfare has interpreted that the “finding” is generally determined via face-to-face meeting and that the documents recorded by a third party are highly reliable (see, e.g., the results of a fact-finding with the Ministry of Health and Welfare), and there is a medical specialist of a mental health (see, e.g., the results of a fact-finding with the first instance court, the results of the fact-finding with the witness of the lower court). Meanwhile, among the opinions of the medical specialist of a mental health, it is not desirable to find the “finding” in principle, but it is not illegal to find any dispute over the interpretation of Article 25(1) of the former Mental Health Act (see, e.g., the statement of the first instance court).

In accordance with Article 25 of the former Mental Health Act at the time of detention, there was almost no practical precedent in which hospitalization was conducted, and therefore, it cannot be said that there was no established practice regarding the procedure of hospitalization (or several cases at the time of detention, and it is difficult to view that there was a established practice or practice).

The medical department in the medical department reported that the patient should be diagnosed in principle in order to diagnose whether the mental health specialist has a mental illness. However, it is difficult to view that there was an established interpretation on Article 25 of the former Mental Health Act at the time only with such clinical practice standards.

③ Therefore, even without face-to-face diagnosis, the Defendant determined that the person suspected of mental illness at the time could be hospitalized pursuant to Article 25(3) of the former Mental Health Act, and that such determination was later revealed to be inconsistent with the interpretation of the above provision, and it cannot be readily concluded that the Defendant at the time was aware of the illegality of the above procedure. The Defendant did not instruct the employees of Nonindicted 1, 4, and Subdivision Public Health Centers to the effect that he neglected the requirements and procedures under Article 25 of the former Mental Health Act and forced compulsory hospitalization.

④ The employees of Nonindicted 1, Nonindicted 4, and branch public health centers reported to the effect that the above procedure is impossible due to face-to-face diagnosis by the Defendant or Nonindicted 7 several times to the effect that “Nonindicted 3 is a family member, is unable to proceed with the procedure under Article 25 of the former Mental Health Act without any face-to-face diagnosis with Nonindicted 3, and that the address of Nonindicted 3 is acceptable, and thus there is no jurisdiction.” However, it is difficult to deem that the reported content conforms to the interpretation and accuracy of Article 25 of the former Mental Health Act. However, it is difficult to deem that the interpretation and legal principles of the above provision were clearly revealed at the time. Therefore, it is difficult to readily conclude that the Defendant was aware of the illegality of the progress of the procedure because the Defendant continued to proceed with the procedure under Article 25 of the former Mental Health Act even after receiving the above report.

⑤ In addition, Nonindicted 8, the director of the regional public health center division, as a witness of the lower court, appeared as the witness and stated that “at the time of the request for diagnosis, it was normally conducted up to “the request for diagnosis” under Article 25(2) of the former Mental Health Act, but it was impossible to proceed with the next procedure because there was no face-to-face diagnosis with Nonindicted 3.” According to the above statement, Nonindicted 8 was judged to have been lawfully conducted until the procedure for requesting diagnosis under Article 25(2) of the former Mental Health Act at the time.

(6) On June 11, 2012, the Defendant was consulted by Nonindicted 24 from the department of mental health of the Seoul National University Hospital branch of the Seoul National University Hospital with the purport that “Nonindicted 3 shall move the person in charge of protection, who is the legal guardian, to the hospital, if the person in question refuses to provide medical examination and treatment.” However, it is difficult to view the above advisory contents of Nonindicted 24 as the date of clinical practice and as the established interpretation of Article 25 of the former Mental Health Act.

7) Meanwhile, Nonindicted 11, who is the wife of Nonindicted 3, appears to have refused the recommendation from Nonindicted 5, etc. at the time to treat the mental health of Nonindicted 3. Therefore, Nonindicted 3 was unable to take the measure of hospitalization by the legal guardian pursuant to Article 24 of the former Mental Health Act.

3) Determination as to whether the crime of abusing authority and obstructing another’s exercise of rights against individual charges

A) Determination on Nonindicted 2’s amendment to Nonindicted 3’s written evaluation

(1) Legal principles

In the crime of abusing authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act, “where a person allows another person to perform a non-obligatory act” refers to the time when the person performs a non-obligatory act. As such, if the standards and procedures for performing duties are specifically stipulated in the statutes and the person in charge of practice has been granted the unique authority and role to apply the standards for performing duties and to participate in the procedure, it constitutes “when a person assists in the performance of duties” in violation of such standards and procedures. However, even if a public official allows a person in charge of practical affairs to perform a fact that assists in the performance of duties in relation to matters belonging to his/her official authority, such act is only connected with his/her official’s performance of duties, and thus, in principle, it does not constitute “when a public official performs a non-obligatory act” (see, e.g., Supreme Court Decisions 201Do12534, Oct. 31, 2017; 2018Do18646, Mar. 14, 2019).

(2) Facts constituting the premise for determination

The following facts can be acknowledged according to the evidence duly adopted and examined by the court below and the court below.

(A) On April 2012, the Defendant instructed Nonindicted 1 to the effect that “The Defendant received an evaluation question from Nonindicted 2 to the effect that Nonindicted 3 needs to be treated at present so that Nonindicted 3 could have his family members gain,” and that Nonindicted 1 sent the Defendant’s order to Nonindicted 2 around that time, and received an evaluation question from Nonindicted 2, and delivered it to the Defendant.

(B) However, the Defendant revised the instant written evaluation to the effect that “Nonindicted 3 needs to be hospitalized at present” as a penology, and ordered Nonindicted 1 to bring this to Nonindicted 1, and ordered Nonindicted 2 to revise the said written evaluation.

(C) Nonindicted 1 presented the revised assessment questions to Nonindicted 2 immediately after that, and requested Nonindicted 2 to revise the said assessment questions so that the Defendant’s revised contents can be reflected therein.

(D) While Nonindicted 2 was unable to revise the assessment text as it was corrected by the Defendant, Nonindicted 2 added the textbook contents about the seriousness of the Chogul’s disease, which led Nonindicted 1 to revise the said assessment text, and Nonindicted 1 delivered it to the Defendant.

(E) The Defendant again ordered Nonindicted 1 to receive the official seal of the Seoul National University Hospital or the Center on the instant written evaluation. Nonindicted 1 delivered the said request to Nonindicted 2 outside of the Center, and Nonindicted 2 allowed the Defendant to affix his official seal, and accordingly, Nonindicted 2’s seal was affixed on Nonindicted 2’s name.

(F) According to the foregoing circumstances, the final revised assessment proposal is as follows (No. 14, 6943, 6952 of the evidence record), and the following subparagraphs 1, 2, and 5 are the contents written by Nonindicted 2 in the past, and paragraphs 3, 4 are the parts amended additionally.

1. Evaluation opinion on Non-Indicted 3’s documents contained in the main text: (a) as the aforementioned non-Indicted 3’s evaluation opinion is based on the premise that the content stated on the Internet and the situation explanation of the persons contacted is true; (b) it is highly likely that the “relevant accident” and “over-the-counter accident” are highly likely to occur in light of the real situation; and (c) it is deemed that aggressive and aggressive speech and behavior will appear to be repeated to the extent normally anticipated even to a minor stimulate; and (d) it is determined that the possibility of “consceptic disease” among the paradic disorder is high when referring to the intellectual functions and the environment of the classical disorder; (b) it is not possible for him to see that the aforesaid evaluation of “consculic disease” has a significant decline in brain function and response to treatment; and (c) it is extremely difficult for him/her to receive a long time-term interview or treatment due to lack of seriousness of his/her own issue, and thus, it is difficult for his/her guardian to understand his/her social health and treatment.

(3) Specific determination

(A) Determination on the part of Non-Indicted 1’s demand for revision and seal of written evaluation

In full view of the following facts and circumstances that can be recognized by the evidence duly adopted and investigated in the court below and the trial court, the defendant's request for the correction of the evaluation proposal on Nonindicted 1 to Nonindicted 3, and affixing the seal of Nonindicted 2 to the above evaluation report is the defendant's act of supporting the execution of his duties in relation to the matters belonging to his official authority and authority. It is only a result of the defendant's execution of duties, or it cannot be deemed that Nonindicted 1 assisted the execution of duties in violation of the standards and procedures for the execution of duties. Thus, it cannot be deemed that the defendant's act of assisting him in the performance of duties constitutes "a case where he renders non-performance of duties" under Article 123 of the Criminal Act.

① Nonindicted 1 delivered the Defendant’s request for the revision and seal of written assessment at the direction of the Defendant to Nonindicted 2.

② Although mental health projects are the affairs under the jurisdiction of the Gu branch public health center, and the head of the Gu branch public health center can exercise the overall authority to direct and supervise the center, it cannot be deemed that the head of the Gu branch public health center is unable to request the head of the Gu branch public health center to revise the contents of the proposal for evaluation or affix seals, or that the standards or procedures that should be observed in making such a request are specified in the statutes. Therefore, it is difficult to view that Nonindicted 1’s unique authority and role is given to Nonindicted 2 in requesting for the modification and seal of the written evaluation, and there is no other evidence to acknowledge such a situation.

③ Nonindicted 1 appeared as a witness of the lower court and stated to the effect that “At the time Nonindicted 2 demanded the revision of the written assessment, Nonindicted 1 requested the revision of the written assessment to use Nonindicted 3’s guardian to obtain the treatment necessity at the time of Nonindicted 3’s request for the revision of the written assessment. According to this, Nonindicted 1 only intended to use the revised written assessment to obtain the revised written assessment from Nonindicted 3’s guardian. Therefore, it is difficult to readily conclude that the request for the revision was in breach of the standards and procedures regarding the performance of duties.

(4) The request for affixing a seal on an assessment document is for the purpose of clearly expressing that the person who prepared the document has prepared the document, so such a request cannot be deemed unlawful.

(B) Determination on the amendment of Non-Indicted 2’s written evaluation

In full view of the following facts and circumstances that can be recognized by the evidence duly adopted and examined at the lower court and the lower court, Nonindicted 2’s amendment of the written evaluation can only be deemed as following psychological sense due to Nonindicted 1’s request or the dance request, etc., and it cannot be readily concluded that “non-legal duty” was committed in the crime of abusing authority and obstructing another’s exercise of rights.

① Nonindicted 2’s revised content to Nonindicted 2’s written evaluation is merely a general content on the risk of depression and the need for medical treatment. In addition, Nonindicted 2 also attached the following proviso at the end of the evaluation proposal to the effect that “The opinion stated in the said report is evaluated only as to Nonindicted 3’s documents. Therefore, in order to conduct accurate diagnosis and treatment with respect to Nonindicted 3, face-to-face assessment should be conducted first.”

② Nonindicted 1 and Nonindicted 2 present at the lower court as a witness, and stated that the Defendant’s amendment to the written evaluation at the time was the content that Nonindicted 3 should be hospitalized because there is a risk of undermining himself or others. However, even in the modified evaluation case, Nonindicted 3 did not receive hospital treatment. As such, it is evident that Nonindicted 2 accepted the Defendant’s above demand and did not modify the written evaluation. Nonindicted 2 also stated in the testimony of the lower court that “When Nonindicted 3 was not read, Nonindicted 3 would be dangerous, and the written evaluation was made by using a ne.”

③ At the lower court’s testimony, Nonindicted 1 stated that “At the time Nonindicted 2 delivered the Defendant’s request for the revision of the written assessment to Nonindicted 2, Nonindicted 2 told Nonindicted 3’s guardian to use Nonindicted 3’s use of the written assessment proposal for the need for treatment.” Nonindicted 2 stated in the testimony of the lower court that “ Nonindicted 1 and Nonindicted 2 requested for a question at the time when Nonindicted 1 reported at the time.” According to each of the above statements, Nonindicted 1 and Nonindicted 2 did not expect that the written assessment would be used as the basis for any performance of duties. In addition, the written assessment is not a document required under the law to proceed with the procedure of Article 25(1) of the former Mental Health Act with respect to Nonindicted 3.

④ At the lower court’s testimony, Nonindicted 2 stated in the lower court’s testimony that “Nonindicted 1 did not know know that the case subject to the evaluation was fluordly unfolded, and that Nonindicted 1 did not receive any direction or interference with the contents of the written evaluation.” In so doing, Nonindicted 2 stated to the effect that “The case subject to Nonindicted 1’s written evaluation was modified by Nonindicted 1. Nonindicted 1’s instructions or interference with the contents of the written evaluation.”

B) Determination on the preparation, dispatch, etc. of official documents for the diagnosis and the preparation of the application for protection against Nonindicted 3

(1) Legal principles

In the crime of abusing authority and obstructing another’s exercise of rights under Article 12 of the Criminal Act, “an abuse of authority” means the unlawful exercise of matters belonging to general authority and authority by a public official. In other words, in a formal and external manner, a public official appears to have performed an act other than legitimate authority. Whether an act constitutes abuse ought to be determined by taking into account various elements, such as the specific purpose of the act of performing his/her duties, whether the act was necessary or reasonable under the circumstances at the time of the act, and whether the act of abusing authority satisfies the statutory requirements permissible (see, e.g., Supreme Court Decision 2014Do11441, Feb.

(2) Facts constituting the premise for determination

The following facts can be acknowledged according to the evidence duly adopted and examined by the court below and the court below.

(A) On June 15, 2012, Nonindicted 5 visited the Center along with Nonindicted 15, who is his/her father, and consulted Nonindicted 2 on Nonindicted 3’s mental health status.

(B) On June 19, 2012, upon Nonindicted 4’s instruction from Nonindicted 7 to receive the results of Nonindicted 5’s above interview, Nonindicted 4 sent a letter of “written request for interview results” (No. 1, No. 262, No. 4, No. 1496 of the evidence record) on behalf of the Sungnam market, on which Nonindicted 5 sent the results of the above interview to the public health clinic of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the public health clinic (the above official letter was drafted by Nonindicted 9 of the branch of the public health clinic of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the public health clinic

(C) On June 19, 2012, the Center sent an official document (Evidence No. 1, No. 263, No. 4992, No. 1492) to the Gu branch public health clinic, along with a record sheet stating the results of Nonindicted 5’s above interview to the head of the Gu branch public health clinic (the above official document was drafted by Nonindicted 28, and the final approval by Nonindicted 28 was made).

(D) On June 20, 2012, Non-Indicted 4 sent a public letter to Non-Indicted 3’s head of the regional public health clinic, stating that he/she should immediately apply for a diagnosis and protection pursuant to Article 25(1) of the former Mental Health Act (Evidence No. 1, No. 265, No. 4, No. 1489 of the Evidence No. 1, No. 265, No. 1489 of the Evidence No. 4) (the above public letter was drafted by the above Non-Indicted 9, and the final approval of Non-Indicted 4 was given by Non-Indicted 29).

(E) However, on June 20, 2012, Nonindicted 2 sent an official document to the effect that Nonindicted 3 cannot file a request for diagnosis and protection under Article 25(1) of the former Mental Health Act (Evidence No. 4, No. 1488 of the Evidence No. 4) with respect to Nonindicted 3 solely on the details of the interview with Nonindicted 5 in the future of the head of the branch of the Gu Public Health Center.

(3) Specific determination

(A) Determination on Nonindicted 5’s request for and delivery of the result of the interview

In full view of the following facts and circumstances that can be recognized by the evidence duly adopted and examined at the lower court and the trial court, the part that caused Nonindicted 4, etc. to request the Center to hold an interview with Nonindicted 5 or Nonindicted 2, etc. to send the result of the interview with Nonindicted 5 to the branch of the party branch of the Seoul Special Metropolitan City and the Gu Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City

(1) According to the former Mental Health Act, a local government shall take necessary measures, such as preventing mental illness, investigating the treatment of a mentally ill person, etc. (Article 4(1)); and community mental health projects, such as prevention of mental illness, and discovery and treatment of mentally ill persons, may be performed through public health clinics (Article 13(1)). Therefore, the performance of surveys, etc. for the prevention of mental illness and the discovery and treatment of mentally ill persons may be deemed as falling under its responsibility and authority. In light of the foregoing, the delivery of interview results by a defendant, who is a sexual South market, to the Center by requesting a meeting from Nonindicted 5, by Nonindicted 5, may be deemed as collection of relevant data to the extent that such collection is reasonable

② According to Article 5(4) of the former Ordinance on the Establishment and Operation of Mental Health Centers in Sungnam-si (amended by Ordinance No. 2008, Oct. 28, 2005; wholly amended by Ordinance No. 3149, Nov. 20, 2017) of the former Ordinance on the Establishment and Operation of Mental Health Centers in Sungnam-si (wholly amended by Ordinance No. 2008, Oct. 28, 2005); the Center, a trustee, shall comply with relevant laws and regulations and the Mayor’s instructions. Therefore, the Center, in principle, is obligated to comply with the Defendant’s instructions regarding its duties. In light of this, Nonindicted 2, the head of the Center, as the head of the Center, is deemed to have complied with the above request for cooperation in the collection of materials at Sungnam-si.

