[1] The legislative intent and purpose of Article 93(1) of the Public Official Election Act, which prohibits the distribution, posting, etc. of documents and drawings by unlawful means

[2] The method of determining whether an act of posting a letter on Internet Blogs that supports, recommends, or oppose a political party or candidate constitutes “an act of posting a document by unlawful means” and “prior election campaign” under the Public Official Election Act

[3] In a case where a person who did not join an election campaign organization or a political party, etc. with regard to the 17th presidential election takes up articles of opposition to a specific presidential candidate posted on another Internet website more than 12 times during the election campaign period and puts them on his/her website, the case holding that such act does not constitute “an act of posting a document by unlawful means” in violation of Article 93(1) of the Public Official Election Act or “prior election campaign” prohibited under Article 254, in light of all circumstances

[1] Article 93(1) of the Public Official Election Act prohibits an act of distributing, posting, etc. documents, drawings, etc. by unlawful means that influence an election for a certain period before the election day. The purpose of this provision is to prevent the fair and equitable distribution of the candidate’s conditions in an election campaign, such as documents, printed materials, etc., in fact, for the fair and equal purpose, causing unfair competition in the election campaign, thereby hindering the fairness of the election. In the case of documents under Articles 64 through 66 of the Public Official Election Act, only permitting an election campaign by propaganda posters, election campaign bulletins, small printed materials, etc., and imposing certain restrictions thereon, are also prevented. This is to prevent such strict regulations from being lost, based on the principle of equal opportunity for election campaigns under Article 116(1) of the Constitution, such as preventing any imbalance caused by unfair competition in election campaigns and economic power differences among the candidates, and to prevent the peace and peace of the candidate’s election result by guaranteeing equal opportunity for the election through an election campaign required at low cost, thereby ensuring the fair legislation.

[2] If the content of supporting, recommending, or opposing a political party or candidate is included in the Internet campaign bulletin, or if the name of a political party or candidate appears, the act of posting is based on “the purpose of influencing the election” or “the purpose of election” under the Public Official Election Act or “the act of posting documents by unlawful means” or “pre-election” under the Public Official Election Act, the following should be comprehensively considered in determining whether the act of posting is an act within the daily framework of operation of the waterway.

[3] In a case where a person who did not join an election campaign organization or political party, etc. with regard to the 17th presidential election carries articles of opposition to a specific presidential candidate posted on another Internet website more than 12 times during the election campaign period, the case holding that the above act does not constitute an "act of posting a document by unlawful means" in violation of Article 93 (1) of the Public Official Election Act or an "prior election campaign" prohibited under Article 254, where the defendant's act was merely an ordinary way of posting an article about the political situation at the time one of his interests, and even if some visitors had an influence on the election, it is merely an incidental result that the above defendant's act was nothing more than an incidental result that the above defendant's act was for the purpose of "an act of influencing the election," or it is difficult to view that the act of ordinary and courtesy defendants constitutes an "act of dynamic or planned act" that is objectively recognized as an "act of promoting the election or defeat of a specific person against the elector," and thus, it does not constitute an "prior election campaign.

[1] Articles 64, 65, 66, and 93(1) of the Public Official Election Act, Article 116(1) of the Constitution / [2] Articles 59, 93(1), and 254(3) of the Public Official Election Act / [3] Articles 59, 93(1), 254(3), and 255(2)5 of the Public Official Election Act

[2] Supreme Court Decision 2004Do7488 Decided January 27, 2005 (Gong2005Sang, 369) Supreme Court Decision 2005Do40 Decided September 15, 2005

Defendant

Quasi-Crime

The defendant shall be innocent.

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

Indictment

The Defendant is a person who operates a htp:/blgnaver.com/(name omitted) of “Never” on the Internet portal site, “Never”.

No one shall distribute, post, distribute, play, or run an advertisement, letter of personnel management, poster, photograph, document, picture, picture, printed matter, recording, video tape, and other things similar thereto which include contents supporting, recommending, or opposing a political party or candidate (including a person who intends to become a candidate) in order to influence the election from 180 days before the election day to the election day, or which indicate the name of a political party or candidate's name, or distribute, post, distribute, distribute, broadcast, show, or run an

