[1] Whether Article 255 (2) 5 and Article 93 (1) of the former Public Official Election and Prevention of Election Illegal Act violate the Constitution (negative)

[2] Whether it is permissible for a general citizen or a party member to commit an act affecting the election by posting a document by unlawful means on the Internet homepage opened by a political party (negative)

[3] The case holding that the act of a party member's posting a document opposing the above political party on the bulletin board of the party's Internet homepage constitutes Article 255 (2) 5 and Article 93 (1) of the former Election of Public Officials and Prevention of Election Illegal Act

[4] The scope of reversal of the judgment of the court below which found a partial guilty of concurrent crimes under the former part of Article 37 of the Criminal Code and rendered a partial acquittal, where only the prosecutor appealeds the entire verdict, and only the prosecutor's appeal concerning the acquittal is justified

[1] Articles 93(1) and 255(2)5 of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of March 12, 2004) / [2] Articles 58(1)4 and 93(1) of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of March 12, 2004) / [3] Articles 93(1) and 255(2)5 of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of March 12, 2004) / [4] Article 37 of the Criminal Act, Articles 383 and 391 of the Criminal Procedure Act

[1] Supreme Court Decision 2004Do4045 Decided November 25, 2004 (Gong2005Sang, 369), Supreme Court Decision 99HunBa92, 2000HunBa39, 200HunBa167, 168, 199, 205, and 280 en banc Decision (HunGong60, 825) / [4] Supreme Court Decision 71Do905 Decided July 27, 1971 (Gong19-2, 662), Supreme Court Decision 2004Do5035 Decided October 15, 2004 (Gong19-4, 2004)

Defendant

Prosecutor

Seoul High Court Decision 2004No2240 delivered on December 14, 2004

The judgment below is reversed and the case is remanded to Seoul High Court.

1. The facts charged as to posting documents by unlawful means and the judgment of the court below

A. Summary of the facts charged

The Defendant may not distribute, post, post, or display, or have another person display, documents, etc. containing the contents supporting, recommending, or opposing a political party or candidate for the purpose of influencing the election from 180 days before the election day to the election day. Notwithstanding the fact that around November 17, 2003, the Defendant: (a) access to the Defendant’s home page in Seoul (hereinafter address omitted) by means of a computer; and (b) pursuant to the title, “I do not wish for the people to be outside the country” on the bulletin board, “I do not want to do so.” The citizen’s home is the back line. As such, the Defendant would know or know the people suffering from suffering from the national pension life even more. (c) as well as the members of Hando Dara, who are 200 times in the form of a document, including the content of a document that is written in accordance with the attached Table 40 times from the date of posting a private TV and the content of the document that they oppose the Defendant’s home.

B. The judgment of the court below

The court below held that the act of posting such writing on the bulletin board of the general internet homepage or sending an e-mail to the ordinary e-mail address of the general public in order to influence an election constitutes an act of posting the documents prohibited under Article 93(1) of the former Public Official Election Act and other similar things, but held that the act of expressing the opposing opinion on the Hanra Party on the following grounds of the following circumstances does not constitute an act prohibited under Article 93(1) of the Public Official Election Act, and reversed the judgment of the court of first instance convicting the Defendant of this part of the facts charged and acquitted the Defendant.

(1) In a democratic state that adopts the representative democracy, since the election of public officials is an act by the sovereign citizens to exercise their sovereignty, the opportunity and freedom to participate in the election shall be guaranteed to the maximum extent possible by the people. On the other hand, in order to prevent the election of public officials, such as authority, authority, etc., and to minimize socioeconomic losses and side effects caused by the unlimited and excessive election campaign, and to reflect the genuine will of the people, equal opportunities for the election and election campaign should also be guaranteed.

In this regard, Article 93(1) of the Public Official Election Act prohibits the impartiality of election by distributing freely documents, such as documents having the character of election campaign, printed materials, etc., in order to ensure the fairness and equality of the terms and conditions of each candidate’s election, thereby causing unfair competition in the election campaign. Articles 64 through 66 of the Public Official Election Act permits only propaganda posters, election campaign bulletins, small printed materials, etc. to be subject to specific restrictions, and prohibits acts such as distributing and posting documents, drawings, etc. by unlawful means that affect the election for a certain period before the election day in order to prevent such acts from being lost. The purpose of this provision is to prevent any harm caused by unfair competition in election campaigns and differences in economic power among the candidates based on the principle of ensuring equal opportunity for election campaigns as provided in Article 116(1) of the Constitution, and to promote the fair legislation of election by guaranteeing the opportunity of candidates and by preventing any harm to the peace and fairness of election as a result of election.

(2) However, posting a letter on a specific political party’s website, which is not a general Internet homepage, is operated on the original website under the premise that discussions on various political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s opinion is free. If the political party’s political party’s political party’s political party’s political party’s political party’s political party’s political act is prohibited, this would excessively infringe on the freedom of political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political party’s political act and political act’s political act.

