[1] The meaning of "a person eligible to enter in the electoral register" in the crime of purchasing an elector under Article 230 (1) 1 of the Public Official Election Act

[2] Whether a crime of violation of Article 230 (1) 5 of the Public Official Election Act constitutes "purpose crime" (negative)

[3] The meaning of "false facts" under Article 250 (2) of the Public Official Election Act

[4] The criteria for determining whether the crime of publishing false information under Article 250(2) of the Public Official Election Act is "a false perception" and the meaning of "the purpose of preventing the party from being elected"

[1] Article 230 (1) 1 of the Public Official Election Act / [2] Article 230 (1) 1 and 5 of the Public Official Election Act / [3] Article 250 (2) of the Public Official Election Act / [4] Article 250 (2) of the Public Official Election Act

[1] Supreme Court Decision 2005Do2245 decided Aug. 19, 2005 (Gong2005Ha, 1525) / [3/4] Supreme Court Decision 2005Do4642 decided May 25, 2006 (Gong2006Ha, 1209) Supreme Court Decision 2009Do26 decided Mar. 12, 2009 (Gong209Sang, 520) / [3] Supreme Court en banc Decision 2001Do6138 decided Feb. 20, 200 (Gong203Sang, 876) / [4] Supreme Court Decision 2003Do7423 decided Jun. 25, 2004; Supreme Court Decision 2003Do7425 decided Feb. 26, 2005

Defendant

Defendant

Attorney Lee Jin-sik et al.

Busan High Court Decision 2011No7 decided March 16, 2011

The appeal is dismissed.

We examine the grounds of appeal.

1. Determination on the violation of the Public Official Election Act due to the purchase act

A. misunderstanding of legal principles as to the elector under Article 230(1)1 of the Public Official Election Act

Article 230(1)1 of the Public Official Election Act provides that “A person who has the right to vote as to an elector, who is the other party to a purchase, and is eligible to enter the electoral register,” but also includes “a person eligible to enter the electoral register before the preparation of the electoral register.” Even before the basic date for preparation of the electoral register, if a person is eligible to be the same elector based on the other party’s resident registration status, age, and other circumstances, it is reasonable to deem that “a person eligible to be entered in the electoral register,” and provided that the above provision does not limit the meaning of “a person eligible to be entered in the electoral register,” only to the elector whose resident registration was entered in the electoral register as of the basic date for preparation of the electoral register, insofar as the provision does not limit the meaning of “a person eligible to be entered in the electoral register,” but does not constitute a crime of purchasing an elector as provided in Article 230(1)1 of the same Act, solely on the ground that the other party, such as offering of entertainment, was not registered in the elector in the electoral register (see

Examining the reasoning of the lower judgment in light of the legal doctrine as seen earlier and the evidence duly admitted by the first instance court, the lower court was justifiable to have determined that the Defendant constituted “person eligible to enter the electoral registry at Changwon-si,” and that the Defendant was an elector under Article 230(1)1 of the Public Official Election Act when determining as of June 2, 2010, and there was no error in the misapprehension of the legal doctrine as to “an elector” under Article 230(1)1 of the Public Official Election Act.

B. Violation of interpretation and application of Article 230(1)1 of the Public Official Election Act

Even if the defendant received KRW 50 million from Nonindicted 2 on April 8, 2010 on the condition that he received a complaint from Nonindicted 1 on or before he/she completed the registration as a preliminary candidate on April 19, 2010, on or around April 8, 2010, the court below found him/her guilty of violating the Public Official Election Act due to Nonindicted 1’s act purchased pursuant to Article 230(1)5 and 1 of the Public Official Election Act, deeming that he/she actually aimed at the abortion of Nonindicted 1 in an election for public office, not a competition, in substance. Such recognition and determination by the court below are justifiable in light of Article 230(1)1 of the Public Official Election Act, and there is no illegality of misapprehending the legal principles on the interpretation and application of Article 230(1)1 of the Public Official Election Act.

