(영문) 광주고등법원 전주재판부 2014.3.25.선고 2013노237 판결

The judgment of the court of first instance is reversed as to the defendant's judgment of the court of first instance and the judgment of the court of acquittal.The judgment of the court of first instance is reversed as to the defendant's judgment of the court of first instance.The judgment of the court of first instance is reversed as to the defendant's judgment of the court of first instance, and the judgment of the court of first instance is reversed as to the defendant's judgment of the court of first instance (OOOOO of this case, 25. 3. 25. 201. 1. 7 November 7, 2013, OOO of this case, attorney 1- 1- OO of the court of first instance, attorney 2013 OO and 96O's judgment of the court of last instance.

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

Reasons

1. Summary of grounds for appeal;

A. The defendant and his defense counsel (the factual errors and misapprehension of the legal principle)

① The judgment of the court below which found the defendant guilty of the crime of aiding and abetting candidates in the participatory trial is erroneous in disregarding the actual speed of the jury's verdict of innocence. ② The judgment of the court below is erroneous in matters of law by misapprehending the legal principles on the burden of proving the falsity of a defendant's Twitter post on the premise of the judgment on the "non-indicted 1" and "non-indicted 1" in the crime of aiding and abetting candidates. ③ Although the contents of the defendant's Twitter post cannot be seen as "non-indicted 1", the judgment of the court below is erroneous in the misapprehension of the legal principles on the "non-indicted 1" in the crime of aiding and abetting candidates. ④ Although the judgment of the court below judged that the public interest alleged by the defendant on the grounds of the illegality exclusion is merely a nominal motive, it is erroneous in the misapprehension of the legal principles on the grounds of the illegality exemption under the proviso of Article 251 of the Public Official Election Act. ⑤

B. Prosecutor (Fact-finding or misunderstanding of legal principles and unreasonable sentencing)

① In relation to the crime of publishing false facts, the lower court erred by misapprehending the legal doctrine as to the criteria for recognition of the offense, by denying the Defendant’s intention to publish false facts in violation of the rules of evidence, and by not guilty of this, the lower court acquitted the Defendant.

2. The facts charged in this case

The Defendant was a person who was the chairman of the Joint Election Measures Committee of the candidate who was the 18th presidential election. As a result of the public opinion poll conducted on December 2, 2012 to the first patrol officer during the said election campaign period, the gap between the support rate of the candidate who was the above gate-based candidate and the above gate-based candidate who was going out of the above election was within the error scope.

Therefore, the Defendant stated that there was a portion of the broadcast content of MaBC 2580, which was broadcasted on October 30, 201, that “the 5th anniversary of the fact that the Defendant was missing at the 569-4,” and that there was an implicit publication of the above 0th anniversary of the fact that the 0th anniversary of the fact that the 5th anniversary of the fact that the 5th anniversary of the said 1976, the Defendant was missing at the 0th anniversary of the fact that the 5th anniversary of the fact that the 5th anniversary of the said 19-4 was missing, the Defendant was not aware of the 0th anniversary of the fact that the 3th anniversary of the 1976, the 20th anniversary of the fact that the 1st 2nd 1st 2nd 1st 2nd 1st 2nd 2nd 2nd 2nd 2nd 2nd 3th 2011, the 2nd 3nd 3th 3th st st st 2nd st o.

As such, the Defendant’s access to the Internet on December 10, 2012 to the Defendant’s Twitter for the purpose of lowering the support rate of the candidates for gambling and preventing the election from being elected. However, on December 10, 2012, the Defendant posted a notice on the Defendant’s Twitter stating that “The Defendant, at the time of the election of the Park Jong-hee in 1972, there was a record that Park Jong-dae and the subsequent Park Jong-young were kept, and that the Cultural Heritage Administration was a stolen cultural property,” as shown in the attached list of crimes from December 10, 2012 to December 11 of the same year, 2012, the Defendant posted a notice on the Defendant’s Twitter on the premise that “The candidate was stolen with the desire of his or her participation in the election of the candidate, or took part in the election of the candidate”. The Defendant made a false statement as to the candidate’s election for the purpose of prohibiting the candidate from being elected.

