[1] The case holding that in case where a candidate for a National Assembly member was sent to voters by stating the matters of merit at the time of being employed by the head of a local government beyond the term of courtesy invitation at the place of opening an election campaign office and the phrase of support appeal, the crime of violation of the Public Official Election Act due to the "distribution of documents by unlawful means" is established on the ground that there is no justifiable reason to believe the illegality of his act in light

[2] The meaning of "false facts" under Article 250 (1) of the Public Official Election Act and the standard for determining whether to recognize falsity

[3] The case holding that the act of a candidate of a member of the National Assembly announced that "to the effect that he would return to the former representative of the election campaign" in order to use the elector's friendship in the election campaign process, and publicly announced his achievements as a candidate, constitutes the crime of publishing false facts under Article 250 (1) of the Public Official Election Act

[1] The case holding that in case where a candidate of a National Assembly member was sent to voters by stating the matters of merit at the time of being employed by the head of a local government, the supporting appeal words, etc. in the invitation letter of an election campaign office beyond the ordinary invitation letter, the crime of violation of the Public Official Election Act due to the "distribution of documents by unlawful means" is established on the ground that the defendant's failure to recognize the illegality of his act in light of the defendant's election career, etc., even if he was the election campaign manager's act of hearing about whether the invitation letter is sent, etc.

[2] In the crime of publishing false facts under Article 250(1) of the Public Official Election Act, it is sufficient to say that the elector has the identity to the extent that he/she can cause accurate judgment on candidates. However, in a case where important parts are consistent with objective facts in light of the overall purport of the published facts, even if there is a little exaggerated expression, it cannot be deemed that there is a false fact since it might affect the correct judgment of the elector, thereby impairing the fairness of election. Meanwhile, in the crime of publishing false facts, it is necessary to recognize that the publication of false facts is false because it constitutes the content of the constituent elements. As such, as long as the existence of such subjective perception is difficult to know or prove it outside, it is difficult to determine the existence of such subjective perception by comprehensively taking into account all the objective factors such as the content of the publication of the fact, identity, existence of supporting materials and contents, the source and awareness of the fact expressed by the accused, the academic background, career, social status, timing of the publication, and the expected ripple effect of the publication.

[3] The case holding that the publication of false facts constitutes the crime of publishing false facts under Article 250 (1) of the Public Official Election Act, where a candidate of a National Assembly member announced that "the expression was made to the effect that he would return to the election campaign representative" in order to use the elector's friendship in the election campaign process, and that the act of publicly announcing the marina project that was induced by the competition candidate as his achievement constitutes the crime of publishing false facts

[1] Article 16 of the Criminal Act and Article 93(1) of the Public Official Election Act / [2] Article 250(1) of the Public Official Election Act / [3] Article 250(1) of the Public Official Election Act

[2] Supreme Court Decision 2005Do2627 Decided July 22, 2005 (Gong2005Ha, 1462), Supreme Court Decision 2005Do4642 Decided May 25, 2006 (Gong2006Ha, 1209), Supreme Court Decision 2008Do8952 Decided December 11, 2008, Supreme Court Decision 2009Do266 Decided March 12, 2009

Defendant

Defendant and Prosecutor

Johovah-ri

Attorney Gangwon-gu

Daegu District Court Decision 2008Gohap47 decided Nov. 27, 2008

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 5,000,000.

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.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

A. The defendant's assertion of mistake or misapprehension of legal principle as to the guilty part

In light of the fact that the defendant prepared the invitation letter of this case with the advice of Nonindicted Party 1, the leader of the election commission at ○○○ City, by using the invitation letter of the candidate for the National Assembly member, and that Nonindicted Party 2, the employee of the election campaign office, asked Nonindicted Party 1 to show and examine the invitation letter, but did not make any cadastral map as to the phrases, contents, etc. of the invitation letter, Nonindicted Party 1 pointed out that only Nonindicted Party 1 would delete the above invitation letter, and did not make any comments about the phrases, contents, etc. of the invitation letter. Accordingly, Nonindicted Party 2 did so after deducting the background photographs of the Seocheoncheon-cheon-ro, processed it by cutting it, then printed the invitation letter of this case and obtained confirmation from Nonindicted Party 1 and the illegal election monitoring group. Accordingly, the defendant sent the invitation letter of this case by ordering him, and the defendant was unable to know whether the sending of the invitation letter of this case violates the Public Official Election Act. Therefore, the court below erred by misapprehending the legal principles as to the illegality of the act of this case and making a mistake.