③ During an interview with Nonindicted 5, Nonindicted 2 explained that the content of the consultation could be provided to the relevant agency as necessary, and the consent was also obtained from Nonindicted 5 and Nonindicted 15. Therefore, it is difficult to deem that there is any illegality in the center’s request for the result of the interview with Nonindicted 5 at the center, or that the center forward it to the Gu branch public health clinic.

(B) Determination on the part of the public notice to request diagnosis and protection

In full view of the following facts and circumstances that can be recognized by the evidence duly adopted and examined at the lower court and the lower court, the part where Nonindicted 4, etc. urged the Center to conduct diagnosis and protect, cannot be deemed as an act other than legitimate authority by itself, and thus, it is difficult to view that the crime of abusing authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act constitutes an “ex officio abuse” of authority

① It is not the purport of forcing Nonindicted 2 to conclude a specific conclusion, but it can be understood to the extent that the Center examines Nonindicted 3’s request for medical examination and protection in a situation where Nonindicted 5’s request for medical treatment was made.

② In addition to the demand for the above diagnosis and protection application, there is no evidence to acknowledge the circumstance that Nonindicted 2 interfered with the unfair instruction or interference that infringes on the authority of the expert as an expert (or, in so doing, Nonindicted 4 appeared as a witness of the lower court and stated that “The Defendant and Nonindicted 7 were urged to proceed with the procedure stipulated in Article 25 of the former Mental Health Act, and the Defendant and Nonindicted 7 were urged to voluntarily refuse the demand for the above diagnosis and protection application.” In addition, Nonindicted 2 sent a public notice to the effect that Nonindicted 2 immediately rejected the demand for the above diagnosis and protection application. Thus, the mere fact of the above demand itself cannot be deemed to have interfered with Nonindicted 2’s unjust instruction or interference.

(3) Even if the authority to request the diagnosis and protection of persons suspected of having mental illness under Article 25 (1) of the former Mental Health Act exists with a mental health specialist or mental health specialist, it is difficult to deem that the head of a local government or the head of a public health clinic, who is an affiliated institution thereof, demands the above mental health specialist, etc. to exercise the said authority is unlawful.

④ As determined earlier, it is difficult to view that the Defendant instructed Nonindicted 3 to proceed with the procedure under Article 25 of the former Mental Health Act while recognizing the illegality of the process with respect to Nonindicted 3 at the time.

C) Determination on the diagnosis of Nonindicted 3 and the preparation and dispatch of a written application for protection

(1) Legal principles

In order to constitute the crime of abusing authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act, the abuse of authority and obstructing another’s exercise of rights should result in the actual act of having committed an act with no duty or obstructing another’s specific exercise of rights, and the occurrence of such result should be caused by the act of abusing authority (see Supreme Court Decision 2002Do3453, Apr. 15, 2005)

(2) Facts constituting the premise for determination

The following facts can be acknowledged according to the evidence duly adopted and examined by the court below and the court below.

(A) On July 2012, Nonindicted 5 sent to the Seoul National University Hospital and the Center for Seoul National University Hospital a certificate of content that “ Nonindicted 5 sent Nonindicted 3’s mental health status has deteriorated due to Nonindicted 3’s failure to obtain cooperation while Nonindicted 5 requested the Center to provide mental health treatment for Nonindicted 3 on June 15, 2012 (Evidence No. 8, Evidence No. 3338, Evidence No. 11, Evidence No. 5395, Evidence No. 8, Evidence No. 11, Evidence No. 5395).”

(B) At the time, Nonindicted 7 directly prepared the text of the above content certification, and reported it to the Defendant at that time.

(C) On August 2, 2012, Nonindicted 2: (a) prepared a written application with respect to Nonindicted 3 to apply for the diagnosis and protection under Article 25(1) of the former Mental Health Act (Evidence No. 4No. 1442 pages); and (b) sent it to the head of the Sungnam market or the head of the Gu branch public health clinic.

(3) Specific determination

According to each of the above evidence, Nonindicted 7: (a) prepared a written statement on April 2012 on the case of verbal abuse, abusiveation, intimidation, etc. from Nonindicted 3 to the Sungnam Viewing Public Officials; (b) instructed Nonindicted 1 to carry out the process of compulsory hospitalization on June 2012; (c) around that time, Nonindicted 7 opened a number of comments posted by Nonindicted 3 on the Sungnam Viewing website by Nonindicted 1; and (d) Nonindicted 1 presented a written statement to Nonindicted 2 on April 2012 upon Nonindicted 3’s order from the Defendant or Nonindicted 7; and (c) sought advice on Nonindicted 3’s emotional injury symptoms and the problem of hospitalized treatment against Nonindicted 3; and (d) requested that Nonindicted 2 proceed with the procedure of compulsory hospitalization against Nonindicted 3 on several occasions on June 2012 to the effect that Nonindicted 4 or Nonindicted 7’s order should not be enforced on several occasions on June 23, 2012.

However, in full view of the following facts and circumstances that can be recognized by the evidence duly adopted and examined by the lower court and the lower court, Nonindicted 2’s application for diagnosis and protection against Nonindicted 3 can only be deemed to be based on his own judgment, and it is difficult to view that it was due to the exercise of authority by the Defendant.

① Nonindicted 2 immediately rejected Nonindicted 2’s written public notice of “the head of a regional public health clinic” as of June 20, 2012, but filed an application for diagnosis and protection with Nonindicted 3 from August 2, 2012, when approximately forty (40) days have elapsed.

② Nonindicted 2 appeared as a witness of the lower court and stated to the effect that “At that time, Nonindicted 2 did not take an important consideration of Nonindicted 7 and Nonindicted 4’s request for compulsory hospitalization, or for diagnosis and protection request,” and that Nonindicted 3 applied for diagnosis and protection pursuant to Article 25(1) of the former Mental Health Act with respect to Nonindicted 3 at that time, at that time, would be a temporary assistance. However, the following: (a) Nonindicted 3’s request for diagnosis and protection was made upon receipt of the content certification from Nonindicted 5 around July 2012; (b) Nonindicted 3’s risk was doubtful; and (c) as a result of consultation with the attorney-at-law of the branch of Seoul National University Hospital, Nonindicted 2 could find a person suspected of having a mental illness pursuant to Article 25(1) of the former Mental Health Act without face-to-face without face-face consultation with the attorney-at-law of the branch of Seoul National University Hospital; and (d) received advice that there may arise a legal

③ According to the above statement by Nonindicted 2, it is doubtful that Nonindicted 2 was in danger of self-harm or sacrificing the mental health condition of Nonindicted 3 after receiving the certificate of content from Nonindicted 5, and as a result of receiving legal advice, it is rather possible to find out the suspect of mental illness without face-to-face in the interpretation of Article 25(1) of the former Mental Health Act, and to take any measures, rather than taking any measures, it can be viewed that Nonindicted 2’s request for diagnosis and protection with respect to Nonindicted 3 is reached according to his own judgment.

④ Although Nonindicted 7 directly prepared and reported the above content certification in the name of Nonindicted 5, there is no evidence to prove that the dispatch of content certification was made against Nonindicted 5’s will. Therefore, it is difficult to deem that Nonindicted 2 applied for the above diagnosis and protection on the ground that Nonindicted 7 participated in the dispatch of content certification.

⑤ In addition, even if Nonindicted 7 instructed a male viewing public official to prepare the above written statement, and the written statement was drawn to Nonindicted 2 through Nonindicted 1, it is difficult to view that there is a proximate causal relation between Nonindicted 7’s act of preparing and complying with the above written statement and the act of receiving the above diagnosis and protection by Nonindicted 2, considering the various circumstances as seen earlier.

D) Determination as to the City/Do of the enforcement of hospitalization by Nonindicted 3 pursuant to Article 25(3) of the former Mental Health Act

(1) Legal principles

In order to constitute the crime of abusing authority and obstructing another’s exercise of rights, the abuse of authority ought to have practically committed an act for which another person does not have any obligation, or a result that obstructs another person’s specific exercise of rights, and such occurrence ought to be caused by the act of abusing authority (see, e.g., Supreme Court Decision 2002Do3453, Apr. 15, 2005). The term “duty” in this context refers to legal obligation and does not constitute a simple psychological obligation or moral obligation (see, e.g., Supreme Court Decision 2008Do6950, Jan. 30, 2009).

(2) Facts constituting the premise for determination

The following facts can be acknowledged according to the evidence duly adopted and examined by the court below and the court below.

(A) On August 3, 2012, Nonindicted 4 prepared a public document stating that “The Center requests a diagnosis and protection pursuant to Article 25(1) of the former Mental Health Act to a person who filed an application for diagnosis and protection pursuant to Article 25(2) of the same Act,” in the name of the head of the branch public health clinic of the branch public health clinic (the foregoing public document is written by Nonindicted 9, and Nonindicted 4 was finally approved by Nonindicted 30, following a review approval by Nonindicted 30).

(B) around that time, Nonindicted 4 cited relevant materials with respect to the foregoing official document and Nonindicted 3, and directly found Nonindicted 10 of the department of mental health in the department of mental health in the branch of the △ Hospital and requested Nonindicted 3 to diagnose Nonindicted 3 pursuant to Article 25(2) of the former Mental Health Act.

(C) On August 7, 2012, Nonindicted 10 prepared a reply to the effect that “ Nonindicted 4 did not hold a direct interview with Nonindicted 3, but it is deemed that accurate diagnosis and treatment are necessary due to the risk of harm to himself and others as a result of examining the documents with respect to Nonindicted 3” (Evidence No. 4, No. 1439, No. 14, No. 6944, 6953). Nonindicted 4 transferred the said reply to Nonindicted 7 around that time.

(라) 이후 공소외 4는 공소외 7로부터 공소외 3이 ▷▷경찰서에 조사를 받으러 간다는 정보를 전해 듣고 2012. 8. 17. 공소외 2와 함께 공소외 3을 만나기 위하여 공소외 3이 있다는 ▷▷경찰서로 갔으나, 공소외 3을 만나지 않고 복귀하였다.

(마) 공소외 4는 당시 ▷▷경찰서로 가기 직전에 공소외 9에게 센터에 대한 협조 공문 작성을 지시하였다. 이에 공소외 9는 분당구보건소장 명의로 센터장에게 ‘공소외 3의 진단의뢰를 위해 차량 및 정신보건전문요원의 동행을 요청한다’는 내용의 협조 공문(증거기록 제4권 1440면)을 작성한 다음 ▷▷경찰서로 갔고, 공소외 2는 위 공문을 수령하였다.

(3) Specific determination

According to each of the above evidence, the Defendant and Nonindicted 7 decided that the above written reply prepared by Nonindicted 10 on August 7, 2012, which met the requirement that “when it is deemed necessary to accurately diagnose the symptoms of a person suspected of having a mental health specialist as a mentally ill person because of the risk of harm to himself/herself or others” under Article 25(3) of the former Mental Health Act with respect to Nonindicted 3. The Defendant instructed or urged Nonindicted 4, directly or through Nonindicted 7, to proceed with the hospitalization procedure under the above provision, to Nonindicted 3.

그러나 원심 및 당심에서 적법하게 채택하여 조사한 증거들에 의하여 인정할 수 있는 다음과 같은 사실 또는 사정을 종합하여 보면, 검사가 제출한 증거만으로 공소외 4, 공소외 2, 공소외 9가 2012. 8. 17. 공소외 3이 있다는 ▷▷경찰서로 간 것이 공소외 3을 구 정신보건법 제25조 제3항 에 따라 강제입원시키기 위해서였다는 점이 합리적 의심 없이 증명되었다고 보기 어렵고, 나아가 공소외 4가 당시 센터에 차량 및 정신보건전문요원의 동행을 요청하고, 공소외 4, 공소외 2, 공소외 9가 위와 같이 ▷▷경찰서로 간 것이 피고인의 지시 또는 재촉으로 인하여 직권남용권리행사방해죄에서 말하는 ‘의무 없는 일’을 한 것이라고 보기 어렵다.

① ㉮ 공소외 4는 원심 증인으로 출석하여 “당시 공소외 3을 만나러 ▷▷경찰서로 간 것은 구 정신보건법 제25조 제3항 에 따라 공소외 3을 입원시키려는 목적도 있었으나, 그보다 먼저 공소외 2로 하여금 공소외 3을 대면진단하게 하거나 공소외 3에게 진단을 권유하는 것을 1차적 목표로 하였다. 공소외 2에게 동행을 요청할 때에는 공소외 3을 강제로 데려오자는 말은 하지 않았다”는 취지로 진술하였다. ㉯ 공소외 2는 원심 증인으로 출석하여 “공소외 4가 당시 공소외 3을 만나 설득해 볼 테니 동행해 달라고 요청하였기에 공소외 3이 응한다면 직접 면담을 해 보겠다고 하여 공소외 3을 만나러 공소외 4와 동행하였는데, 가는 도중에 공소외 4가 공소외 3을 오늘 진단하고 바로 입원시키자는 취지로 말하였으나, 자신이 그것은 절대 안 된다고 거부하였다”는 취지로 진술하였다. ㉰ 공소외 9는 원심 증인으로 출석하여 “공소외 4의 지시를 받고 센터에 차량 및 정신보건전문요원의 동행을 요청하는 공문을 작성한 다음 공소외 4에게 이를 건네주기 위해 별도로 ▷▷경찰서로 갔고, 공소외 4와 공소외 2가 왜 ▷▷경찰서로 갔는지는 모른다”는 취지로 진술하였다.

② 공소외 4, 공소외 2, 공소외 9의 위 각 법정진술을 종합하여 보면, 공소외 4, 공소외 2, 공소외 9가 당시 ▷▷경찰서로 간 목적이 각자 분명하지 않고, 특히 공소외 4의 당시 의도가 정확히 무엇이었는지 분명하지 않다.

③ 공소외 4가 공소외 3을 만나기 위해 공소외 2와 함께 ▷▷경찰서로 향했던 날인 2012. 8. 17. 직전에, 성남시장 수행비서인 공소외 31은 2012. 8. 중순경 공소외 7의 지시를 받고 공소외 4에게 성남시청 청원경찰 2명과 함께 공소외 3에 대한 강제입원조치를 실행하자고 하였으나, 공소외 4는 그 절차가 위법하다는 등의 이유를 대면서 그 실행을 거절한 바 있다. 그러한 상황에서 과연 공소외 4가 특별한 사정변경 없이 자신의 입장을 바로 바꾸어 공소외 3을 강제입원시키기 위해 ▷▷경찰서로 갔는지 의심스럽다.

④ 공소외 4, 공소외 2, 공소외 9의 나이와 지위 및 경력 등을 고려할 때 당시 위 3명만으로 공소외 3에게 강제력을 행사하여 입원 절차를 진행할 수 있었을지 매우 의심스럽고, 달리 공소외 3에게 강제력을 행사하는 데 필요한 충분한 보조인력이 있었는지도 의심스럽다. 공소외 4는 당시 공소외 3을 입원시키는 것과 관련하여 병원도 예약해 두지 않았고, 입원의뢰서 작성을 비롯하여 기타 어떠한 행정적인 절차도 전혀 마련해 두지 않았다. 당시 공소외 3이 ▷▷경찰서에서 조사를 받고 있었는지조차 이를 인정할 명백한 증거가 없다.

⑤ In the official document prepared by Nonindicted 9 at the time according to Nonindicted 4’s order, Nonindicted 3’s request for the vehicle and accompanying for the “check request.” According to the language “check request”, this is not a procedure under Article 25(3) of the former Mental Health Act, but rather a procedure under Article 25(2) of the former Mental Health Act.

④ Nonindicted 4 appeared as a witness of the lower court and stated to the effect that “to send an official door requesting the accompanying of a vehicle and a mental health specialist at the time to the Center is an act of food by his own idea.” In full view of the above Nonindicted 4’s legal statement, the above official text and text, etc., it is deemed that Nonindicted 4 attempted to proceed with the procedure of Article 25(2) of the former Mental Health Act with respect to Nonindicted 3 by his own judgment, unlike the Defendant or Nonindicted 7’s instruction. This is supported by Nonindicted 2’s legal statement, namely, the statement that himself was accompanied by Nonindicted 4 to interview Nonindicted 3.

