2019No119 Violation of abuse of authority and obstruction of exercise of rights, and Public Official Election Act

A and the Gyeonggi-do Governor

Prosecutor

Noting, indictment, trial (public prosecution, public trial), Lee Jae-in (public trial)

Law Firm LBnBS Partners

(U.S. 2018 Gohap266, 2018 Gohap267 (Joint Judgment) Decided May 16, 2019

September 6, 2019

Of the judgment below, the violation of the Public Official Election Act based on the publication of false facts related to B shall be reversed.

Defendant shall be punished by a fine of KRW 3,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

The prosecutor's appeal on the remainder of the judgment below with the exception of the above reversal portion is all dismissed.

1. Summary of the grounds for appeal (misunderstanding of legal principles or factual errors);

A. Abuse of official authority and obstruction of use

1) From March 2012, the Defendant instructed or urged the head of the branch of the branch of the public health clinic, etc., directly or through C, who is the head of the branch of the branch of the branch of the public health clinic, to proceed with the compulsory hospitalization procedure under Article 25 of the former Mental Health Act.

2) However, at the time of 2012, B cannot be deemed to be a person suspected of having a risk of undermining himself/herself or others due to mental illness, and there was no face-to-face diagnosis, etc. with regard to B, and thus, B could not proceed with the procedure under Article 25 of the former Mental Health Act with regard to B. Nevertheless, the Defendant, in collusion with C, had the head of the above branch public health clinic, etc. conduct the compulsory hospitalization procedure against B pursuant to Article 25 of the former Mental Health Act by unfairly exercising his/her authority as a private intent to isolate B, which continued to oppose the correction and operation of the Defendant in the society of B, and caused the head of the above branch public health clinic, etc. to perform the procedure of compulsory hospitalization against relevant laws and practices.

3) Therefore, even though the Defendant should be deemed to have committed the crime of abusing authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act, the lower court’s judgment that acquitted all of the facts charged is erroneous in matters of mistake

B. Violation of the Public Official Election Act by publishing false facts related to abuse of authority and obstruction of the exercise of rights

1) The Defendant attempted to hospitalize B around 2010 to G to the Gaman Hospital. ② Around 2012, the Defendant instructed the hospitalization of B to the Kaman Hospital. The Defendant’s remarks made to the effect that the Defendant was not entirely involved in the forced hospitalization in TV discussions held by candidates for the Gyeonggi-do Governor constitutes a false fact-finding publication because it intentionally distorted the elector’s accurate judgment to an extent that it would mislead the elector’s accurate judgment.

2) In addition, the suspension of compulsory hospitalization procedures on B around 2012 is due to the fact that D, the head of the branch public health clinic, has retired from the process, but the Defendant made a statement to the effect that he/she was aware of his/her family at the candidate TV forum of the Gyeonggi-do Governor to prevent the progress of the procedures constitutes a publication of false facts.

3) Unlike the above, the judgment of the court below which acquitted all of the facts charged is erroneous in misunderstanding of facts or misunderstanding of legal principles.

C. Violation of the Public Official Election Act based on the publication of false facts related to the previous offense of prosecutor's name

1) The overall purport of this part of the Defendant’s statement is that “a person was punished with wrong contents that attempted E’s act of referring to an inspector’s name on the ground that he had been in existence, even though he was not at all involved in the E’s term of inspector’s name.”

2) This is against the final and conclusive judgment of conviction against the Defendant, and thus publicly announcing the false facts, and cannot be deemed as a simple expression of opinion of the Defendant. In addition, the Defendant’s intention to publish the false facts is also recognized.

3) Unlike this, the judgment of the court below that acquitted this part of the facts charged is erroneous in misunderstanding of facts or misunderstanding of legal principles.

D. Violation of the Public Official Election Act by publishing false facts about the achievements of the Seoul Special Metropolitan City Development Project.

1) The general voters do not understand that “the income of KRW 50.3 billion from the development profit was completed to Sungnam-si,” and that “the total amount of KRW 276.1 billion was completed with the construction cost of the park construction cost of the 1st Corporation, and the total amount of KRW 92.1 billion was completed with the construction cost of the infrastructure in the region where the 20.5 billion was completed, thereby resulting in the completion of the above construction,” and that “the special purpose corporation at Sungnam-si will pay KRW 276.1 billion as the construction cost of the 1st Corporation and the construction cost of the infrastructure in the region where the 1st,82.2 billion was planned to receive the rental housing site in the amount of KRW 18.2 billion as the construction cost of the 1st Corporation, and the Defendant’s campaign speech for the distribution of the election campaign material in this case and the election campaign for the announcement of false facts constitutes the publication of false facts.”

2) In light of the fact that the Defendant, as an attorney-at-law and the Sungnam market, was well aware of the revenue structure of the project, such as directly claiming for the benefit structure of the project, and was able to confirm the progress of the project and the size of profit before and after the retirement of the Sungnam market, it may be recognized that there was an incomplete intention for the Defendant to publish false facts in light of the fact that the Defendant did not confirm the exact amount of the estimated value of the construction cost, and rather rather was somewhat unrefilled. Furthermore, even though the Defendant is in the process of the infrastructure project or it was not clearly stated that the amount of KRW 18.2 billion is future revenue, the lower court erred by recognizing such fact and denying the Defendant’s intentional act.

3) Therefore, the judgment of the court below which acquitted the Defendant of this part of the facts charged is erroneous in misunderstanding of facts or misunderstanding of legal principles.

2. Determination on the legality of the instant indictment

A. Defendant's assertion of defense counsel

As to the abuse of authority and obstruction of exercise of rights and the violation of the Public Official Election Act by publication of false facts related to B, the Defendant’s defense counsel asserts that each of the above parts of the indictment proceedings constitutes invalid in violation of the provisions of law, on the grounds that the prosecutor abused the right to institute a public prosecution by violating objective duties, such as concealing major evidence favorable to the Defendant, interfering with the examination of evidence and the withdrawal of evidence, and violating the principle of an indictment only by excessively

B. Determination as to whether the right to prosecute was abused

A) In a case where it is deemed that a prosecutor voluntarily exercised his/her authority to institute a public prosecution and gives a substantial disadvantage to the defendant, the effect of the indictment may be denied by deeming it as an abuse of the authority to institute a public prosecution. However, the arbitrary exercise of the authority to institute a public prosecution is not sufficient solely by negligence in the course of performing his/her duties, and at least dolusent or complete intention is required (see, e.g., Supreme Court Decisions 2017Do1623, Dec. 13, 2017; 2018Do1047, Sept. 28, 2018).

B) In light of the above legal principles, in full view of the following: (a) the Defendant’s defense counsel applied for inspection and copying of the materials in custody of the Prosecutor during the trial in the original trial; (b) the Defendant’s defense counsel applied for inspection and copying of the materials in custody of the Prosecutor; (c) the decision to allow inspection and copying as of April 1, 2019; (d) the decision to dismiss and grant permission as of April 16, 2019; and (e) the reasons for such decision; (d) the Defendant’s defense counsel obtained the above materials and submitted them as evidence; and (e) the circumstances leading up to the Defendant’s defense counsel obtained them as evidence; and (e) the prosecutor’s opinion as to the evidence in the original trial, etc., it cannot be deemed that the Defendant abused the right of prosecution in violation of the duty of public prosecution by concealing the important evidence favorable to the Defendant with any intention or interfering with the examination

A) In light of the type and content of the crime as stated in the facts charged, the issue of violation of the principle of an indictment only shall be specifically determined in the relevant case on the basis of whether the contents of the documents or other things attached or quoted in the indictment, and the facts recorded in the indictment, other than those required by statutes, may hinder the judge or jury from understanding the substance of the crime (see, e.g., Supreme Court en banc Decision 2009Do7436, Oct. 22, 2009; Supreme Court Decision 2012Do2957, Jan. 29, 2015).

B) In light of the above legal principles, this part of the facts charged can be seen as having somewhat unnecessary or neglectedly stated the background, motive, and progress of the act in relation to abuse of authority, obstruction of exercise of rights, and the publication of false facts related thereto, and it is difficult to view that it can be an obstacle to grasping the substance of the crime by causing a judge to pre-assessment. Accordingly, the defense counsel’s assertion on this part is without merit.

3. Determination on abuse of official authority and obstruction of another’s exercise of rights

A. Summary of this part of the facts charged

1) Correction, etc. to G’s evaluation case as to G B

In collusion with C, the Defendant abused the authority of the Sungnam market to see as being subject to the diagnosis and protection application under Article 25(1) of the former Mental Health Act, and caused F to revise the evaluation questions on B prepared by G to the extent of the Defendant’s will, contrary to G’s professional knowledge and judgment, and contrary to G’s professional knowledge and judgment, and put the G seal on the revised evaluation questions so that it can be seen as one of the opinions of a medical specialist. ② G had a medical specialist of mental health, contrary to his professional knowledge and judgment, and had him modify the said evaluation questions as the Defendant’s intention, thereby having him perform an act without any obligation.

2) Preparation, dispatch, etc. of official documents for diagnosis and preparation for application for protection against B

The defendant, in collusion with C, abused the authority of the Sungnam City market under Article 25 of the former Mental Health Act with respect to B, requested H's results of interview to ‘Seongnam City Mental Health Center' (current, ‘Seongnam City Mental Health Welfare Center'; hereinafter referred to as ‘Center'), ‘Seongnam City Mental Health Center' (former, ‘Seongnam City Mental Health Welfare Center'; hereinafter referred to as â‘the Centerâ), and urged the person related to G et al. to provide diagnosis and protection to the public health clinic of the branch of the branch of the branch of the branch of the Gu, so that he/she did not have any obligation.

(iii) diagnosis and preparation and dispatch of applications for protection with respect to B;

In collusion with C, for the purpose of hospital B pursuant to Article 25 of the former Mental Health Act, the Defendant abused the authority of the Seongbuk-nam market and caused a person related to G et al. to file an application for diagnosis and protection under Article 25 (1) of the former Mental Health Act with regard to B, thereby failing to perform an act.

4) The attempt to enforce hospitalization under Article 25(3) of the former Mental Health Act with respect to B

In collusion with C, for the purpose of hospital B under Article 25 of the former Mental Health Act, the Defendant abused the authority of the Sungnam market and let D and other persons related to the public health clinic request D to accompany the vehicle and mental health specialist to the Center, and let D, G, and I go to the site where B, in order to force compulsory hospitalization of B, the Defendant had D, G, and I perform an act without any obligation.

B. Relevant statutes

The main contents related to this case in the former Mental Health Act (wholly amended by Act No. 14224, May 29, 2016; hereinafter referred to as the "former Mental Health Act") and the former Enforcement Decree of the Mental Health Act (wholly amended by Presidential Decree No. 28074, May 29, 2017; hereinafter referred to as the "former Enforcement Decree of the Mental Health Act") are as follows (On the other hand, Article 25 of the former Mental Health Act was amended by Act No. 1105, Aug. 5, 201; Article 25 of the former Mental Health Act was enforced from August 5, 2012; Article 25 of the former Mental Health Act referred to as the "mental health specialist" as the "mental health specialist," and its contents was changed before and after the amendment.

□ 구 정신보건법 제25조（시장•군수•구청장에 의한 입원） ① 정신질환으로 자신 또는 타인을 해할 위험이 있다고 의심되는 자클 발견한 정신건강의 학과전문의 또는 정신보건전문요원은 시장•군수•구청장에게 당해인의 진단 및 보호를 신청 할 수 있다. ② 제1항의 규정에 의하여 신청을 받은 시장•군수•구청장은 즉시 정신건강의학과전문의에게 당해 정신질환자로 의심되는 자에 대한 진단을 의뢰하여야 한다. ③ 정신건강의학과전문의가 제2항의 정신질환자로 의심되는 자에 대하여 자신 또는 타인을 해할 위험이 있어 그 증상의 정확한 진단이 필요하다고 인정한 때는 시장•군수•구청장은 당 해인을 국가나 지방자치단체가 설치 또는 운영하는 정신의료기관 또는 종합병원에 2주 이 내의 기간읗 정하여 입원하게 할 수 있다. ④ 제3항의 규정에 의한 자신 또는 타인을 해할 위험의 기준은 제28조의 규정에 의한 중앙 정신보건심의위원회의 심의를 거쳐 보건복지부장관이 정한다 . （중략） ⑥ 시장•군수•구청장은 제3항의 규정에 의한 진단결과 당해 정신질환자에 대하여 계속입원 이 필요하다는 2인 이상의 정신건강의학과전문의의 일치된 소견이 있는 경우 당해 정신질 환자에 대하여 국가나 지방자치단체가 설치 또는 운영하는 정신의료기관에 입원치료를 의 뢰할 수 있다. 다만, 그 관할구역에 국가나 지방자치단체가 설치 또는 운영하는 정신의료기관이 없는 경우에는 그 외의 정신의료기관에 입원치료를 의뢰할 수 있다. （후략） □ 구 정신보건법 시행령 제6조（시장 • 군수 • 구청장에 의한 입원） ① 정신질환으로 자신 또는 다른 사람을 해할 위험이 있다고 의심되는 사람을 발견한 정신 건강의학과전문의 또는 전문요원은 법 제25조 제1항에 따라 진단 및 보호를 신청하려면 발견한 장소를 관할하는 시장• 군수 • 구청장에게 진단 및 보호신청서（전자문서로 된 신청서를 포항한다. 이하 같다）을 제츨하여야 한다. ② 제1항에 따른 진단 및 보호신청서에는 다음 각 호의 사항음 적어야 한다. 1. 신청인의 성명, 주소 및 생년월일 2. 정신질환자로 의심되는 사람의 성명, 주소, 생년월일 및 현재의 소재지 3. 정신질환자로 의심되는 사람의 증상의 개요 4. 정신질환자로 의심되는 사람에게 보호의무자 또는 보호를 하고 있는 사람이 있는 경우 에는 그 성명 및 주소 ③ 시장 • 군수 • 구청장은 법 제25조 제2항에 따른 진단의뢰 결과 정신질환자로 의심되는 사람이 자신 또는 다른 사람을 해할 위험이 있다고 인정되는 경우에는 다음 각 호의 조치를 하여야 한다. 1. 법 제23조에 따라 자의에 따른 입원 신청을 하게 하는 것 2. 보호의무자에게 법 제24조에 따른 입원동의를 요정하는 것 3. 법 제25조 제3항에 따라 국 • 공립 정신의료기관 또는 종합병원에 입원조치를 의뢰하는 것（제1호 또는 제2호의 조치에 따르지 아니하는 경우만 해당한다） ④ 제3항 제3호에 따른 의뢰를 받아 정신질환자로 의심되는 사람을 입원시킨 국 • 공립 정 신의료기관의 장 또는 종합병원의 장은 지체 없이 2명 이상의 정신건강의학과전문의에게 증상음 진단하게 하고 그 진단 결과를 해당 시장 • 군수 • 구청장에게 서면 또는 전자문서로 통보하여야 한다. 다만, 진단 결과 법 제25조 제6항에 따른 계속입원이 필요하지 아니하다 고 인정되는 경우에는 즉시 퇴원시키고 그 퇴원 사실도 함께 통보하여야 한다. （중략） ⑥ 시장 • 군수 • 구청장은 제4항에 따라 법 제25조 제6항에 따른 계속입원이 필요하다는 진단 결과를 봉보받은 경우에는 지체 없이 같은 항에 따른 입원치료를 의뢰하여야 한다.

C. Summary of the judgment of the court below

Based on the facts and circumstances stated in its reasoning, the lower court found the Defendant guilty of all the facts charged on the following grounds on the premise that: (a) there is room to view that the Defendant, at the time of the Defendant’s act, was due to mental illness; (b) there is room to view that the Defendant had the intent to be hospitalized B in a mental medical institution for mental illness and to receive diagnosis and treatment by exercising legal authority as a sexual south market; and (c) accordingly, it may be deemed that B was undergoing the procedure under Article

① A request for revision to G’s assessment case is not an unlawful or unjust exercise, but a request for G’s official seal is not an unlawful or unjust exercise, and a request for revision to the revised assessment case is not an unlawful or unjust exercise, and the F’s delivery of a request for revision to the assessment case or an official seal is merely a fact supporting the Defendant’s delivery of the Defendant’s opinion, and it cannot be deemed an act of abuse of authority.

② Since requesting or sending the results of H’s interview can be seen as part of data collection, it is difficult to view it as unlawful or unjust abuse of authority. The demand for diagnosis and protection against B caused by occurrence of a crime is merely the purport of examining whether the request was made or not, and requesting a response, and it is difficult to view it as abuse of authority.