3. Determination on the violation of the Public Official Election Act due to the publication of false facts

A. The judgment of the court below

1) Whether the “fact” constitutes the publication

The 17 Twit notices of this case are based on the premise or suggesting the fact that "the candidate was involved in the theft of the implied theft of this case or who was stolen," because they are in close vicinity and connected with each other under the single criminal intent of the defendant, and thus, they can be viewed as a public announcement including one of the above facts as a whole. Thus, it constitutes the fact that the public announcement of false facts is subject to the determination of the sexual part of the crime of publishing false facts.

2) Whether it is a “false fact” or not

'The fact that the candidate was involved in the theft of the silent of this case or that the stolen fact was not confirmed by the investigation result or the trial, etc., and the defendant who raised such suspicion is true in accordance with the principle of allocation of burden of proof. The materials presented by the defendant and the defense counsel alone are insufficient to recognize that this point has been substantiated. Thus, the above truth of the truth is a legally false fact.

3) Whether "the recognition of falsity" is "the recognition of falsity"

In order to constitute the crime of publishing false facts, it must be perceived that the candidate for gambling was involved in the theft of the instant implicit, or who received a stolen silent, as a subjective element. However, in light of the source and content of the materials presented by the Defendant and the defense counsel and the fact that the authenticity of the above facts is still unclear, it is difficult to conclude that the Defendant did not make an effort to confirm the truth in addition at the time of the publication of the above facts, and that there was a false perception.

4) Sub-determination

Therefore, the part of the charge of publishing false facts among the facts charged in the instant case is not sufficient to prove the criminal intent.

B. The judgment of this Court

1) As to the meaning of the facts published or indicated in the summary of the issue at the Defendant’s Twitter notice (hereinafter referred to as the “instant notice”), as to the meaning of the facts that were published or indicated in the summary of the issue, there are many objective materials to believe that the election campaign candidate was silent at any time in the past. Meanwhile, according to the data on the website of the Cultural Heritage Administration, the instant implied information is published as stolen cultural heritage, so it should be clearly explained that the election campaign candidate is directly responsible for the location of the instant implicit, and if not, he may be mistaken for the election campaign candidate.” On the other hand, the lower court determined that the Prosecutor’s aforementioned facts cannot be seen as having been published or rejected as a whole, on the premise that the facts of the instant case were stolen, and that the Defendant’s election campaign candidate did not have been aware of the facts of this case’s existence, such as the facts of this case’s silence, and that the facts of this case’s notice was unlawful, or that the Defendant’s election campaign candidate did not participate in the crime of theft.

B) Relevant legal principles

The crime of publishing false facts under Article 250 (2) of the Public Official Election Act and "facts" in the main sentence of Article 251 of the same Act mean reports or statements on facts in the past or present, time and space, and the contents of such expressions can be proved by evidence, as a concept substitute for expression of opinion with the aim of enabling an elector to make an accurate judgment on a candidate. It is sufficient if the elector to have such an expression to the extent that it would be able to mislead the accurate judgment on the candidate. The term "facts" refers to the time and space, and the contents of the expression can be proved by evidence. It is not distinguishable by only the term of the former clause used, but rather by ensuring the fairness of election, in mind, all circumstances surrounding such expressions, namely, the ordinary meaning and usage of language, overall contents of the expression, the context of expression used, the opposite party, the possibility of proving the contents of the expression, the present and candidate's identity, etc. It is also necessary to determine whether it is 20 or 200, separately from the expression of opinion or indirect statement of facts.

C) Determination

On the basis of these legal principles, the Defendant’s 17th anniversary of the fact that he had been able to see that he had been able to see that he had been able to see that he had been able to see that he had been able to see that she had been able to she had been able to she had been able to she had she had she had she had she had been she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had she had been she had she had she had she had she had she had.

2) The legal principles pertaining to the falsity of the “facts publicly announced or indicated” in the instant notice

(1) In order to establish the crime of publishing false facts under Article 250(2) of the Public Official Election Act, it is necessary for the prosecutor to actively prove that the published facts are false, and the crime of publishing false facts cannot be established merely with the absence of proof that the published facts are true. In determining whether or not the above burden of proof exists, a prosecutor who is the active party must prove the absence of a specific act at a specific period and specific place without reasonable doubt. However, it is difficult for the prosecutor to prove the absence of facts which are not concrete in the specified period and space, while it is not possible to prove the existence of such facts in terms of social norms, it is more easy to prove and prove the existence of such facts. Such circumstances should be considered in determining whether the prosecutor fulfilled the burden of proof. Accordingly, the prosecutor bears the burden of proving the existence of such facts (see, e.g., Supreme Court Decision 200Da17208, Mar. 27, 2008).

