[1] Requirements and criteria for determining whether a person constitutes “a person who intends to become a candidate” as defined in the crime of publishing false facts under Article 250(2) of the Public Official Election Act

[2] In a case where the defendant was prosecuted for violating the Public Official Election Act on the ground that he published false facts for the purpose of making him not elected in the next election for the National Assembly member by sending mobile phone text messages to local residents and party members of the National Assembly member Eul, a vice-chairperson of the Public Officials Election Commission of the National Assembly member Eul, who was the head of the political party Gap, who was dissatisfied with the public in the examination of the head of the political party Gap, and was indicted for violating the Public Official Election Act, the case holding that the defendant was not guilty on the ground that he did not constitute the "person who wishes to become

[1] The legislative purpose of Article 250(2) of the Public Official Election Act is not only to protect the reputation of “a person who intends to become a candidate,” but also to secure the fairness of election. In order for a person who intends to be a candidate to be a candidate, it is insufficient to simply have subjective intent to become a candidate, and it is probable that a candidate may become a candidate by starting a minimum preparation, etc. to be held in fact. In the application of Article 250(2) of the Public Official Election Act, if the provisions of Article 250(2) are applied, a fine of at least five million won shall be imposed and invalidated (Article 264 of the Public Official Election Act). Election rights and eligibility for election shall be limited for five years after a fine is finalized (Articles 18(1)3 and 19 subparag. 1 of the Public Official Election Act), and deposit money returned after election shall be returned again, taking into account that there is no objective expression that a candidate will be elected after election, and thus, it is more likely that a candidate may be punished for any violation of political defamation.

[2] In a case where the Defendant was prosecuted for violating the Public Official Election Act by publishing false facts for the purpose of getting elected in the next election of National Assembly members by sending mobile phone text messages to local residents and party members in the constituency of National Assembly member Eul, the Vice-Chairperson of the Public Officials Election Commission of the Republic of Korea, the case holding that in a case where the Defendant’s text messages sent by the Defendant does not constitute “a person who wishes to become a candidate” because it is difficult to find an objective proof that he prepared to go in the next election of a National Assembly member, such as making an application for official election in a political party, or expressed externally externally because it is difficult to find out an objective proof that he would express his candidate externally, and it does not constitute “a person who wishes to become a candidate” in the text messages sent by the Defendant, it appears that the Defendant did not have any negative purpose of emphasizing the Defendant’s activities or activities in the next election of a National Assembly member in mind in an election of a National Assembly member for the next time for the second time for the period of two years, on the ground that there is no negative evaluation of the Defendant’s election in mind.

[1] Article 21 of the Constitution, Article 307(2) of the Criminal Act, Article 18(1)3, Article 19 subparag. 1, Article 250(2), Article 264, and Article 265-2 of the Public Official Election Act / [2] Article 250(2) of the Public Official Election Act, Article 325 of the Criminal Procedure Act

[1] Constitutional Court en banc Order 201Hun-Ba75 Decided June 27, 2013 (HunGong201, 789)

Defendant

Defendant, Prosecutor

Jung-jin et al.

Law Firm Oyn Law Firm, Attorney Kim Gyeong-won

Seoul Central District Court Decision 2014Gohap849 Decided January 14, 2015

The judgment of the court below is reversed.

The defendant shall be innocent.

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

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

1) Whether it is false

A) At the time of March 28, 2014 and the 31st day of the same month, the Defendant made a statement from Nonindicted Party 1, who was an official examiner, to the effect that “Nonindicted Party 2, who was a member of the public prosecution, would have become aware of the facts indicated in the instant text message,” and thus, the content indicated in the instant text message constitutes not a false fact but a true fact. In other words, the instant text message is in the form of the Defendant’s full text message to Nonindicted Party 1, and thus, whether the content of the text message is false or not should be determined based on “whether Nonindicted Party 1 delivered the above statement to the Defendant by Nonindicted Party 2.” However, the lower court determined that the content of the instant text message was false on the ground that “ Nonindicted Party 2 did not have made the pertinent statement.”

