(영문) 대법원 2020.7.16.선고 2019도13328 판결

The guilty part of the judgment in the original judgment (including the acquittal part in the grounds) shall be reversed, and this part of the case shall be remanded to the Suwon High Court.

The remaining appeals by the prosecutor are dismissed.

Reasons

The grounds for appeal are determined.

1. As to the grounds for appeal by the public prosecutor

A. 1) Each abuse of official authority and obstruction of another’s exercise of rights

For the following reasons, the court below affirmed the judgment of the court of first instance that acquitted the Defendant of the abuse of authority and obstruction of exercise of rights in the facts charged of this case on the ground that there is no proof of crime. (A) The court below ordered the head of the ○○○-gu Public Health Center to demand the non-party 1 to revise the evaluation proposal about the non-party 3 at the center head and the non-party 2 at the center head of the △△△ City Health Center (hereinafter referred to as the "Center"), and allowed the non-party 2 to affix the seals attached to the non-party 2, and allowed the non-party 2 to revise the revised evaluation document does not constitute an act of assisting the Defendant in the performance of his duties concerning the matters belonging to his own authority or an act of obstructing the exercise of rights and obstructing the exercise of rights and obstructing the exercise of rights and obstructing the exercise of rights. (b) The defendant's request that the non-party 400-Gu public health center-related persons request an ex officio interview with the Center, and it does not constitute an abuse of rights under Article 2819.

C) Although Nonparty 2’s filing an application for diagnosis and protection with Nonindicted 3 can be deemed to be based on his own judgment, it is difficult to view that it was due to the Defendant’s exercise of official authority. (D) The part of the violation of the Public Official Election Act by publishing false facts, such as Nonindicted 4’s attempt to admit admission to Nonindicted 3, but it is difficult to see that: (a) Nonparty 4 instructed or urged Nonindicted 3 to proceed with the hospitalization procedure under Article 25(3) of the former Mental Health Act; (b) between Nonindicted 3 and Nonindicted 3, such as Nonindicted 4, to be a police station for compulsory hospitalization pursuant to the foregoing provision; and (c) it is difficult to view that Nonindicted 4, etc. requested the Center, such as Nonindicted 4, etc., to request for the vehicle, etc., and inter-Korean police station, and that it was “an act of interference with the exercise of official authority due to the Defendant’s direction or re-promotion.”

For the following reasons, the lower court found that there was no proof of a crime regarding the denial of hospitalization in a mental hospital and the suspension of the Defendant’s procedure among the facts charged against Nonindicted 3’s violation of the Public Official Election Act through the publication of false facts related thereto, and found the Defendant not guilty on the grounds of the conclusion of the first instance judgment. Defendant 2 cannot be deemed to have made a false statement to the effect that, on May 29, 2018, the Defendant could not be deemed to have denied his/her intention or made a false statement to the effect that there was no intention to deny his/her hospitalization in a mental hospital around 2010, and the Defendant cannot be deemed to have made a false statement to the effect that there was no intention to publish the remainder of Non-Indicted 3’s non-Indicted 25 of the former Public Official Election Act to the effect that: (a) Non-Indicted 3’s debate held in charge of the Broadcasting Debate Committee for Seoul Special Metropolitan City Do on June 5, 2018.

원심 은 다음 과 같은 이유로, 이 사건 공소사실 중 검사사칭 전과 및 ▽▽동 도시 개발 사업 업적 관련 각 허위사실공표에 의한 공직선거법 위반의 점 에 대하여 범죄의 증 명이 없다고 보아 이를 무죄로 판단한 제 1심판결을 그대로 유지하였다.가 ) 피고인 이 KBS토론회에서 검사사칭 전과에 관하여 누명을 썼다는 취지로 한 발언 은 위 전과 관련형사판결에 대하여 허위사실을 주장한 것이라기보다는 '공무원자격 사칭 죄 로 유죄 확정 판결을 받은 것은 자신의 입장에서 볼 때 억울하다'는 의견을 표현한 것이고 , 허위 사실공표의 고의도 인정하기 어렵다.나 ) 피고인 이 2018.6.2.경부터2018.6.3.경까지 도선 거관리위원회를 통해 유권자 들 에게 배포 된책자형 선거공보물에 기재한 '⑦⑦동 도시개발사업과 관련하여 개발 이익금 5,503 억 원을 시민의 몫으로 환수하고, 920억 원 은 ⑦⑦동 지역 배후시설 조성비 에 사용 되었으며, 2,761억 원 은 1공단 공원 조성 사업비에 사용되었다'는 부분과 2018. 6. 11. 17:00 경◎◎시 ◁◁동 에 있는 ◁◁사거리에서 진행된 ☆☆도지사 후보자 선거 유세 에서 한 같은 취지의 유세연설은 모두 중요한 부분이 객관적 사실과 합치되고 세부적 으로 진실 과약간의 차이가 나거나 다소 과장된 표현에 불과하여 이를 허위사실의 공표 로 볼 수 없고, 피고인이 허위성을 인식하였다고 인정하기도 어렵다.

B. Examining the reasoning of the original judgment in light of the relevant legal principles and records, the lower court’s judgment did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the meaning of “the discovery” under Article 25(1) of the former Mental Health Act, the establishment of the crime of abusing authority and obstructing another’s exercise of rights, and the meaning of “the false fact” under Article 250(1) of the Public Official Election Act, and by misapprehending the legal doctrine on the intentional publication of false facts.

Meanwhile, the Prosecutor appealed to the entire judgment of the original court, but did not state specific grounds for objection to the remainder of the judgment.

2. As to the grounds of appeal by the defendant

A. Abuse of the right to institute a public prosecution and violation of the principle of daily indictment

1) In a case where it is deemed that a prosecutor voluntarily exercised his/her authority to institute a public prosecution and rendered a substantial disadvantage to the defendant, the validity of the institution of public prosecution may be denied by deeming that it is an abuse of the authority to institute a public prosecution. Here, the 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 by dolusium (see Supreme Court Decision 2017Do1623, Dec. 13, 2017, etc.).

