[1] The relationship between the filing of suspicions as to the candidate and the publication of false facts in the election for public office

[2] The standard for determining whether an act of expressing false facts constitutes an act of expressing false facts in a case where the expression in the process of making his/her argument or questioning to the other party is partially inaccurate or somewhat exaggerated or complicatedly interpreted in a joint debate by a candidate for an election of public officials

[1] Under a democratic political system, the freedom of speech is the most basic fundamental right, and it should be sufficiently guaranteed in the election process, and it is necessary and important to verify candidates in the election of public officials. Thus, in a case where there is a reason to suspect the candidate’s eligibility for public office, the raising of a question should not be easily obstructed. Therefore, in a case where the suspicion against the candidate was made based on the grounds that there are reasonable grounds to believe that the raising of doubt against the candidate is true, even if it is found that the suspicion was not true later, it shall not be punishable for the purpose of guaranteeing the freedom of expression.

[2] As in the case of other election campaign, a candidate who is subject to a joint debate held by a candidate for a public election does not intentionally distort the opinions or remarks of another candidate to the extent that the candidate is likely to mislead the exact judgment of the elector, but rather interpret the meaning of another candidate's opinion or remarks to the extent that it can reasonably be seen that the candidate's opinion or remarks are inconsistent with the truth, and the candidate's questioning or answers to the questions of another candidate is clearly and accurately available to the elector's quality, knowledge, and opinion. However, unlike the cases of a campaign speech unilaterally expressed his opinion by the prepared materials, the clarity of the above expression is limited due to the nature of a joint debate where the answer, question, and answer are made unilaterally and continuously among the candidates. Therefore, the same shall not apply where the candidate intentionally distorted the opinion or remarks of another candidate to the extent that the elector's opinion or remarks are likely to be distorted within the reasonable possible extent, and the candidate's act of criticism or questioning is likely to intentionally distort the other candidate's opinion or remarks to the extent that it is contrary to his/her opinion or opinion immediately.

[1] Article 250 (2) of the Public Official Election Act, Article 21 of the Constitution / [2] Article 250 (2) of the Public Official Election Act

[1] Supreme Court en banc Decision 2001Do6138 delivered on February 20, 2003 (Gong2003Sang, 876)

Defendant

Prosecutor

Law Firm Woo et al.

Daegu High Court Decision 2007No60 decided April 5, 2007

The appeal is dismissed.

The grounds of appeal are examined.

Under a democratic political system, the freedom of speech is the most fundamental right, and it should be sufficiently guaranteed in the election process, and it is necessary and important to verify candidates in the election of public officials. Thus, in a case where there is a reason to suspect the candidate’s eligibility for public office, it shall not be easily obstructed. Therefore, in a case where the suspicion against the candidate was made based on the grounds that there are reasonable grounds to believe that the raising of suspicion against the candidate is true, even if it is found that the suspicion was not true later, it shall not be punishable in order to guarantee the freedom of expression (see Supreme Court en banc Decision 201Do6138, Feb. 20, 2003, etc.).

As in the case of other election campaign, a candidate who is involved in a joint debate of a candidate for public office is in principle required to clearly understand the quality, knowledge, and opinion of each candidate by using his/her opinion and clearly and accurately expressing his/her opinion and answering questions or answers to questions of another candidate.

However, unlike the case of a campaign speech unilaterally expressing one’s opinion based on the materials prepared in advance, there is a limit to the clarity of the above expression due to the characteristics of a joint debate in which the allegations, arguments, and answers are made between the candidates, namely, interested and continuous. Therefore, rather than intentionally distorted another candidate’s opinion or remarks to the extent that it is possible for the candidate to make an accurate judgment, the act of interpreting the meaning of another candidate’s opinion or remarks to the extent reasonably possible, and criticism or questioning about it cannot be deemed as an act of expressing false facts with the awareness that the other candidate would publish facts contrary to the truth, in light of the characteristics of the joint debate where the candidate’s opinion or questioning is given an opportunity to immediately express his own opinion through the reply or answer. This is likewise true in cases where the expression made by the candidate in the course of his/her argument or questioning to the other party, as long as it intentionally distorted facts to the extent that the decision of the elector is correct, in some cases or somewhat incorrect or exaggerated.

Examining the reasoning of the judgment below in light of the above legal principles, the judgment of the court below that the defendant did not constitute the crime of publishing false facts under Article 250 (2) of the Public Official Election Act on the ground that the defendant's act of publishing false facts and intention in the crime of publishing false facts, violation of the rules of evidence, incomplete deliberation, and omission of judgment, etc. are not unlawful. The prosecutor's grounds of appeal are not accepted. The prosecutor's grounds of appeal are dismissed.

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

Justices Kim Nung-hwan (Presiding Justice)