B. misunderstanding of facts by the prosecutor about the acquittal portion

In the 18th National Assembly election conducted on April 9, 2008, the Defendant published false facts with respect to the 18th National Assembly member of the Korea-Gara Party (hereinafter referred to as “the former ○○○○ City Development Project”) for the purpose of being elected, and published false facts with respect to the attraction of Nonindicted 3 candidates to ○○○ City Development Project for the purpose of being elected, it is difficult to deem that the lower court publicly announced false facts with respect to the former ○○ City Development Project, and it is difficult to deem that there was a false perception with respect to the inducement of ○○○ City Development Project, and it is difficult to deem that there was a false perception with respect to the inducement of ○○○ City Development Project. In so doing, the lower court erred by misapprehending the rules of evidence and failing to exhaust all necessary deliberations.

C. The prosecutor's assertion of unreasonable sentencing on the guilty part

The court below's sentence of a fine of KRW 700,00 on the distribution of documents by the defendant's unlawful method is too unfortunate and unfair.

2. Determination

A. As to the defendant's assertion of mistake of facts or misapprehension of legal principles

(1) Article 16 of the Criminal Act provides that "the act of misunderstanding that one's own act does not constitute a crime under the Acts and subordinate statutes shall not be punishable only when there are justifiable grounds for misunderstanding." It is generally accepted that the act of misunderstanding that one's own act does not constitute a crime but, in his special circumstances, it does not constitute a crime. It is not punishable if there are justifiable grounds for misunderstanding that one's act is permitted under the Acts and subordinate statutes. Whether there is justifiable grounds or not should be determined depending on whether the act of misunderstanding that one's own act was not aware of illegality as a result of his failure to perform his/her own act even though it was possible to recognize the possibility that one's own act could have been aware of illegality, and the degree of efforts necessary for recognizing illegality should be determined differently according to the specific situation of the act and the person's awareness ability, and social group to which the actor belongs (see Supreme Court Decision 208Do526, Oct. 23, 2008, etc.).

(2) Facts of recognition

According to the evidence duly adopted and examined by the court below and the court below, the following facts are recognized.

(A) In 191, the Defendant was elected as a member of the 4th Standing Council on North Korea in 1991, and was elected as a candidate in the 2002 local government head election, and was employed as the ○○ market from July 1, 2002 to June 30, 2006. On May 31, 2006, the Defendant was born as a candidate for the 18th National Assembly member election, which was implemented on April 9, 2008, and was registered as a preliminary candidate on January 17, 2008; on March 25, 2008; and on March 29, 2008, an election campaign office was established.

(B) Nonindicted 4, an election campaign manager of the Defendant’s election campaign office, prepared a draft of the invitation letter of this case, stating the Defendant’s photograph, the personal information at the time of his employment in the ○○ market, the lake and marsh phrases, etc., and asked Nonindicted 1, the guidance leader of the election commission at ○○○ City, to the effect that Nonindicted 1 sent the opening invitation letter by posting a telephone. Accordingly, Nonindicted 1 asked Nonindicted 30 copies of the invitation letter to the effect that it is unnecessary for Nonindicted 4, who is an election campaign manager of the Defendant, to send the opening invitation letter to the outside. At that time, Nonindicted 4 asked only about whether Nonindicted 4 was posted in the invitation letter and asked about whether it would be put a photograph in the Defendant’s office at the time of his employment in the ○○ market, but did not ask about such contents.

