[1] The meaning of "fact-finding about a candidate" under Article 250 (2) of the Public Official Election Act

[2] Whether the crime of publishing false facts under Article 250(2) of the Public Official Election Act is established solely on the ground that a subjective purpose was to interfere with the candidate's election (negative)

[3] The case holding that it is difficult to view that the contents of a paroster posted on the Internet website for the purpose of interfering with the election of the candidate for a specific political party's Seoul City Mayor were not directly related to the above candidate, and thus, it is difficult to publicly announce

[4] In a case where a notice of a document using an information and communications network falling under Article 82-4 (1) of the Public Official Election Act violates the restriction under Article 82-4 (2), whether it may be punished pursuant to Articles 93 (1) and 255 (2) 5 of the same Act (negative)

[5] The meaning of "an act of slandering a candidate by pointing out facts" under Article 251 of the Public Official Election Act, and whether it includes matters concerning the party to which a candidate belongs or the personnel management of such party (negative in principle)

[6] The case holding that since the contents of a fashion posters posted on the Internet site for the purpose of interfering with the election of a candidate for a specific political party's Seoul City Mayor, as to the above representative habit case of the above political party, merely expressed the above case as if the above party was a political copier operated by the above political party, it cannot be deemed that the above act of posting against the candidate was not referred to

[7] The meaning of "public disclosure of facts" in the crime of publishing false facts under Article 250 (2) of the Public Official Election Act and the meaning of "public allegation of facts" and the criteria for determining the facts under Article 251 of the same Act

[1] Among the "facts about candidates" under Article 250 (2) of the Public Official Election Act, indirect facts such as facts about candidates themselves as well as facts about a political party to which a candidate belongs or the personnel affairs of a political party to which a candidate belongs, where the facts directly related to the candidate and the publication thereof are in the nature of hindering the candidate's election, they constitute facts about the candidate. However, if the facts announced are not directly related to the candidate and do not directly affect the candidate's election, it shall not be included in facts about the candidate.

[2] The crime of publishing false facts shall be objectively determined whether the act satisfies the requirements of establishment under Article 250(2) of the Public Official Election Act, and the establishment thereof shall be recognized. The mere fact that there was a subjective purpose to interfere with the election of candidates does not necessarily mean that the crime of publishing false facts is established.

[3] The case holding that it is difficult to view that the contents of the paroster posted on the Internet website for the purpose of interfering with the election of the candidate for a specific political party's Seoul City Mayor were not directly related to the above candidate, and thus, it is difficult to view that the facts

[4] The legislative intent of Article 250 of the Public Official Election Act is to ensure the fairness of election by regulating acts that affect the correct judgment of electors by publishing false facts, and the legislative intent of the main text of Article 251 of the same Act is to protect candidates, etc.' honor by regulating illegal acts that undermine reputation against candidates, etc., while the legislative intent of Article 93 (1) of the same Act is to ensure the fairness of election by regulating election campaigns based on the evasion of law in the procedural aspect that does not follow the method prescribed in the Public Official Election Act. Thus, in cases where posting of documents by means of information and communications networks falls under Article 82-4 (1) of the Public Official Election Act, even if the contents of the notice can be punished pursuant to Article 250 of the same Act or the main sentence of Article 251 of the same Act, it cannot be punished pursuant to Article 255 (2) 5 of the same Act by violating Article 93 (1) of the same Act.

[5] "Slandering a candidate by pointing out facts" in Article 251 of the Public Official Election Act refers to the Slandering the candidate by pointing out facts related to the candidate, and includes not only the facts about the candidate itself but also indirect facts that may interfere with the candidate's election. However, as long as matters concerning the political party to which the candidate belongs or the personnel management, etc. of the political party are not closely related to the candidate's election, matters concerning the candidate's political party or the candidate's personnel management, etc. shall not be included in the candidate's

[6] The case holding that since the contents of a fashion posters posted on the Internet site for the purpose of interfering with the election of a candidate for a specific political party's Seoul City Mayor, as to the above representative habit case of the above political party, merely expressed the above case as if the above party was a political copier operated by the above political party, it cannot be deemed that the above act of posting was of slandering the candidate with the above act of posting

[7] The term "public disclosure of facts" in the crime of publishing false facts under Article 250 (2) of the Public Official Election Act and the term "public statement of facts" in the crime of aiding and abetting candidates under the main sentence of Article 251 of the same Act mean the report or statement of facts in the specific past or present, time and space, and the contents of the statement can be proved by evidence. The distinction between whether the statement is a fact or an opinion shall be made by considering the ordinary meaning and usage of the language, the possibility of proof, the context in which the speech at issue was used, the social circumstances in which the expression was made, etc.

