2014Gohap552 Violation of the Public Official Election Act

A person shall be appointed.

Eins (Lawsuits) Eins (Public Trial) and Maaps (Public Trial)

Attorney B (Korean National Assembly)

November 7, 2014

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of the facts charged

On June 4, 2014, the Defendant registered the Busan Frando as a preliminary candidate for the fourth district party Cparty Busan Busan City City Council member at the 6th nationwide local election, which was implemented on June 4, 2014. However, on April 29 of the same year, the result of the intraparty competition, which was followed by the vote of the responsible party members and the public opinion polls on telephone, failed to obtain recommendations as a candidate for C Party.

In order to prevent any election in connection with the intra-party competition, any false fact shall not be published or made public with respect to any candidate for the intra-party competition, his/her spouse, lineal ascendants or descendants or siblings, in a manner unfavorable to any candidate for the intra-party competition by means of any speech, broadcasting, newspaper, communication, magazine, poster, propaganda document or other means.

In fact, the Defendant participated in the election of the 19th National Assembly members in 2012, the 18th presidential election, and the 2013 Busan Young-gu National Assembly members election at the time of the 2013 Busan Young-do National Assembly members election, and did not enter the C Party for the sake of the security of a specific person.

4. 13. 14 : 37경 부산 사하구 E건물 4층에 있는 피고인의 사무실에서 부산 사하구 다대 · 장림지구 C정당 책임당원 558명 및 피고인의 지인들에게 ' 저와 다른 예비후보자 두분은 당을 위해 정말 충성하고 헌신한 분들입니다. 총선 때는 떠지지 않는 눈을 비비며 새벽부터 밤늦도록 목이 터져라 연설을 하며 지역 구석구석을 순회를 하였고, 대선 때는 새벽 찬바람을 맞으며 손을 비비고 발을 동동 구르며 F 당선에 일임을 하였고 , 국회의원 보궐선거땐 영도를 드나들며 선거지원을 하였으며 아울러 봉사와 정당활동에 열심히 하였으며 당원배가에도 노력을 다하였습니다. 그런데 해당행위를 하며 이 모든 행사에 얼굴 한 번 내밀지 않던 인사 ( D ) 가 당 선거에 같이 임하게 되었습니다. 지금 시중에 떠도는 흉측한 소문은 어떤 인사의 안위를 위해 야합으로 이 인물 ( D ) 을 영입했다는 소문이 파다합니다 ' 라는 내용의 문자메시지를 발송하였다 .

Accordingly, the defendant published false facts about D, which is disadvantageous to the above D, by means of communication, for the purpose of preventing the election in connection with the intra-party competition.

2. The part, except for the part of "the face of the defendant and his defense counsel" that was not sealed once in all these events, is nothing more than the defendant's opinion, and it does not constitute false facts.

3. Determination

A. Determination on the part "" that "a person who does not keep his face once in this exercise becomes the same as an election for a party"

Article 250 (2) of the Public Official Election Act provides that the term "a false fact" means a matter that is not consistent with the truth and is sufficient enough to have the elector correct judgment on candidates. However, in a case where the important part is consistent with the objective facts in light of the overall purport of the published fact, if there is a little difference from the truth or some exaggerated expressions, it cannot be deemed that there is a false fact (see Supreme Court Decision 2009Do26, Mar. 12, 2009).

Furthermore, since the crime of publishing false facts is a constituent element of the crime of publishing false facts, it is difficult for an actor to recognize that the matter is false. The existence of such subjective perception is difficult to know or prove it outside of the country due to its nature. Thus, it is inevitable to determine by comprehensively taking account of various objective circumstances such as the Defendant’s academic background, career, social status, process of publication, time of publication, expected ripple effect, etc. (see Supreme Court Decision 2005Do2627, Jul. 22, 2005).

In full view of the following circumstances revealed in the process of the instant trial, i.e., ① the structure of text messages was expressed by comparing D candidates and other candidates in relation to the election activities for the party, ② whether each candidate has participated to a certain extent in the election activities for the party, ③ the details of the Defendant’s participation in the election activities for the party, such as the general election, the presidential election, and the status within the party, ④ the details of the election activities conducted by D candidates in the general election or presidential election, and the Defendant’s perception as to the details and contents of the election activities conducted by D candidates, etc., the portion of the instant facts charged is merely an exaggerated expression of the contents that D did not actively engage in the election campaign for the party, and there is no evidence to prove that it constitutes false facts under the Public Official Election Act or that the Defendant has recognized the fact of publication of this case as false, there is no evidence to prove otherwise.

B. Determination on the part of the phrase "a written action in which the person was entered into the Republic of Korea for the sake of the security of any person"

The term "public announcement of facts" in the crime of publishing false facts under Article 250 (2) of the Public Official Election Act refers to a report or statement on the past or present facts in a time and space, and the contents of the report or statement are able to be proved by evidence, as a concept substitute for an expression of opinion with respect to a value judgment or evaluation (see Supreme Court Decision 2006Do8368, Mar. 15, 2007). In distinguishing whether the statement of decision is a fact or an opinion, it shall be determined by considering all the circumstances such as the ordinary meaning and usage of the language, possibility of proof, the context in which the expression in question was used, social circumstances in which the expression was made (see Supreme Court Decision 2006Do8368, Mar.

The following circumstances revealed during the hearing of the instant case, i.e., ① the facts charged in the instant case

In full view of the fact that the phrase “a written action in which he/she entered this person in a way that he/she has published it in a way that he/she has published it in a way that he/she has published it in a way that he/she has published it in a way that he/she has published it in a way that he/she has published it in a way that he/she has published it in a way that he/she has published it in a way that he/she has published it in a way that he/she has received it in a way that he/she has published it in a way that he/she has received it in a way that he/she has received it in a way that he/she has received it in a way that he/she has received it, and it seems that there is a situation that can know the specific fact that the above part can be seen as having presented his/her personal assessment or opinion about whether a candidate is eligible to participate in the intraparty competition.

4. Conclusion

Thus, the facts charged of this case constitute a case where there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment against the defendant under Article 58 (2) of the Criminal Act shall be publicly announced as per Disposition

The judge shall be a new judge of the presiding judge.

Judge Lee Inven

Judges Il-il