B) Since there is a limit to not revealing confidential information that was known during the examination under relevant provisions, it is difficult for the lower court to believe the content of the statement made by the official examination committee at the lower court. In addition, Nonindicted 1 stated in the lower court’s court that “In the process of the official examination, Nonindicted 1, a member who was seated on the right before and after voting, made a statement to the effect that “it is disadvantageous to Nonindicted 3, if the Defendant entered the port,” and Nonindicted 2 also talked that it is similar to that of the instant text message.” Therefore, at the time of the official examination, Nonindicted 2 made a statement as to the content of the instant text message.

(ii) the recognition of falsity;

In light of the fact that Nonindicted 1’s speech content, Defendant’s text message “whether there was the same fact as the instant text message during the process of official examination,” which was sent by Nonindicted 1 to a Gongcheon Review Committee, did not answer any question, and the chairman of ○○○○ Central Party’s official election management committee accepted Defendant’s objection and demanded another competition. As such, even if the content of the instant text message was false, there was considerable reason to believe that the Defendant was true.

3) Whether Nonindicted 2 wishes to become a candidate

At the time of the instant case, Nonindicted 2 did not officially express his intention to run for the election of the National Assembly members that will be held on April 2016, or opened an election campaign office, etc. Accordingly, Nonindicted 2 did not constitute a person who wishes to become a candidate solely on the ground that Nonindicted 2 had an incumbent member’s status.

(iv) the purpose of the abortion;

The defendant is merely sending the text message of this case to believe that Nonindicted 2, who is a member of the National Assembly, committed an inappropriate act in the process of a astronomical examination, and to enforce political responsibility therefor, and there was no purpose to prevent Nonindicted 2 from being elected in the next election of a member of the National Assembly.

B. Unreasonable sentencing (Defendant, Prosecutor)

The sentencing of the court below (the fine of KRW 3,00,000) is too unreasonable (the defendant). On the contrary, the above sentencing is too unhued and unreasonable (the prosecutor).

2. Determination

A. Summary of the facts charged in this case

On June 4, 2014, the Defendant was a preliminary candidate who filed an application for notarial service to ○○○○○○○○ Party for the local simultaneous elections on June 4, 2014, and Nonindicted Party 2 was a member of the National Assembly for the 19th National Assembly members in the Gu-gu Seoul Special Metropolitan City, ○○○○○○○○ Party.

On March 28, 2014, the Defendant, who was notified by the ○○○○○ City Party, of his refusal to conduct an official examination, and was aware that he respondeded to it, and expressed his objection against the public tender to himself. The Vice-Chairperson of the Public Security Examination Committee, who was aware of his refusal to object to the public tender, was trying to spread false facts against the residents and party members of the local constituency of Nonindicted 2 National Assembly members and to prevent them from being elected in the next election of National Assembly members.

The facts are as follows: (a) Nonindicted 2 vice-chairperson referred to as “if the Defendant was put in, the head of the Gu is inside the warning line; (b) Nonindicted 3 did not strongly induce the opposing vote; and (c) Nonindicted 3 candidates did not have been paid for the recruitment of Nonindicted 3 candidates; (d) notwithstanding the fact, the Defendant sent 20 letters at one time using a phone with the function of sending mobile text messages at the office of the agency sending text messages from Gangnam-gu Seoul ( Address omitted) to 18:24, the office of the office of the agency sending text messages from Gangnam-gu, Seoul ( Address omitted) to 31:4:47 on March 31, 2014; and (e) the Defendant sent 32,576 members, including the residents and party members, etc., who were local constituencies of the above Nonindicted 2, the Internet address linked to the same mobile phone text messages as indicated in the following mobile phone and announced the fact that Nonindicted 2 was not made public with the intention of preventing the election of the National Assembly member of the next National Assembly.

