(영문) 서울중앙지방법원 2018.11.1. 선고 2018고합765 판결

When the defendant fails to pay the above fine, the defendant shall be confined in the old house for the period calculated by converting 100,000 won into one day.

Seized boxes 276(No. 1) and 1844(No. 2) shall be confiscated.

Reasons

Criminal facts

The Defendant was a preliminary candidate belonging to the G political party in the election of the 7th Seoul Metropolitan Council member C (D, E, and F) election, which was implemented on June 13, 2018. On the other hand, H was elected as a candidate after going to the preliminary candidate belonging to the same political party, but was elected as a candidate in the election of the B Council member.

No one shall distribute, post, distribute, play, or run an advertisement, letter of personnel management, poster, photograph, document, drawing, picture, printed matter, recording, video tape or others similar thereto, which contains any content of supporting, recommending, or opposing a political party or candidate (including a person who intends to become a candidate) in order to influence the election from 180 days before the election day to the election day, or which indicates the name of a political party or candidate's name.

그럼에도 피고인은 2018. 4. 12. 18:30 ~ 19:30경 서울 I을 포함한 같은 구 D, E 일대 주택가에서, 앞면에는 「G정당 B의원선거 C선거구 (E, D, F) 예비후보 A/H 구의원이 돼서는 안 되는 HI "전과가 3개나 있대요"」, 뒷면에는 「H! B J 선거구에서 K후보로 출마 낙선 / BL 선거구에서 M으로 출마 두 번 당선되자 국회의원 하겠다고 임기 중에 사퇴하고는 또 다시 구의원 하겠다고, L 선거구 주민에게 염치가 없는지 가선거구에서 출마하겠다네요. J 선거구에서 살면서 구의원 욕심은 하늘을 찌르네요 / E, D, F 주민들이 기가 막혀 하네요!!!」라고 기재된 피고인의 명함 3,000여 장을 위 주택가 도로에 뿌리는 방법으로 살포하였다.

Accordingly, the Defendant spreaded documents indicating H’s name to affect the election of the meeting members in Seoul. The summary of the evidence.

1. Defendant's legal statement;

1. Examination protocol of the accused by prosecution;

1. Each protocol of seizure (No. 5 and 9 No. 5 of the evidence list);

1. Scenese-fashed fash;

1. Application of the law of the principal of the name cards

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 255(2)5 and 93(1) of the Public Official Election Act (Selection of Fines)

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Confiscation;

1. The scope of applicable sentences under law: a fine of not less than 50,000 won but not more than 4 million won;

2. Scope of recommended sentencing guidelines: Fines of not less than 700,000 won but not more than 2 million won.

[Determination of Punishment] Violation of the Method of Election Campaign (Type 2) in violation of the Election Campaign Period for Election Campaign (Type 2) [the scope of recommending area and recommendation] basic area, fine of not less than 700,000 won and not more than two million won

3. Determination of sentence: The crime of this case by a fine of KRW 1.5 million was committed by a defendant by means of prohibiting the Public Official Election Act in order to influence the election in the 7th local election, which was implemented on June 13, 2018. In order to prevent the overheated of the election and to ensure fair competition among candidates, the act of excluding election campaign methods. In particular, the defendant was well aware of the fact that the method of spraying the election campaign is not permissible without directly making the name of the active Gu council member, and the crime of this case was not good in that he went to the crime of this case even though he was informed that he could not enter H in his name after consultation with the election commission prior to the crime of this case. In light of the fact that the name of the defendant spreaded has reached 3,00, and H has passed away due to a minor difference in the above election, it is determined that the result of the election of this case has no influence on the defendant. Such circumstances are disadvantageous to the defendant.

As the Defendant was placed in a situation in which he was not given legitimate competitive opportunities, such as light vessels, during the process of an active service, even though he was an active Gu council member, it appears to have caused the instant crime, and the circumstances may be somewhat taken into account. Such circumstances are favorable to the Defendant.

In addition, in comprehensive consideration of the defendant's age, character and conduct, environment, motive, means and result of the crime, and the circumstances after the crime, the sentence shall be imposed as ordered.

