208Gohap9 Violation of the Public Official Election Act

000 (600000 - 00000), Passengers

Residence 00 000 000 000 000

Reference domicile 000 000 000000

100

March 14, 2008

The defendant shall be innocent.

1. Summary of the facts charged

The summary of the facts charged of this case is as follows: the Defendant: (a) informed the electors of the Chang Cho Chang-gu National Assembly of the fact that he had an influence on the election, and attached it to the Defendant’s house at around 00:00 0000 00000 on October 31, 2007, using a computer and a printer to verify a debate of about 100 minutes of the door-gu MaBC 100: (b) the date and time: at November 11, 200: 17:0 on the same day after he made 20 copies of printed printed materials with the words “,” at around 11:22:00 :00 00 00 00 - from 000 - from 17:00 to 200 - from 17:00 to 180 - from the date of the presidential election to the date of the election; and (c) thereby, the Defendant posted the name of the 17th election to 180 -party election.

2. Determination

(a) Basic rights of the people and their limitation;

In a democratic state that adopts the representative democracy, public officials’ election is an act of exercising their sovereignty, and thus, citizens’ opportunity and freedom to participate in the election should be guaranteed to the maximum extent possible. Although the principle of free election is not explicitly stipulated in the Constitution of the Republic of Korea, it is a legal principle inherent in the election system of a democratic state, and its basis is based on the principle of sovereignty, the principle of parliamentary democracy, and the provisions concerning the political power. Such freedom of election refers to the freedom of expression, the freedom of voting, and the freedom of expression, and further freedom of election campaign. Specifically, the freedom of election is one form of freedom of expression, since the freedom of expression is the one of the freedom of expressing opinions in the election process widely. In particular, the freedom of political expression can function only by freely exchanging political opinions through an election campaign in the election campaign process, and thus, the freedom of election campaign is protected by the freedom of speech, press, assembly and association as stipulated in the Constitution.

However, an election, which is the foundation of democratic parliamentary politics, should not be held fairly at the same time. The fairness of election should be guaranteed in order to prevent rupture elections by means of gold, governmental authority, violence, etc., to minimize socioeconomic losses and side effects that may be caused by the unlimited and excessive election campaigns, and to properly reflect the people’s genuine will. Freedom of election without the fairness of election is not guaranteed equal opportunity for election campaigns. At this point, there is no regulation on election campaigns to a certain extent in order to ensure the fairness of election, and this is the restriction of freedom of election campaigns. Accordingly, the freedom of election campaigns under our Constitution, like other fundamental rights, may be restricted by law only if necessary for national security, maintenance of order, and public welfare pursuant to Article 37(2) of the Constitution, but even if so, the essential contents of the freedom of election campaigns cannot be infringed, and the principle of proportionality should be observed between the purpose of restriction and the method and degree of restriction.

(b) The provisions of Article 93(1) of the Public Official Election Act;

Article 93 (1) of the Public Official Election Act provides that "no one shall distribute, post, distribute, screen, or run an advertisement, letter of personnel management, poster, poster, photograph, document, drawing, picture, printed material, recording, video tape, or other similar things, which contains any content of recommending or opposing a political party (including a preparatory committee for the formation of a new political party and a party's platform or policy; hereafter the same shall apply in this Article) or candidate (including a person who intends to be a candidate; hereafter the same shall apply in this Article) or indicating the name of a political party or candidate in order to influence the election from 180 days before the election day (in cases of a special election, the time when the reason for holding the election becomes final, in the event of the special election) to the election day."

2) The history of the amendment of the legislative purpose of the Election Act has concentrated on efforts to ensure the freedom and fairness of election. The purpose of the enactment of the Public Official Election Act is to eliminate irregularities and corruption in order to realize an election that is needed to ensure clean and money, and to ensure the fairness of free and democratic expression of opinion and election. According to such purport, the Public Official Election Act provides that "any person may freely engage in an election campaign" in Article 58(2) of the Public Official Election Act. However, the same shall not apply to cases where this Act or other Acts prohibit or restrict election campaigns, but the same shall not apply to cases where it is prohibited or restricted by the provisions of Articles 59 through 118 of the Public Official Election Act to prevent acts that are likely to attract by means of force, etc., and to ensure the equal opportunity among candidates so that the subject, period, method, etc. of election campaigns may be restricted to a certain extent, so as to ensure the fairness of election campaigns, thereby establishing complementary provisions for the two legislative purposes of free and fair election.