B) Determination;

(1) The following facts are acknowledged according to the evidence duly adopted and examined by the court below and the court below.

(가) 피고인은수사기관에서, 2011. 10. 30.경 방송된'MBC 시사매거진 2580' 프로그램에서 문화재청 관리기록상 청와대가 소유자로 되어 있는 이 사건 유묵 이 현재 청와대에 소장되어 있지 아니하고 그 소재를 알 수 없다는 내용의 방송을 보고 이 사건 유묵의 소재에 대하여 관심을 갖게 되면서 관련 자료를 수집하고 연구한 결과 박근혜 후보가 청와대를 나오면서 당시 청와대에 소장되어 있던 이 사건 유묵을 가지고 나와 이를 소장하여 왔던 것으로 생각하게 되었다고 그 경위를 밝혔고 관련 소명자료를 제출하였는데, 그 구체적인 내용은 다음과 같다( 증거기록 204쪽 이하). ① 1976.3.17. 이00이 보물로 지정되어 있던 이 사건유묵을 청와대에 기증하였는데, 위 기증 당시 박근혜 후보가 사실상의 퍼스트레이디 역할을 하고 있었고, 그 후 1980년경 박근혜 후보는 청와대에서 신당동 자택으로 이사하였다. ② 한편 1983. 4. 7. 문화재청의 문화재 보존관리 실태조사 결과 이 사건 유묵의 현품을 확인하지 못하였고, 현재 문화재청 홈페이지에도 이 사건 유묵이 도난문화재로 공시되어 있다. ③ 그런데, 1993. 2. 13.자 세계일보 기사, 2001. 9. 2. 안중근의사기념관이 발간한 <대한국인 안중근>(편저인 윤00) 도록1), 2004년 안중근의사숭모회 학술연구지에 윤00 교수가 발표한 '안중근 유묵과 친필' 논문, 2005. 3. 중국 흑룡강 조선민족 출판사가 발간한 〈安重根和哈爾濱> 도록, 2009년 안중근의사기념사업회가 편찬한 < 안중근 역사 연구의 기초> 중 윤00 교수가 집필한 '안중근 의사의 저술과 유묵' 부분, 2010. 1. 7. 자국방일보 온라인판 기사 등 다수의 문헌 내지 기사에 이 사건 유묵의 소장자가 '박근 혜'로 기재되어 있고, 2010년 안중근의사숭모회가 발간한 〈대한국인 안중근 - 사진과 유묵으로 본 안중근 의사의 삶과 꿈>(안중근의사기념관 관장 김00 엮음)에는 이 사건 유묵이 '원 박근혜 소장이었으나 현재는 청와대가 소장'이라고 기재되어 있다. ④ 이러한 사정을 종합할 때 박근혜 후보가 청와대를 나오면서 이 사건 유묵을 가지고 나와 이를 소장하여 왔던 것으로 보인다. ⑤ 그러나 MBC 시사매거진 2580 프로그램에서 박근혜 후보측은 청와대에서 이 사건 유묵을 가지고 나온 적이 없다는 취지로 해명하였 던바, 피고인의 입장에서는 박근혜 후보가 이 사건 유묵을 소장하고 있음에도 그 반환을 거부하고 있거나 이 사건 유묵의 소재불명에 관여한 것이 아닌가 하는 의혹이 든다.는 것이다.

(B) As a result of the prosecutor's examination on the grounds that the defendant's submission of the materials shows that the defendant's submission of the materials is " Park Jong-young", the prosecutor's office did not confirm that the candidate's submission of the materials in question was in the possession of the materials of this case, but most of the documents that the warden entered in the existing literature as " Park Il-young" are moved to the same place, and (2) he was confirmed as the source of the documents that he confirmed, the prosecutor's office did not make a statement that the reporter's submission of the materials was published at the World Daily Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical Ethical E.