7) Furthermore, considering the above legal statement of Nonindicted 4 and Nonindicted 4’s perception, conduct, and surrounding circumstances revealed in each of the above evidence, it is doubtful that Nonindicted 4 did not conduct the above act in order to avoid the Defendant’s quality by drawing up only the appearance that, at the time of Nonindicted 4’s business trip, the Defendant was instructed or asked Nonindicted 3 to proceed with the procedure under Article 25 of the former Mental Health Act with respect to the Defendant or Nonindicted 7, while he was traveling abroad, at the time of Nonindicted 4’s business trip.

4) Sub-committee

Therefore, this part of the facts charged constitutes a case where there is no proof of crime. Although there is some inappropriate part in the reasoning of the judgment of the court below, the conclusion of the court below that acquitted all of the facts charged is justifiable. Therefore, it cannot be said that there is an error of mistake of facts or misunderstanding of legal principles in the judgment of the court below

4. Determination on the violation of the Public Official Election Act by publishing false facts with respect to Nonindicted 3

A. Summary of the judgment of the court below

The court below found the defendant not guilty of all the charges on the grounds that the defendant's statement in this part was not made public, or that there was no intention to publish false facts, and the specific reasons are as follows.

① In the instant case’s TV debate on candidates for the Gyeonggi-do Governor, Nonindicted 6 did not include the part of asking for forced hospitalization, which was in the year 2010, for the other candidate Nonindicted 6’s questioning. Therefore, it cannot be deemed that the Defendant could not be deemed that he/she made a statement of denying this, and thus, it cannot be deemed that there was a perception of

② As to whether the Defendant published false facts with Nonindicted 3’s instructions from April 2012 to August 8, 2012 as to compulsory hospitalization procedures under Article 25 of the former Mental Health Act, in light of the following circumstances: (a) the intent of questioning and answers in the TV discussions of the Governor of Gyeonggi-do at the time; (b) the diversity of remarks; (c) the situation at the time; and (d) the characteristics of joint debates, etc., the Defendant’s remarks are unclear that the existence of specific acts cannot be specified; and (b) such remarks cannot be deemed to have intentionally distorted facts to the extent that they intentionally distort the elector’s accurate judgment. Therefore, it is difficult to deem that such remarks constitute publication of false facts.

③ In full view of the circumstances in the holding, it is difficult to deem that this part of the statement was false in light of the following: (a) whether the Defendant made a false statement to the effect that the Defendant had suspended the procedure of compulsory hospitalization against Nonindicted 3 on or around 2012, even though there was no omission of the procedure; and

B. Judgment of the court below

1) Legal principles

"False facts" under Article 250 (1) of the Public Official Election Act means matters inconsistent with the truth and are sufficient if the elector has the body enough to mislead the candidate to make an accurate judgment. Whether an expression is false or not should be determined on the basis of the overall increase that the expression is provided to the elector in full taking into account the overall purport, objective contents, ordinary meaning of the term used, connection method of phrases, etc. on the premise of an ordinary method abutting on the expression by the general elector (see, e.g., Supreme Court Decisions 2009Do8947, Feb. 11, 2010; 2015Do1202, May 14, 2015). In addition, since it constitutes a crime of publishing false facts under Article 250 (1) of the Public Official Election Act, it is necessary for the elector to determine whether it is false or not, in light of the substance of the actor’s intentional act, and the circumstances leading up to the publication of such false facts and its external identity, as long as it is objectively known or anticipated from 2019.

2) Facts constituting the premise for determination

The following facts can be acknowledged according to the evidence duly adopted and examined by the court below and the court below.

A) On June 13, 2018, the Defendant was elected as the Governor of the Gyeonggi-do from the 7th local election of Dong-si nationwide, and was in office as the Governor of the Gyeonggi-do from July 2018 to that of the Gyeonggi-do.

B) In the debate on candidates of the Gyeonggi-do Governor held on May 29, 2018, the part related to the instant case among the debate made by the Defendant and Nonindicted Party 6 to the Defendant and the other candidate is as follows (the part of the remarks stated in this part of the facts charged was marked by snick letters and bottom).

A person shall be appointed.

A person shall be appointed.

C) On June 5, 2018, the part related to the instant case among the Defendant’s remarks at a candidate’s debate held by the Gyeonggi-do Governor of the Gyeonggi-do, is as follows (the part of the remarks recorded in this part of the facts charged indicated in this part).

A person shall be appointed.

3) Determination as to the denial of attempt to hospitalization at ○○ Mental Hospital

A) Even though the Defendant had attempted to hospitalize Nonindicted 3 at the ○○ Mental Hospital around 2010, it is examined as to whether the Defendant made a false statement to the effect that Nonindicted 3 was not intended to be hospitalized in the TV forum for the candidate of the Gyeonggi-do Governor (hereinafter “instant debate”) and made a statement to the effect that it was not intended to have Nonindicted 3 hospitalized in the mental hospital.

B) In full view of the following facts and circumstances acknowledged by the evidence duly adopted and examined in the lower court and the trial, it is reasonable to deem that the evidence submitted by the prosecutor alone cannot be deemed as having made a statement to the effect that the Defendant denied Nonindicted 3’s attempt to hospitalization at the ○○ Mental Hospital Hospital as above, or that the Defendant made a statement with intent to publish false facts with the intention to make a public announcement thereof.

① Nonindicted 6 appeared as a witness of the lower court and stated to the effect that “In this case, the purpose of questioning whether Nonindicted 3 attempted to be hospitalized in a mental hospital against Nonindicted 3 is not included in the part of the attempt to ○○ Mental Hospital Hospital Hospital in around 2010.”

② Considering the suspicion of “an attempt to hospitalization at a pro-friendly mental hospital” raised against the Defendant at the time of the instant debate, the Defendant appears to have understood the above suspicion of Nonindicted 6.

③ 따라서 이 사건 토론회에서 공소외 6이 피고인에게 “형님을 정신병원에 입원시키려고 하셨죠?”라고 질문한 데 대하여, 피고인이 “그런 일 없습니다”라고 발언한 것이, 피고인이 공소외 6의 위 질문의 의미를 선거인의 정확한 판단을 그르치게 할 정도로 왜곡하여 이해한 다음 이 부분 발언을 하였다고 보기 어렵다.

C) The decision of the court below to the same purport is just, and there is no error of law by misunderstanding facts or by misapprehending the legal principles. The prosecutor's allegation in this part is

4) Determination on the part concerning the defendant's participation in the procedure for compulsory admission

A) Issues

Although there was a part of the process of compulsory hospitalization under Article 25 of the former Mental Health Act between April 2012 and August 2012, the Defendant instructed Nonindicted 3 to proceed with the compulsory hospitalization procedure under Article 25 of the former Mental Health Act, it is examined whether the instant debate calls for the crime of publishing false facts by speaking to the effect that Nonindicted 3 did not have any means to hospitalization Nonindicted 3 in the mental hospital.

B) Determination as to whether this part of the statement constitutes a false publication

(1) A statement of an affirmative objection to a false fact constitutes a publication of false facts under Article 250(1) of the Public Official Election Act; however, although the statement was not actively opposed to the fact, it was made by the passive concealment or similar means. If it was distorted to the extent that it was distorted to the extent that it made the statement that it was actively opposed to the fact to the extent that it would mislead the fair judgment of the elector, it is reasonable to deem that it constitutes the publication of false facts under the above provision of the Public Official Election Act.

(2) The overall purpose of this part of the statement made by the Defendant in the instant debate is that “The Defendant actually hospitalized Nonindicted 3 by force is his wife and her wife, and ② the Defendant’s mother and her sibling entrusted Nonindicted 3 with mental health diagnosis, but the Defendant did not participate in it, rather prevented the Defendant from proceeding.”

In full view of the facts acknowledged earlier and the evidence duly adopted and examined at the court below and the court below, the defendant ordered the head of the branch of the public health clinic and its employees to proceed with the procedure under Article 25 of the former Mental Health Act with respect to Nonindicted 3 several times from April 2012 to August 8, 2012, and accordingly, it is sufficiently recognized that the above procedure against Nonindicted 3 was partially proceeded with. Thus, it is different from the fact that the defendant did not participate in the commencement of the compulsory hospitalization procedure against Nonindicted 3.

Although the Defendant did not directly use the expression “Non-Party 3 did not participate in the commencement of the compulsory hospitalization procedure,” the remainder of the statement is similar to some facts. However, considering the overall purport of this part of the statement and the increase that the elector would have received when he/she came to contact with the above statement, the Defendant, by concealing the fact that he/she instructed Non-Party 3 to proceed with the above procedure and accordingly, made such a statement, and thereby distorted the fact that he/she actively opposed to the elector’s fair judgment to the extent that he/she would mislead the elector’s fair judgment, and thus, it is reasonable to deem that this part of the statement by the Defendant constitutes a publication of false facts.

① On April 10, 2012, Nonindicted 5’s mother Nonindicted 3 drafted a written request for the treatment of depression with Nonindicted 3 in the future of the Center, and Nonindicted 47, Nonindicted 15, and Nonindicted 14, who is Nonindicted 3’s siblings, signed jointly (Evidence Nos. 1, 258, 259, 49, 1494, 1495). However, it is unclear whether the said written request was accepted to the Center regularly.

② In addition, from April 2012 to August 2, 2012, the Defendant instructed Nonindicted 3 to proceed with compulsory hospitalization procedures in accordance with Article 25 of the former Mental Health Act, either directly or through Nonindicted 7, the head of the branch public health center, Nonindicted 1, Nonindicted 4, and the staff of the branch public health center, Nonindicted 8, and Nonindicted 9 on several occasions.

③ On April 2012, the Defendant instructed Nonindicted 1, 2012, Nonindicted 1 to the effect that “The Defendant received an evaluation question from Nonindicted 2 to the effect that Nonindicted 3 needs to be treated at present,” and that Nonindicted 1 received an evaluation question from Nonindicted 2 and delivered it to the Defendant, Nonindicted 1 instructed Nonindicted 1 to revise the content thereof again, and then received a re-delivery of the revised evaluation question from Nonindicted 1.

④ On June 15, 2012, Nonindicted 5 visited the Center together with Nonindicted 15, and consulted Nonindicted 2 on Nonindicted 3’s mental health condition. However, Nonindicted 4, on June 14, 2012, the preceding day, asked Nonindicted 5 to visit the Center to request the diagnosis of Nonindicted 3 (see, e.g., Nonindicted 4’s statement and evidence record No. 477 of the original witness). In addition, Nonindicted 4, as at the time, visited Nonindicted 5 to the Center, and Nonindicted 5 and Nonindicted 15 were also directed Nonindicted 2 directly to the said Center’s office.

⑤ On June 19, 2012, upon Nonindicted 4’s instruction from Nonindicted 7 to receive the results of Nonindicted 5’s above interview, Nonindicted 4 sent an official letter of “request for interview results” (Evidence No. 1, No. 262, No. 496 of the Evidence Records) on behalf of Nonindicted 5 to a regional public health clinic for the Sungnam market, and the Center sent a letter of official document (Evidence No. 1, No. 263 of the Evidence Records, No. 1, No. 4996 of the Protocol) stating that Nonindicted 5 sent the results of the interview to a regional public health clinic on June 19, 2012. The Center sent a letter of official document (Evidence No. 1, No. 263 of the Evidence Records, No. 1492 of the Protocol) to Nonindicted 5 to the regional public health clinic.

(6) In addition, in a situation where Nonindicted 4 was urged by Nonindicted 7 to proceed with the procedure under Article 25 of the former Mental Health Act, Nonindicted 4 sent a public letter to Nonindicted 3’s request for diagnosis and protection under Article 25(1) of the former Mental Health Act (Evidence No. 1, No. 265, No. 4, No. 1489 of the Evidence No. 1, No. 265 of the former Mental Health Act) to the head of the branch public health center on June 20, 2012 in the name of the head of the branch public health center.

④ Around July 2012, Nonindicted 5 sent to the Seoul National University Hospital and the Center of the Branch of the Seoul National University Hospital (Evidence No. 8338, Evidence No. 11, No. 5395, Evidence No. 8, Evidence No. 11, Evidence No. 5395) that “ Nonindicted 5 requested the Center to provide mental health treatment to Nonindicted 3 on June 15, 2012, due to Non-Indicted 5’s failure to obtain cooperation, Non-Indicted 3’s mental health status aggravated, and several cases and accidents have occurred and accidents have occurred thereafter.” However, the above content certification was directly written by Non-Indicted 7, and at that time, reported the Defendant on the preparation of the above content certification.

④ Around June 2012 or July 2012, the Defendant made a call with Nonindicted 32, the Seoul National University Hospital Head, a branch of the Seoul National University Hospital, to the effect that “The Defendant would cooperate in the treatment of Nonindicted 3 as a matter of mental health conditions of Nonindicted 3,” and “At that time, Nonindicted 32 responded to the purport that it is difficult to immediately proceed with the procedure of hospitalization at the present stage.”

9) On August 2, 2012, Nonindicted 2 prepared an application form with respect to Nonindicted 3 to apply for diagnosis and protection under Article 25(1) of the former Mental Health Act (Evidence No. 4, No. 1442 of the Evidence No. 4) and sent it to the head of the Sungnam market or the head of the Gu branch public health clinic.

(10) On August 3, 2012, Nonindicted 4, in the name of the head of the branch public health clinic of the branch public health clinic of the branch public health clinic of the branch public health clinic of the branch public health clinic, prepared a public document stating that “the Center requests the diagnosis of a person who applied for the diagnosis and protection pursuant to Article 25(1) of the former Mental Health Act pursuant to Article 25(2) of the same Act” (Evidence No. 4 and 1438 of the record) and delivered it directly to Nonindicted 10 of the department of mental health in the branch public health clinic of

① On August 7, 2012, Nonindicted 10 prepared a reply to the effect that “ Nonindicted 4 did not hold a direct interview with Nonindicted 3, but it is deemed necessary to conduct accurate diagnosis and treatment because there is a risk of harm to himself/herself and others as a result of examining the documents with respect to Nonindicted 3” (No. 4, No. 1439, No. 144, and No. 6953 of the evidence record). Nonindicted 4 transferred the said reply to Nonindicted 7 around that time.

(12) On August 2012, Nonindicted 31, Nonindicted 31, who is the Seongbuknam City’s performance expense, was under Nonindicted 7’s instruction from Nonindicted 7 and carried out compulsory hospitalization measures against Nonindicted 4, along with two sexual male viewing security guards. However, Nonindicted 4 refused the execution of the measure, for the reason that the procedure is illegal.

⑬ 공소외 4는 공소외 7로부터 공소외 3이 ▷▷경찰서에 조사를 받으러 간다는 정보를 전해 듣고 2012. 8. 17. 공소외 2와 함께 공소외 3을 만나기 위하여 공소외 3이 있다는 ▷▷경찰서로 갔으나, 공소외 3을 만나지 않고 복귀하였다.

4) On August 27, 2012, the Defendant instructed Nonindicted 4, Nonindicted 8, and Nonindicted 9 to the effect that “At present, Nonindicted 3 completed the procedures under Article 25(2) of the former Mental Health Act, and subsequently proceed with the following procedures.” At the time, the Defendant was urged to the effect that “I are not able to deal with the legitimate matters, i.e., what is the cause of failure to deal with, and what is the abandonment of duties.”

(15) On September 13, 2012 and September 17, 2012, the Defendant, either directly or through Nonindicted 7, instructed persons related to the branch public health clinic, including Nonindicted 4 and Nonindicted 8, to prepare a question to ask the relevant agencies, such as the Ministry of Government Legislation and the Ministry of Health and Welfare, about whether it is possible to take a compulsory hospitalization measure under Article 25 of the former Mental Health Act at the present stage. However, the procedure of Article 25 of the former Mental Health Act against Nonindicted 3 is not followed.

C) Determination as to whether the defendant had an intention to publish false information

In full view of the following facts and circumstances that can be recognized by the evidence duly adopted and examined at the lower court and the lower court, it is reasonable to deem that the Defendant had an intentional intent to publish false facts by hiding the fact that the Defendant instructed Nonindicted 3 to proceed with the above procedure and attempted to take part in the above procedure against Nonindicted 3 and speaking in this part.

① As seen earlier, the Defendant, either directly or through Nonindicted 7 from April 2012 to August 8, 2012, instructed Nonindicted 1, Nonindicted 4, and employees of the branch public health clinic to proceed with the compulsory hospitalization procedure under Article 25 of the former Mental Health Act with respect to Nonindicted 3, Nonindicted 8, and Nonindicted 9 on several occasions. Accordingly, the Defendant was in the position where he was well aware of the commencement and progress of the said compulsory hospitalization procedure.