On March 28, 2014, the members of the △△△△△△ Group, who were members of Nonindicted 2, who were members of the political party from the Gu, expressed the result of the official recruitment process and told the following as follows. The vice-chairperson, who was the member of the political party from Nonindicted 2, who was a member of the political party, strongly led the members of Nonindicted 3, who were members of the political party, to vote against the Defendant. This led most of the members of the political party, who were members of the political party from the political party, to go against the Defendant. This is because △△△△△△△ and the future of the Republic of Korea are bound to be present if they silent and use this official behavior in bad and bad behavior. The reason why the Joseon was the fact that it was an official title, and those who were members of the political party, such as the sales office, etc., who were members of the political party, were members of the political party, and were members of the political party, who were members of the political party, were members of the political party.

B. Whether the facts are false

1) The judgment of the court below

In full view of the following circumstances duly admitted and examined evidence, the lower court determined that the text message of this case was false because the content of Nonindicted Party 2’s text message was contrary to objective facts, to the effect that Nonindicted Party 2 “if the Defendant was inserted, Nonindicted Party 3 would not be the head of the Gu, thereby inducing the Defendant to cast an opposite vote, and most members accordingly led to the opposite vote against the Defendant.”

① Non-Indicted 2 makes a consistent statement during the investigation process to the present court, clearly stating that there is no fact that the above statement was made in the process of official examination.

② At the time, Nonindicted 5, who participated in the review process as a Gongcheon Review Committee, stated that Nonindicted 2 did not have made the above remarks at an investigative agency, and Nonindicted 6, who was a Gongcheon Review Committee, also stated that Nonindicted 2 did not have made the above remarks in this court.

③ At the time, Nonindicted Party 1, as a witness of this Court, appeared in this Court, and stated to the effect that “ Nonindicted Party 2, after the completion of the Gongcheon examination, heard that other members talked about the above remarks, and made such remarks to the same purport as a mixed-level, but there was no fact prior to the Gongcheon examination, and there was no fact that Nonindicted Party 2 led Nonindicted Party 2 to escape from the Gongcheon examination.”

2) Determination of the immediate deliberation

A) In addition to the aforementioned circumstances and the aforementioned, in the court of the court of the court below, Nonindicted 2 stated that “At the time of the court of the court below’s proper instruction is different from each other since it was the persons who were several organizations, and there were the examiners who were not aware of each other, so they cannot leave a specific person and make a speech without permission.” In addition, considering the following, it cannot be deemed that Nonindicted 2 made a statement to the effect that “in the event of inserting the defendant, the head of the present head of the Gu is inside the light line” during the process of the official examination, such as the text message in this case.

B) The Defendant asserts that the instant text messages are in the form of a medical specialist, and that the Defendant’s remarks from Nonindicted 1 to the same purport as the instant text messages are true, and that the instant text messages do not constitute false facts.

However, although the Defendant’s text message is in the form of a medical specialist, it stated in the text message that “Non-Indicted 2 shall leave the Defendant from the TPP,” and that “this would be able to attend the future of △△ and the Republic of Korea if he silents and uses this public behavior in a bad and bad behavior.” Therefore, the purport of the above text message is that Non-Indicted 2 member made the above speech, and accordingly, it is premised on the fact that Non-Indicted 2 was opposed to the Defendant. As such, insofar as it is not recognized that Non-Indicted 2 delivered the above speech as the Defendant’s assertion, the content of the message can be seen as false in light of the overall facts.

Even if the content of the message of this case is merely a mere mere full text of Nonindicted Party 1’s speech, it is reasonable for the lower court to have acknowledged that: (a) Nonindicted Party 1 made a speech in this court on the official map restaurant with the Defendant, Nonindicted Party 7, and Nonindicted Party 8 on March 28, 2014; or (b) Nonindicted Party 3 did not talk to the Defendant to the effect that, if the Defendant participated in the competition process by the vice-chairperson, Nonindicted Party 3 would fall from the competition line. Rather, the Defendant and Nonindicted Party 7 clearly expressed to the effect that, at that time, the Defendant and Nonindicted Party 7 clearly expressed that it was not true, that Nonindicted Party 1 was written in the instant text; and (c) Nonindicted Party 7, who was present at the said meeting, did not have made a statement on the content of the instant text message at that time, and that Nonindicted Party 1’s statement and Nonindicted Party 2 did not appear to be “the Defendant’s statement to the effect that it was not a 1’s statement or 2’s statement.”

