[1] Whether the crime of aiding and abetting candidates is established where a fact about public life, such as political activities, is revealed

[2] The case holding that although the e-mail and speech contents expressed by a candidate for an election of National Assembly members are about the political activities of the other candidate, they constitute a candidate's secret because they have undermined social evaluation of the value

[1] Even if the contents of the Defendant’s speech are about the political activities of the competition candidate, if the purpose of the Defendant’s campaign speech is not to objectively mention the other party’s political capacity, not to mention the other party’s political capacity, in light of the method and content of the expression, it is reasonable to regard the Defendant as a defamation under Article 251 of the Public Official Election Act. However, in light of the fact that the provision of Articles 58(2), 110, 250, and 251 of the Public Official Election Act is excessively restricted, if the election campaign is excessively restricted, the right to vote as a citizen’s fundamental right is infringed, the establishment of the crime of candidate’s campaign should be determined depending on whether the candidate’s personal value is damaged to the extent that the facts about public life, such as

[2] The case holding that although the e-mail and speech contents expressed by a candidate for an election of National Assembly members are about political activities of the other candidate, they constitute a candidate's secret because they have undermined social evaluation of personal values

[1] Articles 58(2), 110, and 251 of the Public Official Election Act / [2] Article 251 of the Public Official Election Act

[1] Supreme Court Decision 96Do1741 delivered on November 22, 1996 (Gong1997Sang, 137)

Defendant

Gangwon-dominium

Attorney Lee Tae-hwan et al.

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 the period converted by 50,000 won into one day.

To order the defendant to pay an amount equivalent to the above fine.

Of the facts charged in the instant case, the violation of the Public Official Election Act due to prior election campaign and the violation of the Public Official Election Act due to the campaign against candidates on April 5, 2008 are acquitted.

At the time of the election of the 18th National Assembly member on April 9, 2008, the defendant was an attorney-at-law who was going out to the Busan ○○ District and went out without labor.

No person shall defame a candidate, his/her spouse, lineal ascendant or descendant, or sibling by openly pointing out a fact through a speech, broadcast, newspaper, communications, magazine, poster, propaganda document, or any other means, with the intention of preventing a person from being elected or elected.

1. Candidates’ visa related to sending e-mail as of March 12, 2008;

On March 11, 2008, the Defendant, at the election campaign office of the Defendant located in the Busan Metropolitan City, ○○○-gu (detailed address 1 omitted), had Nonindicted Party 1, who was in charge of election campaign manager, as the Defendant’s partner, prepare the e-mail in the title “The attorney-at-law of the Defendant, the reason why ○○○○ is going back to the National Assembly member,” and sent the above e-mail to 19 members, including Nonindicted Party 2, etc., of the ○○ Council, using a computer in the above election campaign office on March 12, 2008.

This e-mail does not seem to have been known of the address of the non-indicted 3 at the time of the election of the National Assembly members, and then read this letter to the non-indicted 3,000's office and then appeal to the non-indicted 3,000's office's non-indicted 1's non-indicted 3's non-indicted 3's non-indicted 2's non-indicted 3's non-indicted 3's non-indicted 1's non-indicted 3's non-indicted 3's non-indicted 3's non-indicted 4's non-indicted 3's non-indicted 3's non-indicted 3's non-indicted 3's non-indicted 1's non-indicted 3's non-indicted 3's non-indicted 4's non-indicted 3's non-indicted's non-indicted 3's non-indicted's non-indicted's non-indicted 4's non-indicted.

As a result, the Defendant slandered Nonindicted 3 by openly pointing out facts through communications for the purpose of preventing Nonindicted 3 candidates from being elected.

2. Candidates' guard related to the ceremony of opening the election campaign office on March 22, 2008;

On March 22, 2008, the Defendant attended the ceremony of opening an election campaign office held at the above election campaign office on March 16, 2008, and made a speech to 50 electorates about the motive and mistake during the 18th election of National Assembly members.

At the time of the above speech, the Defendant: (a) considered that Nonindicted Party 3 was not the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one who was the one of the other; and (b) considered that Nonindicted Party 3 was the one who was the one who was the one who was the one who was the one who was the one.

As a result, the Defendant slandered Nonindicted 3 by openly pointing out facts by means of speech for the purpose of preventing Nonindicted 3 candidates from being elected.

3. A candidate candidate's room in front of the House-Council Center on April 6, 2008;

At around 16:00 on April 6, 2008, the Defendant made a campaign speech to the candidates for the election of National Assembly members of the 18th National Assembly against the surrounding electorates and jus, etc. using sound facilities in front of the Busan ○○-gu (detailed address 2 omitted).