In addition, Article 93(1) of the Public Official Election Act prohibits a candidate from harming the fairness of election by distributing documents, drawings, printed matters, etc. which are virtually characterized by the election campaign without any restriction on the subject of the election campaign in order to ensure the fairness and equality of the terms and conditions of each candidate. In addition, Articles 64 through 66 of the Public Official Election Act permits only election campaigns by propaganda posters, election campaign bulletins, small printed matters, etc., and imposes certain restrictions on them in order to prevent the lack of meaning of strictly regulated regulations, such as putting certain restrictions on the election, the act of distributing and posting documents, drawings, etc. by unlawful means to influence the election during a certain period before the election day is prohibited. This is to ensure the fair execution and cost of the election campaign, and to ensure the public interest of equal opportunity through this. Article 93(1) restricts the prescribed acts in relation to the election is to prevent unfair competition between the candidates by guaranteeing the freedom and equal opportunity of election as a result of the election campaign under Article 16(1) of the Constitution.

However, as seen earlier, the interpretation of the above purpose has a very important meaning in that it is pursuing harmony of both legal interests through the limited premise of "in order to inevitably restrict the freedom of election campaign of the people", and thus, it has a very important meaning in the interpretation of the above purpose.

Article 93 (1) of the Public Official Election Act (hereinafter "Public Official Election Act"), on the premise that "in order to exercise an influence on election", restriction on acts set forth therein is defined as a purpose-based crime with the purpose of "to exercise an influence on election" as an excessive subjective element other than intentional intent. The purpose of such restriction is not to require positive desire or conclusive recognition, but to be sufficient only with dolusent perception. In this case, it is deemed that all acts performed " even though it is knowing that it has an effect on election" goes beyond the general interpretation on willful negligence and it is unfair, and at least there is a high possibility of an occurrence of the result, it should be determined rationally in light of social norms (see Supreme Court Decision 96Do753, May 31, 1996). Whether there was such purpose should be determined reasonably in light of social status of the accused, the motive and method of the act with the candidate, the candidate or political party, the details and method of the act, the method and attitude of the act, and various circumstances at the time of adjudication.

C. Determination in this case

1) According to the evidence submitted by the prosecutor, the fact that the name of the candidate is written on the poster posted by the defendant is clearly recognized.

2) However, on the other hand, the following circumstances can be acknowledged according to the public trial and records of the instant case.

A) The social status of the defendant

The Defendant, as a member of the Korean Buddhist Cho Jong-sung, has been living in his house located in 0000 00000 and has not been discovered or punished by any act related to the election other than the instant case.

B) Relationship between the Defendant and the candidate, competition candidate or political party

The defendant does not have any personal relationship with any candidate at the time of the presidential election, nor has he joined a political party or social organization.

C) the motive and circumstance, means, and method of the act, and the content and manner of the act;

The Defendant asserts that not only the presidential election but also the fact that the people were in irrelevant to the politics itself from the investigative agency to the present law, and that there was no other intention to allow the residents of the Dong to view the pages verified by contributing to the reliable MaBC 100 minutes debate. For this purpose, the Defendant made a document with “10 minutes of debate conducted on the door-based MaBC 100” at one’s home, followed up 11 November 1, 200, 2000 printing out 20 days at A4, followed up to 000, 0000, 0000, 0000, 0000, 0000, 000, 000, 000, 000, and 00,000, 200,000, and 10,000,000,000,000 won, and more than 5,000,000,00.

3) In light of the circumstances acknowledged in the above 20th election, the following points can be confirmed by the Defendant, namely, ① the Defendant did not have subscribed to a political party or social organization, and there was no way to exchange with people because the Defendant resides in mountain areas, ② the poster attached by the Defendant is not included in the contents of support or criticism, and the broadcast of TV for the purpose of verifying candidates on the door-site in the situation where the people’s political interest is low, and ③ the purchase of the poster attached by the Defendant was also 20 pages, and it is difficult to view that the Defendant’s act of posting the poster to the effect that it was difficult to view that there was a little possibility that the Defendant would have been an active or secret opportunity to view that the Defendant’s act of posting the poster to the same extent as that of the candidate’s public interest, such as posting the poster to the general public at the two pages of the rural areas near the candidate’s dwelling, and rather, it appears that the Defendant’s act of posting the poster appears to have been conducted on an individual basis, rather than that of the above public interest.

3. Conclusion

Therefore, the above facts charged constitute a time when there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure

Judges Jeon Sung-sung

Judges Ocality

Judge Lee Jae-han