(C) Meanwhile, around that time, Nonindicted 1 visited the Defendant’s election office almost every day to monitor illegal acts, such as acceptance of money and valuables, and Nonindicted 2, who was in charge of public relations, etc. at the Defendant’s election campaign office, showed the draft of the instant invitation to Nonindicted 1 who visited the Defendant’s election campaign office on March 25, 2008, and said, Nonindicted 1 said to the effect that he cannot display a photograph other than the candidate’s photograph on the invitation letter, and excluded from the invitation letter. Accordingly, Nonindicted 2, after deducting the background photograph of the Seocheon Sacheon Sacheon, printed the instant invitation letter as it is.

(D) On March 26, 2008, the Defendant heard that Nonindicted 4 asked to the election commission on whether or not he sent the invitation letter, and instructed Nonindicted 2 to send the invitation letter, and accordingly, Nonindicted 2 distributed the invitation letter to Nonindicted 5 and 226 persons, including Nonindicted 5, around March 26, 2008.

(3) Determination

(A) In light of the Defendant’s political and election experience, etc. as seen above, even if the Defendant was aware of, or could be sufficiently suspected of, the circumstance that the Defendant’s entry of the Defendant’s place of opening the election campaign office in the Defendant’s ○○ market, which goes beyond the ordinary invitation phrase, violates the Public Official Election Act by entering the Defendant’s place of opening the election campaign office. However, if it is merely an order of the election campaign manager Nonindicted 4 to believe only the horses of Nonindicted 4 and to send the instant invitation letter to the election commission without verifying the legitimacy by asking the competent election commission on such part, it is difficult to deem that the Defendant made a serious effort to confirm the legitimacy of the issuance of the instant invitation letter.

(B) In addition, as seen in the above facts, Nonindicted 4, who supported the Defendant, also described in the invitation letter of this case, on the part of the Defendant’s position in the ○○ market, is considered to have been excessive compared to the invitation letter of the ordinary election campaign office, and asked Nonindicted 1 only about whether the invitation letter may be sent to Nonindicted 1 with the exception of these contents, and Nonindicted 2 also presented the invitation letter of this case to Nonindicted 1 who visited the election campaign office. However, in light of the fact that Nonindicted 2 and Nonindicted 4, who assisted the Defendant, made a serious effort to confirm whether it is illegal in sending the invitation letter of this case.

(C) Therefore, the defendant cannot be deemed to have justifiable grounds for not recognizing the illegality of his act in sending the invitation letter of this case, and the above assertion is not acceptable.

B. Ex officio determination

Before the prosecutor's judgment on the grounds for appeal, the prosecutor examined ex officio prior to the judgment on the grounds for appeal by the prosecutor, and the prosecutor added part of the facts charged in this case concerning the part related to the representative prior to Park Jong-young as of March 29, 2008, and changed the contents of the publication made on April 5, 2008. Of the part related to the attraction of ○○○ Lalycer Development Project, the defendant applied for amendments to the indictment to specify the quantity of the promotional materials distributed by the defendant and to change the type of election campaign bulletins and specify the type of election campaign bulletins. This part of the judgment of the court below is impossible to maintain as it is.

However, despite the above reasons for ex officio destruction, the prosecutor's assertion of mistake on the acquittal portion of the judgment of the court below is common to the facts that have been maintained as they were modified and examined together.

C. As to the prosecutor's assertion of mistake on the publication of false facts related to the former representation prior to Park Jong-young

(1) Summary of this part of the facts charged

The Defendant, in relation to the 18th election of a National Assembly member, filed an application for uniforms and Gongra, but was refused to return from Hanna Party on the grounds of the Defendant’s resignation power, etc., the Defendant, despite the absence of any political ties with the former representative prior to the election of the National Assembly member, was elected by using the pro-Japanese and North Korean electors in Daegu, Daegu, and North Korea, who claimed for a “marbial solidarity to which he belongs,” and the Defendant, as a candidate for the same local constituency, instructed Nonindicted 3, who was a candidate for the same local constituency, to go through a “marbial and friendship” debate, such as receiving a reflect that he is a person who is entirely not related to the former representative of Hanna and Park Mara

