[1] The standards for determining whether acts such as the distribution and posting of documents and drawings under Article 93(1) of the Public Official Election Act are merely ordinary, ordinary, and social acts or acts of evasion of the law with the purpose of influencing the election

[2] The case holding that a massive dispatch of text messages to several electors, including persons who are not directly related to the above candidate or opening ceremony, to inform the general ceremony of opening the election office of a National Assembly member preliminary candidate, constitutes an act to influence the election

[1] In determining whether an act such as the distribution and posting of documents and drawings under Article 93(1) of the Public Official Election Act is merely ordinary, ordinary, and social acts or is an evasion of law with a purpose to influence an election, the legislative purpose of the above provision should be reasonably determined in light of social norms, taking into account all the circumstances, such as the time, motive, circumstance, means and method of the act, contents and manner of the act, the situation at the time of the act, etc., in mind, in mind that the legislative purpose of the above provision infringes on the fairness and peace of the election even if the act did not reach an election campaign, and thus, is to promote public interest by blocking such an unlawful act.

[2] The case holding that the act of sending text messages to several electors, including persons who are not directly related to the above candidate or opening ceremony, in large amounts, is not merely an ordinary, ordinary, and social behavior in light of the overall circumstances such as the time, motive, method, contents, and attitude of sending text messages, and rather, it constitutes an act of securing a favorable location in the election or election by inducing the above candidate's personal guidance and support.

[1] Article 93 (1) of the Public Official Election Act / [2] Article 93 (1) of the Public Official Election Act

[1] Supreme Court Decision 2004Do8969 Decided June 23, 2005 (Gong2005Ha, 1285) Supreme Court Decision 2004Do8716 Decided March 24, 2006

Defendant

Prosecutor

Daejeon High Court Decision 2008No531 Decided February 5, 2009

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

Determination as to whether acts such as the distribution and posting of documents and drawings under Article 93(1) of the Public Official Election Act are ordinary, ordinary, and social acts or acts committed for the purpose of influencing an election is an evasion of the law, the legislative purpose of the above provision should be made reasonably in light of social norms by taking into account all the circumstances, such as the timing, motive, circumstance, method and method of the act, contents and manner of the act, situation at the time of the act, etc., in mind, in mind that the legislative purpose of the above provision infringes on the fairness and peace of the election even if the act does not reach an election campaign even if it does not reach the election campaign period, and thus, it is intended to promote the public interest by blocking such an unlawful act (see Supreme Court Decision 2004Do8969, Jun. 23,

According to the evidence duly adopted, the court below acknowledged that the defendant sent text messages to the Dong-gu, Daejeon-gu mobile phone number of 9,308 electors using the text messages to the 9,308 mobile phone number, including the following facts: (a) although it is found that the contents of text messages are merely merely informing of the election office's opening, and it does not include all matters that may affect the election, such as requesting the support of the non-indicted; (b) most of the text messages are sent to the general party members and the responsible party members, or other non-indicted non-indicted's general social life from the elementary school to the university; (c) the defendant asked the head of the competent election commission in advance to find out that the defendant's act of sending the text messages to 00 ○○ party or the party members or the party members on duty could not have any influence on the election; and (d) the defendant's act of sending the text messages to 00 ○ party or the party members on duty by taking into account the following circumstances: (d) the defendant's act of sending the text messages to the election campaign.

However, we cannot accept the above determination by the court below for the following reasons.

According to the evidence duly adopted by the court below, the non-indicted 1 was under low recognition compared to other candidates at the time of sending the above text messages. The defendant himself recognized that the above large amount of text messages were sent to enhance the non-indicted 1's awareness. Even if according to the defendant's prosecutor's investigation process, at least 500 persons among the persons subject to the defendant's prosecutor's investigation process are Dong-gu residents who notified the non-indicted 1's mobile phone numbers for election campaign, and 92 persons among the persons subject to the defendant's text messages were extracted from the police, and there are no 00 party members and there is no friendly relation with the non-indicted 1's above statement. The non-indicted 1 was merely a relation between the above non-indicted 1's office and the non-indicted 8's office's daily election campaign office's daily election campaign office's daily election campaign report's use of text messages, and it was hard to see that the defendant's daily election campaign party's use of text messages was limited to the above 9's general election campaign person.

Nevertheless, the judgment of the court below that the defendant's act of sending text messages is merely an ordinary, ordinary, or social behavior in social life, is erroneous in the misunderstanding of legal principles as to the requirement of "in order to affect the election" under Article 93 (1) of the Public Official Election Act, and it has affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)