At the time, the Defendant made a statement to the effect that “Non-Indicted 3’s member was faced with the crisis of the defeating four years before the election, and as a member of the election campaign, the former representative was elected to ○○○ and was able to take charge of one party’s own position by getting his election for a member of the election campaign, and Non-Indicted 3’s election for a member of the election campaign. Nonindicted 3’s election for a representative of the election campaign and for a member of the election campaign for a second time is too well known, and as well, Non-Indicted 3’s election for a member of the election campaign was carried out as a personal letter between the Defendant’s candidate and the Defendant’s election for a second time.”

As a result, the Defendant slandered Nonindicted 3 by openly pointing out facts by means of speech for the purpose of preventing Nonindicted 3 candidates from being elected.

4. A candidate's room related to the front rent-free apartment on April 7, 2008;

At around 20:00 on April 7, 2008, the Defendant made a campaign speech to the candidates for the election of National Assembly members of the 18th National Assembly against the surrounding electorates and jus, using sound facilities in front of the Busan ○○-gu (3 omitted).

The reason why Non-Indicted 3 was the internal representative of the Hanna Party at the last time is that it is a Jind's intention. Non-Indicted 3's member was elected to the National Assembly member for the virtue that the former representative of the Park Jong-young had been able to engage in two or more campaign speeches before four years ago, and the election was made to the National Assembly member with the help of the former representative of the Park Jong-young, and even at the time he was made to serve as the presidential representative of the National Assembly member, Non-Indicted 3 was sent to the National Assembly member with the support of the Park Jong-young's Park Jong-sung who was not a member of the National Assembly of Korea, and Non-Indicted 3 was sent to the former representative of the National Assembly member of the Republic of Korea with the help of the latter, and he was sent to the former representative of the National Assembly member of the National Assembly member of the Republic of Korea with the help of the Lee Jong-sik Park."

As a result, the Defendant slandered Nonindicted 3 by openly pointing out facts by means of speech for the purpose of preventing Nonindicted 3 candidates from being elected.

1. Each legal statement of the witness, Nonindicted 2, Nonindicted 5, Nonindicted 6, and Nonindicted 7

1. Some of the statements made by the prosecution against the accused in the examination protocol of suspect;

1. Each police statement made against Nonindicted 8 and Nonindicted 9

1. A written accusation;

1. Statement of the examination of the witness of the case 2008 Gohap449 as to Nonindicted 8

1. A copy of the prosecutor examination protocol regarding Nonindicted 1

1. Each investigation report (printed copies of online newspaper articles, election promotional materials, stenographic records of the National Assembly, printed copies of e-mail, recording records, copies of indictment, etc.);

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 251 of the Public Official Election Act (Selection of Fines)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (the severe penalty for concurrent crimes prescribed in the Public Official Election Act on March 22, 2008)

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. The defendant and his defense counsel are established only when a candidate slanders a candidate's private life by pointing out facts. The e-mail and speech contents of the judgment are related to the candidate's personal body as a candidate's official seal, and thus, the crime of non-candidate defense is not established.

Even if the defendant's speech is about the political activities of the competition candidate, if the other party's political capacity is not mentioned objectively, but the purpose is not personal, it is reasonable to view that the defendant's speech constitutes a slander under Article 251 of the Public Official Election Act (Supreme Court Decision 96Do1741 delivered on November 22, 1996).

However, Article 58(2) of the Public Official Election Act provides that, in principle, free election campaigns shall be guaranteed, and only prohibited or restricted acts under this Act or other Acts shall be prohibited. ② Article 110 (Prohibition of Slanders against Candidates, etc.) of the Public Official Election Act provides that “No person shall publish false facts about the place of birth, status, occupation, career, property, personality, conduct, organization to which he belongs, etc. for election campaigns, or slanders privacy by openly pointing out facts,” and as a corresponding penal provision, there are crimes of publishing false facts under Article 250 of the Public Official Election Act and crimes of soliciting candidates under Article 251 of the Public Official Election Act. Unlike the language of the above prohibition provision, Article 251 provides that “Any person who defames a candidate, etc. by openly pointing out facts, shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding five million won, but shall not limit the scope of “non-party” as a candidate’s private right to privacy, and shall be determined in essence of the scope of punishment of candidate’s private right to public activities.

In addition, even if a statement of opinion and a statement of fact are mixed in the statement about a candidate, it is necessary to determine whether a candidate slanders by pointing out the facts as a whole, and it is not possible to separate the statement of opinion and fact from the statement of opinion and fact to discuss whether a crime is established (see Supreme Court Decision 97Do956 delivered on June 10, 197).