C. misunderstanding of legal principles as to the purpose of the abortion

Article 230(1)1 of the Public Official Election Act explicitly prescribes that a person who purchases “for the purpose of making another person cast, not making another person cast, or getting elected or not to be elected.” However, Article 230(1)5 of the same Act explicitly provides that “any person who receives any benefit or position provided for in subparagraphs 1 through 4 or accepts an expression of his/her intention to offer such benefit or position” shall be punished, and the person who receives such purchase does not require the same purpose as that of subparagraph 1 of the same paragraph. Therefore, there is sufficient awareness that a person who purchases goods in relation to subparagraphs 1 through 4 of the same paragraph without any special purpose, such as a person who purchases goods, provides such purpose.

In the same purport, the court below is just in rejecting the defendant's assertion that there was no "purpose to prevent the party from being elected" on the premise that the defendant was an objective crime under Article 230 (1) 5 of the Public Official Election Act, and there is no error of law by misunderstanding the legal principles on Article 230 (1) 5 of the Public Official Election Act.

2. Determination as to the violation of the Public Official Election Act and defamation caused by publishing false facts

A. misunderstanding of legal principles as to false facts

The false facts under Article 250(2) of the Public Official Election Act refer to the facts that are inconsistent with the truth and are sufficient enough to have the elector correct judgment on candidates. However, in a case where the important part is consistent with the objective facts in light of the overall purport of the published facts, even if there is a little difference from the truth or some exaggerated expressions, it cannot be viewed as a false fact (see Supreme Court Decision 2009Do26, Mar. 12, 2009).

The court below acknowledged the facts in its reasoning based on the evidence duly adopted by the court of first instance. In light of these facts, the court below held that the defendant's act was a false public announcement of the above facts to be unfavorable to the candidate under Article 250 (2) of the Public Official Election Act, since the contents of the press conference of this case "the non-indicted 1 received KRW 50 million in return for an increase in the floor area ratio, and promised to return it thereafter." In light of the above legal principles and records, the judgment of the court below is just and acceptable. In light of the above legal principles and records, the court below did not err by misapprehending the legal principles on the "false facts" under Article 250 (2) of the Public Official Election Act, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

B. Contributory misunderstanding of legal principles as to intentional publication of false facts

Since the crime of publishing false facts under Article 250 (2) of the Public Official Election Act is a crime of publishing false facts, an actor must be aware of the fact that it is false. The existence of such subjective perception is difficult to know or prove it outside due to its nature. Thus, it is inevitable to determine by taking full account of various objective circumstances, such as the academic background, career, social status, process of publication, time of publication, and anticipated ripple effect of the defendant based on the contents of the fact announced, the existence and content of the explanation, the source and content of the fact revealed by the defendant, and the circumstances leading up to recognition (see Supreme Court Decision 2005Do2627, Jul. 22, 2005). And the crime of publishing false facts is established by willful negligence (see Supreme Court Decision 99Do5190, Feb. 26, 2004). The "purpose of preventing being elected" in the crime of publishing false facts is sufficiently enough to recognize that the candidate is not elected by publishing such false facts.

In full view of the facts acknowledged by the evidence duly admitted by the first instance court, the lower court deemed that the Defendant made a false publication of each of the instant false facts while recognizing that each of the instant false facts was false for the purpose of preventing Nonindicted Party 1 from being elected at the time of the instant act. Such recognition and determination by the lower court is acceptable in light of the aforementioned legal principles and records. In so doing, the lower court did not err by misapprehending the legal doctrine on the purpose of preventing the publication of false facts under Article 250(2) of the Public Official Election Act and exceeding the bounds of the principle of free evaluation of evidence, or by exceeding the bounds of logical and empirical rules.

C. Violation of Article 250(2) of the Public Official Election Act

Of the grounds of appeal, the defendant's assertion that the defendant had an intention to escape from a fair election in Hanna Party 1 and did not have an intention to escape from an election in the original market, and that the defendant's act of defamation constitutes true facts and constitutes only when it comes to the public interest, and thus the defendant's ground of appeal is not a legitimate ground of appeal, and there is no violation of law as alleged in the judgment of the court below as otherwise alleged in the ground of appeal.

3. Judgment on the assertion of unfair sentencing

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the ground of unfair sentencing is allowed. Thus, in this case where a minor sentence has been imposed on the defendant, the argument that the amount of punishment is unreasonable is not a legitimate

4. Conclusion

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

Justices Lee Sang-hoon (Presiding Justice)