Defendant

Prosecutor

Lee Jong-hoon (Public Prosecution) and Kim Jong-chul (Public Trial)

Law Firm Lee & Lee, et al.

Seoul Southern District Court Decision 2016Gohap449 Decided January 24, 2017

The prosecutor's appeal is dismissed.

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

피고인이 1인 시위 후 언론 인터뷰에서 공소외인 후보자에 대한 낙선운동을 벌이겠다고 언급한 점, 피고인이 속한 ☆☆☆☆☆에서 인터넷 홈페이지를 통해 낙선운동을 벌인 점, 공소외인은 전국적으로 유명한 정치인이어서 그에 대한 낙천운동이 언론에 보도되면 선거운동에까지 영향을 미치는 점 등을 감안하면, 이 사건 공소사실과 같은 피고인의 행위는 공소외인 후보자의 낙선을 도모할 목적의사가 인정되는 선거운동에 해당한다. 나아가 공직선거법 제90조 제1항 제1호 의 ‘광고물 게시’는 여러 사람에게 보이기 위하여 광고물을 현출시키는 행위를 의미하는 것으로, 이 사건 공소사실과 같이 광고물을 특정한 장소에 고정시키지 않고 단순히 들고 있는 행위도 ‘광고물 게시’에 해당한다.

Nevertheless, the judgment of the court below which found the defendant not guilty of the facts charged in this case on the ground that the defendant's act did not constitute "a mere dissenting opinion and expression of opinion on the recommendation of candidates by a political party."

2. Determination

A. Summary of the facts charged in this case

피고인은 “☆☆☆☆☆”이라는 청년단체의 위원장이고 공소외인은 제19대 국회의원으로서 2016. 4. 13.에 있을 제20대 국회의원 선거에서 ○○시 선거구에 △△△당 후보자로 출마할 예정이었다. 피고인은 공소외인이 ▽▽▽▽▽▽▽▽의 채용비리에 연루되었다고 주장해왔다.

No one shall conduct an election campaign by means of propaganda facilities, tools, assemblies, etc. other than methods prescribed by the Public Official Election Act prior to the election campaign period, and no one shall install, display, post or distribute placards, advertisements, or advertising facilities in order to influence the election from 180 days before the election day to the election day.

On February 16, 2016, around 12:00 on February 16, 2016, the Defendant made an election campaign using propaganda facilities and equipment, and posted an advertisement to have an effect on the election from 180 days before the election day to the election day, with the phrase “before the Defendant becomes aware of any person,” “pro-North Korea’s political party’s political party of Yeongdeungpo-gu,” “▽▽▽▽▽▽▽▽▽▽▽▽▽▽▽▽▽▽△△△”, and “Non-party’s political party’s efforts against a juvenile job seeker shall be free from employment, and his name and photograph shall be free from employment,” and one person’s political party’s political party’s political party’s political party’s political party’s political party’s campaign

B. The judgment of the court below

1) In full view of the following facts and circumstances acknowledged by the evidence duly admitted and examined, the lower court determined that the Defendant’s act was insufficient to recognize the evidence submitted by the prosecutor as an election campaign.

① On February 11, 2016, the Nonindicted Party filed an application for a candidate for a National Assembly member with the ○○ City constituency located in the △△△△ Party. On February 16, 2016, the Defendant’s stage of demonstration, which was still until the date of recommendation of the candidate for a National Assembly member at the △△△ Party.

② The place where the Defendant conducted one person’s demonstration is located in the election district of ○○ City, in which the Nonindicted Party is scheduled to appear, is irrelevant to the election district of ○○ City, and the visit of the general voters is rare.

③ The Defendant stated the content that “the efforts of a job seeker are good and good and good,” and that “official,” in the color sign on the Nonindicted Party’s photograph,” in the diskettes cited by the Defendant. The meaning of each of the above statements is against the recommendation of the Nonindicted Party as a candidate for the National Assembly member by the △△ Party.

④ The Defendant did not engage in any particular activity other than the acts cited in the diskettes at the above place, and the time when the Defendant conducted a one-person demonstration is limited to about 40 minutes, and at the time, it is difficult for general voters to carry the place.

⑤ As above, in full view of the following circumstances at the time when the Defendant conducted a single-person demonstration, the place where the Defendant conducted a single-person demonstration, the details indicated in the PPet cited by the Defendant, and the Defendant’s act and time when the Defendant conducted a single-person demonstration, etc., it is reasonable to deem that the Defendant’s act constitutes “an act that constitutes a simple statement of opinion and expression of opinion regarding the recommendation of candidates by political parties” excluded from election campaign.

2) Furthermore, in light of the following circumstances, the lower court determined that the act of the Defendant’s citing diskettes does not constitute “Posting” stipulated in Article 90(1)1 of the Public Official Election Act.

