[1] The meaning of "information and communication" under Article 254 (2) of the Public Official Election Act that limits prior election campaigns by means of information and communication, etc.

[2] The case rejecting Defendant’s assertion that the act does not constitute an election campaign under the Public Official Election Act, in case where the Defendant was indicted on charges of prior election campaign by posting a letter on the 19th National Assembly member who belongs to a specific political party in relation to the 19th National Assembly member election which was held on April 11, 2012

[3] In a case where the Defendant was indicted on charges of conducting a prior election campaign by posting a letter on the 19th National Assembly member election against a certain political party in relation to the 19th National Assembly member election which was held on April 11, 2012 on the Twitter, the case rejecting the Defendant’s assertion that the Defendant is unconstitutional since Articles 59 and 254 of the Public Official Election Act restricting prior election campaign through the Internet homepage, etc. violated the principle of equality, etc., and convicted him/her of the

[1] Article 254(2) of the Public Official Election Act provides that a person who conducts an election campaign by means of information and communications, except as otherwise provided for in the same Act, prior to the election campaign period, shall be punished. The term “information and communications” refers to the transmission or reception of codes, words, sound, or images by using telecommunications facilities and equipment or by using telecommunications equipment and computer technologies

[2] In a case where the Defendant was indicted on charges of conducting a prior election campaign by posting an article on the 19th election of a National Assembly member belonging to a specific political party on April 11, 2012 with regard to the 19th National Assembly member election of the said 19th National Assembly member, “Twitter” is an online space in which individual opinions or thoughts are shared and communicated with one another, and it is apparent that it constitutes information and communication, without any separate procedure, may read articles on the Twitter, and without the other party’s permission, written by the said person as his/her Twitter account, or by using such articles on the 19th National Assembly member’s own account, it is difficult to view that the Defendant’s act of using the said article as his/her own election campaign has a function to actively communicate with other persons by way of automatic delivery of his/her written opinions or thoughts to many and unspecified persons, and thus, it is difficult to see that the Defendant’s act of expressing or opposing the specific candidate’s opinion as an independent means of expression, not only one of the said 10th National Assembly member’s rally.

[3] In a case where the Defendant was indicted on charges of engaging in a prior election campaign by posting a letter on the 19th National Assembly member of a specific political party’s total number of the 19 National Assembly members belonging to a specific political party in relation to the 19th National Assembly member election which was held on April 11, 2012, the case rejecting the Defendant’s assertion that Article 59 and Article 254 of the Public Official Election Act, which limits the election campaign or political expression of intention to the general public such as the right holder, is unconstitutional as it violates the principle of equality or the principle of excessive prohibition.

[1] Article 254(2) of the Public Official Election Act / [2] Article 58(1) of the Public Official Election Act; Article 254(2) of the Public Official Election Act / [3] Articles 11 and 37(2) of the Constitution of the Republic of Korea; Article 59 of the former Public Official Election Act (Amended by Act No. 10981, Jul. 28, 201); Article 254(2) of the Public Official Election Act

Defendant

Maximum Declaration

Law Firm Han-gu, Attorneys Park Dong-hwan et al.

Defendant shall be punished by a fine of KRW 1,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

To order the defendant to pay an amount equivalent to the above fine.

The Defendant, who works in Twitter as Adidy (i.e., omitted), was willing to carry out a abortion campaign against the National Assembly members belonging to the Korea National Assembly member on April 11, 2012 in relation to the 19th National Assembly member election.

From May 10, 201 to May 11, 201, the Defendant posted a notice on the list of persons subject to the abortion campaign in the Hanna City, the Nonindicted Party, and the Seoul Kangdong-dong, as the Twitdong (hereinafter omitted), the Defendant posted a notice on the total number of 19 National Assembly members belonging to the Hanna City, as shown in the attached Table (crime List).

Accordingly, the Defendant carried out an election campaign prior to the election campaign period.

1. Partial statement of the defendant;

1. Partial statement of the suspect interrogation protocol of the accused by the prosecution;

1. Request to investigate the suspicion of election crimes;

1. Investigation report (verification of the number of those who sell Twitter);

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

Article 254(2) of the Public Official Election Act, Selection of a fine

1. Aggravation for concurrent crimes;

Article 37(former part of Article 37, Article 38(1)2, and Article 50 (Attachment Table [Attachment Table] No. 19 of the Criminal Act, which is the most severe offense, shall be the aggravation of concurrent crimes with punishment stipulated for the crime)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Statement that the defendant's act does not constitute an election campaign under the Public Official Election Act;

The defendant and his defense counsel asserted that ① the act of expressing his opinion using the Twitter does not constitute an election campaign under the Public Official Election Act, and ② the defendant's opinion on the Twitter merely stated his opinion on support and opposition to the recommendation of the candidate of a political party, and thus did not reach an election campaign prohibited by the Public Official Election Act.