The Japanese state of the written indictment is a principle that the prosecutor shall submit only one written indictment when instituting a public prosecution, and shall not attach documents or other things that may cause the court to make the judgment on the case (Article 118(2) of the Rules of Criminal Procedure). The so-called “Prohibition of entry of other facts” is prohibited that it is not permitted to give rise to the court’s prejudice as a fact other than the matters required by the statutes, and is included in the Japanese state of the written indictment. In light of the type and contents of crimes as stated in the facts charged, the issue of violation of the principle of an indictment only shall be determined specifically in the relevant case with the content of the written indictment attached or quoted documents and other things, and whether the facts recorded in the written indictment, other than those required by the statutes, may interfere with the judge or jury’s understanding of the substance of the crime, and thus, it cannot be deemed that the court below erred in its examination or omission of evidence by exceeding the bounds of the duty of the judge’s or jury’s understanding of the facts charged (see, e.g., Supreme Court Decision 2006Du3636).

Examining the reasoning of the original judgment in light of the aforementioned legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence by violating logical and empirical rules, or by misapprehending the legal principles on the abuse of public prosecution rights and the principle of an indictment only.

B. Article 250(1) of the Public Official Election Act (hereinafter referred to as the “instant provision”) provides that “a person who publishes or makes another person publish false facts about the place of birth, family relation, status, occupation, career, property, activity, organization to which a candidate’s spouse or lineal ascendant or descendant, or sibling belongs, such as the place of birth, family relation, status, career, property, work, career, organization to which a specific person or specific organization belongs, etc.” The purport of the provision is to punish a person, such as publishing false facts affecting the fair judgment of the elector, thereby harming the freedom of election campaign (see, e.g., Supreme Court Decision 2006Do8098, Feb. 23, 2007; Supreme Court Decision 2006Do8146, Mar. 6, 2007).

B) Under the representative democracy, citizens realize the principle of citizen sovereignty and resident autonomy by reflecting the political information and opinions provided in the election process and debate. The fairness of election should be ensured, and to ensure equal opportunity for election campaigns by means of gold, official rights, violence, etc., and to a certain extent, no regulation on election campaigns should be imposed. However, the ultimate purpose of election is to accurately reflect the free will of the people in the composition of the representative organ. Although the principle of free election is not specified in the Constitution, it is the legal principle inherent in the election system of a democratic state (see, e.g., Constitutional Court Decision 93Hun-Ga4, Jul. 29, 1994). In order to realize this, 196 Constitutional Court Decision 9Hun-Ga4, supra, there is no need to freely transfer information and freedom of election campaigns in the process of election (see, e.g., Constitutional Court Decision 90Hun-Ga4, Sept. 29, 194).

C) The Act on the Election of Public Officials provides that the candidate’s right to ask questions, such as the preparation and posting of election campaign posters (Article 64), the distribution of campaign bulletins (Articles 6, 70), the campaign speech or interview (Article 79), the interview or debate at an open place (Article 81, 82), and the Internet advertisements (Article 82-7) are not made in accordance with the following principles: the candidate’s right to ask questions, and the candidate’s right to ask questions, such as the fact-finding process, and the candidate’s right to ask questions, to the extent possible; the candidate’s right to ask questions, such as the fact-finding process; the candidate’s right to ask questions, and the candidate’s right to ask questions, etc.; the candidate’s right to ask questions, etc. and the candidate’s right to ask questions, etc., that are different from the candidate’s right to ask questions, and the candidate’s right to ask questions, etc., may be held efficiently in accordance with the election campaign system under the Constitution.

Of course, strict measures should be taken against expressions exceeding a certain limit, but it is more important to guarantee freedom of expression more broadly for free debate and mature democracy prior thereto.In order to realize the function of freedom of expression, it is because there is a hidden room necessary for survival, i.e., free and neutral space from legal judgment (see Supreme Court en banc Decision 2014Da61654, Oct. 30, 2018, etc.). It is not a policy to ask for heavy legal responsibility against all inaccurate or inappropriate expressions on the ground that it is necessary for the fairness of election. Despite the importance of a candidate’s debate as a method of election campaign, it is difficult to ask for heavy legal responsibility against all such expressions that are inaccurate or inappropriate. However, given the importance of a candidate’s debate, it is difficult for us to take more active responsibility for the debate on the form and time limit of debate and the limitation of debate, etc., in addition to this, it is difficult for us to take more responsibility for the political debate than those of the candidates.

In addition, there is a risk of undermining the meaning of discussions in order to verify the identity, etc. of candidates through mutual routs through the fair debate, by seriously suppressing public and political public concerns and candidate verification. Moreover, if a statement made at a candidate debate before and after an election leads to a complaint or accusation, and as a result, if the involvement of a candidate’s private right is caused, it is inevitable to avoid controversy over the neutrality of exercising a private right. Moreover, as the result of the election is faced with the risk of final decision by the prosecution and the court, it is likely that the representative elected with a free will of the people will be damaged.

D) The provision of this case is a punishment law. The punishment law must be strictly interpreted and applied in accordance with the language and text, and shall not be excessively expanded or analogically interpreted to the accused. The meaning of the language and text used in the law should also be interpreted with the systematic and logical interpretation method that clearly expresses the logical significance of the relevant provision in light of the legislative intent and purpose of the provision. (See Supreme Court Decision 2017Do1022, Dec. 7, 2017, etc.) It is necessary to ex officioly disclose the relevant facts to the candidate for an election campaign, which is the subject of punishment of this case, based on the following facts: (a) the purpose and significance of the provision on the freedom of political expression and the freedom of election campaign; (b) the content and purport of the provision on the election campaign including a candidate’s debate under the Election of Public Officials Act; and (c) the function of the candidate’s debate and other relevant matters; and (d) the purpose of the provision on the punishment of the candidate for an election campaign is to be widely announced for the purpose of public announcement of the facts.

Furthermore, in distinguishing whether an expression at issue is a criminal punishment or an expression of opinion or abstract judgment, it shall be determined by taking into account the ordinary meaning and usage of the language, possibility of proof, overall purport of the language used, details of expression and social context, etc. However, in cases where it is difficult to readily conclude that an expression belongs to a certain category in light of the superior position of freedom of expression, the principle of interpretation of penal provisions, it shall be understood that an expression of opinion or abstract judgment, in principle, has been expressed. In addition, in cases where a certain expression conforms to objective facts in light of the overall purport of the fact published, even if there is a little or exaggerated expression, it shall not be deemed as a publication of false facts (see, e.g., Supreme Court Decision 2009Do26, Mar. 12, 2009). In particular, when considering the function and characteristics of the candidate’s debate as seen earlier, it shall not be deemed that an act of a candidate’s expression is inconsistent with that of the candidate’s expression or expression to the extent that it is unreasonable or unreasonable within the candidate’s opinion is unreasonable.

