[1] The meaning of "a statement of fact" under Article 251 of the Public Official Election and Prevention of Unlawful Election Act

[2] The case holding that although part of the statement of opinion is included in the election campaign speech, it is a statement of fact as a whole

[3] The case holding that even if an election campaign speech is related to the political activities of the competition candidate, if the other party is a personal secret, it constitutes a "non-violation of a crime of aiding and abetting a candidate"

[4] The requirements for the exclusion of illegality by falling under the proviso of Article 251 of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts

[5] The case holding that the subjective purpose of the speech on the other party candidate does not fall under the proviso of Article 251 of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts, in a case where the subjective purpose of the speech on the other party candidate's candidate's subjective

[1] The phrase "a statement of fact" in the main sentence of Article 251 of the Act on the Election of Public Officials and the Prevention of Election Malpractice refers to a report or statement of a specific past or present fact in time and space, and its contents can be proved by evidence, as a concept of comparison of an expression of opinion concerning a value judgment or evaluation. The determination of whether a statement of decision is a fact or an opinion must be made in consideration of the ordinary meaning and usage of a language, the possibility of proof, the context in which the expression in question was used, the social circumstances in which the expression was made, etc.

[2] The case holding that although the defendant's speech contains part of the statements that are subjectively evaluated by the other party, since the contents of the statement are composed of a whole fact, it is possible to prove whether they are true, and first presented facts prior to his opinion expression, it is the intent to impair the assessment of the victim's personality, it is not the statement of fact, as a whole, since it appears in the context that it is intended to impair the victim's personality.

[3] The case holding that although the defendant's speech is about the political activities of the competition candidate, it is not objectively mentioned the other party's political capacity, in light of the expression methods and contents, it is not an objective mentioning the other party's political capacity, and thus, it constitutes "non-indicted" under Article 251 of the Election of Public Officials and Prevention of Unlawful Election Act.

[4] Even if an act of slandering a candidate is an act of slandering a candidate, even if the public interest is not always superior to the private interest, if there exists both parties, and if the reasonableness is recognized, the illegality is excluded in accordance with the proviso of Article 251 of the Act on the Election of Public Officials and the Prevention of Unlawful Election Act. Furthermore, in light of the content and nature of the alleged facts, the alleged facts are related to the public interest and the actor has the motive to indicate such facts for the sake of the public interest.

[5] The case holding that the defendant's act does not constitute the proviso to Article 251 of the Act on the Election of Public Officials and the Prevention of Unlawful Election, and its illegality is not dismissed on the grounds that the defendant's act does not fall under the proviso to Article 251 of the Act on the Election of Public Officials and the Prevention of Unlawful Election, on the grounds that his act does not constitute the act and does not constitute the act, and thus, it does not constitute illegality

[1] Article 251 of the Act on the Election of Public Officials and the Prevention of Unlawful Election, and Article 307 of the Criminal Act / [2] Article 251 of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [3] Article 251 of the Act on the Election of Public Officials and the Prevention of Unlawful Election, and Article 310 of the Criminal Act / [4] Article 251 of the Act on the Election of Public Officials and the Prevention of Unlawful Election

[1] Supreme Court Decision 76Do282 delivered on June 26, 1979 (Gong1979, 12051), Supreme Court Decision 84Do554 delivered on May 29, 1984 (Gong1984, 1229) / [4] Supreme Court Decision 92Do3160 delivered on June 22, 1993 (Gong1993Ha, 2188), Supreme Court Decision 96Do519 delivered on April 23, 1996 (Gong196, 1652), Supreme Court Decision 96Do977 delivered on June 28, 196 (Gong196Ha, 243)

Defendant

Defendant

East Western Law Firm, Attorneys Park Dong-dong et al.

Seoul High Court Decision 96No551 delivered on June 27, 1996

The appeal is dismissed.

The grounds of appeal are examined.

1. According to the facts recognized by the court below, the defendant sent to the election district of the Seodaemun-gu Seoul Metropolitan Government Council member on June 27, 1995 and won the election as the candidate for the non-indicted 1 (the age of 44) who was a candidate for the election. On June 18, 1995, the defendant called the above non-indicted 1 candidate at the joint speech session held at the Hong National School in Seoul, Seomun-gu, Seoul, about 14:0, 1995, referring to the non-indicted 1 candidate at the time of the above campaign speech and the above non-indicted 4,00 candidate at the time of the campaign speech, "I will know that I will see that I will do not know that I will see the above non-indicted 3 candidate at the time of the election, but we will see that I will see that I will not see the people who will see the election campaign again for 4 years.