On March 25, 2008, the Defendant was aware that the former president visited the former president of the Park Jong-hee, and was present at the above place on the premise that he will be elected by taking advantage of the pro-friendly tendency of the electors in the Daegu-Gyeongbuk-gu area. The former president of the Park Jong-young was present at the above place. The former president of the Park Jong-young was a courtesy of the Defendant and the supporter ( Nonindicted 6, 7, 8, 9, 10, 10, 11, 12, etc.) who was gathered, and did not speak to the Defendant, who did not have any particular relationship.

(A) For the purpose of election, at around 14:00 on March 29, 2008, the Defendant issued a false statement to the following: (a) the Defendant’s election campaign office at the location of the Defendant located at ○○○ Habdong-dong; and (b) the Defendant, as seen above, did not directly have any speech from the former election campaign manager; (c) on the other hand, the Defendant issued a false statement to the general public by stating, “I would like to correct this country by making the former election manager flick, flick, flick, and election.”

(B) On April 2, 2008, the Defendant made a campaign speech against an unspecified elector by contributing to the election broadcast broadcast broadcast broadcast broadcast conducted on April 19:35, 2008, and publicly announced false facts by stating that “I will create a new climate centered on all the representatives, by causing a fluence by causing a fluence to the public by causing a fluence to the public.”

(C) On April 5, 2008, the Defendant published a false fact by stating that “Is to see how Is to see Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is

(2) The judgment of the court below

(가) 당심에 이르러 공소장이 변경되어 공소사실 중 위 ⑴의 ㈎항의 ‘꼭 당선되어 이 나라를 바로잡자’라는 부분이 추가되고, 위 ⑴의 ㈐항으로 피고인이 말한 내용이 바뀌었으나, 이 사건의 쟁점은 여전히 피고인이 박정희 전 대통령 생가 방문 당시 박근혜로부터 ‘이기고 돌아오라’라는 취지의 말을 직접 들었다고 평가할 수 있는지 여부, 그리고 위와 같이 평가할 수 없다면 피고인이 이와 같이 공표함에 있어 허위성을 인식하였는지 여부에 있어 원심과 그 쟁점이 동일하다.

(B) The lower court also recognized that the Defendant did not directly take the words “Embreging and returning to the election campaign” from the former president at the time of the visit by the former president on March 25, 2008, while making it difficult for the Defendant to take advantage of the fact that the former president’s birth at the time of the visit, he did not directly take advantage of the former president’s speech, but, at the time of the visit, the former president appears to have attended the place as a candidate for pro-Japanese solidarity, and expressed the name of the Defendant as a candidate for pro-Japanese solidarity, and the latter president’s speech was heated and heated, and the latter president’s speech at the time of the election campaign cannot be seen as a candidate for pro-Japanese friendship, and that there was no other error in the former president’s speech that the former president’s appearance was friendly, or that there was no other objective fact that the Defendant’s speech was friendly or unreasonable in view of the content of the press report, etc. that was sent by the former president during the election campaign period.”

(3) Judgment of the court below

(A) Facts of recognition

The following facts are acknowledged according to the evidence duly adopted and examined by the court below and the court below.

(1) The Defendant, in relation to the 18th election of a National Assembly member, filed an application for withdrawal from Korea National Assembly member, but was rejected from Korea National Assembly member on February 12, 2008 on the grounds of the Defendant’s resignation power, etc.

② On March 24, 2008, the Defendant asserted that he was neglected solely on the ground that he supported the Park Jong-young, and took a reply to the purport that he would form a solidarity with Nonindicted 13 Jeoncheon-si and the Sung-Gun of the 12th sexual Gun. As such, in the case of Nonindicted 3 candidate who was on the same region, the Defendant distributed the news reports to the effect that “The Defendant mentioned his friendship,” “The Defendant did not have any gambling, political and private personal relations, and there is no circumstance between his assistant and his assistant.”