The Public Official Election Act separates from “a false fact” (see, e.g., Articles 8-4 (1), 8-6 (1), 96 (2) 1, and 108 (5) 2). If there is no false representation in the contents expressed actively, it shall be careful in immediately assessing the entire statement solely on the ground that the Defendant silents about some of the facts with respect to which no disclosure obligation is legally required. Unless the accurate judgment of the expressed elector in the course of questioning, assertion, or reply is intentionally distorted, it shall not be evaluated as a publication of false facts even in cases where some of the inaccurate or somewhat exaggerated facts or there is room to interpret them differently. 2) The lower court found the Defendant guilty of the violation of the former Public Official Election Act by deeming that the Defendant’s unlawful publication of the facts against Non-Party 3’s Mental Health Act was prohibited from being made in the public announcement of the indictment to the extent that he/she had been subject to compulsory publication from around Apr. 8, 2012.

나 ) 그러나 원 심판결 이유 와 적법하게 채택된 증거들 에 의하여 인정되는 사실관계 를 앞서 본 법리 에 비추어 살펴보면, 원심의 판단 을 그대로 받아들이기 어렵다. ( 1 ) 먼저 KBS 토론회에서의 피고인의 공소사실 기재 발언에 대하여 본다. ( 가 ) 피고인 은 위토론회에서 상대 후보자인 공소외 6 이 "형님을 정신병원에 입원 시키 려고 하셨죠 ? 그보건소장을 통해서 하지 않았습니까?"라고 질문한 데 대하여 "그런일 없습니다. " 라고 답변하였다. 피고인의 위 발언은 의혹을 제기하는 공소외 6의 질문에 대하여 이를 부인하는 취지의 답변 을 한 것으로평가할 수 있을 뿐 이를 넘어서 어떤 사실 을 적극적 이고 일방적으로 널리 드러내어 알리려는 의도에서 한 공표행위라고 볼 수 는 없다.

In response to the defendant's answer to the above denial, the non-party 6 asked "I am confirmed to be a mentally ill person at the mental health center of △△△△ 8th floor, which was entrusted by the mental health center of △△△△△△, without any grammatic or medical examination?" In response, the defendant responded to this "I am dead, his mother, her mother, her mother, her child, and her child was unable to express me about me, and her child was actually under mental treatment, and her mother continued to have been under physical treatment, so I am low-scar, low-sar, son, son, male, male, and this is the heavy that the mother requested the diagnosis. However, the author was unable to request it directly, and because there was no jurisdiction over it, so I am finally impossible to make the diagnosis."

Although the court below acknowledged that the above debate did not directly use the expression "the defendant did not participate at all in the commencement of the compulsory hospitalization procedure against non-party 3", the court below held that since the defendant ordered non-party 3 to proceed with the compulsory hospitalization procedure and listened to the above statement by concealing the fact that part of the above procedure was progress, it constitutes a publication of false facts as a whole because he distorted the facts. However, even according to the reasoning of the original judgment, the above statement was made in the course of the debate about the non-party's intentional question or suspicion, and it was sufficiently possible and expected that the other candidate's second question or reply was made during the debate, and in fact, the non-party 6 et al. was aware that the defendant's suspicion of abuse of authority, etc. was made through the subsequent question.

In light of the aforementioned legal principles, examining the background leading up to the public debate between the Defendant and Nonindicted 6 and the overall context, etc., it is difficult to view that the Defendant’s remarks were actively opposed to the intention to reveal unilaterally false facts without connection with theme of the debate. (b) According to the evidence duly admitted by the lower court, Nonindicted 6 made an oral appearance before and after the debate in this case, “the Defendant intended to make Nonparty 3 and Nonparty 3 be hospitalized at the mental hospital by abusing the authority of △△△△△△△, and to force the hospitalization of Nonparty 3 as a mental hospital.” In so doing, Nonindicted 6 made an ex officio questioning of whether Nonparty 6 was hospitalized at the mental hospital after the debate in this case. In view of whether Nonparty 6 was hospitalized at the mental hospital and Nonparty 6’s official questioning, the Defendant’s oral appearance in this case, including Nonparty 6’s official questioning.

이러한 사정 에다가 위 토론회에서의 공소외 6과 피고인 사이의 질문과 답변 내용, 그 발언 의 경위 와 전후 문맥까지를 종합하면, 공소외 6이 위 토론회에서 아무런 전제 사실 이나 일시 · 장소 등 의 특정도 없이 "형님을 정신병원에 입원시키려고 하셨죠?"라고 질문 한 데에는 위와 같은 의혹을 제기하는 취지가 포함되어 있었다고 볼 여지가 있다. 그렇다면 피고인으로서도 공소외 6이 위 토론회에서 한 질문이나 이 사건 토론회를 전후 하여 제기 한주장의 취지나 의도를 '직권을 남용해 불법으로 공소외 3을 정신병원 에 강제 입원 시키려고 한 사실이 있느냐?'는 것으로 해석한 다음, 그러한 평가를 부인하 는 의미 로 " 그런 일 없습니다."라고 답변하였다고 볼 수 있고, 상대 후보자의 질문의 의미 를 의도적 으로 왜곡한 것이라고 단정하기는 어렵다. 또한 원심이 인정한 사실관계 에 의하면 , 피고인이 위 토론회에서 한 나머지 공소사실 기재 발언들 에 그 표현 의 적극적인 측면 에서 허위로 단정할 만한 내용이 없다. 사정이 이와 같다면, 비록 피고인이 공 소외 3 에 대한정신병원 강제입원 절차 진행에 관여한 사실을 언급하지 않은 채 위와 같은 발언 들을하였다고 하더라도, 피고인 이 그 와 같은 사실을 공개할 법적 의무를 부담 하고 있었다고 볼 근거가 없는 이 사건에서 상대 후보자의 공격적인 질문에 대하여 소극적 으로 회피하거나 방어하는 취지의 답변 또는 일부 부정확하거나 다의적 으로 해석 될 여지 가 있는 표현을 넘어서서 곧바로 적극적으로 반대사실을 공표하였다 거나 전체 진술 을 허위라고 평가할 수 는 없다고 보아야 한다. 이러한 피고인의 발언들을 사후 적인 분석 과 추론 을 통하여 적극적으로 허위의 반대사실을 공표한 것과 마찬가지.라고 평가 하는 것은표현의 외연을 확장함으로써 형벌법규에 따른 책임의 명확성, 예측 가능성 을 저해 할 우려가 있다. ( 2 ) 다음 으로 MBC토론회에서 의 피고인의 공소사실 기재 발언에 대하여 본다. 피고인 은 위 토론회에서 "우리 공소외 6 후보께서는 저보고 정신병원에 형님을 입원시키려 했다 이런 주장을 하고 싶으신 것 같은데사실이 아닙니다. 정신병원에 입원 시킨 것은 형님 의 부인 그러니까 제 형수와 조카들이었고, 어머니가 보건소에다가 정신질환 이 있는 것 같으니 확인을 해보자라고 해서 진단을 요청한 일 이 있습니다. 그 권한은 제가 가지고 있었기 때문에 제가 어머니한테 설득을 해서 이거 정치적으로 너무 시끄러 우니 하지 말자 못하게 막아서 결국은 안 됐다는 말씀을 또 드립니다."라고 발언 하였다. 그 내용 은KBS 토론회에서 한 발언과 대동소이하고, 다만 위 토론회는 기조 연설 과 정책 발표 , 후보자간 1:1 정책검증, 사회자 공통질문, 각 후보자가 3분간 주도권을 가지고 하는 토론 등 의 순서로 진행되었는데, 피고인의 위 발언은 피고인에게 주어진 주도권 토론 시간에 이루어진 것으로서 상대 후보자 의 공격적 질문에 대하여 곧바로 반박 하는 형식 은 아니었다. 그러나 이 부분 발언의 내용과 맥락이 상대 후보자가 위 토론회 에서 다시 제기할 것으로 예상되는 의혹이나 질문에 대한 선제적인 답변의 실질을 가진 점 , 실제로피고인의 위 발언에 이어 공소외 6도 '피고인의 어머니가 아들을 정신 병원 에 넣으 라고요청했다는 것이 완전히허구라는 게 밝혀졌다'는 취지로 의혹 을 제기 한 점 등 을 고려하면, 피고인의 이 부분 발언 또한 허위의 반대사실을 적극적· 일방적 으로 공표 한 것으로 보기는 어렵다.

