[1] The purpose of Article 250(1) of the Public Official Election Act that punishs publishing false facts / The standard for determining whether a candidate for an election of public officials can be punished as a crime of publishing false facts under Article 250(1) of the Public Official Election Act on the grounds that he/she speaks in the process of debate about a candidate’s debate, and

[2] In a case where the Defendant, a candidate for the election of the head of a local government, was indicted for violating the Public Official Election Act on the ground that he/she denied the question of whether the other candidate Eul was involved in the above compulsory hospitalization procedure and made a statement to the effect that there was no enemy to have the other party Gap hospitalized at the mental hospital, even though he/she ordered the head of the competent public health clinic, etc. to proceed with the compulsory hospitalization procedure under the Mental Health Act several times at the time when he/she held the market (market), the Defendant’s statement does not constitute a publication of false facts as provided by Article 250(1) of the Public Official Election Act

[1] [Majority Opinion] (A) Article 250(1) of the Public Official Election Act provides that “A person who publishes or makes another person publish false facts about the place of birth, family relation, status, occupation, career, property, act, activity, organization to which he belongs of a candidate, or support from a specific person or specific organization in favor of the candidate by means of a speech, broadcast, newspaper, communication, magazine, poster, propaganda document, or other means for the purpose of being elected or making another person elected, shall be punished.” The purpose of the provision is to ensure the fairness of election as long as it does not interfere with the freedom of election campaign by punishing the act of publishing false facts affecting the fair judgment of the elector. The reason is that where a person with the right to vote publishes false facts in the election process, it would be distorted the public’s will and undermine the function of the election system and the essence of representative democracy.

(B) Under the Constitution, all citizens have political freedom that can freely form and express political opinions without being interfered with or controlled by the state power, and the freedom of election campaigns is one of the main contents of the political freedom, and is a form of freedom of expression, given that the freedom of expression is a part of the freedom of expression in election process widely as one of the main contents of the political freedom. Freedom of expression, inasmuch as democracy cannot exist unless free and active discussions are guaranteed, in particular, freedom of political expression in public and political concerns should be guaranteed as an important constitutional right.

(C) The debate about the invitation of candidates by organizations and press or the debate about the Election Debate Broadcasting Committee is one of the election campaign methods introduced for the improvement of the high cost political structure and the expansion of the fairness of election campaigns based on the public election system under the Constitution. The candidates are able to understand the candidate's policy, political ideology, governance philosophy, important election issues through the debate process so that they can make a correct choice by properly comparing and evaluating each candidate. The candidate who participated in the debate on the candidate is presented only the assertion that corresponds to the truth, as in the other election campaign when debate is held, as in the other election campaign, in order to clarify his opinion and answer questions of the other candidates, the candidate's quality, knowledge and opinion can be clearly grasped by using clear and accurate expressions.

Meanwhile, a candidate’s debate is strictly regulated in the form of debate, such as granting an opportunity to participate in the election for the fair and balance between the candidates, order of speaking, time of speaking, etc. (see Articles 82(3), 82-2(7), and 14 of the Public Official Election Act, Article 45 of the Rules on the Organization and Operation of Election Debate Broadcasting Committee, and Article 23 of the Rules on the Composition and Operation of Election Debate Broadcasting Committee). As long as the basic conditions for such fairness and balance are complied with, the candidate, etc. shall be free and active, and shall be able to exchange and answer substantially within one place. The candidate’s debate is that the head of the public debate that allows the candidate to participate in the election, and that the candidate’s right to participate in the election should be more clearly activated, compared and evaluated with those of the candidate’s quality, and that of the candidate may not be able to respond to the candidate’s debate ex officio or ex officio in the process of verifying the difference between the candidate’s opinion and his/her opinion.

Of course, strict measures need to be taken for expressions exceeding a certain limit, but it is more important to guarantee the freedom of expression more broadly for free debate and mature democracy prior thereto. In order to function as the freedom of expression, it is because there is a hidden room necessary for survival, i.e., free and neutral space from legal judgment. It cannot be a solution to hold heavy legal responsibility for all inaccurate or inappropriate expressions for the reason of necessity for the fairness of election. Despite the importance of the debate of candidates as a method of election campaign, there are many cases where debate is in the form of formal and peaceful debate for balance between candidates due to strict debate and time constraints, limitation of debate technology, etc. Furthermore, if the State agency does not regard all political expressions of the debate process and uniformly imposes strict legal responsibilities on the background or context of the debate process, it is more difficult for candidates, etc. to verify the public’s ideology and right of public debate and to interfere with fair public and political neutrality through the examination of public concerns, which may lead to the lack of public and political concerns.

(D) Considering that the freedom of political expression and the constitutional significance and importance of freedom of election campaign based on the principle of interpretation of penal provisions, the contents and purport of various regulations on election campaign including the candidate debate under the Public Official Election Act, and the functions and characteristics of the candidate debate, etc., it should be careful to punish the candidate for public election as a crime of publishing false facts under Article 250(1) of the Public Official Election Act on the grounds that the candidate for public office election speaks in the process of debate about the candidate, and it is necessary to present more concrete and clear standards on the scope of acts subject to criminal punishment under Article 250(1) of the Public Official Election Act.

Therefore, a candidate’s participation in a candidate’s debate may not be punished as a crime of publishing false facts pursuant to Article 250(1) of the Public Official Election Act, barring special circumstances, such as where he/she unilaterally expresses false facts in order to reveal without connection with the subject or context of the debate, barring special circumstances, such as that he/she actively expresses false facts. Furthermore, rather than emphasizing on an ex post facto analysis and prosecution of the relationship between individual remarks, it is necessary to examine whether the facts have been clearly published from the perspective of the right holder based on the situation at which the question and answer were made and the overall context of the debate.

Furthermore, when distinguishing whether the expression at issue is a criminal punishment or an expression of opinion or abstract decision, it shall be determined by taking into account the ordinary meaning and usage of the language, possibility of proof, the overall purport of the expression at issue and the context where the expression at issue was used, the context of expression and the social context. However, in cases where it is difficult to readily conclude that the expression falls under any category in light of the superior position of the freedom of expression in the Constitution and the principle of interpreting penal laws and regulations, it shall be understood as having expressed opinions or abstract judgments in principle. In addition, in cases where a certain expression is consistent with objective facts in an important part when examining the purport of the entire contents of the publicly announced fact, it shall not be deemed as having been a publication of false facts even if there is a little difference or exaggeration from the objective facts in detail. In particular, considering the function and characteristics of the debate of a candidate, it is not intentionally distorted the opinions or remarks of another candidate to the extent that it is possible to mislead the accurate judgment of the elector, etc., but it shall be deemed that the other candidate’s opinion or remarks is unlawful or unlawful as a public announcement of facts.

Inasmuch as the Public Official Election Act separates “false fact” and “distort of fact” (see, e.g., Articles 8-4(1), 8-6(4), 96(1) and (2)1, and 108(5)2), if the content actively expressed is not false, it shall be careful in immediately assessing the entire statement solely on the ground that he/she silents about some facts regarding which the disclosure obligation is not legally required. Unless the expression made in the course of debate, answer, assertion, or counterargument is intentionally distorted, it shall not be evaluated as an act of publishing false facts.

[Dissenting Opinion by Justice Park Sang-ok, Justice Lee Ki-taik, Justice Lee Ki-taik, Justice Lee Dong-won, and Justice Noh Tae-ok] (A) Article 250(1) of the Public Official Election Act provides that the act of publicly announcing false information that may affect the fair judgment of electors should not undermine the freedom of election campaign, thereby ensuring the fair election. In other words, by preventing the publication of false information favorable to candidates, the purpose is to ensure the right choice of electors with accurate judgment data on candidates.

"Publication", which is the form of an act under Article 250(1) of the Public Official Election Act, is to give false information to many and unspecified persons, regardless of the means or methods thereof, and if there is a possibility of spreading to many and unspecified persons even if they are aware of the fact individually.

The public announcement of “fact” under Article 250(1) of the Public Official Election Act refers to a report or statement on specific past or current facts in time and space, and the contents thereof can be proven by evidence, as a concept substitute for an expression of opinion, the subject matter of which is a value judgment or evaluation. The distinction between a statement of fact or an expression of opinion or abstract judgment is not simply distinction by the term of the former term, but rather by the legislative intent that guarantees the fairness of election, in mind, all circumstances surrounding such expressions, namely, the ordinary meaning and usage of language, the context in which the expression was used, the entire contents, the context in which the expression at issue was used, the background and method of expression, the other party, the possibility of proving the contents of the expression, and the identity of the speaker and the candidate, etc. shall be comprehensively determined.

