2013No537 Violation of the Public Official Election Act

L**(61*-1*), daily labor

Daejeon Central District** Dong-ho

Both parties

Kim Yong-ran (prosecutions) and Lee Jong-dae (Trial)

Attorney Dong Dong-won, Dasung fever

Daejeon District Court Decision 2013Gohap247 Decided November 7, 2013

February 5, 2014

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

(a) A prosecutor;

이 사건 공소사실 중 2012. 11. 28 .자 및 2012. 12. 9.자 공직선거법위반의 점에 관 하여, 이 사건 게시글에는 '수첩공주 패션쑈', '뽕쟁이 누나', '이런 개만도 못한 자가', '더군다나 이제는 그 딸래미를 대텅으로 모시자구요?'라고 표현함으로써 특정 후보자와 박정희를 폄하하려는 의도가 다분히 존재한다는 점, 피고인이 게시한 글이 전체적으로 사실이라고 하더라도 위와 같은 저속한 표현과 함께 사용함으로써 특정 후보자를 낙선 시키고 피고인이 지지하는 후보자를 당선되도록 하겠다는 사적 이익이 결정적인 동기 로 작용했다고 볼 수 있는 점, 선거에서 후보자에 대한 평가와 정보를 공유하고 이를 표현하는 것은 보장되어야 하지만 위와 같은 모욕적인 비방까지 공익을 위한다는 미명 아래 보호되어야 할 필요가 없다는 점에 비추어, 이 사건 게시글은 그 상당성을 결하 였다.

Nevertheless, the judgment of the court below which acquitted the Defendant of this part of the facts charged is erroneous by misapprehending the facts concerning the public interest or by misapprehending the legal principles, thereby affecting the conclusion

B. Defendant

(1) misunderstanding of facts or misapprehension of legal principles

Of the facts charged in the instant case, regarding the violation of the Public Official Election Act of December 3, 2012, the illegality of the Defendant’s posting of the instant text was dismissed due to the fact that there was an objective circumstance to believe that it was true at the time of posting the instant text.

(2) Unreasonable sentencing

The sentencing of the lower court (a fine of 700,000 won) is too unreasonable.

2. Determination

A. Relevant legal principles

The crime of aiding and abetting candidates under Article 251 of the Public Official Election Act is dismissed in accordance with the proviso of the same Article when the alleged facts are consistent with the truth and are related to the public interest. The phrase “the timely facts conform to the truth” in this context is sufficient when the material facts are consistent with the objective facts in light of the overall purport of the contents. The term “public interest” is objectively related to the public interest in light of its content and nature, and the perpetrator has the motive to indicate the facts for the public interest. However, even if the public interest is not a superior motive to the private interest, the two parties exist simultaneously and the reasonableness thereof is recognized (see, e.g., Supreme Court Decision 2004Do3919, Oct. 27, 2004).

Under a democratic political system, the freedom of the press is the most fundamental right, and it does not mean that it should be sufficiently guaranteed in elections and elections. Since it is necessary and important to verify the candidate’s eligibility in charge of the official duties in election for public office, the freedom of the press for verification of its eligibility is guaranteed, and restrictions on the freedom of the press should be mitigated. For this purpose, in a case where there is any circumstance to suspect the candidate’s illegality or morality, the question shall be raised, and even before the public decision is made, the raising of suspicion shall not be easily obstructed. However, in a case where the raising of suspicion is widely permitted, even if it is revealed that there is no suspicion later, there is a significant consequence that misleads the candidate’s choice in the election for public office, and this result is substantially contrary to the public interest, and thus, the restriction on the freedom of the press should be mitigated. However, in a case where there is a reason to suspect the candidate’s non-performance of the right, it should be limited to 10.10 billion won or more (see, e.g., Supreme Court Decision 2012Da14.

B. Regarding the prosecutor's assertion

Of the facts charged in the instant case, the lower court determined that the illegality under the proviso to Article 251 of the Act on the Election of Public Officials was dismissed, on the ground that the Defendant’s act of posting this part of the instant facts charged, based on the circumstances indicated in its reasoning, constitutes a true fact and is related to the public interest.

Examining the reasoning of the judgment below in light of the records and the above legal principles, it is acceptable to accept the fact-finding and judgment of the court below.

C. As to the Defendant’s assertion

(1) misunderstanding of facts or misapprehension of legal principles

The Defendant asserted the same purport as the grounds for appeal of this case at the lower court, and the lower court rejected the Defendant’s assertion and recognized this part of the facts charged as a crime on the grounds of its stated reasoning.

Examining the reasoning of the judgment below in light of the records and the above legal principles, it is acceptable to accept the fact-finding and judgment of the court below.

(2) The assertion of unreasonable sentencing

The part of the facts stated by the defendant is widely cited by the Twitter or Internet bulletin board at the time, and the defendant has posted his opinion to the extent that he simply added it, and it is advantageous to the defendant that there is no criminal record of the same kind.

However, in full view of the fact that the Defendant’s statement of the fact that the Defendant had not been confirmed through the high performance on the Internet bulletin board led to a significant result that may mislead the right holder’s choice, and that the purpose of the Public Official Election Act should be carried out fairly in accordance with the free will of the people and democratic procedures, as well as the overall sentencing conditions against the Defendant, it cannot be deemed that the lower court’s two sentences are too unreasonable to the extent that they should be reversed

3. Conclusion

Therefore, since the appeal by the prosecutor and the defendant is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The principal offender (Presiding Judge)

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