③ On March 25, 2008, the Defendant appeared at the place where the former president was present at a visit to the former president’s old house. At that time, the former president, who moved from a parking lot to a new house, was in bad faith with the supporter present at that place, and did not make a statement to the effect that “the Defendant was able to go back to a new house” and “the Defendant did not go to a new house.”

④ At around 14:00 on March 29, 2008, the Defendant stated, “When the Defendant visited the Defendant’s life of the President Park Jong-hee, the former representative of Park Jong-dae was flue, knife, knife, knife, knife, and knife, knife, knife, and knife, to correct this country.” On the other hand, the Defendant said, “I am knife and knife,” the former representative’s “I am knife and return to knife” at the election campaign office

⑤ On April 2, 2008, the Defendant made a campaign speech by contributing to the election broadcast broadcast broadcast of Ansan-dong MBC conducted on April 19:35, 2008, and saying, “I would like to take the knife and return back to the Gu.”

④ On April 5, 2008, the Defendant: (a) performed oil in the vicinity of the Woncheoncheon located in ○○ City on April 16:35, 2008; and (b) stated, “Is the fluor of Park, the fluor of which, “Is the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of TV?”

7) On July 25, 2008, the Defendant made a consistent statement to the effect that, when the Defendant visited the former president of Park Jong-hee until he was investigated by the prosecution, he would be “a friend and return to the former president” from the former president of Park Jong-young, but was investigated by the prosecution on August 21, 2008, the Defendant reversed the Defendant’s statement that he got the speech by exaggeration.

④ Meanwhile, the Defendant did not have any special relationship with the former president, and did not have any special relationship with the former president in the process of the presidential election of the Korean National Assembly of the Republic of Korea in 2007.

(B) Determination

① Determination on whether false facts are false

The term “a false fact” under Article 250(1) of the Public Official Election Act means a matter that is inconsistent with the truth, and that is sufficient to have the elector make an accurate judgment on a candidate. However, in a case where the important part is consistent with objective facts in light of the overall purport of the published fact, if there is a little difference from the truth in detail or an exaggerated expression, even if there is an objective fact, it may not be deemed a false fact since it might affect the correct judgment of the elector, thereby impairing the fairness of election (see Supreme Court Decision 2009Do26, Mar. 12, 2009, etc.).

(2) According to the reasoning of the judgment of the lower court, the lower court did not err by misapprehending the legal principles on the grounds that the Defendant’s former President Park Jong-young’s failure to make a false statement to the effect that the former President Park Jong-young’s failure to make a false statement to the effect that the former President Park Jong-young’s failure to make a false statement on the grounds that the former President Park Jong-young’s failure to make a false statement on the grounds that the former President Park Jong-young’s failure to make a false statement on the grounds that the former President Park Jong-young’s failure to make a false statement on the grounds that the former President Park Jong-young’s failure to make a false statement on the grounds that the former President Park Jong-young’s failure to take part in the 18th National Assembly election, and that the former President Park Jong-young’s failure to make a false statement on the facts that the former President Park Jong-young’s failure to make a false statement on March 24, 2008, 602).

② Determination as to whether false information is recognized

In the crime of publishing false facts under Article 250(1) of the Public Official Election Act, it is necessary to recognize that the fact that is made public is false as the content of the actor’s intentional act. As long as it is difficult to know or prove it outside due to its nature, the existence or absence of such subjective perception should be determined in a normative manner by comprehensively taking into account all the circumstances, such as the Defendant’s educational background, career, social status, process of publication, timing of publication, and its objectively anticipated ripple effect (see Supreme Court Decision 2008Do8952, Dec. 11, 2008, etc.).