According to each evidence presented in the aforementioned guilty evidence, the defendant sent a reply to Nonindicted 3 member to be able to win a e-mail and to give his e-mail to the winner, as stated in the judgment of the court," and “Nonindicted 3 member is a person who has been subject to power on a typical basis,” and “In the presidential candidate election who has been punished in the year, this is considered to be the e-mail screening.” The defendant asked Nonindicted 3 member of the National Assembly to appear to be the e-mail screening. This was sent several times to the defendant’s office and tried to help the defendant to win an election. While holding the e-mail, the above promise promised to be held responsible for the defendant’s candidate to receive an e-mail.” Nonindicted 3 member of the e-mail sent to the defendant’s office, “The e-mail reply to Nonindicted 3 member of the e-mail has not yet been recognized as his e-mail or his e-mail that he had not been held liable for his e-mail.”

Examining the above facts in light of the legal principles as seen earlier, the above e-mail and speech contents are to first indicate facts in the presidential election process between the defendant and the non-indicted 3 candidates, and to express the defendant's opinion that it was a stimulious and unresponsibilityed wife. As long as the defendant's expression of opinion is related to the facts indicated, it should be determined whether they are slandered as a whole. Although the above e-mail and speech contents relate to the political activities of the non-indicted 3 candidates, although they are related to the political activities of the non-indicted 3 candidates, they concern the perception that the non-indicted 3 candidates are easily stimulated and have a good character, thereby impairing the social evaluation of the personal values of the counter-party candidates. Accordingly, this part of the defendant and his counsel's assertion is not acceptable.

2. The defendant and his defense counsel asserts that even if the e-mail and speech contents as indicated in the family's ruling constitute the elements of a crime of aiding and abetting a candidate, they are true facts and are related to public interest, and thus, illegality does not constitute crime

In order to eliminate illegality under the proviso of Article 251 of the Public Official Election Act, the facts alleged in the statement should be considered as a whole and consistent with the truth, and from an objective perspective in light of its content and nature, an actor is also related to the public interest for the sake of the public interest. However, even if the public interest is not at a higher motive than the private interest, both exist at the same time and the reasonableness thereof should be recognized (see Supreme Court Decisions 96Do977, Jun. 28, 1996; 2008Do5625, Sept. 11, 2008; 2008Do5625, Apr. 10, 2001; 201Do8333, Apr. 10, 2001).

First of all, there is evidence to prove the truth in relation to the contents that Nonindicted 3 candidate promised to be a proportional representative in the local constituency of Hanra City as evidence to prove the defendant's authenticity in relation to the contents that he promised to be a pro rata 10, Nonindicted 10, Nonindicted 10, Nonindicted 11's confirmation, and Nonindicted 12's legal statement. Of the above Nonindicted 10's statements, Nonindicted 3's election of 17 National Assembly members at the same time as in March 2004 and 4 years later, it is difficult to recognize the credibility of the above portion of the statement made by Nonindicted 10, Nonindicted 10, Nonindicted 100, and Nonindicted 12's testimony, which stated that it is difficult to recognize the credibility of the above portion of the statement made by Nonindicted 10 and Nonindicted 12.

In addition, considering the subjective purpose of the Defendant’s speech, etc., the public interest should also be deemed to have been a motive for providing the right holder with information on the character and ability of the other party candidate, but the private interest to be elected was more important for the other party by slandering the other party candidate. In light of the means of expression and the degree of truth as stated in its holding, etc., the public interest is insignificant and almost private interest is not recognized, and thus, it cannot be deemed reasonable between the two. Thus, this part of the Defendant’s candidate nomination cannot be deemed to be a subjective public interest. Accordingly, this part of the Defendant’s and the defense counsel’s assertion is rejected.

Although the defendant has been punished for the same kind of crime, he stated the facts that may result in the other party candidate's personal vote for the purpose of election. In order to prevent the fairness of election and the infringement of the personal rights of the candidate, the above act of the defendant needs to be punished.

However, the facts alleged by the defendant against the other party candidate are most related to political activities, not privacy, as a whole. Although there are errors in believing that it is true on the basis of some media articles, the fact that the other party candidate's political behavior is highly likely to believe that it is consistent with the public interest, the punishment as ordered shall be determined by taking into account all the circumstances, such as the fact that the disclosure of the other party candidate's political behavior is consistent

1. Preliminary election campaigns;

A. Facts charged

No person shall conduct or have another person conduct an election campaign using any broadcast, newspaper, communication, magazine or other publications prior to the election campaign period.

