[1] Whether an act of distributing newspapers carrying articles on election, which are prohibited under Article 95(1) of the Public Official Election Act, constitutes “an act of distributing newspapers carrying articles on election by means other than ordinary methods,” and “other methods than ordinary methods,” means only where one kind of public relations material is distributed to induce support for a specific person (negative)

[2] The case holding that the Defendant, a local newspaper publisher, issued and distributed three times or more of the total number of ordinary publication copies to the newspaper where the contents unfavorable to the candidates of the local government head's election candidate are more than 1/3 of the total number of ordinary publications, which constitutes an act of distributing the newspaper containing articles about the election by means other than ordinary methods under the Public Official Election Act

[1] Article 95 (1) and (2) of the Public Official Election Act / [2] Articles 95 (1) and (2) and 252 (1) of the Public Official Election Act

[1] Supreme Court Decision 200Do4600 Delivered on December 8, 2000 (Gong2001Sang, 327) Supreme Court Decision 2003Do2230 Delivered on September 26, 2003, Supreme Court Decision 2005Do39 Delivered on March 25, 2005, Supreme Court Decision 2004Do8969 Delivered on June 23, 2005 (Gong2005Ha, 1285)

Defendant

Prosecutor

Daejeon High Court Decision 2010No386 decided October 22, 2010

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. Article 95(1) of the Public Official Election Act (hereinafter “Act”) provides, “No person shall distribute or distribute any newspaper, communication, magazine, organ of an institution, organization, facility, or other publication that carries articles related to the election in a way other than ordinary ways, except as provided in this Act.” Paragraph (2) of the same Article provides, “The term “an ordinary distribution” in paragraph (1) of the same Article refers to the publication and distribution in a way other than that in the previous manner and scope.” Therefore, even if there were some intent to increase the number of copies published in a newspaper, etc. for reasons such as expansion of resignation, etc., in light of the contents, number and details of copies of the newspaper published in the newspaper in question, the distribution place, and all other circumstances, if the act cannot be deemed as publication and distribution within the previous method and scope, it shall be deemed that the act constitutes an ordinary distribution method other than that in which the newspaper was published and distributed (see, e.g., Supreme Court Decision 200Do3658, Apr. 26, 2005).

2. The court of first instance maintained by the court below comprehensively based on its adopted evidence. Since the publication of ○○○ newspaper on March 19, 2007, the defendant issued 2 through 3 weeks since the publication of 100 and 200 copies to 3,00 copies from 2,00 copies from 2,00 copies from 2,00 copies from 200 and 3,000 copies from 2,00 copies from 208, and the defendant distributed 10,000 copies from 2,000 copies from 2,00 and 3,00 copies from 3,00 copies from 20 days from 20,000 won from 20,000 won from 20,000 won from 2,000 won from 20,000 won from 20,000 won from 28,000 won from 20,000 won from 208.

3. However, we cannot accept the judgment of the court below.

First, according to the facts acknowledged by the court below, the defendant issued 1,50 to 3,00 copies only before he issued the newspaper on March 19, 2007, which was at issue in this case, from March 19, 2007 to December 28, 2009, and issued 10,00 copies only three times, and the newspaper as of December 28, 2009 was more than three times more than three times. Thus, it is clear that the above newspaper as of December 28, 2009 was published more than three times than normal. Furthermore, since the above newspaper as of December 19, 200, because the defendant and the non-party 1, who were the defendant, were distributed shopping districts, apartment houses, etc., it is evident that the defendant distributed the increased number of copies to the above non-party 20-party 1's newspaper at the place where it was no usual or more than that of the previous one-party 2's newspaper, and it is evident that the defendant distributed it was more likely to do.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)