② 피고인이 친형인 공소외 3을 강제로 정신병원에 입원시키려 시도했다거나 입원시켰다는 세간의 의혹은 이 사건 토론회 무렵에만 있었던 것이 아니다. 2012. 9.경 “피고인이 자신을 정신병원에 강제입원시키려 했다”는 취지의 주장이 담긴 공소외 3에 대한 인터뷰가 ▶▶일보에 보도(증거기록 제14권 6984면)된 이래, 위와 같은 의혹은 2017.경까지도 계속하여 언론, SNS(소셜 네트워크 서비스) 등에 의해 퍼져 나갔다. 특히 피고인이 성남시장 후보자로 출마한 2014. 6. 지방선거 당시에도 위와 같은 의혹이 제기된 바 있다.

③ From 2012 to 2012, the Defendant actively explained that the above suspicion was raised, the Defendant was not a suspicion through SNS and journal interview, etc., and the main contents of the explanation are as follows: “The mother and sibling requested treatment or compulsory diagnosis against Nonindicted 3; or (b) Nonindicted 3 actually hospitalized Nonindicted 3 into a mental hospital, is his wife and father.” (Article 269 to 1513 of the Public Trial Records). However, it is difficult to find the part where the Defendant instructed the Defendant to proceed with the procedure under Article 25 of the former Mental Health Act against Nonindicted 3 or participated in the commencement of the procedure.

④ This part of the Defendant’s remarks in the instant debate does not differ significantly from the previous statements made by the Defendant over several times, and its expressions are almost similar. Therefore, considering the fact that the expressions of this part of the remarks may be somewhat unclear due to the rasical and continuousness of the official announcements made in TV joint discussions, it is difficult to view that the Defendant made this part of the remarks without accurately considering the overall purport of this part of the remarks and the impression that the general electors received.

⑤ On October 20, 2014, the Defendant made a statement to the effect that “the Defendant was hospitalized in a mental hospital on the ground that there was no problem with the Defendant,” in the broadcast program, the Defendant brought a lawsuit against Nonindicted 33 on the ground that the above content was false, and received a favorable judgment on April 22, 2015 (Seoul Central District Court Decision 2014Gahap586479). As such, the Defendant actively dealt with the false content that “the Defendant was forced to have the Defendant hospitalized Nonindicted 3 to the mental hospital,” and in light of these circumstances, the Defendant seems to have been aware of the suspicion of himself and its degree of falsity.

④ In the instant debate, Nonindicted Party 6, the other party candidate, was asked to the Defendant “Isle Nonindicted Party 6, at the Sungnam-si Mental Health Center, entrusted to the Sungnam-si Seoul Metropolitan City Hospital on the eightth floor, it was found that Nonindicted Party 3 was a mentally ill person without any diagnosis or examination.” “In April 2012, Isle to know at the branch of the Seoul Metropolitan City University Hospital that there is a high possibility of being a manuous disease at the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch.”

7) Although this part of the suspicion raised against the Defendant was about “whether the Defendant had forcedly hospitalized Nonindicted 3 to a mental hospital by unlawful means,” the general elector, regardless of whether the Defendant was illegal or not, was in the position of the Defendant as a candidate for public office and morality. However, the general elector did not seem to have been well aware of the above information, and considering the Defendant’s status, personal history, election career, etc., the Defendant was well aware of such fact.

④ This part of the Defendant’s statement is not limited to passive denial of Nonindicted 6’s question at the time of the instant debate, but rather actively explained the procedure that took place against Nonindicted 3. Furthermore, although the Defendant explained that his mother and his sibling requested the diagnosis of Nonindicted 3, the Defendant expressed that “I were not able to directly request the diagnosis.”

9) If the Defendant made this part of the statement with the intent to express that Nonindicted 3 did not wish to be hospitalized in a mental hospital through any unlawful procedure, it is doubtful whether the Defendant’s expression to the effect that Nonindicted 3 was only the mother and sibling of the Defendant at the time, who requested a compulsory diagnosis is the mother and sibling of the Defendant. Rather, if the Defendant had such intent, it is more natural to emphasize that the procedure taken against Nonindicted 3 was legitimate according to the Defendant’s instruction at the time.

(10) Unlike the purpose of hospitalization under Article 25(6) of the former Mental Health Act, the purpose of the procedure under Article 25(3) of the former Mental Health Act lies in accurate diagnosis, but the procedure that takes place accordingly is also hospitalization against a person suspected of having mental illness. According to the aforementioned various circumstances, the Defendant correctly understood the procedure under Article 25 of the former Mental Health Act. Nevertheless, the Defendant has used the term “voluntary diagnosis” or “request for diagnosis” differently from the “voluntary hospitalization for treatment” in the process of piracy against the suspicion of “involuntary hospitalization” in the past, and it is more consistent with the circumstance that the Defendant intended to conceal the “involuntary hospitalization” itself.

1) Even if the Defendant made a statement in this part with the intent to clarify that “the Defendant had no act of exercising coercive force to hospitalize Nonparty 3,” or that “the procedure under Article 25 of the former Mental Health Act with respect to Nonparty 3 was completed at the diagnosis stage,” it is not entirely revealed in this part of the statement whether or not the Defendant was involved in the determination or procedure. Therefore, the Defendant’s intention to publish this part of the false facts cannot be denied.

(12) In full view of the aforementioned circumstances, it is reasonable to view that the Defendant intentionally concealed this part of the instant debate in order not to inform the general voters of the fact that “the Defendant instructed Nonindicted 3 to proceed with the procedure pursuant to Article 25 of the former Mental Health Act with respect to Nonindicted 3, and accordingly, took part of the above procedure against Nonindicted 3,” while speaking in the instant debate.

D) Determination on the assertion by the Defendant and the defense counsel

(1) Determination on the scope of prosecution

The Defendant’s defense counsel asserts that this part of the facts charged merely published other false facts despite the Defendant’s attempt to hospitalization Nonindicted 3’s “illegal” with Nonindicted 3, and that it is not included in this part of the facts charged to the effect that the Defendant, despite the Defendant’s instruction to start the “legal” hospitalization procedure, published other false facts despite having given Nonindicted 3’s instruction to do so.

However, considering the language of this part of the facts charged and the prosecutor’s opinion on this part of the facts charged, it is difficult to view that the scope of this part of the facts charged is the same as the Defendant’s defense counsel’s assertion.

(2) Determination as to whether the publication of false facts constitutes “act”

Defendant’s defense counsel asserts that this part of the Defendant’s statement is merely the content of the Defendant’s intent, and is not the part of the “act”. Thus, the Defendant’s defense counsel argues that there is no false representation as to the “act” of the candidate, which is the constituent element of Article 250(1)

On the other hand, this part of the Defendant’s statement is a false statement that the Defendant did not participate at all in the commencement of the compulsory hospitalization procedure against Nonindicted 3. However, whether the Defendant instructed the above compulsory hospitalization procedure and the above procedure was partially carried out or not is a matter pertaining to the external action of the Defendant, rather than a matter within the subjective inner realm of the Defendant. In addition, this part of the statement is a matter that affects the elector’s fair judgment as a matter that can serve as an index such as the candidate’s quality, character, morality, etc. It is reasonable to deem that the statement made in this part is false information about the candidate’s “act” as provided in Article 250(1) of the Public Official Election Act. Accordingly, it is reasonable to deem that the Defendant’s defense

(3) Determination as to the existence of “the purpose to be elected”

The defendant's defense counsel asserts that this part of the defendant's statement merely denied the attack and malicious questions of the other party candidate in the debate of this case.

Article 250 (1) of the Public Official Election Act provides that “the purpose of election is to be held or to be made,” if there is no need to be active desire or conclusive recognition, it shall be determined reasonably in light of social norms by comprehensively taking into account various circumstances, such as the Defendant’s social status, personal relationship with the Defendant, candidate or candidate for competition, motive and circumstance of publication, method and method of publication, details and mode of act, nature and scope of the other party where such publication was conducted, and social situation at the time of the act (see, e.g., Supreme Court Decision 2008Do10365, Jan. 15, 2009). This part of the Defendant’s statement is not only passively denying the Defendant’s question at the candidate TV forum, but rather, actively explaining the procedure that the Defendant made with respect to Nonindicted 3, who is the other candidate at the time, did not have any influence on the Defendant’s right to participate in the election (see, e.g., Supreme Court Decision 2008Do1064, supra.).

E) Sub-decisions

Therefore, even though this part of the facts charged can be found guilty, it is erroneous in the judgment of the court below that judged otherwise, or in the misapprehension of legal principles. The prosecutor's allegation in this part is with merit.

5) Determination on the part that the defendant suspended the procedure

A) Although there was no interruption of the Defendant’s procedure under Article 25 of the former Mental Health Act against Nonindicted 3, it is examined as to whether the instant debate made a false statement to the effect that the Defendant ceased the said procedure.

B) In full view of the following facts and circumstances acknowledged by the evidence duly adopted and examined by the lower court and the lower court, it is reasonable to deem that the Defendant’s statement on this part is false, or that there was an intentional intent to publish false facts to the Defendant.

① As acknowledged earlier, the Defendant directly instructed the head of a branch of a regional public health clinic and its employees to proceed with the procedures under Article 25 of the former Mental Health Act on several occasions between April 2012 and August 2012, and accordingly, partially proceeded with Nonindicted 3. In such a situation, it is difficult to view that the said procedures may be suspended even without the Defendant’s instruction or consent.

② In the year 2012, Nonindicted 34, who had served as the deputy head of Sungnam-si, was present as a witness of the lower court, and stated that “ Nonindicted 34, who sought himself around 2012, and ordered Nonindicted 4 to the end that he would be able to impose criminal liability if he would proceed with the procedure of hospitalization at a mental hospital for Nonindicted 3, the same time as he would be able to be able to impose criminal liability.” After that, Nonindicted 4, who sought the Defendant, was difficult for public officials to find and have politically unreasonable, proposed to the effect that he would lose the above procedure.” Accordingly, according to Nonindicted 34’s statement, the Defendant was “the completion of the above procedure with an interpretation of this issue by another institution,” and the Defendant could be deemed to have suspended the procedure under Article 25 of the former Mental Health Act of Nonindicted 3.

③ 검사는 공소외 3에 대한 구 정신보건법 제25조 의 절차는 공소외 4의 자의에 의한 포기로 중단된 것이라고 주장한다. 그러나 공소외 4가 2012. 8. 17. 공소외 3을 만나러 ▷▷경찰서로 갔으나 공소외 3을 만나지 않고 복귀한 이후에도, 피고인은 2012. 8. 27.경 공소외 4, 공소외 8, 공소외 9에게 “현재 공소외 3에 대하여 구 정신보건법 제25조 제2항 에 따른 절차는 완료되었으니 그 다음 절차를 진행하라”는 취지로 지시하며 질책하기도 하였고, 2012. 9. 13.경 및 9. 17.경 직접 또는 공소외 7을 통하여 공소외 4 및 공소외 8 등 분당구보건소 관계자들에게 ‘현재 단계에서 구 정신보건법 제25조 에 따른 강제입원 조치가 가능한지’에 관하여 법제처, 보건복지부 등 유관기관에 유권해석을 문의할 질의서를 작성하도록 지시하기도 하였다.

④ However, the procedure of Article 25 of the former Mental Health Act with respect to Nonindicted 3 has not been achieved separately. This is also due to the fact that the Defendant had attempted to suspend the above procedure.

C) The decision of the court below to the same purport is just, and there is no error of law by misunderstanding facts or by misapprehending the legal principles. The prosecutor's allegation in this part is

6) Determination on other parts

A) Meanwhile, in this part of the facts charged, “Non-Indicted 3 suffered from depressions, etc. due to the aftermath of the relevant accident on or around March 2013, and Non-Indicted 11 and Non-Indicted 16, who was the denied, were hospitalized in the △△ Hospital on or around November 2014 by Non-Indicted 11 and Non-Indicted 16, who was his/her father, was hospitalized with Non-Indicted 3, but did not have received a diagnosis or treatment from a medical specialist with mental illness at the time of around 2012, and Non-Indicted 11 and Non-Indicted 16 did not think that there was a mental problem with Non-Indicted 3” in this part of the indictment, the judgment of the court below was not clearly determined, and the prosecutor did not submit the grounds for appeal as to this part.

B) As examined in the determination of ex officio, there are various circumstances suspected of having mental illness with Nonindicted 3 even around the date and time indicated in this part of the facts charged, and there is considerable circumstance to deem that Nonindicted 3, around February 2002, 199, she was imprisoned by the doctor Nonindicted 13 and she was imprisoned. Accordingly, it is difficult to view this part of the statement as false facts or that there was an intention to publish false facts to the Defendant.

5. Determination as to the violation of the Public Official Election Act due to the publication of false facts related to the previous offense of prosecutor's name

A. Summary of this part of the facts charged

At around 23:00 on May 29, 2018, the Defendant respondeded to the “2018 Jeju-do candidate invitation debate for the Gyeonggi-do Governor of Gyeonggi-do” to the “2018 Jeju-do candidate KS.” Nonindicted 6 candidate’s question as to whether or not the inspector is named, “I have written a statement that he had attempted to go because he was in the next interview,” and “I have no way to talk with the prosecutor. I have written a false name on the ground that I had talked next to her. I have talked with her. I have the same.” After making a request for additional time, I had talked that “I have come to memory as a case of preferential sale of the interview. I have talked that I have talked to what kind of interview. I have done. I have done. I have to talk with the City Mayor. I have tried to do so. I have to do so. I have to talk. I have to do so. I have to do so. I have to do so. I have to talk to this. I have to talk. I have. I have talk.

그러나 사실 “분당 백궁·정자지구 파크뷰 용도변경 및 특혜분양 사건”에 관한 보도자료를 수집하던 KBS ‘추적60분’ 담당 프로듀서 공소외 12가 2002. 5. 10. 변호사 피고인 법률사무소 내 피고인의 집무실에서 피고인과 인터뷰 도중 당시 성남시장 공소외 35로부터 전화를 받고 피고인과 무관하게 ♠모 검사를 사칭하며 공소외 35와 통화한 것이 아니라 피고인이 공소외 35로부터 전화를 달라는 음성메시지를 받은 공소외 12에게 사칭할 수원지방검찰청 검사의 이름과 물어볼 질문의 요지를 알려준 다음 공소외 12가 위 ♠모 검사를 사칭하여 공소외 35와 통화를 시작하자 메모지에 추가질문사항을 적어주거나 나지막한 목소리로 설명을 해 주는 등 공소외 12와 공모하여 피고인과 공소외 35 간의 형사사건을 담당하는 수원지방검찰청 검사를 사칭하여 그 권한을 행사하였고 그로 인해 형사처벌을 받았다.

As a result, the Defendant published false facts about the candidate’s career or behavior in favor of the candidate for the purpose of winning the election.

B. Summary of the judgment of the court below

The court below found the defendant not guilty of all the charges on the grounds that the defendant's statement in this part was not made public, or that there was no intention to publish false facts, and the specific reasons are as follows.

① At the time of Nonindicted 12’s misrepresentation, the Defendant could be deemed to have been conducting an interview. The Defendant’s speech on this part does not seem to have made any speech as to what contents of the interview were, and therefore, it cannot be deemed that Nonindicted 12 published the fact that the Defendant, while engaging in an act unrelated to the name of the inspector, was misrepresented with the prosecutor. In addition, in light of Nonindicted 36’s statement, it is difficult to view that the Defendant’s statement that “the Defendant was reported at the time” was false.

② Although Nonindicted 12 had a phone call to Nonindicted 35 at the time of Nonindicted 12’s public prosecutor’s name, the part of Nonindicted 12’s statement to the effect that “Nonindicted 12 received a phone call from Nonindicted 35” was not intended, but likely to mislead or mislead Nonindicted 35, so there is no intention to publish false information.

③ The statement to the effect that the name of the inspector was written as an expression of the name of the inspector means that the punishment is unreasonable or sound, and such expression cannot be deemed as a statement of fact. The meaning that the Defendant was punished by the name of the inspector is multiple, and thus, it cannot be deemed that Nonindicted 12 made a statement of the name of the inspector regardless of the Defendant. Unless the Defendant asserts individual false facts, the expression that this part of the name was written is difficult to be deemed as a publication of fact, and it is merely a statement of the Defendant’s position or evaluation.