(C) Meanwhile, the prosecutor received relevant data from the Cultural Heritage Administration while conducting the instant investigation. Among them, the fact-finding survey report on the preservation and management of the cultural heritage of this case prepared on April 7, 1983 by the expert members of the Office of Cultural Heritage Management, and the staff of the Office of Culture and Arts stated that "I expressed that I would like to respond to the negotiation that I would like to move to the Office of the Ministry of Culture and Tourism, and that I would like to participate in the negotiation that I would like to move to the Memorial Memorial Memorial Memorial Memorial." In this regard, Y0 stated that I would be 00 at the time of the investigation and the court of the court of the trial to the effect that it is not clear whether I would like to be 00 or not I would have been the staff of the Agency. However, around 191, 00, I would not know that I would have been able to confirm that I would have been able to know that I would have been able to know that I would have been able to donate.

(D) The management status of the Office of Cultural Heritage was as follows. The instant implicit was designated as 569-4 on August 16, 1972, and was donated to the Office around March 17, 1976, and its ownership and manager was registered as Cheongju. Since it was conducted a fact-finding survey on the preservation and management of cultural heritage on April 7, 1983, it did not confirm the instant implicit items against Cheongju at the time of conducting a fact-finding survey on the preservation and management of cultural heritage, but it did not undergo a procedure for verifying the instant implicit items, and even thereafter, it did not follow the procedure for verifying the instant implicit items. The instant implied items were not known from Cheongju and Cheongju on September 10, 2010, and it was confirmed that there was no implied items from 10 days after the date of the instant investigation and reply to 10 days on March 21, 201.

(E) At present, the official entry of the Office of Cultural Heritage is called "the name of materials". However, the website of the Office of Cultural Heritage does not contain any item that discloses the "distinctly known cultural heritage", separate from the "disciated cultural heritage", and thus, it is published in the item of the "disciated cultural heritage information" on the website of the Office of Cultural Heritage (Evidence No. 45 to 47, 207). In other words, examining the output of the website of the Office of Cultural Heritage (Evidence No. 45 to 47, 207), the website of the Office of Cultural Heritage is a page of the item, and the "disciated cultural heritage information" is a detailed item of the "disciated cultural heritage information," and the "disciated cultural heritage name" in this case as the "one point of "one point of the badly malicious person who has lost knowledge" (No. 527)", and the detailed content is confirmed that the "disciated cultural heritage information", the Seoul place of theft.

(2) In light of the aforementioned legal principles, we examine whether the fact that the defendant published was false.

(A) As to the part that "the implied cultural property of this case was stolen", it is reasonable to view that the official position of the Cultural Heritage Administration is "the implied cultural property of this case" as "the unknown location of this case," and unlike the description of "the name of another cultural property of this case" as "the name of the tangible cultural property of this case," but it is reasonable to view that the contents posted on the website of the Cultural Heritage Administration can be generally accepted as disclosing the implied cultural property of this case as "the stolen cultural property of this case," and that such recognition is not significantly different from the perspective of the defendant, who is a man and university professor, and that the contents of the website of the Cultural Heritage Administration of this case were accepted as "the unknown location of this case," and if it conforms with the objective facts in light of the overall purport of the published facts, it can not be concluded that the defendant's statements are false" in light of the legal principles.