Article 58(2) of the Public Official Election Act provides that “any person may freely engage in an election campaign” in principle, guaranteeing freedom of election campaigns, and uses terms, such as election campaigns (the Public Official Election Act provides that “for election campaigns,” “to make a person to be or not to be elected,” “to influence an election,” and “election”, and the latter is a broad concept as to the latter. Considering the purport and principle of the Public Official Election Act, the provisions related to restrictions on election campaigns, etc. related to restrictions on election campaigns shall be strictly interpreted, and they shall not be excessively inferred or expanded. Considering that the aforementioned provisions are regulations that restrict methods of election campaigns, it is reasonable to strictly interpret the meaning of “the method of posting” as “within 10,00” or “within 10,000,000 in a certain place where election campaigns are to be carried out (the meaning of “within 10,000” or “within 10,000,000 in a certain place where election campaigns are to be carried out.”

C. Judgment of the court below

1) Whether the instant act constitutes an act of posting advertisements

In full view of the following circumstances, unlike the judgment of the court below, the Defendant’s act of carrying out a kicket and carrying a single person’s demonstration constitutes an act of posting advertisements under Article 90(1)1 of the Public Official Election Act. Therefore, the prosecutor’s assertion pointing this out is with merit.

① Article 90(1)1 of the Public Official Election Act prohibits “installation, display, post, or distribute” advertisements, etc. in order to influence elections. This is to regulate various acts that have the effect of delivering intentions to many and unspecified persons. However, it is difficult to deem that there is a significant difference in effect in that both the act of fixing advertisements on the wall, etc. and the act of carrying advertisements in hand are methods that facilitate the delivery of intentions to many and unspecified persons. Therefore, deeming that the act of carrying advertisements as hand corresponds to the legislative intent of the Public Official Election Act to constitute the act of posting advertisements prohibited under the said provision.

② The prior meaning of a notice is as follows: “The posting is either posted to inform many people or seeed as it is”; in its language and text, it appears that the posting is required to be fixed on the surface of an object where the posting does not take place. However, the concept of “Posting” used in daily language life means the act of displaying a notice in a manner easily visible to many and unspecified persons, and it does not necessarily mean that the posting is fixed on the surface of a certain place or object. Therefore, it is reasonable to regard the “inbound or posted” as one of the methods of displaying the notice as one of the means of displaying the notice.

2) Whether the instant act constitutes an election campaign

In light of various circumstances acknowledged by the court below in comparison with the evidence duly adopted and examined by the court below, and considering the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, the court below is justified in holding that the defendant's act, such as the facts charged in this case, constitutes an act of merely supporting and opposing the recommendation of a candidate of a political party excluded from election campaign and an act of expression of intent, based on the reasons stated in its reasoning. Other evidence submitted by the prosecutor alone cannot be deemed as proved without reasonable doubt that the defendant's act constitutes an election campaign or was conducted in connection with election campaign.

(1) “Election campaign” refers to an act that can be objectively recognized by the intention of promoting the election or defeat of a specific candidate in a specific election. The determination of whether an act constitutes an act ought to be objectively made on the object of an act indicated outside, rather than the internal intent of the principal agent who performs the act. Therefore, even though an act is not recognized as an act of realizing such intent in an objective manner under the circumstances at the time of the act, it cannot be said that the act was in mind with a subjective election, or that the act is not an election campaign solely with the influence on the election, or necessary or favorable interest in promoting the election or defeat of the election (see, e.g., Supreme Court en banc Decision 2015Do1

As acknowledged by the court below, the defendant held a demonstration by △△△△△ prior to the recruitment of the candidate for a National Assembly member with the content of "the employment visa is vacant and the employment visa is not good," and the content of "official" on the non-indicted's photograph as soon as possible next to the non-indicted's photograph, and the defendant's act indicated above is objectively against the non-indicted's official ceiling.

따라서 앞서 본 법리에 비추어 보면, 피고인이 이 사건 1인 시위 후에 언론 인터뷰를 통해 공소외인이 공천되는 경우 그에 대한 낙선운동을 벌이겠다고 언급하였다거나 또는 피고인이 속한 ☆☆☆☆☆이 인터넷 홈페이지를 통해 공소외인에 대한 낙선운동을 벌였다는 사후의 사정만으로 피고인이 정당의 후보자 추천에 관한 단순한 지지·반대의 의견개진 및 의사표시를 넘어서 공소외인의 낙선을 도모할 목적으로 1인 시위를 하였다고 볼 수는 없다.

② At the time of the instant case, the Nonindicted Party: (a) was a three-party National Assembly member of the △△△△△; (b) was sent to the Minister of △△△ Party and the Republic of Korea, and thus, (c) was a nationwide well-known person; and (d) thus, the shot Games against him is highly likely to be known to the relevant local area. However, it cannot be readily concluded that the shot Games ought to be treated differently solely on the ground that he/she is a nationwide well-known person; or that the shot Games immediately constitutes an election campaign that affects the election of the relevant local area.

3) Sub-decisions

Therefore, the judgment of the court below which acquitted the Defendant of the facts charged of this case is justified in its conclusion, and it cannot be said that there is an error of misunderstanding of facts or misunderstanding of legal principles as alleged by the prosecutor, and therefore,

3. Conclusion

Therefore, the prosecutor's appeal is dismissed as there is no reason.

Judges Kim Il-sung (Presiding Judge)