2017Do6433 Violation of the Public Official Election Act

A person shall be appointed.

Defendant and Prosecutor

Attorney D, E, or CN

Busan High Court (Chowon) Decision 2017No51 Decided April 26, 2017

December 22, 2017

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. As to the ground of appeal No. 1, the term "fact" in the crime of publishing false facts under Article 250 (1) of the Public Official Election Act means a report or statement on facts in the past or present, time and space, and the contents of the statement can be proved by evidence, and it is not distinguished by the term of the former term, but by considering all the circumstances surrounding the expression, namely, the ordinary meaning and usage of language, the entire contents of the expression, the context of the expression, the entire contents of the expression, the context of the expression, the method of delivery, the opposite party, the possibility of proving the contents of the expression, the candidate's status, etc., in consideration of the legislative intent of ensuring the fairness of the election.

For the reasons indicated in its reasoning, the lower court determined that the past facts proving that the Defendant received a “recoverage” or “recoverage” under Article 3(2) proviso of the instant Articles, 3(2), could not be deemed to have presented an opinion merely, and as a whole, the Defendant stated the following facts in detail.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and the evidence duly admitted by the first instance court, the lower court’s aforementioned determination is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the distinction between publication of false facts and expression of opinion, contrary to what is alleged in the grounds of appeal.

B. As to Article 250(1) of the Public Official Election Act regarding the Second Ground for Appeal, it is sufficient that the elector has the possibility to make an accurate judgment on a candidate. Whether an expression is false or not should be determined on the basis of the overall increase that the expression is provided to the elector, comprehensively taking into account the objective contents of the expression, the ordinary meaning of words used, the connection method of phrases, etc. under the premise of an ordinary method abutting on the overall purport of the expression, based on a comprehensive consideration of the overall contents of the expression, under the premise that the elector has an ordinary method in contact with the expression (see, e.g., Supreme Court Decision 2009Do8947, Feb. 11, 2010). Meanwhile, in the crime of publishing false or false facts under Article 250(1) of the Public Official Election Act, it is necessary to recognize that the publication was false or false as the content of the actor’s intentional act, given the nature of such subjective perception, as long as it is difficult to know or prove it outside, the content and content of the Defendant’s 13.

For the reasons indicated in its reasoning, the lower court: (a) construed “the lottery” as “the lottery under the proviso of Article 3(2) of the instant Public Officials Regulations refers to the lottery under the Amnesty Act; (b) so, the content published by the Defendant in the instant name constitutes a false fact that, as the content disclosed by the Defendant is not consistent with objective facts, it constitutes a false fact with which the elector can make an accurate judgment on the candidate; and (c) the Defendant at least perceived that the content published by the Defendant is false.

The Court determined that the case was.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and the evidence duly admitted by the first instance court, the lower court’s aforementioned determination is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on the meaning and public announcement of “the lottery” under the proviso of Article 3(2) of the instant Rules, and on the recognition of Defendant’

2. As to the Prosecutor’s Grounds of Appeal

For the reasons indicated in its holding, the lower court acquitted the changed facts charged of the instant case on the ground that there is no proof of criminal facts.

Examining the reasoning of the judgment below in light of the records, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

Meanwhile, although the prosecutor appealed to the entire judgment of the court below, there is no specific reason in the petition of appeal as to the guilty portion, and there is no reason to object to the appellate brief.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il

Justices Ko Young-han

Justices Cho Jong-hee

Justices Cho Jae-chul