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The prosecutor's appeal is dismissed.
Reasons
1. The comments on the attached list of crimes on which the defendant posted the purport of the grounds for appeal (hereinafter referred to as “instant comments”) shall not be evaluated differently in light of the following: (a) the content of the comments may be proven by evidence; and (b) the statement of fact shall be deemed a statement of fact; and (c) the short statement of conjecture or the credibility of the author is low.
Therefore, the judgment of the court below which acquitted the defendant is erroneous in misconception of facts or misapprehension of legal principles.
2. The judgment of the court below is just and acceptable. A.
There is a face to be difficult to regard it as a “statement of fact”.
1) The term “statement of fact”, which is a major constituent element of a crime of campaign speech against a candidate under Article 251 of the Public Official Election Act, refers to a report or statement on a specific past or present fact, time and space, as a concept to substitute for an expression of opinion that contains a value judgment or evaluation. Therefore, if an expression of opinion is simply an abstract judgment or a sacrificous appraisal that lowers a person’s social evaluation without a specific fact, it cannot be deemed that the expression constitutes the above constituent element. However, in order to distinguish whether an expression of opinion is “report on facts” or “an expression of opinion,” the determination shall be made by taking into account not only the possibility of proof of the expression, but also the overall circumstances, such as the ordinary meaning and usage of the language used in the expression, the context in which the expression was used, social situation in which the expression was used, etc., and if the expression of opinion and a statement of fact are mixed, it shall be determined by considering it as a whole and by considering it as a whole (see, e.g., Supreme Court Decision 2004Do2061318.
(1) The parts of the content themselves are weak.