C. Judgment of the court below

1) Legal principles

“False fact” in Article 250(1) of the Public Official Election Act refers to a matter that is inconsistent with the truth, and that is sufficient enough to have the elector make an accurate judgment on a candidate, but it does not constitute merely an expression of opinion with simple value judgment or evaluation. In such a case, in distinguishing between whether a statement is a true statement or an expression of opinion, the determination ought to be made by taking into account the overall circumstances, such as the ordinary meaning and usage of language, the context in which the given statement was used, the possibility of proof, and the social situation in which the expression was made, in mind, with the legislative intent of ensuring the fairness of election (see, e.g., Supreme Court Decision 2015Do3038, Dec. 15, 2016).

2) Facts constituting the premise for determination

The following facts can be acknowledged according to the evidence duly adopted and examined by the court below and the court below.

A) The prosecutor's name before the defendant

(1) On November 13, 2002, the Defendant was detained under suspicion, such as the name of a public official, the name of a public official, and the name of a public official, stating that “the Defendant conspired with Nonindicted 12 and exercised his authority by misrepresenting the prosecutor’s qualification.” On November 13, 2002, the above court convicted the Defendant of the suspicion of the above public official qualification and the suspicion against Nonindicted 35, and sentenced the Defendant to a fine of KRW 2.5 million.

(2) On July 1, 2003, the appellate court rejected the Defendant’s assertion of the grounds for appeal on the charge of the Defendant’s qualification as public official. However, on the grounds that the first instance court’s punishment is somewhat heavy, the appellate court sentenced the Defendant to a fine of KRW 1.5 million (Seoul High Court 2002No3184).

(3) On December 24, 2004, the Supreme Court dismissed all the appeals filed by the Defendant and the prosecutor against the above judgment (Supreme Court Decision 2003Do4065), and the above judgment became final and conclusive (hereinafter “relevant criminal judgment”).

B) Defendant’s debate comments

On May 29, 2018, at the debate of the candidates of the Gyeonggi-do Governor of KS held on May 29, 2018, the part related to this case among the debate made by the Defendant and Nonindicted Party 6 to the other candidate is as follows (the part of the remarks recorded in this part of the facts charged is marked by snick letters and bottom

A person shall be appointed.

3) Determination as to whether this part of the statement constitutes a factual expression or an expression of opinion

In full view of the following facts and circumstances that can be recognized by the evidence duly adopted and examined at the lower court and the trial court, it is reasonable to view this part of the Defendant’s statement to the effect that “The Defendant was punished on the ground that he did not have any participation in Nonindicted 12’s act of the name of the prosecutor, and was in the interview next to the lower court’s judgment,” rather than mentioning a false fact that “the Defendant was punished on the ground that he did not have any participation in the act of the name of the inspector,” it would be deemed that the Defendant expressed an opinion that

① From around September 1999, the Defendant asserted that “a pro rata Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Ma

② Around May 8, 2002, the news gathering team planned to gather “the fact-finding 60 minutes”, which has emerged very harshly as at the beginning of May 2002, the news gathering team planned to gather news “the fact-finding and the change of use and preferential sale for the proteg.” As such, Nonindicted 12, including Nonindicted 12, and Nonindicted 37, and Nonindicted 38, etc., asked the Defendant about the above case at around that time. Nonindicted 12 visited the Defendant’s attorney-at-law office around May 8, 2002, after hearing the Defendant’s explanation about the above case and receiving any relevant materials.

③ On May 10, 2002, Nonindicted 12 visited Nonindicted 35 and Nonindicted 35 at the time when Nonindicted 12 visited the Defendant’s office of attorney-at-law, who intends to talk with the Defendant, to visit the said office of prosecutor. Since then, the Defendant received from Nonindicted 12 a recording tape containing the said prosecutor’s name, and made public the statement of Nonindicted 35’s remarks in the said currency on May 23, 2002 at the Sungnam viewing.

④ On May 25, 2002, Nonindicted 35 filed a complaint with the Defendant and Nonindicted 12 on suspicion of violation of the Public Official Election Act, such as the name of public official qualification and the violation of the Public Official Election Act. The Defendant refused to comply with the prosecutor’s demand for summons on June 1, 2002 while being investigated. In order to prevent the said case from being abused politically, he would be urged to comply with the prosecutor summons after the lapse of June 13, 2002, which is the local election day at the time. The Defendant was present at the public prosecutor’s office on June 28, 2002, which was issued on June 5, 2002, but the warrant of arrest against himself was arrested on the day when he was present at the public prosecutor’s office on June 28, 2002, and was detained on July 1, 2002, and was prosecuted for suspicion of public official qualification, etc. on July 4, 2002.

⑤ In the process of the investigation and trial, the Defendant alleged to the effect that “the Prosecutor’s Office fabricated and investigated the case in bad faith by setting up a detention policy with prejudice to the Defendant.” Meanwhile, around July 18, 2002, the “Attorney’s Meeting for Democratic Society” filed a petition with the National Human Rights Commission of Korea to the effect that there was an unreasonable problem in the investigation process against the Defendant.

6. In the above criminal trial against the defendant, the related criminal judgment was finally rendered and finalized, and the criminal facts of the recognized defendant's qualification as public official are as follows.

본문내 포함된 표 한국방송공사 “추적 60분” 프로그램에서 프로듀서로 재직한 공소외 12는 2002. 5. 18. 22:00경 KBS에서 방영될 ‘분당 백궁·정자지구 파크뷰 용도변경 및 특혜분양 사건’에 관한 보도자료를 수집하기 위해 성남시장과 위 파크뷰 시행업체인 에이치원(H-1)개발 주식회사 회장 공소외 39 등과의 유착의혹 및 이들의 배후를 취재함에 있어 2002. 5. 10. 10:59경 전 성남시장 공소외 35의 전 수행비서 공소외 40에게 전화하여 “검찰청”이라고 자신 측을 소개하고, 같은 날 11:26경 성남시청 시장 비서실에 전화하여 소속 직원인 공소외 41에게 자신 측을 “검찰청 검사실”이라고 소개하며 각 공소외 35와의 통화를 시도하였는데, 공소외 12가 같은 날 11:28경 피고인의 법률사무소 내 집무실에서 취재 목적으로 KBS에서 제공받아 사용중인 핸드폰에 공소외 35로부터 자신의 핸드폰으로 전화를 해달라는 내용의 음성메시지가 녹음되어 있는 것을 확인하자, 피고인은 공소외 12로 하여금 공소외 35와 피고인간에 맞고소하여 수사중인 업무상 배임 및 명예훼손 사건의 주임검사인 수원지방검찰청 ♠모 검사의 자격을 사칭하여 마치 위 ♠검사가 공소외 35를 상대로 위 맞고소 사건에 관하여 전화로 그 의혹 및 배후관계 등에 조사하는 것처럼 하려고 공소외 35에 대한 질문사항을 사전에 공소외 12에게 개략적으로 설명하면서 통화중 그때그때마다 메모지에 추가로 작성하여 보여주고, 공소외 12는 공소외 35에게 전화를 걸어 위 메모지에 기재된 내용을 가지고 질문하여 그 답변을 얻어내고 카메라담당 공소외 42, 오디오담당 공소외 36로 하여금 이를 녹취하게 하여 보도하기로 하고, 공소외 12와 공동하여, 공소외 12는 피고인에게 “수원지검에 경상도 말을 쓰는 검사 중 아는 사람 있어요”라고 물어 피고인이 “수원지검에 ♠모 검사가 있는데 시장도 그 이름을 대면 잘 알 겁니다”라고 대답하자, 공소외 12는 공소외 35에게 “수원지검 ♠검사입니다, 수사 중에 아니 조사하는 과정에서 시장님께 확인을 받아야 할 일이 있어서 전화를 하였습니다, 제가 조사하는 참고인이 시장님께서 ♤회장으로부터 은갈치를 받았고 ♤회장과 골프를 쳤다고 진술하는데 그 부분에 대하여 시장님의 확인을 받고 싶어서 전화를 하였습니다. 시장님께 도움을 드리려고 그러니까 좀 상세하게 말씀해 주시기 바랍니다”라고 마치 위 사건을 수사중인 ♠검사인 양 운을 뗀 다음 공소외 35를 상대로 사칭하는 통화를 시작하였고, 피고인은 가끔 카메라 쪽으로 가 스피커에 귀를 대고 공소외 35의 답변 내용을 들으면서 공소외 12에게 위 공소외 35에 대한 추가 질문 사항을 메모지에 간단하게 적어 주거나 나지막한 목소리로 보충 설명하고, 이에 따라 위 공소외 12는 공소외 35에게 “분당 백궁지구 용도변경은 누구의 부탁을 받고 한 것은 아닌가, 파크뷰의 ♤회장에게서 은갈치를 받고 함께 골프를 치는 등 친분관계가 있는 것으로 알고 있는데 ♤회장으로부터 부탁을 받고 설계변경을 한 것은 아닌가, 선거 때 ♤회장이 도와주었는가, 왜 성남시 부시장이 ♤회장의 골프클럽하우스의 사무실을 사용하였는가, ♤회장이 성남지청과 수원지검 검사들과 어울려 골프를 쳤다는 말이 있는데 어떻게 된 것인가, 박모 비서관과 이모부장검사가 시장과 가깝게 지낸다는 말이 있는데 어떻게 된 것인가, 작년에 ♡시장이 고소한 내용의 수사가 그 당시 왜 지연되었는가” 등에 관하여 마치 검사가 공소외 35를 상대로 피의자신문하듯이 유도 질문을 하며 그 답변을 얻어내는 등으로 조사하여 공무원인 검사의 자격을 사칭하여 그 직권을 행사하였다.

⑦ 위와 같이 공무원자격사칭에 관한 피고인의 객관적인 행위는 ㉮ 공소외 12에게 ♠모 검사의 이름을 알려주면서 시장도 그 이름을 대면 잘 알 것이라고 말한 행위와 ㉯ 가끔 카메라 쪽으로 가 스피커에 귀를 대고 공소외 35의 답변 내용을 들으면서 공소외 12에게 추가 질문 사항을 메모지에 간단하게 적어 주거나 나지막한 목소리로 보충 설명한 행위이다.

④ However, during the criminal trial, the Defendant, while informing Nonindicted 12 of the contents of the news coverage case and the name of the prosecutor in charge of the relevant case at the time of the instant criminal trial, and Nonindicted 12 knew that Nonindicted 12 intended to misrepresent himself/herself at the time of the call with Nonindicted 35, and Nonindicted 12 actively denied a conspiracy with Nonindicted 12 by asserting that Nonindicted 12 had been engaged in an interim camera at the time of call with Nonindicted 35, and that Nonindicted 12 had not been informed of the matters to be asked to Nonindicted 12.

9) In the above case, while recognizing the credibility of each of the statements made by Nonindicted 12 and Nonindicted 42 and Nonindicted 36, the court rejected the Defendant’s assertion and sentenced the relevant criminal judgment, the court acknowledged the above criminal facts by modifying the part of the facts charged as stated in the indictment by somewhat modifying the part of the charges as follows, taking into account the Defendant’s change in the motive or circumstance of the crime (the main part of the part in which there is a difference between the two parties, which is marked by s

A person shall be appointed.

A person shall be appointed.

(10) In particular, the facts charged are stated to the effect that the Defendant first accepted Nonindicted 12 as an inspector’s name, but in the criminal facts of the relevant criminal judgment, Nonindicted 12 attempted to misrepresentate the prosecutor’s office first, and then the Defendant and Nonindicted 12 conspiredd with the prosecutor’s name. Nonindicted 12 also stated, at the time of investigation by the prosecution, that “the part that the Defendant has laid his name as an inspector is different from the fact.” At the time of investigation, Nonindicted 12 also stated, “The false person begins first and did not receive his name as an inspector.” (No. 2 right 1026 pages for each investigation record bound by the 17th page of the evidence record) and stated to the same effect as a witness at the first instance court (No. 2 right 1772, 1814 pages for each investigation record bound by the 17th page of the evidence record).

[다만 그 항소심은 위 공소사실과 같이 ‘피고인이 공소외 12와 공소외 35의 통화 도중 공소외 35의 답변을 듣고 있다가 공소외 12에게 손가락으로 동그랗게 만들어 만족한 답변이 나왔다는 취지의 사인을 보내기도 한 사실’은 인정된다고 판단하였다( 서울고등법원 2002노3184 , 증거기록 제16권에 편철된 수사기록 494면)]

1) As above, in light of the series of circumstances and processes up to the relevant criminal judgment, there is room to deem that the Defendant was aware that he/she was aware that he/she had been engaged in, or detained Nonindicted 12’s act of disclosing Nonindicted 35’s speech during the currency, due to the reason that he/she was aware that he/she had been involved in, Nonindicted 12’s act of disclosing the speech in the currency of Nonindicted 35.

(12) In the election of the Governor of the Gyeonggi-do in 2018, the Defendant stated in the column for criminal records of the previous criminal judgment among his/her election campaign bulletins that “as a citizen movement, the fact-finding and accusation of the case in which a candidate who was the chairperson of the committee on the execution of the measures for preferential sale of lots is present during the interview of the public prosecutor in charge and the important matters of the case.” The Defendant asked the candidate who was the chairperson of the committee on the execution of the measures for preferential sale of lots to be asked for the name of the public prosecutor in charge and the important matters of the case during the interview, and finally, the term of the vindication appears to have been tried as a public prosecutor at the end of the legal dispute.” The phrase of the vindication appears to have presented his/her own opinion

(13) Considering the above circumstances, considering that the defendant's statement in this part is an expression made in TV joint debate, the overall context of the statement and the specific expression used, and in particular, the defendant's statement in this part in the process of speaking, it is understood that the overall purport of this part of the defendant's statement is that the general purport of this part is that the defendant's statement is to explain to the general public the procedure and process of his own criminal facts and to be punished as a related criminal judgment, and it is reasonable to view that the above statement in the defendant's related criminal judgment is a critical element of this part of the statement.

4) Determination as to whether false information was published, and whether there was intention to do so

In preliminary determination, even if there is room to view that the Defendant, as to the relevant criminal judgment, published the false fact that “the Defendant was punished on the ground that he had not been involved in Nonindicted 12’s act of referring to Nonindicted 12’s act of inspection,” it is difficult to view that the evidence submitted by the prosecutor alone proves that the Defendant had the intention to publish such false fact without any reasonable doubt.

① In this part of the Defendant’s statement, the part that “the person who made a public prosecutor’s name call is not the Defendant but the broadcasting station ID,” and the part that “the Defendant had interviewed at that time,” which is deemed to be false in light of relevant criminal facts, are difficult to be deemed to be false in light of the aforementioned evidence. In addition, in this part of the Defendant’s statement, the part that “the Defendant had reported at that time” in this part of the Defendant’s statement is also false in light of the aforementioned evidence. However, in this part of the Defendant’s statement, the part that “the Defendant started to use the call from Nonindicted 35 first and Nonindicted 12 to the public prosecutor’s name,” is different from the above criminal facts, but it is difficult to view that there is a little difference in the circumstance or an important part. In addition, it is difficult to view that the part of the Defendant’s statement contains any content different from

② The Defendant consistently asserted that he did not participate in Nonindicted 12’s act of public prosecutor’s name from the investigation stage of relevant criminal judgment to the present time. Therefore, it is difficult to readily conclude that the Defendant asserts that he/she had the intention to publish false facts by asserting that he/she had reached the present time.

③ Since the criminal facts of a criminal defendant recognized in the relevant criminal judgment can be easily confirmed by anyone from the judgment, it is difficult to think that the criminal defendant would benefit from actively publishing false facts contrary to the above criminal facts, or from such publishing.

5) Sub-committee

Although there are some inappropriate parts in the reasoning of the judgment of the court below, the judgment of the court below to the same purport is just, and there is no error in the misapprehension of facts or in the misapprehension of legal principles. The prosecutor's allegation in this part

6. Determination as to the violation of the Public Official Election Act due to the publication of false facts about the achievements of the General Dong-dong Urban Development Project

A. Summary of this part of the facts charged

(i) Publication of false facts using the election campaign bulletin;

On May 2018, the Defendant produced and distributed his book-type election campaign bulletin (hereinafter referred to as “instant election campaign bulletin”) to a police officer (hereinafter referred to as “instant election campaign bulletin”), and distributed copies of the instant election campaign bulletin through the Gyeonggi-do Election Commission (hereinafter referred to as “Seoul”) from June 2, 2018 to June 3, 2018, where he was punished by KRW 50.3 billion on the election campaign bulletin (hereinafter referred to as “the election campaign bulletin”). The Defendant was actually punished by KRW 50.3 billion on the election campaign bulletin at the same time? The Defendant recovered KRW 50.5 billion development profit at the Sungnam-si city as the citizen’s share.