In addition, the term “false facts” under Article 250(1) of the Public Official Election Act means matters inconsistent with the truth, which are sufficient enough to have the elector make an accurate judgment on candidates. However, if important matters are consistent with the objective facts in light of the overall purport of the published facts, even if there is a little or exaggerated expression that differs from the objective facts in detail, it cannot be deemed a false fact. Whether a certain expression is false or not should be determined on the basis of the overall impression of the expression, comprehensively taking into account the overall purport of the expression, objective contents, ordinary meaning of the words used, connection method of the words, etc., on the basis of a general method of expression abutting on the general method of expression by the general elector.

(B) The Majority Opinion’s logic of narrowly interpreting the scope of “public announcement” is unacceptable for the following reasons.

In representative democracy, the freedom of political expression, such as election campaigns, which aims to freely announce and exchange political information and opinions on candidates or political parties, is recognized as the premise of the fairness of election, and the fairness of election can function as the limited principle of such freedom.

Public Official Election Act provides a candidate’s debate as one of election campaign methods (Articles 81, 82, 82-2, and 82-3) (Article 82). A candidate’s debate has a very strong ripple power and influence on the voters, and is also aware that discussions are the most important means to determine the eligibility of candidates for public office. The distribution of false facts or distortion of facts in a candidate debate is seriously detrimental to the original function of the election system and the nature of representative democracy by infringing on the fairness of election in an election, which is the core means to realize national sovereignty and representative democracy. On the grounds that speaking in the process of a candidate debate is not an expression of false facts actively and ex officio, it does not punish it as a crime of publishing false facts, and uniformly gives the punishment of a crime, it makes it impossible for the candidate to function as the most efficient and advanced election campaign by extinguishing the candidate’s debate and function, and eventually, the candidate’s specific legal significance and operation of the debate is not clear and definite. The candidate’s active and comprehensive responsibility is not clear.

It is also against the Supreme Court precedents regarding the meaning of "public announcement" to regard the statement in a candidate's debate premised on the broadcast relay as being not an "public announcement" with attention only to the aspect of "public debate".

Although a statement made in a candidate’s debate constitutes a “public announcement” as provided by Article 250(1) of the Public Official Election Act, the established legal doctrine of the Supreme Court that strictly determines whether a candidate’s falsity or falsity is recognized depending on individual matters is maintaining the fair election process, the significance and function of the candidate’s debate, the freedom of political expression, and the freedom of election campaign, and performing its functions. Interpretation that limits the scope of “public announcement” as stated in the Majority Opinion can seriously undermine the balance between the fair election and the freedom of political expression.

The “public announcement” under Article 250(1) of the Public Official Election Act is not necessarily limited to cases where false facts are directly expressed. Even in cases of indirect and roundive expressions, it is sufficient to suggest the existence of such false facts in light of the purport of the entire contents expressed. Accordingly, there is a possibility of affecting the candidate’s evaluation.

[2] [Majority Opinion] In a case where the Defendant, a candidate for the election of the head of a local government, was prosecuted for violation of the Public Official Election Act on the ground that he/she did not allow the head of the competent public health clinic, etc. to follow the procedure for compulsory hospitalization under the Mental Health Act even though he/she instructed the head of the competent public health clinic, etc. to proceed with the procedure for compulsory hospitalization under the Mental Health Act, and the debate of the candidate for the election of the public officials of the Republic of Korea (hereinafter “MBC debate”) in the debate about whether the other candidate would be involved in the above compulsory hospitalization procedure and made a false statement to the effect that he/she did not allow the other candidate to be hospitalized in the mental hospital, and thus, he/she did not know that the Defendant did not actively object to the public announcement of the fact that he/she did not have any duty to respond to questions of Eul or suspicion, and that it is difficult to readily conclude that the Defendant did not have any other duty to respond to the public announcement of the fact that he/she did not have any falsity or to have any falsity any falsity of the Defendant’s opinion.

[Dissenting Opinion by Justice Park Sang-ok, Justice Lee Ki-taik, Justice Lee Ki-taik, Justice Lee Dong-won, and Justice Noh Tae-ok] In the above case, since the question asked the other party candidate at the KBS debate and the MBC debate is not merely an interest, i.e., interest, unexpected, and universal explanation, there is no room to apply the characteristic of the candidate debate that the public question and verification through counterargument, reply, and answer is carried out i.e., interesting and continuous., the Defendant’s statement at each debate do not differ from actively announcing the contents he/she wishes to unilaterally deliver using prepared material. Rather, the Defendant’s statement at each debate is an objective and practical question and answer as to the “the fact that the Defendant was hospitalized in the procedure for the mental hospital of Party A,” which corresponds to one of the objective and practical facts, and the Defendant is not merely denied the determination of whether the Defendant instructed the director of the public health clinic, etc. under his/her direction and supervision, but also constitutes a false instruction and explanation of the entire mental hospital to the effect that the Defendant actively’s specific facts are distorted and distorted.

[1] Articles 12(1) and 21 of the Constitution of the Republic of Korea; Articles 1, 8-4(1), 8-6(4), 58(2), 81, 82, 82-2, 82-3, 96(1) and (2)1, 108(5)2, and 250(1) of the Public Official Election Act; Article 45 of the Rules on the Management of Public Officials Election; Article 23 of the Rules on the Organization and Operation of Election of Public Officials; Article 82, 82-2, and 250(1) of the Public Official Election Act; Article 25 of the former Mental Health Act (Amended by Act No. 1198, Aug. 6, 2013); Article 325 of the Criminal Procedure Act

[1] Supreme Court en banc Decision 98Do1992 Decided September 22, 1998 (Gong198Ha, 2637), Supreme Court Decision 2006Do8098 Decided February 23, 2007 (Gong2007Sang, 580), Supreme Court Decision 2007Do2879 Decided July 13, 2007 (Gong2007Ha, 133362, 1364, 207Hun-Ba, 209Hun-Ba26, March 12, 201 (Gong209Hun-Ba, 520, 520, 207Hun-Ba, 209Hun-Ga, 207, 207Hun-Ga, 207, 2047, 207Hun-Ga, 209Hun-Ga, 207, 2015).

Defendant

Defendant and Prosecutor

Law Firm LBBS et al., Counsel for the defendant-appellant

Suwon District Court Decision 2019No119 decided September 6, 2019

The guilty part of the judgment of the court below (including the acquittal part in the reason) is reversed, and that part of the case is remanded to the Suwon High Court. The prosecutor's remaining appeal is dismissed.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

A. (1) Each abuse of authority and obstruction of another’s exercise of rights

For the following reasons, the lower court upheld the first instance judgment that acquitted the Defendant of the abuse of official authority and obstruction of exercise of rights among the facts charged in the instant case on the ground that there was no proof of crime

A) The Defendant: (a) ordered Nonindicted 1 to request Nonindicted 2 to revise the written evaluation of Nonindicted 3 to the head of the Seongbuk-gu Mental Health Center (hereinafter “Center”); and (b) allowed Nonindicted 2 to affix Nonindicted 2’s seal on the revised written evaluation; and (c) allowed Nonindicted 2 to revise the said written evaluation, does not constitute an act of having the Defendant commit a factual act assisting the Defendant in performing his/her duties with respect to matters within his/her official authority, or an act of causing Nonindicted 2 to perform a non-obligatory act as referred to in the crime of abusing authority and obstructing another’s exercise of rights.

B) The Defendant: (a) had a person related to a branch of the Gu branch of the Gu, including Nonindicted 4, request the Center to hold an interview with Nonindicted 5; (b) urged Nonindicted 3 to file an application for diagnosis and protection under Article 25(1) of the former Mental Health Act (amended by Act No. 11998, Aug. 6, 2013; hereinafter “former Mental Health Act”); and (c) let Nonindicted 2 and other persons related to the Center send the result of the interview, does not constitute “an abuse of authority” as stated in the crime of abusing authority and obstructing another’s exercise of rights.

C) Nonindicted 2’s request for diagnosis and protection against Nonindicted 3 can only be deemed to have been based on his own judgment, and it is difficult to deem that it was due to the Defendant’s exercise of authority.