The acquittal portion

1. Summary of the facts charged

A candidate (including a person who intends to become a candidate), his/her spouse, lineal ascendant or descendant, or sibling by openly pointing out facts through a speech, newspaper, communication, magazine poster, propaganda document, or any other means, with the intention of getting elected or getting another person elected, shall not defame any candidate (including a person who intends to be a candidate) or his/her spouse, lineal ascendant or descendant, or sibling. Nevertheless, the Defendant slandered H intending to become a candidate for the 7th Seoul Metropolitan Council member C constituency by openly pointing out facts in the same way as the above crime

2. Relevant legal principles

In order for a candidate to be dismissed pursuant to the proviso to Article 251 of the Public Official Election Act, the act of slandering the candidate, etc. is consistent with the truth by comprehensively viewing the alleged facts, and in view of its content and nature, from an objective point of view, it is necessary to have the motive to indicate the facts for the public interest. Although the public interest should not be a more motive than the private interest, the two should exist simultaneously, and the reasonableness thereof should be recognized, and if the public interest is merely a motive compared with the private interest, and it is merely an incidental motive, it cannot be deemed that it is a public interest (see, e.g., Supreme Court Decisions 2011Do168, Mar. 10, 201; 2009Do1936, Jun. 25, 2009).

3. Determination

A. Examining the following facts and circumstances acknowledged by the evidence duly adopted and investigated by this court in light of the aforementioned legal principles, the facts revealed by the Defendant’s name are consistent with the truth, and are objectively relevant to the public interest in light of its content and nature, and there are private motives to ensure the Defendant’s election, but at the same time, there are motives for the public interest in which the right holder would exercise appropriate voting rights by providing the right holder with information on H’s qualities, etc.

The illegality is excluded in accordance with the latter part of Article 251 of the Public Official Election Act.

B. The Defendant was elected in the Seoul Metropolitan Council Members’ Election C in 2014, and was a preliminary candidate leading to re-election in the same constituency as a member of the active duty service at the time of the instant case. Meanwhile, H resigned from the Seoul Metropolitan Council Members’ L constituency in 2010 and 2014 for the withdrawal of the election for the National Assembly members for 2016, but was a preliminary candidate preparing for withdrawal in the C constituency at the time of the instant case. The Defendant had been registered as a preliminary candidate even though H resided in the J constituency and had been engaged in political activities in the L constituency, and was going to the effect that he had already talked with the local chairman to obtain this Gong, and that he would have been able to again resign the election district for the said election district (hereinafter referred to as “the election district for the National Assembly member”), and that he would have to have been able to change his career in his election for the said election district on the grounds that he would have been able to receive H from another election district (hereinafter referred to as “the election district of this case”).

① First of all, H’s previous conviction is information disclosed by the National Election Commission to the general public for the rational voting of the voters. A prior conviction of a candidate who was candidate for an election of public office is not directly related to a crime or corruption in the course of performing the previous public office. Even if it is not directly related to a crime or corruption, it becomes an material for the criticism or evaluation of his/her social activities and serves as an important material to determine his/her qualification and eligibility as a candidate for his/her public office, and it is also subject to a court’s final judicial judgment (see, e.g., Supreme Court Decision 96Do977, Jun. 28, 1996).

② The facts pertaining to the political career of H, such as a change of party membership and a change in the constituency for resignation, are all information disclosed to the general public. This is an important material that serves as the basis for the relevant voters to determine their qualification and eligibility as a candidate for public service, such as the political belief of H and the sense of responsibility to the electorate, and thus, can be deemed for the public interest.

③ The Defendant, as a member of the active duty Gu in the relevant constituency, was in a position in competition with H and G political party, and there was no satch in criticism of H, with the desire to satisfy, using an emotional expression, such as “a satisfy” and “a satisfy,” and in light of the form of the act that printed and spreaded 3,000 satisfys indicating such content, it cannot be denied that the Defendant’s act led to a strong private motive that prevents H, one of his competitors, from receiving a satisfy.

However, as seen earlier, the facts stated by the Defendant in the instant name are all true and open to the public, which directly affects the determination of the quality and eligibility of the candidates for public service, and the Defendant also stated that H was able to know that it is unreasonable to receive official service in the relevant constituency by transmitting objective facts to the voters. Although it is not superior to private motive, it is reasonable to deem that the motive for the Defendant’s public interest is also reasonable, and it is difficult to deem that the public interest of the Defendant is merely a nominal motive, and it is only incidental (the main illegality of the Defendant’s act appears to be more than its content, and it is sufficient to punish the Defendant in accordance with Article 255(2)5 of the Public Official Election Act as a violation of Article 93(1) of the same Act.

4. Conclusion

This part of the facts charged constitutes a case that does not constitute a crime, and thus, the acquittal should be pronounced pursuant to the former part of Article 325 of the Criminal Procedure Act, but inasmuch as it is found guilty of a crime of violating the Public Official Election Act due to the spread of documents indicating H’s name, which is in a relationship of commercial concurrence,