그러나 피고인이 성남시장으로 재직하면서 개시한 성남시 대장동 일대 도시개발사업의 구조는 성남도시개발공사와 ●●은행, ▲▲은행 등으로 구성된 민간 컨소시엄에서 특수목적법인(SPC)을 설립하여 개발사업을 시행하되 민간 컨소시엄에서 개발에 필요한 자금을 조달하여 그 비용으로 대장동 지역 기반시설(터널, 확장된 진입로 및 배수지 등)과 1공단 부지 공원조성공사를 진행하는 구조로서, 성남도시개발공사와 민간 컨소시엄은 위와 같이 조성된 기반시설과 공원을 성남시에 무상으로 귀속시키고 대장동 내 임대주택부지 또는 그 환가대금을 배당 형태로 성남시에 지급하기로 약정하였을 뿐 선거일 당일인 2018. 6. 13.까지 실제로 5,503억 원 상당의 개발이익금이 성남시로 귀속된 바 없었다.

In the case of 92 billion won for the construction cost of the hinterland facilities in the Dong-dong area, it is not only the estimated construction cost, but also the estimated construction cost, not the construction cost determined. On June 13, 2018, the election day, the construction cost of each hinterland facilities was not made for each hinterland facilities, and the amount executed as the construction cost of the hinterland facilities is merely about KRW 900 million, such as the design cost, and there was no use of the relevant construction cost or the development profit related to the afterma.

1공단 부지 공원조성 사업비 2,761억 원 또한 선거일 당일인 2018. 6. 13.까지 토지보상비 및 PF 대출수수료 등 합계 약 1,254억 원만이 지출되었을 뿐이고, 성남지원 및 성남지청 신청사 이전을 둘러싼 성남지원의 예정부지 면적 확대 및 공원조성공사 잠정 유보요청 등으로 인해 공원조성공사가 착공도 되지 않았으며, 이 사건 사업시행 이전 1공단 부지 도시개발사업 관련 권리자였던 ■■■■■■■■■■ 주식회사가 성남시 등을 상대로 소가 2,511억 원 상당의 손해배상의 소를 제기하여 해당 민사소송이 계속 중이었으므로 1공단 부지 공원조성비가 사용되었다거나 성남시에 관련 개발이익 내지 개발이익금이 확정되거나 귀속된 사실이 없었다.

Nevertheless, the Defendant stated the above contents in the election campaign bulletin of this case and distributed them through the election commission, thereby publicly announcing false facts about the candidate’s act in favor of the candidate for the purpose of being elected.

(ii) the publication of false information on an election campaign price;

At around 17:00 on June 11, 2018, the Defendant made a statement to many unspecified voters who listen to the Defendant’s speech during the election campaign speech for the candidate of the Gyeonggi-do that is run in the Mapo-dong in Kimpo-si, Kimpo-si, Kimpo-si (hereinafter “the election campaign speech for the candidate of the Gyeonggi-do”). The Defendant made it an amount of KRW 50.3 billion with the interest rate of KRW 550.3 billion, and made it into the income of Sungnam-si. (a) As a result, the Defendant would be punished with KRW 550.3 billion in the surrounding area, and the Defendant’s statement to the effect that he will make the campaign and build the road (hereinafter “the election campaign for the case”).

However, the development gains amounting to KRW 50.3 billion that will be reverted to Sungnam City was merely an agreement between the Sungnam Urban Development Corporation and the private consortium, and the development profits amounting to KRW 50.3 billion on the day of the election day was not accrued to Sungnam City by June 13, 2018. The development profits amounting to KRW 50.5 billion on the day of the election day was not accrued to Sungnam City. The development profits amounting to KRW 92 billion on the behind facilities in the Dong-dong area was merely an estimated cost, rather than an established construction cost, and there was no construction cost for each behind facilities, and the executed amount was merely KRW 90.9 billion, and there was no fact that related development gains or the development profits accrued at the time of Sungnam.

Nevertheless, the Defendant published false facts about the candidate’s act in favor of the candidate himself by means of a speech for the purpose of election by making the above statements to many unspecified voters.

B. Summary of the judgment of the court below

After finding the facts as stated in its holding, the lower court found the Defendant not guilty of this part of the facts charged on the ground that: (a) the entry of the instant election campaign bulletin or the content of the instant tax campaign speech is somewhat inaccurate or inappropriate according to the development gains restitution structure of the presidential urban development project; (b) in full view of the various circumstances as stated in its reasoning, each of the important expressions is consistent with objective facts; and (c) it is merely a certain degree of difference from the truth or somewhat exaggerated expressions in detail; and (d) it cannot be deemed that false facts are published; and

C. Judgment of the court below

1) Legal principles

“False facts” under Article 250(1) of the Public Official Election Act means matters inconsistent with the truth, which are sufficient enough to have the elector make an accurate judgment on candidates. However, in a case where important matters are consistent with objective facts in light of the overall purport of the published facts, even if there is a little exaggeration or exaggeration of the truth in detail, it cannot be deemed a false fact. Whether a certain expression is false or not should be determined on the basis of the overall increase of the relevant expression, comprehensively taking into account the overall purport of the expression, objective contents, ordinary meaning of the used words, connection method of phrases, etc., on the premise that the general elector has an ordinary method of expressing such expressions (see Supreme Court Decision 2015Do1202, May 14, 2015, etc.).

In addition, since the crime of publishing false facts under Article 250(1) of the Public Official Election Act constitutes the content of the constituent elements, it is necessary to recognize that the facts are false as the content of the actor’s intentional act. As long as it is difficult to know or prove it outside of the country due to its nature, the existence or absence of such subjective perception should be determined on a normative basis by comprehensively taking into account all the circumstances such as the Defendant’s educational background, career, social status, process of publication, timing of publication, and its objectively anticipated ripple effect (see, e.g., Supreme Court Decisions 2009Do8947, Feb. 11, 2010; 2015Do7349, Aug. 19, 2015).

2) Basic facts as to the K-dong Urban Development Project

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

A) The progress of implementing the urban development project of Sungnam-si

(1) 주식회사 ◆◆◆◆◆는 성남시에 ‘성남산업단지 제1공단’이 있었던 성남시 수정구 신흥동 2458 일대(이하 ‘제1공단 부지’라 한다)를 도시개발구역으로 지정할 것을 제안하였다. 성남시는 위 제안을 받아들여 2009. 5. 15. 시행자를 지정하지 아니한 채 제1공단 부지 84,235㎡를 ‘성남신흥 도시개발구역’으로 지정하여 도시개발사업(이하 ‘제1공단 도시개발사업’이라 한다)을 시행한다는 내용의 도시개발사업계획을 수립하여 고시하였다.

(2) 이후 ■■■■■■■■■■ 주식회사(이하 ‘■■■■■■’라 한다)가 2009. 9. 1.경 주식회사 ◆◆◆◆◆로부터 제1공단 도시개발사업과 관련된 권리를 양수하였다.

(3) ■■■■■■는 2010. 5. 25.경 성남시에 제1공단 도시개발사업의 시행자로 지정해 달라고 신청하였으나, 성남시는 2010. 7. 6. 이를 반려하였다. 이에 ■■■■■■가 경기도행정심판위원회에 재결을 신청하였고, 위 행정심판위원회는 2010. 12. 30. 위 반려처분이 위법하다고 보아 이를 취소하였다. 그러나 성남시는 2011. 5. 2. 새로운 처분사유가 있다는 이유로 ■■■■■■의 위 신청을 재차 반려하였다. ■■■■■■는 2011. 6. 7.경 다시 성남시에 위 도시개발사업의 시행자로 지정해 달라고 신청하였으나, 성남시는 2011. 8. 16. 위 신청도 반려하였다(이하 위 2011. 5. 2.자 반려처분과 2011. 8. 16.자 반려처분을 통틀어 ‘이 사건 거부처분’이라 한다).

(4) On May 29, 2012, Sungnam-si publicly announced the cancellation of the designation of an urban development zone pursuant to Article 10(1)1 of the Urban Development Act on the ground that the implementation plan was not filed by the date on which three years elapsed from the date of designation and announcement of the urban development zone with respect to the said Sungnam-si Urban Development Zone.

B) The progress of the implementation of the Sungnam-si Urban Development Project

(1) On March 201, 201, Sungnam-si promoted a plan to develop the instant building site by a public development method. Accordingly, on March 24, 2011, Sungnam-si designated and publicly announced 210,000 square meters of the 210 square meters Dong-dong, Sungnam-gu, Sungnam-si (hereinafter “instant building site”).

(2) Thereafter, Sungnam-si, around 2013, intended to combine and develop the instant building site with a single urban development zone, and on January 24, 2014, publicly notified the cancellation of the designation of the said Sungnam-si, as an urban development zone, and on May 30, 2014, designated the instant building site as “an urban development zone combined with the Sungnam-dong and the 1st Industrial Complex” by combining the instant building site of 912,868 square meters and the 56,02 square meters and the site of the 1st Industrial Complex as “an urban development zone combined with the Sungnam-dong and the 1st Industrial Complex.” The Sungnam-si, on June 15, 2015, formulated and publicly notified the development plan for the urban development project combined with the aforesaid building site of the 1st Industrial Complex, which belongs to the said development plan, was planned to be used as an urban infrastructure, such as a park and road.

(3) 한편, 성남시가 100% 출자하여 2013. 9. 12. 설립된 성남도시개발공사는 2014. 4. 1. 성남시로부터 이 사건 결합도시개발사업 업무를 위탁받는 내용의 협약을 체결하였다(공판기록 제2권 659면). 성남도시개발공사는 2015. 2. 13.경 이 사건 결합도시개발사업의 자금조달 등의 역할을 할 민간사업자를 공모하였고, 그 공모절차에서 주식회사 ●●은행, 주식회사 ▲▲은행 등으로 구성된 컨소시엄(이하 ‘●●은행 컨소시엄’이라 한다)이 그 민간사업자로 선정되었다.

(4) On June 15, 2015, the Sungnam Urban Development Corporation entered into the project agreement on the combined urban development project (hereinafter “instant project agreement”). According to the instant project agreement, the Sungnam Urban Development Corporation holds over a majority of shares (50% + 1 share) and operates the said project (Articles 9 and 10, etc.) by establishing a special purpose corporation holding the remainder of shares (50% - 1 share), and with respect to the preferential allocation of business profits to the Sungnam Urban Development Corporation, ① the total amount of expenses incurred in creating the site of the 1 Corporation from the above project expenses, and ② the 150,000,000,000 won in addition to the above project expenses incurred in building the 100,000,000 won in addition to the above project expenses incurred in building the 10,000,000 won in building the 10,000,000,0000 won in lieu of the above project expenses.

(5) In addition, on June 22, 2015, the Sungnam Urban Development Corporation entered into the Shareholder Convention on the Combined Urban Development Project with the consortium of the Bannam Urban Development Bank (Evidence No. 21 of the Evidence Record No. 645 of the right to separate investigation records bound by the 21 of the Evidence No. 21 of the instant agreement; hereinafter “the instant agreement”). According to this, the supply price of the instant rental housing site, which was to be provided to the Sungnam Urban Development Corporation in accordance with the instant project agreement, shall be determined as KRW 182.2 billion; however, if the Sungnam Urban Development Corporation requests a settlement in cash, the amount calculated by deducting the supply price determined within the appraisal price of the instant rental housing site at the time of supply from the above KRW 182.2 billion, was paid to the Sungnam Urban Development Corporation (Article 3(5) of the instant agreement).

(6) 이 사건 사업협약에 따라 그 특수목적법인으로서 ‘★★★★ 주식회사’(이하 ‘★★★★’이라 한다)가 2015. 7. 27. 설립되었고, 성남시는 2015. 8. 19. ★★★★을 이 사건 결합도시개발사업의 사업시행자로 지정하였다.

(7) 그런데 ■■■■■■가 제1공단 도시개발사업과 관련하여 성남시장을 상대로 제기한 이 사건 거부처분 취소소송의 항소심에서 2015. 8. 18. ‘이 사건 거부처분은 위법한 처분사유에 기초하여 재량권을 일탈·남용한 것으로 위법하다’는 이유로 이 사건 거부처분을 취소하는 판결( 서울고등법원 2014누6892 )이 선고되었다.

[다만 위 항소심 판결의 상고심은 2016. 2. 18. “ 도시개발법 제10조 제1항 제1호 는 도시개발사업 시행자의 지정 여부에 관계없이 도시개발구역이 지정·고시된 날로부터 3년이 되는 날까지 실시계획의 인가 신청이 없을 경우 일률적으로 적용되어야 한다”는 이유로 위 항소심 판결을 파기하고, ■■■■■■의 소를 각하한 원심 판결을 유지하는 취지의 항소기각 판결을 선고하였다( 대법원 2015두3362 )]

(8) 성남도시개발공사는 2016. 1.경 위 항소심 판결 등으로 인해 이 사건 결합도시개발사업 전체에 차질이 생길 것을 우려하여 제1공단 부지를 도시개발구역에서 제외하는 한편, 제1공단 부지를 공원으로 조성하는 도시계획시설사업(이하 ‘제1공단 공원조성사업’이라 한다)은 위 도시개발사업과 별개로 ★★★★이 사업비를 부담하여 시행하는 방안을 추진하였다.

●●은행 컨소시엄 측이 위와 같은 방안에 동의함으로써 ★★★★은 2016. 1.경 성남시에 위와 같은 내용의 도시개발구역·개발계획의 변경 및 실시계획인가 등을 신청하는 한편, 2016. 10. 25. 성남시에 이 사건 결합도시개발사업의 당초 취지에 따라 제1공단 공원조성사업을 시행할 것을 확약한다는 내용의 ‘이행확약서’(공판기록 제1권 345면)를 제출하였다.

(9) On November 8, 2016, Sungnam-si publicly announced the alteration of an urban development and development plan and the authorization of an implementation plan to implement an urban development project (hereinafter “instant urban development project”) by designating only 912,255 square meters of a building site in the instant building site as “Songnam-si Urban Development Zone” (hereinafter “instant urban development project”).

그런데 위 실시계획인가조건으로 ① 사업자인 ★★★★이 이 사건 결합도시개발사업의 당초 취지에 따라 제1공단 공원조성사업을 시행하여야 하고, ② 사업구역 외 기반시설(이하 ‘이 사건 기반시설’이라 한다)로서 ㉮ 북측 터널 조성, ㉯ 남측 진입로(대장IC 진출입로) 확장, ㉰ 상수도 공급을 위한 배수지 신설 등을 시행하여야 한다는 점이 부가되었다.

(10) 한편, 성남시는 2017. 3. 7. 제1공단 공원조성사업에 관한 계획결정을 고시하고, 2017. 6. 16. 그 사업시행자로 ★★★★을 지정하는 한편 그 실시계획인가고시를 하였다. 그 사이에 ★★★★은 2017. 3. 30. 성남시에 향후 제1공단 공원조성사업 시행 후 그 공원을 성남시에 기부채납할 때 성남시를 상대로 민·형사상 일체의 소송을 제기하지 않겠다는 내용의 ‘부제소특약확약서’(공판기록 제1권 347면)를 제출하였다.

3) Determination

A) In full view of the facts and circumstances as seen earlier, comprehensively taking account of the evidence duly admitted by the court below and the trial court, the entry of the instant campaign bulletin or the instant campaign speech in the election campaign bulletin are deemed to have been consistent with objective facts, and the details of the instant campaign speech are deemed to have a little difference from the truth or somewhat exaggerated expressions in detail, and thus, it cannot be deemed to have published false facts. It is difficult to view that the Defendant recognized the falsity of the entry of the instant campaign bulletin or the contents of the instant campaign speech only by the evidence submitted by the prosecutor as having recognized the falsity of the instant campaign bulletin or the contents of the instant campaign speech. There is no other evidence to

① 이 사건 대장동 도시개발사업의 사업시행자인 ★★★★은 이 사건 대장동 부지에 택지를 조성한 후 이를 제3자에게 분양하여 그 매각대금을 받는 방식으로 그 사업수익을 얻게 된다.

한편, ★★★★은 이 사건 사업협약, 이 사건 주주협약, 2016. 10. 25.자 이행확약서, 이 사건 대장동 도시개발사업의 실시계획인가조건, 2017. 3. 30.자 부제소특약확약서 등을 통해 위와 같은 사업수익을 가지고 제1공단 공원조성사업(지하주차장 건립사업 포함)과 이 사건 기반시설 설치사업을 직접 시행하면서 그 각 사업비를 부담하는 한편, 성남도시개발공사에 이 사건 임대주택용지를 주거나 그 공급가액 상당의 현금을 지급하기로 하였다.

