[1] Legislative intent of Article 250 (1) of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts

[2] The meaning of "regular academic background" under Article 250 (1) of the Act on the Election of Public Officials and the Prevention of Election Illegal Act, and whether the academic achievement has been completed in a graduate school which has no restriction on academic achievement for admission constitutes "regular academic achievement" (negative)

[3] Whether the expression "A university's general director of a graduate school" in the election campaign bulletin and campaign poster constitutes a case where the academic background other than the regular academic background under Article 250 (1) of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts is posted (affirmative)

[1] Article 250(1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election Act provides that the fair election of candidates shall be guaranteed by publicly announcing false facts about candidates, etc. in favor of candidates for the purpose of being elected or having them elected, and punishing all acts that affect the fair judgment of electors. The above provision aims to prevent the provision of accurate judgment data on candidates in order to ensure fair judgment of candidates for the election.

[2] The term "regular academic background" under Articles 250 (1) and 64 (1) of the Act on the Election of Public Officials and the Prevention of Election Malpractice refers to the academic background (such as school history) of a school as it is in its meaning in advance. Thus, schools under the provisions of the Elementary and Secondary Education Act and the Higher Education Act (including the former Education Act pursuant to the Addenda), such as kindergartens, elementary schools, civic schools, high schools, high school, high school, high technical schools, special schools, universities, colleges, universities, junior colleges, air and correspondence colleges, graduate schools, and all kinds of schools attending, retired, completed, or attended, or attended, are limited to the academic background of a graduate school which can not be seen as being equal to or higher than that of the former level schools, and the provisions of Article 43 (1) and Article 47 of the Elementary and Secondary Education Act, Article 33 (1) of the Higher Education Act and Article 29 (2) of the Higher Education Act provide that entrance qualifications of a university can be deemed as necessary for the next degree course.

[3] The same literature meeting refers to a group of students who have completed the same course at the same school. Thus, the concept of a school's academic achievement has already been spread under the premise of the concept of a school's academic achievement, i.e., ‘the academic achievement'. Even if it is not explicitly stated, all indications that include a regular school or course other than regular academic achievement are prohibited from publishing the academic achievement and ability of candidates in accordance with the purport of Article 250 (1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election Act. It is reasonable to view that all indications that include a regular school or course other than regular academic achievement are expressed in a way that is likely to seriously increase the candidate's performance and ability to influence the fair decision on the elector's voting. Thus, it can be said that the election campaign bulletin and campaign poster are identical to a description of graduation, retirement, completion, school attendance, school attendance, etc.

[1] Articles 250 (1), 64 (1), and 64 (2) of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [2] Articles 250 (1), 64 (1), and 64 (3) of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [3] Articles 250 (1) and 64 (1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [

Defendant

Prosecutor

Seoul District Court Decision 98Gohap732 delivered on September 17, 1998

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 800,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for a period calculated by converting 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of the facts charged

The defendant, as a member of the Dongjak-gu Seoul Dongjak-gu Council, was a candidate re-satisfing in the election of a member of the same Gu Council of Dong-si local election, which was implemented on June 4, 1998, and for the election to be elected;

On May 22, 1998, the Dongjak-gu Seoul Metropolitan Government Nowon-gu Election Commission was submitted to the Dongjak-gu Seoul Election Commission on 47-2 of 26th of the same month, and published false information by inserting the academic background other than the regular academic background recognized by the Higher Education Act for election campaign in propaganda posters and election campaign bulletins, including 17 posters posted in the same constituency and 6,180 election campaign bulletins sent to voters and 6,180 election campaign bulletins sent to voters.

2. Summary of the reasoning of the judgment below

The fact that the defendant's highest manager's course of research at a graduate school for social development of various universities or a graduate school for a graduate school for a graduate school for a graduate school for a graduate school for a graduate school for a graduate school for which he was in progress falls under a regular academic background under Article 29 (2) of the Higher Education Act, and the contents of the defendant's publication do not constitute a case where the defendant posted an academic background other than the regular academic background under the Election Act. Even though the above course of study falls under an academic background other than regular academic background, the contents of the defendant's publication, such as "director of the general meeting of the graduate school for social development," "director of the general meeting of the graduate school for a graduate school for a graduate school for a graduate school for a student," and "director of the general meeting of the graduate school for a graduate school for a year" on the election campaign bulletin and propaganda posters

3. Summary of grounds for appeal;

The defendant's completed the course of a graduate school and it is clear that it is not a regular academic background prescribed by the Higher Education Act because only a person with bachelor's degree is not a qualified graduate school, and the defendant stated that he is a director of a school club as a director of a graduate school without stating a high school retirement academic background is based on the premise that he completed or graduated from the course of a graduate school. Thus, the judgment of the court below which acquitted the defendant on the ground of Paragraph 2, which is erroneous in the misapprehension of the legal principles on the publication of an academic background other than the regular academic background prescribed by

4. Determination

A. Purpose of the crime of publishing false facts under Article 250(1) of the Election Act

Article 250(1) of the Election Act provides for ensuring the fairness of election by publicly announcing false facts about candidates, etc. in favor of candidates for the purpose of being elected or having them elected, and punishing all acts that affect the fair judgment of electors. The above provision is intended to prevent the source of provision of accurate judgment data on candidates, if it is necessary to provide accurate judgment data on candidates in order to ensure the fair judgment of candidates for the election.