D) Although the Defendant instructed, or urged, Nonindicted 4 to the effect that Nonindicted 3 would proceed with the hospitalization procedure under Article 25(3) of the former Mental Health Act, it is difficult to view that Nonindicted 4 et al. to be Nonindicted 3 was proved without any reasonable doubt that Nonindicted 4 et al. was for forced hospitalization of Nonindicted 3 pursuant to the above provision. It is difficult to view that Nonindicted 4 et al. requested the Center, etc. to request the Center, and Nonindicted 4 et al. to be the Central Police Station was “non-obligatory” as referred to in the crime of abusing authority and obstructing another’s exercise of rights due to Defendant’s direction

2) Part of the violation of the Public Official Election Act due to publication of false facts such as denial of attempt to admit ○○ mental hospital hospitalization.

For the following reasons, the lower court rendered a not guilty verdict on the grounds that there was no proof of crime as to the denial of hospitalization by ○○ mental hospital and the part that the Defendant suspended the procedure among the charges of violating the Public Official Election Act by publishing false facts related to Nonindicted 3.

The Defendant cannot be deemed to have made a statement to the effect that the Defendant denied Nonindicted 3’s attempt to hospitalization at the ○○○ Mental Hospital Hospital (hereinafter “instant debate”) around 2010 from the Gyeonggi-do candidate’s debate that invited the KBS, which was held on May 29, 2018, and the candidate’s debate held on June 5, 2018 (hereinafter “KBS debate,” “MBC debate,” and “instant debate,” which was held on June 5, 2018, it cannot be deemed that the Defendant made a statement to the effect that the Defendant had suspended the procedure for hospitalization at the mental hospital under Article 25 of the former Mental Health Act against Nonindicted 3, and the Defendant’s statement to the effect that there was an intention to publish false or false information.

3) Part of the violation of the Public Official Election Act by publishing the remaining false facts

For the following reasons, the lower court affirmed the first instance judgment that acquitted the Defendant on the charge of violating the Public Official Election Act by publishing false facts concerning the prosecutor’s name, criminal records, and the city development project achievements in the instant facts charged, on the ground that there was no proof of crime.

A) The statement made by the Defendant in the KBS debate to the effect that he/she written the name of the prosecutor’s name on the previous offense is rather than claiming false facts on the previous offense related to the criminal judgment, and rather than claiming false facts on the previous offense related to the previous offense, the Defendant expressed his/her opinion that “the final and conclusive judgment of conviction due to a crime of a public official qualification shall be at the point of view of his/

B) From June 2, 2018 to June 3, 2018, the part that the Defendant recovered KRW 550.3 billion from the development profit to the citizens’ share in the book-type election campaign bulletin distributed to voters through the Gyeonggi-do Election Commission, and used KRW 92 billion in the construction cost of facilities behind the Dong Dong area, and used KRW 276.1 billion in the construction cost of facilities behind the Dong area, and the same purport of the election campaign speech carried out at the private letter of election for the Gyeonggi-do candidate located in the private letter of election in Kimpo-si around 17:00 on June 11, 2018 cannot be deemed as the publication of false facts because all important parts are consistent with the objective facts and are merely a somewhat exaggerated expression that differs from the truth or is not recognized as having recognized the falsity of the Defendant.

B. Examining the reasoning of the lower judgment in light of relevant legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the meaning of “finding” under Article 25(1) of the former Mental Health Act, the establishment of the crime of abusing authority and obstructing another’s exercise of rights, the meaning of “false fact” under Article 250(1) of the Public Official Election Act,

On the other hand, the prosecutor appealed the entire judgment of the court below, but did not state specific grounds for objection in the petition of appeal or appellate brief as to the remainder.

2. As to the Defendant’s ground of appeal

A. Whether the violation of the principle of an indictment only is violated

1) In a case where it is deemed that a prosecutor voluntarily exercised his/her authority to prosecute a substantial disadvantage to the defendant, thereby significantly deviating from the discretionary power, the effect of the indictment can be denied by deeming it as an abuse of the authority to prosecute. Here, arbitrary exercise of the authority to prosecute is not sufficient solely by negligence in the course of performing his/her duties, and at least with a certain intention to do so (see Supreme Court Decision 2017Do1623, Dec. 13, 2017, etc.).

The principle of an indictment only shall, in principle, be submitted when a public prosecutor institutes a public prosecution, and other documents or articles that may cause prejudice to the court on the case shall not be attached or quoted (Article 118(2) of the Rules on Criminal Procedure). It also includes “Prohibition of entry of other facts” that may cause prejudice to the court as a fact other than the matters required by law. Whether the violation of the principle of an indictment only is included in the contents of the indictment as “Prohibition of entry of other facts.” In light of the type and contents of crime as stated in the facts charged, etc., the issue of violation of the principle of an indictment only shall be specifically determined in the relevant case based on whether the facts stated in the indictment may cause prejudice to the judge or jury to ascertain the substance of the crime (see, e.g., Supreme Court en banc Decision 2009Do7436, Oct. 22, 2009).

2) The lower court determined that the charge did not violate the principle of an indictment only because it is difficult to view that the charge charged by the lower court did not constitute an abuse of the right of prosecution in violation of the objective duty, such as concealing major evidence favorable to the Defendant with a certain intention, or interfering with the investigation and display of evidence, etc., and it did not violate the principle of an indictment only because it is difficult to view that the charge charged by the lower court, which resulted in a judge’s

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the abuse of

B. Whether a crime of violating the Public Official Election Act by publishing false facts related to participation in compulsory admission procedures is established

1) Relevant legal principles

A) Article 250(1) of the Public Official Election Act (hereinafter “instant provision”) shall be punished by “a person who publishes or makes another person publish false facts about the place of birth, family relation, status, occupation, career, property, act, activity, organization to which he belongs, support from a specific person or specific organization of a candidate, his spouse, lineal ascendants or descendants, or siblings in favor of the candidate by means of a speech, broadcast, newspaper, communication, magazine, poster, propaganda document, or any other means for the purpose of getting a candidate elected or making another person elected.” The purpose of the provision is to punish the act of publishing false facts affecting the fair judgment of electors in order to ensure the fair election (see, e.g., Supreme Court Decisions 2006Do8098, Feb. 23, 2007; 2006Do8368, Mar. 15, 2007).

B) Under the representative democracy system, citizens realize the principle of national sovereignty and residents' autonomy by reflecting the political information provided in the election process and discussions. In order to ensure equal opportunity for election campaigns, the fairness of election campaigns should be ensured. However, the ultimate objective of election is to reflect accurately the free will of the people in the composition of the representative organ. Although the principle of free election is not specified in the Constitution, it is the legal principle inherent in the election system of a democratic state (see, e.g., Constitutional Court en banc Decision 93Hun-Ga4, Jul. 29, 1994). Since the fairness of election functions as a means to realize such principle of free election, it is necessary to ensure that all citizens are free to freely free to express political opinions and to freely express political opinions (see, e.g., Constitutional Court en banc Decision 90Hun-Ba4, Jul. 29, 1994). 196, the Constitutional Court en banc Decision 96Hun-Ba1, supra.

C) The Public Official Election Act provides for preparing and posting campaign posters (Article 64), preparing and sending campaign bulletins (Article 65), distributing written campaign promises (Articles 66), newspaper and broadcasting advertisements (Articles 69 and 70), broadcast speeches of candidates, etc. (Articles 71), speeches and interviews at open places (Articles 79 and 82), interviews and debates (Articles 81, 82), interviews and debates in which candidates, etc. are invited by organizations and media (Articles 82-2 and 82-3), and Internet advertisements (Article 82-7). Among them, discussions and debates in which candidates, etc. are invited by organizations and media, as one of the election campaign methods introduced to improve the political structure of candidates on the basis of the public election system under the Constitution, and one of the election campaign methods introduced to increase the fairness of election campaigns is to make sure that each candidate has an important opinion, such as his/her own decision-making and decision-making, and that another candidate has an important opinion, such as the right to vote and decision-making, and that one of the candidate has an important opinion.

Meanwhile, a candidate’s debate is strictly regulated in the form of debate, such as granting an opportunity to participate in the election for the fair and balanced balance between the candidates (see Articles 82(3), 82-2(7), and 14 of the Public Official Election Act, Article 45 of the Rules on the Organization and Operation of Election Debate Broadcasting Committee, and Article 23 of the Rules on the Composition and Operation of Election Debate Broadcasting Committee). As long as the basic conditions for such fairness and balance are complied with, the candidate, etc. shall be free and active, and shall be able to exchange and answer substantially as much as possible during the debate. The candidate’s debate is that the head of the public debate that allows the candidate to take part in one place, and that the candidate’s right to attend the debate should be more clearly activated, and that the candidate’s quality and opinion may be compared and evaluated as much as possible in the process of ex-ante inquiry or consultation with the public opinion that differs from those of the public opinion that the candidate has to answer.