C) Ultimately, it cannot be deemed that the Defendant’s statement in this part of the facts charged constitutes the publication of false facts as prescribed in the instant provision. Nevertheless, the lower court’s judgment convicting Nonindicted 3 of the charge of the violation of the Public Official Election Act by publishing false facts related to Nonindicted 3’s compulsory admission process, is erroneous in misapprehending the legal doctrine on publication of false facts as prescribed in the instant provision, thereby adversely affecting the conclusion of the judgment. Accordingly, the Defendant’s ground of appeal assigning this error is with merit.

3. Scope of reversal

For the same reason as seen earlier, the conviction part of the judgment of the court below should be reversed. However, since the part of the judgment of the court below which violated the Public Official Election Act by publishing the remainder of Non-Indicted 3, such as Non-Indicted 3’s attempt to hospitalization at a mental hospital falling under the part of the acquittal of the reasons, is in a relationship with the above guilty part

4. Conclusion

Therefore, without further proceeding to decide on the Defendant’s grounds of appeal on the Defendant’s money money, the part of the judgment of the court below guilty (including the part not guilty on the grounds of appeal) is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion, and the Prosecutor’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Park Sang-ok, Justice Lee Ki-ok, Justice Ahn Jae-soo, Justice Lee Dong-won, Justice Lee Dong-won, and Justice Noh Tae-tae, as to the fact that the violation of the Public Official Election Act by publishing false facts related

5. Dissenting Opinion by Justice Park Sang-ok, Justice Lee Ki-taik, Justice Ahn Jae-chul, Justice Lee Dong-won, and Justice Noh Tae-ok on the crime of violating the Public Official Election Act by publicly announcing false facts regarding compulsory admission procedures

A. Based on the following circumstances, the majority opinion held that the Defendant’s remarks cannot be deemed to constitute the publication of false facts set forth in the instant provision, and that there were errors in the judgment of the court below which found the Defendant guilty of the violation of the Public Official Election Act due to the publication of false facts related to the compulsory hospitalization procedure for Nonindicted 3 among the facts charged in the instant case by misapprehending the legal principles on the publication of false facts.

① In this case, it is difficult to view that the Defendant’s remarks made in the KS debate include the purpose of checking ex officio abuse of authority or the illegality of forced hospitalization by revealing unilaterally false facts because they appeared in the process of responding to or explaining questions or suspicions by the other candidate. ② There is room to view that Nonindicted 6’s inquiries include Nonindicted 6’s purpose of confirming the illegality of abuse of authority or forced hospitalization, and the Defendant responded to that of denying this. It is difficult to readily conclude that the Defendant’s remaining remarks are distorted with intention. Moreover, there is no content that can be readily concluded that the Defendant’s remaining remarks were false, even if the above remarks were made without mentioning the fact that the Defendant was involved in the process of compulsory hospitalization by the mental hospital against Nonindicted 3, even if there is no ground to deem that the Defendant is legally obligated to disclose this fact, it is difficult to view that the Defendant’s aforementioned facts were passively avoided or defended, or that the Defendant’s statement was made public in accordance with the pertinent penal provision, by actively opposing or opposing the Defendant’s statements.

B. However, the Defendant published false facts by actively denying the process of forced hospitalization with Nonindicted 3, even though he participated in the procedure for compulsory hospitalization of a mental hospital, and thus, it is difficult to agree with the reasoning and conclusion of the Majority Opinion. (1) The instant provision aims to ensure the fairness of election campaign without impairing the freedom of election campaign by punishing the electors, such as publishing false facts affecting the fair judgment of the electors. In other words, by preventing the publication of false facts favorable to the candidate, thereby allowing the electors to make a correct choice with accurate judgment data on the candidates (see Supreme Court Decisions 2006Do8098, Feb. 23, 2007; 2007HunBa8, Mar. 26, 2009; 2007HunBa-Ba72, Mar. 26, 2009; 2007Hun-Ba, “public announcement” of the instant provision, regardless of its means or method, if any, is likely to individually inform many and unspecified persons of such false facts.