B. Alteration of the scope of punishment for the crime of publishing false facts related to academic background and the interpretation thereof

(1) Article 250(1) of the Election Act, prior to the amendment by Act No. 5127 of Dec. 30, 1995, punish a person who published or made another person publish false facts about a candidate’s affiliation, status, occupation, property, career, etc. In other words, the candidate’s academic background was punished only when the candidate published false facts about the candidate’s academic background. For example, even though he completed the “the highest manager’s course at the university’s management graduate school,” published “the academic background and career column of the poster for public relations purposes” in the poster for the purpose of election, it is punished as a crime of publishing false facts (see Supreme Court Decision 96Do2596, Jan. 24, 1997). However, if it was inserted as “the completion of the course of the highest manager at the university’s management graduate school,” it did not constitute a crime of publishing false facts in the Election Act at the time.

(2) However, a provision was newly established on December 30, 1995 that, if a public course, other than a regular course under the Educational Act, or other course is completed, it would affect the elector’s choice and voting process, if the curriculum is not accurately stated, it would affect the elector’s voting process. In addition to the regular academic background recognized by the Education Act, if a public course, other than the regular academic background, is inserted, it would be deemed that the false fact is published. Under this provision, in the above case, it would be punished by stating not only “the completion of the course at the university management graduate school,” but also “the completion of the course at the graduate school management graduate school at A” as well as “the completion of the curriculum at the university management graduate school.” However, it was not punished if the curriculum name and the period of study are accurately stated, for example, “the highest graduate school manager at A university management graduate school (six months).”

(3) Article 250(1) of the Election Act (amended by Act No. 5262, Jan. 13, 1997; Article 250(1) of the former Election Act (amended by Act No. 5262) further expanded the subject of punishment. In other words, where the former Election Act publishes the history of taking courses other than regular academic background recognized by the Education Act, the name of the curriculum and the period of education shall not be stated; where the same is inserted in a foreign country equivalent to the regular academic background recognized by the Education Act; and where the same is inserted in a foreign country, the name of the curriculum, the period of education, and the number of academic degrees obtained at the time of acquiring the degree is not indicated; and where the same is stated in a false educational background, it is clearly added to the subject of punishment. Article 64(1) of the former Election Act (Article 64(1) of the same Act). In other words, even if the same is included in the curriculum, the term of education should be stated in the graduate school manager’s curriculum, other than the prescribed by the Education Act.

(4) On November 14, 1997, the amended Election Act amended "the affiliation, status, occupation, property, career, etc. of a candidate" under Article 250 (1), "candidate, his spouse or lineal ascendant, descendant, or sibling's affiliation, status, occupation, property, career, etc." and on April 30, 1998, the amended Election Act amended "the Education Act" as "the Elementary, Secondary and Higher Education Act".

(c) Regular academic background;

(1) In light of the legislative intent of Article 250(1) of the Election Act, the term "career, etc." means past experience of a candidate for public office or a person who intends to be a candidate, such as actions or private matters, which may affect fair decision-making with respect to elector's voting, that is, matters that are likely to have an influence on the elector's fair decision-making, such as the candidate's performance and ability, and that are likely to have an influence on the elector's fair decision. Specifically, in light of the provisions of Article 64(5) of the Election Act, it is reasonable to see that "career, academic background, degree, or reward" means "career, academic ability, or punishment.

In addition, the term "regular academic background" in Article 250 (1) and Article 64 (1) of the Election Act refers to the academic history (such as history) which has been taught in accordance with the provisions of "regular" as it is in a prior meaning. Thus, it refers only to the academic history that has been graduated, withdrawn, completed, or attended by a kindergarten, an elementary school, a civic school, a high school, a high civic school, a high technical school, a special school, a university, an industrial college, a teachers' college, a teachers' college, a junior college, a junior college, a technical college, a graduate school, a graduate school, and various schools.

Meanwhile, each of the above Acts provides that the requirements for admission to a school shall be met by allowing a graduate school to enter the next step with the former or higher academic background (Presidential Decree No. 1565, Feb. 24, 1998) (Article 43(1), Article 47 of the Elementary and Secondary Education Act, Article 33(1), and Article 33(2) of the Higher Education Act). Article 29(2) of the Higher Education Act provides that "a graduate school may establish a research course which does not grant an academic degree as needed in addition to a degree course." Article 29(3) of the Higher Education Act provides that "the matters necessary for the type, degree course, research course, and operation of a graduate school established at the university shall be prescribed by Presidential Decree." However, even if a graduate school is admitted to a graduate school under the Higher Education Act, there is no provision on necessary matters concerning the qualifications for admission to a graduate school course and the period of completion of its curriculum, etc., it can be deemed that a person has no qualifications for admission to a graduate school or higher than 6(Article 4) of the Higher Education Act.

