[1] Standard of determining whether the submission of evidence related to private life can be permitted, and matters to be considered by the court

[2] The meaning of "using the status of a public official" under Article 85 (1) of the former Public Official Election Act

[3] The meaning of "participation in the planning of an election campaign" under Article 86 (1) 2 of the former Public Official Election Act, and the requirements to recognize that a public official participated in the planning of an election campaign

[1] Guaranteeing the dignity and value of human beings belongs to the basic duty of state agencies, and this ought to be realized in criminal proceedings. However, since submission of all evidence related to the privacy of the people cannot be deemed as immediately prohibited, the court should decide whether to grant such permission by balancing the public interest, such as the discovery of truth in effective criminal prosecution and criminal proceedings, and the personal interests of individuals. In such a case, when the court imposes a comparative sentence, all the circumstances related to the procedure for collecting evidence, namely, the necessity and degree to protect privacy or personal interests, namely, the details and degree of infringement, the course and degree of infringement of privacy or other personal interests during the process of collecting evidence, the seriousness and nature of the crime subject to criminal prosecution, and whether the defendant consented to the evidence. On the sole basis of the circumstance that the criminal prosecution is necessary, it should not be readily concluded that the public interest, which is the discovery of truth, in criminal proceedings, is superior to the personal interests of individuals, such as personal interests.

[2] The concept of “using the status of a public official” under Article 85(1) of the former Public Official Election Act (amended by Act No. 9974, Jan. 25, 2010) refers to not a public official’s individual qualification but an act of conducting an election campaign in connection with his/her status as a public official. It refers to an act of using the influence or benefits that can effectively engage in an election campaign due to his/her status as a public official. In particular, it includes an act on a person inside or outside the office where a public official performs his/her duties in relation to his/her status, right to direct and supervise his

[3] "Act of participating in the planning of an election campaign" under Article 86 (1) 2 of the former Public Official Election Act (amended by Act No. 9974 of Jan. 25, 2010) means an act of participating in the formulation of all plans to efficiently carry out an election campaign. It shall be interpreted that an act of participating in the planning of an election campaign does not necessarily mean an act of participating in the planning of an election campaign with a specific mind. However, in order for a public official to have "participating" in the planning of an election campaign, it shall be proved that he/she directly or indirectly participated in the formulation of an election campaign plan by presenting such plans, etc., and only because a public official expressed his/her opinion on an election campaign for a candidate individually, it shall not be readily concluded that he/she participated in the formulation of any plan to efficiently carry out an election campaign.

[1] Article 10 of the Constitution, Articles 307, 308-2, and 318(1) of the Criminal Procedure Act / [2] Articles 85(1) and 255(3) of the former Public Official Election Act (Amended by Act No. 9974, Jan. 25, 2010) / [3] Articles 86(1)2 and 255(1)10 of the former Public Official Election Act (Amended by Act No. 9974, Jan. 25, 2010)

[1] Supreme Court Decision 97Do1230 Decided September 30, 1997 (Gong1997Ha, 3356), Supreme Court Decision 2008Do3990 Decided September 9, 2010 (Gong2010Ha, 1942) / [2] Supreme Court Decision 201Do2996 Decided May 13, 201 / [3] Supreme Court Decision 2006Do9392 Decided March 29, 2007, Supreme Court Decision 2007Do4069 Decided October 25, 2007 (Gong2007Ha, 182), Constitutional Court en banc Decision 2006Hun-Ma1097 Decided May 29, 2008 (Hun-Ga, 1882)

Defendant

Defendant and Prosecutor

Law Firm Roddd, Attorneys Lee Hong-hoon et al.

Busan High Court Decision 2010No548 decided September 8, 2010

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. As to the ground of appeal on the admissibility of e-mail

1) The main text of Article 3(1) of the Protection of Communications Secrets Act provides, “No person shall censorship or wiretapping mail, provide communication confirmation data, record or listen to conversations between others that are not open to the public, without recourse to this Act, the Criminal Procedure Act, or the Military Court Act.” Article 4 provides, “Postal items acquired through illegal censorship in violation of the provisions of Article 3, or the contents thereof, and the contents of telecommunications known or recorded through illegal wiretapping, shall not be used as evidence in a trial or disciplinary procedure.” Here, the term “telecommunications” means the transmission or reception of all kinds of sounds, words, symbols or images by wire, wireless, light, or other electronic method such as telephone, electronic mail, facsimile (Article 2 subparag. 3 of the same Act), and “wirecing” means 0 (see Article 2 subparag. 7 of the same Act) where a person has already become aware of or interfere with the reception or reception of telecommunications by means of electronic or mechanical devices without consent of the party concerned, and thus, it does not mean “the reception or reception of telecommunications” (see Article 27(2).7).7).

In light of the records, the e-mail presented as evidence of this case (hereinafter “e-mail of this case”) can be known that the ○○ market, the addressee of this case, has already been collected after the completion of the receipt. Thus, the collection of the e-mail of this case cannot be deemed as an “wirecing of telecommunications” prohibited by the Protection of Communications Secrets Act, and therefore, the e-mail of this case cannot be deemed as a evidence that is excluded from the admissibility

2) Guaranteeing the dignity and value of the people as human beings belongs to the basic duties of state agencies, and this ought to be realized in criminal proceedings. However, since submission of all evidence related to the privacy of the people cannot be deemed immediately prohibited, the court should decide whether to grant the permission by weighing and balancing the public interest, such as effective criminal prosecution and discovery of truth in criminal proceedings, and the interests of personal interests, such as personal interests (see, e.g., Supreme Court Decision 2008Do3990, Sept. 9, 2010). In this case, when the court imposes a comparative sentence, all the circumstances related to the procedure for collecting evidence, i.e., the necessity and degree of protecting private and personal interests, the details and degree of infringement of privacy and other personal interests in the process of collecting evidence, the severity and nature of the crime subject to criminal prosecution, and the defendant’s consent to the evidence, the court should not immediately readily conclude that the public interest in criminal proceedings is superior to the individual’s personal interests, such as discovery of truth, solely on the basis of evidence necessary for criminal prosecution.