③ A causal link between G, etc.’s application for diagnosis and protection under Article 25(1) of the former Mental Health Act with respect to B and the Defendant’s exercise of authority cannot be deemed to have reached the extent of requesting the above diagnosis and protection regardless of his/her medical judgment. Since the above application for diagnosis and protection is the inherent area of G, which is a mental health specialist, G cannot be deemed to have caused G to perform a non-obligatory act. (4) An attempt to enforce hospitalization under Article 25(3) of the former Mental Health Act without face-to-face diagnosis against B is an unlawful act; however, it is difficult to readily conclude that D’s transfer of vehicle at the time of Qua, to a middle-time police station, was an attempted attempt for compulsory hospitalization under Article 25(3) of the former Mental Health Act. Rather, the exercise of physical force for such diagnosis may not be deemed to have been an unlawful act, not an unlawful act, at the time of enforcement of Article 25(2) of the former Mental Health Act, and thus, it cannot be deemed to have been performed by a mental health specialist at the time.

D. Judgment of the court below

1) Basic facts

The following facts can be acknowledged according to the evidence duly adopted and examined by the court below and the court below.

A) On June 2, 2010, the Defendant was elected from May 1, 2010 to June 2, 2014 at the 5th regional election of Dong-dong local government, and was in office as the head of the 5th Sungnam city. C was in office as a secretary to assist the duties of the Sungnam city mayor from May 1, 201 to April 30, 2013. (b) The 5th regional public health clinic was established under the "Ordinance on the Establishment of the Manam City Administrative Organizations", and was in office as the head of the Do branch public health clinic from May 2, 2011 to May 1, 2012, and D was in office as the head of the Do branch public health clinic from May 2, 2012 to May 2013.

C) A center (the first name was "Seonam City Mental Health Center") was established as an institution under the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the community health center around 1999 (However, the central office of the center is within the male viewing). The center is originally entrusted with the operation of the center, and the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the Seoul National Health Center from January 1, 2012 to February 2014. The center of the branch of the branch of the branch of the branch of the branch of the branch of the Seoul National Health Center, who

2) Judgment on the premise of the facts charged

A) Determination on the Defendant’s instructions

In full view of the following facts and circumstances that can be recognized by the evidence duly adopted and investigated by the court below and the court below, the defendant ordered the head of the branch public health center, etc. of the branch public health center, etc. under Article 25 of the former Mental Health Act to proceed with the compulsory hospitalization procedure under Article 25 of the former Mental Health Act.

① On April 2012, 2012, the Defendant directly or through C, directed F, the head of a branch of a public health clinic, to review whether compulsory hospitalization under Article 25 of the former Mental Health Act on B (Death on November 2, 2017) is possible. F, as a result of the review, reported that it is impossible for the Defendant to proceed with the aforementioned compulsory hospitalization procedure several times, and the Defendant instructed F to re-examine or proceed with the said compulsory hospitalization procedure by presenting his/her view that compulsory hospitalization procedures can be conducted under the interpretation of Article 25 of the former Mental Health Act.

② On April 2012, the Defendant sought from F to F a report on the said compulsory hospitalization on the job of receiving a report on the said compulsory hospitalization from F, the Defendant also sought from F as to the procedure of “inpatient treatment” under Article 25(6) of the former Mental Health Act or the following procedure.

③ On May 2, 2012, the period of regular personnel management in Sungnam-si changed from F to D, and the Defendant directed D, either directly or through C, to the effect that D should proceed with compulsory hospitalization procedures under Article 25 of the former Mental Health Act, directly or through C, several times from June 2, 2012 to August 2012 (the Defendant, from June 13, 2012 to June 22, 2012, instructed D to make multiple telephone communications with D while traveling a business trip to B, as above, and urged D to proceed with the procedure).

④ Around August 27, 2012, the Defendant issued orders to D, X, and I to the effect that the procedures under Article 25(2) of the former Mental Health Act have been completed with respect to D, D, and D’s branch public health clinic staff X, and I, and that the following procedures should be followed. At the time, the Defendant was urged to the effect that “whether the foregoing D, X, and I was the reason for failure to process work,” and that “the Defendant’s failure to process legitimate matters is a abandonment of his duties.”

⑤ At around September 13, 2012 and around September 17, 2012, the Defendant, either directly or through C, directed the persons related to the branch public health centers, such as D and X, to prepare a question to ask the Ministry of Government Legislation and relevant agencies, such as the Ministry of Health and Welfare, about whether it is possible to take compulsory hospitalization measures under Article 25 of the former Mental Health Act at the present stage.

6) The Defendant asserts to the effect that the head of a regional public health clinic, the head of a regional public health clinic, and his employees and B may proceed with the procedure under Article 25 of the former Mental Health Act, and only discussed this issue and did not order the Defendant to proceed with the procedure. However, the above FF, D, X, and I stated to the effect that the Defendant was present as a witness of the lower court and was given an order to implement the above procedure several times, and that the Defendant was also subject to the duty of care even. There is no reason to view that the above statement is not reliable.

B) Determination on the Defendant’s intent or motive

1) However, considering the following facts and circumstances acknowledged by the evidence duly adopted and examined by the lower court and the lower court, it is difficult to view that the evidence submitted by the prosecutor alone, despite being aware that there is no circumstance to suspect that the Defendant was at risk of undermining himself/herself or others due to mental illness, it is difficult to deem that the Defendant instructed B to proceed with compulsory hospitalization procedures under Article 25 of the former Mental Health Act with regard to B, even though he/she was aware that there is no circumstance to suspect that the Defendant had a mental illness.

(1) There are various circumstances suspected of having mental illness B around the time indicated in this part of the facts charged, and in detail, the following are established:

On February 2, 2002, B posted a statement to the effect that “B was entrusted with a juvenile training shop in Sungnam-si with preferential treatment,” and that “B was in a fluorous relationship with a woman twice.” A has a number of statements that are difficult to easily understand the meaning of the statement to reporters and their neighbors at that time. This statement is very peculiar to the point of view of ordinary people. In addition, there is considerable circumstance to deem that B had a fluorous and fluorous act by using a fluorous act from the JJ around that time.B had many times from February 2, 2012 to around the date indicated in the facts charged in the instant case, it was difficult to view that there was an excessive verbal abuse, humiliation, intimidation, etc. among many public officials of Sungnam-si and ordinary citizens, etc., and that it was difficult to view that the other party’s act and his relatives, including the Defendant, etc., were sexually violent or indecent, etc. as an act in light of social norms and social norms.

D. From May 28, 2012, C. 1 to D. 200 to D. 1, 201 to D. 1 to D. 1 to D. 1 to D. 1 to D. 2 to E. 2 to E. 1 to E. 2 to E. 1 to E. 2 to E. 1 to E. 2 to E. 1 to E. 2 to E. 1 to E. 3 to E. 1 to E. 4 to E. 1 to E. 2 to E. 1 to E. 2 to E. 1 to E. 2 to E. 1 to E. 1 to E. 4 to E. 2 to E. 1 to E. 2 to E. 1 to E. 3 to E. 2 to E. 1 to E. 1 to E. 3 to E. 1 to E. 2 to E. 1 to E. 2 to E. 1 to E. 1 to E.

② Among the above various circumstances suspected of having mental illness B, circumstances that may cause harm to others, such as assault and intimidation in B, include, inter alia, the criminal facts of the said criminal case, which B was punished, are doubtful in light of social norms when considering the motive and circumstance, method and attitude of the crime. Moreover, a considerable number of such various circumstances suspected of having mental illness in B, among the above circumstances, can easily be seen as having been committed by the Defendant at the time.

③ P, the husband of the Defendant’s deadly living together with the female her husband, had a family record of being suffering from depression or depression before this part of the facts charged (Evidence No. 4, 1845, 1846 of the record of evidence, No. 11 of the trial record, No. 6556 of the record of the trial), and even when each of the Defendant and the Defendant’s her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her and her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her.

④ The prosecutor asserts to the effect that it is unreasonable to determine the mental health condition B around the time following the date and time indicated in this part of the facts charged. However, in light of the content thereof, the circumstance related to the mental health condition B following the date and time indicated in this part of the facts charged may sufficiently take account of the circumstances that can undermine the mental health condition B around the time and time indicated in this part of the facts charged.

⑤ Meanwhile, according to each of the above evidence, it is recognized that B operated an accounting office as an accountant and obtained considerable income from the date and time indicated in this part of the facts charged, and carried out a balanced family life with his wife and child. However, even in addition to the evidence submitted by the prosecutor and various circumstances pointed out by the prosecutor, the mental illness can be determined differently depending on its seriousness and degree of social function of the mentally ill person depending on whether it is repeated due to its characteristics, and it is difficult to think that the problem caused by mental illness occurred in all areas of the person suffering from the disease (see the results of fact-finding on the understanding of the department of mental health of the first instance). In light of the fact that B had a normal and smooth life, and there is no way to suspect that there was any mental disease at the time and time indicated in this part of the facts charged, regardless of the aforementioned various circumstances, it is difficult to deem that B did not have any way to suspect that there was any mental disease by the time and time indicated in this part of the facts charged.

(6) In addition, with respect to the mental health state of B around the date and time indicated in this part of the facts charged, there is a medical record or psychological evaluation result to the effect that there is no particular mental illness to B. However, this is difficult to use it as materials to accurately grasp the mental health state of B for the following reasons. The statement of opinion on January 21, 2019 (No. 10 of the evidence record, No. 10661 of the National Assembly Member R of Mental Health who treated B twice on March 11, 2013 and March 13, 2019 (No. 10 of the evidence record) states that “it does not seem that there was a serious mental symptoms opinion at the time of the medical examination.” However, the above statement of opinion was relatively short of the period and time for the medical examination, and it is difficult to view that there was no special mental health problem as stated in the facts charged prior to the submission of the press report to the Committee on January 21, 2019.

(B) According to the 'Chychological Evaluation Report' (No. 14ter 7008 of the evidence record) of the 'Chychological Counseling Institute' (Class 1), the 'Chychological Evaluation Report' (No. 7008 of the evidence record) stated that "B does not present significant mental and emotional disorder and emotional difficulties as of December 22, 2012." However, this is not the 'B' of December 14, 2012, but it is necessary for the prosecutor who investigated the crime in the crime in the crime in the crime in the crime in the crime in the B to have his own mental sentiment. Thus, the prosecution is suspended until the result of the 'Chychological Counseling Institute' (No. 14th of the evidence record No. 7003 of the record). Thus, the 'Chychological Evaluation' is requested by the B itself to conduct the 'Chychological Evaluation' on the ground that it is difficult to use the 'Chychological Assessment Report No.

① The mere fact that the Defendant was not good between B and B around 2012 is insufficient to readily conclude that the Defendant had the intention to isolate the Defendant from B in a society with knowledge of the absence of any mental illness.

2) In addition to the Defendant’s awareness of the illegality of the process under Article 25 of the former Mental Health Act, in full view of the following facts and circumstances, which can be recognized by the evidence duly adopted and investigated by the lower court and the lower court, it is difficult to deem that the Defendant, despite being aware that the process of compulsory hospitalization under Article 25 of the former Mental Health Act was illegal, instructed the process to proceed with the procedure without any reasonable doubt.

① In light of the language and meaning of “finding” under Article 25(1) of the former Mental Health Act, there is no provision that limits the means or method of “finding” under the former Mental Health Act or any other Acts and subordinate statutes related to medical service, and the subject of “finding” is limited to a mental health specialist or a mental health specialist, and the latter is naturally planned to perform a diagnosis by a mental health specialist after Article 25(1) of the former Mental Health Act, “person suspected of undermining himself/herself or others due to a mental disease” under the above provision (hereinafter referred to as “suspect suspected of having a risk of harm to himself/herself or others”), it is reasonable to interpret that a mental health specialist or a mental health specialist can be reasonably determined according to his/her discretion. In general, it is difficult to interpret that there is a limitation to the procedure of hospitalization by a person suspected of having a mental illness” under Article 25(1) of the former Mental Health Act, but it is also reasonable to interpret that “the person suspected of having a mental illness” should be determined in advance without face-to-face diagnosis by Article 25 of the former Mental Health Act.

② In full view of the following, it is difficult to deem that the interpretation of Article 25 of the former Mental Health Act or the relevant legal doctrine was clearly clarified around the date and time indicated in the facts charged.

On February 23, 2001, Supreme Court Decision 2000Do4415 Decided February 23, 2001, "In the case of hospitalization by the legal guardian under Article 24 of the former Mental Health Act, even if there is the consent of the legal guardian, it is reasonable to interpret "in the case of hospitalization by the legal guardian under Article 24 of the former Mental Health Act, the department of mental health diagnosis and diagnosis of the need for hospitalization, and accordingly, the head of the medical institution for mental illness shall determine hospitalization." Accordingly, the Supreme Court Decision 25 of the former Mental Health Act on the interpretation of Article 25 of the former Mental Health Act only stated that the exercise of physical power within a reasonable range deemed reasonable from a mental and social perspective is allowed only when the mental patient resists the hospitalization measure that meets such requirements.

C. The prosecutor asserts that the ‘finding' under Article 25(1) of the former Mental Health Act also requires a psychiatrist or a mental health specialist to find it face-to-face with a person suspected of having a mental illness (see, e.g., Supreme Court Decision 2009Da1544, Apr. 2, 2009). However, the Ministry of Health and Welfare has interpreted that the ‘finding' is generally judged via face-to-face meeting, or that the documents recorded by a third party are highly reliable (see, e.g., inquiry about the Ministry of Health and Welfare), and there is a opinion of a medical specialist of mental health in such position (see, e.g., the opinion of the court below as to the fact-finding). Meanwhile, among the opinions of a medical specialist of mental health, it is desirable to find the ‘finding' in principle, but it is not illegal to find it without face-to-face meeting with regard to the above finding” under Article 25(1) of the former Mental Health Act (see, e.g., the statement of the original witness).

D. At the time, there was almost no practical precedent of hospitalization under Article 25 of the former Mental Health Act at the time, and therefore, it cannot be said that there was a established practice regarding the procedure of hospitalization (or, however, it is difficult to view that there was a established practice or practice with several cases).

E. However, it is difficult to view that there was an established interpretation on Article 25 of the former Mental Health Act at the time solely based on such clinical practice standards.

③ Therefore, even without face-to-face diagnosis, the Defendant determined that the person suspected of mental illness at the time could be hospitalized pursuant to Article 25(3) of the former Mental Health Act, and the determination became later inconsistent with the interpretation of the above provision, and it cannot be readily concluded that the Defendant was aware of the illegality of the above procedure at the time. The Defendant did not instruct the employees of F, D, and D, and D, and D, to the effect that he would neglect the requirements or procedures under Article 25 of the former Mental Health Act and make B a compulsory hospitalization.

④ The employee of F, D, and branch public health centers reported to the purport that “B is a family member, is unable to proceed with the procedure under Article 25 of the former Mental Health Act without face-to-face diagnosis with respect to “B,” and that it is impossible to proceed with the procedure without jurisdiction because B’s domicile is acceptable.” However, it is difficult to deem that the reported content conforms to the interpretation and accurate interpretation of Article 25 of the former Mental Health Act. However, it is difficult to deem that the interpretation and legal principles as to the above provision were clearly clarified at the time. Thus, it is difficult to conclude that the Defendant had been aware of the illegality of the procedure, on the ground that the Defendant continuously instructed the procedure under Article 25 of the former Mental Health Act even after receiving the aforementioned report.

⑤ In addition, the director of the division of the public health clinic X was present as a witness of the court below and stated that “at the time of request for examination” under Article 25(2) of the former Mental Health Act was “at the time of request for examination, but there was no face-to-face diagnosis with respect to B, and thus it was impossible to proceed with the following procedure.” According to the above statement, X was judged to have been lawfully conducted until the procedure of request for examination under Article 25(2) of the former Mental Health Act was completed.

⑤ On June 11, 2012, the Defendant has received advice from T of the department of mental health of the Seoul National University Hospital from the director of the department of mental health of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the Seoul National University Hospital to the effect that “B shall move the wife, who is the legal guardian, and his/her father and wife, to the hospital if he/she refuses to provide diagnosis and treatment.” However, the content of T’s advice is not only the clinical base date

7) On the other hand, K, who is the wife B, seems to have refused the recommendation of H, etc. to treat the mental health of B. Accordingly, with respect to B, “hospitalize by the person responsible for protection” under Article 24 of the former Mental Health Act was unable to take the measure of hospitalization.

3) Determination as to whether the crime of abusing authority and obstructing another’s exercise of rights against individual charges

A) Determination as to G’s modification of evaluation questions about G’s B

(1) Legal principles

In the crime of abusing authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act, “when one allows a person to perform an act without any obligation” means when one allows a person to perform an act without any obligation under the law. As such, if the standards and procedures for performing duties are specifically specified in the statutes and the person in charge of the practice has been granted the unique authority and role to apply the standards and procedures for performing duties, it constitutes “when one allows a person to perform an act without any obligation.” However, even if a public official allows a person in charge of the practice to perform an act of supporting his/her duties with respect to matters belonging to his/her own authority and authority, such act is only connected to his/her official’s performance of duties, and thus, it does not constitute “when one causes a person to perform an act without any obligation” (see, e.g., Supreme Court Decisions 201Do12534, Oct. 31, 2017; 2018Do18646, Mar. 14, 2019).

