[1] In a case where a preliminary candidate, by means of automatic broadcast communications using a computer, made a series of factual acts on behalf of another person, such as sending text messages on behalf of another person, whether it can be evaluated as an "election campaign by a preliminary candidate" permitted under the Public Official Election Act (affirmative with qualification)

[2] In a case where the manager of the basic local government head’s preliminary candidate’s election campaign manager sent text messages to the electorate by means of automatic broadcast communications, while complying with the preliminary candidate’s instructions, the case affirming the judgment below which held the above act as an “act of election campaign by a preliminary candidate” permitted under the Public Official Election Act

[1] As to whether a preliminary candidate has to directly implement a series of factual acts transmitting election campaign information using text messages by means of automatic broadcast communications using computers and computer technology, Article 60-3 (1) 7 of the Public Official Election Act amended by Act No. 9974 on January 25, 2010 newly established Article 60-3 (1) 7 with the purport that the freedom of election campaign of a preliminary candidate or candidate may be expanded. Under the same paragraph, acts of installing and posting signboards, board, or placard (Article 1), acts of sending promotional materials by mail (Article 4) are difficult to interpret that a preliminary candidate has to directly implement such acts, and acts of directly appeal or appeal for support by the preliminary candidate (Article 2), acts of directly transmitting text messages to the same person by means of automatic broadcast communications (Article 60-3 (1) 7) and acts of transmitting text messages to the same person who does not directly appeal or discriminate with his/her own election campaign, while acts of directly transmitting text messages to the same person by means of an election campaign by means of automatic broadcast communications (Article 6).

[2] In a case where Defendant (the election manager of a preliminary candidate) was indicted on charges of violating the Public Official Election Act due to the "distribution of documents, etc. by means of automatic broadcast communications" by sending text messages to electorates via automatic broadcast communications (on the 5th nationwide local election campaign) to request support from voters, the case affirming the judgment below holding that Defendant operated a computer at the election office of a preliminary candidate and sent the above text messages to voters within the number of times permitted under the same Act within the number of times permitted under the same Act after accessing the election office of a preliminary candidate’s ID letter delivery service site, and the above site was subscribed to the name of a preliminary candidate, and the sending expenses were disbursed from the preliminary candidate and the sending expenses were also considered the same as those directly executed by the preliminary candidate under the control of the preliminary candidate.

[1] Article 60-3 (1) 1, 2, 4, 6, and 7, and Article 82-4 (1) 3 of the Public Official Election Act / [2] Article 60-3 (1) 7, Article 82-4 (1) 3, Article 93 (1), and Article 25 (2) 5 of the Public Official Election Act; Article 325 of the Criminal Procedure Act

Defendant

Prosecutor

Gwangju High Court Decision 2010No353 decided November 11, 2010

The appeal is dismissed.

The grounds of appeal are examined.

20. 1. 25. The act of transmitting text messages to candidates using the same text messages (excluding voice, images, and video images other than letters; hereinafter the same shall apply in this subparagraph) for one-time election campaign by using the same text messages under Article 60-3 (1) 7 of the Public Official Election Act (amended by Act No. 974). In such cases, the act of directly transmitting text messages by means of automatic broadcast communications using computers and computer technologies shall not exceed five times, and the act of directly transmitting such text messages by using the same text messages (excluding voice, images, and video images other than text messages) shall be limited to one-time election campaign by using different means, and the act of directly transmitting election campaign messages using the same type of computer networks and using different means under Article 82-4 (1) 3 of the same Act shall be limited to the act of directly transmitting election campaign messages by using the same text messages to candidates. In such cases, the act of directly transmitting election campaign information by using the same type of automatic broadcast communications (excluding one-time election campaign information using computer networks).

According to the reasoning of the judgment below, the defendant was an election campaign manager of the non-indicted who was registered as a preliminary candidate in front of an election for the head of the Dong-dong local government election on June 2, 2010, and the defendant was under the direction of the non-indicted on March 27, 2010 at the election office of the non-indicted who was registered as a preliminary candidate. The defendant operated the computer in front of the non-indicted in Gwangju (hereinafter referred to as "the non-indicted") and visited the non-indicted in the service site (site address omitted) of letter delivery services (site address omitted). The defendant sent a text message to 38,406 electorates to the non-indicted. The defendant sent the above text message to 38,406 electorates for the support of the non-indicted, five times in the frequency of sending text messages permitted by the Public Official Election Act to the preliminary candidate or candidate. On the other hand, the expenses for sending text messages were marked in the name of the non-indicted, and the number of the non-indicted in charge was given to the non-indicted.

According to the above legal principles and facts, the defendant's act of sending text messages as above can be evaluated the same as that of the non-indicted, under the control of the non-indicted, who is a preliminary candidate. In the same purport, the court below is just in holding that the above act of the defendant is an election campaign by the non-indicted, who is permitted to the above non-indicted, under Article 60-3 (1) 7 of the Public Official Election Act. There is no

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

Justices Shin Young-chul (Presiding Justice)