(2) According to the records, the Defendant’s three-year mid-term retirement from the Full Fisheries High School, and the Defendant’s research process of the Central University Social Development Graduate School of Korea and the fact that the Defendant has six-month education in the highest graduate school manager’s course of six-month education. In light of the above, each of the above courses is a research course that does not meet the qualification requirements for admission that is above either a certain one or bachelor’s degree. Thus, the records of the Defendant’s education in each of the above courses cannot be deemed as the regular academic background prescribed in Articles 250(1) and 64(1) of the Election Act.

(d) Publication of educational background, other than regular academic background;

(1) According to the records, the Defendant’s regular academic background up to the retirement of the instant propaganda poster and the instant election campaign bulletin from the middle school of full-scale fisheries, without stating any matter, can be acknowledged that the Defendant stated that the instant propaganda poster and the instant election campaign bulletin are the directors of the 'general social development graduate school', and the 'director of the 'general meeting of the 'general meeting of the 'general meeting of the 'general meeting of the 'general meeting of the 'general meeting of the 'general meeting of the management graduate school of annual households' (the

(2) The same literature meeting refers to a group of students who have completed the same course of the school, and thus, it is clear that the concept of ‘academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic academic

E. Sub-committee

Therefore, the defendant, who has the academic background of early retirement from high school, stated the "director of the general meeting of the graduate school for social development", and the "director of the general meeting of the graduate school for annual households" on the propaganda poster and election campaign bulletin of this case, constitutes a case where the defendant posted the academic background other than the regular academic background recognized by the Higher Education Act. Therefore, it is reasonable to discuss the appeal

5. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

Criminal facts

The Defendant, as a member of the Dongjak-gu Seoul Metropolitan Council on June 4, 1998, was a candidate re-satisfed in the election of a member of the Dongjak-gu Council of the Dongjak-gu Seoul Metropolitan Government National District Election, and the Defendant’s history of having completed the research course of the Central University Social Development Graduate School and the highest manager course of the graduate school management of the research school of the National University, is not a regular academic background recognized by the Higher Education Act, but a propaganda poster and election campaign bulletin used for election campaign may not be published except the regular academic background recognized by

On May 22, 1998, the Dongjak-gu Seoul Metropolitan Government Nowon-gu published the Defendant's propaganda posters 17 copies of the Defendant's campaign bulletin, 6,180 copies of the election campaign bulletin, and the Defendant's election campaign bulletin, which were submitted by the Dongjak-gu Seoul Metropolitan Government Nowon-gu Election Commission (Seoul Metropolitan Government Nowon-gu) to be favorable to the Defendant on 6,180 copies of the Defendant's election campaign bulletin, and the Defendant's general director at the graduate school of social development, and the general graduate school association director at the graduate school of the household management, and the above propaganda posters and election campaign bulletins were posted within the fourth constituency of the Seoul Dongjak-gu Seoul Metropolitan Government History or posted them to the voters, and the campaign posters and election campaign bulletins posted as above were made and used for election campaign.

Summary of Evidence

1. Partial statement made by the defendant in this Court;

1. Statement of the defendant in the first trial record of the court below;

1. Each statement of the suspect interrogation protocol of the defendant prepared by the prosecutor (including the statements about the contents of the interrogation protocol, such as the first and second statements, each fact confirmation document attached thereto, each certificate of completion, each propaganda poster, etc., and copies of evidentiary documents);

1. Entry of propaganda posters, photographs, images and the election campaign bulletin register;

1. Statement of an investigation report (including a copy of the answer letter of central line, cross-defensive body attached thereto) prepared by the assistant chief public prosecutor's office in Seoul District Public Prosecutor's Office;

Application of Statutes

1. Relevant Article of the Act and the choice of punishment for the crime;

Article 250(1) of the Election Act (the fact that the academic achievement other than the regular academic achievement at the time of the market is published, a comprehensive crime), Articles 255(2)1, 64(1), and 65(1) of the Election Act (the fact that the method of posting propaganda posters and election campaign bulletins at the time of the market is violated, a comprehensive crime is committed)

2. Competition;

Articles 40 and 50 of the Criminal Act (Punishmenting any punishment specified for a crime of publication of educational background other than the regular academic background stated in the judgment heavier than that of the punishment, and selecting a fine)

3. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

4. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Grounds for sentencing

① The Defendant’s act as a director of the Central University Social Development Graduate School (1 year) and the graduate school’s research course (6 months) is true. ② There may be controversy as to whether the entry in the instant case constitutes the publication of any other academic background than regular academic background. Despite the fact that the election law is true, regulating the publication and publication of other academic background than regular academic background is subject to legislative and policy restrictions on freedom of election campaign under the Korean style with emphasis on academic background, and such violation is deemed to have a weak criminal nature and strong criminal nature. ③ The Defendant raised an objection to the publication of other academic background than regular academic background before the instant election, and (4) the Defendant’s act of faithfully carrying out the election in the National Election Commission’s corrective public announcement at the National Election Management Committee, including the Defendant’s age, career, motive, means, result, etc.

It is so decided as per Disposition for the above reasons.

Judges Kim Tae-hwan (Presiding Judge)