Defendant

Defendant

Salycera

Attorney Park Jae-hwan (Korean)

Gwangju District Court Decision 2010Gohap281 Decided September 3, 2010

The part of the judgment of the court below against the defendant is reversed.

The defendant shall be innocent.

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

1. Summary of grounds for appeal;

A. misunderstanding of legal principles

On June 2, 2010, the Defendant sent text messages to the Nonindicted Party’s election campaign manager, who was a preliminary candidate, prior to an election of the head of the Dong-dong Local Election, using the Nonindicted Party’s text delivery service site on which the Nonindicted Party was admitted under the Nonindicted Party’s name under the direction of the Nonindicted Party. Therefore, the act of sending text messages ought to be deemed a lawful election campaign by the preliminary candidate. However, the lower court convicted the Defendant of violating the Public Official Election Act due to the Defendant’s unlawful distribution of documents, etc. under the law.

B. The assertion of unfair sentencing

Even if the defendant is found guilty, the sentence imposed by the court below in light of the circumstances of the crime of this case (the fine of 1.5 million won) is too unreasonable.

2. Judgment on the Defendant’s assertion of misapprehension of legal principles

A. The judgment of the court below

In light of the fact that Articles 60-3(1)7 and (2) and 82-4(1)3 of the Public Official Election Act separately stipulate election campaigns for which a preliminary candidate or a person other than a candidate is allowed, and limiting only five persons who are entitled to transmit election campaign information using text messages to preliminary candidates or candidates by means of automatic broadcast communication using computers and computer-based technology, the lower court determined that even if the Defendant, an election campaign manager, sent text messages to the Nonindicted Party, a preliminary candidate, pursuant to the direction of the Nonindicted Party, even if he sent text messages, such acts of the election campaign manager do not constitute an election campaign for a preliminary candidate.

B. The judgment of this Court

According to the evidence duly adopted and examined by the court below, the defendant was an election campaign manager of the non-indicted who was registered as a preliminary candidate prior to the election of the head of the ○○○○○○○ local election campaign in the Dong-dong city, which was held on June 2, 2010, and the defendant was an election campaign manager of the non-indicted who was registered as a preliminary candidate. On March 27, 2010, the defendant operated the computer in the election campaign office of the non-indicted in Gwangju (hereinafter omitted) under the direction of the non-indicted, and contacted the non-indicted, and sent a text message to 38,406 to the non-indicted, requesting the support of the non-indicted, and sent it to 38,406 to the electorate. The defendant's sending of the above text message constitutes four times in the frequency of sending text messages permitted to the preliminary candidate or candidate, and the expenses for sending the text message was indicated in the name of the non-indicted person's election expenses's disbursement of election expenses, and the fact that the non-indicted number was assigned.

However, in light of the fact that “the act of transmitting election campaign information by means of automatic broadcast communications using computer or text messages only five times” which allows candidates or candidates to engage in election campaign is comprised of a series of processes, such as subscription to text messages, preparation of text messages, entry of other party’s cell phone numbers, and Turkey, which are the last stage of computer operations. Therefore, the meaning of election campaign using text messages can be included in five times if a candidate or candidates’ text messages are sent according to instructions and consent, rather than five times if a candidate or candidates sent text messages to the National Assembly by means of an election campaign using the same distance as that of a candidate’s 6th election campaign by means of automatic broadcast communications. Furthermore, it is apparent that the provision of the Public Official Election Act does not include five times if a candidate or candidates sent text messages to the National Assembly by means of an election campaign using the same distance as that of a candidate’s 6th election campaign by means of automatic broadcast, or by means of an election campaign using the same distance as that of an election campaign using a candidate’s computer or computer.

Therefore, it is reasonable to view that the Defendant’s sending of the election campaign information by means of automatic broadcast communication using computers and computer technology within five times prescribed by the Public Official Election Act in order to help the Nonindicted Party, who is a preliminary candidate for the election of ○○ head of the Gu, is an election campaign act of the Nonindicted Party permitted to the above Nonindicted Party pursuant to Article 60-3(1)7 of the Public Official Election Act (i.e., if a preliminary candidate or the candidate does not interpret it only, for example, a preliminary candidate or the candidate joined a letter delivery service site in his name and written text messages only, but if the Defendant only made the UN Turkey, which is the last stage of computer operation without any meaning, the act of sending the text messages is not included in the frequency of restriction, and the election campaign manager is punished as a violation of the Public Official Election Act). Therefore, the Defendant’s assertion that points out this is reasonable.

3. Conclusion

Therefore, since the defendant's appeal is well-grounded, the part of the judgment of the court below against the defendant is reversed pursuant to Article 364 (6) of the Criminal Procedure Act and it is decided as follows.

The summary of the facts charged of this case is that the defendant, who is the election manager of the preliminary candidate for the election of the head of ○○○ head of the Gu, sent 38,406 copies of text messages on behalf of the non-indicted on behalf of the above non-indicted 38,406 on behalf of the non-indicted 38,406, using the letter delivery service site to the non-indicted 38,406, and as seen in paragraph 2 of this case, the defendant's act was conducted under the direction of the above non-indicted 3, and it is reasonable to judge the non-indicted 3 as an election campaign act. Therefore, since the facts charged in this case are not a crime,

The judge's chief of the district court (Presiding Judge)