(2) Facts constituting the premise for determination

The following facts can be acknowledged according to the evidence duly adopted and examined by the court below and the court below.

(A) On April 2012, 2012, the Defendant instructed F to the effect that “B shall be treated at present from G so that B’s family members may be understood.” At that time, F sent the Defendant’s above instructions to G, and the Defendant received a question of evaluation of B from G and delivered them to the Defendant.

(B) However, the Defendant revised the foregoing evaluation case to the effect that “B needs to be hospitalized at present” on a yearly basis, and ordered G to revise the said evaluation case as described above with F.

(C) The F demanded that G revise the foregoing evaluation text in a way that the Defendant displayed the modified evaluation text as above, and the Defendant’s modified contents should be reflected.

(D) G was unable to revise the assessment text as modified by the Defendant, while adding the textbook contents about the seriousness of the depression, and the above assessment text was modified to F, and F was delivered to the Defendant.

(E) The Defendant again directed FF to obtain the official seal of the Seoul National University Hospital or the Center for Seoul National University Hospital or the Center on the foregoing evaluation issue. F sent the Defendant’s above request to G outside of the Center. G only allowed the Defendant to affix his official seal, and accordingly, the said evaluation proposal was affixed to G’s name next to the said evaluation proposal.

(F) According to the foregoing circumstances, the final revised assessment proposal is as follows (No. 14, 6943, 6952 of the evidence record), and the following paragraphs 1, 2, and 5 of the record are the content previously prepared by G, and paragraphs 3, 4 are the parts additionally modified.

B 씨의 문건에 대한 평가의견 1. 상기 B씨가 인터넷 상에 기술한 내용 및 접촉한 사람들의 상황설명이 사실이라는 전제 하에 내용을 평가한 결과 현실상황에 비추어 '관계망상적 사고' 및 '과대망상적 사고’의 가능성이 매우 높으며 사소한 자극에도 정상적으로 예견되는 범위 이상 흥분하고 공격적인 언행을 반복적으로 보이는 것으로 평가됨 2. 평소의 지적 기능이나 환경을 참고하면 기분장애 중 ‘조울병(양극성장애)'의 가능성이 높다고 판단됨 3. ‘조울병’의 경우 우울 또는 조증 삽화가 반복됱수록 뇌기능 저하가 현저해지고 치료에 대한 반응도 떨어지는 것으로 알려져 있으며 자신이 문제의 심각성을 인지하기 못하여 치료에도 비협조적인 경우가 많아 치료상 어려움이 있음. 급성기 삽화의 경우에는 입원치료가 필요한 경우가 많음. 가족 및 법적 보호자의 조울병에 대한 이해를 동해 지속적인 치료를 받을 수 있는 환경을 만들어 주는 것이 우선적이며 장기간의 약물치료가 현재까지 가장 효과적으로 알려져 있음 4. 조울병의 조증기에는 과도한 의욕, 무모한 계획, 낭비나 위험한 투자, 타인에 대한 공격 성 등이 주로 나타날 수 있으며 우울기에는 의욕저자, 대인관계 단절. 일상 활동을 수행하지 못함 등 사회인으로 살아가는 것이 붛가능하고 특히 조울병이 적절히 치료되지 않을 경 우 모든 정신질환 중에서도 자살률이 가장 높다고 보고된 바 있음 5. 상기 의견은 문건의 평가를 통하였으므로 의학적 효력이 없으며 임상적 진단이나 치료를 위해서는 반드시 정신건강의학과 전문의의 대면평가를 거쳐야 함

(3) Specific determination

(A) Determination as to F’s demand for revision and seal of the F’s evaluation text

In full view of the following facts and circumstances that can be recognized by the evidence duly adopted and investigated in the court below and the trial court, the defendant demanded F to revise the evaluation proposal about B, and affixed G seal on the evaluation report above. The defendant's act of supporting the execution of his duties in relation to the matters belonging to his own official authority is limited to the defendant's execution of duties, or it cannot be deemed that F has assisted F in the performance of duties in violation of the standards and procedures for the performance of duties. Thus, it cannot be viewed as "when the defendant caused F to perform an act without obligation" under Article 123 of the Criminal Act.

① At the direction of the Defendant, F only delivered the Defendant’s request for the correction and seal of written assessment to G.

② Although mental health projects are the affairs under the jurisdiction of the Gu branch public health center, and the head of the Gu branch public health center can exercise the overall authority to direct and supervise the center, it cannot be deemed that the head of the Gu branch public health center is unable to request the head of the Gu branch public health center to revise or seal the contents of the proposal for evaluation, or that the standards or procedures that should be observed in making such a request are specified in statutes. Therefore, it is difficult to see that the F is given F’s unique authority and role in demanding G to revise and affix the written evaluation, and there is no other evidence to acknowledge such a situation.

③ At the time of demanding revision of the written assessment, F appeared as a witness of the lower court and stated to the effect that “G requested revision of the written assessment to use the written assessment to obtain B’s guardian’s care needs at the time of demanding revision of the written assessment.” According to this, the number of composition was only the purpose of using modified written assessment to obtain B’s guardian’s care. Therefore, it is difficult to readily conclude that the request for revision was in breach of the standard and procedure regarding the performance of duties.

4. Requesting a seal affixed to an evaluation book is for the purpose of clearly expressing that the document, which is the preparation of the document, was prepared, and thus, such a request cannot be deemed unlawful.

(B) Determination as to the amendment of G’s evaluation text

In full view of the following facts and circumstances that can be recognized by the evidence duly adopted and examined by the lower court and the lower court, G’s amendment of the evaluation question can only be deemed as a result of the F’s request or the dance request, etc., and it cannot be readily concluded that “an act that does not have any legal obligation” as referred to in the crime of abusing authority and obstructing another’s exercise of rights.

① The revised content to G was merely a general content of the risk of lighting and the need for medical treatment. Moreover, G also attached the proviso that “as the opinions mentioned above are evaluated only by the documents related to B, in order to conduct accurate diagnosis and treatment with respect to B, it is necessary to conduct face-to-face assessment first.”

② At the time, F and G appeared as a witness of the lower court and stated that “B shall be hospitalized as a matter of risk to harm himself/herself or other persons”. However, there is no content that B ought to undergo hospital treatment in the case of modified evaluation. As such, G does not accept the Defendant’s above request and did not modify the evaluation text. G also stated in the testimony of the lower court to the effect that “B was a dangerous question if you are not read.”

③ At the lower court’s testimony, F stated to the effect that “I would like to use B’s guardian to understand the need for treatment in relation to the Defendant’s request for correction of the written evaluation of G at the time,” and that “F would use it as data when I would report at the time” in the testimony of the lower court. According to each of the above statements, F and G did not expect that the written evaluation would be used as a basis for any performance of duties. Moreover, the written evaluation is not a document required under the law to proceed with the procedure under Article 25(1) of the former Mental Health Act.

4 G stated at the lower court’s testimony that “F may not be able to dismiss the evaluation item as flickly, with the immediate draft,” and that “F would be flickly unflickly unflickly,” and that F would have revised the evaluation item by suffering from difficulties, and that it was not under F’s direction or interference with the contents of evaluation proposal.”

B) Determination on the preparation, dispatch, etc. of official documents for the diagnosis and preparation of the application for protection against B

(1) Legal principles

In the crime of abusing authority and obstructing another’s exercise of rights under Article 12 of the Criminal Act, “an abuse of authority and obstructing another’s exercise of rights” means a public official’s unlawful exercise of matters belonging to general authority and authority: (a) in a formal and external manner, a public official appears to have performed an act other than legitimate authority; (b) whether the act constitutes abuse means a specific purpose of performing his/her duties; (c) whether the act was necessary or reasonable in the

Determination by taking into account various factors (see, e.g., Supreme Court Decision 2014Do11441, Feb. 13, 2018).

(2) Facts constituting the premise for determination

The following facts can be acknowledged according to the evidence duly adopted and examined by the court below and the court below.

(A) On June 15, 2012, H visited G with Y, his/her husband, and consulted G on the mental health status of B.

(B) On June 19, 2012, D received a direction from C to receive H’s results of the interview on behalf of the Sungnam market, D sent a “request for the result of the interview” (No. 1, 262, 4, 1496 of the evidence record) on behalf of the Center to send the results of the interview to the public health center of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the public health center of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the public health

(C) On June 19, 2012, the Center sent an official document (Evidence No. 1, No. 263, No. 4992) to a branch public health clinic, along with a record sheet stating the results of the H’s above interview to the head of the branch public health clinic (the above official document was drafted by the Head of the Center’s Standing Team A and finally approved by the G).

(D) On June 20, 2012, D sent a public letter of “A diagnosis and demand for protection application” (No. 1, No. 265, No. 489 of the evidence record) to B in the name of the head of the Gu/Si/Gun Public Health Center. (The above public letter was drafted by the above I, and finally approved D following approval of the review of the above Z).

(E) However, on June 20, 2012, G sent an official document (Evidence No. 4, No. 1488 of the Evidence Records) to the effect that B cannot file an application for diagnosis and protection under Article 25(1) of the former Mental Health Act only with respect to the details of the interview with H in the future of the head of the Gu branch public health clinic.

(3) Specific determination

(A) Determination as to H’s request for interview results and delivery portion

In full view of the following facts and circumstances that can be recognized by the evidence duly adopted and examined at the lower court and the lower court, it is difficult to view that D et al.’s act of abusing authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act constitutes “the abuse of authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act on the ground that all of the parts requiring D et al. to request D et al. to hold a interview with H or that G et al

(1) According to the former Mental Health Act, a local government shall prevent mental illness and take necessary measures, such as investigations for the treatment of mentally ill persons (Article 4(1)), and may perform community mental health projects, such as prevention of mental illness and discovery and treatment of mentally ill persons through public health clinics (Article 13(1)). Therefore, the performance of surveys, etc. conducted to prevent mental illness at the time of gender and to detect and treat mentally ill persons may be deemed to fall under its responsibility or authority.

In light of this, it can be said that the defendant, who is the Sungnam market, requested the Center to receive the results of the interview with H, has collected relevant data within a reasonable scope for discovery and treatment of suspected mentally ill persons.

② According to Article 5(4) of the former Ordinance on the Establishment and Operation of Mental Health Centers in Sungnam-si (amended by Ordinance No. 2008, Oct. 28, 2005; wholly amended by Ordinance No. 3149, Nov. 20, 2017; Ordinance No. 3149, Nov. 20, 2017); the Center, a trustee, shall comply with the relevant laws and regulations and the Mayor’s instructions. Therefore, the Center, in principle, is obligated to comply with the Defendant’s instructions regarding its duties. In light of this, it can be deemed that G, the head of the Center, comply with the request for cooperation in collecting the above data at Sungnam-si, the head of the Center, is obligated to comply with the above instructions.

③ During an interview with H, G explained that the content of the consultation could be provided to the relevant agency, as necessary, and obtained consent from H and Y.

It is difficult to deem that there is any illegality in requesting the Center to hold aH interview, or sending it to a divided public health clinic by the Center itself.

(B) Determination on the part of the public notice to request diagnosis and protection

In full view of the following facts and circumstances that can be recognized by the evidence duly adopted and investigated by the lower court and the lower court, the part where D et al. urged D et al. to apply for diagnosis and protection to the Center cannot be deemed as an act other than legitimate authority by itself, and thus, it is difficult to view that it constitutes an abuse of authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act

① It is not the purport of forcing G to conclude a specific conclusion, but the purport of requiring the Center to review whether the Center will apply for diagnosis and protection in a situation where H’s request for medical treatment is made.

② In addition to the demand for the above diagnosis and protection application, there is no evidence to acknowledge the circumstance that G had engaged in unfair instructions or interference that infringe upon the authority to judge as an expert (Article 25 of the former Mental Health Act) (Article 25 of the former Mental Health Act). In addition, G sent a letter of demand for diagnosis and protection to the purport that “A was urged by the Defendant and C to proceed with the procedure under Article 25 of the latter Mental Health Act, thereby taking a measure of immunity.” In addition, G presented a letter of demand for the above diagnosis and protection application immediately refusing to comply with the above demand. Therefore, the above demand itself cannot be deemed as having made unjust instructions or interference to G.

(3) Even if the authority to request the diagnosis and protection of a person suspected of having mental illness under Article 25 (1) of the former Mental Health Act exists with a mental health specialist or mental health specialist, it is difficult to deem that the demand by the head of a local government or the head of a public health clinic, who is an affiliated organization thereof, to exercise the said authority is unlawful.

④ As determined earlier, it is difficult to view that the Defendant, while recognizing that the process under Article 25 of the former Mental Health Act was illegal at the time, instructed the process to proceed.

C) Determination on diagnosis and preparation and dispatch of a written application for protection as to B

(1) Legal principles

In order to constitute the crime of abusing authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act, the abuse of authority and obstructing another person’s exercise of rights ought to result in having committed an act for which the said other person practically does not have any obligation, or obstructing another person’s specific exercise of rights, and the occurrence of such result ought to be caused by the act of abusing authority and obstructing another’s exercise of rights (see, e.g.,

(2) Facts constituting the premise for determination

The following facts can be acknowledged according to the evidence duly adopted and examined by the court below and the court below.

(A) On July 15, 2012, H sent to Seoul National University Hospital and the Center for Seoul National University Hospital a certificate of content that “H, on June 15, 2012, requested the Center to provide mental health treatment to B, but due to the failure to obtain cooperation, the mental health status of B has deteriorated, and several cases and accidents have occurred, and thereafter, the responsibility for future problems (Evidence No. 8, 3338, Evidence No. 11, Evidence No. 5395, Evidence No. 8, Evidence No. 11, Evidence No. 5395).”

(B) At the time, C directly prepared the language of the above content certification, and reported it to the Defendant at that time.

(C) On August 2, 2012, G prepared a written application with respect to B to apply for the diagnosis and protection under Article 25(1) of the former Mental Health Act (Evidence No. 4No. 1442 of the Evidence Record) and sent it to the head of the Sungnam market or the head of the Gu-gu Public Health Center.

(3) Specific determination

According to the above evidence: (a) on April 2012, 2012, C prepared a written statement of the case of verbal abuse, humiliation, intimidation, etc. from Manam Viewing Public Officials, and instructed F to carry them into the delivery; (b) around that time, C made a number of comments posted by F on the Sungnam Viewing website and the written statement of the above public officials; (c) upon receipt of the Defendant or C’s instructions, F sought advice on B’s symptoms and the above public officials’ symptoms, and sought advice on B’s disease symptoms and the above public officials’ hospital treatment issues; (d) C requested several times among June 2012 to proceed with the compulsory hospitalization procedure against G on several occasions; and (e) D also requested the Defendant or C to the effect that it should not be subject to compulsory admission into G on several occasions on several occasions on June 2012.

However, in full view of the following facts and circumstances that can be recognized by the evidence duly adopted and examined by the court below and the court below, G’s application for diagnosis and protection with respect to B can only be deemed to be based on its own judgment, and it is difficult to view it as a result of the Defendant’s exercise of authority.

① The G immediately rejected the official question of “the head of the regional public health clinic on June 20, 2012” as to the “the examination and demand for protection,” but the G applied for the diagnosis and protection with respect to B on August 2, 2012 after about 40 days from the said public health clinic.

② Around June 2012, G appeared as a witness of the lower court and determined that “A and D’s request for compulsory hospitalization or request for diagnosis and protection” was not an important consideration, and that at that time, B’s request for diagnosis and protection pursuant to Article 25(1) of the former Mental Health Act was a time signal. However, at the same time, G made a statement to the effect that “A’s request for diagnosis and protection was doubtful about the risk of harm to B’s people and other persons upon receipt of H’s content certification, and even without face-to-face consultation with the attorney-at-law of Seoul Metropolitan City Hospital, it was possible to find a person suspected of having a mental illness pursuant to Article 25(1) of the former Mental Health Act even without face-to-face consultation with the attorney-at-law of Seoul Metropolitan City Hospital.”

③ According to the above statement by G, G was suspected of having a risk of self-harm and sacrificing after obtaining the certificate of the H’s content. As a result of receiving legal advice, as a result of the construction of Article 25(1) of the former Mental Health Act, G’s response to the fact that a person suspected of having a mental illness may be discovered without face-to-face and it may rather be held legally responsible for not taking any measures, and it may be deemed that the request for diagnosis and protection with respect to B was reached according to its own judgment.

④ Although C directly prepares and reports the above content certification under H’s name to the Defendant, there is no evidence to acknowledge that the dispatch of content certification was made against H’s will. Therefore, it is difficult to view that G was involved in the dispatch of content certification and thus, G applied for the above diagnosis and protection.