이 사건 조항 에서말하는 '사실'의 공표란 가치판단이나 평가를 내용으로 하는 의견 표현 에 대치 되는 개념으로서 시간과 공간적으로 구체적인 과거 또는 현재의 사실관계에 관한 보고 내지 진술을 의미하며, 그 표현 내용이 증거에 의한 증명 이 가능한 것을 말한다. 어떠한 표현이 사실의 적시인지 아니면 의견이나 추상적 판단 의 표현인지 의구별 은 단순히 사용된 한 구절의 용어만 에 의하여 구별할 것이 아니라 선거의 공정 을 보장 한다는 입법 취지를 염두에 두고 그러한 표현을 둘러싼 모든 사정, 즉 언어의 통상적 의미 와 용법 , 표현 전체 의 내용, 문제된 말이 사용된 문맥, 표현의 경위·전달방법 · 상대방 , 표현 내용에 대한 증명가능성, 표현자 와 후보자의 신분 등 을 고려하여 종합적 으로 결정 되어야할 것이다(대법원2017. 12.22.선고 2017 도6433 판결 등 참조). 또한 이 사건 조항에서 말하는 '허위의 사실'이란 진실에 부합하지 않은 사항으로서 선거인 으로 하여금 후보자에 대한 정확한 판단을 그르치게 할 수 있을 정도로 구체성을 가진 것이면 충분하다. 하지만 공표된 사실의 내용 전체의 취지를 살펴볼 때 중요한 부분 이 객관적 사실과 합치되는 경우에는 세부적으로 진실과 약간 차이가 나거나 다소 과장된 표현 이 있다 하더라도 이를 허위의 사실이라고 볼 수 는 없다(대법원 2009. 3. 12. 선고 2009도26 판결 등 참조). 어떤 표현이 허위사실을 표명한 것인지 여부는 일반 선거인 이그 표현을 접하는 통상의 방법을 전제로 하여 그 표현 의 전체적인 취지 , 객관적 내용 ,사용된 어휘의 통상적인 의미, 문구의 연결방법 등 을 종합적으로 고려 하여 그 표현 이선거인에게 주는 전체적인 인상을 기준으로 판단하여야 한다(대법원 2015. 5. 14. 선고2015도1202 판결 등 참조). 2 ) 원 심판결 이유와 적법하게 채택된 증거에 의하여 인정되는 다음과 같은 사실에 따르면 , 피고인 은 자신의 지휘와 감독을 받고 있는 00구보건소장 등에게 공소외 3 에 대한 정신 병원 강제 입원을 지시하고 독촉하였다.가 ) 피고인 은 2012.4. 초순경 직접 또는 비서실장 공소외 7을 통하여 ○○구보건소장 공 소외 1 에게 공소외 3에 대한 구 정신보건법 제25조에 따른 강제입원이 가능한지 검토해 보라고 지시하였다. 공소외 1은 검토 결과 피고인에게 여러 차례에 걸쳐 위 강제 입원 절차 진행 이불가능하다는 취지로 보고하였는데, 피고인은 그때마다 구 정신보건법 제 25 조의 해석상 강제입원 절차가 가능하다는 견해를 개진하면서 공소외 1에게 재검토 를 지시 하거나위 강제입원 절차를 진행하라는 취지로 지시하였다.나 ) 피고인 은 2012.4. 초순경 공소외 1에게 '공소외 3의 가족들을 설득할 수 있도록 AA 시 정신 건강 센터의 센터장 공 소외 2로부터 공소외 3 이 현재 치료가 필요하다는 취지의 평가 문건 을 받아오라'는 취지로 지시하였다. 이에 따라 공소외 1은 공소외 2로부터 공 소외 3 에 대한평가문건을 받아 피고인에게 전달하였다.다 ) 피고인 은 위 평가문건에 연필로 '공소외 3이 현재 입원이 필요하다'는 취지의 내용이 들어가 도록 수정한 다음, 이를 공소외 1에게 주면서 공 소외 2로 하여금 위 평가문건 을 그 와 같이 수정하게 하라고 지시하였다. 피고인은 평가문건이 수정된 후 재차 공 소외 1 에게 수정 된평가문건에 00서울대학교병원장이나 센터의 직인을 받아오라고 지시 하였다.라 ) △△ 시 의 2012. 5,2.자 정기인사에서 00구보건소장이 공소외 1에서 공소외 4로 교체 되었다. 그후 피고인은 2012.6.경부터 2012.8.경까지 여러 차례에 걸쳐 직접 또는 공 소외 7 을 통하여 공소외 4에게 공소외 3에 대한 구 정신보건법 제25조에따른 강제 입원 절차 를 진행하라는 취지로 지시하였다. 피고인은 2012.6. 13.경부터 2012.6. 22. 경 까지 브라질 에출장 을 가 있는 동안에도 공소외 4와 여러 차례 통화하면서 위와 같이 지시 하고 그 절차 진행을 재촉하였다.마 ) 피고인 은 2012.8.27.경 공소외 4와 ○○구보건소 직원 공소외 8, 공소외 9에게 현재 공 소외 3 에 대하여 구 정신보건법 제25조 제2항 에 따른 절차는 완료되었으니 그 다음 절차 를 진행 하라는 취지로 지시하기도 하였다. 당시 피고인은 공소외 4, 공소외 8 , 공 소외 9 에게 ' 일 처리 못하는 이유가 뭐냐. 사표 내라. 합법적인 사항을 처리하지 않는 것은 직무 유기 이다. 징계를 줄 것이다'는 취지로 질책하기도 하였다.

F) On or around September 13, 2012 and September 17, 2012, Defendant: (a) instructed persons related to ○○-gu public health clinic, including Nonindicted 4 and Nonindicted 8, directly or through Nonindicted 7, to prepare an inquiry to ask questions about whether compulsory hospitalization under Article 25 of the former Mental Health Act is possible; (b) at the present stage, multiple opinions should be guaranteed to the maximum extent of freedom of expression and freedom of election campaign in an election of a representative democracy system; and (c) in light of the functions and characteristics of the candidate’s debate, speaking in the process of debate, barring any special circumstance, such as the unilateral expression of false facts, it cannot be punished as a crime of publishing false facts by the instant provision; (c) under the premise that the right to freedom of election and freedom of expression should be restricted within the scope of freedom of expression, such as the right to freedom of expression and the right to freedom of expression, the following interpretation of the Majority Opinion is unnecessary.