그럼에도 불구하고, 피고인은 2007. 12. 19. 실시되는 제17대 대통령선거와 관련하여 인터넷을 통하여 한나라당 후보자인 이명박을 낙선시키는 활동을 전개하기로 마음먹고, 2007. 9. 13. 22:22경 서울 양천구 신월동 (지번, 아파트이름, 동호수 생략) 소재 피고인의 주거지에서, 컴퓨터를 이용하여 인터넷 “오마이뉴스”에 접속한 다음, 위 사이트에 있는 “대통령 자질 의심케 하는 이명박 후보의 성매매 발언”이라는 제목의 “이명박 발언 들은 편집국장들, 왜 침묵하나, ‘고태진 칼럼’ 대통령 자질 의심케 하는 이명박 후보의 ‘성매매 발언’ 이명박 한나라당 대통령 후보가 지난 8월 28일 서울 시내 한 중국음식점에서 주요 중앙일간지 편집국장 10명 가량과 저녁식사를 하는 도중 ‘여성’에 관한 부적절한 비유를 한 것으로 알려지고 있다. 이명박 후보는 이 자리에서 ‘특수 서비스업’에 종사하는 여성을 선택하는 방법에 대한 ‘인생의 지혜’로써 ‘현지에서 가장 오래 근무한 선배는 마사지 걸들이 있는 곳을 갈 경우 얼굴이 덜 예쁜 여자를 고른다더라. 왜 그럴까 생각해봤는데 얼굴이 예쁜 여자는 이미 많은 남자들이...,(일부 생략) 그러나 얼굴이 덜 예쁜 여자들은 서비스도 좋고...(일부 생략)’식의 이야기를 했다고 한다.....이번 이명박 후보의 발언도 기자들과의 폭탄주 회동 자리였다는 점, 여성에 대한 비하 내지는 성희롱 발언이었다는 점, 약속이나 한 듯 언론들이 침묵을 지키고 있다는 점에서 거의 유사한 사례라 할 수 있다. ‘편하게 비공개로 저녁식사를 하는 자리였고, 폭탄주를 마신 상태였기 때문에 보도를 하지 않고 있는 것’이라는 언론들의 해명도 똑같다. 그간 7년이란 세월이 지나면서 ‘성매매방지특별법’도 제정되고, 우리 사회의 인권의식이나 성의식도 많이 개선되었지만, 정치인과 언론인들의 ‘폭탄주 회동’ 문화나 여성 비하 의식이 여전하다는 것을 여실히 보여주는 것이 이번 이명박 후보 발언의 사례다. 이명박 후보가 친구들이나 지인들을 어느 술집 구석에서 만나서 그런 대화를 나눴다면 공개될 이유도 없을 것이고, 문제 삼을 수도 없었을 것이다. 그것은 그야말로 사적인 자리라 할 수 있다. 하지만 유력한 대통령 후보가 측근 정치인들과 함께 신문사 편집국장을 만나는 자리가 사적인 자리라고 할 수 있는가? 예전의 ‘관기발언’도 그렇지만, 벌써부터 기자들과 폭탄주를 나눠 마시면서 음담패설이나 주고받는 사람이 과연 대통령이 될 자격이 있는지 의문이다.....”라는 기사를 퍼와 자신의 위 블로그에 이를 게재하였다.

The Defendant posted 12 times every time from November 19, 2007, 2007, i.e., the Defendant’s writing, as described in the attached list of crimes, stating that he/she opposed to the above Lee Jong-young candidate.

In this respect, the defendant posted documents by illegal means, and carried out a prior election campaign at the same time.

Maz.

1. Fundamental rights of citizens and restrictions under the Public Official Election Act;

A. Under the constitutional order of the Republic of Korea that adopts representative democracy, citizens who are sovereign rights must freely participate in elections and express their opinions, and such freedom of election should be guaranteed to the maximum extent possible. The freedom of election refers to the freedom of voting, the freedom of candidate, and the freedom of election campaign. The freedom of election campaigns is a form of freedom of expression, since it is the one of the freedom of free expression in the election process. In particular, the freedom of political expression functions only by freely announcing and exchanging political opinions by the people during the election process.

However, the fairness of election should be guaranteed in order to prevent scams by means of gold, black publicity, minimize the socioeconomic losses and side effects that may arise from unlimited and excessive election campaigns, and reflect the people's genuine will.In order to ensure the fairness of election, the freedom of election, freedom of political expression, etc. can be restricted, but the principle of proportionality should be observed between the purpose of restriction and the extent of restriction.

B. In the era of informatization represented by “Internet”, free writing on an individual’s Internet space can be freely written, through which the act of expressing one’s own intent and exchanging it with others was easy, and posting such comments on such Internet has been explosively increased. This means that changes in the method of realizing the freedom of expression, i.e., realization of the method of realizing the freedom of expression, are easy and diverse. Accordingly, appropriate guarantee is required for the foundation for which freedom of expression can be expanded.