(c) the recognition of falsity;

1) The judgment of the court below

In full view of the following circumstances, the lower court determined that the Defendant did not have any perception of falsity.

① At the court of the court below, Nonindicted 1 stated that “At the time, Nonindicted 1 made a talk to the same purport as the above text messages. Rather, at the time, Nonindicted 7 expressed clearly that the Defendant and Nonindicted 7 made a talk to the same purport and made it clear that it was not true.” Nonindicted 7, who was present at the above meeting, stated that “at the time, Nonindicted 1 made a speech at the meeting as indicated in the instant text messages, and Nonindicted 1 made a statement to the effect that “at the time, Nonindicted 1 made a speech at the meeting, and Nonindicted 1 made a talk to the same purport, and Nonindicted 1 made a statement to the effect that “I would not do so,” and that “I would not talk to the effect that I would like to do so.”

② Even when examining Nonindicted 8’s pocket book presented by the Defendant as an explanatory material, Nonindicted 1’s talked to the same effect as the instant text message at the above gathering is not entirely indicated.

③ The Defendant asserts from Nonindicted 1 that he heard the foregoing talk, and confirmed the facts to three astronomical examiners, including Nonindicted 9 and Nonindicted 6. However, even according to the Defendant’s own statement, the Defendant requested the confirmation of facts to Nonindicted 9 and Nonindicted 6, and that he did not answer any question and received it as a positive purport. However, this is merely a arbitrary judgment of the Defendant. In addition, Nonindicted 6 stated in the lower court’s trial to the effect that “I have no memory requested the confirmation of facts from the Defendant.”

④ On March 31, 2014, around 14:32, the Defendant sent the instant text message to Nonindicted 2, who was not a fact in the course of transmitting the text message as it is. However, the Defendant, on March 30, 2014, sent the text message to Nonindicted 2, to the effect that it would request the presentation of opinions. However, on March 30, 2014, the Defendant had already opened a video linked to the instant text message to allow many and unspecified persons to view it. Moreover, the Defendant unilaterally notified Nonindicted 2 of the fact that he was sent the instant text message from around 15 minutes to March 31, 2014, despite having determined the time limit for confirmation of the fact, and notified Nonindicted 2 of the fact that he was sent the instant text message to Nonindicted 2 on March 31, 2014.

2) Determination of the immediate deliberation

In light of the above circumstances properly explained by the court below, it cannot be recognized that the defendant actively confirmed whether the contents of the text message of this case are true or not, and otherwise, it is difficult to view that there were reasonable grounds to believe that the defendant was a fact in the content of the text message of this case, and therefore, it is difficult to accept the defendant's assertion that the defendant did not have awareness of falsity. The judgment of the court below is just

D. Whether Nonindicted 2 constitutes “a person who intends to become a candidate”

1) Relevant legal principles

“A person who intends to become a candidate” in Article 250(2) subparag. 1 of the Public Official Election Act includes not only a person who is scheduled to leave an election but also a person who is officially expressed externally by a candidate, such as filing an application for success with a political party or punishing for an activity to obtain a candidate from a general elector, but also a person who can objectively recognize that he/she has an intention to run for an election in light of his/her status, contact, and speech and behavior (see, e.g., Supreme Court Decision 2011Do168, Mar. 10, 2011).

2) Determination

A) The legislative purpose of Article 250(2) of the Public Official Election Act is not only to protect the reputation of “a person who intends to become a candidate,” but also to ensure the fairness of election. In order for a person who intends to be a candidate to be a candidate, it is insufficient to simply have subjective intent to become a candidate, and it is probable that a candidate may become a candidate by starting a minimum preparation, etc. to be held to be held in an election (see, e.g., Constitutional Court en banc Decision 2011Hun-Ba75, Jun. 27, 2013). In applying Article 250(2) of the Public Official Election Act, determination of whether a candidate would be subject to a fine of at least five million won and invalidation of election (Article 264(2) of the Public Official Election Act) is subject to restrictions on the right to vote and eligibility for election (Article 18(1)3 and Article 19 subparag. 14 of the Public Official Election Act). Therefore, in cases where a candidate is excessively subject to punishment for political defamation after being held more than an election.

