2016No4127 Violation of the Public Official Election Act

1. A;

2. B

Defendant A and Prosecutor

Court of Law (prosecution), leapju, Lee Dong-dong, Kim Jae-hwan (Court of Law)

Law Firm E (for Defendant A)

Attorney G

Attorney C, D, and FP (for Defendant A)

Attorney F Q (for defendant B)

Suwon District Court Decision 2016Gohap501 Decided December 15, 2016

July 21, 2017

All appeals filed by Defendant A and Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant A: Error of facts and misapprehension of legal principles did not provide rice to the members of the mountain conference after being provided by Defendant B for himself; Defendant A’s speech is nothing more than a new virtue or is merely an ordinary political activity permitted under the Public Official Election Act, and cannot be inferred for the purpose of promoting an election from the elector’s point of view. Thus, it cannot be viewed as an election campaign. Nevertheless, the lower court’s judgment that recognized Defendant A’s violation of the Public Official Election Act by means of prior election campaign is unreasonable.

(b) Prosecutors;

1) misunderstanding of facts and misapprehension of legal principles

A) Violation of the Public Official Election Act due to the Defendants’ contribution act

Under Article 112(1) of the Public Official Election Act, the election district concerned, which is a premise of a contribution act, cannot be deemed to coincide with the election district stipulated in the current list of the local constituency districts for the National Assembly members, and is called a geographical district in which a candidate intends to withdraw from an election to be held in the future. Therefore, the concept of such election district is irrelevant to whether the previous list of the districts for the National Assembly members has lost its validity due to the Constitutional Court’s decision that is inconsistent with the Constitution of the Constitutional Court. Nevertheless, the judgment of the court below that acquitted the Defendant of this part of the facts charged on the ground that there

B) Violation of the Public Official Election Act due to Defendant A’s publication of false facts

For the following reasons, the lower court’s judgment that acquitted the Defendant on this part of the charges can be recognized as a crime of publishing false facts.

(1) On February 29, 2016, Defendant A expressed in a decent manner a content inconsistent with the objective fact that “CI first opposed AD (hereinafter “AD”) prior to the first time.” As such, the said speech constitutes a publication of false facts and constitutes a publication of false facts, and can be deemed that Defendant A was aware of the falsity.

(2) In addition, it is not consistent with objective facts that Defendant A made a statement to the effect that “AD had opposed to AD prior to the proposal of AD transfer” on March 10, 2016, the interview interview part constitutes a publication of false facts and constitutes a publication of false facts, even if it can be seen that the important part was false in light of the overall statement, and thus, the above Defendant appears to have been aware of the falsity to Defendant A.

2) Unreasonable sentencing

The punishment sentenced by the court below against Defendant A (the fine of KRW 900,000) is too unfluent and unfair.

2. Judgment on Defendant A’s assertion

A. The judgment of the court below

Comprehensively taking account of the following facts and circumstances acknowledged by the evidence duly admitted and examined by the court below, Defendant A received rice from Defendant B for himself and provided it to the members of the said mountain conference; Defendant B cannot be deemed to have provided rice regardless of Defendant A; and the above remarks made by Defendant A during the provision thereof are sufficiently recognized as election campaign.

① On February 13, 2016, at the time when the 20th total line was set up, Defendant A attended the 'TT mountain conference' in which the residents of Ldongs who will belong to the 50 '0' constituency from the Si located in approximately 50 kilometers away from the Si ( particularly 1 Gu) they want to come.

② Defendant A attended the event of the said mountain conference with X that is registered as his election campaign manager at the 20th total line, and during the event of the said mountain conference, the members of the mountain conference and AD transfer, the use of the site for sericultural species, etc.

It divided dialogues on the essential political issues.

③ On the other hand, at around 13:40 on the day of the instant case, Defendant B received contact from Defendant A and arrived at the instant site at around 13:50. Defendant B appears to have been aware of Defendant A to the extent that he was able to arrive at the instant site at approximately 10 minutes after receiving Defendant A’s telephone even though he was one of the other daily activities and meals. After the arrival of Defendant B, Defendant B introduced Defendant B to the executives of the mountain conference.

4. While Defendant B divided conversations with some mountain members, Defendant B asked “A, the president of the mountain bat of the mountain bat,” hereinafter “R rice bat.” As Defendant B said, it would be said that Defendant A would drink rice for public relations purposes and promote the rice. Defendant A also knew that Defendant B’s order for rice was given due to the division of conversations between Defendant A and some mountain bat.