⑤ In addition, even if C orders the submission of the above written statement to a male viewing public official and the written statement were made to G through F, considering the aforementioned circumstances, it is difficult to deem that there is a proximate causal relationship between C’s instruction to prepare and compile the said written statement and G’s act of diagnosis and protection application.

D) Determination as to the City/Do of the enforcement of hospitalization under Article 25(3) of the former Mental Health Act with respect to B

(1) Legal principles

In order to constitute the crime of abusing authority and obstructing another’s exercise of rights, the abuse of authority ought to have practically committed an act without any obligation of another person, or a result that obstructs another person’s specific exercise of rights, and the occurrence of such result ought to be caused by the act of abusing authority (see, e.g., Supreme Court Decision 2002Do3453, Apr. 15, 2005). “Duty” in this context refers to a legal obligation and does not constitute a simple psychological obligation or moral obligation (see, e.g., Supreme Court Decision 2008Do6950, Jan. 30, 2009).

(2) Facts constituting the premise for determination

The following facts can be acknowledged according to the evidence duly adopted and examined by the court below and the court below.

(A) On August 3, 2012, D prepared a public document stating that “A center shall request a diagnosis and protection pursuant to Article 25(1) of the former Mental Health Act to a person who has filed an application for diagnosis and protection under the name of the head of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of

(B) Around that time, D cited relevant materials about the above public sentences and B, and directly sought from AC of a department of mental health in the department of mental health in the tea hospital, and requested B to conduct a diagnosis pursuant to Article 25(2) of the former Mental Health Act.

(C) On August 7, 2012, AC prepared a reply (Evidence No. 4, No. 1439, No. 1494, 6953) to the effect that “AC shall be deemed to require accurate diagnosis and treatment as a result of examination of the documents related to B, even though it did not directly interview B” (Evidence No. 4, No. 1439, No. 694, 6953). D transferred the above reply to C around that time.

(D) Since then, D had sought information from C to undergo an investigation from B to the Central Police Station, and went to the Central Police Station that B was located in order to meet B with G on August 17, 2012, but B returned without communicating B.

(E) At the time, D ordered I to prepare a letter of cooperation with the Center immediately before the time. Accordingly, I prepared a letter of cooperation (No. 4 of the evidence record No. 1440) to the head of the Center in the name of the head of the Gu/Si/Gun Public Health Center, stating that "to request the accompanying of vehicles and mental health specialists for the purpose of the B's request for diagnosis," and called the Central Police Station, and G received the said letter of cooperation.

(3) Specific determination

According to each of the above evidence, the Defendant and C determined that the above response written by AC around August 7, 2012, with regard to B, “when it is deemed necessary to conduct accurate diagnosis of the symptoms since the risk of harm to himself/herself or others to a person suspected as a mentally ill person,” as referred to in Article 25(3) of the former Mental Health Act, the Defendant and C met the requirement that “a person suspected as a mentally ill person is in need of accurate diagnosis of the symptoms.” The Defendant instructed or urged D to proceed with the hospitalization procedure under the above provision directly or through C at that time.

However, in full view of the following facts and circumstances that can be recognized by the evidence duly adopted and examined by the lower court and the lower court, it is difficult to view that: (a) simply the evidence submitted by the prosecutor, D, G, and I to the Central Police Station with B on August 17, 2012, B was for compulsory hospitalization under Article 25(3) of the former Mental Health Act; and (b) furthermore, it is difficult to view that D, G, and I requested the Center to accompany the vehicle and mental health specialist at the time; and (c) as seen above, D, G, and I did not have the obligation to “an act in the exercise of rights and obstructing another’s exercise of rights due to the direction or re-promotion of the Defendant.”

① Party B appeared as a witness of the lower court and stated to the effect that “B was intended to be hospitalized in B pursuant to Article 25(3) of the former Mental Health Act, but it was the primary purpose of having G undergo face-to-face diagnosis or soliciting B to diagnose B. G. B, who forced B to go to go to the lower court.” ① A was present as a witness of the lower court and stated to the purport that “B was asked to go to go to the center at the time of the request of D to go to the center, and was asked to go to go to go to the center at the time of the request of B, and called to the effect that “B was asked to go to go to go to the center at the time of the request of D to go to the center, but I was asked to go to go to the effect that “B was diagnosed and hospitalized immediately during the request of D to go to the center at the time of the lower court, but I refused to go to go to the effect that it was absolute.”

② In full view of the above legal statements of D, G, and I, it is not clear whether D, G, and I had their respective objectives as the Central Police Station at the time of D, G, and I, and in particular, it is not clear whether D intended at the time of D.

③ On August 17, 2012, the date when D transferred to the Central Police Station with G in order to meet B, and on August 17, 2012, AF, the Sungnam Market Implementation Officer, under the direction of C on August 2012, 201, implemented compulsory hospitalization measures against D with two sexual male viewing security guards, but D refused its implementation with face-to-face reasons, such as the procedure is unlawful. In such a situation, it is doubtful whether D went to the Central Police Station in order to immediately change its position without any change of circumstances and to force B.

④ Considering the age, status, career, etc. of D, G, and I, it is doubtful that only the three above three persons at the time were able to exercise coercive force to proceed with the procedure of hospitalization, and otherwise, whether the said three persons were sufficiently able to exercise coercive force to B. D was also doubtful as to the hospitalization of B at the time, and there was no other administrative procedure including the preparation of a written request for hospitalization. There was no evident evidence to acknowledge whether B was being examined by the Central Police Station at the time.

⑤ The official document prepared by I according to D’s instructions stated that B requires vehicles and accompanying for the purpose of “examination request”. According to the phrase “request for diagnosis request”, this is not a procedure under Article 25(3) of the former Mental Health Act, but a procedure under Article 25(2) of the former Mental Health Act is scheduled.

6) D appeared as a witness of the lower court and stated to the effect that “the sending of official notices to the Center requesting the accompanying of a vehicle and a person specializing in mental health.” In full view of the aforementioned D’s legal statement, text and text of the above official questioning, etc., D appears to have tried to proceed with the procedure under Article 25(2) of the former Mental Health Act, unlike the Defendant or C’s instructions, on its own judgment. This is supported by G’s statement, namely, a statement to the effect that he/she was accompanied with D to meet with B.

7) Furthermore, considering the above legal statement of D and the perception, conduct, surrounding circumstances, etc. at the time of the above evidence, it is doubtful that D, at the time of a business trip, had the Defendant instructed or failed to follow the procedure under Article 25 of the former Mental Health Act with respect to the Defendant or C, while traveling abroad, it is doubtful that D did not perform the above act in order to avoid the Defendant’s quality by entering the appearance of the Defendant who attempted to proceed with any procedure while attempting to not ultimately comply with D’s above procedure.

4) Sub-committee

Therefore, this part of the facts charged constitutes a case where there is no proof of crime. Although there is some inappropriate part of the reasoning of the lower judgment, the lower court’s conclusion that acquitted all of the facts charged is justifiable. Therefore, it cannot be said that there was an error of misunderstanding of facts or misunderstanding of legal principles in the lower judgment, and the Prosecutor’

4. Determination on the violation of the Public Official Election Act based on the publication of false facts related to B

A. Summary of the judgment of the court below

The court below found the defendant not guilty of all the charges on the grounds that the defendant's statement in this part was not made public, or that there was no intention to publish false facts, and the specific reasons are as follows.

① In the instant case’s TV forum for candidates of the Gyeonggi-do Governor, the part of asking for forced hospitalization, which was in the year 2010, was not included in the purpose of questioning the other candidates AD. Therefore, it cannot be deemed that the Defendant could not be deemed that he/she made a speech to deny it, and thus, it cannot be deemed that the Defendant publicly announced false facts or

② As to whether the Defendant published false facts by making a statement denying the procedure of compulsory hospitalization under Article 25 of the former Mental Health Act with respect to B from April 2012 to August 8, 2012, in light of the following circumstances: (a) in light of the intent to ask questions and answers at the TV discussions of candidates for the Gyeonggi-do Governor at the time; (b) the diversity of remarks; (c) the situation at the time; and (d) the characteristics of joint debates, the Defendant’s statement in this part is an unclear statement that does not specify the existence of a specific act; and (d) it cannot be deemed that the statement intentionally distorted facts to the extent that it intentionally distorted the elector’s accurate judgment. Therefore, it is

③ As to whether the Defendant made a false statement to the effect that there was no omission of the forced hospitalization procedure against B around 2012, the Defendant’s statement was made to the effect that the Defendant discontinued the procedure, taking account of the circumstances in the holding, it is difficult to view this part of the statement as false.

B. Judgment of the court below

1) Legal principles

"False facts" as referred to in Article 250 (1) of the Public Official Election Act means matters inconsistent with the truth and are sufficient enough to have the elector make an accurate judgment on a candidate. Whether an expression is false or not should be determined on the basis of overall increase that the expression is to be comprehensively taken into account, comprehensively taking into account the overall purport of the expression, objective contents, ordinary meaning of the words used, connection method of phrases, etc., on the premise that ordinary electors have an ordinary way to contact the expression (see, e.g., Supreme Court Decisions 2009Do8947, Feb. 11, 2010; 2015Do1202, May 14, 2015). Furthermore, since it constitutes the constituent elements of the crime of publishing false facts as provided in Article 250 (1) of the Public Official Election Act, it is necessary for the elector to determine whether the expression was false or not, in light of the nature of the contents of the actor’s intent, and the circumstances leading up to 201, including subjective public knowledge and external content, etc.

2) Facts constituting the premise for determination

The following facts can be acknowledged according to the evidence duly adopted and examined by the court below and the court below.

A) On June 13, 2018, the Defendant was elected as the Governor of the Gyeonggi-do from the 7th local election of Dong-si nationwide, and was in office as the Governor of the Gyeonggi-do from July 2018 to that of the Gyeonggi-do.

B) In the debate on candidates of the Gyeonggi-do Governor of KS held on May 29, 2018, the part related to the instant case among the debate between the Defendant and the counterpart AD is as follows (the part of the remarks stated in this part of the facts charged was marked by snick letters and bottoms).

AD : The mother of Doz. Doz. Doz. Doz. Doz. Doz. Doz. Doz. Doz. Doz. Doz. 1 and Doz. Doz. 1 and Doz. Doz. 1 and Doz. Doz. 1 and Doz. Doz. 1 and Doz. 1 and Doz. Doz. 1 and Doz. 1 and Doz. 1 and Doz. 1 and Doz. 1 and Doz. 1 and Doz. 1 and Doz. 1 and Doz. 1 and Doz. 1 and Doz. 1 and Doz. 1 and Doz. Doz. 1 and Doz. Doz. 1 and Doz. 1 and Doz. Do, Doz.

C) On June 5, 2018, at a debate on candidates of the Gyeonggi-do Governor of the Gyeonggi-do, the parts related to the Defendant’s remarks are as follows (the part of the remarks recorded in this part of the facts charged indicated in this part of the facts charged indicated by snick letters and bottom lines).

Defendant: The thickness of our AD candidate was intended to hospitalize a shot in the indecent hospital. The same fact is not the same that I would like to make this argument. The hospitalization in a mental hospital was denied, so I would like to request the diagnosis on the condition that the shot was the scarf and the scarf, and that the scarf was the same as the scarf who had a mental illness in the public health clinic, and that the scarf was the same as the scarf in which the scarf had a mental illness. Since the authority had the proposal, I would like to say that I would like to say that the scarf could not be too politically scarfed, thereby preventing the scarf from being scarfed.

3) Determination as to the denial of attempt to hospitalization at an acceptable mental hospital

A) Even though the Defendant had attempted to hospitalize B around 2010 to be hospitalized in the Gaman Hospital, it is examined as to whether there was any false information by speaking to the effect that there was no deficit in B in the TV forum of candidates for the Gyeonggi-do Governor (hereinafter “instant debate”) to be hospitalized in the Gaman Hospital.

B) In full view of the following facts and circumstances acknowledged by the evidence duly adopted and examined by the lower court and the lower court, it is reasonable to view that the evidence submitted by the prosecutor alone cannot be deemed that the Defendant made a statement to the effect that the Defendant denied the attempt to hospitalization at the Kaman mental hospital B as above in the instant debate, or that the Defendant made a statement with intent to publish false facts with the intent to make a public announcement thereof.

① AD appeared as a witness of the lower court and stated to the effect that “The purpose of this case’s debate is not to ask questions about whether the Defendant attempted to be hospitalized in a mental hospital B” is “not to include the part of the attempt to be hospitalized in 2010.”

② Considering the suspicions that the Defendant raised at the time of the instant debate, the Defendant appears to have understood the above suspicions of AD.

③ 따라서 이 사건 토론회에서 AD이 피고인에게 "형님을 정신병원에 입원시키려고 하셨죠?"라고 질문한 데 대하여, 피고인이 "그런 일 없습니다"라고 발언한 것이, 피고인이 AD의 위 질문의 의미를 선거인의 정확한 판단을 그르치게 할 정도로 왜곡하여 이해한 다음 이 부분 발언을 하였다고 보기 어렵다.

C) The decision of the court below to the same purport is just, and there is no error of law by misunderstanding facts or by misapprehending the legal principles. The prosecutor's allegation in this part is

4) Determination on the part concerning the defendant's participation in the procedure for compulsory admission

A) Issues

Although the Defendant instructed B to proceed with the compulsory hospitalization procedure under Article 25 of the former Mental Health Act with respect to B from April 2012 to August 2012, there was part of the process, the question is whether the Defendant is liable for the crime of publishing false facts by speaking to the effect that B did not intend to be hospitalized with a mental hospital in the instant debate.

B) Determination as to whether this part of the statement constitutes a false publication

(1) A statement of an affirmative objection to a false fact constitutes a publication of false facts under Article 250(1) of the Public Official Election Act; however, the statement was not made by actively opposing the fact, but it was made passively hiding or similar. If it was distorted to the extent that it distorted the fact that it was actively opposed to the elector’s fair decision, it is reasonable to deem that it constitutes the publication of false facts under Article 250(1) of the same Act.

(2) The overall purpose of this part of the statement made by the Defendant in the instant debate is that “A person who actually hospitalized B by force is his wife and her father, and ② the mother and son of the Defendant requested a mental health diagnosis of B, however, the Defendant did not participate in the examination and rather prevented the progress of the procedure.”

In full view of the following facts and circumstances, the facts acknowledged earlier and the evidence duly adopted and examined by the lower court and the lower court, the Defendant directly instructs the head of a branch public health clinic and its employees to proceed with the procedure under Article 25 of the former Mental Health Act on several occasions between April 2012 and August 2012, and accordingly, instructs the head of a branch public health clinic and its employees to proceed with the procedure under Article 25 of the same Act.

Since it is sufficiently recognized that part of the above procedure against B was progress, the expression that the defendant did not participate in the commencement of the compulsory hospitalization procedure against B is different from the fact.

Although the Defendant did not directly use the expression “B that he did not participate in the commencement of the compulsory hospitalization procedure,” the remainder of the statement is similar to some facts. However, considering the overall purport of this part of the statement and the increase that the elector would receive when he/she was in contact with the above statement, the Defendant made the above procedure without concealing the fact that he/she instructed B to proceed with the above procedure and attempted to proceed with part of the above procedure, and then distorted the facts that he/she actively opposed to the elector’s fair judgment, it is reasonable to view this part of the statement of the Defendant as a publication of false facts. ① on April 10, 2012, B’s mother H drafted drafted a written request to request the Center to provide lighting treatment to B, and the Defendant signed the above procedure to the Public Health Center from around 1, 258, 254, 294, or 41, on several occasions, signed the direction and consultation among his/her brothers and sisters (Evidence No. 1, 258, 2594, 294, 1494, etc.).

③ On April 2012, 2012, the Defendant instructed F to the effect that “F was subject to evaluation questions to the effect that B needs to be treated at present from G,” and that F received evaluation questions from G and delivered them to the Defendant, the Defendant ordered F to revise part of the contents thereof, and then sent the revised evaluation questions by G from F.

④ On June 15, 2012, H visited the Center and consulted G with regard to the mental health status of B. However, D, on June 14, 2012, the preceding day, 2012, asked H to visit the Center and request H to diagnose B (see, e.g., title 4, evidence No. 1477 of the statement and evidence record of the original witness D). Moreover, D, at the time, visited G to the Center, and as at the time, visited H to the Center, and gave guidance to H and Y directly as the office of the above Center.

⑤ On June 19, 2012, D sent a public letter of “request for the result of interview (Evidence No. 1, No. 262, No. 496 of the evidence record)” on behalf of the Sungnam market under the direction of C to receive H’s results of interview, and sent a public letter of official document (Evidence No. 1, No. 262, No. 4996 of the evidence record) to the public health clinic of the branch of the branch of the branch of the public health clinic on June 19, 2012. The Center sent a public letter of official document (Evidence No. 1, No. 263 of the evidence record, No. 4992 of the right) to send the results of interview to the public health clinic of the branch of the branch of the branch of the branch of the public health clinic.

