[1] In a case where a Internet user directly connects a link to a web page or individual bulletin by communicating the link, whether the act of posting the link constitutes the transmission of a notice (negative)

[2] Even though it is permitted to engage in an election campaign by means of sending text messages after being newly inserted pursuant to the proviso of Article 59 subparag. 2 and subparag. 3 of the Public Official Election Act, whether the act of transmitting mobile phone text messages by means of automatic broadcast communications constitutes the elements of Article 255 subparag. 5 and Article 93(1) of the Public Official Election Act (affirmative)

[1] Internet link is merely an indication or route of the web page, etc. stored in the web page or website, etc. that the Internet user intends to link on the Internet. Thus, even if the Internet user directly connects the link to the web page or individual bulletin, the act of posting the link does not constitute the transmission of the notice. This legal doctrine applies to the case where the recipient, by stating the link in the mobile phone text message, connects the link to the link.

[2] Article 59 proviso 2 of the Public Official Election Act permits election campaign by transmitting text messages at a time other than the election day, while prescribing that the number of times of transmission of text messages by means of automatic broadcast communications shall be limited to candidates and preliminary candidates, and that of transmission of text messages by automatic broadcast communications shall not exceed five times. Article 256 (3) 1 Item (b) of the same Act restricts the subject and frequency of transmission of text messages by automatic broadcast communications, such as punishing persons who violated the provision. Inasmuch as large-scale transmission of text messages through automatic broadcast communications plays a role similar to those of the media listed in Article 93 (1) of the Public Official Election Act in terms of the scope of radio waves, intensity, and ease of access, regulating these acts is consistent with the legislative purport of the above provision. Moreover, given that the act of transmission of text messages through automatic broadcast communications is carried out by many recipients from ordinary hundred thousand to several times, the act of transmission of text messages by means of automatic broadcast communications constitutes an unfair competition between the candidates under Article 93 (1) proviso 5 of the Public Official Election Act.

[1] Articles 93(1) and 255(2)5 of the Public Official Election Act / [2] Articles 59 subparag. 2 and 3, 93(1), 255(2)5, and 256(3)1(b) of the Public Official Election Act

[1] Supreme Court Decision 2012Do13748 Decided March 12, 2015 (Gong2015Sang, 583) / [2] Supreme Court Decision 2006Do7847 Decided February 22, 2007, Supreme Court Decision 2007Do3940 Decided August 23, 2007, Supreme Court en banc Decision 2007Hun-Ma10101, 2010Hun-Ba88, 2010Hun-Ba8, 2010Hun-Ma173, 191 Decided December 29, 201 (Hun-Gong183, 159)

Defendant

Defendant

Law Firm Sejong, Attorney Jeon Ha-han

Daegu High Court Decision 2015No98 decided April 16, 2015

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

Article 93(1) of the Public Official Election Act (hereinafter “Public Official Election Act”) on the premise that the act prescribed therein is “for the purpose of influencing the election” is prescribed as an element to establish an offense, other than intentional act. Thus, even if the legislative purpose of each of the above provisions is not required to actively desire or finally recognize the purpose and is sufficient for dolusence, it shall be reasonably determined with the mind that the legislative purpose of each of the above provisions is to promote public interest by blocking lawful acts that infringe on the fairness and peace of election. Whether there exists such a purpose should be determined in light of social norms by comprehensively taking into account the social status of the defendant, the relationship between the defendant and the candidate or the political party, the motive and method of the act, the details and form of the act, the social situation at the time of the act, etc. (see, e.g., Supreme Court Decisions 2004Do8716, Mar. 24, 2006; 201Do3447, Jun. 24, 2011).

Comprehensively taking account of the reasoning of the lower judgment and the evidence duly admitted and examined by the lower court, the Defendant, while working for the head of ○○○ Metropolitan City △△△△△△△△, sent the instant text message to △△△△△△△△△△△△△△△△ on December 19, 2014, which was the first day of the application for the registration of preliminary candidates for nationwide local elections, which was approximately two months prior to the first day of the 6th election of the △△△△△△△△△△△△△△△△△△△△△△△△△△△△△, a public official working for the △△△△△△△△△△△△ and the Dong offices within the jurisdiction, 910 mobile phones who was a public official, who was working for the △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, which was located in the new culture of ○○○.

In light of the above facts in light of the legal principles as seen earlier, since the Defendant could be deemed to have transmitted the instant text messages to raise his awareness and support beyond informing that there was a publishing commemorative association, the lower court’s determination that the Defendant sent the instant text messages to have an influence on the election is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on the requirements for “to have an influence on the election” under Article 93(1) of the Public Official Election

2. Regarding ground of appeal No. 2

A. The so-called Internet link is merely an indication or route of the web page or each individual bulletin stored in the web page, website, etc. that the Internet user intends to link on the Internet, and thus, even if the Internet user directly connects the link to the web page or each individual bulletin, the act of posting the link does not constitute the transmission of the notice. This legal doctrine applies likewise to cases where the addressee, by stating the link in the mobile phone text message, made the link connects the link to the link.