★★★★이 부담하는 위와 같은 민사상·공법상 채무는 모두 이 사건 선거공보물 배포나 이 사건 유세연설 이전에 발생한 것이고, 위와 같은 채무가 먼저 이행되어야 이 사건 대장동 도시개발사업의 민간사업자인 ●●은행 컨소시엄 측이 그 사업이익을 얻을 수 있다.

② It may be deemed that the implementation of the instant Park Creation Project and the instant infrastructure installation project, without any separate budget expenditure, due to the instant presidential urban development project, becomes the benefit of the Sungnam City or the public interest. The payment of the instant rental housing site or the cash equivalent to the supply value thereof by the Sungnam City Development Corporation is a construction project established by investment of 100% in the Sungnam city, and its final interest belongs to the benefit of the Sungnam City. This cannot be deemed to be different on the ground that the Sungnam City Development Corporation did not receive the cash for the development gains from the instant urban development project.

③ According to the instant business agreement, the project cost for the Park Creation Project was set at KRW 2,56.1 billion, while the actual project cost was set at KRW 2,56.1 billion, the actual project cost was set at KRW 18.2 billion, and the cost of construction of underground parking lots incidental to the Park Creation Project was subsequently set at thereafter, and around March 2017, the cost of construction of such underground parking lots was estimated as approximately KRW 20.2 billion. In addition, according to the instant stockholders agreement, the supply price of the instant site for rental housing was set at KRW 18.2 billion, while the Sungnam Urban Development Corporation requested cash settlement, it was determined to pay at least KRW 1,82.2 billion to the Sungnam Urban Development Corporation.

④ 이 사건 기반시설 설치사업은 이 사건 대장동 도시개발사업에 대한 실시계획인가 무렵 ●●은행 컨소시엄 측이 성남시의 요구를 수용함에 따라 ★★★★이 그 사업비를 추가로 부담하여 시행하기로 한 것이다. 이 사건 기반시설 설치사업비는 위 실시계획인가 당시 ●●은행 컨소시엄 측이 도시계획설계 업체에 의뢰하여 받은 추정가액에 따라 총 920억 원(북측 터널 조성 600억 원, 남측 진입로 확장 260억 원, 배수지 신설 60억 원)으로 주2) 추산되었다.

⑤ The sum of each of the above project costs is KRW 50.3 billion under this part’s expression (i.e., the development cost for the Park Construction Project of the First Corporation + KRW 256.1 billion + KRW 20 billion for the construction cost of underground parking lots + KRW 182.2 billion for the supply price of the instant rental housing site + KRW 92 billion for the construction cost of the instant infrastructure). In full view of the project structure of the instant urban development project, the method and scale of the distribution of the development profit, and the following statements and circumstances, Sungnam-si was highly likely to obtain the development profit due to the distribution of the instant campaign bulletin and the implementation of each of the instant urban development project following the instant housing project at the time of the instant campaign speech.

즉 ㉮ ●●은행 컨소시엄 소속 주식회사 ▼▼▼▼자산관리의 대표자 공소외 43은 수사기관에서 “2017. 3.경에는 성남시가 개발이익금 5,503억 원을 확보할 가능성이 높은 시점이었고, 2018. 2.경에는 천재지변이 일어나지 않는 이상 이 사건 대장동 도시개발사업이 실패할 확률은 거의 사라진 상태였다”라고 진술하였고(증거기록 제19권에 편철된 수사기록 648면), 원심 증인으로 출석하여 “성남시는 2108. 6. 13. 기준으로 이 사건 대장동 도시개발사업으로 총 5,503억 원의 이익을 거의 확정적으로 확보했다고 봐야 한다”는 취지로 진술하였다(공판기록 제1권 483, 487면).

㉯ 위 ▼▼▼▼자산관리는 2018. 6. 13. 기준으로 제1공단 공원조성사업(지하주차장 건립사업 포함) 비용과 이 사건 기반시설 설치사업 비용 및 이 사건 임대주택용지 관련 배당을 고려하더라도 이 사건 대장동 도시개발사업으로 인한 ●●은행 컨소시엄 측의 이익이 약 2,400억 원 이상이 된다고 예상하고 있었고, 그 이후의 예상이익도 그와 비슷하게 보았다(원심 증인 공소외 43의 증언 및 증거기록 제19권에 편철된 수사기록 931면).

In this case, Nonindicted 44 stated in the investigative agency that “No problem exists that the benefit of KRW 50,50 billion in terms of the capital flow is attributed to the Sungnam City” (Evidence No. 19 of the Evidence Record No. 597 page).

Nonindicted 45, a witness of the Sungnam City Development Corporation, appeared as a witness of the lower court and stated that “ around March 2017, the instant urban development project was deemed to be reliable to the extent that there is no risk variables” (No. 1, 460 of the trial record).

㉲ 실제로 성남도시개발공사는 2019. 3. 26.경 ★★★★로부터 이 사건 임대주택용지 관련 사업이익으로서 현금 1,822억 원을 배당받았다(공판기록 제27권 15586∼15590면).

6) In general, in light of the fact that the government or local government announced to the effect that the government or local government secured the financial revenue if it is able to obtain a certain amount of financial revenue in the future, or that the government or local government announced to the effect that the subsidy was recovered even if it was only the decision to recover the subsidy paid (No. 2, No. 602 through 629 of the trial record), there is room to understand the part of the Defendant’s publication of this part that “the amount of development profit was recovered as the citizen’s share or made it into the income of Sungnam-Nam-si,” in view of the perspective of the general elector’s perspective, it is difficult to conclude that the expression in this part is false.

⑦ 또한, ★★★★은 이 사건 대장동 도시개발사업으로 인해 제1공단 공원조성사업과 이 사건 기반시설 설치사업을 시행하여야 할 의무를 부담하고 있었던 점, 사회통념상 일반적으로 어떠한 수익금의 지출 사용처가 확정되었다면 그 지출이 모두 완료되지 않은 경우에도 그 자금이 해당 사용처에 사용되었다는 취지로 간략히 말하기도 하는 점 등을 종합하여 보면, 피고인의 이 부분 공표사실 중 “개발이익금 중 2,761억 원은 1공단 공원조성 사업비로 사용되었고, 920억 원은 대장동 지역 배후시설 조성비에 사용되었다”는 부분과 “그 개발이익금으로 주변에 터널 만들고 도로 만드는 데 썼다”는 부분은 일반 선거인의 입장에서 볼 때에도 이 사건 대장동 도시개발사업으로 인한 성남시의 개발이익 중 일부가 제1공단 공원조성사업비 및 이 사건 기반시설 설치사업비로 사용되기로 확정되었다는 의미로 이해될 여지가 있다. 따라서 이 부분 표현도 허위사실이라고 단정하기 어렵다.

[Non-Indicted 44, who is the employee of the BBB Bank, who belongs to the consortium of the BB Bank, stated in the investigative agency that “the expression of the election campaign bulletin of this case, in view of the general public’s position, should be inferred to be the same as in the process of the relevant project.” (No. 607 pages of the investigation records bound with No. 19)

(8) As seen earlier, the Park Creation Project cost of the First Corporation is determined at least KRW 256.1 billion, and the supply value of the instant rental housing site is determined at least KRW 182.2 billion. The underground parking lot construction cost incidental to the Park Creation of the First Corporation is estimated at KRW 20 billion in total, and the construction cost of the instant infrastructure was estimated at KRW 92 billion in total. Considering the fact that the above development profit of KRW 50.3 billion in total is estimated, the development profit expressed by the Defendant is estimated at KRW 12 billion in total, but it is reasonable to view that the total amount of the development profit expressed by the Defendant is consistent with the objective fact, and that there is a little difference between the truth and the truth in detail.

비록 ★★★★이 2018. 7. 20. ◀◀◀◀◀◀◀ 주식회사에 이 사건 기반시설 중 북측 터널 조성 공사를 공사대금 271억 7,000만 원에 도급하기는 하였으나(증거기록 제20권에 편철된 수사기록 2078면), 이는 이 사건 선거공보물 배포 및 이 사건 유세연설 이후에 발생한 사정일 뿐만 아니라, 북측 터널 공사의 공사금액이 앞서 본 추정금액 600억 원에서 위 도급계약금액과 같이 내려갈 것이라는 사정을 피고인이 알았다고 볼 만한 점을 인정할 증거가 주3) 없다.

9) Around March 2017, Sungnam Urban Development Corporation reported to the Defendant that development gains from the instant urban development project was KRW 50.3 billion in total, and KRW 276.1 billion in the amount of KRW 2,76.1 billion in park creation project (20 billion in park creation cost, KRW 25.1 billion in the construction cost of underground parking lots), among which 92 billion in the amount was used for the instant infrastructure installation project (60 billion in the building of tunnels on North Korea, KRW 26 billion in the extension of access roads to South Korea, KRW 26 billion in the extension of access roads to South Korea, and KRW 6.8 billion in the extension of new 19th in the investigation records (Evidence 21 of the evidence record, KRW 36 in the investigation records, KRW 19th in the investigation records, KRW 200,000,000 in the form of the instant urban development project, which had not been carried out by the public development project in the form of 5.7 billion in the public development records of the instant case.

The contents of the report of the Sungnam Urban Development Corporation and the Defendant’s said statement are consistent with the total amount of development profits, the place of use, and the amount of use expressed by the Defendant in this part of the publication [ Nonindicted 46, who was in charge of the work of preparing the text of the instant election campaign bulletin, stated that the investigation agency, referred to in the facts charged, made a statement by reference to the contents of the said press conference (the investigation records bound with No. 20 of the evidence records, 1836 page). In light of such circumstances, it is difficult to view that the Defendant’s publication of the development profits of Sungnam-si as total amount of KRW 550 billion, or KRW 276.1 billion, among them, was used for the instant infrastructure development project in the Park of the first Corporation, and that it was made public with intent to publish false facts as to each amount.

However, the Defendant expressed that the cost of installing the instant infrastructure was KRW 1,00,000, not the estimated amount of KRW 92 billion in the relevant campaign speech. However, in light of the general elector’s perspective, it is difficult to see that the difference in the amount is significant when considering the installation cost of public facilities, and the Defendant said that the total amount of development gains was KRW 50,30,000 in the said campaign speech was 5,50,000,000, and taking into account other factors, i.e., the promotion of the election campaign speech and the limitation of human memory, it is difficult to deem that the Defendant had the intention

(10) A prosecutor asserts to the effect that the Defendant was in the position to accurately verify the progress of the instant urban development project and the size of profit before and after March 15, 2018, when he retired in the Seongbuknam City Development Corporation, and thus, he/she may recognize the Defendant’s intention to publish false facts. However, there is no evidence to acknowledge that the Defendant received a report on the development gains of the instant urban development project from the Sungnam Urban Development Corporation around March 2017, after receiving the report on the development gains of the instant urban development project from the Sungnam Urban Development Corporation.

11) The prosecutor asserts that this part of the statement constitutes the publication of false facts, and that the Defendant’s intentional publication is recognized, since the past expression “the development profit has already been reverted to the Sungnam city, and some of them have been used for the public interest.” The prosecutor asserts that this part of the statement constitutes the publication of false facts.

According to the above evidence, except where approximately KRW 120 billion was spent at the time of the instant election campaign bulletin distribution and the instant tax campaign speech at the time of the instant campaign speech, the portion actually spent out of the instant urban development project plan is not separate, and the portion actually spent out of the instant urban development project plan was not distributed to Sungnam Urban Development Corporation with respect to the instant rental housing site. In addition, there is no room for understanding that the foregoing past expression was “the completion of the payment of development gains and the completion of the use of some of them for public projects” in light of its prior meaning.

However, in full view of the following circumstances, the evidence submitted by the prosecutor alone is difficult to view that this expression constitutes the publication of false facts or that there is an intention to publish false facts to the defendant merely because the defendant used the above past expression, and there is no other evidence to acknowledge it.

In other words, as seen earlier, if a situation that can generally obtain future financial revenues is ordinarily expected, it is not rare, and if the expenditure source of certain profits is finalized, it would be simple to the effect that the funds were used at the relevant place of use even in cases where the expenditure was not fully completed. (The instant election campaign bulletin does not state that a part of the development gains was used in the “park creation project cost” or “infrastructure construction cost,” and it does not state that they were used in the “park creation project” or “infrastructure construction cost,” and thus, it can be understood that the place of use of the development gains became final and conclusive. The Defendant’s emphasizing this part of the development gains through the publication of this part is the purport that the development gains were attributed to the public interest rather than the interest of the private business operators by implementing the same urban development project through a public development method. As seen below, it is difficult to find any motive or profit to publish to the Defendant that each of the above projects was completed.

(12) Considering the following circumstances, it is difficult to easily think of the motive for the Defendant to publish false facts to the effect that the Defendant completed both the Park Creation Project and the Construction Project of Infrastructure of this case, or that the Sungnam-si has completed all development gains due to the development project of this case, and that the Sungnam-dong City has completed all development gains due to the urban development project of this case.

즉 ㉮ 이 사건 대장동 도시개발사업과 제1공단 공원조성사업이 현재까지 완료되지 않았음은 그 각 사업현장의 외관상 누구나 쉽게 알 수 있는 정보이다(공판기록 제2권 586면, 증거기록 제19권에 편철된 수사기록 920∼926면). ㉯ 이 사건 대장동 도시개발사업 및 제1공단 공원조성사업이 2020년 말 완료될 예정이라는 기사가 언론에 보도된 적도 있다(공판기록 제2권 587면 이하). ㉰ 피고인 스스로도 아래와 같이 이 부분 공소사실 기재 일시 무렵 위 각 사업이 현재 진행 중임을 밝힌 바 있다. 즉 피고인은 ⓐ 2018. 1. 28.경 자신의 페이스북에 “개발이익금 중 2,761억 원(제1공단 공원조성사업비 및 주차장 건립비용을 지칭한 것으로 보인다)은 제1공단 부지 매입 및 공원 조성에 쓰기로 하였고, 1,822억 원(이 사건 임대주택용지 관련 배당금을 지칭한 것으로 보인다)은 2018년 연말부터 순차적으로 성남도시개발공사로 입금될 예정이다”는 취지의 글을 올리고(공판기록 제2권 63면, 증거기록 제19권에 편철된 수사기록 698면), ⓑ 2018. 2. 8.경 라디오 방송에서 “대장동 개발이익 5,500억 원 중 일부인 900억 원으로 기반시설 확보하여 도로, 터널(이 사건 기반시설을 지칭하는 것으로 보인다)을 만들고 있다”는 취지로 발언하고(공판기록 제2권 855∼857면), ⓒ 2018. 2. 13.경 라디오 방송에서 “개발이익금 중 약 1,800억 원(이 사건 임대주택용지 관련 배당금을 지칭한 것으로 보인다)은 2018년 연말이 되어서야 비로소 들어온다”는 취지로 발언하고(증거기록 제19권에 편철된 수사기록 904, 905면, 공판기록 제2권 858면), ⓓ 2018. 5. 29.경 KBS 경기도지사 후보자 토론회에서 “대장동 개발이익 중 2,800억 원으로 현재 성남시에 자연공원(제1공단 공원을 지칭하는 것으로 보인다)을 만들고 있다”는 취지로 발언하고(공판기록 제2권 859면, 증거기록 제19권에 편철된 수사기록 1153면), ⓔ 이 사건 유세연설에서조차 “성남시에 2,700억을 들여서 지금 자연공원(제1공단 공원을 지칭하는 것으로 보인다)을 만들고 있다”는 취지로 발언하였을 뿐만 아니라(공판기록 제2권 584면, 증거기록 제21권에 편철된 수사기록 2507면), ⓕ 이 사건 유세연설 전후로 성남시, 용인시, 의왕시, 구리시, 의정부시, 수원시, 하남시 등지에서 유세연설을 하면서 “제1공단 부지에서 현재 공원을 만들고 있다”는 취지로 발언하였다(공판기록 제2권 860면 이하, 증거기록 제19권에 편철된 수사기록 711∼713, 913, 918면).