The term “fairness of election” refers to the equal opportunity in the freedom of election and election campaign, etc., and without the fairness of election, the freedom of political expression, such as the campaign to freely express and exchange political information and opinions on candidates or political parties, is acknowledged as the premise of fairness of election, and the fairness of election can be functioned as the limited principle of such freedom (see Constitutional Court Decision 201Hun-Ba 163, Apr. 30, 201). The Act on the Election of Public Officials provides for a candidate’s debate as one of election campaign methods (see Articles 81, 82, 82-2, and 82-3). Such candidate’s debate is very likely to see that the candidate’s right to participate in election campaign, such as his or her own political views, political beliefs, and public relations or opinions, and that he or she is not able to express his or her own ability to participate in election campaign in a broad comparison of his or her ability to participate in the election campaign.

In addition, the candidate debate is the only election campaign in which the conflict between the candidates is directly revealed among the election campaign. For this reason, the debate of the candidate debate is the most dynamic and active among the election campaign, and the unity or weakness between the candidates are clearly revealed. The candidate debate can be assessed by comparing not only the advantages of the candidates but also the advantages of the candidates, and thus, it has a high interest and heat.

C) The candidate’s debate has a very strong ripple and influence on the voters, and is perceived as the most important part of the provision of information to determine the eligibility of the candidate for the public service of the debate held by the voters. In addition, since it is necessary and is also important to verify the eligibility of the candidate in the election for public office, the freedom of expression in the process of the candidate’s debate held to verify the eligibility of the public service should be guaranteed to the greatest extent.

However, in the event that the propagation of false or distorted facts is allowed in the course of the public debate of a candidate that has the above significance and functions or the degree of prohibition thereof is lowered, the right holder cannot believe the information he/she has become aware of in the debate, which leads to a decrease in the quality of the debate. Accordingly, the interests and participation of the right holder in the debate is considerably lowered, and there is no active debate on policies, important election issues, and public service eligibility among the right holder. Furthermore, the right holder is unable to make a correct selection through fair and accurate judgment, and the voting rate is lowered, resulting in distortion of the result of election.

As can be seen, the distortion of false facts in a candidate’s debate is likely to seriously undermine the inherent function of the election system and the inherent nature of representative democracy by infringing on the fairness of election in an election, which is a core means of realizing national sovereignty and representative democracy. D) Nevertheless, as the majority opinion, if the remarks during the debate process of the candidate’s debate do not punish them as a crime of publishing false facts actively and ex officio, and if the remarks are given in a uniform manner without punishing them as a crime of publishing false facts, this would result in the extinction of the significance and function of the candidate’s debate, thereby making it impossible to function as an efficient and advanced election campaign. Accordingly, only the candidate who made a concrete statement in the debate, without revealing the advantages and disadvantages of each other in detail, in a comprehensive and consistent manner, and making it difficult for the candidate to expect the operation of the debate in a comprehensive manner. In the end, the candidate’s active and active manner cannot be expected.

E) Furthermore, a candidate’s debate under the Election of Public Officials Act is premised on the broadcast relay (see Articles 71(12), 81(8), 82(1) and (4), 82-2(10), and 82-3(2), and the candidate who participates in the debate is aware that his/her statement will be perceived and disseminated to many voters who view the broadcast, and that his/her statement will not be widely announced. In other words, the candidate takes the form of debate, and each candidate makes a statement with the intention to widely understand the discrimination of his/her own political views, policies, and arguments through the broadcast relay. It goes against the meaning of “making public announcement” as well as the meaning of “making public announcement.”

F) Many opinions recognize the freedom of political expression, the freedom of election campaign, and the function and characteristics of a candidate’s debate as the basis of legal principles in the Supreme Court established legal doctrine, and the dissenting opinion does not deny. However, the majority opinion argues that the speaking cannot be punished as a crime of publishing false facts in the debate process, barring special circumstances, such as active and unilateral expression of false facts, for this reason, exceeds the logical attitude of the Supreme Court established as to the establishment of the crime of publishing false facts.

However, the legal doctrine established by the Supreme Court which strictly determines whether a candidate's debate is false or false according to individual cases is "public announcement" of this case. However, the interpretation that limits the scope of "public announcement" as stated in the majority opinion can seriously undermine the fairness of election and the balance between the freedom of political expression, and the freedom of election campaign. The public announcement of "public announcement" under the provisions of this case is not limited to the case of direct expression of false facts, but is not limited to the case of direct expression of such false facts, in light of the purport of the whole contents of the expression, it is sufficient to suggest the existence of such false facts in light of the overall purport of the expression, and thereby, there is sufficient possibility that there is a favorable effect on the candidate's evaluation. Accordingly, it is sufficient that there is a possibility that the public announcement of a candidate's expression of false facts will not be punished for active expression of facts in the process of ex officio expression and debate.

H) The meaning of “proactive and unilateral expression of opinion” is not clear and ambiguous. When interpreting the meaning of “Publication” like a majority opinion, the establishment of the crime of publishing false facts is likely to be entrusted to the arbitrary interpretation of the investigative agencies such as the prosecution and the court and the judicial agencies, and what is the public announcement prohibited in the crime of publishing false facts is unknown.

In addition, it is difficult to find any fundamental reason to regard the active and unilateral expression different from that other than the expression."Public announcement" is an expression "distinctly revealing widely to many people." Unlike the language and text of the provision of this case, it is apparent that the Majority Opinion does not require a candidate to express affirmative and unilateral false facts. It should be extremely careful to create new elements beyond the possible meaning of the language through interpretation rather than legislative methods. 4) Man’s opinion is based on the premise that there is no limit to the clarity of the expression because the majority opinion is made e.g., interested and continuous in reply between the candidates at the candidate’s debate, i.e., public interest by assertion and reply, and objection, so that there is no limit to the clarity of the expression. However, today’s debate is an election campaign that has the largest influence on the candidate, and in particular, the process of debate in a limited debate is an important opportunity for the candidate to accurately select the candidates, such as the opportunity to answer the candidate from the beginning, and thus, is given within the reasonable time and balance.

A candidate also prepares faithfully to ask questions, answers, arguments, and objections, etc. prior to the debate in order to display his/her quality and ability by making his/her answer, assertion, or counterargument to another candidate within a limited period of time. In such a situation, if a candidate criticizes another candidate without any preparation or aggressive questions without any preparation, it is only negative effects such as the non-preparation of such preparation, etc., and thus, the candidate focuses on the subject or election issues that may be favorable to him/her.

