[1] The elements to constitute the grounds for excluding illegality under the proviso of Article 251 of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts

[2] The case holding that the illegality of a candidate who is a local government head, as a candidate for the other candidate's local tax delinquency at the joint speech meeting of a candidate for the head of a local government is excluded pursuant to the proviso of Article 251 of the Act on the Election of Public Officials and the Prevention of Election Unlawful Act, since the act

[3] The meaning of and criteria for determining false facts in the crime of publishing false facts under Article 250 (2) of the Act on the Election of Public Officials and the Prevention of Unlawful Election

[1] In a candidate's defamation under Article 251 of the Act on the Election of Public Officials and the Prevention of Unlawful Election Act, the facts alleged in the statement are consistent with the truth in light of its contents and nature, and it is objectively related to the public interest in light of its contents and nature, and the perpetrator also has the motive to indicate the facts for the public interest. Even if the public interest is not always superior to the private interest, if there is both parties, and if reasonable, the illegality is excluded pursuant to the proviso of the same Act

[2] Where a candidate who is a local government head of a local government stated in the joint speech meeting of a candidate for the other candidate for the head of a local government, the case held that the public interest of the candidate for the head of a local government who is the head of a local government has considerable motive for exercising appropriate right to vote by providing sufficient data on the candidate's quality, etc. to the other candidate for the head of a local government, and that the candidate's failure to pay local taxes is a material for criticism or evaluation of his/her social activities, which can serve as a material for determining his/her quality as a candidate for public office, compliance, and eligibility for public office, and that it is objectively related to public interest, and that the above fact has been expressed somewhat exaggerated in light of the context before and after the time when indicating the above local tax delinquency, and that the public interest of the candidate for the head of a local government has been expressed in the joint speech meeting held by the election commission, even if he/she used the position of accessing the local tax taxation data as a tax official, and that it does not constitute legitimate public interest under the proviso to Article 2 of the Public Official Election Act.

[3] In order to establish the crime of publishing false facts under Article 250 (2) of the Act on the Election of Public Officials and the Prevention of Unlawful Election Act, a false fact shall be published first, and the term "a false fact" in this context shall be sufficient if it is not consistent with the truth and is sufficient to cause the elector to make an accurate decision on a candidate, but it shall not be applicable if it is merely an expression of opinion with simple value judgment or evaluation. It shall be determined in consideration of the ordinary meaning and usage of language in mind, the context in which the expression in question is used, the possibility of proof, and the social situation in which the expression was made, etc., in consideration of the legislative intent of ensuring the fairness of election, in distinguishing between whether a statement is a true fact or an expression of opinion.

[1] Article 251 of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [2] Article 251 of the Act on the Election of Public Officials and the Prevention of Unlawful Election, and Article 69 of the Local Tax Act / [3] Article 250 (2) of the Act on the Election

[1] [3] Supreme Court Decision 98Do1992 delivered on September 22, 1998 (Gong1998Ha, 2637) / [1] Supreme Court Decision 96Do977 delivered on June 28, 1996 (Gong1996Ha, 2432), Supreme Court Decision 96Do1741 delivered on November 22, 1996 (Gong197Sang, 137), Supreme Court Decision 99Do636 delivered on April 23, 199 (Gong199Sang, 1100)

Defendant

Defendant

Law Firm Magsan, Attorneys Park Gyeong-song et al.

Gwangju High Court Decision 99No227 delivered on August 26, 1999

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

The grounds of appeal are examined.

1. As to the campaigning against a candidate

A. The summary of the facts charged of the crime of aiding and abetting a candidate, which the court below found guilty, was a candidate for the market in the local election of Dong-si local government on June 4, 1998, and on May 23, 1998, for the purpose of preventing Nonindicted Party 1, a competitor, from being elected at the joint speech meeting of the market candidate held at an elementary school athletic site on May 14, 1998, the candidate for Nonindicted Party 1, "on March 31, 1998, Nonindicted Party 1, as of March 31, 1998, due to the unpaid arrears of resident tax of KRW 1,501,260, the delinquent amount attached to the present additional dues was KRW 1,594,30,000. Even if Do Council members were, taxes amounted to KRW 300,000,000, to the market for the purpose of 300,000 won will be repaid immediately after the end of this age, and slander the candidate 1."