Examining the reasoning of the lower judgment and the record of the instant case, the Defendant, who was in the position of acting as the head of ○○○○○○○○○○○ Head, sent the instant e-mail to Nonindicted 2, etc., who was the head of ○○○○○○○○○○○○○○○○○○○, through the ○○○○ Electronic Document System, and asked Nonindicted 1, who was the head of ○○○○○○○○○○○○○○○○○○○○○○○○○○,

In light of the above legal principles, collecting e-mails in the above manner can be subject to criminal punishment under Article 71 subparag. 11 and Article 49 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., and it also seems that it is necessary to deny admissibility of evidence in that it constitutes an act infringing on fundamental rights such as the defendant's privacy or the freedom of communication by sending the e-mails in this case. However, the e-mails in this case are transmitted and stored through the electronic management system installed for the business purpose of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ e.

3) Therefore, the court below is justified in finding the admissibility of each of the statements made by the investigative agencies against the e-mails and the contents of the e-mails in this case and the non-indicted 2, 3, and 4, and there is no error in the misapprehension of legal principles as to the admissibility of the evidence of the e-mails in this case or the above statements as otherwise

B. As to the assertion of misapprehension of legal principles as to election campaign by taking advantage of public official status

The concept of “using the status of a public official” under Article 85(1) of the former Public Official Election Act refers to an act of conducting an election campaign in connection with the status of a public official, not as an individual qualification, but as an act of a public official, in particular, because of the status of a public official, it refers to the effective use of influence or benefits to carry out an election campaign. Specifically, it includes the act of acting inside or outside the office where a public official performs his/her duties in relation to his/her status, direction and supervision right, authority, and duties (see, e.g., Supreme Court Decision 2011Do2996, May 13, 201). For the same purport, the lower court is justifiable to have determined that the Defendant carried out an election campaign against Nonindicted 2, etc. by taking advantage of his/her status as a public official, and contrary to what is alleged in

C. As to the remaining grounds of appeal

The remaining arguments in the grounds of appeal by the defendant are to criticize the selection of evidences and the recognition of facts which belong to the exclusive jurisdiction of the court below as a fact-finding court, or are only asserted in the final appeal that do not constitute the grounds of appeal, and they cannot be a legitimate ground of

2. As to the Prosecutor’s Grounds of Appeal

A. As to the ground of appeal on the election campaign by taking advantage of public official status

The lower court found the Defendant not guilty on the ground that all of the facts charged around this part of the instant e-mail and ancillary facts charged do not have evidence of the crime, taking into account the following circumstances: (a) there is room to view that the content of the instant e-mail was merely an exaggeration of his behavior in order to express and respond to it; (b) Nonindicted 5, etc., the recipient of the instant e-mail, consistently stated that he did not hear the horses identical to the contents of the instant e-mail from the Defendant; and (c) the evidence on the fact that the Defendant had telephone conversations with Nonindicted 5, etc. or had a interview with Nonindicted 5, etc

Although there is no part in the reasoning of the lower court’s reasoning, each of the above evidence alone is not sufficient to prove the guilt against the surrounding and conjunctive charges of this case, the lower court’s judgment and conclusion are justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

B. As to the ground of appeal on the scope of the act of participating in the planning of election campaign

"Act taking part in the planning of an election campaign" under Article 86 (1) 2 of the former Public Official Election Act refers to an act that does not reach an election campaign to make a candidate elected or not to be elected, and it shall be interpreted that an act that participates in the formulation of all plans for the efficient implementation of an election campaign refers to an act that participates in the planning of an election campaign with a specific mind. It shall not be viewed that only means an act that participates in the planning of an election campaign for the purpose of carrying out an election campaign (see, e.g., Supreme Court Decision 2007Do4069, Oct. 25, 2007). However, in order for a public official to have "participating" in the planning of an election campaign, it shall be proved that he/she directly or indirectly participated in the formulation of a candidate's election campaign by presenting such plans, etc., and it shall not be readily concluded that a public official participated in the formulation of any plan

The court below affirmed the judgment of the court of first instance which held that the transmission of the instant e-mails cannot be deemed to have participated in planning an election campaign, on the grounds as stated in its holding, on the following grounds: (a) the Defendant unilaterally arranged an election campaign plan for Nonindicted 1 in the ○○ market, and unilaterally sent the instant e-mails; and (b) there is no evidence to support that Nonindicted 1 received the instant e-mails except simple personnel reports; and (c) there was no evidence to support that Nonindicted 1 in the ○○ market established a plan for the election campaign based on the contents of the instant e-mails, or that there was no evidence to support that Nonindicted 1 used it. Examining the reasoning of the judgment of the court below in light of the above legal principles, the judgment of the court below is justifiable; and (d) there is no error of law by exceeding the bounds of the principle of logic and experience and free evaluation of evidence, or by misapprehending the legal principles on the interpretation of Article 86(1)2 of the former Public Official Election Act.

3. Conclusion

Therefore, all appeals by the defendant and prosecutor are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)