Defendant

Defendant

Kim Jong-tae

Attorney Lee Jong-chul

Seoul Southern District Court Decision 2006Gohap346 Decided November 23, 2006

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

(1) As to the transmission of text messages

An act of transmitting text messages as indicated in the judgment of the court below shall not be deemed an act of publicizing the contents related to political party activities within the scope of its intended purpose, or an act of ordinary and ordinary activity conducted for communication between party members, and shall not be deemed an act to influence the election. In addition, the defendant did not have an intention or intent to influence the election in doing such an act, and even if such an act is recognized, the defendant shall be held liable because it is difficult to expect the defendant to be aware that the transmission itself violates the Public Official Election Act. However, the court below erred by misapprehending the facts charged or by misapprehending the legal principles.

Dod Public opinion poll result publication

Although Article 108(4) of the Public Official Election Act applies only to the first publisher, that is, the person who requested the public opinion poll, or the person who requested the public opinion poll, delegated the publication or intended to make publication under an agreement with the requester of the public opinion poll, the court below erred by misapprehending the legal principles as to the above provision.

B. Unreasonable sentencing

In light of the fact that text messages are sent to party members, who are not general electorates, and all facts are recognized and they are against the fact that they have caused water, and that they study and practice to help the social participation and rehabilitation of disabled friendship among those who suffer from suffering from urban interruptions and have difficulty in communication, and there are no other criminal records subject to punishment, etc., the punishment of fine of one million won imposed by the court below is too unreasonable.

2. Determination

A. Fact-finding or misapprehension of legal principles

(1) As to the transmission of text messages

㈎ 먼저 위 문자메시지 전송행위가 당원들 사이의 통상적인 정당활동으로 일상적·의례적 행위인지, 그와 관련하여 피고인에게 선거에 영향을 미치려는 목적과 고의가 인정되는지에 관하여 살핀다.

① In light of the degree of regulation on political party activities under the Public Official Election Act and the legislative purport of Article 93(1) of the Public Official Election Act, the Public Official Election Act does not include ordinary political party activities in the manner prohibited under Article 93(1) of the Public Official Election Act, but does not impose a full restriction, such as regulating political party activities related to the election. In addition, Article 58(1)4 proviso of the Public Official Election Act seeks a balance of democratic values that conflict between the achievement of fair election and the protection of freedom of political party activities by prescribing that ordinary political party activities should not be regarded as election campaigns, and in light of the degree of regulation on political party activities under the Public Official Election Act and the legislative purpose of Article 93(1) of the Public Official Election Act, it shall not be included in ordinary political party activities. Whether the act of distributing or posting documents, drawings, and paintings as defined under Article 93(1) of the Public Official Election Act individually constitutes ordinary political party activities should be determined by comprehensively taking into account the time, content, method, target, form, etc. (see, etc. of Supreme Court Decision 201Do82222, Jan.).

② The following circumstances acknowledged by the evidence duly adopted and examined by the court below, namely, the defendant, at the fourth nationwide local election on May 31, 2006, was the children of non-indicted 1 elected to the head of (election district omitted) Dong local election (the name of the political party omitted). The defendant sent text messages to the electorate three times as stated in the court below, using text transmission programs for 1,52, 1,556, 3,001, and publicly announced the result of the public opinion poll to the contrary in violation of Article 108(4) of the Public Official Election Act. The transmission of text messages at that time was made to help the father of the non-indicted 1 for the above time. In light of the detailed contents of such text messages, the defendant's act of transmitting text messages to the non-indicted 1,552, 156, 3,000, and the defendant's act of transmitting text messages to the non-indicted 2, who was favorable to the defendant's election campaign party.

③ In addition, the circumstances acknowledged by the evidence duly adopted and examined by the lower court, namely, Nonindicted 1 and Nonindicted 2, a competitor, wishing to serve as the candidate for the head of the above local election (the name of the constituency omitted) under the jurisdiction of the said political party (the name of the political party omitted), Nonindicted 2, who was in office as the head of the Gu at the time (the name of the constituency omitted), went away from the (the name of the political party omitted) and runs for the election of the head of the Gu (the name of the constituency omitted). Persons subject to receipt are 1,500 persons or (the name of the constituency omitted), 3,000 persons in the Seoul (the name of the constituency omitted), and one of the reporters of the instant case, who was the police party, could not be deemed to have served as the candidate for the above political party (the name of the political party omitted) and could not be deemed to have served as the candidate for the above political party, and even if there were some of the above applicants’ opinions on the political party’s resignation from the political party.

④ Ultimately, the transmission of text messages was conducted under the purpose and intent of the Defendant’s attempt to influence the election. It constitutes an act going beyond the scope of ordinary political party activities and constitutes an act of distributing and posting documents, paintings, etc. by illegal means that are restricted by the Public Official Election Act. Even if the list of mobile phone numbers transmitted by the Defendant was the same as the contents registered in the actual party members list or the list was believed to be all (party members omitted), it does not change the purpose and intent in light of the aforementioned various circumstances. Thus, the Defendant’s aforementioned assertion is without merit.

㈏ 다음으로, 피고인의 위 행위가 책임조각사유에 해당하는지 보건대, 앞서 본 여러 사정을 종합해 보면, 설령 피고인이 이 부분 범행이 죄가 되지 않는 것으로 오인하였다고 하더라도, 그 오인에 정당한 이유가 있었다고 보기 어려우므로, 피고인의 이 부분 주장도 이유 없다.

【Publication of the Results of the Public Opinion poll

Article 108 (4) of the Public Official Election Act provides that "any person shall also publish or report the results of a public opinion poll on election, when publishing the results of a public opinion poll on election, the name of the requester, institution or organization of the public opinion poll, methods of selecting those polled, size of samples, areas to be polled, dates and methods of the public opinion poll, error rate of samples, response rate, contents of the public opinion poll, etc." so that it can maintain objectivity and reliability in disclosing the results of the public opinion poll, so the above provision cannot be applied only to those who first publish the public opinion poll because there is no restriction on the subject of the public opinion poll (in this case, conversation of the general public unrelated to the election is not likely to violate the above provision, and the scope of punishment is not likely to be excessively wide, in consideration of the intention of the party who publishes the public opinion poll, the object and circumstances of the public opinion poll, etc., and there is no reason for the defendant to assert this part of the public opinion poll.

B. The point of unfair sentencing

In light of various sentencing conditions stipulated in Article 51 of the Criminal Act, such as the fact that the defendant sent text messages with a 1,500 to 3,000 persons on three occasions on behalf of the father who the defendant wishes to become a candidate in connection with local elections, and the result of the public opinion poll which was favorable was published in violation of the method of publication under the Public Official Election Act, thereby impairing the fairness of election. In light of various sentencing conditions stipulated in Article 51 of the Criminal Act, such as the background of the crime, means and method of the crime, the frequency of the crime, the number of persons involved, etc., even if considering the above circumstances alleged by the court below, the punishment of a fine of one million won imposed by the court below is not heavier, and therefore, the above assertion is without merit.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Han-su (Presiding Judge)