(6) 피고인 B은 주문한 쌀이 도착하자 AA에게 쌀 1포를 증정하는 행사를 거행하였다. 이어서 피고인 A가 확성기로 "우리 B 시장님이 특별히 추천한 DX 쌀, 이거를 각 가정에 한 포씩 드리는 것은 올해 여러분이 마음속에 담아뒀던 모든 소망, 다 이루어지리라 하는 축언이라고 생각하는데 여러분 동의하시면 박수 한번! 그리고, 우리 R 시장님은 저하고 정치의 모든 비전과 꿈이 같은 사람이에요"라고 산행참가자들에게 모두에게 쌀이 제공된다는 사실, 쌀을 제공하는 의미, 피고인 A와 피고인 B의 관계 등에 대해 발언하였다. 특히 피고인 A는 전원에게 쌀을 나눠준다는 사전 공표가 없었던 상황임에도 먼저 나서서 쌀을 각 가정에 1포씩 드린다고 공언하였다. 실제로 피고인 A의 확성기 발언으로 쌀을 1포씩 배부받는다고 인식한 산행 참가자들도 있었다.

⑥ 특히 이 사건 발언 내용에는 "앞으로 저도 이... 우리 125만 시민에게 우리 L동 7만 우리 동민에게 가장 도울 수 있는 길이 뭔지 오늘 주시는 쌀을 곰곰이 씹어가면서 생각 많이 하겠습니다"는 등 단순한 인사말을 넘어서 쌀을 제공하는 의미, 자신의 정치적인 비전, L동 주민들을 위한 포부 등이 포함되어 있었다.

7) In the local election in 2014 local election under the same political party, Defendant A and Defendant B agreed with Defendant B as the candidate for the R market as the candidate for the K market. Defendant B gifts DX rice to Defendant A around the New Year of 2016.

8) With respect to rice offered to the participants in the mountain, five kilograms of rice are more than 45 grams (one grams, 18,000, a total of 810,000 won) (50 grams of rice are produced and distributed in advance in the case of distributing rice for publicity to unspecified general public, and 4,5,8,10 grams of rice are supplied in the case of distributing rice for publicity of the nature of gifts to a specific person, such as R viewing visitors or business-related persons, and 4,5,8,100 grams of rice in the case of distributing rice for publicity to the general public.

① Defendant B was irrelevant to the event of this case, and was present at the event at the meeting of the said mountain conference in accordance with the predetermined schedule, rather than attending the event of the said mountain conference. However, even according to the aforementioned evidence, it is difficult to find reasonable grounds for Defendant B to provide members of the mountain conference by ordering Defendant B to bring a considerable amount of rice at the event site. Rather, due to Defendant A’s invitation, it is highly probable that Defendant A would have increased rice to the participants of the mountain conference who did not have any one-day type of rice that was put in S for Defendant A. This is true even if Defendant B had the purpose of promoting rice.

① Ultimately, Defendant A provided rice from Defendant B, who is a political party, such as the R market interest, to a member of the mountain conference, and it is reasonable to deem that Defendant A made the aforementioned remarks that contain his political comments during that process, and that such remarks constituted an election campaign.

B. Judgment of the court below

1) The term “election campaign” refers to an act that can objectively be objectively recognized for the purpose of promoting the election or defeat of a specific candidate in a specific election. Determination of whether an act constitutes such act ought to be made from the perspective of a State agency or a legal expert, rather than from the perspective of the State agency or legal expert, on the basis of the specific situation at the time of the act. As such, whether an elector, who has experienced the act in question, rather than closely analyzing the organic relationship between the act in question or emphasizing legal meaning and effects, can have known of such intent in the situation at the time of the act. Such intent should be determined not only by the express method such as requesting the support of the act in question while expressing the intent to participate in a specific election, but also by the case where the intention to participate in the election or defeat is easily inferred from the perspective of the elector’s point of view in view of the objective situation at the time of the election. Whether an act with such intent is a mere act, but also by the time and method of the act in question should be determined depending on the period and method of the act in question.

In light of the fact that the same act can be perceived differently from the elector’s perspective as to the relevant election, the one can be recognized as having an intention to promote the election or the defeat in election in the relevant election through other objective circumstances without express expression (see, e.g., Supreme Court en banc Decision 2015Do1812, Aug. 26, 2016). Furthermore, in a co-offender relationship that two or more persons jointly process in a crime, the one does not require any legal penalty, and the one that two or more persons jointly process in a crime to realize the crime is a combination of intent to jointly realize the crime. Even if there was no overall mother process, if the two or more persons jointly cooperate with the intention to jointly realize the crime, the one is established, and even if the one did not participate directly in the act, the one who did not participate in the act is held liable as a co-principal (see, e.g., Supreme Court Decision 201Do7319, Jul. 28, 2011).