Of course, strict measures need to be taken for expressions exceeding a certain limit, but it is more important to guarantee the freedom of expression more broadly for free discussions and mature democracy prior thereto. In order to function as the freedom of expression, there is room for a shot room necessary for survival, i.e., free and neutral space from legal judgment (see, e.g., Supreme Court en banc Decision 2014Da61654, Oct. 30, 2018). It cannot be a solution to impose heavy legal responsibilities on all inaccurate or inappropriate expressions for the necessity of fair election. Despite the importance of a candidate’s debate, if the debate is an election campaign method, there is a lot of concerns that the debate may interfere with the formal and arbitrary process of debate, due to the lack of time constraints, limitations on debate technology, etc. Furthermore, if it is difficult for State agencies to view all political expressions in the process of debate as a matter of official or political, and thus, it is difficult for them to uniformly verify the background and legal responsibilities of the public prosecutor’s right to speak, etc.

D) The instant provision is a penal provision. The penal provision ought to be strictly interpreted and applied in accordance with the language and text, and shall not be excessively expanded or analogically interpreted in the direction unfavorable to the defendant. Moreover, the meaning of the language and text used in the law ought to be interpreted in accordance with the systematic and logical interpretation method that clearly expresses the logical meaning of the language and text in light of the legislative purport and purpose of the relevant provision, etc. (see Supreme Court Decision 2017Do10122, Dec. 7, 2017, etc.). Taking into account the following factors: (a) the freedom of political expression and freedom of election campaign; (b) the contents and purport of the provisions on election campaign including a candidate’s debate under the Public Official Election Act; and (c) the function and characteristics of the candidate’s debate, etc., a candidate for public office, etc. should be careful to punish a candidate as a crime of publishing false facts as prescribed in the instant provision on the grounds of his speech during the debate process; and (d) the scope of the act subject to criminal punishment should be more specific and clear.

The term “public announcement”, which is the form of the instant provision, means “public announcement” or “public announcement”, in accordance with the prior meaning. However, if a public performance of communication regardless of the means or method is punishable as a crime of publishing false facts under the instant provision, there is an excessive restriction on the freedom of political expression and the freedom of election campaigns under the Constitution. Ultimately, the Public Official Election Act’s purpose of achieving the “election in accordance with free will and democratic procedures,” which is intended to be achieved through the means of securing fairness in election, is likely to interfere with the realization of the “election in accordance with free will and democratic procedures,” which is intended to achieve the objective of the public election law. Therefore, asking questions and answers, asserting, or asserting, or asserting that a candidate, etc. participates in the debate, without connection with the subject or context of the debate, ought to be seen as having actively expressed false facts in order to reveal the subject or context of the debate unilaterally, and, in the absence of special circumstances, the relationship between the person holding an ex post facto discussion and the entire context should be examined.

Furthermore, when distinguishing whether the expression at issue pertains to criminal punishment or an expression of opinion or abstract judgment, it shall be determined by taking into account the ordinary meaning and usage of the language, possibility of proof, the overall purport of the expression at issue and the context of the expression at issue, details of expression and social context. However, in cases where it is difficult to readily conclude that the expression falls under any category in light of the superior position of the freedom of expression under the Constitution and the principle of interpreting penal provisions, it shall be understood as having expressed opinions or abstract judgments in principle. Furthermore, in cases where a certain expression is consistent with objective facts in an important part in light of the purport of the entire contents of the published fact, even if there is a little difference or exaggeration from the objective facts in detail, it shall not be deemed as having been a publication of false facts (see Supreme Court Decision 2009Do26, Mar. 12, 2009). In particular, considering the function and characteristics of the debate at issue as seen earlier, the act of a candidate’s offering another candidate’s opinion or expression to the extent that it can be affected the accurate judgment by the candidate, not intentionally distorted or distorted another candidate’s opinion within 707.

Inasmuch as the Public Official Election Act separates “false fact” and “distort of fact” (see, e.g., Articles 8-4(1), 8-6(4), 96(1) and (2)1, and 108(5)2), if the content actively expressed is not false, it shall be careful in immediately assessing the entire statement solely on the ground that he/she silents about some facts regarding which the disclosure obligation is not legally required. Unless the expression made in the course of debate, question, answer, assertion, or counterargument intentionally distorted facts to the extent that the elector’s accurate decision is unreasonable, it shall not be evaluated as an act of publishing false facts.

2) Determination on the instant case

A) The lower court reversed the first instance judgment that acquitted Nonindicted 3 of the charges of this case on the violation of the Public Official Election Act by publishing false facts related to the compulsory hospitalization procedure with respect to Nonindicted 3, among the charges of this case, on the following grounds: (a) although the Defendant instructed Nonindicted 3 to proceed with the compulsory hospitalization procedure pursuant to Article 25 of the former Mental Health Act on several occasions from April 2012 to August 2, 2012, speaking at the debate of this case to the effect that Nonindicted 3 was not timely hospitalized into a mental hospital, it constitutes a public announcement of false facts because it distorted facts to the extent that it would misleads the fair judgment of the elector; and (b) the Defendant had the intention to publish false facts and the purpose of election.

B) However, examining the reasoning of the lower judgment and the facts found based on the evidence duly admitted in light of the aforementioned legal doctrine, the lower court’s determination is difficult to accept.

(1) First, we examine the Defendant’s remarks in the KBS debate.

(가) 피고인은 위 토론회에서 상대 후보자인 공소외 6이 “형님을 정신병원에 입원시키려고 하셨죠? 그 보건소장을 통해서 하지 않았습니까?”라고 질문한 데 대하여 “그런 일 없습니다.”라고 답변하였다. 피고인의 위 발언은 의혹을 제기하는 공소외 6의 질문에 대하여 이를 부인하는 취지의 답변을 한 것으로 평가할 수 있을 뿐 이를 넘어서 어떤 사실을 적극적이고 일방적으로 널리 드러내어 알리려는 의도에서 한 공표행위라고 볼 수는 없다.

In response to the defendant's answer to the above denial, the non-indicted 6 asked "I am confirmed to be a mentally ill person at the Seongbuk-gu Seoul Metropolitan City Mental Health Center entrusted to the Sungnam-si Hospital on the eightth floor of Sungnam-si without any questions or medical examination?" The defendant responded to this "I am unable to express her mother, her mother, her mother, her child, and her ability to engage in abnormal behavior, and her mother, low-sar, low-sar, low-sar, No. kin, male, male, and male, and this kind of diagnosis requested here, because her mother continued to receive mental treatment." However, I am the position that it is not possible to request directly, and because she is under the jurisdiction, I finally failed to do so."

The lower court acknowledged that the Defendant did not directly use the expression “the Defendant did not participate in the commencement of the compulsory hospitalization procedure against Nonindicted 3” in the above debate, but determined that the Defendant constituted a publication of false facts, inasmuch as the Defendant instructed Nonindicted 3 to proceed with the compulsory hospitalization procedure and concealed the fact that part of the above procedure was underway and distorted the fact that he actively stated the facts of objection in view of the whole. However, even according to the reasoning of the lower judgment, the above remarks were made in the course of debate, and the answer or explanation of the other candidate’s aggressive questions or suspicions was sufficiently possible and anticipated, and the actual Nonindicted 6 committed a suspicion of abuse of official capacity through subsequent inquiries. Examining the circumstances, major issues, whole context, etc. of the debate between the Defendant and Nonindicted 6, it is difficult to view that the Defendant actively made public the facts of objection by revealing any false facts without theme or context of the debate.

(B) According to the evidence duly admitted by the court below, Nonindicted 6 asserted that “the defendant abused his authority as a sexual South Korea market and forced Nonindicted 3 to be hospitalized into a mental hospital.” On June 7, 2018, the following day after the debate of this case was completed, Nonindicted 6 posted a letter “I would not select a person who wishes to be hospitalized into a mental hospital and be hospitalized in a mental hospital.” In light of the above circumstances before and after the debate of this case, Nonindicted 6 raised suspicions in the election process including the debate of this case and presented a statement of name to the effect that “The defendant was hospitalized by Nonindicted 3 and his family by abusing his authority to force him to be hospitalized into a mental hospital.” In light of the above circumstances, it can be deemed that Nonindicted 6’s attempt to have abused official authority and forced to be hospitalized into a mental hospital.”