B. The court below decided that Non-Indicted 1's above speech or violation of the Act on the Control of Illegal Check, etc. was made to disclose his substance to Non-Indicted 1 without leaving the truth. According to the above Non-Indicted 1's statement, since his wife was operated directly for seven years before and after the above Non-Indicted 1's wife, there is no evidence to prove that Non-Indicted 1 was operating Aluminum agency in his wife's name. Further, the above Non-Indicted 1 or his wife did not evade the above resident tax, but did not pay the above resident tax within the payment period of March 31, 1998, because the above non-Indicted 1 or his wife was not the purpose of evading the above resident tax, and there was no disadvantage added with additional dues. The defendant's decision that the non-Indicted 1's campaign speech or his wife did not violate the Act on the Control of Public Official Election and Guarantee of Secrecy for the purpose of guaranteeing taxpayer's secrecy in tax information, and thus, it is difficult to obtain the above information about the candidate's business or candidate's identity.

This part of the grounds of appeal cannot be accepted.

C. However, in the case of slandering a candidate under Article 251 of the Public Official Election Act, the alleged facts are consistent with the truth in view of the substance and nature thereof, as a whole, and are objectively related to the public interest in light of its substance and nature, and an actor also has the motive to indicate such facts for the public interest. Even if the public interest is not superior to the private interest, both parties exist at the same time, and if reasonableness is recognized, illegality shall be excluded pursuant to the proviso to the same Act (see, e.g., Supreme Court Decisions 96Do977, Jun. 28, 1996; 96Do1741, Nov. 22, 1996).

The court below determined that, in light of the fact that the above facts in arrears with resident tax are taxation information that the defendant who is a tax official obtained on duty for the purpose of imposing or collecting local taxes and that the facts stated in the defendant's above statement are illegal acts that go beyond the scope of freedom of expression under the Constitution or election campaign under the Public Official Election Act, and the various circumstances as mentioned above, etc. in light of the above facts, the public interest, such as provision of tax information necessary for the judgment of the voters, is extremely small or is not allowed under the Local Tax Act, and there is no substantial nature between the defendant's illegal disclosure of tax information and the defamation of the other candidate, and the private interest, such as the other party's success and his election, is not an important motive, and thus, it does not fall under the proviso of Article 251 of the Public Official Election Act.

However, according to the records, it can be known that the above non-indicted 1's wife's local tax delinquency as alleged by the defendant complies with objective facts, and also the fact that the wife's local tax delinquency, which constitutes the candidate himself/herself or a community of living, is a material for criticism or evaluation of the candidate's social activities, and can be a material for determining his/her quality, compliance, and public service eligibility. Thus, it is objectively public interest.

In addition, as recognized by the court below, even if the defendant expressed a certain exaggeration or exaggeration in light of the context before and after the time when considering the above fact in arrears, and used a position that can access the local tax taxation data as a tax official, the public interest that the defendant expressed the above fact at the joint speech meeting held by the election commission was a significant motive for providing sufficient data on the quality of the counter-party candidate to the right holder so that he would exercise the appropriate right to vote by lowering the evaluation of Non-Party 1, the counter-party 1, who is the party candidate, and that it is reasonable between the public interest and private interest in light of the contents of the above fact expressed by the defendant.

Therefore, the Defendant’s statement of the above delinquency in local tax as to Nonindicted 1, the counter-party candidate, in this case, constitutes true facts when considering the whole, and thus, the illegality is excluded pursuant to the proviso of Article 251 of the Public Official Election Act.

Article 69 of the Local Tax Act cited by the court below is a provision that mainly aims at protecting the privacy and personality rights of taxpayers by prohibiting the disclosure of local tax information acquired by a tax official in the course of performing his/her duties without justifiable grounds. Thus, even if the act of slander that may infringe on the privacy and personality rights of a candidate, considering the legislative intent of the proviso of Article 251 of the Public Official Election Act, which permits the act of slandering under certain conditions by the public interest of promoting the appropriate exercise of voting rights by a right holder in an election for public office, it shall not be deemed that there is no reasonableness between the public interest and private interest solely on the ground that the defendant who published the delinquent local tax on a candidate for public office is in the position of

Nevertheless, the court below's decision that found the defendant guilty on the ground that the defendant's act does not fall under the proviso of Article 251 of the Public Official Election Act is erroneous in the misunderstanding of the legal principles of the proviso of the above Article, which affected the conclusion of the judgment. The

