[1] Whether the act of transmitting text messages in bulk to a mobile phone constitutes a crime of violating the prohibition provisions, such as the distribution and posting of documents and drawings by unlawful means under Articles 255(2)5 and 93(1) of the Public Official Election Act (affirmative)

[2] The meaning of "persons in the relevant constituency" and "persons who have relations with the electors" under Article 113 (1) of the Public Official Election Act

[1] Articles 93(1) and 255(2)5 of the Public Official Election Act / [2] Article 113(1) of the Public Official Election Act

[1] Supreme Court Decision 2004Do4045 Decided November 25, 2004, Supreme Court Decision 2004Do6167 Decided June 27, 2006 / [2] Supreme Court Decision 96Do500 Decided November 29, 1996 (Gong197Sang, 260) Supreme Court Decision 2005Do8250 Decided January 26, 2006

Defendant

Defendant and Prosecutor

Law Firm Min & Yang, Attorney Park Jong-soo

Busan High Court Decision 2006No539 decided Nov. 1, 2006

Each appeal shall be dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. As to whether the elements of a crime are satisfied

Article 93(1) of the Public Official Election Act provides that means of evasion of the law are “advertisements, personnel management books, posters, photographs, documents, pictures, pictures, pictures, printed materials, recorded tapes, video tapes, and other similar things,” and basically provides for the subject of application in a comprehensive manner. It does not correspond to tangible objects, but rather to digital information, the delivery of text messages by means of wireless information and communications has the unique function of the document delivering ideas or intentions using letters and symbols to others. Since mobile phone text messages are in charge of the function and role of delivering text messages on behalf of tangible paper documents in the so-called information and communications era in which mobile phones are widely disseminated and becoming daily life, it does not affect the election, and thus, it is unnecessary to regulate them as well as the legislative intent of the Public Official Election Act to ensure the fairness of election, it is also deemed that mass transmission of text messages to mobile phones constitutes elements of establishment of the Public Official Election Act Article 255(2)5 and Article 93(1)4(2)60-4(2)604) of the same Act.

Moreover, the act of transmitting text messages in large volume falls under the “distribution” under Article 93(1) of the Public Official Election Act by delivering documents or other similar things to many and unspecified persons, or the act of posting text messages in writing or other similar things to make it possible to see such text messages if a person using a mobile phone who has received such text messages receives the text messages receives the text messages.

In the same purport, the court below is justified in finding that the defendant's mass transmission of text messages constitutes an element of a violation of the prohibition provision, such as the distribution and posting of documents and drawings by unlawful means under Articles 255 (2) 5 and 93 (1) of the Public Official Election Act, and there is no error of law in the misapprehension of legal principles as argued in the Grounds for Appeal.

B. As to whether the transmission of text messages of this case constitutes “for the purpose of influencing the election,” whether they constitute “ordinary political party activities”, and whether they constitute “party competition campaign”

According to the records, the defendant sent 20 years old text messages to the 20th anniversary of his election of the political party and sent 20 years old text messages to the 20th anniversary of his election of the political party, and then sent 1,50 new text messages to the 20th anniversary of his election of the political party and the 3th anniversary of his election of the 3th anniversary of his election of the 20th anniversary of his election of the 20th anniversary of his election of the 3th anniversary of his election of the 3th anniversary of his election of the 20th anniversary of his election of the 3th anniversary of his election of the 3th anniversary of his election of the 3th anniversary of his election of the 4th anniversary of his election of the 6th anniversary of his election of the 3th anniversary of his election of the 1st election of the 3th anniversary of his election of the 4th election of the 2nd election of the 2nd election of the 3th election of the political party."

In light of the above circumstances, the court below rejected the defendant's assertion that mass transmission of text messages as above is courtesy, ordinary personnel cases, ordinary political party activities, or intraparty competition campaign. It is proper to acknowledge that mass transmission of text messages in this case constitutes a violation of the prohibition under Article 93 (1) of the Public Official Election Act, which violates the prohibition under Article 93 (1) of the Public Official Election Act, and there is no error of law by misunderstanding the facts contrary to the rules of evidence or incomplete deliberation as to the contents of text messages and the number of persons to be transmitted, or by misunderstanding the legal principles on "ordinary party activities" and "party-party competition activities" under Article 93 (1) of the Public Official Election Act.

2. As to the Prosecutor’s Grounds of Appeal

Article 113(1) of the Public Official Election Act prohibits an act of donation to the “person in the constituency concerned” and “person who has relations with the electorates even if outside the constituency concerned.” Here, the term “person in the constituency concerned” includes not only the person who has a domicile or residence in the constituency but also those who temporarily reside in the constituency (see Supreme Court Decision 96Do500, Nov. 29, 1996; 2005Do8250, Nov. 26, 2006). The term “person who has relations with the electorates” means a person who has a certain blood or personal relationship with the electorates, such as his family, relative, relative, Dong, workplace, common bond, native folk, alumni meeting, relatives meeting, etc., and is likely to have any direct or indirect influence on the decision-making of the electorates, regardless of the reason for such donation (see Supreme Court Decision 2005Do8250, Nov. 26, 2006).

The court below acquitted the defendant as to the violation of the Public Official Election Act due to the act of donation, on the ground that there is no evidence to acknowledge that the other party to the act of donation in violation of the Public Official Election Act in the facts charged of the violation of the Public Official Election Act is a person in Taek-dong, Gyeong-dong, Gyeong-dong, Gyeong-dong, or Byung-dong, who is a defendant's constituency, and there is no evidence to support that the other party is a person who may directly or indirectly affect the defendant's decision-making by the elector, and who is a person with a relationship with the elector. In light of the relevant Acts and subordinate statutes, the court below did not err by misapprehending the legal principles as to the other party to the act of donation in Article 113

3. Conclusion

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

Justices Lee Hong-hoon (Presiding Justice)