[1] The meaning of "election campaign" under Article 58 (1) of the Public Official Election Act and the criteria for its determination

[2] The standard for determining "purposes that affect the election" under Article 93 (1) of the Public Official Election Act

[1] Article 58 (1) of the Public Official Election Act / [2] Article 93 (1) of the Public Official Election Act

[1] Supreme Court Decision 2005Do301 Decided October 14, 2005 (Gong2005Ha, 1818), Supreme Court Decision 2005Do5105 Decided August 25, 2006, Supreme Court Decision 2007Do3468 Decided October 11, 2007, Supreme Court Decision 2009Do445 Decided March 12, 2009 / [2] Supreme Court Decision 2004Do8716 Decided March 24, 2006

Defendant

Defendant

Law Firm Han-soo, Attorneys Seo Jong-soo et al.

Seoul High Court Decision 2008No2740 decided December 5, 2008

The appeal is dismissed.

The grounds of appeal are examined.

Article 58 (1) of the Public Official Election Act refers to any active and planned act that is necessary for the election or the winning or defeat of a specific candidate and that can be objectively recognized by the intention of promoting an election or defeat. It is distinguishable from the act of preparing an election campaign or ordinary political party activities for the future election campaign. Specifically, in determining whether an act constitutes an election campaign, it shall be determined not only as the name of the act, but also as the form of the act, i.e., the time, place, method, etc. of the act is performed, and whether it is an act accompanying the purpose of promoting the election or defeat of a specific candidate (see, e.g., Supreme Court Decision 2005Do301, Oct. 14, 2005). Article 93 (1) of the Public Official Election Act provides that "in order to influence the election" of a specific candidate, other than intentional acts restricted by the act, it shall be determined reasonably as the social motive and position of the defendant as well as the social motive and position of the candidate at the time of the election.

In addition, Article 16 of the Criminal Act provides that an act of misunderstanding that one's act does not constitute a crime under the law shall not be punishable only when there is a justifiable ground for misunderstanding. It does not merely mean a site of law, but generally mean that an act of misunderstanding does not constitute a crime, but it is generally accepted that it does not constitute a crime due to a mistake that is permitted by the law in his own special circumstances and there is a justifiable reason for misunderstanding (see Supreme Court Decision 200Do1696, Jan. 25, 2002, etc.).

The court below, after compiling the adopted evidence, found the facts as stated in its reasoning, and determined that, in light of the status and role of the defendant, the time and contents of sending text messages, the time and contents of sending text messages, the target and volume of messages, and the official process and election situation at the time of the instant crime, it is reasonable to view that the defendant sent text messages as stated in its decision in order to obtain assistance in the process of soliciting candidates for the National Assembly member of Korea National Assembly, as well as to promote more favorable results in the election of the National Assembly member of Korea, and that this is aimed at affecting the election, and that there is no circumstance that the responsibility should be

In light of the above legal principles and records, we affirm the above fact-finding and judgment of the court below as just, and there is no error of law such as misconception of facts due to violation of the rules of evidence, misapprehension of legal principles as to the principle of no punishment without law or public election law

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)