(나) 다음으로 '박근혜 후보가 청와대에서 이 사건 유묵을 가지고 나와 최근까지 이를 소장하고 있었다' 는 부분에 관하여 보건대, ① 피고인이 제시한 소명자료들은 언론기관이나 안중근 의사의 업적에 관한 지명도 있는 기관 · 단체가 작성한 기사 내지 문헌으로서 그 내용에 이 사건 유묵의 소장자가 '박근혜'로 명기되어 있으며 당해 소명자료가 작성된 시점 또한 특정되어 있어 그 신빙성의 탄핵에 관한 검사의 입증활동이 현실적으로 가능할 것으로 보이는 구체적인 자료라고 할 것인데, 다만 그 작성자들에 대한 검찰의 수사 결과 소명자료들의 근원이 된 것으로 보이는 '1990년 안중근의 사숭모회 발간 도록'의 진위 여부를 확인할 수 없어 더 이상 조사가 진척되지 못하였던 점(이에 대하여 검사는 피고인이 제시한 소명자료들은 박근혜 후보가 이 사건 유묵을 소장한 시점, 장소 등을 전혀 특정하지 아니하여 박근혜 후보가 언제부터 언제까지 어디에서 이 사건 유묵을 소장하여 왔다는 것인지를 알 수 없으므로 신빙성의 탄핵에 관한 검사의 입증활동이 현실적으로 가능할 정도의 구체성을 갖춘 소명자료라고 할 수 없다고 주장하나, 피고인의 이 부분 적시 내용의 핵심은 박근혜 후보가 최근까지 이 사건 유묵을 소장하였다는 것이지 취득 시점 및 경위에 중점이 있다고 할 수는 없고, 피고인이 제시한 당해 기사 내지 문헌들은 그 작성자와 작성 일시가 특정되어 있어 소장 시점은 당해 기사 내지 문헌들의 작성 일시로 특정될 수 있다고 할 것이며, 이 사건 유묵의 크기, 형태를 감안하면 소장 장소는 소명자료의 허위성 입증에 결정적인 요소가 될 수 없다고 할 것이고, 실제 검찰에서 작성자들에 대한 조사를 실시하였고 다만 결과적으로 더 이상의 추적 조사가 불가능한 상황에 봉착하게 된 것일 뿐인바, 이를 이유로 피고인이 제시한 소명자료들을 검사의 탄핵조사가 불가능한 자료라고 할 수는 없다), ② 더구나 검찰이 수사과정에서 문화재청으로부터 송부받은 이 사건 유묵에 대한 1983. 4. 7.자 문화재 보존관리 실태조사서에는 당시 조사자인 문화재관리국 직원 황00가 수기로 기재한 '안중근의사기념관장(이00)의 말에 의하면 박근혜에게 소장되었다고 하며 안중근의사기념관으로 옮기려고 교섭한바 응할 뜻을 밝혔다' 는 메모가 확인되는바, 비록 위 실태조사서는 피고인이 소명자료로 제출한 것은 아니나 이 또한 이 사건 공판과정에 증거로 제출된 만큼 피고인의 적시 내용에 관한 소명자료의 역할을 할 수 있다고 할 것인데, 수사 결과 위 실태조사 당시 안중근의사기념관장이었던 이00 이 현재 사망하여 더 이상 그 기재 내용의 진위 여부를 확인할 수 있는 방법은 없는 점(검사는 이에 대하여 그 후 이 사건 유묵의 기증에 관한 문화재관리국이나 안중근의 사기념관의 후속 조치가 이루어졌다는 사정이 드러나지 아니한 만큼 위 메모의 신빙성을 인정할 수 없다고 주장하나, 그러한 사정만으로 위 메모가 허위라고 단정할 수는 없다 ) 에 비추어 보면, 피고인이 적시 내용에 관하여 제시한 소명자료의 신빙성이 탄핵되었다고 할 수는 없고, 이에 더하여 ③ 이 사건 유묵이 소재불명으로 공시되기 전까지 달리 다른 기관이나 사람이 이를 소장하고 있었다고 볼만한 객관적인 자료도 없는 점(비록 피고인이 제출한 자료 중 이 사건 유묵의 소장자에 관하여, 2009년 예술의 전당 발간 의거 순국 100년 안중근> 도록에는 '청와대 소장'으로, 2010년 안중근의사숭 모회 발간 <대한국인 안중근 - 사진과 유묵으로 본 안중근 의사의 삶과 꿈 > 도록에는 '원 박근혜 소장이었으나 현재는 청와대가 소장'으로 각 기재되어 있기는 하나, 2009년 예술의 전당에서 '안중근 순국 100주년 기념 전시회'를 담당했던 이00은 수사기관에서 '안중근의사숭모회가 2001년 발간한 도록 등을 근거로 이 사건 유묵의 소장 여부를 박근혜 후보측에 문의하였으나 소장하고 있지 않다는 답변을 듣고 청와대측에도 그 소장 여부를 문의하였으나 역시 소장하고 있음을 확인하지 못하여 결국 문화재청의 대장상 당초 이 사건 유묵의 소장자로 기재되어 있던 청와대를 이 사건 유묵의 소장자로 표기하였다' 고 진술하였고, 2010년 안중근의사숭모회 발간 책자를 담당한 김00은 원심 법정에서 '위와 같은 이00의 진술을 바탕으로 이 사건 유묵의 소장자를 기존 박근혜 후 보자에서 청와대로 변경하였다'고 진술한 점 등에 비추어 보면 위 문헌들의 작성자가 이 사건 유묵의 소장자를 청와대로 표기한 경위에도 객관적인 근거가 있다고 보기는 어렵고, 또한 문화재청에서도 1983. 4. 7.경 실태조사 당시 청와대에서 이 사건 유묵의 현품이 확인되지 아니한 이래로 현재까지 청와대에 이 사건 유묵이 소장되어 있지 않다고 확인한 만큼, 위 자료들 역시 피고인이 제시한 소명자료들의 신빙성을 탄핵하기에 부족하다고 할 것이다)을 종합하여 본다면, 피고인이 적시한 내용은 현재로서는 ' 진위불명'일 뿐 허위성이 입증되었다고까지 볼 수는 없다.