B) Nonindicted 2’s member, the victim of the instant case, is the first-line incumbent member of the National Assembly, who is in charge of the chairman of the ▽▽▽▽△ party federation, and did not declare the election of a National Assembly member in the future, and the fact that the lower court stated in the court below that “the next National Assembly member is willing to leave the election.” is recognized.

C) However, in order to participate in an election of a member of the National Assembly in general, there are frequent cases where a political party is a member of a political party after being recruited, if necessary, and where a person makes a decision to close one’s own, depending on political interests, such as simplification, etc. Therefore, it is difficult to deem that a prosecutor is scheduled in light of the empirical rule to take out the election of a member of the next National Assembly remaining for two years in the future. In other words, even in the case of an incumbent member of the National Assembly, it is necessary to prove whether there was an objective requisition that the relevant person is a candidate who wishes to be a specific candidate in the election.

However, in this case, with the exception of the expression of the subjective intent that Nonindicted 2 had the intention to participate in the election in the court of original instance, it is difficult to find out an objective proof that Nonindicted 2 made preparations to participate in the election of the next National Assembly member, such as filing an application for a recruitment with a political party or punishing the activities to obtain a candidate from a general elector, or expressing his candidate externally. Therefore, the facts acknowledged in the above paragraph (b) are insufficient to recognize that Nonindicted 2 constitutes “a person who intends to become a candidate” when he could objectively recognize that he had the intention to run in the election, and there is no other evidence to acknowledge it.

E. Whether the Defendant had an intention to prevent Nonindicted Party 2 from winning an election

1) Relevant legal principles

The purpose of Article 250(2) of the Public Official Election Act is to prevent a candidate from being elected in an election for public office as provided for in Article 2 of the Public Official Election Act. The purpose thereof is to make the public announcement of false facts available only when the public announcement of such false facts makes it impossible for the candidate to be elected, and it does not require active desire or desire to result in the occurrence of such false facts. Whether there is such purpose or not shall be determined reasonably in light of social norms, by taking into account various circumstances, such as the social status of the defendant, personal relationship between the defendant and the candidate or the candidate for competition, motive, details and method of the act of public announcement, method and manner of the act, contents and form of the act, nature and scope of the other party to which such public announcement was conducted, and social situation at the time of the act (see, e.g., Supreme Court Decision

2) Determination

Comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and examined in the lower court based on the foregoing legal doctrine, the evidence alone presented by the prosecutor cannot be deemed as having the purpose of preventing the Defendant from being elected in the next election of the National Assembly member.

① It is true that the instant text message sent by the Defendant stated, “I release a number of members of Nonindicted Party 2, who are the incumbent members of the TPP.” However, in view of the overall content of the text message, Nonindicted Party 2’s act was committed in the process of public policy examination for the election of the head of △△△△△△ police, it seems that the Defendant’s withdrawal of Nonindicted Party 2 is rather than a statement that took into account the abortion in the next election of the National Assembly members for the remaining two years, emphasizing the negative assessment of Nonindicted Party 2’s activities or activities within the political party belonging to the incumbent member of the National Assembly.

② “The purpose of preventing a candidate from being elected” is that it pertains to a specific election. As seen earlier, unless there is a requisition for objectively inferred whether Nonindicted 2 had an intention to leave the election, it is difficult to specify whether the Defendant had a purpose of preventing a candidate from being elected in any election, solely based on the content of the instant text message itself.

③ Even when considering the content of text messages as a whole, the language that the Defendant ultimately sought appears to have been pointed out of the unfairness in the process of examining the success of the head of △△△△, and considering the circumstances that the Defendant had continuously presented his opinion that transparency and fairness should be secured in the process of public administration within the political party, such as publishing a knife in the past local newspapers.

