2014Do7309 Violation of the Public Official Election Act, Violation of the Police Officers Act, and abuse of rights

Obstruction of Private Interference

A person shall be appointed.

Prosecutor

Law Firm (LLC) B

Attorney C, D, E, and F

Seoul High Court Decision 2014No530 Decided June 5, 2014

January 29, 2015

The appeal is dismissed.

The grounds of appeal are examined.

1. Regarding the violation of the rules of evidence and the incomplete hearing

The court below is N that the defendant exercised the right to guide and supervise the investigation of the National Intelligence Service staff member who was suspected of defamationing and supporting the specific candidates posted at the 18th presidential election and writing comments on comments, etc. on the Internet site, and despite the discovery of evidence related to the facts of suspicion in the two computers, such as Nohbuk, etc. voluntarily produced by the above employee, the court below concealed the fact that evidence for the election of a specific candidate was found and there was no suspicion.

With respect to each of the facts charged in this case, each of the following facts are that the National Intelligence Service employee delayed the response of the results of digital evidence analysis with the intent to interfere with the follow-up investigation by the investigation team of the T police station after distributing news data and publishing the results of interim investigation. As to the reasons why the National Intelligence Service employee set the scope of analysis of two computers, such as Nowon-North Korea voluntarily submitted, and the process of determining the results of the analysis; the reasons why the report and report data were prepared as a result of digital evidence analysis; the details and contents of the report and report; the background and contents of the response of the results of analysis on the investigation team of the T police station conducted two times; the scope and contents of the response; and whether the defendant opposed or supported the specific candidate with multiple instructions, the judgment of the first instance that acquitted the defendant was not guilty was affirmed.

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

2. As to the misapprehension of legal principle

Article 58(1) of the Public Official Election Act refers to an active and planned act that is necessary for the election or the winning or defeat of a specific candidate and that is objectively recognized by the intention of promoting the election or defeat of a specific candidate. Specifically, in determining whether an act constitutes an election campaign, it is necessary to simply observe 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 determine whether the act is an act accompanying the purpose of promoting the election or defeat of a specific candidate (see Supreme Court Decision 2009Do445, Mar. 12, 2009, etc.).

The lower court, as seen earlier, carried out an election campaign by taking advantage of the status of the Defendant.

As to this part of the facts charged, since the report materials, etc. for publication of the results of the interim investigation are about National Intelligence Service employees, and the object of the act is not about a person who can be seen as identical to a specific candidate or candidate, the intent of the purpose of the specific candidate cannot be objectively recognized. Thus, in light of the above legal principles as to the determination of whether an election campaign is conducted, this part of the facts charged cannot be viewed as an

The court below's decision to the effect that the subject of the act at issue is related to "the person who can be deemed identical to a specific candidate or candidate" but the purpose of the specific candidate can be objectively acknowledged is not appropriate in light of the above legal principles, but the conclusion of the court below's decision to acquitted the defendant on the ground that there is no proof as to this part of the facts charged as seen above. Thus, the court below's decision to acquitted the defendant on the ground that such error did not affect the result of the judgment. Thus, the prosecutor's ground of appeal pointing this out by

3. Conclusion

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

Justices Kim Chang-suk

Justices Shin Young-chul

Justices Lee Sang-hoon

Justices Cho Jong-hee