On February 2, 2008, the Defendant requested an attorney-at-law in the name of "○○○," a representative working for the defendant in Gangnam-gu Seoul (detailed address 4 omitted) to conduct a public opinion on the abolition of the Ministry of Oceans and Fisheries and the theory of responsibility of Nonindicted 3 Council members by using Internet telephone survey companies."

Accordingly, the above attorney around that time entered the Defendant's ID and password on the Internet homepage (www.Monoar.co.m.) operated by the (ww.m.), a company specializing in the telephone survey on the second floor of 403-14 Geumdong, Mapo-gu, Seoul, and entered the contents of the opinion survey after entering the Defendant's ID and password. From March 2, 2008 to March 10, 2008, the above attorney conducted a public opinion poll consisting of 10 items of the above website from March 2, 2008 to March 10, 2008.

The 3 text of the above public opinion poll was composed of 1, 2 and 3 times if the Ministry of Maritime Affairs and Fisheries considers that the dissolution of the Ministry of Maritime Affairs and Fisheries is a very wrong one, 1, 2, and 3 times if he think that it is a little wrong one, and 4 times in the long term about the impact of the dissolution of the Ministry of Maritime Affairs and Fisheries on the revenues of those who work in the ocean, harbor, and fishery among the residents of ○○-gu, and 4 times in the long term, if it is deemed that the dissolution of the Ministry of Maritime Affairs and Fisheries would give a significant compromise, it was composed of 1, 2, and 3 times if it is thought that it would give a little compromise. The 5 sentence was composed of 5 times in the purport that "No. 1, 2, 3 times if it is considered that there is a significant responsibility for the non-indicted 3 members of the National Assembly, who is the vice-chairperson of the Presidential direct acquisition committee for dissolution of the Ministry of Maritime Affairs and Fisheries."

Accordingly, the defendant had the above attorney-at-law conduct an election campaign using communication prior to the election campaign period.

B. Determination

The Defendant denied the facts charged by asserting that the public opinion poll consistently held from the police to the court was conducted by the Defendant by requesting the law firm ○○○ to the attorney-at-law affiliated with the law firm, and that the Defendant did not have participated in specific questions and preparation of answer items.

As evidence consistent with the above facts charged, each of the testimony of the witness Nonindicted 2 and Nonindicted 13, each of the police statements on Nonindicted 2, Nonindicted 14, Nonindicted 13, and Nonindicted 7, the seizure protocol, the accusation protocol, and each of the investigation reports on Nonindicted 2 and Nonindicted 13.

However, each statement made by the above non-indicted 2 can be confirmed to be made up of a door to ask whether Non-indicted 3 is responsible for the dissolution of the Ministry of Oceans and Fisheries or not, and a door to ask whether Non-indicted 2 is responsible for the dissolution of the Ministry of Oceans and Fisheries and whether Non-indicted 3 is supported or not, according to the opinion opinion survey report, it is difficult to conclude that the door to ask questions itself is biased with the answer because all of the above questions presented the academic background and career of the candidates scheduled to be removed and submitted to the Ministry of Oceans and Fisheries.

In addition, this case's public opinion poll was conducted through (ju) Mano Communications as to whether the defendant participated in the question and the preparation of answer items of the above public opinion poll. The public opinion poll was conducted through (ju) Mano Communications. The public opinion poll conducted by the person conducting the public opinion poll to join the company's website, and after entering questions and answers in the column for the preparation of the questionnaire, the fees for use is settled, and all the process was conducted through the Internet as the public opinion poll was conducted without permission if the area and scope of the survey were determined. Due to the characteristics of the above public opinion poll method, the defendant's ID and password were used in the public opinion poll of this case. It is difficult to view that the circumstance that the defendant paid the remaining amount after the law firm employee first paid expenses for the public opinion poll and paid them to the above employee was involved in the preparation of answer items directly by the defendant, and it is insufficient to recognize the above facts charged solely on the basis that the defendant made a legal statement of Nonindicted 13, 14, 13, and 7 respectively.

C. Conclusion

Therefore, this part of the facts charged constitutes a case where there is no proof of crime and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure

2. A candidate guard;

A. Facts charged

No person shall defame a candidate, his/her spouse, lineal ascendant or descendant, or sibling by openly pointing out a fact through a speech, broadcast, newspaper, communications, magazine, poster, propaganda document, or any other means, with the intention of preventing a person from being elected or elected.

(1) A candidate guard related to the opening ceremony of the election campaign office on March 22, 2008

On March 22, 2008, the Defendant attended the ceremony of opening an election campaign office held at the above election campaign office on March 16, 2008, and made a speech to 50 electorates about the motive and mistake during the 18th election of National Assembly members.