Therefore, it is extremely rare that the candidate’s debate could not be anticipated or that the candidate’s unknown topics, i.e., interesting and unexpectedly discussed. (B) The question of Nonparty 6 does not appear in the KBS debate, i.e., interest and unexpectedly., at the KBS debate. The fact that the Defendant forced Non-Party 3 to be hospitalized into a mental hospital by Nonindicted 3 around June 2012 was first asserted by Nonindicted 3, and the Defendant continued to disproving the Defendant through SNS, etc. However, there was no mentioning that the Defendant ordered the persons related to the ○○○ Public Health Center, etc. of Non-Party 3 to be hospitalized by Nonindicted 6, the counterpart candidate at the Do governor of the Dong-dong local government election of Do governor of Do-si, Do-si, 2018.

At the time, the Defendant, who was the most significant candidate in the election of the Do governor of Do, Do governor at the time, was fully aware of the circumstances that Nonparty 6 would be asked about Non-Party 3 in relation to the procedure of hospitalization at a mental hospital in the public forum of Non-Party 6. Accordingly, the Defendant prepared an answer in advance, and responded to the answer that was prepared. In addition, the Defendant denied the foregoing involvement during the investigation and trial of the instant case, and the Defendant’s remarks were made in the same context.

C) In particular, in the MBC debate, the Defendant’s remarks were made during the three-minute candidate-led debate period, but it was not during the process of responding to Nonparty 6’s question, but prior to Nonparty 6’s participation in the hospitalization procedure of a mental hospital in the Defendant’s mental hospital against Nonparty 3, the Defendant himself/herself actively and unilaterally explained. There is no room for application of the characteristics of the candidate’s debate to the effect that the Defendant’s remarks and verification through counterarguments, replies, inquiries and answers, i.e., during interesting and continuing.

결국 이 사건 토론회에서의 피고인 발언은 미리 준비한 자료에 의하여 일방적으로 자신 이 전달 하고자 하는 내용을 적극적으로 발표하는 것과 다르지 않다.라 ) 후보자 들은 후보자 토론회에서 의 질문과 답변, 주장과 반론 등 을 준비하면서 의도적 · 계획적 으로 자신에게 불리한 사실을 숨김으로써 자신에게 유리하도록 사실을 왜곡할 수 있다. 다수 의견의 주장처럼 후보자 토론회에서 발언시간이 제한적이고 공방 과검증 이 즉흥적 · 계속적으로 이루어진다는 이유만으로 토론회의 토론과정 중 발언이 적극적 · 일방적 표명 이라는 등 특별한 사정이 없는 한 이를 허위사실공표죄 로 처벌하지 않는다면 , 오히려 토론회에서 자신에게 유리하도록 의도적으로 다의적이거나 모호한 표현 을 사용할 것을치밀하게 준비한 후보자가 많아져 선거인들의 정확하고 공정한 판단 을 그르치게 할 위험이 커지고, 이는 민주주의 이념과 대의민주주의 체제에서의 선거에 중대한 위협 이된다. 5 ) 다수 의견 은 공 소외 6의 질문에 직권남용이나 강제입원의 불법성 을 확인하려는 취지가 포함 되어 있어위 질문이 포괄적이라고 볼 수 있음을 전제로 하고 있다. 그러나 이는 다수 의견 이 공소외 6의 질문 내용과 취지를 명백히 잘못 이해한 것으로 받아들이기 어렵다.가 ) 앞서 본 것과같이피고인은 00구보건소장 등에게 공소외 3에 대한 정신병원 입원 에 관하여 지시하거나 독촉하였다. 공소외 6도 이 사건 토론회 이전에 공소외 2 작성 의 평가 문건 , 00차병원 정신건강의학과 전문의 공소외 10 작성의 회신서, △△시 공무원 들의 진술서 ,공소외 3의 처 공소외 11의 진술 등 을 근거로 피고인이 공소외 3에 대한 정신 병원 입원 절차에 관여하였다는 사실을 확인하였다. 이에 공소외 6은 이 사건 토론회 전후로'피고인이 △△시장으로서의 직권을 남용하여 공 소외 3과 가족 을 강압 해 공 소외 3 을정신병원에 강제로 입원시키려고 하였다'는 취지의 기자회견 등 을 여러 차례 하였다.나 ) 공 소외 6 은 위와 같이 확인한 사실관계를 전제로 KBS 토론회에서 피고인에게 " 형님 을 정신 병원 에입원시키려고 하셨죠?"라고 질문하였고, 이어서 좀 더 구체적으로 " 그 보건 소장 을 통해서 하지 않았습니까?"라는 질문을 하였다. 위 '입원시키다'에서 '시 키다 ' 는 접미사 로서그 사전적 의미는 '어떤 사람으로 하여금 그렇게 되도록 하다. 그일 을 이루 거나 그렇게 되도록 하다'이다. 따라서 공소외 6의 질문은 통상적으로 '피고인 이 형님 에 대한 정신병원 입원을 이루거나 형님을 입원되도록 하였는지 여부'를 묻는 것이라고 해석 함이 타당하다.

When considering the ordinary meaning of Nonparty 6’s question, the entire content of the question, and the social context in which the question was made, Nonparty 6’s question is understood as asking whether or not the Defendant instructed and urged to be hospitalized in a mental hospital via the head of the ○○○-gu Public Health Center, etc., the Plaintiff’s question is an average perception of the electors. It is not a question for confirming the fact, but a question for verifying the illegality of abuse of authority or forced hospitalization.

C) In the KBS debate, Nonparty 6 argued that “(the Defendant’s name omitted) the City Mayor mobilized the official authority, and would be able to give this written diagnosis if he does not abuse his official authority.” The content of Nonparty 6 asked Nonparty 3 about Non-Party 3’s compulsory hospitalization of a mental hospital for Non-Party 6 was involved in the procedure for hospitalization of a mental hospital for Non-Party 3. However, the fact of involvement constitutes abuse of official authority.”

In light of the overall context of Non-Party 6’s question and the contents of Non-Party 6’s argument, Non-Party 6 first confirmed the fact that Non-Party 3 participated in the procedure of hospitalization at a mental hospital with respect to Non-Party 3, and tried to clarify that the involvement in the procedure is abuse by authority or illegal compulsory hospitalization. Therefore, the question of Non-Party 6 is a question about whether the defendant participated in the procedure of hospitalization at a mental hospital with respect to Non-Party 3. The question of Non-Party 6 has various meanings used in the expression, or it is possible to interpret that the objective and overall meaning of the expression can be interpreted as a different meaning without clarifying the objective and overall meaning of the expression, such as where the relevant factual relationship is complicated or combined with facts. However, it cannot be deemed that the question of Non-Party 6 and the defendant’s answer to this case, and it can only be said that the question of whether the defendant objectively and practically falls under one of the objective and objective facts was a clear answer to Non-Party 3’s answer to the mental hospital itself.