이러한 사정에다가 위 토론회에서의 공소외 6과 피고인 사이의 질문과 답변 내용, 그 발언의 경위와 전후 문맥까지를 종합하면, 공소외 6이 위 토론회에서 아무런 전제사실이나 일시·장소 등의 특정도 없이 “형님을 정신병원에 입원시키려고 하셨죠?”라고 질문한 데에는 위와 같은 의혹을 제기하는 취지가 포함되어 있었다고 볼 여지가 있다. 그렇다면 피고인으로서도 공소외 6이 위 토론회에서 한 질문이나 이 사건 토론회를 전후하여 제기한 주장의 취지나 의도를 ‘직권을 남용해 불법으로 공소외 3을 정신병원에 강제입원시키려고 한 사실이 있느냐?’는 것으로 해석한 다음, 그러한 평가를 부인하는 의미로 “그런 일 없습니다.”라고 답변하였다고 볼 수 있고, 상대 후보자의 질문의 의미를 의도적으로 왜곡한 것이라고 단정하기는 어렵다. 또한 원심이 인정한 사실관계에 의하면, 피고인이 위 토론회에서 한 나머지 공소사실 기재 발언들에 그 표현의 적극적인 측면에서 허위로 단정할 만한 내용이 없다. 사정이 이와 같다면, 비록 피고인이 공소외 3에 대한 정신병원 강제입원 절차 진행에 관여한 사실을 언급하지 않은 채 위와 같은 발언들을 하였다고 하더라도, 피고인이 그와 같은 사실을 공개할 법적 의무를 부담하고 있었다고 볼 근거가 없는 이 사건에서 상대 후보자의 공격적인 질문에 대하여 소극적으로 회피하거나 방어하는 취지의 답변 또는 일부 부정확하거나 다의적으로 해석될 여지가 있는 표현을 넘어서서 곧바로 적극적으로 반대사실을 공표하였다거나 전체 진술을 허위라고 평가할 수는 없다고 보아야 한다. 이러한 피고인의 발언들을 사후적인 분석과 추론을 통하여 적극적으로 허위의 반대사실을 공표한 것과 마찬가지라고 평가하는 것은 표현의 외연을 확장함으로써 형벌법규에 따른 책임의 명확성, 예측가능성을 저해할 우려가 있다.

(2) Next, we examine the Defendant’s remarks in the MBC debate.

In the above debate, the Defendant asked that “I would like to make this argument that I would like to see the thickness of Non-Indicted 6’s imprisonment with a mental hospital. I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see, and that I would like to see, because I would like to see that I would like to see that I would like to see, because I would like to see, I would like to see that I would like to see, in the KBS debate, I would like to request that I would not respond to the above questions of the Defendant, and that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to answer the above questions of the Defendant.

C) Ultimately, the Defendant’s statement in this part of the facts charged cannot be deemed to constitute a publication of false facts as prescribed in the instant provision. Nevertheless, the lower court’s judgment convicting Nonindicted 3 of the violation of the Public Official Election Act by publishing false facts related to Nonindicted 3’s involvement in the compulsory admission procedure, which erred by misapprehending the legal doctrine on publication of false facts as prescribed in the instant provision, thereby affecting the conclusion of the judgment. Accordingly, the Defendant’s ground of appeal

3. Scope of reversal

For the same reasons as seen earlier, the part of the judgment of the court below guilty should be reversed. However, since the part of the judgment of the court below which violated the Public Official Election Act by publishing the remaining false facts related to Non-Indicted 3, such as denying the attempt to hospitalization at ○○ Mental Hospital Hospital Hospital, which constitutes the part of the judgment of the court below's

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendant, the part guilty (including the part not guilty in the grounds of appeal) of the lower judgment is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion, and the remainder of the appeal by the Prosecutor is dismissed. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Park Sang-ok, Justice Lee Ki-taik, Justice Lee Ki-taik, Justice Lee Dong-won, and Justice Noh Tae-ok, as to the violation of the Public Official Election Act

5. Dissenting Opinion by Justice Park Sang-ok, Justice Lee Ki-taik, Justice Lee Ki-taik, Justice Lee Dong-chul, Justice Lee Dong-won, and Justice Noh Tae-ok on the crime of violating the Public Official Election Act through publication of false facts

A. Based on the following circumstances, the Majority Opinion deemed that the Defendant’s remarks cannot be deemed as the publication of false facts as prescribed in the instant provision, and determined that the lower court erred by misapprehending the legal doctrine on the publication of false facts in its judgment that found the Defendant guilty of violating the Public Official Election Act by publishing false facts related to Nonindicted 3’s involvement in the compulsory admission procedure with respect to the instant facts charged.

① The Defendant’s remarks at the KBS debate cannot be deemed to have made public the fact of objection actively in order to reveal the facts unilaterally by revealing that he/she appeared in the process of responding to or explaining questions or suspicions of the other candidate. ② There is room to deem that Nonindicted 6’s question contains the intent to confirm the illegality of abuse of authority or compulsory hospitalization, and the Defendant respondeded to this meaning in denying this. In addition, it is difficult to readily conclude that the Defendant intentionally distorted the meaning of the other party’s question. In addition, even if the Defendant made the above remarks without mentioning the fact that he/she participated in the process of compulsory hospitalization at a mental hospital with Nonindicted 3, even though the Defendant made the above remarks without mentioning the fact that he/she participated in the process of compulsory hospitalization at a mental hospital with Nonindicted 3, there is no ground to deem that the Defendant is legally obligated to disclose the above facts, it is difficult to deem that the Defendant made a public announcement of his/her objection immediately or made a public announcement of the entire statement in light of the content of criminal laws and the content of his/her responsibility.

B. However, even though the Defendant participated in the procedure for compulsory hospitalization of a mental hospital against Nonindicted 3, the Defendant announced false facts by actively denying it, and thus, the Defendant cannot agree with the reasoning and conclusion of the Majority Opinion.

1) The purpose of this case is to ensure the fairness of election without impairing the freedom of election campaign by punishing the act of publishing false information that affects the fair judgment of the electors. In other words, by preventing the publication of false information favorable to the candidate, the purpose of allowing electors to make the right choice with accurate judgment data on candidates (see, e.g., Supreme Court Decisions 2006Do8098, Feb. 23, 2007; 2007Hun-Ba72, Mar. 26, 2009).

“Publication”, the form of the instant provision, regardless of the means or method thereof, refers to informing an unspecified or unspecified person of false facts. Although there is a possibility of spreading facts to an individual, if there is a possibility of spreading them to an unspecified or unspecified person, this requirement is satisfied (see, e.g., Supreme Court Decisions 98Do1992, Sept. 22, 1998; 2008Do11847, Dec. 22, 2011).

The term “fact” as referred to in the provision of this case refers to a report or statement of a specific past or current fact, which is substituted for an expression of opinion with a value judgment or evaluation, and its contents are able to be proved by evidence. Whether a certain expression is a statement of fact or an expression of opinion or abstract judgment is not simply distinguishable by the term of the same Section used, but rather by the legislative intent of ensuring the fairness of election, a comprehensive determination should be made by taking into account all the circumstances surrounding such expressions, namely, the ordinary meaning and usage of language, overall contents of the expression, the context where the expression in question was used, the background and method of expression, the other party, the possibility of proving the contents of the expression, and the identity of the speaker and candidate (see, e.g., Supreme Court Decision 2017Do6433, Dec. 22, 2017).

In addition, the phrase “false facts” as referred to in the provision of this case is sufficient that is inconsistent with the truth, and that is sufficient enough to have the elector make accurate judgments on candidates. However, in a case where important parts are consistent with objective facts in light of the overall purport of the published facts, it cannot be deemed a false fact even if there is a little exaggerated expression (see, e.g., Supreme Court Decision 2009Do26, Mar. 12, 2009). Whether an expression of false facts is expressed should be determined on the basis of the overall increase that the expression is made to electors, comprehensively taking into account the overall purport of the expression, objective contents, ordinary meaning of the words used, connection method of phrases, etc. (see, e.g., Supreme Court Decision 2015Do1202, May 14, 2015).

2) According to the reasoning of the lower judgment and the evidence duly admitted, according to the following facts, the Defendant instructed and urged the head of the branch public health clinic of the branch public health clinic, etc. under his command and supervision to compulsorily rehospitalize Nonindicted 3.

