[1] The meaning of "interpreting freedom of election by deceptive means, deceptive means, or other wrongful means" under the latter part of Article 237 (1) 2 of the Public Official Election Act

[2] Whether an act of election campaign or voting is impossible in order to establish a “Interference with the freedom of election” under the latter part of Article 237(1)2 of the Public Official Election Act (negative)

[1] Article 237 (1) 1, 2, and 3 of the Public Official Election Act / [2] Article 237 (1) 2 of the Public Official Election Act

[1] Supreme Court Decision 2008Do2737 decided Jul. 10, 2008 (Gong2008Ha, 1208)

Defendant 1 and three others

Defendant 1 and two others and the Prosecutor

Law Firm B&C et al. and four others

Seoul High Court Decision 2012No2034 decided December 11, 2012

All appeals are dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s grounds of appeal Nos. 1 and 2

A. The court below acknowledged the following facts based on its adopted evidence: (a) traffic volume at the time of the occurrence of interference with the homepage of the National Election Commission; (b) analysis of the cause of interference with access by related institutions, etc.; and (c) the situation of normal operation of database servers inside the homepage of the case; and (d) it found that the cause of interference with the website of the National Election Commission of this case is clear by attack of Defendant 1, etc., and there is no room to deem that the cause of interference with the network of this case was involved in the third party; and (b) in full view of the circumstances in its reasoning, etc., Defendant 1 appears to have caused its members to gambling through the domain of "○○○○○○" casino site, which was managed by himself, and opened a gambling place under its control, and thus, it can be recognized that the crime of gambling opening was committed.

B. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the criminal intent and aiding and abetting of gambling openings, as otherwise alleged in the ground of

2. As to Defendant 1’s ground of appeal No. 3 and Defendant 3’s ground of appeal, mistake of facts and misapprehension of legal principles

A. In light of the fact that acts that interfere with freedom of election under the latter part of Article 237(1) of the Public Official Election Act are acts that interfere with freedom of election under subparagraphs 1, 2, and 3 of the same Article or acts related to election campaigns and voting themselves are acts that directly interfere with the freedom of election under Article 237(1)2 of the Public Official Election Act, such acts are equivalent to acts that interfere with freedom of election by deceptive means, deceptive means, or other unlawful means, or acts that interfere with freedom of election under the former part of Article 237(1)2 of the Public Official Election Act (see Supreme Court Decision 2008Do2737, Jul. 10, 2008). Meanwhile, in order to establish interference with freedom of election under the latter part of Article 237(1)2 of the Public Official Election Act, acts related to election campaigns or voting are not necessarily impossible, but are also likely to interfere with ordinary acts related to election campaigns or voting or voting.

B. On the grounds indicated in its reasoning, the lower court determined that Defendant 1’s act of having Defendant 1, etc. completed the search function of the polling station on the website of the National Election Commission by committing the instant DNA attack constituted an act that directly interferes with the voting of many unspecified voters, who tried to find a polling station using the search service provided on the website of the National Election Commission, and thus, constitutes an act that interferes with the freedom of election under Article 237(1)2 of the Public Official Election Act.

C. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s determination was partially insufficient, but it did not err by misapprehending the legal doctrine on the act of interfering with the freedom of election, as otherwise alleged in the ground of appeal.

3. As to Defendant 2’s ground of appeal

A. The co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, namely, the commission of a crime through a functional control based on the intent of co-processing and the intent of co-processing. In the event that, even if a person does not directly share and implement part of the elements of a crime among the competitors, the status, role, control or malicious power over the progress of the crime, etc. in the entire crime, in full view of the position and role of him/her in the entire crime, and where it is recognized that a functional control through essential contribution to the crime exists, the so-called co-principal who is a so-called co-principal, and is liable for the other co-principal’s act (see, e.g., Supreme Court Decision 2007Do23

B. Based on the adopted evidence, the lower court acknowledged the following facts as indicated in its reasoning with regard to the contents of the call between the Defendants, the details of sending text messages, the details of access to the website of the National Election Commission, and the contents of Defendant 2’s statement at the prosecutor’s investigation. In full view of this, the lower court determined that Defendant 2, who was aware from Defendant 1 on October 26, 201, was able to recognize the fact that Defendant 1 and Defendant 3 and Co-Defendant 5 of the lower court instructed Defendant 3 and Co-Defendant 5 of the instant crime of attack on the day of the crime, along with Defendant 1.

C. Examining the reasoning of the lower judgment in light of the evidence duly admitted and the above legal doctrine, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the conspiracy of co-principal and the burden and degree of proof, or by misapprehending the principle of free evaluation of evidence in violation of logical and empirical rules.

4. As to Defendant 3’s remaining grounds of appeal

According to Article 383 subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years has been imposed, an appeal on the grounds of unfair sentencing is permitted. As such, this part of the ground of appeal purporting to the effect that the determination of punishment is unreasonable is not a legitimate ground of appeal in this case where Defendant 3 was sentenced to a more minor punishment. In addition, the grounds alleged by Defendant 3 as grounds of appeal do not constitute legitimate grounds of appeal under

5. As to the Prosecutor’s Grounds of Appeal

A. In relation to accomplices who jointly process two or more crimes, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process and realize crimes, and even if there is no process of the whole conspiracy, if the combination of opinions is made either successively or implicitly through several persons, the conspiracy relationship is established. In addition, in a case where the defendant denies the conspiracy, which is a subjective element of the crime, the strict proof is required to establish the conspiracy. In a case where the defendant denies the conspiracy, which is a subjective element of the crime, by means of proving indirect facts or circumstantial facts having considerable relevance to the nature of the crime, it is inevitable to prove it by means of the method of proving indirect facts or circumstantial facts having considerable relevance in light of the normal empirical rule (see Supreme Court Decision 2011Do9721, Dec. 22, 2011, etc.).

In addition, in a criminal trial, the establishment of facts constituting a crime ought to be based on strict evidence with probative value, which leads a judge to have such convictions as to the extent that there is no reasonable doubt. Thus, in a case where the prosecutor’s proof does not sufficiently reach the extent that such convictions may lead to such convictions, the determination should be made in the interests of the defendant even if there is suspicion of guilts, such as the defendant’s assertion or defense contradictory or uncomfortable dismissal (see Supreme Court Decision 2010Do1487, Apr. 28, 2011, etc.).

B. The court below held that the judgment of the court of first instance which found Defendant 4 guilty of the facts charged against the defendant 4 cannot be deemed to have conspiredd or participated in the crime of attack of this case against the defendant 4 and co-defendant 1 of the court below (hereinafter referred to as the "original trial co-defendant 1"), the currency details between the defendant 4 and co-defendant 1 of the court below, the conversation between the defendant 4 and △△△△△△△△△△△△ Group after the offence of this case, the behavior of the defendant 4 and co-defendant 1 of the court below, the character of the defendant 4 after delivery to Co-defendant 1 of this case and delivery to the non-indicted 7 of the court below, the background leading up to the reversal of the statement of the court below as to the non-indicted co-defendant 1 of the court below, and the facts that the defendant 4 did not have any direct evidence to support this part of the facts charged, the judgment of the court below and the judgment of the court below which found the defendant 1 and the defendant 4 of this case were not guilty.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding co-principal, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

6. Conclusion

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

Justices Shin Young-chul (Presiding Justice)