(3) Thus, it is clear to the effect that the candidate's right to remain silent in the MBC 2580 program, whose location is unknown, did not have the right to remain in the audience, and that the defendant's right to remain in the audience, based on the relevant data, refuses to return the right to remain in the audience, or at least refuses to return the right to remain in the election campaign, even though he/she had the right to remain in the audience, or that at least there is a relation to the theft of the right to remain in the audience." The notice of this case is "in the legal principle of burden of proof" and it cannot be said that the falsity has been proved. Although the defendant introduced the meaning of the right to remain in the program at the time of MBC Sundays, the defendant's right to remain in the program at the time of 2580 program, it is nothing more than part of the fact that he/she made public the notice of this case, or it is nothing more than part of the fact that he/she made public.

3) Sub-decisions

Therefore, since the facts charged against the violation of the Public Official Election Act due to the publication of false facts are insufficient to prove the facts charged, the judgment of the court below is justified as a result, and the prosecutor's appeal on this part is without any need to further examine the reasons for appeal by the prosecutor as to whether to recognize the intention.

3. Determination as to the violation of the Public Official Election Act by a candidate's campaign speech

A. The judgment of the court below

1) Whether the “fact” constitutes an indication

The notice of this case is based on the premise or suggesting that "the candidate was involved in the theft of the silent or stolen silent of this case by the doctor during the time close to and in conjunction with the defendant's single criminal intent," and it can be deemed as a whole that the notice of this case constitutes a statement that covers one of the above facts, and thus, it constitutes a statement that is subject to the judgment of the sexual nature of the crime of candidate for non-election. 2) The sex of the crime of candidate for non-election - the purpose of prohibiting election - the purpose of the crime of candidate for non-election - the statement of the notice of this case related to the illegality, which is a moral defect that is not directly related to the ability or quality as the presidential candidate at the time of the publication of this case. In light of the defendant's status, election situation at the time of the presidential election, the time of publication, the time of publication, the defendant's criminal administration before and after the publication of this case, etc., the public interest verification of the candidate's qualification asserted by the defendant is merely a nominal motive, and unlawful as it deviates from the limit of freedom of expression.

B. The judgment of this Court

1) Whether the “fact” constitutes an indication

As examined in the determination as to the publication of false facts, the notice of this case, which was donated to the Blue House, was made in the past to the Blue House during the term of office of the President Park Jong-hee, and was made consecutively after the same subject in time under the above single subject. In the end, the Defendant, despite the explanation of the candidate who was the candidate for Park Jong-young, who had the instant silent from the beginning to the Blue House, is refusing to return it even if the candidate had the instant silent at the Blue House, or, at least at least, it is reasonable to view that it constitutes a defamation of the purpose of election, by suggesting "the fact that there is sufficient suspicion that the candidate had such doubt" and the contents of the instant notice constitute a defamation of the objective of election.