④ As seen earlier, there remain about two years from the date of sending the instant text message to the election of the next member of the National Assembly who was indicated in the facts charged. As such, even from the electorate’s perspective of the electors in the election of the next member of the National Assembly who was read after receiving the said text message, it is unlikely or very low that the said text message was sent to Nonindicted Party 2 for the purpose of preventing him from being elected. This is because the content or the subject contained in the instant text message is not in mind of Nonindicted Party 2’s national policy or political position, which may be related to the election of the National Assembly member scheduled to be elected two years after the date of posting the text message, and as the former head of the △△△△△△△△△, the Defendant, who was the preliminary head of the Gu of Seoul ○○○○○ City, as the former head of the Gu on June 4, 2014, appears to be highly likely to be related to Nonindicted Party 2’s election of the next member of the National Assembly.

F. Sub-committee

In the end, there is no evidence to regard Nonindicted 2 as a person who intends to be a candidate, and it is difficult to recognize that the defendant had the purpose of the abortion, and therefore, it cannot be said that the crime of aiding and abetting a candidate is established under the Public

3. Conclusion

Since the defendant's appeal is well-grounded, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act without examining each of the grounds for unfair sentencing by the defendant and the prosecutor, and the following decision is rendered through pleading

The summary of the facts charged of this case against the defendant is the same as that of Article 2-1(a) of the Criminal Procedure Act, which constitutes a case where there is no proof of a crime as stated in Article 2-4(d), (e), and (f) of the same Act, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act and the summary of the judgment against the defendant

Justices Kim Jong-soo (Presiding Justice)

(1) Article 250 (Publication of False Facts) (2) A person who publishes false facts about a candidate (including a person intending to become a candidate), his/her spouse, lineal ascendant, descendant, or sibling, or has another person publish such false facts, or who holds a propaganda document carrying false facts for the purpose of distributing it, by means of a speech, broadcast, newspaper, communications, magazine, poster, propaganda document, or other means, with the intention of preventing him/her from being elected, shall be punished by imprisonment for not more than seven years or by a fine not less than five million and not more than 30 million

2) If the elected person provided for in Article 264 of the Public Official Election Act is sentenced to imprisonment or a fine exceeding one million won on account of committing the crime provided for in this Act or the crime provided for in Article 49 of the Political Funds Act in the election concerned, his election shall become invalidated.

3) A person who falls under any of the following subparagraphs as of the election day does not have the right to vote. A person who commits an election crime on March 3, 199; a person who commits an election crime provided for in the provisions of Articles 45 and 49 of the Political Funds Act; or the President, National Assembly members, local council members, and heads of local governments who commit an offense provided for in Articles 129 through 132 of the Criminal Act (including a case subject to aggravated punishment pursuant to Article 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes) and Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes, and for whom five years have not passed since a fine exceeding one million won was sentenced and the sentence becomes final or ten years have not passed since the suspended sentence becomes final, or for whom ten years have not passed since imprisonment was sentenced and the decision not to execute the sentence became final or since the execution of the sentence was terminated or exempted (including a person who becomes invalidated):

4) A person who falls under any of the following as of the election day under Article 19 (Persons Ineligible for Election) of the Public Official Election Act shall not be eligible for election; 1. A person who falls under Article 18 (Persons without Voting Rights) (1) 1, 3, or 4:

(5) Article 265-2 (Refund of Expenses by Persons, etc. whose Election is invalidated) (1) Any person whose election is invalidated under Articles 263 through 265 of the Public Official Election Act (including any person who resigns before a final and conclusive judgment after indictment) and any person who has not been elected and whose punishment equivalent to the invalidation of election is finalized due to crimes committed by himself/herself, election campaign manager, etc. provided for in Articles 263 through 265 shall return the amount returned and preserved under Articles 57 and 122-2. In such cases, a party-recommended candidate for the presidential election shall be returned by the recommending political party, and in the case of the proportional representative National Assembly members and the proportional representative local council members,