In a case where the Defendants conspired to conduct a public opinion poll on an election for public office by calling to the electorates, asked questions by using words to the specific candidate A, such as “the right party candidate”, and were indicted for violating the Public Official Election Act by engaging in election campaign in a manner that is not prescribed in the Public Official Election Act during the election period, the case holding that the Defendants are acquitted.

In a case where the Defendants conspired to conduct a public opinion poll on an election for public office by making phone calls to electors, and asked questions to specific candidates Gap, such as “the right candidate”, while engaging in an election campaign in a manner that is not prescribed in the Public Official Election Act during the election period, and was prosecuted for violation of the Public Official Election Act, the case holding that the Defendants acquitted the Defendants on the grounds that the above public opinion poll does not constitute an objectively equipped behavior with the substance of the election campaign, in light of the following: (a) the words “the right candidate” used in the above public opinion poll refer to the fact that other candidates than the current candidate of a political party having political power have achieved simplification; and (b) it is not an expression in which a subjective judgment has been involved; and (c) it is difficult to view that the public opinion poll was biased to the candidates A; and (d) in light of

Articles 58(1), 109(1), 150, and 255(1)19 of the Public Official Election Act; Article 325 of the Criminal Procedure Act

Defendant 1 and one other

Dong-hun et al.

Attorney Seo-sung et al. and one other

Defendants are not guilty.

The summary of the judgment against the Defendants is published.

1. Summary of the facts charged in this case

Defendant 1 is a person operating a public opinion poll business entity’s “○○○○ book” located in Daegu-gu ( Address 1 omitted), and Defendant 2 is the head of the public opinion poll office of Nonindicted Party 1, who was posted as a candidate for the election of the head of △△△△△△, which was implemented on June 4, 2014.

No one shall, when conducting a public opinion poll on an election, ask questions to a specific political party or candidate using words or sentences to make them biased, and conduct an election campaign using letters, telegrams, facsimile and other means of telecommunication to the elector in a way that is not prescribed in the Public Official Election Act during the election period.

Nevertheless, in order to raise awareness about Nonindicted 1 and to inform the electors of the fact, the Defendants: (a) around May 31, 2014, set up an inquiry with respect to Nonindicted 1’s awareness and support level; and (b) recruited to conduct a public opinion poll.

Accordingly, Defendant 1 conducted a public opinion poll (hereinafter “instant public opinion poll”) on June 1, 2014, from around 12:48 to around 15:27, Defendant 1 conducted a public opinion poll (hereinafter “instant public opinion poll”) by communicating to 403 electors in △△-gu, △△△-gu using the ARS DD method, which was specially adjusted by Defendant 1’s house located in Gyeong-do ( Address 2 omitted) from around 12:48 to around 15:27, Defendant 1 conducted a public opinion poll (hereinafter “instant public opinion poll”), and Defendant 1 conducted an election campaign by asking questions to 403 electors of △△-gu, △△-gu, △△-gu, △△-gu, by making an election campaign to which the head of the Gu belongs in the local election on June 4, 2014 belongs. Then, who is the candidate supporting the two candidates?

As a result, the Defendants conspired to conduct a public opinion poll on the election of the head of △△△△ head, making inquiries by using words to the non-indicted 1 candidate, and making election campaigns using telecommunication methods to the electors in a way that is not prescribed in the Public Official Election Act during the election period.

2. Defendants and defense counsel's assertion

The defendants' words used in the public opinion poll are not biased to the non-indicted 1 candidate, and the defendants are only engaged in the public opinion poll pursuant to the Public Official Election Act and do not engage in election campaign.

3. Determination

(a) Whether there is any act of questioning a candidate using biased words to the specific candidate;

The following circumstances revealed in the process of the trial of this court, namely, ① the prior meaning of the right is one of the following. The words used in the public opinion poll of this case merely mean the fact that the candidate other than the candidate of the political party with the right now has achieved simplification, not the expression of subjective judgment, but the expression of subjective judgment. ② The fact that the candidate of the time-to-day branch in accordance with Article 150 of the Public Official Election Act is the mark No. 1 is the mark of the time-to-day branch in that the general public can fully recognize the fact that the candidate of the time-to-day branch in accordance with Article 150 of the Public Official Election Act is the mark No. 4" means the sign No. 1 of the right-to-day branch in the public opinion poll of this case, which is the sign of the non-indicted 2 candidate, and it is difficult to view that the defendants are not favorable to the candidate in the public opinion poll of the candidate in order to establish the credibility and influence of the candidate in the public opinion poll of this case.

B. Whether the case constitutes an election campaign

The term "election campaign" under Article 58 (1) of the Public Official Election Act means any active and planned act necessary and favorable for the election or defeat in an election in an election for public office under Article 2 of the Public Official Election Act, which can be objectively recognized by the intention of promoting the election or defeat in an election. Specifically, in determining whether a certain act constitutes an election campaign, it shall be determined whether the act is accompanied by not only in the name of the act, but also the form of the act, i.e., when, at the time, place, method, etc. of the act is performed, comprehensively observing the manner of the act, and whether the act is an act accompanying the purpose of promoting the election or defeat in an election for a specific candidate (see Supreme Court Decision 2006Do8518, Mar. 29, 2007, etc.). A public opinion poll to identify the degree of support for a political party or candidate or candidate scheduled to be elected is generally permitted (see Supreme Court Decision 97Do856, Jun. 9

In full view of the following circumstances revealed in the process of the court’s hearing, i.e., (i) the Public Official Election Act permits candidates to conduct a public opinion poll in order to verify electors’ desire and establish an election campaign scheme; (ii) it is difficult to view the public opinion poll of this case as biased to Nonindicted Party 1; and (iii) it appears that the public opinion poll of this case was announced of the fact through value neutrality expressions; and (iv) the public opinion poll of this case was suspended in accordance with the election commission’s point of view as to the convenience of its content, and there is no report on the results of the public opinion poll of this case, and it cannot be deemed that the public opinion poll of this case is merely nominal and has no substance. Furthermore, it cannot be deemed that the public opinion poll of this case is an objectively real behavior of election campaign. Furthermore, the effect of raising the awareness of Nonindicted Party 1’s candidate incidental to the public opinion poll in this case may arise, or that the Defendants intended to have the effect of raising such awareness. Moreover, there is no evidence to acknowledge that the Defendants carried out an election campaign using the public opinion of this case

4. Conclusion

Therefore, this part of the facts charged constitutes a case where there is no proof of crime, and thus, the Defendants are acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment against the Defendants is publicly announced pursuant to Article 58(2) of the Criminal Act. It is so decided as

Judges Shin Jin-heat (Presiding Judge)