6) Many opinions are limited to the Defendant’s answer to passive or defensive questions regarding the other candidate during the debate process of this case, and the Defendant’s answer to this effect cannot be evaluated as having published the objection immediately or as having made a false statement. However, it is reasonable to view that the Defendant’s statement clearly expressed the above false facts as a whole, and it is reasonable to interpret that only the answer can be removed and interpreted separately, and that the Defendant’s answer can be combined with inquiries and answers. Even if this simple denial or simple reply is possible, it can be sufficiently known that the Defendant’s answer is active and specific answer. As such, it would be reasonable to interpret that the Defendant’s statement is not a mere mere denial or simple answer, and that the Defendant’s statement would not be able to be accepted in the same meaning as that of the Defendant’s answer, and that it would be unreasonable to say that the Defendant’s statement would not be subject to active or detailed answer. However, the Majority Opinion is also consistent with the Supreme Court precedents.

C) In order to determine whether the Defendant’s above remarks are a public announcement of fact or an expression of opinion, and whether they are false or not, each of the meanings should not be understood separately. It should be interpreted by comprehensively taking into account the following: (a) the entire context of the pertinent remarks; (b) the context in which the said remarks were used; and (c) the impression that the elector would have received when the said remarks were made.

According to the above legal principles and the criteria for determination, the Defendant’s statement is against the established legal principles of the Supreme Court precedents, and the mother, sibling, and sibling requested the diagnosis of Nonindicted 3. The Defendant finally prevented the Defendant from proceeding with the examination. It is reasonable interpretation that the Defendant did not participate in the procedure for hospitalization in a mental hospital for Nonindicted 3. On the contrary, the Majority Opinion argues that the Defendant’s statement was not “public announcement of false facts” because the Defendant’s statement was individually subdivided into the Defendant’s statement to the effect that there was no content that it would be readily concluded that it was false. In short, the Majority Opinion argues that it is against the established legal principles of the Supreme Court precedents, and is distinguishable from the people’s legal sentiment.

7) In conclusion, the Defendant’s speech was made by actively making a false statement on specific facts, as well as the Defendant’s speech was made by concealing or concealing the fact that the Defendant urged his subordinate employees to be hospitalized by a mental hospital with Nonindicted 3, thereby constituting a “public announcement of false facts” as a whole by viewing the entire fact to the extent that it misleads the elector’s accurate judgment, and as a whole, constitutes a “public announcement of false facts.” (A) Nonparty 6 did not ask the Defendant in this case’s debate to hear his opinion as to whether abuse of authority or forced hospitalization was illegal or not, but rather, asked the Defendant that “the Defendant was involved in the procedure for hospitalization of a mental hospital with respect to Nonindicted 3, the Defendant, who was hidden, participated in the procedure for hospitalization of a mental hospital with respect to Nonindicted 3, the Defendant’s non-party 3.” On the premise

In the KBS forum, Non-Party 6 asked at the KBS forum, “Ar.S.S.S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S

Therefore, it is reasonable to view that, in the debate of this case, Nonparty 6 did not sufficiently verify the fact that “the Defendant was involved in the hospitalization procedure for a mental hospital for Nonindicted 3,” but rather, Nonparty 6’s questioning to disclose it was obstructed in advance by Nonparty 6’s follow-up questioning by actively expressing facts contrary to the truth. However, as seen earlier, Nonindicted 6’s inquiry is not an interesting and unexpectedly. Therefore, it is difficult to view that Nonindicted 6’s question in the candidate’s debate includes the illegality of abuse by authority or forced hospitalization on the premise that the candidate’s question is in interest, that is, the verification of the official question. Accordingly, the Defendant’s answer should be considered to reflect objective truth that “the Defendant did not participate in the hospitalization procedure for a mental hospital for Nonindicted 3” was made public with the awareness that “the Defendant did not participate in the examination procedure for a mental hospital for Nonindicted 3.”

C) In addition, considering the fact that the defendant's answer following the answer, "I do not have any such opinion," and that the defendant did not use an appraised expression such as "illegal" or "ex officio abuse while speaking in the debate of this case," the entire content of the defendant's statement is an answer that the defendant actively denies his involvement in the procedure for hospitalization in the mental hospital in the non-indicted 3, and is a false statement about specific facts, and thus, it constitutes a publication of false facts that can be proved. D) The question of the non-party 6 is about the defendant's act as △△△△△△, and thus, it cannot be deemed that the defendant's public official questioning about important matters related to the eligibility, suspension, and morality of the public official as a public official of this case, and it cannot be deemed that the defendant misleads the elector's decision by making a statement of facts contrary to the truth.

E) In light of the legislative intent of the provision of this case, the concept of ‘distort of the above fact', which is defined in the provision of this case, is distinguished, but it cannot be deemed that there is an exclusive or selective relationship that cannot be excluded from the concept of ‘distort of the fact'. Thus, the above ‘distort of the fact' includes the fact that it is not true in view of the whole to the extent that it makes an accurate judgment of the elector by intentionally distorted the fact, such as hiding or opposing part of the fact.

F) The Defendant’s instruction and demand is not a matter that is subject to the duty to disclose under the law, but whether the Defendant’s part of the remarks constitutes false facts according to the entire content of the Defendant’s statement, even if there is no content to be readily concluded that the Defendant’s falsity was false. Therefore, the Defendant’s statement also constitutes a case where, as to questions asked by Nonparty 3 to verify the involvement in the procedure for hospitalization at a mental hospital against the public official Nonparty 3, the Defendant intentionally distorted or conceals the fact so that it would mislead the elector’s fair and accurate judgment, and as a whole, published the facts contrary to the truth that “the Defendant did not participate in the procedure for hospitalization at a mental hospital with respect to Nonparty 3.”

C. Sub-decision

In the purport of the lower judgment, it is justifiable to have convicted Nonindicted 3 of the violation of the Public Official Election Act, which was based on the publication of false facts related to Nonindicted 3’s involvement in the compulsory hospitalization procedure, among the facts charged in the instant case, and there was no error by misapprehending the legal principles on “public announcement of false facts” under the instant provision.

As above, I express my dissent against the majority opinion.