[1] The meaning of "a person who intends to become a candidate" under Article 113 of the Act on the Election of Public Officials and the Prevention of Election Malpractice

[2] The case holding that the defendant's act of failing to state the study period in his/her parliamentary report "the president of the general graduate school established at ○○ University" constitutes an act of publishing false facts under Article 250 (1) of the former Election of Public Officials and Prevention of Unlawful Election Act

[1] Article 113 of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of March 12, 2004) / [2] Article 250 (1) of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of March 12, 2004)

[1] Supreme Court Decision 99Do307 delivered on June 11, 199 (Gong1999Ha, 1453) Supreme Court Decision 2001Do1012 Delivered on June 12, 2001 (Gong2001Ha, 1662) Supreme Court Decision 2004Do7419 Delivered on January 27, 2005 / [2] Supreme Court Decision 2003Do1792 Delivered on July 11, 2003

Defendant

Prosecutor

Attorney Kim Jong-soo et al.

Seoul High Court Decision 2004No1601 delivered on October 12, 2004

Of the judgment below, the part on the violation of the Election of Public Officials and the Prevention of Election Illegal Act due to the publication of false facts and the part on the violation of the Election of Public Officials and the Prevention of Election Illegal Act due to the distribution of documents by unlawful means shall be reversed, and this part of the case shall be remanded

The grounds of appeal are examined.

1. As to the contribution act

The "person who intends to become a candidate" under Article 113 of the Act on the Election of Public Officials and the Prevention of Election Malpractice (amended by Act No. 7189 of Mar. 12, 2004; hereinafter the "Act") includes not only those who are definitely expressed by the candidate's intention, such as filing an application for success with a political party or punishing activities to obtain a candidate from a general elector, but also those who can objectively recognize that he/she has an intention to run for an election in light of his/her status, contact, speech, and behavior (see Supreme Court Decision 2004Do7419, Jan. 27, 2005, etc.).

The court below found the defendant not guilty of this part of the charged facts on the ground that the defendant, based on the facts of the decision that was admitted in full view of the adopted evidence, expressed his intention to resign in the competition of the candidate for the 17th National Assembly election (name of party and name of constituency omitted) prior to the contribution act of this case on January 17, 2004, on the ground that he did not correspond to the "person who wishes to become a candidate" at the time of January 20, 2004. In light of the above legal principles and records, the court below's findings and decision of fact are just, and there is no error of law such as violation of the rules of evidence or misconception of facts due to insufficient deliberation, as otherwise alleged in the ground of appeal.

2. As to the publication of false facts

A. Summary of the facts charged

At the third simultaneous local election, the Defendant was elected to a member of Seoul Special Metropolitan City Council (election district name omitted), and was promoted in the 17th election of the 17th National Assembly member (election district name omitted) implemented on April 15, 2004. For the purpose of getting elected or getting elected, the Defendant cannot publish false facts about his academic background in favor of a person who wishes to be a candidate by a propaganda document or other means, and even if he did not state his name and academic period at the time of graduation or completion, it includes false facts, even if he did not state his name and academic period at the time of graduation or completion;

On January 16, 2004, the defendant's parliamentary report of the Seoul Special Metropolitan City Council members, 3,200 or more of the above apartment residents' personal mail box, etc., stating that the defendant was enrolled in the first university education graduate school for one year and that the defendant could not have graduated from or have completed the above graduate school, the defendant's false information is published by putting about 3,200 or more of the defendant's parliamentary report of the Seoul Special Metropolitan City Council members of the first university education graduate school, which is likely to cause the defendant to have graduated from or have completed the above graduate school.

B. The judgment of the court below

Article 250(1) of the Act provides that “The court below shall limit the freedom of election campaign to the persons who have entered the name of the university or the vice-chairpersons of the university or the vice-chairpersons of the university or the vice-chairpersons of the university or the vice-chairpersons of the university or the vice-chairpersons of the university or the vice-chairpersons of the university or the electorates of the university or the electorates of the above academic background to the extent of reasonable publication.” As such, the court below shall limit the application of the methods stated in the above facts in light of the fact that the defendant's act of violating the above Article 250(1) of the Act does not include only the case of posting the academic background directly or through documents issued by the electorates such as campaign posters or the election campaign bulletins, regardless of the type of such medium, and thus, it shall be deemed that the defendant's act of publishing the academic background was an omission of the name of the university or the vice-chairpersons of the university or the vice-chairpersons of the university or the vice-chairpersons of the university or the vice-chairpersons of the university.”

C. Judgment of the Supreme Court

However, we cannot accept the above judgment of the court below for the following reasons.

In other words, even though the statement of "the president of the first university education graduate school" in the parliamentary report is sufficient to allow a normal elector to recognize the above graduate school as a graduate or a person who has completed the above graduate school, the concept of academic background is included in the statement. On the other hand, according to the reasoning of the judgment below, the first university teachers' college member is a regular academic background as prescribed by the law. Thus, the above statement constitutes "the entry of regular academic background" under Article 250 (1) of the Act (see Supreme Court Decision 2003Do1792, Jul. 11, 2003). Since the defendant stated the above statement in the legislative report, the defendant stated the above statement in the election campaign poster or election campaign bulletin, there is no legal basis to treat the above statement differently from the case where it was inserted in the campaign poster or election campaign bulletin.

However, Article 250(1) of the Act provides that any false fact about his/her academic background shall not be published in favor of any person who intends to be a candidate by means of a propaganda document, etc., and any false fact shall be included in the case of failing to enter the name of the school at the time of graduation or completion in a regular academic background at the time of publication. Meanwhile, according to the reasoning of the judgment below, the first university teachers' college may register at least five semesters and receive a master's degree only at least two semesters, and the Defendant completed the four-semester course and was removed from the register by non-registration. Thus, if the Defendant, who completed the four-semester of the above graduate school, entered the "the vice-chairperson of the first university education graduate school at the graduate school at the beginning of the first university and the branch thereof" in his/her parliamentary report, he/she should have entered it up to the academic period, and the omission of such a statement constitutes the publication of false facts under

Nevertheless, the judgment of the court below otherwise is erroneous in the misapprehension of legal principles as to the publication of false facts under Article 250 (1) of the Act, which affected the conclusion of the judgment. Thus, the ground of appeal pointing this out has merit.

On the other hand, as long as the violation of the law due to the publication of false facts and the violation of the law due to the distribution of documents by the method of unlawful act are in a commercial competition relationship, such unlawful act has influenced the conclusion of the entire judgment, and the judgment of the court below on this part should be reversed in its entirety.

3. Conclusion

Therefore, among the judgment below, the violation of the law due to the publication of false facts and the violation of the law due to the distribution of documents by unlawful means are all reversed, and this part of the case is remanded to the court below for a new trial and determination. The prosecutor's remaining appeal is dismissed and it is so decided as per Disposition by the assent of all participating Justices

Justices Yang Sung-tae (Presiding Justice)