However, Article 254(2) of the Public Official Election Act provides that a person who conducts an election campaign by means of information and communications, except as otherwise provided for in the above Act, prior to the election campaign period, shall be punished. The term "information and communications" means either the use of telecommunications equipment or the transmission or reception of codes, words, sounds, or images by using telecommunications equipment and facilities and computers. In addition, an election campaign under Article 58(1) of the Act refers to an active and planned act that is advantageous to a certain candidate's election or obtained votes or for defeat and is objectively recognized for the purpose of promoting an election or defeat. Specifically, in determining whether a certain act constitutes an election campaign, it shall be determined by comprehensively observing not only the name of the act, but also the form of the act, i.e., the time, place, method, etc. of the act, and whether it is an act accompanying the purpose of promoting the election or defeat of a specific candidate (see, e.g., Supreme Court Decision 2006Do9043, Mar. 30, 2007).

However, each evidence revealed as follows, i.e., ① Twitter is an online space in which individual opinions or thoughts are shared and communicated with a short door, and it is evident that it falls under information and communications, without any separate procedure, read letters written on Twitter, and it is obtained from his Twitter account by registering it with a third party without the permission of the other party, or by automatically delivering letters written on one's own trade to the persons registered with his own trade, and thus, it can be said that the defendant has the function of communicating with other persons and actively delivering his/her opinions or thoughts to many, unspecified and unspecified persons, and thus, it is more open and more likely that the defendant's act is more open and influenced than 0 days (this point seems to be recognized by his/her defense counsel). ② The defendant's act of expressing and opposing that it is difficult to see that it is merely a mere private means of expression, and ② the contents of the defendant's act of expressing and opposing the specific opinion that it is difficult to 19th National Assembly member's election campaign, which is part of the candidate's election campaign.

Therefore, we cannot accept this part of the defendant and his defense counsel's argument.

2. The assertion that restrictions on election campaigns under the Public Official Election Act are unconstitutional;

The defendant and his defense counsel allow regular election campaigns through the Internet homepage to those who wish to be a candidate or candidate under Articles 59 and 254 of the Public Official Election Act, and unlike this, they limit election campaigns or political expression of intention to ordinary citizens such as the right holder, etc., which are contrary to the principle of excessive prohibition as discrimination without reasonable necessity.

However, the discretion of the legislative body should be left to the extent of who can carry out an election campaign prior to the election campaign period, and to which extent it should be permitted, and the freedom of legislative formation should be respected unless it is clearly a arbitrary legislation beyond the discretionary power.

However, promptness, convenience, expansion and ease of participation, etc., which are characterized by the Internet, can allow a serious debate on the Internet, while a fatal impact may be on whether or not the candidate is elected due to defamation against the candidate or criticism against the candidate through a will secret. If general voters allow an election campaign without permission, regardless of whether it is before or after the election campaign period, the election may be excessive early to the candidate, and a slander by means of personal attack or false accusation against the candidate. In particular, there is a risk of undermining the fairness of election by exposing the bona fide voters to the false indication of election campaign or misrepresentation of the candidate.

Furthermore, unlike the candidate, the right of retention is a case where he posts information, opinion, etc. on another person entirely (candidate) instead of his own information, so it is difficult to secure the credibility of the information compared to the case where the candidate posts his own information, and it is not possible to distort the decision-making of the right of retention in good faith by false information.

In addition, since there are many cases where it is difficult to identify the original author of the posting because of the rapid spread potential of online, it is difficult to ex post facto election management and regulation, compared to voters, there is a difference between the cases where the election management is relatively easy and the corrective measures such as the request for deletion or revision of false information, or the criminal sanctions can be promptly made.

Considering the above, it is difficult to view that the constitutional justification to treat candidates and general voters equally is derived in determining the period of election campaign or the type of election campaign permitted in reality, and thus, discrimination treatment pursuant to the above legal provisions is reasonable (see, e.g., Constitutional Court en banc Order 2008Hun-Ba169, Jun. 24, 2010).

In addition, even though the Public Official Election Act allows anyone to freely carry out an election campaign from the beginning date of the election campaign period to the day immediately preceding the election day, and the person who carried out an election campaign is punished prior to the election campaign period, as seen above, the election campaign permitted only during the election campaign period means only an active and planned act that can objectively be recognized for the purpose of promoting the election or defeat in the election by directly affecting the choice of voters for the election of a specific candidate or the votes obtained or defeat in the election. Thus, unless it does not correspond thereto, a general citizen may freely express his/her opinion and express his/her opposition to the recommendation of an election or the candidate at any time, regardless

In full view of these circumstances, since Articles 59 and 254 of the Public Official Election Act cannot be deemed to violate the principle of equality or the principle of excessive prohibition, the defendant and his defense counsel's assertion on this part shall not be accepted.

In light of the fact that the Defendant carried out an election campaign against many unspecified and unspecified persons exceeding approximately 14,00 persons using twitter, the Defendant’s above act appears not to pose a significant risk of undermining the fairness of the election in light of the propagation, disclosure, etc. of such act, and that there is a need to strictly punish the act in violation of the Public Official Election Act in order to establish a sound election culture and establish legitimate election order, the Defendant’s responsibility cannot be deemed to be negligible.

However, the crime of this case was committed 11 months before the election day, and the above notice is not disclosed at present, considering favorable circumstances, such as the fact that the crime of this case appears not to have a significant impact on the actual result of election, and that the defendant has no record of punishment for the same kind of crime, the sentence like the order shall be imposed against the defendant.

[Attachment] Crime List: Omitted

Judges Jin-so (Presiding Judge)