A) On April 2012, the Defendant, directly or through Nonindicted 7, directed the head of the branch of the branch of the public health clinic, either directly or through Nonindicted 7, to review whether compulsory hospitalization under Article 25 of the former Mental Health Act with respect to Nonindicted 3 is possible. As a result of the review, Nonindicted 1 reported that the Defendant is unable to proceed with the above compulsory hospitalization procedure several times, and the Defendant, whenever so, instructed Nonindicted 1 to the effect that compulsory hospitalization procedures can be conducted by interpretation under Article 25 of the former Mental Health Act or to proceed with the said compulsory hospitalization procedure.

B) On April 2012, the Defendant instructed Nonindicted 1, 2012, Nonindicted 1 to the effect that “The head of the center, who received an evaluation letter from Nonindicted 2, to the effect that Nonindicted 3 needs to be treated at present,” Nonindicted 3. Accordingly, Nonindicted 1 received an evaluation letter from Nonindicted 2, and delivered it to the Defendant.

C) The Defendant revised the instant written evaluation to the effect that “Nonindicted 3 needs to be hospitalized at present” as a penology, and ordered Nonindicted 1 to revise the said written evaluation. After the written evaluation was revised, the Defendant instructed Nonindicted 2 to revise the said written evaluation. The Defendant instructed Nonindicted 1 to receive the official seal of the Seoul National University Hospital head or the Center’s office on the revised written evaluation.

D) At the regular period from May 2, 2012, the head of the branch office of Sungnam-si changed from Non-Indicted 1 to Non-Indicted 4. The Defendant instructed Non-Indicted 4 to proceed with the compulsory hospitalization procedure under Article 25 of the former Mental Health Act with respect to Non-Indicted 3, directly or through Non-Indicted 7, several times from June 2012 to August 2012. The Defendant instructed Non-Indicted 4 to proceed with the compulsory hospitalization procedure under Article 25 of the former Mental Health Act with respect to Non-Indicted 3, even during the period of business travel from June 13, 2012 to June 22, 2012.

E) Around August 27, 2012, the Defendant directed Nonindicted 4, 4, and Nonindicted 8, and Nonindicted 9 to the effect that the procedure under Article 25(2) of the former Mental Health Act had been completed, and that the following procedure should be followed. At the time, the Defendant was urged Nonindicted 4, 8, and 9 to the effect that “whether the reason for failure to process work is changed.” The Defendant’s failure to process legitimate matters is a waiver of duty.” The Defendant was also urged to the effect that “The disciplinary action will be taken.”

F) On September 13, 2012 and September 17, 2012, the Defendant directed the persons related to the divided public health center, including Nonindicted 4 and Nonindicted 8, directly or through Nonindicted 7, to prepare an inquiry to ask the relevant agencies, such as the Ministry of Government Legislation and the Ministry of Health and Welfare, about whether it is possible to take measures for compulsory hospitalization under Article 25 of the former Mental Health Act at the present stage.

3) The Majority Opinion argues that the freedom of political expression and the freedom of election campaign should be guaranteed in the election of a representative democracy system, and that considering the function and characteristics of the candidate’s debate, speaking during the debate process cannot be punished as a crime of publishing false facts under the instant provision, barring special circumstances, such as where he/she unilaterally expresses false facts in the intention to reveal false facts. However, we cannot agree with the Majority Opinion’s logic that narrowly interpreted the scope of “public announcement” for the following reasons.

A) Of course, the right to vote of the people, the principle of free election, and the freedom of election campaign guaranteed by the freedom of expression under the Constitution need to be guaranteed to the maximum extent possible, as the premise of exercising the right to vote. However, even if the freedom of political expression, such as election campaign under the Constitution is guaranteed, it should be recognized to the extent that the functions and functions of representative democracy, the fairness of election, and the substantial equality among candidates

In this context, the term “fairness of election” refers to the guarantee of equal opportunity in the freedom of election and election campaign, etc., and without the fairness of election, the freedom of election cannot be seen as guaranteeing equal opportunity for election campaigns, etc. Therefore, the freedom of political expression, such as election campaigns, with the aim of freely announcing and exchanging political information and opinions on candidates, political parties, etc. in representative democracy, is acknowledged as the premise of the fairness of election. The fairness of election can function as the limited principle of such freedom (see, e.g., Constitutional Court en banc Decision 2011Hun-Ba163, Apr. 30, 2015).

B) The Public Official Election Act provides for a candidate’s debate as one of election campaign methods (Articles 81, 82, 82-2, and 82-3). Such a candidate debate is an important election campaign that reveals the candidate’s own political views, policies, political belief, morality, etc. by widely promoting or presenting it to the voters in the position of the candidate, thereby promoting discrimination with other candidates by revealing the candidate’s quality and political ability, and that it is not possible to reduce the possibility of mistort or distortion that may be possible on the sidewalk, etc. Meanwhile, the utility of the candidate debate is very significant in terms of the person who has the right to vote. The candidate debate serves as an important function to enable the person who has the right to vote to understand the candidate’s policy, political ideology, governance philosophy, important election issues, etc. and to make the best choice by comparing each candidate.

In addition, the candidate debate is the only election campaign in which the conflict between the candidates is directly revealed among the election campaign. For this reason, the debate of the candidate debate is the most dynamic and active among the election campaign, and the single or weak points among the candidates are clearly revealed. The candidates' debate can be assessed by comparing not only the advantages of the candidates but also the advantages of the candidates' debate.

C) A candidate’s debate has a very strong power and influence on the voters, and also recognizes the debate as the most important part of the provision of information to determine the candidate’s eligibility for public service. Moreover, it is necessary and important to verify the candidate’s eligibility for public service in an election for public office. As such, the freedom of expression should be guaranteed to the maximum extent possible in the course of the public debate of the candidate’s debate conducted to verify the candidate’s eligibility.

However, in the event that the propagation of false or distorted facts is allowed in the course of the public debate of a candidate for the above significance and function, or the degree of prohibition thereof is lowered, the right holder cannot believe the information he/she has become aware of in the debate, and the right holder has lost interest in the public debate and verification due to the assertion, counterargument, questioning, and reply in the debate, and the quality of the debate is lower. Accordingly, the interest and participation in the debate of the right holder is considerably lowered, and there is no active debate among the right holders on policies, important election issues, public service eligibility, etc. Furthermore, the right holder cannot make correct decisions through fair and accurate judgment, and the voting rate is also lowered, thereby impairing the result of the election.

As such, the dissemination of false facts or distortion of facts in the candidate debate seriously damages the original function of the election system and the nature of representative democracy by infringing the fairness of election in the election, which is the core means of realizing national sovereignty and representative democracy.

D) Nevertheless, as the majority opinion states, if a candidate’s debate does not punish a candidate’s expression of false facts as a crime of publishing false facts on the grounds that it is not an expression of such false facts actively and ex officio, it makes it impossible for the candidate to function as the most efficient and advanced election campaign by extinguishing the significance and function of the candidate’s debate, and the risk that only the candidate who actively made a specific statement in the debate will be held legally liable is increased. Accordingly, the candidate’s argument will be pointed out in a comprehensive and passive ambiguous manner without revealing the advantages and disadvantages of each other in detail and actively, and the dynamics and activeness of the debate cannot be expected. Ultimately, in the real election, the candidate’s debate is operated formally.

E) Furthermore, a candidate’s debate under the Public Official Election Act is premised on a broadcast relay (see, e.g., Articles 71(12), 81(8), 82(1) and (4), 82-2(10), and 82-3(2) of the same Act). A candidate participating in the debate is aware that his or her remarks will be perceived and disseminated to many voters who have a common sense of viewing broadcasts, and that he or she will effectively use his or her limited ripple power accordingly. In other words, the form of debate is taking the form of debate, and each candidate is intended to make a statement to make it widely known the discrimination of his or her political views, policies, and arguments through a broadcast relay. Considering the remarks in the candidate’s debate on the basis of such broadcast relay is contrary to the Supreme Court precedents on the meaning of “public announcement.”

F) The Majority Opinion recognizes the freedom of political expression, the freedom of election campaign, and the functions and characteristics of a candidate’s debate as a legal basis in the established legal doctrine of the Supreme Court, and the Dissenting Opinion does not deny the Dissenting Opinion. However, the Majority Opinion’s assertion that speaking in the debate process cannot be punished as a crime of publishing false facts, barring special circumstances, such as active and unilateral expression of false facts, is inconsistent with the logical attitude of the Supreme Court as well as the establishment of the crime of publishing false facts.