2) Examining the circumstances established by the evidence duly admitted and examined by the court below in light of the above legal principles, the defendants can be deemed to have provided the above mountain members with one rice in secret conspiracy at the latest until the defendant Eul directly conferred a rice 1 shot. The statements made by the defendant A to the above mountain members in the course of providing them are objectively recognized by the purpose of promoting the election of the 20th National Assembly member election of the defendant A in advance, beyond the level of a simple suadial or ordinary political activity. The decision of the court below to the same purport is just, and the defendant A's above assertion is without merit.

3. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

A. As to the violation of the Public Official Election Act due to the Defendants’ contribution act

1) Relevant legal principles

Article 112 (1) of the former Public Official Election Act (amended by Act No. 14073, Mar. 3, 2016; hereinafter the same) defines "contribution" as "the act of providing money, goods, or other property benefits, or the act of expressing intention to provide such benefits, or of promising to provide such things to a person who has relations with the electorate, or an institution, organization, facility, or facilities outside the constituency, even though such person is outside the constituency, or an institution, organization, facility, or facility, or a person who has relations with the electorate, or who has a relation with the elector, such as a person who has a relation with the elector, is indirectly restricted (Article 113), a person who has made a contribution in violation of this provision (Article 114), and a person who has been punished for a contribution act by a third party (Article 257 (1)). In this context, "person who is the other party to the contribution act" refers to a person who has a domicile or temporary residence in the constituency, but is likely to directly or directly affected by the elector's.

Inasmuch as the Public Official Election Act specifies the other party to a contribution act as such through the concept of "relevant election district", a contribution act under Article 112 (1) of the former Public Official Election Act can be established on the premise that it exists at the time of the act. However, since Article 25 (2) of the former Public Official Election Act provides that "the name of the constituency for National Assembly members and its district shall be as specified in attached Table 1" as provided in attached Table 1, it is reasonable to deem that the election district refers to the election district provided in the list of the 1 local constituency for National Assembly members in attached Table 25 (2) of the former Public Official Election Act at the time of the act (see Supreme Court Decision 2016Do20490, Apr. 13, 2017).

2) The judgment of the court below

On October 30, 2014, the Constitutional Court rendered a decision that “The schedule of the election district for the National Assembly members listed in attached Table 1(2) of Article 25(2) of the Public Official Election Act (amended by Act No. 11374, Feb. 29, 2012) does not conform with the Constitution, and the said schedule of the election district for the National Assembly members does not apply continuously until the legislators revised the said schedule as of December 31, 2015 (see, e.g., Constitutional Court Decision 2012Hun-Ma190, Oct. 30, 2014).” However, the National Assembly decided that the schedule of the election district for the National Assembly members became invalid from January 1, 2016 to December 31, 2015, the Defendants’ offering the new schedule of the election district for the National Assembly members as prescribed in Article 25(2) of the former Public Official Election Act cannot be deemed as invalid during the period of election Act amendment.

3) Determination of the immediate deliberation

The lower court’s determination is closely examined in light of the aforementioned legal principles and records.

The judgment is just and acceptable, and there is no error of law by misunderstanding the legal principles on the apparatus, which affected the conclusion of the judgment. The prosecutor’s above assertion

B. As to the violation of the Public Official Election Act due to Defendant A’s publication of false facts

1) Summary of this part of the facts charged

AD located in the NGu was first established in 1954, and the market price has been expanded in 1954, causing noise damage and hindering urban development. Accordingly, the political parties in the Ssi area have proposed AD relocation to the Ministry of National Defense, made proposals to the Ministry of National Defense, participated in the results related to AD relocation projects, and discussed.

Since the election of National Assembly members in Ngu for the first time in 2008, CI continued to implement AD relocation as a pledge, there was no objection to the transfer, and the special election in 2014 continued to promote AD relocation even after it was elected as the 19th National Assembly member in Ngu area as the 19th National Assembly member in Ngu area, and even after it was elected as the 20th National Assembly member in 2016, I prepared AD relocation as a major pledge.

In fact, CI did not oppose AD or publicly announce the dissenting opinion, and there was no lack of any further assertion that CI's 'air force decline' was a ground for objection against AD transfer.