⑬ 한편, 위 각 증거에 의하면, ■■■■■■가 2014. 1.경 수원지방법원 성남지원 2014가합37호 로 성남시 등을 상대로 “제1공단 도시개발사업에 관한 이 사건 거부처분으로 인해 ■■■■■■가 재산상 손해를 입었다”고 주장하면서 그 손해배상을 구하는 소를 제기하였고, 위 법원은 2019. 2. 1. ■■■■■■의 주장을 일부 받아들여 성남시에게 손해배상으로서 ■■■■■■의 승계참가인(전부채권자) 중 일부에 대하여 약 295억 원의 지급을 명하는 판결을 선고한 사실이 인정되기는 한다(현재 위 사건은 쌍방 항소로 수원고등법원 2019나10565호 로 소송계속 중이다).

However, the evidence submitted by the prosecutor alone is that the instant refusal disposition regarding the Urban Development Project of the 1st Industrial Complex is directly related to the implementation of the Park Creation Project of the 1st Urban Development Project.

따라서 설령 성남시가 향후 ■■■■■■ 측에 손해배상을 해 주어야 할 상황이 확정된다 하더라도, 이 사건 대장동 도시개발사업으로 인한 성남시의 개발이익을 공표하면서 그 손해배상액을 공제하지 않은 것이 허위라고 보기 어렵고, 피고인의 그 허위성에 대한 고의도 인정하기 어렵다.

B) Therefore, the judgment of the court below to the same purport is just, and there is no error of law by misunderstanding facts or by misapprehending the legal principles. The prosecutor's allegation in this part

7. Conclusion

Therefore, the prosecutor's appeal on the violation of the Public Official Election Act by publishing false facts with respect to Non-Indicted 3 is partly reasonable. Accordingly, pursuant to Article 364 (6) of the Criminal Procedure Act, the part of the judgment of the court below which is related to the above part among the above part of the judgment of the court below is reversed, and it is again decided as follows through pleading. Since the prosecutor's appeal on the remaining part except the above part of the judgment of the court below is without merit, it is dismissed in accordance with Article 3

around June 2, 2010, the Defendant won the 5th nationwide local election and was in office from July 2010 to June 2014. On June 4, 2014, the Defendant re-listed at the 6th nationwide local election and reappointed from July 2014 to March 2018, and was in office as the Governor of Gyeonggi-do from July 13, 2018.

피고인은 ① 2018. 5. 29.경 KBS 경기도지사 후보자 토론회에 참석하여 다른 후보자 공소외 6의 ‘형님을 정신병원에 입원시키려고 하셨죠? 보건소장 통해서 입원시키려고 하셨죠?’라는 질문에 “그런 일 없습니다. 그거는 어머니를 때리고 어머니한테 차마 표현할 수 없는 폭언도 하고, 이상한 행동도 많이 했고, 실제로 정신치료를 받은 적도 있는데 계속 심하게 하기 때문에 어머니, 저희 큰형님, 저희 누님, 저희 형님, 제 여동생, 제 남동생, 여기서 진단을 의뢰했던 겁니다, 그런데 저는 그걸 직접 요청할 수 없는 입장이고, 제 관할 하에 있기 때문에 제가 최종적으로 못하게 했습니다”라고 발언하고, ② 2018. 6. 5.경 MBC 경기도지사 후보자 토론회에 참석하여 “우리 공소외 6 후보께서는 저보고 정신병원에 형님을 입원시키려 주4) 했다 이런 주장을 하고 싶으신 것 같은데 사실이 아닙니다. 정신병원에 입원시킨 것은 형님의 부인 그러니까 제 형수와 조카들이었고, 어머니가 보건소에다가 정신질환이 있는 것 같으니 확인을 해보자라고 해서 진단을 요청한 일이 있습니다. 그 권한은 제가 가지고 있었기 때문에 제가 어머니한테 설득을 해서 이거 정치적으로 너무 시끄러우니 하지 말자 못하게 막아서 결국은 안 됐다는 말씀을 또 드립니다”라고 발언하였다.

However, in fact, from April to August 2012, the Defendant directed the head of the branch public health clinic, etc. of the branch public health center of the branch public health center of the branch public health center of the branch public health center of the branch public health center of the branch public health center of the branch public health center of the branch public health center of the branch public health center of the branch public health center of the branch public health center of the branch public health center of the branch public health center of the branch public health center of the branch public health center of the branch public health center of the branch public health center to compulsorily

Nevertheless, the defendant published false facts about the defendant's act for the purpose of winning the defendant's success in a true statement that he/she intends to be hospitalized in the Gyeonggi-do debate, etc.

1. Defendant’s partial statement in the court below

1. Each legal statement of Nonindicted 1, Nonindicted 4, Nonindicted 2, Nonindicted 8, Nonindicted 9, Nonindicted 32, and Nonindicted 10 of the lower court’s witness, respectively.

1. Some statements in the prosecutorial office and the police statement of Nonindicted 7 and Nonindicted 31

1. Each investigation report (the attachment of a transcript of the transcript of discussions held by candidates for the Gyeonggi-do Governor (KSS, MBC) to the 7th nationwide local elections related to this case, each of the 2018 local elections of the Governor of the Gyeonggi-do, and the abstract of the contents of the discussions above);

1. Nonindicted 2’s evaluation opinion on Nonindicted 3’s documents and written application for diagnosis and protection, Nonindicted 10’s response to Nonindicted 2’s request for diagnosis by a person suspected of having mental illness, and the note prepared by Nonindicted 8’s “Memba from August 17, 2012 to October 2, 2012”

1. Requests as a result of interview, results of interview conducted by the public health clinic on June 15, 2012, requests for diagnosis and protection of persons suspected of having mental illness, requests for diagnosis and protection of persons suspected of having mental illness, requests for accompanying of vehicles and mental health specialists, and certificates of details (refences due to non-cooperations for requesting mental health treatment).

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 250(1) of the Public Official Election Act (Generally, Selection of Fines)

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Scope of punishment by law: A fine not exceeding 30 million won;

2. Application of the sentencing criteria;

[Determination of Punishment] The publication of false information about election crime > The publication of false information / (Type 2) / the publication of false information / the purpose of election

【Special Convicted Persons】

- Reduction element: Where the degree of false information or candidate's secret is weak (actr).

- Aggravations: Where the other party is considerably majority or highly radio wave (actr).

A person who has committed the same criminal offense;

[Recommendation Area and Scope of Recommendations] Aggravation, 5 million won to 10 million won in fine

3. Determination of sentence: Fines of 3,000,000 won;

A. Local election for the election of the head of a local government is a method of realizing representative democracy, like the presidential election for the election of a national representative body and the election of National Assembly members. The right to elect the head of a local government is also the constitutional right protected by Article 24 of the Constitution (see Constitutional Court Order 2014Hun-Ma797, Oct. 27, 2016). In order to faithfully exercise such right to vote, the elector must be able to retain accurate information that is not distorted about the candidate. In this regard, Article 250(1) of the Public Official Election Act intends to ensure the fairness of election by punishing the act that affects the correct judgment of electors by publishing false information about candidates, etc. (see Supreme Court Decisions 2009Do5945, Oct. 29, 2009; 2015Do1379, Jul. 26, 2018).

B. Although the Defendant instructed Non-Indicted 3 to proceed with the procedure under Article 25 of the former Mental Health Act with respect to Non-Indicted 3, the Defendant, as a candidate of the Gyeonggi-do Governor, made a statement to the effect that himself was not involved in the commencement of the procedure, thereby distorted facts to the extent that he would mislead the elector’s fair judgment. In the debate of this case, the Defendant made a statement to the effect that he was not passive denial of the question by the counter-party to the question asked for the suspicion of “the attempt to hospitalize a pro-friendly mental hospital” of the Defendant, but was irrelevant to the Defendant actively.

C. However, the following favorable circumstances exist for the Defendant. In other words, the Defendant, at the time of the election of the Gyeonggi-do Governor, instructed a large number of suspicions of “an attempt to hospitalization at a pro-friendly mental hospital”, and received various questions about such suspicions in the debate in this case. There were many cases where there were no suspicions or no grounds for suspicions at the time. Except the speaking in the instant case, it is difficult to view that many prejudices of the Defendant at the time constituted the publication of false facts.

Meanwhile, although the Defendant instructed Nonindicted 3 to proceed with the procedure under Article 25 of the former Mental Health Act with respect to Nonindicted 3 and partly proceeded with the procedure, it did not reach the procedure of exercising direct force against Nonindicted 3. Nevertheless, the Defendant’s suspicion of “an attempt to hospitalization at a pro-friendly mental hospital” against the Defendant at the time of the publication of the instant case may be unfolded differently from the fact. The Defendant’s actual hospitalization of Nonindicted 3 at the time of the publication of the instant case is not the Defendant, but Nonindicted 3’s wife and his wife, and Nonindicted 3 at the time is not unlawful in the procedure that was made in accordance with Article 25 of the former Mental Health Act. The content of the procedure instructed by the Defendant at the time, its subsequent procedure, and its details, etc. are relatively complicated in relation to the interpretation of Article 25 of the former Mental Health Act, and there is no way to accurately deliver the information thereof within the limited period of debate. There is room for the clarity of the content of the joint debate between the Defendant and the candidate.

D. However, the Defendant’s publication of this case was carried out in the KBS and MBC public broadcast that anyone can view. Accordingly, the Defendant’s content of the instant broadcast is very easy to disseminate. Furthermore, in the media environment such as the present, the Defendant’s statement in this case’s broadcast is more easy and largely disseminated and disseminated through the Internet and SNS, and any elector can easily access the said statement within the election period at any time and anywhere.

On the other hand, there is no conflict of interest between the Defendant and Nonindicted 3’s order to proceed with the procedure under Article 25 of the former Mental Health Act. In other words, even if the Defendant issued the above order for mental health treatment of Nonindicted 3, a pro-friendly person, there is room for political and moral criticism that the Defendant intended to exercise the authority of the gender south market for personal interest, unless there is no private interest on the issue. Therefore, even though there is no illegality of the Defendant’s order, whether the Defendant intended to have the Defendant diagnosed or receive medical treatment by exercising his/her authority as a gender south market by exercising his/her authority as a gender south market, or not, the elector took important matters concerning the quality and morality of the Defendant as a public official. Of course, raising suspicion without any basis for the candidate or slandering the candidate, which may interfere with the fair judgment of the electors, and such act may be subject to criminal punishment, and it is not easy for the Defendant to actively deny the fact that there is no reason to deny the Defendant’s speech that was raised at the time of the election of public officials.

The Defendant did not oppose the crime of publishing false facts in this case, and even up to now, it seems not to clearly inform the general public, including the Gyeonggi-do residents, of the fact that the Defendant directed Nonindicted 3 to proceed with the procedure under Article 25 of the former Mental Health Act. In addition, the Defendant has already been punished for a violation of the Public Official Election Act, and such circumstance constitutes an aggravated factor in sentencing according to the sentencing guidelines of the Sentencing Committee.

E. Other circumstances that the Defendant’s election at the Gyeonggi-do Governor did not have a significant impact on the success of the instant crime, are no more important sentencing factors than that of the Defendant, according to the sentencing guidelines. In addition, comprehensively taking into account all of the sentencing conditions indicated in the instant case, including the Defendant’s age, character and behavior, career, motive and circumstance of the instant crime, and the result thereof, etc., the lower limit of the sentencing guidelines presented by the Sentencing Committee shall be somewhat deviate, but the sentence shall be determined as ordered so as not to seriously violate the purport of the sentencing guidelines.

1. Summary of the facts charged

around June 2, 2010, the Defendant won the 5th nationwide local election and was in office from July 2010 to June 2014. On June 4, 2014, the Defendant re-listed at the 6th nationwide local election and reappointed from July 2014 to March 2018, and was in office as the Governor of Gyeonggi-do from July 13, 2018.

피고인은 ① 2018. 5. 29.경 KBS 경기도지사 후보자 토론회에 참석하여 다른 후보자 공소외 6의 ‘형님을 정신병원에 입원시키려고 하셨죠? 보건소장 통해서 입원시키려고 하셨죠?’라는 질문에 “그런 일 없습니다. 그거는 어머니를 때리고 어머니한테 차마 표현할 수 없는 폭언도 하고, 이상한 행동도 많이 했고, 실제로 정신치료를 받은 적도 있는데 계속 심하게 하기 때문에 어머니, 저희 큰형님, 저희 누님, 저희 형님, 제 여동생, 제 남동생, 여기서 진단을 의뢰했던 겁니다, 그런데 저는 그걸 직접 요청할 수 없는 입장이고, 제 관할 하에 있기 때문에 제가 최종적으로 못하게 했습니다”라고 발언하고, ② 2018. 6. 5.경 MBC 경기도지사 후보자 토론회에 참석하여 “우리 공소외 6 후보께서는 저보고 정신병원에 형님을 입원시키려 주6) 했다 이런 주장을 하고 싶으신 것 같은데 사실이 아닙니다. 정신병원에 입원시킨 것은 형님의 부인 그러니까 제 형수와 조카들이었고, 어머니가 보건소에다가 정신질환이 있는 것 같으니 확인을 해보자라고 해서 진단을 요청한 일이 있습니다. 그 권한은 제가 가지고 있었기 때문에 제가 어머니한테 설득을 해서 이거 정치적으로 너무 시끄러우니 하지 말자 못하게 막아서 결국은 안 됐다는 말씀을 또 드립니다”라고 발언하였다.

However, the fact was that the Defendant attempted to hospitalization Nonindicted 3 at the ○○ Mental Hospital around the end of March 2010, and Nonindicted 3 suffered from depression, etc. due to the aftermath of the accident at issue on March 2013, and Nonindicted 11 and Nonindicted 16, who was his father, was hospitalized at the ▽▽△ Mental Hospital around November 2014, and was hospitalized at around November 2014 by Nonindicted 11 and Nonindicted 16, who was his father, was hospitalized at the ○○ Mental Hospital Hospital, and was not a medical doctor’s diagnosis or treatment. Nonindicted 11 and Nonindicted 16 did not think that there was a mental problem with Nonindicted 3 at the time of hospitalization. Nonindicted 3 did not have been able to be subject to criminal punishment through the procedure of hospitalization at the market, etc. under Article 25 of the former Mental Health Act against Nonindicted 3 at the time of hospitalization and did not have been suspended by the Defendant.

Nevertheless, the defendant published false facts about the defendant's act for the purpose of winning the defendant's success in a true statement that he/she intends to be hospitalized in the Gyeonggi-do debate, etc.

2. Determination

The Defendant’s statement in this part cannot be deemed as having published false facts identical to the above facts charged on the grounds as seen above 4.b. 3, 5, and 6, or there is no intention to publish false facts to the Defendant. Thus, this part of the facts charged should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act because it falls under the case where there is no proof of a crime and thus, the Defendant should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as it is found that the Defendant

Judges Clinical machines (Presiding Judge) and Lee Jae-gu;

주1) ★★★★이 2018. 4.경 제1공단 공원조성사업과 관련하여 작성한 ‘실시계획인가(변경) 신청서’(증거기록 18권 140면)에 의하면, 제1공단 지하주차장 공사비가 201억 4,960만 원으로 산정되어 있다(위 신청서 26쪽).

주2) 그 추정가액이 총 880억 원(북측 터널 조성 580억 원, 남측 진입로 확장 240억 원, 배수지 신설 60억 원)으로 추산된다는 취지로 ★★★★이 작성한 문건(증거기록 제21권에 편철된 수사기록 별권 제3권 333, 334면 참조)도 존재하나, 원심 증인 공소외 43의 증언(공판기록 제1권 481, 482면 참조)에 비추어 보면, 당시 위 문건이 작성된 이후 위 추정가액이 최종적으로 920억 원으로 추산된 것으로 보인다.

주3) ▼▼▼▼의 대표자 공소외 43은 북측 터널 공사의 공사금액이 위 추정금액 600억 원에서 실제 도급계약금액 약 271억 원으로 줄어든 이유는 그 수급인인 ◀◀◀◀◀◀◀ 주식회사가 이 사건 대장동 도시개발사업의 단지조성공사를 하고 있기 때문에 장비가 위 공사현장에 새로 들어올 필요가 없기 때문이라고 진술하고 있는데(증거기록 제20권에 편철된 수사기록 2076면), 피고인이 그와 같은 사정을 알았다고 볼 증거가 없다.

Note 4) While the indictment states that this part of the indictment is “hospitalized,” according to evidence, this part of the indictment is obvious that it is a clerical error, so it is corrected as stated in the text.

5) To the extent that it does not impede the Defendant’s exercise of the right of defense, part of the facts constituting the crime was revised.

Note 6) While the indictment states that this part of the indictment is “hospitalized,” according to evidence, this part of the indictment is correct as it is obvious that it is a clerical error.