(6) In addition, when D was urged by C to proceed with the procedure under Article 25 of the former Mental Health Act, on June 20, 2012, D sent a letter of public notice (Evidence No. 1, No. 265, No. 489 of the Evidence Records, No. 1, No. 265 of the former Mental Health Act, No. 1489 of the former Mental Health Act) to B to the head of the Center on June 20, 2012.

7 On July 15, 2012, H sent the Seoul National University Hospital and the Center of Seoul National University Hospital with the purport that “H requested the Center to provide mental health treatment for B on June 15, 2012, but the mental health status of B has deteriorated due to the failure to obtain cooperation, and that various cases and accidents have occurred and accidents have occurred in the future.” (Evidence No. 8, 338, Evidence No. 11, 5395, Evidence No. 8, Evidence No. 11, Evidence No. 5395, Evidence No. 8, Evidence No. 8, Evidence No. 8338). However, the above content certification was directly written by C, and around that time, reported

④ On June 7, 2012 or around July 2012, the Defendant called “B to cooperate in treating and treating B due to a mental health problem in B’s mental health status” (at that time, AE responded to the purport that it is difficult to immediately proceed with the hospitalization procedure at the present stage).

① On August 2, 2012, G prepared an application form with respect to B to apply for diagnosis and protection under Article 25(1) of the former Mental Health Act (Evidence No. 4: 1442 of the Record) and sent it to the head of the Sungnam market or the head of the Gu branch public health clinic. 10D, in the name of the head of the Gu branch public health clinic on August 3, 2012, “B shall request the diagnosis and protection pursuant to Article 25(2) of the former Mental Health Act for a person who has applied for diagnosis and protection pursuant to Article 25(1) of the former Mental Health Act” (Evidence No. 4: 1438 of the Record No. 1438 of the Record), and issued it directly to AC of the department of mental health of the relevant branch public health hospital. 11C prepared a statement of face-to-face interview with D on August 7, 2012, stating that “D 16 of the record and the record No. 34 of evidence and reply were unlawful.

13) D listened to the information from C that it would result in the investigation from B to B, which was conducted on August 17, 2012, and went to the Central Police Station where B was located to contact B with G, but returned without contact B. On August 27, 2012, the Defendant ordered D, X, and I to the effect that “The procedures under Article 25(2) of the former Mental Health Act with respect to the present B have been completed, so the following procedures have been followed.” At the time, the Defendant was bound by the foregoing D, X, and I to the effect that “the reason that it was impossible to process.” The Defendant did not deal with the legitimate matters is abandonment of his duties.”

15 Around September 13, 2012 and around September 17, 2012, the Defendant directed the persons related to the branch public health centers, such as D and X, to prepare questions to ask the Ministry of Government Legislation and other relevant agencies, such as the Ministry of Health and Welfare about whether it is possible to take compulsory hospitalization measures under Article 25 of the former Mental Health Act at the present stage. However, the procedures under Article 25 of the former Mental Health Act with respect to B have not been carried out separately.

C) Determination as to whether the defendant had an intention to publish false information

In full view of the following facts and circumstances that can be recognized by the evidence duly adopted and examined by the lower court and the lower court, it is reasonable to view that the Defendant had an intentional intent to publish false facts by hiding the fact that the Defendant instructed B to proceed with the above procedure and attempted to take part in the above procedure, and making this part of the statement.

① As seen earlier, the Defendant, either directly or through C from April 2012 to August 8, 2012, ordered F, D, and branch public health clinic staff X and I to proceed with compulsory hospitalization procedures under Article 25 of the former Mental Health Act with respect to B, and received from time to time reports on the progress of the procedures. Therefore, the Defendant was in the position of being well aware of the commencement and progress of the aforementioned compulsory hospitalization procedures. ② The suspicions between the Defendant and three that the Defendant attempted to forcibly hospitalization of friendly B or was hospitalized in the mental hospital were not limited to the time of the instant debate. On September 2012, 2012, the Defendant continued to appear as a candidate at the time of reporting to Sungnam Social Health (Evidence 6984 of the Record No. 14984 of the Record), and the Defendant continued to go through the Internet network (SNS 2017).

③ From 2012 to 2012, the Defendant actively explained that the above suspicion was raised, the Defendant did not have any suspicion through SNS and journal interview, etc. The main contents of the name of this year are as follows: “The mother and sibling who requested medical treatment or compulsory diagnosis against B. or who actually hospitalized B into a mental hospital due to the occurrence of a cause to occur, is his/her wife and father.” (Article 269-1513 of the trial record). However, it is difficult to find any part of the Defendant’s explanation, where the Defendant instructed the Defendant to proceed with the procedure under Article 25 of the former Mental Health Act against B or involved in the commencement of the procedure.

④ The Defendant’s remarks on this part in the instant debate do not differ significantly from the previous statements made by the Defendant over several times, and its expressions are almost similar.

In view of the fact that the expression of this part of the statement can be somewhat unclear due to interest and continuity in a TV joint debate, it is difficult to deem that the Defendant made this part of the statement without accurately considering the overall purport of this part of the statement and the increase in the number received by the general voters.

⑤ On October 20, 2014, the Defendant made a statement to the effect that “the former member of the National Assembly was hospitalized in a mental hospital on the grounds that the Defendant had no problem with the broadcast program,” and that “the Defendant was hospitalized in a mental hospital on the grounds that the Defendant had no problem with the program,” and around that time, the Defendant filed a lawsuit claiming damages against the said person on the grounds that the said content was false, and was awarded a favorable judgment on April 22, 2015 (Seoul Central District Court 2014Gahap586479). As such, the Defendant actively dealt with the false content that “the Defendant was forced to b to hospitalize in a mental hospital” among the suspicions against himself. In light of these circumstances, the Defendant appears to have been aware of the suspicions about himself and the degree of the falsity.

6) At the debate of this case, AD, a candidate for the other party, was asked to the defendant "I am unable to prove that B C was a mental patient without any research or examination with respect to B at the Sungnam-si Mental Health Center located in Sungnam-si, Seoul, and "I am aware of the fact that it is highly likely that B C was a mental patient at the branch hospital in April 2012" and "I am aware of the fact that B was a mental patient at the branch hospital in the branch hospital in August 2012, I am informed of the fact that B was in danger of undermining himself and others?" However, considering the specific expression of AD, I am well aware of the fact that B had been hospitalized with respect to the fact that the overall purpose of the above defendant's testimony was not correct, but I am aware of the fact that B was forced to be hospitalized with respect to the defendant's unlawful character, I am aware of the fact that B had been forced to be hospitalized with respect to the defendant's general mental disease in accordance with B's qualifications.

④ The Defendant’s statement in this part is not limited to passive denial of the question of AD, the other party candidate, at the time of the instant debate, but rather actively explained the procedure that took place against B. Furthermore, the Defendant explained that his mother and sibling requested the diagnosis of B, but expressed that “I were not able to request it directly.”

9) If the Defendant made this part of the statement with the intent to express that the Defendant did not have hospitalized B in a mental hospital according to any ‘illegal’ procedure, it is doubtful whether the Defendant’s expression to the effect that, at the time, the person who requested a compulsory diagnosis of B is only the mother and sibling of the Defendant. Rather, if the Defendant had such intent, it is more natural to emphasize that the procedure conducted against B according to the Defendant’s direction was legitimate.

(10) Unlike the purpose of the procedure under Article 25(6) of the former Mental Health Act for hospital treatment, the purpose of the procedure under Article 25(3) of the former Mental Health Act is to accurately diagnose the person suspected of having mental illness. However, according to the aforementioned various circumstances, the Defendant correctly understood this procedure under Article 25 of the former Mental Health Act. Nevertheless, the Defendant has used the term “voluntary examination” or “request for diagnosis” differently from the “voluntary hospitalization for hospital treatment” in the process of piracy, and the two have emphasized that it is another procedure. Rather, it is more consistent with the circumstance that the Defendant attempted to conceal the “involuntary hospitalization” itself. However, even if the Defendant intentionally speaks that the procedure was completed at the stage of diagnosis under Article 25(3) of the former Mental Health Act, it is reasonable to see that there was no act of using coercive force to hospitalize even if he/she did not appear to have been aware of the fact that he/she did not intentionally engage in this part of the procedure under Article 25 of the former Mental Health Act.

D) Determination on the assertion by the Defendant and the defense counsel

(1) Determination on the scope of prosecution

The defendant's defense counsel asserts that this part of the facts charged merely published false facts despite the defendant's attempt to 'illegal' hospitalization against B, and that it is not included in the facts charged. The defendant ordered the commencement of the lawful hospitalization procedure against B, but published false facts to the effect that it is not included in the facts charged.

However, considering the language of this part of the facts charged and the prosecutor’s opinion on this part of the facts charged, it is difficult to view that the scope of this part of the facts charged is the same as the Defendant’s defense counsel’s assertion.

(2) Determination as to whether it constitutes "act" as the object of publication of false facts

The defendant's defense counsel argues that this part of the defendant's statement is only about "the intention of the defendant," and it is not about "the act", so it is not about "the act of the candidate, which is the element of Article 250 (1) of the Public Official Election Act."

On the other hand, this part of the Defendant’s statement is published to the effect that the Defendant did not participate at all in the commencement of the compulsory hospitalization procedure against B. However, whether the Defendant instructed the above compulsory hospitalization procedure and the above procedure was partially carried out or not is about the external behavior of the Defendant, rather than the matter in the subjective internal area of the Defendant. In addition, this is a matter that affects the elector’s fair judgment as a content that can be considered as the candidate’s quality, character, morality, etc. It is reasonable to deem that the Defendant’s statement in this part is false as to the candidate’s “act” as provided in Article 250(1) of the Public Official Election Act. Therefore, it is reasonable to deem that the Defendant’s assertion on this part of the

(3) Determination as to whether the purpose of election exists

The defendant's defense counsel asserts that this part of the statement was merely a mere denial of an aggressive and malicious question of the other party's candidate in the debate of this case, and there was no "the purpose to be elected" of the defendant.

Article 250(1) of the Public Official Election Act provides that “The purpose of election is to be held or to be held in preference to a candidate” is not required to be the active desire or final recognition, and dolusent perceptions exist. Whether the purpose was to be determined ought to be reasonably determined in light of social norms by comprehensively taking into account various circumstances, such as the Defendant’s social status, personal relationship between the Defendant and the candidate or the candidate for competition, motive and developments leading up to the act of publication, method and mode of the act of publication, nature and scope of the other party where such publication was conducted, social situation at the time of the act, etc. (see, e.g., Supreme Court Decision 2008Do10365, Jan. 15, 2009). This part of the Defendant’s statement is not only passive denial of the Defendant’s questions of AD, a candidate at the time, but rather, it is reasonable to view that the Defendant’s statement was made with respect to “the Defendant’s right to be elected” and the content of the Criminal Procedure Act’s 20-based.

E) Sub-decisions

Therefore, even though this part of the facts charged can be found guilty, it is erroneous in the judgment of the court below that judged otherwise, or in the misapprehension of legal principles. The prosecutor's allegation in this part is with merit.

5) Determination on the part that the defendant suspended the procedure

A) Although the Defendant did not discontinue the procedure under Article 25 of the former Mental Health Act with respect to B, we examine whether the instant debate made a statement to the effect that the Defendant ceased the said procedure, thereby disclosing false facts.

B) In full view of the following facts and circumstances acknowledged by the evidence duly adopted and examined at the lower court and the lower court, it is reasonable to deem that the Defendant’s statement in this part is false, or there is no intent to publish false facts to the Defendant. ① As recognized earlier, the Defendant ordered the head of the branch public health clinic and its employees to directly proceed with the procedure under Article 25 of the former Mental Health Act on several occasions between April 2012 and August 201, and accordingly, partially proceeded with the procedure under Article 25 of the former Mental Health Act. In such circumstances, it is difficult to deem that the above procedure may be interrupted even without the Defendant’s instruction or consent.

② In 2012, AG, having served as the deputy head of Sungnam-si, was present as a witness of the lower court in order to the effect that “D is able to find D himself around A, 2012, and I would like to be able to be able to be able to be able to be held criminal responsibility in the future if D is going to proceed with the hospitalization procedure for a mental hospital for re-election.” After that, I proposed that D be able to find the Defendant, and that public officials would lose the above procedure because it is difficult to find the Defendant, and there is politically unreasonable.” Accordingly, the Defendant stated that “the completion of the above procedure is “the completion of the interpretation of the interpretation on this issue by another institution.” According to the above statement by AG, according to the above statement, the Defendant could be deemed to have suspended the procedure under Article 25 of the former Mental Health Act for B.

③ A prosecutor asserts that the procedure under Article 25 of the former Mental Health Act with respect to B was suspended by his/her abandonment by D. However, even after D went to the Central Police Station B on August 17, 2012 and returned without having met B, the Defendant ordered D, X, and I to the effect that “the procedure under Article 25(2) of the former Mental Health Act with respect to the present B has been completed, and the following procedure has been completed,” and he/she ordered the relevant persons of the regional public health centers, such as D and X, to ask the Ministry of Government Legislation and other relevant agencies about whether compulsory hospitalization measures under Article 25 of the former Mental Health Act may be taken pursuant to Article 25 of the former Mental Health Act at the present stage, on or after August 27, 2012.

④ However, the procedure under Article 25 of the former Mental Health Act with respect to B has not been achieved separately. This is also due to the fact that the Defendant had attempted to suspend the above procedure.

C) The decision of the court below to the same purport is just, and there is no error of law by misunderstanding facts or by misapprehending the legal principles. The prosecutor's allegation in this part is

6) Determination on other parts

A) Meanwhile, in this part of the facts charged, the part of the facts charged "B was suffering from depression, etc. due to the aftermath of the accident in question on or around March 2013, and at around November 2014, K and his/her her son were hospitalized in B at the Geropsy hospital around 2014, and there was no medical diagnosis or treatment by a medical specialist who had mental disorder at the time of 2012. Although K and M did not think that there was mental problem, it was not explicitly determined in the judgment of the court below as to the part that published the Defendant's false facts by making this part of the Defendant's statement, and the prosecutor did not submit any grounds for appeal as to this part of the facts charged, it is difficult to view that there were many false facts or false facts with respect to this part of the judgment on the abuse of authority and obstruction of the exercise of rights in front.

5. Determination as to the violation of the Public Official Election Act due to the publication of false facts related to the previous offense of prosecutor's name

A. Summary of this part of the facts charged

On May 29, 2018, the Defendant responded to the “2018 Local Election Do Candidate Invitation Debate” held at KBS Switzerland around 23:0, to the “2018 Local Election Do Governor’s KRS invitation debate, the Defendant: “I have written a statement that I tried to go through because I had been in the next place because I had been in the interview to do so,” and “I have no way to have you talked with the prosecutor. I have written the name on the ground that I had talked in the next place. I have followed.” After having requested the additional time, I had talked that I would like to memory as a case of sale of the interview. I have talked that I had been in the interview to the City Mayor. I have tried to talk with what kind of telephone. I have come to the interview.

However, in fact, on May 10, 2002, the producer in charge of KBS's 60 minutes, which collected news report data on "the alteration of use of a protein and a preferential sale in lots", called a appearance test at the office of the defendant in the defendant's office in A's office of law on May 10, 2002, regardless of the defendant at the time of the interview with the defendant, and called a appearance test regardless of the defendant, not at the time of the interview with AH, but at the time of AH, the name and question of the prosecutor of the Suwon District Prosecutors' Office, who would misrepresent the defendant to E who received a voice message from AH, by misrepresenting the above voice test to start, and E used the authority of the prosecutor's office in charge of criminal cases between the defendant and AH by misrepresenting him to the prosecutor's name and question.

As a result, the defendant published false facts about the candidate's career or behavior in favor of the candidate for the purpose of winning the election.

The court below found the defendant not guilty of all the charges on the grounds that the defendant's statement in this part was not made public, or that there was no intention to publish false facts, and the specific reasons are as follows.

① At the time when E calls false to be examined, the Defendant had an interview. This part of the Defendant’s speech does not seem to have made any speech as to what contents of the interview are evaluated as putting the inspector’s name. Therefore, it cannot be said that the Defendant publicly announced the fact that he had caused the Defendant to misrepresentate the prosecutor while performing an act unrelated to the inspector’s name. In addition, in light of the AI’s statement, it is difficult to view that the Defendant was “the Defendant reported to be the day” at the time.

② Although E was a phone call to AH at the time of the inspector’s name, the part of the Defendant’s speech to the effect that “E received a phone call from AH” is not an intentional act but an intentional act, and thus, there is no intention to publish false information.