(C) In light of the following circumstances: (a) the Defendant, at the time of each of the instant remarks, made a statement to the effect that the Defendant, at the investigative agency, made the statement that he was “the friend back to friend”; (b) the Defendant, before making each of the instant remarks, had already emerged as an issue in the election of National Assembly members; and (c) the Defendant’s career and social status, the time of publication, and the objectively anticipated ripple effect, etc., it can be recognized that the Defendant was aware that the publication was false at each of the instant remarks.

Therefore, this part of the prosecutor's argument is justified.

D. As to the prosecutor's assertion of mistake on the part of publishing false facts related to the attraction of the ○○○○ Market Development Project

(1) Summary of this part of the facts charged

The ○○○○○ City Development Project, which is being constructed in a single 6th area in the Asia-dong 6th area in ○○○○ City, was a business that was completely different from that of the above Nonindicted 15 when the Defendant is working in the ○○○○ City, the members of the ○○○ City Council, and Nonindicted 14 in the ○○○○ City, the representative director of the E&S Co., Ltd. (hereinafter “A&S”), continuously encourage Nonindicted 15, the representative director of the E&S Co., Ltd., and the above Nonindicted 15, upon which Nonindicted 15 was found to have made an investment in the region, was involved in the investment in the region around May 4, 2007. Nevertheless, it was a business that was entirely different from the ○○ City Development Project that was put into the ○○ City, and was not detained when the Defendant is working in the ○○ City.

(A) For the purpose of election, from February 2, 2008 to April 9, 2008, the Defendant stated the “cultural and tourism area’s performance” column in the “cultural and tourism field” column in Chapter 4,442 promotional materials for the election of ○○ City National Assembly members and Chapter 50,015 of the booktype-type election campaign bulletin for the election of ○○ City National Assembly members” as “for the purpose of election, attracting and designing the ○○○○○ City Council member,” and distributed it around that time, and publicly announced the false facts by asserting that the Defendant had induced the ○○○○ City Council member’s creation project at the time of the Defendant being in the ○○ City.

(B) On April 4, 2008, the Defendant attended the broadcast debate of the candidate for the ○○○○○ area held in Ansan-dong MBC, and was aware that, “I would have only talked that I would have diced with the thickness of the candidate for Nonindicted 3, and the candidate for Nonindicted 3 would have played the role of transferring the gyring to the same village. I would like to know that I would like to say, at the same time, I would like to know that I would have moved to the ○○○○○○○○○○○○○○○○○○○○○○○○○○’s candidate to the effect that I would have moved to the 3rd place of election. I would like to compare the fact that I would have moved to the 15th place of election, and that I would have moved to the 15th place of election to the 15th place of election. I would like to say that I would have no connection with the 15th place of election to the 1500 billion place of election.

(다) 피고인은 2008. 4. 8. 11:40경 ○○시 풍기읍 소재 풍기역 부근에서 거리유세 당시 연설함에 있어, “저는 아지동에 온천단지를, 리조트판타시온을 거기 간다 그는 걸 허가 안 해준 사람입니다. 근데 지가 나가니까 풍기온천단지에다가 판타시온리조트를 하려고 결정했는 것이 안하고 있다 바로 안정 동촌으로 가버렸지 않습니까? 왜 이 말씀을 드리냐 하면은 봉현의 산을 거쳐서 산지유통센터와 이 풍기온천과 부석으로 이루어지는 이 통로가 동선이 되버렸는데 관광객이 머물러 가고 여기 와서 물건을 사가지고 가도록 이렇게 만들어야 하는데 안정 동촌에 갔다 놨단 얘기래요. 이거는 풍기읍민을 아주 무시하는 거고 왜 풍기읍민을 이렇게 버려야 됩니까? ○○를 망치는 일이 바로 그거 한가지만 해도 망치는 일이라고 생각합니다. 그래서 풍기읍민 여러분께서는 이렇게 된 원인이 누구 때문이냐, 리조트판타시온을 유치했다고 실지 유치도 안하면서 장소만 옮긴 사람이 바로 상대방 후보가 아니었느냐, 저는 그렇게 생각해서 저 풍기온천단지를 활성화시키겠습니다. 저가 대기업하고 여러 가지 절충을 하고 있는 중입니다.”라고 말하여, 당선될 목적으로 ○○판타시온리조트 조성사업을 마치 피고인이 ○○시장으로 재직할 때 유치한 것처럼 허위의 사실을 공표함과 동시에 당선되지 못하게 할 목적으로 공소외 3 후보자에게 불리하도록 공소외 3 후보자가 ○○판타시온리조트 조성사업을 유치하였다는 것은 거짓이고 공소외 3 후보자는 피고인이 ○○시장 재직중에 유치해 놓은 ○○판타시온리조트 조성사업의 장소만 옮겼을 뿐 ○○판타시온리조트 조성사업의 유치에는 전혀 기여한 바가 없다는 취지로 공소외 3 후보자에 관하여 허위의 사실을 공표하였다.