A) On February 29, 2016, Defendant A, at CK restaurant located in CJ on February 29, 2016, sent an interview to the reporter’s question about “AD transfer during the interview,” while visiting the reporter’s question about “AD transfer” at the CK restaurant located in CJ on February 29, 2016, Defendant A published a false fact that the contents of the interview different from the fact in CM medium medium medium medium medium medium medium medium medium medium medium medium medium medium medium medium medium medium medium medium medium medium medium medium medium medium medium medium medium group 3, cN “CN”. Accordingly, Defendant A published a false fact as to CI prepared to leave the 20 large-sized election district in the 20 large group line.

B) On March 10, 2016, Defendant A, at the election office of Defendant A located in the CP around March 10, 2016, talked with the reporter’s question that “ADR transfer promise was received at the time of the 17th National Assembly where Q Q and the CI member, a superior player, protested for the transfer of AD while conducting an interview in relation to the goingout of the 0th election district of the online newspaper at the election office of Defendant A, which was located in the CP, and proposed this Act at the 18th century. At the time of the 17th National Assembly where Q Q, the member of the National Assembly, was represented by the CSS transfer promise at the time of the 17th National Assembly where Q Q had been located, and the contents of the interview different from the fact were posted on the CTS Internet homepage.”

Accordingly, as of March 3, 2016, Defendant A published false facts about CI, which had been registered as a preliminary candidate for CO-party, and is preparing for departure in the 20 election district of the 20th total line.

2) Basic facts

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

A) The installation and transfer of AD was first established in 1954. Since the market price has been expanded thereafter, AD has been demanding the relocation of AD to another area on the grounds that AD may cause noise damage and obstruct urban development by centering on residents around AD. Accordingly, the political parties in S Si area recommended AD relocation to the Ministry of National Defense, or by election campaign promises, and competition has been conducted individually, and competition has been conducted.

B) the 18th National Assembly CU proposal and destruction

(1) On February 12, 2009, Defendant A issued a representative proposal of “CU” by the National Assembly of the 18th National Assembly. Defendant A instructed the investigative agency and the court of original instance to “CV, who was an assistant, to receive the signature of all members of the National Assembly in the area under the above Act”. Since CV has been submitted, Defendant A stated that “CV failed to submit the legal proposal because it has not yet signed it.” Therefore, Defendant A recommended CI by telephone, and thereafter CI has submitted the legal proposal.”

(2) In a factual confirmation, CV sent a letter of request for joint launch of the above Act to Defendant A at the direction of Defendant A, and separately from this, the member's office in the same S area, and the member's office in Gwangju area suffering from damage to the military airfield was directly visited and asked for explanation and notification as to whether they were jointly made. However, as CI and CW did not sign a joint launch in the S area, Defendant A reported to Defendant A. The member of the S area's National Assembly would be able to obtain opinions even if he was aware, and Defendant A recommended the above two members to directly make a call, and the above two members signed and signed to submit the above bill.

(3) According to the above list of proposed bills, it can be confirmed that CI has signed the last day of the date among the proposed 32 members.

(4) Although the above bill was passed a resolution of the legislative review board on February 13, 2012, it was discarded on May 29, 2012 to the expiration of the term of office of the National Assembly of the 18th National Assembly. According to the SX Camp’s joint name statement, the above bill was rejected and was not presented at a plenary meeting.

C) the implementation of CI’s “transfer to AD of an emergency runway”;

(1) On August 11, 2010, CI reported that it dealt with the internal agreements on the transfer of an emergency runway to AD through a non-disclosure meeting with K, the head of K, the head of the Air Force Planning and Management Staff, and the head of the non-disclosure meeting.

(2) On August 24, 2010, the first proposal of the policy debates held by CI, DB, the first proposal of the policy debates, presented efficient ways to transfer emergency runways to AD. CI, in the above debate, criticizes that the opposition of the Defendant would raise a problem without presenting a 'defensive against the Defendant’s opposition. It was reported that CI criticizeds that it is ‘the behavior of the participating government, which is outside of the Republic of Korea, without any alternative, to show the behavior of the participating government.’

(3) On January 10, 2010, 15, CI requested the Air Force Chief of Staff to give a definite answer on the transfer of an emergency runway to AD in the inspection of state administration.

(4) CI promoted the transfer of an emergency runway to AD from the 19th total line to its major achievements.

D) the opposition to the transfer of an emergency runway AD

(1) From August 22, 2010, Defendant A expressed his opposing position on the transfer of an emergency runway AD several times.

(2) According to the article of the Korean Japan DC, the DDA, which is the Defendant A, S market, and CX market, stated on August 22, 2010 that “The measures for the relocation of the emergency runway AD, which is recently discussed, are an erroneous prescription that takes a large amount of budget into consideration, and that it is a dangerous phenomenon that may make the entire transfer of AD as a movable property.”