Although speaking at a candidate’s debate constitutes “public announcement” as provided in the instant provision, the established legal doctrine of the Supreme Court that strictly determines whether a candidate’s falsity or falsity is recognized according to individual matters is maintaining the fairness of election, the significance and function of the candidate’s debate, the freedom of political expression, and the freedom of election campaign, and performing its functions. The interpretation that limits the scope of “public announcement” as stated in the Majority Opinion may seriously undermine the balance between the fairness of election and the freedom of political expression.

G) “Publication” under the instant provision is not necessarily confined to cases where a direct expression of false facts is made. Even in cases of indirect and round-up expressions, it is sufficient to suggest the existence of such false facts in light of the purport of the entire contents expressed, and thereby, there is a possibility to affect the candidate’s evaluation. Therefore, the Majority Opinion’s assertion that speaking in the process of a debate on the candidate’s debate may be punished as the crime of publication of false facts that is an affirmative and unilateral expression of false facts, cannot be pointed out that it clearly violates the aforementioned legal doctrine.

H) The meaning of “proactive and unilateral expression” as referred to in the Majority Opinion is unclear and ambiguous. In interpreting the meaning of “proactive and unilateral expression” as stated in the Majority Opinion, the establishment of the crime of publishing false information is more likely to be entrusted to the arbitrary interpretation of the prosecutor’s office, the court, and other investigative agencies or judicial agencies, such as the public prosecutor’s office and the court, and the citizens are unable to find out what is the crime of publishing false information. Moreover, there is no fundamental reason to regard the crime of publishing false information differently from the active and unilateral expression of opinion. The meaning of “disclosure” is “an expression widely revealed to many people” and it is apparent that the expression of false information is not required differently from the literal interpretation of the provision of this case. The Majority Opinion is extremely careful to create new elements beyond the possible meaning of the text through interpretation rather than the legislative method.

4) The Majority Opinion assumes that a candidate’s debate is limited to the clarity of the expression, because the question, answer, and reply between the candidate and the candidate are made in an interest and continuous manner, i.e., a debate by the candidate. However, this is open to the way in which the candidate’s debate is held in the reality of election.

A) Today, a candidate’s debate is the most affected election campaign, and in particular, the process of debate in the debate is an important means to provide the voters with information and opportunity to accurately choose candidates by comparing with each other. Moreover, in a candidate’s debate, an opportunity to participate is given to candidates according to reasonable standards for fairness and balance, and the order and time of speaking are set, so debate is anticipated to take place within a limited period of time from the beginning through questions, answers, arguments and counterarguments. In the candidate debate, the question of whether the candidate is a candidate who effectively indicates his/her quality and ability within the limited period of time is determined, and thereby, the voters verify and assess the candidate’s eligibility for public office, suspension from office, morality, etc.

A candidate also prepares faithfully questions, answers, arguments, or objections, etc. prior to the debate in order to display his/her quality and ability by efficiently questioning, answering, asserting, or opposing another candidate within a limited period of time. In such a situation, if a candidate criticizes another candidate without preparation, or asks aggressive questions, then the negative effect may arise, such as the non-scriptive attitude, etc., and thus, the candidate focuses on the subject or election dispute issues that may bring him/her more favorablely.

Therefore, the election reality is extremely rare in cases where candidates are not expected or the subjects that can not be known by voters, i.e., interested or unexpectedly discussed.

B) Non-Indicted 6’s inquiry also does not arise from the KBS debate, i.e., interesting and unexpectedly. The fact that the Defendant intended to forced the Non-Indicted 3 to be hospitalized into a mental hospital was first asserted by Non-Indicted 3 around June 2012, and the Defendant had been continuously urged through SNS, etc. However, it was not mentioned at all that the Defendant instructed the persons related to the branch branch public health clinic, etc. of Non-Indicted 3 to be hospitalized by Non-Indicted 6. In the election of the Gyeonggi-do Gyeonggi-do governor of Gyeonggi-do, the seventh session of 2018, following this circumstance, Non-Indicted 6, the counter-party candidate of Non-Indicted 6, was involved in the procedure for hospitalization of Non-Indicted 3 through the press conference and name statement around the debate of this case.

At that time, the Defendant, who was the most significant candidate in the election of the Gyeonggi-do Governor at the time, was sufficiently aware of the circumstances that Nonindicted 6 would be asked about Nonindicted 3 in relation to the procedure of hospitalization at a mental hospital for Nonindicted 3 in preparation for the KBS debate. Accordingly, the Defendant prepared an answer in advance, and responded as prepared was the statement in this part of the facts charged. In addition, the Defendant denied the foregoing involvement even during the investigation and trial of the instant case, and the Defendant’s remarks were made in the same context.

C) In particular, at the MBC debate, the Defendant’s statement was made during the time of debate on the right to lead the candidate by 3/3. However, not during the process of responding to Nonindicted 6’s question, but prior to Nonindicted 6’s assertion, the Defendant himself/herself was an affirmative and unilateral statement on the fact that “the Defendant was involved in the procedure for hospitalization in a mental hospital for Nonindicted 3.” There is no room for applying the characteristics of the candidate’s debate, in other words, where the public defense and verification through reply, reply, questioning, and answer are carried out, i.e

Ultimately, the Defendant’s remarks in the instant debate do not differ from actively announcing the content that the Defendant unilaterally intended to deliver by using the prepared data.

D) Candidates may distort facts in favor of themselves by concealing facts that are unfavorable to themselves in preparing questions, answers, arguments, and counterarguments in a candidate’s debate in an intentional and planned manner. Unless there are special circumstances, such as active and unilateral expression in the debate process solely on the grounds that the speaking time is restricted, that is, the public peace and verification is carried out in a public and continuous manner, as alleged in the Majority Opinion, unless the speaking is punished as a crime of publishing false facts, the number of candidates who have prepared in a broad manner to intentionally multiple or ambiguous expression favorable to themselves in the debate is likely to make accurate and fair judgments. This is a serious threat to the election of the democratic ideology and representative democracy system.

5) The Majority Opinion is premised on the premise that the foregoing question may be deemed a comprehensive, because the purport of Nonindicted 6’s inquiry includes the purport of verifying the abuse of official authority or the illegality of forced hospitalization. However, it is difficult to accept that the Majority Opinion clearly erroneouss the content and purport of Nonindicted 6’s inquiry.

A) As seen earlier, the Defendant instructed or urged the head of the regional public health clinic, etc. to hospitalization of Nonindicted 3. Nonindicted 6 also confirmed that the Defendant participated in the procedure for hospitalization of Nonindicted 3 on the grounds of the following: (a) Nonindicted 2’s written evaluation of Nonindicted 2; (b) Nonindicted 10’s response to Nonindicted 10 in the department of mental health in the △△ Hospital; (c) Nonindicted 3’s statement; and (d) Nonindicted 11’s statement in Nonindicted 3’s wife before and after the debate in the instant case, Nonindicted 6 confirmed that the Defendant participated in the procedure for hospitalization of Nonindicted 3.

나) 공소외 6은 위와 같이 확인한 사실관계를 전제로 KBS 토론회에서 피고인에게 “형님을 정신병원에 입원시키려고 하셨죠?”라고 질문하였고, 이어서 좀 더 구체적으로 “그 보건소장을 통해서 하지 않았습니까?”라는 질문을 하였다. 위 ‘입원시키다’에서 ‘시키다’는 접미사로서 그 사전적 의미는 ‘어떤 사람으로 하여금 그렇게 되도록 하다, 그 일을 이루거나 그렇게 되도록 하다’이다. 따라서 공소외 6의 질문은 통상적으로 ‘피고인이 형님에 대한 정신병원 입원을 이루거나 형님을 입원되도록 하였는지 여부’를 묻는 것이라고 해석함이 타당하다.

Considering the ordinary meaning of Nonindicted 6’s inquiry, the overall content of the inquiry, and the social context in which the question was made, Nonindicted 6’s inquiry is understood as asking whether or not the Defendant instructed or urged Nonindicted 3 to be hospitalized in a mental hospital via the head of the branch public health clinic, etc. is an average perception of the electors. It is not a question for confirming the fact, but a question is given as an inquiry to confirm the illegality of abuse of authority or forced hospitalization.

C) In the KBS debate, Nonindicted 6 argued that “The Defendant’s mayor mobilizeds the official authority, and if he does not abuse his official authority, this written diagnosis cannot be made.” Nonindicted 6 asked Nonindicted 3 about the forced hospitalization of a mental hospital to Nonindicted 3, which was alleged by Nonindicted 6, that “the Defendant was involved in the procedure for hospitalization of a mental hospital to Nonindicted 3. However, the fact of involvement constitutes abuse of official authority.”