(라) 피고인은 2008. 4. 8. 18:30경 ○○시 소재 ○○오거리 부근에서 거리유세 때 연설함에 있어, “또 시장 4년을 저가 했습니다. 시민들 성원으로 인해서 시장 4년을 했지만은 큰 성과를 거두었다고 얘기합니다. 4년 시장을 했지만 10년 했는 경우와 같다 그런 평을 하는 사람이 많습니다. 그런데 상대 후보는 뭘 했습니까? 4년 동안, 국회의원 4년 동안 뭘 했냐구요. 어제 그저께 TV 토론 때 공약 한 개도 안했답니다. 그래도 한 개 있다고 그래요. 이앤씨판타시온했다 이래드라구요. 이앤씨판타시온 유치했다 그러는데 누가 유치했습니까? 저가 공소외 15 사장하고 협의하고, 설명하고, 15억짜리 설계도 만들고 저가 유치했는데 그걸 유치했데요. 사실 했다 그러면 있습니다. 뭘 했느냐. 풍기온천단지 외에는 피고인은 허가해 준 거 없고, 풍기온천단지 하는 조건에서 설계를 했드랬습니다. 그런데 저가 시장 그만두니까 안정 동촌으로 옮겼어요. 많은 의아하게 생각하는 사람들이 많습니다.”라고 말하여, 당선될 목적으로 ○○판타시온리조트 조성사업을 마치 피고인이 ○○시장으로 재직할 때 유치한 것처럼 허위의 사실을 공표함과 동시에 당선되지 못하게 할 목적으로 공소외 3 후보자에게 불리하도록 공소외 3 후보자가 ○○판타시온리조트 조성사업을 유치하였다는 것은 거짓이고 공소외 3 후보자는 피고인이 ○○시장 재직중에 유치해 놓은 ○○판타시온리조트 조성사업의 장소만 옮겼을 뿐 ○○판타시온리조트 조성사업의 유치에는 전혀 기여한 바가 없다는 취지로 공소외 3 후보자에 관하여 허위의 사실을 공표하였다.

(2) The judgment of the court below

(가) 당심에 이르러 공소장이 변경되어 공소사실 중 위 ⑴의 ㈎항의 피고인이 사실을 공표한 기간 및 공표한 매체가 특정되거나 변경되었으나, 이 부분의 쟁점은 여전히 피고인이 ○○판타시온리조트 조성사업을 유치하였다고 평가할 수 있는지 여부, 그리고 위와 같이 평가할 수 없다면 피고인이 이와 같이 공표함에 있어 허위성을 인식하였는지 여부에 있어 원심과 그 쟁점이 동일하다.

(B) The lower court determined that: (a) on May 2006, 2006, the Defendant’s fifth public offering (which appears to be a clerical error in the 6th public offering) did not appear to have been discussed; (b) it appears that the 000-to-the-spot development project appears to be a new promotion project after the lapse of one year due to Nonindicted 15’s purchase of the site, the 00-to-the- ○○○ market, and the solicitation of the 00-to-the-○○ hot spring resort development project, and the 3rd public offering of the 00-to-○○ hot spring resort development project (hereinafter “the 00-to-○ hot spring construction”) continued to exist; and (c) on the premise that there was a lack of awareness that the two identical projects or the 000-to-○ resort development project was a false one-year public announcement of the 3rd public prosecutor’s false perception of the 3rd public announcement of the 3rd public announcement of the 3rd public prosecutor’s evidence.