(3) The article provides that "If an emergency runway is moved to the inside of the military unit, the transfer of AD may be deemed more impossible."

(4) From 2002 to 2010, DG, who was in the service of the S market and worked as an election countermeasure committee member for CI from the 2008 total lines and the 19th total lines in 2008, stated that “Where the emergency runway is transferred to AD, the transfer of AD might become more difficult.”

(5) SH, in the lower court’s decision, stated that “If an emergency runway is transferred from the budget of KRW 20 billion to AD, there was a person opposing that moving an emergency runway to AD from among the former Ssiwons belonging to the COA was moving to the Ministry of National Defense. At around 2010, CI expressed that “AD relocation was a large number of residents who thought that the emergency runway will collapse.”

(6) ADJ, as well as DI, who was a Ssiwon under the same jurisdiction as CI, stated in the original court that DJ also, a member of the same Party, who was a neighboring local resident of AD, that the transfer of an emergency runway to AD in order to avoid the high altitude restriction around AD would waive AD transfer.

E) CI’s speech on the transfer of an emergency runway, etc.

(1) At the Government inquiry on June 15, 2010, CI made various commitments as countermeasures for residents. It will transfer AD, and will receive compensation for noise damage. Even if it is not possible to transfer AD under the national security, it is arguable by the end to the end to eliminate the difficulty of residents. This is because there is a difference in the difficulty of the residents. This is because there is a difference in the people who instigate to do so. This is because there is a pain to the people who are responsible for it. It is so that the reality is that there is a pain to the people who instigate to cope. If this reality harms our national security awareness."

(2) According to the articles of Central and Central DK and DL DK, CI stated that “AD is practically impossible to transfer the AD whole as it is asserted by the Defendant as the last base of the Air Force Compensation Air Force.”

(3) On August 30, 2010, CI written to the flag adviser a statement to the effect that the opposition to the transfer of an emergency runway is merely a approximate disturbance.

(4) CI expressed that “In reality, AD transfer is necessary and difficult during a monthly period of time at DN 2010. National security issues are all the burden of us. However, emergency runways are different. However, emergency runways are different from emergency runways: (a) it is possible and real security is not significantly affected by the cancellation of an emergency runway; (b) it is doing its best; and (c) “(a) it is thought that there is no harsh opinion of Defendant A, who is more strong before AD than the cancellation of an emergency runway.”

(5) According to the interview held by DL DO, CI revealed that “The transfer of a shotho, etc. to another place is impossible for national security. AD is a false terminal dispute.”

(6) According to the notice dated March 19, 201, CI transferred to AD for many reasons.

The answer was made in reality that it was difficult to say.

F) Complaints and disposition results related to the articles of the medium medium medium medium medium medium news in the instant case

(1) On February 29, 2016, a mid-day journalist CL made a recording with Defendant A while conducting an interview, and then made and posted the above CMF news articles on the basis of the content of the recording. In the above article, the Defendant’s question that “AD has been continuously promoted” was “(1) a member of the CI Assembly, who first opposed to the question of the reporter. ② A member of the CI Assembly was aware that it was not signed at the time of the first enactment of the bill (hereinafter “the above article”).

(2) While filing a complaint with respect to the contents of the above article, CI argued that CI made a false statement that "I knew that CI would not sign when it first submitted AD transfer-related legislation," even though I signed the bill as a joint proposer on the AD transfer of the city, I made a false statement in the interview above BD transfer-related legislation.

(3) The prosecutor who investigated the above case was indicted as to the above part (1) as stated in the facts charged, and (2) the part was not subject to a disposition of non-prosecution for the following reasons.

Defendant A’s assertion that “CI initially signed without immediately signing the bill” was erroneous by the reporter that “I later signed the bill.”

According to the record of recording submitted by the second half-day reporter, it is proved that CI has initially signed the bill at the latest among 32 co-explosions, and there is no evidence to support that CI has otherwise stated that CI has not signed the bill differently from the fact that CI did not have otherwise signed the bill.

○ Facts suspected (a statement made by CI prior to the same interview) (a statement made by CI prior to the same day shall be deemed to have been published by publication of false facts on the same day)

G) Complaints and results of dispositions related to the objection to the instant case

(1) Around March 10, 2016, Q Q Q had an interview with Defendant A at the election office of Defendant A, and published the contents of the interview on the CT Internet website.