③ The statement to the effect that the name of the inspector was written as an expression of the name of the inspector means that the punishment is unreasonable or sound, and such expression cannot be deemed as a statement of fact. The meaning that the Defendant was punished in the name of the inspector is multiple, and thus, the Defendant cannot be deemed as having made a statement of fact regardless of the Defendant. Unless the Defendant asserts individual false facts, the expression that the name of the inspector was written is difficult to be deemed as a public announcement of fact, and it is merely a statement of the Defendant’s position or evaluation.

C. Judgment of the court below

1) Legal principles

“False fact” under Article 250(1) of the Public Official Election Act refers to a matter that is inconsistent with the truth, and is insufficient enough to have the elector make an accurate judgment on a candidate. However, if a statement is merely an expression of opinion with simple value judgment or evaluation, it does not constitute a mere expression of opinion. In such a case, in distinguishing between whether a statement is a true statement or an expression of opinion, the determination should be made by taking into account the overall circumstances, such as the ordinary meaning and usage of language, the context in which the given statement was used, the possibility of proof, and the social situation in which the expression was made, in mind, with the legislative intent of ensuring the fairness of election (see, e.g., Supreme Court Decision 2015Do3038, Dec. 15, 2016).

2) Facts constituting the premise for determination

The following facts can be acknowledged according to the evidence duly adopted and examined by the court below and the court below.

A) The prosecutor's name before the defendant

(1) The Defendant was detained under suspicion, such as a public official qualification name, etc., stating that “the Defendant conspired with E and exercised his authority by misrepresenting himself as a prosecutor.” On November 13, 2002, the said court convicted the Defendant of the above public official qualification name suspicions and the suspicions against AH, and sentenced the Defendant to a fine of KRW 2.5 million.

(2) On July 1, 2003, the appellate court rejected the Defendant’s allegation of the grounds for appeal on the charge of the Defendant’s qualification as public official. However, on the grounds that the first instance court’s punishment is somewhat heavy, the appellate court sentenced the Defendant to a fine of KRW 1.5 million (Seoul High Court 2002No3184).

(3) On December 24, 2004, the Supreme Court dismissed all the appeals filed by the Defendant and the prosecutor against the above judgment (Supreme Court Decision 2003Do4065), and the above judgment became final and conclusive (hereinafter “related criminal judgment”).

B) On May 29, 2018, I tried to see that the Defendant and the other party AD have d't talked with the following (referred to as d't d't s't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't d't we.

3) Determination as to whether this part of the statement constitutes a factual expression or an expression of opinion

In full view of the following facts and circumstances that can be recognized by the evidence duly adopted and examined at the court below and the trial court, it is reasonable to view this part of the defendant's statement to the effect that "a punishment was imposed on the ground that the defendant was being interviewed next to the court although he did not have actually participated in the act of public prosecutor's name in E in relation to the relevant criminal judgment," rather than claiming a false fact that "a final judgment of conviction was rendered on the ground of a crime of public official's qualification as a public official should be detained when viewed from his own position."

① From September 1999, the Defendant asserted that ‘the purpose of use has been changed with preferential treatment’ by 'the Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad

2. From May 10, 2002, KBS 60 minutes decided to gather “the 20-minutes, Madles, Madles, Madles, and preferential sale.” At the time of early 2002, E and AJ, K et al. asked several questions about the above case to the Defendant around that time. On May 8, 2002, E visited the Defendant’s attorney-at-law office and received relevant materials. ③ On May 10, 2002, E visited the Defendant, at the time of the above 20-mentioned prosecutor’s office, the Defendant was arrested and detained on May 23, 2002, and the Defendant was summoned on May 24, 2005, 206. After 20-round 20-round 20-round 20-round 20-round 20-round 20-round 20-round 25-round 20-round 20-round 20.

⑤ In the course of the investigation and trial, the Defendant argued to the effect that “the prosecutor has manipulatedd and investigated the case in bad faith by setting up the detention policy against the Defendant with prejudice.”

On the other hand, on July 18, 2002, the National Human Rights Commission of Korea filed a petition to the effect that there is an unreasonable problem in the above investigation process against the defendant.

6. In the above criminal trial against the defendant, the related criminal judgment was finally rendered and finalized, and the criminal facts of the recognized defendant's qualification as public official are as follows.

On May 18, 202, the Korean Broadcasting System had been engaged in the 60 minutes of the EMM and asked questions to the head of the EMM that he/she would have been using the EMM for the purpose of questioning about the contents of the EMM to the head of the EMM and investigating about the change of the purpose of use of the GMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMM

7) The Defendant’s objective act in relation to a public official qualification name is an act of informing E of the name of the head of the post office and expressing that the market would know it well to face-to-face with the name of the head of the Si, and an act of supplementing the Defendant’s explanation by simply stating or blocking the additional questions to E, on the part of the head of the Si, and (b) doing so.

8) However, during the criminal trial above, the Defendant, while informing E of the content of the news coverage case and the name of the prosecutor in charge of the relevant case at the time of the instant criminal trial, and (B) was unaware of having known E of his/her intention to misrepresent himself/herself, and he/she actively denied a public relations with E by asserting that he/she was engaged in a work at the time of the intermediate camera communications with A and that he/she did not know of the matters to be asked to E.

9) In the above case, while recognizing the credibility of each of the statements made by E, above Kim Jong-hwan, and AI, the court rejected the above argument of the defendant and sentenced the related criminal judgment, considering the defendant's motive and circumstance of the crime, the court corrected some of the facts charged in the indictment and recognized the above facts charged (the main part of the part in which there is a difference between the two parties, which is marked by slids and bottoms).

A person shall be appointed.

A person shall be appointed.

⑩ 특히 위 공소사실에서는 피고인이 먼저 E에게 검사사칭 통화를 하라고 부추겼다는 취지로 기재되어 있으나, 관련 형사판결의 범죄사실에서는 E가 먼저 검찰청을 사칭하는 통화를 시도한 이후 피고인과 E가 검사사칭을 공모하였다고 기재되어 있다. E도 당시 검찰 수사과정에서 "피고인이 자신에게 검사사칭을 부추겼다는 부분은 사실과 다른 것 같다. 사칭은 제가 먼저 우연히 시작을 하였고 부추 김을 받아 한 것은 아니기 때문이다"라고 진술하였고(증거기록 제17권에 편철된 수사기록 별책 제2권 1026면), 제1심 증인으로 출석하여서도 같은 취지로 진술하였다(증거기록 제17권에 편철된 수사기록 별책 제2권 1772, 1814면). [다만 그 항소심은 위 공소사실과 같이 '피고인이 E와 AH의 통화 도중 AH의 답변을 듣고 있다가 E에게 손가락으로 동그랗게 만들어 만족한 답변이 나왔다는 취지의 사인을 보내기도 한 사실'은 인정된다고 판단하였다(서울고등법원 2002노3184, 증거기록 제16권에 편철된 수사기록 494면)] 11 피고인으로서는 위와 같이 관련 형사판결에 이르기까지 일련의 경위나 과정에 비추어 자신이 '분당 백궁 정자지구 파크뷰 용도변경 및 특혜분양 사건'의 의혹을 폭로하면서 AH의 통화 중 발언 내용을 공개한 탓에 피고인이 E의 검사사칭 행위에 가담한 것으로 평가되거나 구속까지 된 것이어서 억울하다는 인식을 가졌으리라고 볼 여지가 있다.

12. In the election of the Governor of the Gyeonggi-do in 2018, the Defendant stated that “as a civil movement, a candidate who was the chairman of the Working Committee on Measures for Preferential Sale for Public Interest is asked the name and important matters of the case in charge during the interview of the candidate who was the chairman of the Working Committee for the Measures for Preferential Sale.” The above explanation appears to have expressed his own opinion and opinion on the relevant criminal judgment. This part of the Defendant’s statement seems to be significantly different from the contents of the above explanation. In light of the above circumstances, it is reasonable to see that the Defendant’s statement is an expression in TV joint debate, the overall and specific context of the statement, and the Defendant’s statement in the process of speaking in this part, the overall and detailed expression of the statement, and the purpose of this part of the Defendant’s statement to the effect that the Defendant’s statement related to this part of the criminal judgment was made, considering the overall criminal facts and the purpose of the Defendant’s statement related to this part of the criminal judgment.

4) Determination as to whether false information was published, and whether there was intention to do so

In preliminary determination, even though there is room to view that there is a false fact that the defendant was punished on the ground that he had been interviewed in the next place even though he did not have actually participated in the act of the prosecutor's name, it is difficult to view that the evidence submitted by the prosecutor alone proves that the defendant had the intention to publish the false fact without any reasonable doubt.

① In this part of the Defendant’s statement, it is difficult to see that the part that “the person who made the call for public prosecutor’s name is not the Defendant but the broadcasting station?” and the part that “the Defendant had interviewed at that time,” in view of the criminal facts in the relevant criminal judgment, are false facts. In addition, the part that “the Defendant had reported at that time” in this part of the Defendant’s statement is also false facts in light of the aforementioned evidence. However, in this part of the Defendant’s statement, it is different from the above criminal facts, but it is difficult to see that there is a little difference in the circumstance or an important part. In addition, it is difficult to see that there is any content entirely different from the criminal facts in the relevant criminal judgment or any content inconsistent with and promoted with it.

② The Defendant asserts that he/she did not participate in the E’s act of misrepresentation from the investigation stage of the relevant criminal judgment to the present time. Therefore, it is difficult to readily conclude that the Defendant had the intention to publish false facts by asserting as above at the present time.

③ Since the criminal facts of a criminal defendant recognized in the relevant criminal judgment can be easily confirmed by anyone from the judgment, it is difficult to think that the criminal defendant would benefit from actively publishing false facts contrary to the above criminal facts, or from such publishing.

5) Sub-committee

Although there are some inappropriate parts in the reasoning of the judgment of the court below, the judgment of the court below to the same purport is just, and there is no error of law by misunderstanding facts or misunderstanding legal principles.

This part of the prosecutor's argument is without merit.

6. Determination as to the violation of the Public Official Election Act by publishing false facts about the achievements of the Seoul Special Metropolitan City Development Project.

A. Summary of this part of the facts charged

(i) Publication of false facts using the election campaign bulletin;

On May 2018, the Defendant produced and distributed his book-type election campaign bulletin (hereinafter referred to as the “election campaign bulletin” in this case) on the basis of the approval of the election campaign bulletin “50.3 billion won at a time” in the election campaign bulletin at the same time? At Sungnam city, Sungnam City actually recovered the development profit of KRW 550.3 billion as the citizen’s share. (art.) Of this, the Defendant: (a) stated that KRW 92 billion was used as the project cost for creating a park in the Dong-dong area; (b) stated that the KRW 276.1 billion was used as the project cost for creating a park; and (c) distributed copies of the election campaign bulletin in this case from June 2, 2018 to June 3, 2018 through the Gyeonggi-do Election Commission.

However, the structure of the Defendant’s urban development project in Seongbuk-dong, Sungnam Urban Development Corporation and the private consortium consisting of the Sungnam Urban Development Corporation and the Han Bank and the National Bank, etc., established a special purpose corporation (SPC) to implement the development project. However, the structure of the development project is that the private consortium raises funds necessary for the development and carries out the construction of the site for the infrastructure in the Dong-dong area (a tunnel, expanded access roads and drainage lots) and the site for the first Corporation at the expense. As such, the Sungnam Urban Development Corporation and the private consortium agreed to gratuitously vest the infrastructure and parks developed at the time of Sungnam-dong, and to pay the site or proceeds from the sale of the leased housing in the form of dividends at the time of Sungnam-dong, and there was no development profit in the amount equivalent to 50.3 billion won on June 13, 2018 on the election day.

In the case of 92 billion won for the construction cost of the hinterland facilities in the Dong-dong area, it is not only the estimated construction cost, but also the estimated construction cost, not the construction cost determined. On June 13, 2018, the election day, the construction cost of each hinterland facilities was not made for each hinterland facilities, and the amount executed as the construction cost of the hinterland facilities is merely about KRW 900 million, such as the design cost, and there was no use of the relevant construction cost or the development profit related to the afterma.

Until June 13, 2018, KRW 276.1 billion project cost for the development of a site of the 1st Corporation was paid only KRW 125.4 billion, including land compensation cost and PF loan fee, by June 13, 2018, which is the day on which the election day, and the development of the Park was not commenced due to the expansion of the scheduled site area of gender support surrounding the relocation of Sungnam support and the request for provisional reservation of the Park Construction Project. AL corporation, which was the right holder of the land of the 1st Corporation before the project implementation of the instant case, filed a lawsuit for damages equivalent to KRW 251.1 billion against Sungnam-si, etc., and continued the relevant civil lawsuit, and thus, there was no use of the cost for the development of the site of the 1st Corporation, nor any relevant development gains or development gains accrued or accrued at the time of Seongbuk-si.

Nevertheless, the Defendant stated the above contents in the election campaign bulletin of this case and distributed them through the election commission, thereby publicly announcing false facts about the candidate’s act in favor of the candidate for the purpose of being elected.

(ii) the publication of false information on an election campaign price;

At around 17:00 on June 11, 2018, the Defendant made a statement to many unspecified voters who listen to the Defendant’s speech during the election campaign speech for the candidate of the Gyeonggi-do that is run in the Spo-dong in Kimpo-si, Kimpo-si, Kimpo-si (hereinafter referred to as “the election campaign speech for the candidate of the Gyeonggi-do”). The Defendant made it an amount of KRW 50.3 billion with the interest rate of KRW 550.3 billion, and made it into the income of Sungnam-si. (a) As a result, the Defendant would be punished with KRW 550.3 billion in the surrounding area, and the Defendant would be able to make it and make it on the road. (b) The Defendant made the campaign speech for the candidate of the Gyeonggi-do (hereinafter referred to as “the election campaign for the case”).

However, the development gains amounting to KRW 50.3 billion that will be reverted to Sungnam City was merely an agreement between the Sungnam Urban Development Corporation and the private consortium, and the development gains amounting to KRW 50.3 billion on the day of the election day were not actually reverted to Sungnam City until June 13, 2018. The development gains amounting to KRW 50.5 billion on the day of the election day did not have been attributed to Sungnam City. In the case of the cost of creating facilities behind the Dong-dong area, the development gains amounting to KRW 92 billion, not only was estimated, but also did not commence construction works for each hinterland facility, but also the executed amount was merely KRW 90,000,000, and there was no fact that related development gains or the development gains accrued at the time of Sungnam.

Nevertheless, the Defendant published false facts about the candidate’s act in favor of the candidate himself by means of a speech for the purpose of election by making the above statements to many unspecified voters.

B. Summary of the judgment of the court below

After finding the facts as stated in its holding, the lower court found the Defendant guilty of this part of the facts charged on the ground that: (a) the entry of the instant election campaign bulletin or the instant tax campaign speech is somewhat inaccurate or inappropriate according to the development gains restitution structure of the presidential urban development project; (b) however, in full view of the various circumstances as indicated in its reasoning, each of the important expressions is consistent with objective facts; and (c) it is merely a degree of difference between the truth and the truth or a somewhat exaggerated expression in detail. As such, it cannot be deemed that false facts were published, and there

C. Judgment of the court below

1) Legal principles

"False facts" under Article 250 (1) of the Public Official Election Act means matters inconsistent with the truth and are sufficient enough that the elector can mislead the accurate judgment on candidates. However, if important matters are consistent with the objective facts in light of the overall purport of the published facts, even if there is a little or exaggerated expression, it cannot be deemed a false fact. Whether an expression is false or not should be determined on the basis of the overall increase of the expression, on the basis of ordinary method abutting on the overall purport of the expression, objective contents, ordinary meaning of used words, connection method of phrases, etc. (see, e.g., Supreme Court Decision 2015Do1202, May 14, 2015; Supreme Court Decision 2008Do1202, supra; Supreme Court Decision 2008Do197, Sept. 14, 2015; Supreme Court Decision 2009Do197, Sept. 19, 200). 19.

2) Basic facts as to the K-dong Urban Development Project

According to the evidence duly adopted and examined by the court below and the court below, the following facts can be acknowledged.

A) The progress of implementing the urban development project of Sungnam-si

(1) AM proposed that the 2458 new Sinnam-dong 2458 (hereinafter referred to as "the site for the 1st Corporation") was designated as an urban development zone at Sungnam-si, Sungnam-si, which had been the 1st Industrial Complex Corporation at Sungnam-si. The Sungnam-si adopted the proposal above and enacted an urban development project plan with the content that the 84,235m of the site for the 1st Corporation shall be designated as an urban development zone (hereinafter referred to as "urban Development Project") without designating an implementer on May 15, 2009 and implemented an urban development project without designating an implementer.

(2) After September 1, 2009, AL Co., Ltd. (hereinafter referred to as “AL”) acquired the rights relating to an urban development project from AM to AMF.