A) Relevant legal principles

Article 251 of the Public Official Election Act provides that “The purpose of being elected or not is to prevent a candidate from being elected” is sufficient if there is an incomplete perception without requiring active desire or conclusive recognition. Whether there was such purpose should be reasonable determination in light of social norms by comprehensively taking into account various circumstances, such as the Defendant’s social status, personal relation with the Defendant and the candidate for a candidate or competition, motive and details of, and method and method of, the act, details and manner of, the act, nature and extent of the other party, social situation at the time of the act, etc. (see, e.g., Supreme Court Decision 2011Do168, Mar. 10, 201).

On the other hand, "brupt" under Article 251 of the Public Official Election Act means finding out the other party's reduction or elimination of the other party without justifiable grounds (see Supreme Court Decision 2009Do1936, Jun. 25, 2009, etc.).

B) Determination

이러한 법리에 기초하여 이 사건으로 돌아와 살피건대, 원심 및 당심이 적법하게 채택 · 조사한 증거들에 의하여 인정되는 다음과 같은 사정들 즉, 피고인은 트위터에 이 사건 게시물을 게재할 당시 제18대 대통령 선거의 민주당 후보로서 박근혜 후보의 경쟁자인 문재인 후보의 공동선거대책위원장으로 활동하면서 이 사건 이전 및 그 이후에도 문재인 후보를 당선시키기 위한 선거운동을 한 점, 피고인이 트위터에 게재한 이 사건 게시물의 주요 내용은 보물로 지정된 국가문화재인 이 사건 유묵이 박정희 전 대통령 재임 시절에 청와대에 기증되었다가 이후 박근혜 후보가 청와대를 나오면서 이 사건 유묵을 소장하고 있고, 현재 이 사건 유묵이 도난문화재로 되어 있어, 박근혜 후보가 이 사건 유묵을 소장하고 있음에도 그 반환을 거부한다거나 유묵의 도난에 관여되어 있다는 취지로, 박근혜 후보의 인격적 가치 등에 관한 사회적 평가를 침해할 수 있는 내용에 해당하는 점, 피고인은 제18대 대통령 선거일(2012. 12. 19.)을 불과약 일주일을 남겨둔 시점에서 이틀에 걸쳐 위와 같은 글을 반복적으로 게재한 점, 피고인이 자신의 이름으로 개설한 트위터에 게재한 글은 불특정 다수인이 읽을 수 있어 그 전파성이 높은 점, 실제 이 사건 글을 읽은 네티즌들이 이 사건 각 글의 댓글란에 '일본인들조차 소중히 여기는 안중근의 유묵을 개인이 소장하고도 모른다구? 그러니 2580팀도 해체하고 싶었던 게야', '아니 이런 xxx...!!! 악질 친일파 따위가 안중근 의사의 작품에 손을 대??? 도대체 이 집안의 ㅈㄹ은 언제 멈추는 거야!!!', '하여튼 장물에는 일가견이 있다니깐...', '헐, 보물도 장물... 그럼 장물 아닌 게 뭔지 무엇인지 궁금하다 진실로', '친일 뉴라이트 핵심 박근혜에게 항일장군 안중근 의사는...(중략)...19일 투표로 심판하고 장물은 환수, 장물애비는 법으로..'라는 등의 댓글을 달아 이 사건 게시물의 내용을 진실로 받아들이는 반응을 보인 점 등 피고인이 이 사건 게시물을 게시한 동기, 목적, 내용, 표현 수단, 전후의 정황 등을 종합하여 볼 때, 이 사건 게시물은 박근혜 후보에 대한 사회적 평가에 불리한 영향을 미쳐 박근혜 후보를 제18대 대통령 선거에서 당선되지 못하게 할 의도에서 비롯된 것으로 공직선거법 제251조 본문이 정하는 '비방' 에 해당한다고 할 것이고, 피고인에게 박근혜 후보가 선거에서 당선되지 못하게 할 목적이 있었다고 인정된다.