The article states that "A member of the COI who is a commercial player is dissatisfied with the transfer of AD" is asserting that "AS is accepted at the time of the 17th National Assembly of the Republic of Korea in which Q Q Q, and the representative of this Act was proposed at the time of the 18th National Assembly. ② The CI member opposed on the ground of the 'AF force degradation'. (other contents omitted) ③ After the CI member responded that "I would transfer the emergency runway to AD and would use tax of 20 billion won." (hereinafter referred to as the 'the article')

(2) While filing a complaint on the contents of the above article, CI asserted that Defendant A made the aforementioned false statement at an interview held in the 1990s where he did not object to AD transfer and did not have intended to transfer an emergency runway to AD and would use taxes of 20 billion won.

(3) The prosecutor who investigated the case in question was indicted as to the above (2) part as stated in the facts charged, and (3) part was not subject to a disposition of non-prosecution for the following reasons.

○ The fact that Defendant A made the above remarks is recognized.

CI, in consultation with the air force and Gyeonggi-do, did not object to the plan to mainly transfer the first-line emergency activation of the national highway of KRW 20 billion and did not intend to use it as 20 billion. However, I asserted that Defendant A made a false statement.

Defendant A promoted the transfer of an emergency runway inside AD, and there is also a fact that the budget of KRW 20 billion has been demanded. Defendant A merely stated such fact, but did not make a false statement.

According to the media reports, the Ministry of National Defense and Gyeonggi-do have promoted 20 billion won from 2010 to AD to move the emergency runway to the 20 billion won by the local PP parties, including Defendant A, can be tweet before AD. However, CI did not object to the civil petition of the abolition of the high altitude restriction around the emergency runway, but it is recognized that CI did not oppose the transfer of the emergency runway and the abolition of the high altitude restriction accordingly.

○ It was merely an expression made to the effect that the political party, which continued to participate in the regional pending issues called the cancellation of the emergency runway, did not object to the plan on the pending issues proposed by the administration, and used the budget required for the implementation of the plan. It was somewhat exaggerated, but it was difficult to regard the contents of the statement as false.

○ There is no evidence to deem that Defendant A made a false statement.

○ Facts suspected (a statement made by CI prior to the same interview) (a statement made by CI prior to the same day shall be deemed to have been published by publication of false facts on the same day)

3) Determination

A) On February 29, 2016, part of an interview conducted on February 29, 2016

(1) Facts of recognition

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

On February 29, 2016, a mid-day journalist CL prepared a news report using a news recording program on the basis of the reading content after having recorded with Defendant A while conducting an interview with Defendant A. On the basis of the contents of the report. The first news report included the contents of CL, which was recorded on a simple basis, and that the contents of the recorded contents were re-written, and the second news report was completed. CL’s first news report (Evidence 5:63 pages of the evidence record) contains the contents that “AD transfer” and “CI did not first object to the first time.”

Defendant A responded to the first question that the title "FR" is "AD," and that the title "AD transfer has been continuously promoted," and that Defendant A responded to the first question that "AD transfer was "(1) member of the CI." (2) It is known that the bill was not signed at the time of initial payment."

At the time of the interview, the CL stated in the trial court that the contents of the article are known to be all the contents of the article at the time of the interview.

(2) Whether the facts are alleged

(A) The term “facts” referred to in the crime of publishing false facts under Article 250(2) of the Public Official Election Act means a report or statement on specific past or current facts, time and space, and the contents of the statement can be proved by evidence, in light of all the circumstances surrounding the expression, namely, the ordinary meaning and usage of the language, the entire contents of the expression, the context where the expression at issue was used, the developments and methods of communication, the other party to the expression, the possibility of proving the contents of the expression, the identity of the speaker and the candidate, etc., in a comprehensive manner, in light of the legislative intent of ensuring the fairness of the election, rather than distinguishing between the statement of fact and the expression at issue from the expression at issue (see Supreme Court Decision 201Do11281, Dec. 12, 2011; 2007Do12848, Jan. 28, 2008).

(B) In addition to the circumstances described below in the above legal principles, Defendant A’s partial statement constitutes a statement of fact, and it cannot be seen as a simple evaluation. The court below’s decision to the same effect is without merit.

Determination is justified.

Considering the contents of ① and ② expressions, overall contents, context, and questioning of reporters, etc. constituting Defendant A’s above remarks, it is highly probable to understand the meaning of the above remarks through a medium medium medium medium medium medium medium news article that “The other party who is linked to a partial speech has opposed before AD when the draft of the Acts was first submitted.” This appears to be able to prove as evidence as a report or statement on the past specific facts.