In light of the overall context of Nonindicted 6’s questioning and the content of Nonindicted 6’s assertion, Nonindicted 6 first confirmed the fact that the Defendant participated in the procedure of hospitalization at a mental hospital with respect to Nonindicted 3, and tried to clarify that the involvement in the procedure was abuse of authority or forced hospitalization. Therefore, Nonindicted 6’s inquiry is bound to be interpreted as question whether the Defendant was involved in the procedure of hospitalization at a mental hospital with respect to Nonindicted 3.

D) A certain expression is a multiple and comprehensive meaning of the word used in the expression, or the objective and overall meaning of the expression is unclear, such as where the relevant facts are complicated or the combination of facts and opinions are combined, and thus there is a possibility to interpret it in a different sense. However, the question and the defendant’s answer cannot be deemed to constitute such cases, and the objective and practical question and answer are the definite question about the “the fact that the defendant was involved in the procedure for hospitalization in a mental hospital with respect to Nonindicted 3” that constitutes a single fact.

6) The Majority Opinion argues that the Defendant only responded to the purport that he passively refrains from or defends against the other candidate’s aggressive question during the debate process of the instant debate, and that the Defendant’s speech cannot be evaluated as having actively published the opposing fact or as having made the entire statement false. However, it is reasonable to view that the Defendant’s speech as a whole clearly expressed the aforementioned false fact as a whole, and as such, it is reasonable to see that

A) The meaning of the answer to the question cannot be interpreted separately, and it is inevitable to interpret the answer as a combination of questions and answers. Even if the answer is simply denied or simple, if interpreted along with the question, it can be sufficiently known that the answer is an active and specific answer that denies or affirming the content of the question. As such, accepting simple denial or simple answer in the same sense as an active and specific answer is a normal interpretation method, and accords with the Supreme Court precedents. However, the Majority Opinion cannot be concluded by excessively emphasizing the fact that there is no content to readily conclude that the Defendant’s individual remarks are false, it is difficult to understand that the Defendant’s denial of answer is not treated as an active and specific answer.

B) In the KBS debate, the Defendant responded to the question of Non-Indicted 6 as “I do not have any question.” The Defendant continued to answer the question of Non-Indicted 6, “I will have “I will have no question,” and “I will have expressed her mother, her mother’s and her ability to express her horses and vehicles, and have engaged in any abnormal behavior, and, in fact, her mother, low-scar, low-scar, kn, domin, domined, and asked the diagnosis here, because she had actually been under mental treatment and continued to do so.” However, the Defendant responded to the additional answer to the question of Non-Indicted 6, “I will not have directly requested it, and I would have finally failed to do so because I had jurisdiction over it.” The comments were made the same content in MBC debate.

The Defendant made a statement to the effect that, rather than simply denying the answer to Nonindicted 6’s question, the Defendant’s instruction and demand unfavorable to himself/herself is concealed, and that, as a whole, it can only be interpreted as “the Defendant did not have any fact involved in the hospitalization procedure at a mental hospital for Nonindicted 3” by viewing only the facts favorable to himself/herself. The Defendant’s statement to the effect that it is apparent that the Defendant’s explanation was made by actively and actively citing specific facts, rather than mere implied or omission, there is no room for any different interpretation, and the entire purport thereof is contrary to objective truth

C) In order to determine whether the Defendant’s above remarks are a public announcement of fact or a false statement of opinion, each individual statement should not be understood separately, and the meaning thereof should be interpreted by comprehensively taking into account the contents of the entire statement, the context where the pertinent speech was used, and the impressions that the elector would have received when the said speech was made.

According to the above legal principles and the determination criteria, the Defendant’s speech content contradicts the established legal principles of the Supreme Court precedents, and the Majority Opinion argues that the Defendant’s failure to individually subdivide the Defendant’s remarks and to state some facts on the grounds that there is no content to readily conclude that it is false is not “public announcement of false facts” is contrary to the established legal principles of the Supreme Court precedents, and is distinguishable from the people’s legal sentiment. The Majority Opinion argues that: (a) it is difficult to interpret that Nonindicted 3’s act was seriously committed and thus his mother and sibling requested the diagnosis of Nonindicted 3. The Defendant finally failed to proceed with the procedure. The Defendant did not participate in the hospitalization procedure of a mental hospital with respect to Nonindicted 3.

7) In conclusion, the Defendant’s statement was made by actively making a false statement on specific facts. In addition, the Defendant’s statement intentionally distorted facts to the extent that the elector’s accurate judgment was distorted by comprehensively considering the fact that Nonindicted 3 instructed and urged his subordinate employees to be hospitalized in a mental hospital with respect to Nonindicted 3, thereby concealing or concealing the fact.

A) In the debate of this case, Nonindicted 6 did not ask the Defendant questions to hear his opinion on the illegality of abuse of authority or forced hospitalization, but did not appear to have been asked to clarify the fact that “the Defendant was involved in the procedure for hospitalization in a mental hospital with respect to Nonindicted 3,” which was hidden by the Defendant, and then asked Nonindicted 6 to clarify the illegality of the involvement.

In the KBS forum, Non-Indicted 6 asked at the DBS forum, “PPPPPPPPPDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDD

Therefore, it is reasonable to view that Nonindicted 6’s discussion of this case did not sufficiently verify the “the fact that the Defendant was involved in the procedure for hospitalization in a mental hospital against Nonindicted 3,” but rather obstructed Nonindicted 6’s prior verification through follow-up inquiries by Nonindicted 6 by actively expressing the fact contrary to the truth.

B) As seen earlier, Nonindicted 6’s inquiry is not an interesting and unexpected action. Therefore, on the premise that public peace and verification in the candidate’s debate are e.g., interesting, Nonindicted 6’s inquiry cannot be deemed to include abuse of authority or the illegality of forced hospitalization, and the Defendant’s answer thereto should be deemed to be a statement with the awareness that “the Defendant did not participate in the procedure of hospitalization at a mental hospital with respect to Nonindicted 3,” contrary to objective truth.

C) Also, considering the fact that the Defendant’s answer following the answer that “I do not have any such an opinion,” and that the Defendant did not use an evaluation expression such as “illegal,” or “illegal,” while speaking in the debate of this case, the entire content of the Defendant’s statement constitutes a false answer that the Defendant actively denies Nonindicted 3’s involvement in the procedure for hospitalization in a mental hospital, and thus constitutes a publication of false facts that can prove.

D) Inasmuch as Nonindicted 6’s inquiry is about the Defendant’s act as a sexual male market, Nonindicted 6’s inquiry is about important matters relating to the Defendant’s eligibility for public service, suspension from office, morality, etc. as a public official, and cannot be said to be a personal attack inquiry. It can be deemed that the Defendant made a statement contrary to the truth, thereby hindering the elector’s accurate and fair judgment.

E) In light of the legislative purport of the instant provision, “distort of fact” that is not prescribed in the instant provision is distinguishable from the “distort of fact,” but it cannot be deemed that the “distort of fact” is an exclusive or selective relationship that cannot be included in the concept of “distort of fact.” Thus, the said “distort of fact” includes the fact that, as a whole, it is difficult to view that it is true as a whole, to such an extent as to misleads the exact judgment of the elector by either hiding or opposing a part of the fact, or by intentionally distorted the fact, such as decentralization, exaggeration, exaggeration, or lusation.

F) The Defendant’s instruction and demand is not a matter for which the duty to disclose to the public is not granted under the law, and it does not have any content to be readily concluded that the Defendant’s some remarks are false, and whether the Defendant’s remarks constitute false facts depending on the overall content of the Defendant’s remarks ought to be determined. Therefore, the Defendant’s remarks also constitute a case where, in relation to the question to verify the involvement in the hospitalization procedure at a mental hospital for Nonindicted 3, the Defendant intentionally distorted or distorted the fact, thereby making an elector’s fair and accurate judgment. In full view of the fact, it is against the truth that “the

C. Sub-decision

In the same purport, the lower court was justifiable to have convicted Nonindicted 3 of the violation of the Public Official Election Act by publishing false facts related to Nonindicted 3’s involvement in the compulsory admission procedure. In so doing, the lower court did not err by misapprehending the legal doctrine on “public announcement of false facts” under the instant provision.

As above, I express my dissenting opinion as to the Majority Opinion.

Justices Kwon Soon-il (Presiding Justice)