However, on the other hand, there is a possibility that an individual may have an impact on the formation of another person's will through posting comments on the Internet (the formation of public opinion mainly made through the previous media has been possible by the so-called "personal media"). It is also necessary to keep a warning about such abuse. In particular, since there is a risk of using them as a means of election campaign prohibited by the Public Official Election Act under the name of freedom of political expression, the abuse should be noted.

C. As seen in the facts charged in the instant case, it is problematic whether such “an act of posting a letter on the Internet” constitutes “an act of posting a document by unlawful means” and “prior election campaign” prohibited by Article 93 of the Public Official Election Act, as seen in the instant facts charged.

D. Of course, in accordance with the content of the comments, there are cases falling under the crime of publishing false facts under the Public Official Election Act (Article 250) or the crime of aiding and abetting candidates (Article 251), and there is a more severe statutory penalty for this matter. The facts charged in the instant case are not included in the above crimes, and thus, it is not problematic.

2. The meaning of the Public Official Election Act-related provisions

(a) Principles of and restrictions on freedom of election campaigns;

Article 58(2) of the Public Official Election Act provides that "any person may freely conduct an election campaign, but this shall not apply to cases where the freedom of election campaigns is prohibited or restricted by this Act or other Acts." In other words, in order to ensure fairness in election campaigns, Articles 59 through 118 stipulate certain restrictions on the subject, period, method, etc. of election campaigns so as to restrain acts that may attract anyone to engage in election campaigns, to effectively restrict social expenses incurred by excessive election campaigns, and to ensure equal opportunities among candidates.

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

(1) Provisions and legislative purpose

(A) Article 93(1) of the Public Official Election Act provides, “No person shall distribute, post, spread, show, or post documents that contain any content of supporting, recommending, or opposing a political party or candidate from 180 days before the election day to the election day, or documents that indicate the name of a political party or candidate’s name, or other similar things.”

(B) The above provision prohibits an act of distributing, posting, etc. documents, drawings, etc. by unlawful means that affect the election for a certain period before the election day. The purpose of this provision is to prevent the fair election of candidates by distributing, in an election campaign, documents, printed materials, etc., such as documents having the character of election campaign, in fact, for the fair and equal purpose of having the conditions of candidates gain, and causing unfair competition in the election campaign. In the case of documents under Articles 64 through 66 of the Public Official Election Act, only permitting an election campaign by propaganda posters, election campaign bulletins, small printed materials, etc., and imposing certain restrictions, etc., are also prevented. This is to prevent the harmful effects of unfair competition of candidates and candidates based on the principle of ensuring equal opportunity for election campaign under Article 116(1) of the Constitution, and to promote fair election by guaranteeing equal opportunities for candidates through an election campaign, and by preventing the occurrence of results detrimental to the peace and fairness of election.

(2) The purpose of “for the purpose of influencing the election” is to

Under Article 93(1) of the Public Official Election Act, the restriction on the acts prescribed therein, on the premise that it is “for the purpose of influencing the election,” other than intentional acts, is prescribed as an element to establish a crime, with the aim of “purpose that may affect the election” as an excessive subjective element. This is a result of the foregoing provision in mind that this provision may be restricted by the freedom of election and the freedom of political expression, which is the right holder. On the other hand, the purpose of the provision is not necessary to actively or finally recognize, but it is satisfied with dolusent perception alone. Whether the purpose was determined reasonably in light of social norms by comprehensively taking into account various circumstances such as the social status of the defendant, relationship between the defendant and the candidate or political party, motive and method of the act, details and manner of the act, and social situation at the time of the act (see Supreme Court Decision 2007Do175, Jun. 15, 2007).

Furthermore, in light of the fact that political expressions of the general public under the representative democracy are embodied through an election for the selection of representatives, all political expressions can result in "act affecting the election". Therefore, in cases where it is deemed too broad to "purposes that may affect the election" under Article 93(1) of the Public Official Election Act, all political expressions correspond thereto, and thus, there is a concern for excessive restriction on the freedom of political expression of the people. Therefore, prudent approach is needed in recognizing this.

(c) Restriction on advance election campaigns: Articles 59 and 254 of the Public Official Election Act;

(1) Provisions and legislative purpose

(A) Article 59 of the Public Official Election Act provides that “Election campaigns may be carried out only from the day following the deadline for the registration of candidates to the day preceding the election day,” and Article 254 provides that “Election campaigns may be carried out before the election day (Paragraph 1) and the election campaign period (Paragraph 2 and 3).”