In addition, at the time of the above speech, the public opinion of SP residents requesting AD relocation has become inefficient, and accordingly, the defendant A and CI have taken the results related to AD relocation projects in their own sense and have been competings, since 2010, there has been a lot of controversy about AD relocation issues, and the 20th National Assembly election was in competition with the election district and the 20th National Assembly election was in competition with the election district, and the transfer of AD relocation has been within the election campaign.

Considering the political situation and background at the time of the above statement, the purport that CI opposed prior to AD at the time of the proposal of the bill seems to have been able to make an accurate judgment on the candidate, and the defendant A seems to have made such a statement in order to deliver or report the fact that I had actually existed to the elector, but it does not seem that CI made such a statement to evaluate the value or level of the position that CI had taken.

(3) Whether the partial statement is false or not, and whether there was an awareness of falsity to Defendant A

(A) “False fact” under Article 250(2) of the Public Official Election Act means a fact that is inconsistent with the truth, and that is sufficient enough to have the elector make an accurate judgment on a candidate. However, in a case where the material part is consistent with the objective fact in light of the overall purport of the published fact, if the material part is inconsistent with the objective fact, it cannot be deemed a false fact even if there is a little exaggeration or exaggeration. Whether a certain expression is false or not should be determined on the basis of the overall increase provided by the elector, comprehensively taking into account the overall purport of the expression, objective contents, ordinary meaning of the used words, method of linking the words, etc., on the premise that the general elector has an ordinary method of expressing the expression (see, e.g., Supreme Court en banc Decision 2011Do3824, Feb. 20, 2003).

In the crime of publishing false facts under Article 250 (2) of the Public Official Election Act, the contents of the actor's intent

In light of the nature of such subjective perception, as long as it is difficult to know or prove the existence of such subjective perception, the existence or absence of such subjective perception ought to be determined by comprehensively taking into account all the circumstances, such as the Defendant’s educational background, career, social status, background of publication, timing of publication, and the effect of the strike objectively anticipated due to the fact of publication (see, e.g., Supreme Court).

See Supreme Court Decision 2015Do7172 Decided August 13, 2015

(B) In addition to the above legal principles, the evidence submitted by the prosecutor alone is insufficient to deem that the evidence submitted by the prosecutor alone proves that Defendant A’s remarks were false or that Defendant A was aware of the falsity of the above remarks. The judgment of the court below to this effect is justifiable.

As seen earlier, Defendant A’s ①’s statement is highly likely to be accepted by the general voters to the effect that “AI member opposed before AD” was “I member when I first submitted a bill.” The prior meaning of “Dissenting” can be included in the concept of “the foregoing opposition” in cases where not only actively expresses another person’s opinion, proposal, etc. but also passively refusing to comply with it.

However, as seen earlier, at the time of Defendant A’s proposing a bill related to AD transfer in the National Assembly on February 18, 2009, CI first signed at the request of the National Assembly member office of Defendant A without signing the above bill as joint proposers. CW, which is a member of the CO such as CI, was later signed in the above bill, and CY, which is also a member of the same party, refused to present the plenary session in the above bill. In addition, CI had been promoted from 2010 to 2010 to promote AD transfer of an emergency runway, and accordingly, Defendant A opposed to this, if the emergency runway was opened in a large amount of expenses, the transfer of CI was practically impossible in national security, but CI criticized Defendant A’s opposition to the transfer of an emergency runway on the ground of this, if he objects to the transfer of the emergency runway in the above bill.

In full view of these circumstances, it is difficult to view that CI first did not respond to the Defendant’s request made before AD to the joint proposer at the time of the proposal of AD prior to February 12, 2009. Thus, it is insufficient to conclude that Defendant A’s statement was false, or that Defendant A was aware of its falsity at the time of the above statement, and there is no other evidence to acknowledge it otherwise.

B) On March 10, 2016, part of the interview.

(1) Facts of recognition

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

In response to the question that the title is "FS", and that "The CI member of the COI who is the superior player is also responsible for the transfer of "AD", the defendant's answer is made as follows.

① At the 17th National Assembly of Korea, Q Q Q, it received CR transfer commitments at the time of the CR and proposed this Act to be represented at the time of the 18th Session. ② At that time, CI member opposed to 'air force degradation'. AD directly ask the Air Force. Since 24 hours and 48 hours have been high, it is impossible to operate a train at all. However, it is possible in Korea-U.S. to keep the aircraft continuously in operation for the last 10 years. It is the position of the Korea Air Force. The developed countries have no adequate airport for the past 10 years, and it is the 17th National Assembly. The advanced countries had been transferred to the Seashore before the 20 years ago, and we seem to have been able to resolve the problem of the 3rd National Assembly member's special election to the 3rd National Assembly member of the 196th Republic of Korea. It seems that the 3rd National Assembly member of the 196th National Assembly and the 3rd National Assembly member of the Ka.

