[1] The meaning of election campaign under Article 58 (1) of the Public Official Election Act and the criteria for its determination

[2] The case holding that the act of sending text messages to publicize a specific preliminary candidate during the process of selecting a candidate for a National Assembly member constitutes an election campaign under the Public Official Election Act, and constitutes an election campaign by unlawful means, and constitutes a crime of distributing documents,

[1] Article 58 (1) of the Public Official Election Act / [2] Articles 58 (1) and 93 (1) of the Public Official Election Act

[1] [2] Supreme Court Decision 2005Do301 Decided October 14, 2005 (Gong2005Ha, 1818) / [1] Supreme Court Decision 2005Do5105 Decided August 25, 2006, Supreme Court Decision 2007Do3468 Decided October 11, 2007, Supreme Court Decision 2008Do6232 Decided September 25, 2008 / [2] Supreme Court Decision 2006Do7847 Decided February 22, 2007

Defendant

Defendant

Seoul High Court Decision 2008No2272 Decided December 26, 2008

The appeal is dismissed.

The grounds of appeal are examined.

The election campaign under Article 58 (1) of the Public Official Election Act refers to all acts that are necessary for or favorable to the winning or defeat of a specific candidate and that can be objectively recognized by the intention of promoting the success or defeat in the election. It is distinguishable from the preparation of an election campaign or ordinary political party activities for an internal or procedural preparation for an election campaign in the future. However, in determining whether a certain act constitutes an election campaign, it shall be determined not only in the name of the act, but also in the form of the act, i.e., the time, place, method, etc. of the act, and shall be comprehensively observed in order to determine whether the act is an act accompanying the purpose of promoting the success or defeat of a specific candidate (see Supreme Court Decisions 2005Do301, Oct. 14, 2005; 2008Do6232, Sept. 25, 2008).

The court below affirmed the judgment of the court of first instance which convicted the defendant of the crime on the ground that the act of sending the text message of this case constitutes an election campaign accompanied by the purpose of promoting the election of the non-indicted in the 18th National Assembly member election in the 18th National Assembly member election since it is reasonable to view that the act of sending the text message of this case is not merely an ordinary political party activity for the recommendation of the non-indicted candidate in the 18th National Assembly member candidate in the 18th National Assembly member election, but also an election campaign accompanied by the non-indicted in the 18th National Assembly member election. In light of the above legal principles and records, it is just to find the above fact-finding and judgment of the court below, and there is no error of law such as incomplete deliberation, mistake of facts due to the violation of the rules of evidence, misunderstanding of legal principles as to the Public Official Election Act, etc., as otherwise alleged in the ground of appeal.

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

Justices Kim Young-ran (Presiding Justice)