(B) The purport of the Public Official Election Act stipulating that anyone may freely engage in an election campaign, unless there is a legal provision that prohibits or restricts the time of election campaign as seen earlier is to restrict the time of election campaign. It is difficult to prevent the occurrence of unlawful acts as a result of the difficult election management due to excessive competition among the candidates for a long-term period of time, and to prevent the occurrence of unfair acts. The prolongedness of unfair competition among the candidates not only causes a lot of social and economic loss due to excessive expenses and efforts for the prolongedness of unfair competition among the candidates, but also to prevent unfair outcomes due to the difference of economic power between the

(2) The meaning of “pre-election campaign”

If the provision on the restriction of the period of election campaign is widely applied, the actual restriction of the act of realizing the freedom of election and the freedom of political expression conducted prior to the election campaign period would result in the de facto restriction. Therefore, reasonable adjustment of the provision on the prohibition of advance election campaign, which is bound to conflict with the fundamental rights of the people, is required, which should be achieved through the constitutional

The term "prior election campaign" under Article 254 (3) of the Public Official Election Act means any act necessary or favorable to obtain a vote for the purpose of winning an election of a specific candidate prior to the election campaign period in a specific election, or an active or planned act that can be objectively recognized as an objective for promoting an election or defeat against the elector, from among all acts necessary for or against the purpose of defeating the election of a specific candidate, from among all acts that are necessary for or against the purpose of winning the election in a specific election. It is required to distinguish a simple opinion, etc. as a symbol of an election campaign, the objective awareness of the purpose, the possibility of objective awareness of the success in the election or obtained votes (the defeat of an opposite candidate), and the efficacy and plannedness of the election (see Supreme Court Decision 2004Do4325, Jan. 28, 2005).

3. The characteristics of tables and relationship between the violation of the Public Official Election Act;

(a) The characteristics of Blorogs;

Blog began to mean a private recording space in which his experience, daily life, etc. are recorded in the Internet space as the end of the Webrog (Weblg). However, the current operation mode is very diverse from the personal form to the personal form to the degree of promoting friendship with people around and managing the connection, and from the personal form to the form of “one-person media” that actively delivers his opinion or knowledge to many and unspecified persons.

B. Relation to the violation of the Public Official Election Act

(1) If the article posted on the Blog contains any content supporting, recommending, or opposing a political party or candidate, or if the name of a political party or candidate appears, it is a matter of whether the act of posting documents by unlawful means and the act of violating the Public Official Election Act by the prior election campaign is in question.

(2) As seen above, since Blogs are used in the form of “one-person media,” it cannot be readily concluded that the mere fact that the article was posted on personal Blogs does not aim to “influence the election,” or that it does not constitute “fluent or planned act” to promote a specific person’s election or defeat.

(3) However, as a matter of interest, in a case where a blog operator operated a blog for the purpose of recording and collecting personal daily lives, hobbies, interest, etc., and recorded or posted letters related to politics and election as one of the authors, if such a blog operators are within the framework of the operation of the blogs that the Defendant had ordinarily engaged in, it is difficult to readily conclude that the blog operator’s act is “for the purpose of influencing the election” or “slogical and planned act” for the purpose of promoting a certain person’s election or defeat.

The reason is that ① such an act of posting a letter is difficult to view that it infringes on the legislative purpose of Articles 93(1) and 254 of the Public Official Election Act, i.e., guaranteeing equal opportunities for candidates by preventing the harm of imbalance caused by unfair competition of election campaign and economic power differences among candidates, and preventing social and economic loss caused by the prolonged competition among candidates. ② An act related to the election or defeat of a specific candidate does not constitute an election campaign, and ② an act of ordinary, ordinary, and private intercourse is not considered as a normal living form even if it is a contribution act, and is within the social order, if it can be seen that it is within the scope of social order as one of the normal forms of living, it does not violate the social rules as a kind of formal or official act (see, e.g., Supreme Court Decisions 2005Do2014, Sept. 9, 2005; 2007Do218, Apr. 26, 2007).

(4) In determining whether it is an act within the daily framework of operation of Blolog, which is not based on the “purposes to influence the election” or “purposes for the election,” the following should be comprehensively considered: (a) the developments leading up to the establishment of Blogs, overall purport, composition, contents of the posted text, the source of the text, the interaction with users, and the status of operators.

4. Determination

A. Facts of recognition

According to the evidence and arguments of this case, the following facts can be acknowledged.

(1) The status of the defendant and the relationship between the defendant and the candidate, competition candidate or political party

The defendant is a motor vehicle sales business employee, and there is no less entry into a political party or social organization, and there is no entry into an election campaign organization in relation to the 17th presidential election.

(2) The circumstances surrounding the operation of the Defendant’s tables and the posting of his writing

(A) From August 2006, the Defendant opened and operated a brober, “(name omitted)” on the Internet portal site.