(3) AL applied for designation as an implementer of an urban development project at Sungnam-si on May 25, 2010, but Sungnam-si rejected it on July 6, 2010. Accordingly, AL applied for a ruling to the Gyeonggi-do Administrative Appeals Commission, and the said administrative appeals commission revoked the above rejection disposition on December 30, 2010. However, on May 2, 2011, Sungnam-si rejected the above application. AL applied for designation as an implementer of an urban development project at the time of Sungnam-si on June 7, 201, but on August 16, 201, Sungnam-si rejected the application for designation as an implementer of an urban development project at the time of Sungnam-si on the ground that the above rejection disposition was unlawful, and that the notification was not made on August 26, 2011 (hereinafter the above rejection disposition on May 22, 201 and the above rejection disposition on August 16, 2011).

(1) On March 201, 201, Sungnam-si promoted a plan to develop the instant building site by a public development method. Accordingly, on March 24, 2011, Sungnam-si designated and announced 210,000 square meters of the building site of Sungnam-si, Sungnam-si as the urban development zone of Sungnam-do.

(2) Thereafter, on January 24, 2014, Sungnam-si announced the cancellation of the designation of the development zone in the above Sungnam-si as an urban development zone by combining the instant building site with a single urban development zone. On May 30, 2014, on the same day, on May 30, 2014, the instant building site 912,868 meters and the site of the first Corporation 56,02 meters were designated and announced as a "an urban development zone combining Sungnam-dong and the first Corporation." Sungnam-si, on June 15, 2015, established and announced a development plan for the combination of the above building site and the first Corporation Urban Development Project (hereinafter referred to as the "the combined urban development project in this case"). Accordingly, the first Corporation site belonging to the said development plan was planned to be used as an urban infrastructure, such as a park and a road site.

(3) Meanwhile, on April 1, 2014, the Sungnam City Development Corporation, established on September 12, 2013, by investing 100% of the Sungnam City, entered into an agreement with the Sungnam City to be entrusted with the business of the combined urban development project (No. 2 title 659 of the trial record). The Sungnam Urban Development Corporation, around February 13, 2015, recruited a private business entity to play a role in raising funds for the combined urban development project of this case, and during the process of the public recruitment, a consortium consisting of one bank and national bank, etc. (hereinafter referred to as "bank consortium"), but the bank consortium was selected as such private business entity.

(4) On June 15, 2015, the Sungnam Urban Development Corporation entered into a project agreement on the project for the combined urban development project of Han Bank consortium and the instant combined urban development project (Evidence No. 2, No. 37) (hereinafter referred to as the “instant project agreement”). According to the instant project agreement, the Sungnam Urban Development Corporation has a majority of shares (50% + 1 share) and holds a majority of shares (50%) to implement the said project (Articles 9 and 10, etc.), while it establishes a special purpose corporation with a majority of shares (50%) to carry out the said project (Article 9 and 10, etc.), with respect to the preferential allocation of business profits to Sungnam Urban Development Corporation, the entire amount of expenses incurred in creating the land for the first Corporation as a park should be appropriated from the above project expenses, and it should be appropriated separately from the project expenses incurred in constructing the housing site for the first Urban Development Corporation in addition to the aforementioned project expenses for the instant housing site for the first Urban Development Corporation (hereinafter referred to as the “Seoul Urban Development Corporation”).

(5) In addition, on June 22, 2015, the Sungnam Urban Development Corporation entered into a shareholder agreement on the combined urban development project of this case with the consortium of Han Bank (Evidence No. 21 of the evidence record No. 4 and No. 645 of the right to separate investigation records bound by the 21 of the evidence record; hereinafter referred to as the “the shareholder agreement of this case”). Accordingly, according to the business agreement of this case, the supply price of the site for rental housing of this case, which was to be provided to the Sungnam Urban Development Corporation in accordance with the business agreement of this case, shall be determined as KRW 182.2 billion, and if the Sungnam Urban Development Corporation requests a settlement in cash, the amount calculated by deducting the supply price determined within the appraisal price of the site for rental housing of this case at the time of supply at the above KRW 182.2 billion, was paid to the Sungnam Urban Development

(6) Pursuant to the instant project agreement, “N corporation as a special purpose corporation (hereinafter referred to as “N”) was established on July 27, 2015, and on August 19, 2015, Sungnam-si designated “N” as a project implementer for the instant combined urban development project.

(7) However, at the appellate court of the lawsuit seeking revocation of the instant rejection disposition filed by AL against the Sungnam market in relation to the urban development project of the 1st Industrial Complex, on August 18, 2015, the judgment revoking the instant rejection disposition (Seoul High Court 2014Nu6892) was rendered on the grounds that the instant rejection disposition was illegal as a deviation or abuse of discretionary power based on the illegal grounds for the instant rejection disposition (i.e., the foregoing judgment of the appellate court). [However, on February 18, 2016, Article 10(1)1 of the Urban Development Act (Article 10(1)1 of the Urban Development Act should be uniformly applied where there is no application for authorization of the implementation plan by the date on which three years elapse from the date on which an urban development zone is designated and publicly announced, regardless of whether an urban development project implementer is designated or publicly announced (Supreme Court 2015Du362)]

(8) On January 2016, the Sungnam Urban Development Corporation excluded the land of the first Corporation from an urban development zone due to the foregoing appellate judgment, etc., while an urban planning facility project that is created as a park by the site of the first Corporation (hereinafter referred to as "urban Planning Facility Project") was promoted to implement the project cost by bearing the project cost separately from the above urban development project. On January 2016, 106, when the consortium of the Han bank consented to the above plan, N applied for the amendment of the development plan and the authorization of the implementation plan for the urban development zone as above, and submitted a letter of undertaking to implement the development project of the first Corporation in accordance with the initial purport of the combination of the urban development project in this case at the time of Sungnam-nam on October 25, 2016.

(9) On November 8, 2016, Sungnam-si announced the modification of the development plan and the authorization of the implementation plan for the urban development zone (hereinafter referred to as the “instant urban development project”) to the effect that the site of the 1st Industrial Complex was designated as the 912,255 m0,000 Sungnam-dong site of this case as the urban development zone except in the urban development zone.

However, as a condition for the authorization of the above implementation plan, ① the business operator, in accordance with the original purpose of the combined city development project in this case, is implementing a park development project in the first place, ② the creation of a tunnel on the north side as infrastructure outside the business area (hereinafter referred to as the “infrastructure in this case”), the expansion of access roads to the south side, and the construction of a drainage station to supply water supply supply.

(10) On the other hand, on March 7, 2017, Sungnam-si publicly notified the planning decision regarding the Park Creation Project, and on June 16, 2017, designated NN as the project implementer and publicly notified the authorization of the implementation plan. On March 30, 2017, NN submitted a written undertaking to bring a civil and criminal lawsuit against Sungnam-si (No. 347 page 1 of the trial record) to the effect that it will not bring a civil or criminal lawsuit at the time of donation of the park at the time of Sungnam-si after implementing the Park Creation Project at the time of Sungnam-si.

A) In full view of the facts and circumstances as seen earlier, comprehensively taking account of the evidence duly admitted by the court below and the trial court, the entry of the instant campaign bulletin or the instant campaign speech in the election campaign bulletin are deemed to have been consistent with objective facts, and the details of the instant campaign speech are deemed to have a little difference from the truth or somewhat exaggerated expressions in detail, and thus, it cannot be deemed to have published false facts. It is difficult to view that the Defendant recognized the falsity of the entry of the instant campaign bulletin or the contents of the instant campaign speech only by the evidence submitted by the prosecutor as having recognized the falsity of the instant campaign bulletin or the contents of the instant campaign speech. There is no other evidence to

(1) Neither the implementer of the instant urban development project, nor the implementer of the instant urban development project, shall create a housing site on the building site in this case and gain profit from the project by selling it to a third party in the way of receiving the sale price.

On the other hand, NN bears each project cost while directly implementing the instant project agreement, the instant Convention, the Shareholders’ Agreement, the implementation commitment on October 25, 2016, the conditions for the authorization of the implementation plan for the instant urban development project, and the promise letter on March 30, 2017, with the above business profits, and implementing the instant infrastructure construction project (including the underground parking lot construction project) and the instant infrastructure installation project, while paying each of the project cost, it made the instant rental housing site to the Seongbuk Urban Development Corporation or paid in cash equivalent to the value of supply.

All of the civil and public obligations borne by NN are arising before the distribution of the instant election campaign goods or the instant campaign speech, and one bank consortium, the private business entity of the instant urban development project, which should be implemented first, can obtain the business profit.

② It may be deemed that the implementation of the instant public park creation project and the instant infrastructure installation project without any separate budget expenditure for the Sungnam City due to the instant land development project is the benefit of Sungnam City or the public interest. The receipt of cash equivalent to the instant rental housing site or its supply value by the Sungnam City Development Corporation is a construction project established by investment of 100% in Sungnam City, and its final interest is attributed to the benefit of Sungnam City. This is difficult to view otherwise on the ground that Sungnam City Development Corporation did not receive the cash for development gains arising from the instant urban development project in the instant land and its supply value.

③ According to the instant business agreement, the project cost for the Park Creation Project was set at KRW 2,56.1 billion, while the actual project cost was set at KRW 2,56.1 billion, the actual project cost was set at KRW 1,82.2 billion, and the underground parking lot construction cost incidental to the Park Creation Project was subsequently set at KRW 20 billion, around March 2017. In addition, according to the instant stockholders agreement, the supply price of the instant site for rental housing was set at KRW 1,82.2 billion, and at least KRW 1,82.2 billion was paid to the Sungnamnam Urban Development Corporation when it requests cash settlement.

④ At the time of authorization of the implementation plan for the instant urban development project, the project for installing the instant infrastructure was planned to additionally bear and implement the project cost as one bank consortiums accepted the demand of Sungnam City. At the time of authorization of the said implementation plan, the project cost for installing the instant infrastructure was estimated to be a total of KRW 92 billion (60 billion for the development of a tunnel on the north side, KRW 26 billion for the extension of the access road to the south side, KRW 6 billion for the extension of the access road to the south side, and KRW 6 billion for the extension of the drainage area) according to the estimated value entrusted by the consortiums at one bank at the time of authorization of the said implementation plan.

⑤ The sum of each of the above project costs is KRW 50.3 billion under this part’s expression (i.e., the development cost for the Park Construction Project of the First Corporation + KRW 20.2 billion + the supply price for the site for the instant rental housing + KRW 182.2 billion + KRW 92 billion for the construction cost for the instant infrastructure). In full view of the project structure of the instant urban development project, and the method and scale of the distribution of the development gains, the following statements and circumstances, etc., it may be deemed that Sungnam-si was highly likely to obtain the development gains due to the distribution of the instant election lots and the implementation of each of the instant urban development project following the instant housing project at the time of the instant campaign speech.

(A) In other words, the representative AP of AO, a consortium affiliated with the Han Bank consortium, stated at the investigative agency that " around March 2017, it was highly likely to secure the development profit of 50.3 billion won, and around February 2018, the probability of failure to perform the urban development project of this case was almost high (648 pages of the investigation records bound with No. 19 of the evidence record)" (as of June 13, 2018, the court below should attend the court below as a witness and stated to the effect that "Ssung City secured a total of 50.3 billion won for the urban development project of this case as of June 13, 201," and that "The above AP was similar to the expense of 1.483,487 pages of the public trial record, and the expense of 1.4 billion won or more for the construction of the instant parking lot and the instant basic facilities project (including the expense of 200 billion won or more after the testimony of this case as of June 13, 2013, etc.

The staff Q Q of one bank affiliated with the consortium of the Hannam City Development Corporation stated in the investigative agency that “No problem exists that the profit of KRW 550 billion is attributed to the Sungnam City due to the completion of most of the site in the instant case,” (Evidence No. 19 of the Evidence No. 597 of the Investigation Record). The staff RR of the Sungnam City Development Corporation is present as a witness of the lower court and around March 2017 (No. 460 of the Public Trial Records No. 1 of the Public Trial Records). (e) In fact, the Sungnam City Development Corporation received cash 1,82.2 billion won as a business profit related to the rental housing site in the instant case from the Sungnam City Development Corporation around March 26, 2019 (No. 27 of the Public Trial Records No. 1586-1590 of the Public Trial Records).

④ In general, in light of the fact that the government or local government announced to the effect that it secured the financial revenue if it is possible to obtain certain financial revenue in the future, or that it was not rarely announced to the effect that it recovered the relevant subsidy even though it was only decided to recover the subsidy paid (No. 2, 602-629 of the trial record), there is room to view that the Defendant’s publication of this part “the portion that “the amount of development profit was recovered as citizen’s share or made it into the amount of profit at gender,” among the fact that the Defendant’s publication of this part “ was made to have been made to have been made as a citizen’s share or to have it made into the amount of profit at gender,” can be understood as a situation in which the side of Sungnam City can obtain such development profit clearly.

7) In addition, considering the following facts: “N bears the duty to implement the Park Creation Project and the Construction Project of the Infrastructure in this case due to the instant regional development project,” and the fact that if the expenditure of a certain amount of profit has not been fully completed by social norms, it would simply speak to the effect that the fund was used in the relevant use site even if the expenditure was not completed by the general public, the part of the Defendant’s publication of this part “2,76.1 billion won out of the development profit was used as the project cost of the Park Construction Project of the 1 Corporation, and 92 billion won was used for the construction cost of the surrounding facilities in the 1 Corporation, and that “The part which was agreed to be used for the construction cost of the surrounding facilities in the 92 billion won from the development profit was to be used for the construction cost of the tunnel and the construction cost of the infrastructure in this case.” Therefore, it is difficult to conclude this part of the expression as false information.

[I, however, stated in the investigative agency that "the expression of the election campaign bulletin of this case is likely to be inferred in the process of the relevant business from the perspective of the general voters." (Evidence No. 19 of Evidence No. 607 of the investigation records bound in No. 19 of the Act)

(8) As seen earlier, the Park Creation Project cost of the First Corporation is determined at least KRW 256.1 billion, and the supply value of the instant rental housing site is determined at least KRW 1,82.2 billion. The underground parking lot construction cost incidental to the Park Creation of the First Corporation was estimated at KRW 20 billion in total, and the construction cost of the instant infrastructure was estimated at KRW 92 billion in total. Considering the fact that the total development profit of each of the above development profit was estimated at KRW 50.3 billion in total, the development profit expressed by the Defendant is estimated, but it is reasonable to view that the total development profit expressed by the Defendant is in accord with the objective fact, and that there is a little difference between the truth and the detailed fact.

Although, on July 20, 2018, NN awarded a contract to Hyundai Engineering Co., Ltd. for the construction of tunnels in the North Korean part of the instant infrastructure amounting to KRW 27.17 billion (Evidence No. 2078 pages), this is not only a circumstance in which the instant election campaign bulletin was distributed and the instant campaign speech was made after the relevant campaign speech, but also there is no evidence to prove that the Defendant was aware that the construction cost of the tunnels in the North Korean part would be reduced to KRW 60 billion of the estimated amount as seen earlier at KRW 60 billion of the said contract amount).

9) On March 2017, Sungnam Urban Development Corporation: (a) around KRW 50 billion in total; (b) KRW 276.1 billion in the amount of development gains from the instant urban development project; (c) was used for the Park Creation Project (256.1 billion in the cost of the park creation; and (d) KRW 92 billion in the amount of the instant infrastructure installation project (60 billion in the building of the tunnels on North Korea; (c) reported that the Defendant would be used for the instant infrastructure installation project (26 billion in the remaining side; and (d) KRW 8.5 billion in the total amount of development gains from the instant infrastructure installation project (see, e.g., Supreme Court Decision 200 million in the content of the instant infrastructure installation project; (d) KRW 106 billion in the content of the instant infrastructure installation project; and (e) KRW 200 billion in the content of the instant infrastructure installation project, which would have been integrated into 19 billion in the content of the instant infrastructure installation project.

However, the Defendant expressed that the cost of installing the instant infrastructure was KRW 1,00 billion, not the estimated amount of KRW 92 billion, in the tax speech of the instant case. However, from the perspective of the general elector, it would be deemed that the difference in the amount is significant when hearing the installation cost of the public infrastructure from the general elector’s point of view.

It is difficult to see that the Defendant was in a position to accurately confirm the progress of the instant urban development project and the amount of profit before March 15, 2018, when considering the interest in the election campaign speech, that is, people’s memory, etc., the Defendant said that the total amount of development gains was KRW 50,30,000,000, and taking into account other factors into account the interest in the election campaign speech, it is difficult to deem that there was an intention to publish false facts to the Defendant. Inasmuch as the Defendant was in a position to accurately confirm the progress of the instant urban development project and the amount of profit before and after his resignation in the Sungnam city development project on March 15, 2018, the Defendant asserts to the purport that the Defendant may be aware of the intention to publish false facts. However, there is no evidence to acknowledge that the Defendant received an additional report or revised report on the development gains or amount after receiving a report on the development

11 The prosecutor asserts that this part of the expression constitutes a publication of false facts, and that the defendant's intentional publication of false facts is recognized, since the past expression "the development profit has already been reverted to the Sungnam city, and some of them have been used for the public interest."