(2) Whether the facts are alleged

In addition to the circumstances described below in the above legal principles, Defendant A’s partial remarks constitute a statement of fact, and cannot be seen as a simple evaluation. The judgment of the court below to this effect is justified.

Considering the following factors: (a) the other party who had opposed to the Defendant’s above remarks: (b) the part of the Defendant’s remarks, in particular, on the grounds of the cI member’s cI member’s cI member’s cI member’s cI member’s cI member’s cI member’s cI member’s cI member’s cI member’s cI member’s cI member’s cI member’s cI member’s cI member’s cI member’s cI member’s cI member’s cI member

In addition, considering the political situation and background at the time of the above statement as seen earlier, it seems that CI opposed the AD prior to the time of the proposal of the bill representative. ② Part of the statement appears to have been made by the elector to the extent that it could mislead the elector to correct the accurate judgment of the candidate, and Defendant A merely made such a statement to deliver or report the fact that it had actually existed to the elector, and it does not appear to have made such a statement to evaluate the value or level of the position that CI took place.

(3) Whether a partial statement is false or not, and whether a defendant A has a false perception

In light of the following circumstances, the evidence presented by the prosecutor alone is insufficient to deem that the evidence presented by the prosecutor alone was proved beyond a reasonable doubt that Defendant A’s second speech was false or that Defendant A was aware of the falsity of the above speech. The judgment of the court below to the same effect is justifiable.

Defendant A’s ① or ④ In light of the entire contents of the remarks, the purpose of the above remarks seems to have emphasized Defendant A’s efforts for the transfer of AD, which is compared to the above, even though CI did not cooperate with the proposal for AD transfer before, or expressed negative opinions on AD transfer itself, and promoted the transfer of emergency runways to AD, which may interfere with it.

In addition, in light of the ordinary meaning of the words "Dissenting", the first time when CI proposed a bill related to AD transfer to the 18th National Assembly, the request of the defendant's National Assembly member office did not sign the above bill as a joint proposer, the last time when CI signed the above bill, and the transfer of AD was impossible for national security in the course of promoting the transfer of emergency runways from 2010 to 300, while CI made a statement that it is impossible for BD transfer to ensure national security, it may be deemed that CI first opposed to the defendant's request that B did not first respond to the request of the joint proposer at the time of the proposal of AD transfer to the 12th National Assembly on February 12, 2009. Considering the characteristics of the interview in which the defendant's answer was made without the plaintiff's prior preparation, it is possible that CI made a mistake in the time when BD transfer was impossible for national security.

In full view of these circumstances, Defendant A’s part of the statement seems to be consistent with objective facts, and it seems that there is a little or exaggerated expression that differs from truth in detail. Thus, it is insufficient to conclude that Defendant A’s part of the statement is false or that Defendant A was aware of its falsity at the time of the above statement, and there is no other evidence to acknowledge it otherwise.

4. Judgment on the prosecutor's assertion of unreasonable sentencing

The lower court: (a) comprehensively taking account of the following factors: (b) Defendant A’s unfavorable circumstances; (c) Defendant A attended a mountain conference, the main member of which he/she intends to run prior election campaign; and (d) Defendant A was in contravention of the legislative intent of the Public Official Election Act aimed at contributing to the development of democratic politics by hindering fair election culture and the development of democratic politics and by preventing any malpractice related to election; (d) Defendant A, as a three member of the National Assembly, was well aware of the purpose of prohibiting prior election campaign; (b) Defendant A did not explicitly express his/her request for support in an election; (c) Defendant A did not use the expression of his/her request for support in an election; (d) Defendant A appears to have provided rice to its members for the purpose of publicity; and (e) Defendant A did not have any criminal power; and (e) Defendant A was sentenced to punishment against Defendant A within the scope of the sentencing guidelines set

Such sentencing of the lower court appears to have been conducted within the reasonable scope of discretion by taking into account the grounds indicated in the argument of the instant case. The circumstances alleged by the prosecutor in the trial of the lower court were sufficiently considered in determining the punishment, and special circumstances that could change the sentencing of the lower court.

No change in circumstances is found. Therefore, the lower court’s punishment is too unjustifiable and unreasonable. The prosecutor’s assertion of unreasonable sentencing is without merit.

5. Conclusion

Since the appeal by the defendant A and the prosecutor is groundless, all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act.

The presiding judge, appointed judge and appointed judge

Judges Mok-si

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