2. As to the publication of false facts

A. The summary of the facts charged of the crime of publishing false facts found guilty of the court below is as follows: the defendant's second-time local election market candidate and the non-indicted 2, who was the candidate for the second time local election, was elected on the 05:30 on June 2, 1998 at the Suhyup Cooperative Co., Ltd. located in the Magdong Sinsan-si, Sinsan-si on the 205:30 on June 2, 1998, the fact that the above non-indicted 2, although the non-indicted 2 did not resign or resign from the candidate, the non-indicted 2, who was the candidate of the above non-indicted 2, would resign from the candidate through the press conference. In addition, the fact that the above non-indicted 2, a candidate for the above non-indicted 2, who had not expressed his intention to resign from the candidate through the press conference on the 10:00 on the same day, did not agree with the above non-indicted 2, a single candidate for the two-party 2, despite having agreed with the above non-indicted 2,".

B. In order to establish a crime of publishing false facts under Article 250(2) of the Public Official Election Act, the crime of publishing false facts must first be published. Here, the term " false facts" means matters inconsistent with the truth, which are sufficient enough to cause the elector to correct correct judgment on candidates, but it does not constitute merely an expression of opinion with simple value judgment or evaluation (see Supreme Court Decision 98Do1992 delivered on September 22, 1998). In order to distinguish between whether a statement is a true statement or an expression of opinion, it shall be determined in consideration of the overall circumstances, such as the ordinary meaning and usage of language, the context in which the expression in question is used, the possibility of proof, and the social situation in which the expression was made.

The court below decided on May 198 that the non-indicted 2, 3, 4 and the defendant et al., who were the candidates belonging to the non-indicted 2, 3, 4 et al. were gathered and agreed to make efforts to simplify the camping candidate, but did not reach the conclusion regarding which method the candidate should be unified; the non-indicted 3, 4 and the defendant discussed on the 23th of the same month, but without the conclusion, they did not attend the meeting on the ground that the non-indicted 4 were convened; the above non-indicted 2 did not attend the meeting on the 26th of the same month; the defendant would undergo the public opinion poll of the gallon; the non-indicted 3 would not unilaterally resign without the consent of the related party; the above non-indicted 2 also opposed to the above non-indicted 3's single fact-finding decision without the consent of the election countermeasure agency at the time of candidate's candidate's candidate's candidate's candidate's resignation or resignation; and concluded that the above non-indicted 2's invitation was not permitted through the above 10th of the above 19th of the defendant.

In addition, according to the records, although the above non-indicted 2 did not promise to resign the candidate against the defendant, and the defendant did not intend to resign from the candidate, the defendant made a statement that the non-indicted 3 candidate would resign from the candidate on June 2, 1998 at the Suwon Cooperative Joint Organization at around 05:30 on June 2, 1998, and then the non-indicted 2 candidate would resign from the candidate. The purport of the statement is that the statement will lead to the non-indicted 3 candidate and the non-indicted 2 will resign from the candidate. In light of the social situation as seen above, the above statement at the Suwon Cooperative Joint Organization of the defendant at around 10:0 after about 5 hours, it is not a defendant's mere opinion or expectation, but it is consistent with the specific conclusion of the candidate's single resignation of the candidate, or detailed facts related to the non-indicted 2 candidate's resignation plan, and it is reasonable to see that the statement is consistent with the above non-indicted 2 candidate's right to resign or the candidate's opinion as a single statement.

In the same purport, the judgment of the court below that each of the above statements made by the defendant constitutes a publication of false facts is just, and there is no error of law such as misunderstanding of legal principles as to false facts or incomplete hearing under Article 250 (2

This part of the grounds of appeal cannot be accepted.

C. Examining the reasoning of the judgment below in comparison with the records, the judgment of the court below that recognized that the defendant was aware of the falsity, is just, and there is no violation of the rules of evidence or misconception of facts due to insufficient deliberation, etc.

This part of the grounds of appeal cannot be accepted.

3. However, the lower court found the Defendant guilty of both the facts charged in the instant case’s indictment and the publication of false facts, and rendered a single sentence by deeming the Defendant to constitute a substantive concurrent crime under the former part of Article 37 of the Criminal Act. Therefore, the lower court’s judgment is reversed in its entirety and remanded the case to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating judges.

Justices Song Jin-hun (Presiding Justice)