First of all, according to the evidence of the court below, the part of the first part of the defendant's above speech contents "and one apartment is constructed in the latter part of the defendant's above speech contents" is not actually involved by non-indicted 1, who is a competing candidate, and is involved in the authority of the Seodaemun-gu Office, Seodaemun-gu Office, but the defendant also made a statement about the above non-indicted 1. In light of the records, it is just and there is no error as alleged in the grounds of appeal.

The term "statement of fact" in the main sentence of Article 251 of the Public Official Election Act (hereinafter referred to as the "Public Official Election Act") refers to a report or statement of a specific past or present fact in time and space, and its contents can be proved by evidence, and in distinguishing whether the statement is a fact or an opinion, it shall be determined by considering the overall circumstances, such as the ordinary meaning and usage of the language, the possibility of proof, the context in which the expression at issue is used, and the social circumstances in which the expression is used. Although the above speech of the defendant contains part of the statement that the defendant has subjectively appraised against the other party, it is possible to prove whether the statement is true, and it is possible to present the facts that consist of a whole fact, which are composed of the entire contents of the statement, and the contents of the statement are presented first of his opinion, so it shall be deemed to be a statement of fact, not a statement of opinion as a whole, since the context is revealed in order to undermine the assessment of the victim's personality.

In addition, even if the contents of the defendant's speech are about the political activities of the competition candidate, in light of the method and contents of the expression, it is reasonable to regard the defendant's speech as an "non-party" under Article 251 of the Public Official Election Act, since it is not an objective mentioning the other party's political capacity, not an objective mentioning it.

Therefore, the decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as asserted in the grounds of appeal regarding the statement of facts or defamation, which are the elements of Article 251 of the Public Official Election Act.

2. The main text of Article 251 of the Public Official Election Act punishing a candidate (including a person who intends to become a candidate), his/her spouse, lineal ascendant, descendant, or sibling by openly pointing out facts through a speech, broadcast, newspaper, communication, magazine, poster, propaganda document, or any other means, for the purpose of getting another person to be elected or not to be elected, as a candidate's offense, and the proviso provides that "However, if it is true facts and public interest, it shall not be punished." Thus, even if an act of slandering a candidate, even though it does not necessarily have a superior motive to the public interest, its illegality shall be dismissed pursuant to the provision of the above proviso (see Supreme Court Decision 96Do977, Jun. 28, 1996).

In addition, in order to eliminate illegality in accordance with the proviso of Article 251 of the Public Official Election Act, the alleged facts are related to the public interest objectively in light of the content and nature of the facts, and the perpetrator should also have the motive to indicate the facts for the public interest (see Supreme Court Decisions 92Do3160, Jun. 22, 1993; 96Do977, Jun. 22, 1993, etc.).

However, first of all, the part of the defendant's above speech contents, "and we have an apartment ? I have this view." is not the defendant's participation, but it is difficult to view that it is true because it is the fact that the defendant was involved, although it was involved in the authority of Seodaemun-gu Office.

The remaining publicly alleged facts are related to the character or political capacity of a person who runs for the election of public office. However, in light of the subjective purpose of the defendant's speech, public interest is also a motive for providing information on the character and ability of the other party candidate to the right holder. However, in light of the means of expression or the degree of the whole truth as seen earlier, the public interest is extremely weak and almost private interest is treated as motive, and thus the reasonableness between the two is not recognized. Accordingly, in this case, the defendant's act in the judgment of the court below cannot be deemed to be a subjective public interest. Accordingly, the illegality is not denied since it does not fall under the proviso to Article 251 of the Public Official Election Act.

In addition, the argument that the defendant's above act does not violate social rules and thus is not illegal cannot be accepted as an independent opinion.

Ultimately, the defendant's act of this case cannot be justified on the ground of the proviso of Article 251 of the Public Official Election Act or the social rules, and the decision of the court below to this purport is just and there is no violation of law by misapprehending the legal principles as to the grounds for rejection of illegality, as otherwise alleged in the grounds for appeal.

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

Justices Park Jong-ho (Presiding Justice)