In light of the above legal principles, even if a person who received the instant text message from a cell phone to view it by linking it by the Defendant’s presentation of seminars at the publication commemorative meeting, such circumstance alone is difficult to deem that the Defendant sent the instant text message along with the above video. Therefore, the lower court erred by misapprehending the legal doctrine that the instant text message in which a video is linked falls under an evasion of the law as a means of prohibiting this distribution, etc. under Article 93(1) of the Public Official Election Act, by evaluating the act identical to the transmission of the instant text message by the same act as the transmission of the instant text message, based on its stated reasoning.

B. Article 93(1) of the Public Official Election Act provides that “No person shall distribute, post, spread, show, or post the name of a political party, document, picture, printed matter, recording tape, or other things similar thereto, which include any content supporting, recommending, or opposing a political party or candidate from 180 days before the election day to the election day, or which does not conform to the provisions of this Act.” Article 255(2)5 of the same Act provides that a person who violates this Act shall be punished.

On December 29, 2011, the Constitutional Court rendered a decision that “in the event that “other similar things” under Article 93(1) of the Public Official Election Act includes “an act of posting information, such as writing or video, on an Internet homepage or its bulletin board or video room, etc., or transmitting e-mails via an information and communications network, it infringes on the freedom of political expression or the freedom of election campaign by violating the excessive prohibition doctrine” (see Constitutional Court en banc Decision 2007Hun-Ma101, Oct. 29, 201; 2007Hun-Ma8, 2010Hun-Ba8, 2010Hun-Ba8, 2010Hun-Ma173, 191, etc.)” (see Constitutional Court en banc Decision 2011Hun-Ma1, Dec. 29, 2012) and thus, Article 59 subparag. 2 and 3 of the Public Official Election Act was newly established, and thus allowing election campaigns or transmission of text messages by posting prior to an election campaign period.

However, the proviso of Article 59 of the Public Official Election Act permits election campaign by transmitting text messages at a time other than the election day, while prescribing that the number of times of transmission of text messages by means of automatic broadcast communications shall be limited to candidates and preliminary candidates, and that of transmission of text messages by automatic broadcast communications shall not exceed five times. Article 256(3)1(b) of the same Act restricts the subject and frequency of transmission of text messages by means of automatic broadcast communications, such as punishing persons who violated the proviso. Inasmuch as large-scale transmission of text messages through automatic broadcast communications plays a role similar to those of the media listed in Article 93(1) of the Public Official Election Act in terms of the scope of dissemination, intensity, and ease of access, regulating these acts is consistent with the legislative purport of the aforementioned provision. Moreover, given that the act of transmission of text messages through automatic broadcast communications is carried out by many recipients from ordinary hundred thousand to several times, the act of transmission of text messages by means of automatic broadcast communications constitutes an unfair competition between the candidates under Article 93(1)5 of the Public Official Election Act and the same Act.

C. The gist of this part of the facts charged is that the Defendant, who is the head of ○○○○△△△△, sent text messages that may link his own videos to 910 persons by means of automatic broadcast communications in order to influence the election without being registered as a candidate or preliminary candidate in the 6th nationwide local election. This part of the facts charged is that the Defendant distributed documents, etc. by unlawful means.

In light of the aforementioned legal principles, the Defendant’s act of transmitting mobile phone text messages in large volume by means of automatic broadcast communication to influence the election constitutes the elements of Article 255(2)5 and Article 93(1) of the Public Official Election Act. Therefore, the lower court’s decision that found the Defendant guilty of this part of the facts charged is justifiable in its conclusion, and thus, did not err by misapprehending the legal doctrine that affected the conclusion of the judgment.

3. Regarding ground of appeal No. 3

According to the records, the defendant, without awareness of the illegality of the defendant's act in the court below, could have known that the defendant sent the text message of this case to the purport that it was illegal, so the court below omitted such assertion because it did not have judged on the above assertion. However, according to the records, the circumstances alleged by the defendant alone cannot be deemed as having made a serious effort to avoid mistake because the defendant fulfilled his intellectual ability. Thus, it is difficult to view that the transmission of text message of this case was erroneous that it was not a crime under the law, and that there was a justifiable reason. Accordingly, the court below's error in the omission of judgment affected the judgment.

4. Conclusion

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

Justices Park Poe-young (Presiding Justice)