[1] In a case where Defendant (operator of a public opinion poll company) was indicted for violating the Political Funds Act on the ground that he provided free of charge the results of the public opinion poll conducted by Defendant for the electorates nationwide elections, which is a political party affiliated with a specific political party, to Gap, the case holding that the court below erred in the misapprehension of legal principles in finding guilty on the contrary, even though it is difficult to conclude that Defendant had a criminal intent to make an act of donation prohibited by the Political Funds Act, because he unilaterally conducted a public opinion poll without prior contact with Gap to give a future public opinion poll

[2] In a case where the Defendant, an operator of a public opinion poll company, was indicted for violating the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. by providing information on the election to a third party without consent, the case affirming the judgment below which found the Defendant guilty on the ground that the Defendant’s information provided by the Defendant constitutes an information and communications service provider that provided statistical data processing to the user, the user, and delivered it to the requester of the public opinion poll, etc. through a telephone call

[1] Article 45(1) of the Political Funds Act / [2] Articles 24-2(1) and 71 subparag. 3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

Defendant 1 and three others

Prosecutor and Defendant 1

Busan High Court Decision 2011No155 decided May 4, 2011

The part of the lower judgment against Defendant 1 in violation of the Political Funds Act is reversed, and that part of the case is remanded to Busan High Court. The remaining appeals by Defendant 1 and the Prosecutor are dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal

A. Violation of the Political Funds Act

The intent of contribution act is to commit the crime of violating the Political Funds Act, and it requires strict proof to recognize it.

On February 11, 2010, the lower court convicted the Defendant of the charges of violation of the Political Funds Act, on the premise that “The Defendant provided the part of the charges of violation of the Political Funds Act to the one who is worth maintaining the political activity of the National Assembly members of Yeongdeungpo-gu free of charge, on the following grounds: “The Defendant, around February 11, 2010, had the intention to become a candidate for the mayor of the Ulsan Metropolitan City City, Nonindicted Party 2, Nonindicted Party 1 member of the Republic of Korea, Nonindicted Party 1 member of the National Assembly, who is likely to be elected to the mayor of the Ulsan Metropolitan City.” Nonindicted Party 1 member of the Republic of Korea, who provided a public opinion poll on the possibility of being elected to the mayor of the Ulsan Metropolitan City on February 18, 2010.”

However, the above judgment of the court below is hard to accept for the following reasons.

According to the reasoning of the lower judgment and the record, the Defendant: (a) reported the article that Nonindicted 1 would take into account the Ulsan market opening; and (b) made phone calls to Nonindicted 2, an assistant officer of Nonindicted 1; and (c) on February 11, 2010, the Defendant conducted the instant ARS public opinion poll and delivered it to Nonindicted 2 on February 18, 2010; and (d) as such, the Defendant conducted the public opinion poll and issued it to Nonindicted 1 in the process of issuing the report to Nonindicted 2, even though Nonindicted 1 did not demand the Defendant to conduct the public opinion poll or deliver the report to Nonindicted 2; (b) the Defendant provided the report on the results of the public opinion poll to receive the public opinion poll from Nonindicted 1 in the future; and (c) the Defendant was actually requested from Nonindicted 1 on March 1, 2010; and (d) the Defendant received compensation from Nonindicted 1 on March 7, 2010; and (e) the Defendant received full results of the public opinion.

If the facts are as above, the Defendant unilaterally conducted the instant public opinion poll without any prior contact with Nonindicted Party 1 as part of the business activities to give the public opinion poll in the future, and provided it to Nonindicted Party 1. Therefore, it is difficult to readily conclude that the Defendant had a criminal intent to conduct the instant public opinion poll or to make a contribution prohibited under the Political Funds Act at the time of providing it to Nonindicted Party 1.

Nevertheless, the court below found the defendant guilty of this part of the facts charged on the premise that the defendant had the criminal intent to commit the crime of violating the Political Funds Act regarding the contribution act. In so doing, the court below erred by misapprehending the legal principles on the criminal intent of the contribution act prohibited by the Political Funds Act, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error

B. Violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

After finding facts as indicated in its holding, the lower court maintained the first instance judgment convicting the Defendant of this part of the facts charged on the ground that the Defendant constitutes an information and communications service provider that provided statistical data, such as the support party, support candidate, etc. of the electorates through a telephone call called Korean telecommunications, and that the information provided by the Defendant constitutes personal information of the other party to telephone response, which can be specified by telephone numbers, addresses, etc., and thus constitutes personal information of the other party to telephone response.

In light of the relevant legal principles and records, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to information and communications service providers, users, and personal information as otherwise alleged in the ground of appeal.

2. As to the Prosecutor’s Grounds of Appeal

The court below affirmed the judgment of the court of first instance which acquitted the Defendants of this part of the facts charged on the ground that it is difficult to view the Defendants’ respective ARS telephone public opinion poll act as an accompanying act for the purpose of promoting the election or defeat of a specific candidate, and there is no other evidence to acknowledge that the Defendants’ act constitutes an accompanying act for the purpose of promoting the election or defeat of a specific candidate, based on the evidence duly adopted and investigated by the court of first instance.

In light of the relevant legal principles and records, the above recognition and judgment of the court below are just and acceptable. Contrary to the grounds of appeal, there were no errors in the misapprehension of legal principles as to advance election campaigns under the Public Official Election Act, and there were no errors in violation of logical and empirical rules and free evaluation of evidence

3. Conclusion

Therefore, the part of the judgment of the court below regarding Defendant 1’s violation of the Political Funds Act against Defendant 1 is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. Defendant 1’s remaining appeals and prosecutor’s appeals are dismissed. It is so decided as per Disposition by the assent of all participating

Justices Park Poe-dae (Presiding Justice)