(3) In the instant case, the Defendant, as a member of Korea National Assembly, pointed out the mistake of Korea National Assembly members of Korea National Assembly as well as the public opinion on criticism of Korea National Assembly members about the non-indicted National Assembly members upon the resolution of the motion for release of Korea National Assembly members, and posted a letter of the same content as that of the attached Table 1 of the judgment below, by accessing the Internet homepage of Korea National Assembly in order to urge them to reflect the public opinion on the criticism of Korea National Assembly members as to Korea National Assembly members. The contents of this case are extremely rare in most cases, and in particular, it is extremely rare in cases of direct mentioning about the election of the 17th National Assembly members of Korea National Assembly. Since it is recognized that the Defendant had almost little fact, it is difficult to deem that the Defendant had the intention to express his political opinion about Korea National Assembly members of Korea National Assembly, and there was a purpose to influence the election.

2. Judgment of the Supreme Court

However, we cannot accept the above decision of the court below for the following reasons.

In relation to the election of Article 93(1) of the Public Official Election Act, the restriction on the acts prescribed therein is intended to pursue common interests of all the electors and electors, including electors, by guaranteeing the freedom and fairness of election. Therefore, the legitimacy of the legislative purpose is recognized. The restriction has the meaning as an institutional device to guarantee the freedom and fairness of election, and it is difficult to present an effective means in addition to prohibiting such acts for a certain period of time, and in particular, the restriction takes place under the premise that the restriction is "in order to influence the election". Such restriction is an inevitable measure and inevitable regulation for securing the fairness of election. Thus, it cannot be said that the political expression of the candidate or the right of citizens to know is infringed, and it cannot be said that it infringes on the right to public gathering or interfere with the realization of the freedom of substantial election (see, e.g., Constitutional Court en banc Decision 2008Hun-Ba97, Apr. 27, 2005; Constitutional Court Decision 2008Do8397, Apr. 28, 2001).

In addition, when the concept of a certain law is different and it is possible to interpret within the framework of its language, it is necessary to choose an interpretation consistent with the Constitution in order to form a uniform legal order with the Constitution as the highest law. It is a general legal doctrine of the Constitution that excludes interpretation that may result in unconstitutional consequences. However, Articles 255(2)5 and 93(1) of the Public Official Election Act do not state the different concept of the provision, and even if it is interpreted within the framework of its language, it does not result in unconstitutionality as seen above (see Supreme Court Decision 2004Do4045, Nov. 25, 2004). Meanwhile, Article 93(1) of the Public Official Election Act does not impose any restriction on the subject of such act, and thus, it does not allow a political party to act on the Internet homepage of the political party or a political party's general political party's political party's political party's political party's political party's political party activities through its Internet homepage or political party's political party's activities.

Examining the evidence adopted by the court below in light of the above legal principles, the defendant's act of posting a document that contains the contents such as "I will not see whether I will see it as stated in this part of the facts charged," "I will see if I will see it, I will see it if I will see it, I will see it, I will see it, I will see that I will see it, I will see it, I will see that I will see it at once, I will see it, I will see 50 years after 50, I will see it, I will see it as an act falling under Article 255 (2) 5 and Article 93 (1) of the Public Official Election Act, and it does not constitute an act of the defendant under Article 255 (2) 5 and Article 93 (1) of the Public Official Election Act by applying the method of interpretation of the Constitution.

Nevertheless, the court below determined that the defendant's act in this part of the facts charged does not fall under Articles 255 (2) 5 and 93 (1) of the Public Official Election Act based on only the circumstances as stated in its reasoning and found the defendant not guilty, and there is an error of law by misunderstanding the legal principles on Article 93 (1) of the Public Official Election Act, which affected the conclusion of the judgment. Accordingly, the prosecutor's ground of

3. Scope of reversal

The prosecutor filed an appeal against the charge of violating the Public Official Election Act due to defamation against a candidate who was pronounced guilty without limiting the portion of innocence to the judgment below. However, the appeal and the grounds of appeal are not indicated in the grounds of appeal as to the guilty portion.

However, in a case where the part of the judgment of the court below which found the defendant guilty and part of the crime of concurrent crimes under the former part of Article 37 of the Criminal Act did not appeal against the defendant, and the prosecutor appealed the whole part of the judgment of the court below without limiting the part of the acquittal, and where only the prosecutor's appeal against the part of the judgment of the court below is justified, the part of the judgment of the court below's conviction should be reversed together with the part of the non-guilty verdict. Thus, the appellate court should reverse the whole judgment of the court below (see Supreme Court Decisions 71Do905 delivered on July 27, 197, 204; 2004Do5035 delivered on October 15, 204, etc.) and the part of the judgment of the court of appeal

4. Conclusion

Therefore, all of the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)