According to the above evidence, the portion actually disbursed out of the instant urban development project plan is not separate, and the portion actually distributed out of the instant urban development project plan was not distributed to Sungnam Urban Development Corporation. In addition, in consideration of the prior meaning of the aforementioned past expression, there is no room for understanding that the aforementioned past expression was “the receipt of development gains from Sungnam Urban Development and the completion of the use of some of them for public projects.”

However, in full view of the following circumstances, the evidence submitted by the prosecutor alone is difficult to view that this expression constitutes the publication of false facts or that there is an intention to publish false facts to the defendant merely because the defendant used the above past expression, and there is no other evidence to acknowledge it.

In other words, as seen earlier, it is not rarely announced to the effect that if a situation can generally obtain future financial revenue clearly, it is possible to secure such financial revenue, and if the expenditure source of any revenue is finalized, it would be simple to the effect that the fund was used at the relevant location. (B) In the election campaign bulletin of this case, some of the development gains was used for the "park creation project cost" or "infrastructure construction cost". It is not expressed that it is not used for the "park creation project" or "infrastructure construction cost". Thus, it can be understood that the use source of the development gains became final and conclusive in general delivery. The Defendant’s emphasizing through the announcement of this part of this part is the purport that the development gains were attributed to the public interest rather than the profit of the private business entity by carrying out an urban development project through a public development method. As seen below, it is difficult to find out any motive or profit that each of the above projects has been completed.

12. Taking into account the following circumstances, it is difficult to easily think of the motive for the Defendant to publish false facts to the effect that the Defendant completed both the Park Creation Project and the Construction Project of Infrastructure of this case, or that the Sungnam-si has completed all development gains from the urban development project of this case, Dong-dong.

(6) On the 19th anniversary of the 19th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 8th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 8th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 8th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 8th 6th 6th 1966th 6th 6th 2002. 1st 8th 2012

Therefore, even if the situation in which Sungnam City should pay damages to the AL side in the future becomes final and conclusive, it is difficult to see that it is false to not deduct the amount of damages when publicly announcing the development gains of Sungnam City due to the instant urban development project, and it is difficult to recognize the Defendant’s intention of falsity.

B) Therefore, the judgment of the court below to the same purport is just, and there is no error of law by misunderstanding facts or by misapprehending the legal principles. The prosecutor's allegation in this part

7. Conclusion

Therefore, the prosecutor's appeal on the violation of the Public Official Election Act by publishing false facts related to B among the judgment below is partly justified. Accordingly, pursuant to Article 364 (6) of the Criminal Procedure Act, the part related to the above part of the judgment of the court below which is related to the above part of the judgment of the court below is reversed, and it is again decided as follows after pleading. Since the prosecutor's appeal on the remaining part except the above reversed part of the judgment of the court below is groundless, it is dismissed

【Discrimed Crime】

around June 2, 2010, the Defendant won the 5th nationwide local election and was in office from July 2010 to June 2014. On June 4, 2014, the Defendant re-listed at the 6th nationwide local election and reappointed from July 2014 to March 2018, and was in office as the Governor of Gyeonggi-do from July 13, 2018.

피고인은 ① 2018. 5. 29.경 KBS 경기도지사 후보자 토론회에 참석하여 다른 후보자 AD의 '형님을 정신병원에 입원시키려고 하셨죠? 보건소장 통해서 입원시키려고 하셨죠?'라는 질문에 "그런 일 없습니다. 그거는 어머니를 때리고 어머니한테 차마 표현할 수 없는 폭언도 하고, 이상한 행동도 많이 했고, 실제로 정신치료를 받은 적도 있는 데 계속 심하게 하기 때문에 어머니, 저희 큰형님, 저희 누님, 저희 형님, 제 여동생,제 남동생, 여기서 진단을 의뢰했던 겁니다. 그런데 저는 그걸 직접 요청할 수 없는 입장이고, 제 관할 하에 있기 때문에 제가 최종적으로 못하게 했습니다"라고 발언하고, ② 2018. 6. 5.경 MBC 경기도지사 후보자 토론회에 참석하여 "우리 AD 후보께서는 저보고 정신병원에 형님을 입원시키려 했다4) 이런 주장을 하고 싶으신 것 같은데 사실이 아닙니다. 정신병원에 입원시킨 것은 형님의 부인 그러니까 제 형수와 조카들이었고, 어머니가 보건소에다가 정신질환이 있는 것 같으니 확인을 해보자라고 해서 진단을 요청한 일이 있습니다. 그 권한은 제가 가지고 있었기 때문에 제가 어머니한테 설득을 해서 이거 정치적으로 너무 시끄러우니 하지 말자 못하게 막아서 결국은 안 됐다는 말씀을 또 드립니다"라고 발언하였다.

However, from April 201 to August 201, the Defendant instructed the head of a branch public health clinic, etc. to compulsorily rehospitalize B to the head of a branch public health clinic, etc. under the provision of hospitalization by the market under Article 25 of the former Mental Health Act. The head of a branch public health clinic, etc. expressed the Defendant’s opinion against this, and did not carry out this in a face-to-face statement of the reason that it is illegal.

Nevertheless, the defendant published false facts about the defendant's act for the purpose of winning the defendant's success in a true statement that he/she intends to be hospitalized in the Gyeonggi-do debate, etc.

Summary of Evidence

1. The defendant's partial statement in the court below

1. Each legal statement of the witness F, D, G, X, I, E, and AC of the original judgment;

1. Part of the prosecutor's office and police statement concerning C and AF;

1. Each investigation report (the attachment of a transcript of the transcript of discussions held by candidates for the Gyeonggi-do Governor (KSS, MBC) to the 7th nationwide local elections related to this case, each of the 2018 local elections of the Governor of the Gyeonggi-do, and the abstract of the contents of the discussions above);

1. 'BC's evaluation opinion on documents prepared by G, 'written application for diagnosis and protection', 'written application for diagnosis and protection', 's response to a request for diagnosis to a person suspected of having mental illness prepared by AC', 'X' prepared on August 17, 2012, 'X'

1. Requests as a result of interview, the result of interview conducted by the public health clinic on June 15, 2012, requests for diagnosis and protection of persons suspected of having mental illness, requests for diagnosis and protection of persons suspected of having mental illness, requests for accompanying of vehicles and mental health specialists, and application of Acts and subordinate statutes related to the issuance of certificates of contents (with regard to mental health treatment, requests for non- cooperation) under Article 25 (1) of the Mental Health Act;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 250(1) of the Public Official Election Act (Generally, Selection of Fines)

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

1. Scope of applicable sentences under the law: A fine not exceeding 30 million won;

2. Application of the sentencing criteria;

[Determination of Punishment] The publication of false facts in relation to election crimes, and the publication of false facts for the purpose of election [Type 2]

[Special Convicts] Reduction element: Where the publication of false facts or the degree of criticism of a candidate is weak (person committing an act).

-Aggravated factors: A person who is a principal for the same criminal offense (person who is a principal) where the other party is considerably majority or highly radio wave;

[Recommendation Area and Scope of Recommendations] Aggravation, 5 million won to 10 million won

3. Determination of sentence: Fines of 3,000,000 won;

A. Local election for the election of the head of a local government is a method of realizing representative democracy, as with the presidential election for the election of a representative body of the people and the election of National Assembly members. The right to vote against the head of a local government is also the constitutional right protected by Article 24 of the Constitution (see Supreme Court Order 2014Hun-Ma797, Oct. 27, 2016). In order for electors to faithfully exercise such right to vote, they must be able to retain accurate information that is not distorted about candidates. In this regard, Article 250(1) of the Public Official Election Act intends to ensure the fairness of election by publicly announcing false facts about candidates, etc. and punishing them that affect the correct judgment of electors (see Supreme Court Decisions 2009Do5945, Oct. 29, 2009; 2015Do1379, Jul. 26, 2018).

B. Although the Defendant instructed the Defendant to proceed with the procedure under Article 25 of the former Mental Health Act against B and took part of the above procedure, the Defendant made a statement after the Governor of Gyeonggi-do to the effect that he did not participate in the commencement of the procedure, thereby distorted the facts to the extent that he would mislead the elector’s fair judgment. The Defendant made a statement to the effect that, in the instant debate, the Defendant did not deny the other candidate’s passive question about the Defendant’s suspicion of “an attempt to hospitalize the Defendant’s “an attempt to hospitalize in a pro-friendly mental hospital” but was irrelevant to the Defendant actively and entirely. However, the following favorable circumstances exist for the Defendant. In other words, the Defendant was asked several questions about such suspicions at the time of the election of the Governor of Gyeonggi-do, and the instant debate was made, and it was difficult to deem that the Defendant made a statement to the effect that there were no suspicion or no grounds to do so at the time of publication.

On the other hand, while the Defendant instructed B to proceed with the procedure under Article 25 of the former Mental Health Act with respect to B, the procedure did not reach the procedure of exercising direct coercive power against B. Nevertheless, the Defendant’s attempt to hospitalization at a pro-friendly mental hospital at the time did not seem to have reached the procedure of exercising direct coercive power against B. The Defendant’s actual hospitalization of B at the time of the publication of the instant case is not the Defendant, but the Defendant’s wife and his wife, and the Defendant’s actual hospitalization of B at the time of the publication of the instant case is not a false statement that there was no illegality in the procedure under Article 25 of the former Mental Health Act against B at the time

The circumstances, etc. are relatively complicated in relation to the interpretation of Article 25 of the former Mental Health Act, and there is no way to accurately deliver the information on it within the limited period of debate. There is room to consider that there is a limit to the clarity of expression in a joint debate due to the nature of the joint debate in which the public defense by assertion, reply, questioning, and answer among the candidates is interestful and continuous.

D. However, the Defendant’s statement was made in the KBS and MBC public wave broadcasting in which anyone can view. Accordingly, the Defendant’s statement was made in the following disadvantageous circumstances.

The Defendant’s instant remarks may be easily disseminated. Moreover, in a media environment such as present, the remarks made in air wave broadcasts are more easily and broadly disseminated and disseminated through the Internet and SNS, etc., and any elector can easily access the said remarks within the election period, whenever and wherever possible.

Meanwhile, there is no room for conflicts of interest to order the defendant to proceed with the procedure under Article 25 of the former Mental Health Act with respect to his pro-friendly B. In other words, even if the defendant ordered the above instruction for mental health treatment of friendly B, there is room for political and moral criticism that the defendant intended to exercise the authority of the gender south market for personal interest, unless there is no private interest on the issue. Therefore, even though there is no illegality of the defendant's above instruction, the issue of whether the defendant intended to exercise the authority of the gender south market and receive diagnosis or treatment by exercising the authority as a gender south market is an important matter concerning the quality and morality of the defendant as a public official, at least by the elector.In addition, the issue of raising suspicion without any basis to the candidate or slander it may obstruct the fair judgment of the elector, and such an act may be subject to criminal punishment, and there is no excessive and excessive aspect of the defendant raised to the defendant at the time, but there is no reason to readily deny the fact that the defendant had been forced to commit a crime beyond his or her name.

As to the fact that the Defendant did not reflect on the crime of publishing false facts in this case, and even up to now, the fact that the Defendant ordered the procedures under Article 25 of the former Mental Health Act with respect to B to proceed with the procedure is not likely to clearly prejudice the general public, including Gyeonggi-do residents. In addition, the Defendant has already been punished for a violation of the Public Official Election Act, and such circumstance constitutes an aggravated factor in sentencing according to the sentencing guidelines of the Sentencing Committee.

E. Other circumstances that the Defendant’s election at the Gyeonggi-do Governor did not have a significant impact on the success of the instant crime, are no more important sentencing factors than that of the Defendant, according to the sentencing guidelines. In addition, comprehensively taking account of the Defendant’s age, character and behavior, career, motive and circumstance of the instant crime, circumstances after the commission of the crime, etc., the lower limit of the sentencing guidelines presented by the Sentencing Committee shall be somewhat deviate, but the sentence shall be determined as ordered so as not to seriously violate the purport of the sentencing guidelines.

Parts of innocence

1. Summary of the facts charged

around June 2, 2010, the Defendant won the 5th nationwide local election and was in office from July 2010 to June 2014. On June 4, 2014, the Defendant re-listed at the 6th nationwide local election and reappointed from July 2014 to March 2018, and was in office as the Governor of Gyeonggi-do from July 13, 2018.

피고인은 ① 2018. 5. 29.경 KBS 경기도지사 후보자 토론회에 참석하여 다른 후보자 AD의 '형님을 정신병원에 입원시키려고 하셨죠? 보건소장 통해서 입원시키려고 하셨죠?'라는 질문에 "그런 일 없습니다. 그거는 어머니를 때리고 어머니한테 차마 표현할 수 없는 폭언도 하고, 이상한 행동도 많이 했고, 실제로 정신치료를 받은 적도 있는 데 계속 심하게 하기 때문에 어머니, 저희 큰형님, 저희 누님, 저희 형님, 제 여동생,제 남동생, 여기서 진단을 의뢰했던 겁니다, 그런데 저는 그걸 직접 요청할 수 없는 입장이고, 제 관할 하에 있기 때문에 제가 최종적으로 못하게 했습니다"라고 발언하고, ② 2018. 6. 5.경 MBC 경기도지사 후보자 토론회에 참석하여 "우리 AD 후보께서는 저보고 정신병원에 형님을 입원시키려 했다6) 이런 주장을 하고 싶으신 것 같은데 사실이 아닙니다. 정신병원에 입원시킨 것은 형님의 부인 그러니까 제 형수와 조카들이었고, 어머니가 보건소에다가 정신질환이 있는 것 같으니 확인을 해보자라고 해서 진단을 요청한 일이 있습니다. 그 권한은 제가 가지고 있었기 때문에 제가 어머니한테 설득을 해서 이거 정치적으로 너무 시끄러우니 하지 말자 못하게 막아서 결국은 안 됐다는 말씀을 또 드립니다"라고 발언하였다.

However, the defendant was trying to hospitalize B at the end of 2010, and around March 2013, B suffered from depression due to the aftermath of the accident, and at around November 2014, K and Ma, who was denied, was hospitalized in Aeropsy around 2014, and did not have been diagnosed or treated by a medical specialist with mental illness at the time of around 2012. K and M did not think that there was a mental problem. At the time of hospitalization procedure for B, there was no possibility that the hospitalization procedure by the market, etc. of Article 25 of the former Mental Health Act with respect to B would be subject to criminal punishment, and that there was no fact that the defendant had been suspended from being abandoned by D.

Nevertheless, the defendant published false facts about the defendant's act for the purpose of winning the defendant's success in a true statement that he/she intends to be hospitalized in the Gyeonggi-do debate, etc.

2. Determination

The Defendant’s statement in this part cannot be deemed as having published false facts identical to the above facts charged on the grounds as seen above 4.b. 3, 5, and 6, or there is no intention to publish false facts to the Defendant. Thus, this part of the facts charged should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act because it falls under the case where there is no proof of a crime and thus, the Defendant should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as it is found that the Defendant

Judges of the presiding judge;

Judges Lee Jae-young

Judges Lee Jae-sik

1) According to the “application for authorization of an implementation plan” (amended) prepared by NN in relation to the Park Creation Project of the First Industrial Complex around April 2018 (Evidence No. 18/140) (Evidence No. 18/140), construction cost for the underground parking lot of the First Industrial Complex is calculated as KRW 20.1496 million (the above application No. 26 pages).

2) A document (see, e.g., Disposition No. 333, 334) prepared by NN to the effect that the estimated value would have been estimated by totaling KRW 88 billion ( KRW 58 billion for the creation of a tunnel on the north side, KRW 24 billion for the extension of the access road to the south side, and KRW 6 billion for the extension of the drainage area). However, in light of the testimony (see, e.g., Disposition No. 1, 481, 482 of the trial record) by AP of the lower court, it appears that the estimated value was ultimately estimated as KRW 92 billion after the document was prepared at the time.

3)화천대유의 대표자 AP온 북측 터널 공사의 공사금액이 위 추정금액 600억 원에서 실제 도급계약 금액 약 271억 원으로 줄어든 이유는 그 수급인인 AT 주식회사가 이 사건 대장동 도시 개발사업의 단지조성공사를 하고 있기 떄문에 장비가 위 공사현장에 새로 들어올 필요가 없기 때문 이라고 진술하고 있는데（중거기록 제20권에 편철된 수사기록 2076면）, 피고인이 그와 같은 사정을 알았다고 볼 중거가 없다.

4) Although the written indictment states that this part of the indictment is “involuntary admission,” according to the evidence, this part of the indictment is a clerical error.

Since it is obvious, it is corrected as the main text.

5) To the extent that it does not impede the Defendant’s exercise of the right to defend, part of the facts constituting the crime was partially revised.

6) While the indictment states that this part of the indictment was written, it is obvious that this part of the indictment is a clerical error according to the evidence, so it is corrected as stated in the text.