[1] Article 250 (2) of the Public Official Election Act / [2] Article 250 (2) of the Public Official Election Act / [3] Article 250 (2) of the Public Official Election Act / [4] Articles 82-4, 93 (1), 250, 251, and 255 (2) 5 of the Public Official Election Act / [5] Article 251 of the Public Official Election Act / [6] Article 251 of the Public Official Election Act / [7] Articles 250 (2) and 251 of the Public Official Election Act

[4] Supreme Court Decision 200Do1696 decided Jan. 25, 2002 (Gong2002Sang, 621) / [5] Supreme Court Decision 76Do282 decided Jun. 26, 1979 (Gong1979, 12050) / [7] Supreme Court Decision 99Do4260 decided Apr. 25, 200 (Gong2000Sang, 1350) Supreme Court Decision 200Do4595 decided Jun. 14, 2002 (Gong2002Ha, 1726), Supreme Court Decision 99Do5190 decided Feb. 26, 2004

Defendant

Defendant and Prosecutor

Law Firm Jeong, Attorneys Park Jong-chul et al.

Seoul High Court Decision 2006No1855 decided Nov. 2, 2006

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. Among the facts about candidates under Article 250(2) of the Public Official Election Act (hereinafter “Act”), indirect facts such as facts about candidates themselves, such as matters concerning the political party to which a candidate belongs or the personnel affairs of such political party, are directly related to the candidate and their publication is of the nature to obstruct the candidate’s election, it constitutes facts about the candidate. However, if the publication is not directly related to the candidate and does not affect the candidate’s credit standing or influence it, it shall not be included in facts about the candidate.

B. According to the reasoning of the judgment of the court below, the court below found the defendant to have published the false facts on the 1st century, which stated in the title of "the counter-terrorism's hinterlands" on the basis of the damp photographs of the representative of Hanra Gara Gara Ga Ga Ga Ga Ga Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do e, for the purpose of interfering with the election of Han-gu, Seoul Special Metropolitan City candidates (Internet site name omitted), and found the defendant guilty of the above Do Do Do Ga Do la Do e, which stated in the name of "the counter-party's surroundings Do Do Do Do e," and the facts of the crime of "the counter-party Do Do Do e," "I Do Do e," which stated the above facts of the crime of "I Do Do e Do Do e Do Do e" as the above.

C. However, in light of the above legal principles and records, it is difficult to accept such judgment of the court below.

First, the crime of publishing false facts is established only on the ground that the act objectively judged whether the act satisfies the requirements of establishment provided for in Article 250(2) of the Act, and the crime of publishing false facts is established only on the ground that the subjective purpose was to interfere with the election of candidates.

However, although the content of the notice No. 1 of this case pertains to the representative of the Korea-Lari and the Korea-Lari beneficiary, it does not include any content that may harm the credibility of the election or influence the election because it is directly related to the candidate of the Korea-Lari decoration, and thus, it is difficult to deem that the facts about the candidate of the Korea-Lari decoration were publicly announced.

In addition, although the notice No. 2 of this case was posted along with the notice No. 1 of this case on a part of the Internet site, the above two are each independent notice which is mixed with other notices, and there are no circumstances that can be viewed as a single notice, such as linking another notice to a single one, and therefore, it cannot be deemed that the notice No. 2 of this case is related to the candidate who issued the notice No. 1 of this case.

Therefore, the court below's determination that the notice No. 1 of this case constitutes the publication of false facts about the candidate for an erroneous decoration. It did not err in the misapprehension of legal principles as to the candidate in the crime of publishing false facts, thereby affecting the conclusion of the judgment. The defendant's ground of appeal pointing this out is with merit.