(B) The Defendant’s Blogs consisting of approximately 38 classes, such as glogs in labor, glogs, stalgs, stalgs, stalgs, stalgs, singing, stalgs, history, stalgs, national camping, culture, camping, winding, and women’s camping, and the number of characters inserted in any category around November 19, 207, on which the police cut off the above Blogs and printed on the screen. Around November 19, 2007, the number of characters inserted in any category is approximately 4,329 (for the Defendant, approximately 6,00 statement).

(C) The Defendant screened the articles in the attached list of crimes, and the writing in the knife type in his/her tables, posted on another Internet site (five another news in the Lao, two civils’ sounds, three presses, one Han Breg newspapers, and one revergian).

(D) On the other hand, when examining the number of comments on the above 12 posts until November 19, 2007, the article Nos. 3 of the annexed crime list was not prepared and posted, and 25 of the article Nos. 6 was written and posted, and the other article was written and posted.

(E) From June 19, 2007 to November 26, 2007, a period of application of Article 93(1) of the Public Official Election Act (from June 22, 2007 to December 19, 2007), the Defendant posted approximately 1,60 articles on the above tables, and the Defendant posted approximately 10 articles on a day after the presidential election was completed (the Defendant’s written opinion).

(3) The contents of the article posted

The article posted by the defendant is the same as the attached list of crimes, and most of the posted articles are the following contents characteristics.

The statements of Lee Jong-dae's Lee's Lee's Lee's Lee-hwan's "Seng's speech" in the table contained in the main text shall be criticized as the main purpose of why the director general of the editing bureau of the media does not publish the fact," and since the counter-fluences of Lee Jong-dae's policy related to the 3rd canal policy continued to change, it is recognized as the President's candidate who was fluence of this 4 Lee Jong-dae's commitment to determine the contents of policies after on-site investigation, and the 5th Kim Jong-sung's dual attitude related to the 6BK's return to the Republic of Korea, Han-Ba's explanation that the 6BK's key issue in the 6BK case, and that the 9th Ma-Ga's deposit of the 9th Ma-Ga's economic policy should not be made more difficult to see this 7th Ma-Ga's economic policy frame and that the 9th Ma-Ga's financial policy frame's deposit.

(4) Social situation at the time of the act

The time when the defendant posted each of the above articles is the time when most major media have presented the same contents as the above articles related to the e-mail, which is a candidate for election of the 17th presidential election.

(b) Markets:

(1) It is recognized that the Defendant’s comments contain the purport of opposing a specific candidate, and that many and unspecified persons expressed their opinions in the form of pre-written comments.

(2) However, according to the above facts and arguments, ① the Defendant’s posting of this article is “blogs” of the Defendant’s personal and approximately 38 categories. Among them, the Defendant posted the above article only to the category “political.” The rest of the categories is irrelevant to the election, such as culture, music, and picture. ② The Defendant opened the above glogs around August 206, which is far prior to the posting of the instant article, and the Defendant’s personal character, pictures, music, and interest were widely known for the purpose of raising up to 10 days in light of the composition of the above glogs, and the Defendant posted the glogs of this case’s glogs and glogs, which were widely known for the purpose of 10 days in light of the following facts: (i) the Defendant’s major contents of the glogs and glogs that were widely known for the purpose of 20 days in light of the following facts: (ii) the Defendant posted the glogs of this case.

(3) In addition to these circumstances, considering that the Defendant did not have joined the election organization of a specific candidate, and there is no fact that the Defendant joined a political party or political social organization, it is reasonable to deem that the Defendant’s act of inserting the instant 12 article on one’s own tables is merely a posting in a usual way as to the political situation at the time of one of the interests of the Defendant, one of which was interested, and even if some visitors read it and had an impact on the election, it is merely an incidental result that the said Defendant did not intend. Accordingly, it is an ordinary and ordinary act of the Defendant, and the purpose of the Defendant’s act is “to influence the election”, or it is difficult to view that the Defendant’s act constitutes an “fluorative and planned act” which can be objectively recognized as an objective purpose of promoting the election or defeat of a specific person, and there is no other evidence to acknowledge it otherwise.

Therefore, the Defendant’s act does not constitute “an act of posting a document by unlawful means” in violation of Article 93(1) of the Public Official Election Act or “pre-election campaign” prohibited by Article 254.

5. Conclusion

Ultimately, the above facts charged constitute a case where there is no proof of crime, and thus, a not-guilty verdict under the latter part of Article 325 of the Criminal Procedure Act and a summary of the judgment under Article 58(2) of the Criminal Act is

[Attachment] Crime List: (Omission)

Judge Sick-hun (Presiding Judge)