3) Whether illegality under the proviso of Article 251 of the Public Official Election Act is denied

A) Relevant legal principles

(1) Even if an act of campaigning against a candidate falling under the main sentence of Article 251 of the Public Official Election Act is a candidate's act, illegality is excluded pursuant to the proviso of the same Article when the alleged facts conform to the truth and are related to the public interest. The phrase "contestably consistent with the truth" in this context is sufficient when the material part is consistent with the objective facts in light of the overall purport of the contents thereof, and even if there is a little difference or exaggeration in the detailed contents, and the time when the public interest is related to the public interest does not necessarily mean that the public interest is superior to the private interest, if there is both parties and it is recognized as reasonable (see, e.g., Supreme Court Decision 2004Do3919, Oct. 27, 2004). In the application of the proviso of Article 251 of the Public Official Election Act, even if there is no proof that the stated facts are true, and if there is a considerable reason to believe that the actor is true and there is no illegality (see, e.g., Supreme Court Decision 96Do196519, Apr.

(2) In particular, under a democratic political system, the freedom of speech is the most basic fundamental right and it is not easy to guarantee such freedom in the election process. Since it is necessary and important to verify the candidate's eligibility to take charge of public service in an election of public officials, the freedom of speech for its eligibility verification shall also be guaranteed, and in the event there is any reason to suspect the candidate's illegality or morality, it shall be allowed to raise any question, and in the event that public judgment is made, it shall not be easily obstructed the raising of suspicions. However, if it is widely permitted to raise suspicions excessively, it shall not be prejudicial to the candidate's reputation even if the suspicions are revealed in fact, it shall not be later than 0, but also be 10,000,000,000 which are 20,000,000,000,000,000,000,000,000,000,000,000,00).

B) Determination

Based on these legal principles, even if the Defendant’s right to vote was stated in the presidential election for public interest, the Defendant’s act of using the same as the one of the candidates’ right to vote for public interest is not proven to be true. However, considering that the Defendant’s act of using the same as the one of the candidates’ right to vote for public interest is more likely to infringe upon the candidate’s right to vote for public interest than the one of the candidates’ right to vote for public interest, it is reasonable to view that there was a considerable reason to believe that the Defendant’s act of using the same as the one of the candidates’ right to vote for public interest would be unreasonable, and that the Defendant’s act of using the same as the one of the candidates’ right to vote for public interest would not be deemed to be an expression of the candidate’s right to vote for public interest, which is the one of the candidates’ right to vote for public interest. However, considering the overall purport of the publication, the Defendant’s act of using the same as the one of the candidates’ right to vote for public interest, which is the one of the candidates’s right to vote for public interest.

4) Sub-committee

Therefore, the facts charged against the violation of the Public Official Election Act by the candidate's campaign shall be excluded from illegality and not guilty. The judgment of the court below, which different conclusions, is erroneous in the misunderstanding of legal principles as to the grounds for the exclusion of illegality of the crime against the candidate's campaign, which affected the conclusion of the judgment. The defendant'

5. Conclusion

Therefore, there is no reason to appeal by the prosecutor against the violation of the Public Official Election Act (not guilty part) under the false list, and there is a reason to appeal by the defendant against the violation of the Public Official Election Act (not guilty part) among the judgment of the court below, but one decision should be rendered in relation to the distribution of false facts and the facts charged by the candidate and the candidate's secret concurrent2). In this regard, the judgment of the court below cannot be maintained in its entirety. Accordingly, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act without the defendant's assertion on the binding force of the verdict of the participatory trial or the prosecutor's assertion of unreasonable sentencing,

The facts charged in this case are as stated in Paragraph (2). Of the facts charged in this case, the violation of the Public Official Election Act through the publication of false facts among the facts charged in this case is not sufficient to prove the crime as prescribed in Paragraph (3) and the violation of the Public Official Election Act by the candidate candidate candidate candidate candidate candidate candidate candidate's violation of the latter part of Article 325 of the Criminal Procedure Act is dismissed, and therefore, it is not guilty under the former part of Article 325

Judges

Clinical technicians (Presiding Judge)

Kim Yong- For

Completion Exchange

Note tin

1) At the time, the Defendant expressed that he was the publisher’s “Saepoepoly Franchise,” but it seems that it was merely erroneous.

(2) Supreme Court Decision 2006Do8368 Decided March 15, 2007; Seoul High Court Decision 2008No2739 Decided December 17, 2008 (Supreme Court Decision 2009Do147). etc.see Supreme Court Decision 2008No2739 Decided December 17, 2008

심급 사건

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-대법원 2016.12.15.선고 2014도3932

참조조문

참조판례

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