2. As to the Prosecutor’s Grounds of Appeal

A. The legislative intent of Article 250 of the Act is to ensure the fairness of election by regulating acts affecting the correct judgment of electors by publishing false facts. The legislative intent of the main sentence of Article 251 of the Act is to protect the reputation of candidates, etc. by regulating illegal acts that impair reputation against candidates, etc. as well as to ensure the fairness of election. However, the legislative intent of Article 93(1) of the Act is to ensure the fairness of election by regulating election campaigns based on an evasion of law in the procedural aspect that does not follow the method prescribed by the Public Official Election Act (see Supreme Court Decision 200Do1696, Jan. 25, 2002, etc.). Thus, where the posting of documents using information and communications networks falls under Article 82-4(1) of the Act, it shall not be punished pursuant to Article 250 or the main sentence of Article 251 of the Act, apart from the fact that the notice may be punished pursuant to Article 93(1)5(2) of the Act.

In the same purport, the court below's decision not guilty of the primary charges of this case is correct, and there is no violation of law by misunderstanding the legal principles as to Article 93 (1) of the Act as alleged in the grounds of appeal, which affected the conclusion of the judgment.

B. Article 251 of the Act provides that "a person who defames a candidate by pointing out facts" refers to a person who defames the candidate by pointing out facts related to the candidate, and includes not only the facts about the candidate itself but also indirect facts that may interfere with the candidate's election. However, matters concerning the political party to which the candidate belongs or the personnel management, etc. of the political party shall not be included in the candidate's defamation unless they are closely related to the candidate's election (see Supreme Court Decision 76Do282, Jun. 26, 1979).

The court below held that the notice No. 1 of this case only expresses it as if it was a political work operated by Hanrari party, and it cannot be viewed as a slandering a candidate since it does not mention it. In light of the above legal principles and records, the court below's decision is proper, and there is no violation of law such as misunderstanding of legal principles as to the matters concerning the candidate in the crime of aiding and abetting a candidate, as alleged in the grounds of appeal.

C. The term “public announcement of facts” in the crime of publishing false facts under Article 250(2) of the Act and “public allegation of facts” in the crime of publishing candidate’s visa means both a concept equivalent to an expression of opinion, the value judgment or evaluation of which is spatially and spatially specific past or current facts, which can be proved by evidence. The contents of the expression can be proved by evidence. The distinction between whether a statement is a fact or an opinion should be made by considering the overall circumstances such as the ordinary meaning and usage of the language, possibility of proof, context in which the speech in question was used, social circumstances in which the expression was made (see Supreme Court Decisions 99Do4260, Apr. 25, 200; 200Do4595, Jun. 14, 2002; 9Do5190, Feb. 26, 2004, etc.).

The court below held that the content of the notice No. 2 of this case is merely an expression of opinion about value judgment or evaluation, and it is difficult to view it as an expression of opinion about value judgment or evaluation, even considering its context and circumstances, and therefore, it does not constitute a crime of publishing false facts or a crime of aiding and abetting candidates. In light of the above legal principles and records, the judgment of the court below is just and acceptable, and it does not err in the misapprehension of legal principles as to the publication of facts in the crime of publishing false facts and the statement of facts in the crime of

D. Meanwhile, as seen earlier, the Prosecutor’s ground of appeal alleging that the Defendant’s appeal on the part found guilty was erroneous in the judgment of the court below, insofar as there were grounds for appeal on the part that the court below found guilty, is without merit.

3. Conclusion

Ultimately, the Defendant’s appeal on the part concerning the crime of publishing false facts as to notice 1 among the judgment below is with merit. The Prosecutor’s appeal on the remaining part is without merit, and the part concerning the crime of publishing false facts is in the relation of commercial concurrent crimes with the remaining conjunctive charges, and it is bound to be reversed together with the relation of body identical with the primary charges. Therefore, the judgment of the court below is reversed in its entirety, and the case is remanded to the court below. It is so decided as per Disposition by the assent

Justices Kim Hwang-sik (Presiding Justice)