At the time of the above speech, the Defendant presented one picture without any further explanation as to the false horse politics. In light of the election campaign materials held by Nonindicted 3 candidates 4 years prior to the election campaign materials, ○○ is made up of the Republic of Korea as the island of information arnest Korean, creation of a franctic base in connection with the lotd, sandfranc’s high-class house at ○○○○○, which is bucking off, and returned the same third-class reclaimed land to the ○○○ residents. It is said that the Defendant offered this mar and sent ○○○ residents, not the typical form of the false horse politics, and that if the five-line senior National Assembly members were to develop ○ when it comes to the 5-line senior National Assembly members, it would be delivered to the home, and that the election announcement would be harsh and harsh.”

As a result, the Defendant slandered Nonindicted 3 by openly pointing out facts by means of speech for the purpose of preventing Nonindicted 3 candidates from being elected.

(2) A candidate candidate's room related to the front rent of an Aon-gu apartment on April 5, 2008

At around 17:00 on April 5, 2008, the Defendant made a campaign speech to the candidates for the election of National Assembly members of the 18th National Assembly against the surrounding electorates and jus, using sound facilities in front of the Busan ○○-gu (3 omitted).

At the time, the defendant presented a technical proposal that it is possible for the Busan City Mayor to construct high-priced roads without the consent of the members of the ○○○ National Assembly. In the last year, the Busan City Mayor and Nonindicted 3 members of the Busan City City would be confused with each other, and the present Busan City Mayor and Nonindicted 3 members agreed that the budget of KRW 40 billion for the construction of the underground roads should be added, and the present Busan City Mayor and Nonindicted 3 members would proceed with high-priced roads because they would be in the process of designing high-priced roads at the company called the Uuscoinal, which is currently in progress, because the election of the members of the National Assembly is different, and how to believe that the promise would be cancelled."

As a result, the Defendant slandered Nonindicted 3 by openly pointing out facts by means of speech for the purpose of preventing Nonindicted 3 candidates from being elected.

(3) A candidate candidate's room related to the front rent of an Am-gu apartment on April 7, 2008

At around 20:00 on April 7, 2008, the Defendant made a campaign speech to the candidates for the election of National Assembly members of the 18th National Assembly against the surrounding electorates and jus, etc. using sound facilities in front of the Busan ○○-gu (S○○ (5 omitted).

At the time of June 207, the Defendant recruited a technical proposal to build 00 billion Busan City, and there are six high-priced companies, and one of them is a design company with a large scale of the third size in the Republic of Korea, i.e., the Drawing Comprehensive Technology Corporation. The design company submitted a proposal to high-priced companies, but the rest companies voluntarily denied the proposal. However, the Drawing Comprehensive Technology Corporation announced that “We have well known laws and regulations and regulations, and if the underground tea is constructed, money will be more than 40 billion won,” and it would be 40 billion won high-priced market, so it would be possible for the ○○○○○○ Office to make the additional budget to make it possible for the 40 billion Busan National Assembly members to make the same as the result of its examination.”

As a result, the Defendant slandered Nonindicted 3 by openly pointing out facts by means of speech for the purpose of preventing Nonindicted 3 candidates from being elected.

B. Determination

As stated in paragraph (1) of the decision on the defendant's and defense counsel's assertion, the crime of aiding and abetting candidates under Article 251 of the Public Official Election Act is established when the candidate's statement about the candidate's public activities is subject to public life, such as the candidate's political activity, and the candidate's personal value is damaged to the extent that the candidate's privacy is distorted. This part of the facts charged is that the non-indicted 3 National Assembly member's election pledge presented around April 2004 was complied with, and whether the ○○ residents' connection with the South and North Egrhs of the South and North Egrhs of the ○ residents should be constructed underground. Such remarks about the election campaign pledge and the Busan City's policy are criticism about the candidate's public activities, and there is no assertion or proof that it is false (this case is difficult to see that the non-indicted 3 candidate's personal value was damaged, and therefore it does not constitute a candidate's non-party 1.

C. Conclusion

Therefore, since Article 325 of the Criminal Procedure Act provides that the above facts charged (2) does not constitute a crime, it shall be pronounced not guilty pursuant to the former part of Article 325 of the Criminal Procedure Act, and paragraphs (1) and (3) of the above facts charged shall be pronounced not guilty pursuant to the former part of Article 325 of the Criminal Procedure Act, but as long as it is found guilty of the violation of each

Judges Choi Jae-chul (Presiding Judge) and Park Jae-hee