(3) Judgment of the court below

(A) Facts of recognition

According to the evidence duly adopted and examined by the court below and the court below, the following facts are recognized.

(1) Part of a project to create a hot spring resort complex.

On December 29, 2004, ○○○○○ City established a basic plan to create a comprehensive resort complex on the 96,309 square meters of the Changdong-gu, ○○○○○○ City on December 29, 2004. The said project was planned to attract investment by private investors of this case, which sold the 65,778 square meters of recreation, shopping, accommodation and hotel sites, and 1,807.68 square meters of bathing and ancillary facilities, among them, to create a comprehensive resort complex by selling the 65,778 square meters of the project site, etc. at the Si. In addition, the project period is from 2004 to 2009, while the total project cost is KRW 7374,300,000 of the total project cost is KRW 11.66,600,000,000,000,000 investment, and KRW 62,83,000.

(2) On January 24, 2005, the C&C construction, the representative director of which was non-indicted 15, participated in the above public offering on March 31, 2005, and the C&C deliberation committee decided to re-public offering of private investment (e.g., E&C construction withdrawn the above application on April 26, 2005).

C&C construction has been selected as an eligible business entity for the designation of a project implementer as a result of the deliberation by participating in the fourth and fifth public bids, but the contract was not concluded.

BC Construction received the draft agreement demanding the change of payment method of the purchase price in installments and payment method, the extension of project period, impact assessment, etc. and the implementation of legal procedures such as the cost and the burden of development charges, the guarantee of the right to exclusive use of hot spring water, etc. on March 21, 2006 by participating in the 6th public offering on February 10, 2006, and on March 21, 2006, at ○○○○○○○○○○○○○○○○○○○○, etc., and received a public notice from ○○○○○○ on April 21, 2006, stating that business participation is impossible at ○○○○○○○○ on May 12, 2006 (the above public notice on April 21, 2006, approved the Defendant also).

On the other hand, as the defendant gets back to the election of the ○○ City, he suspended the duties of the mayor from May 4, 2006 to May 30, 2006, and received from E&C Construction, the next fung Pung, the deputy head, finally approved it as the Mayor acting for the mayor, and the seventh franchis on May 25, 2006, the above franchisity was finally resolved.

㉳ 그 후 피고인은 ○○시장 선거에서 낙선함에 따라 2006. 6. 30.자로 시장직에서 퇴임한 후 2006. 7. 5.자로 풍기온천휴양단지 조성사업이 민간투자자 7차 공모 중이라는 내용 등이 포함되어 있는 ‘ ○○시 사무 인계인수서’에 전직 시장으로 서명하였다.

㉴ ○○시는 2006. 11. 10. 제8차 풍기온천민간투자가 공모를 하고, 2007. 6. 28.에 제9차 민간투자가 공모를 하였으나 참여업체가 없어 모두 무산되었으나, 지속적으로 민간투자자 유치를 추진하고 있다.

(2) Part concerning the ○○○ Lypt development project.

On December 206, 2006, Non-Indicted 15 purchased a lot of land located in Ado-dong from the land for the hot spring resort complex to the extent of eight km away from the land for the hot spring resort complex. Non-Indicted 3 National Assembly members, Non-Indicted 14, Non-Indicted 17, the chairman of the ○○ City Council, and the chairman of the ○○ City Chamber of Commerce and Industry, etc., who became aware of these circumstances, requested investment.

(C) On February 22, 2007, Non-Indicted 15 received a comprehensive L&C investment intent in the name of E&C S. on March 21, 2007, in consultation with ○○ and ○○, including setting up the requirements for private investment in ○○ city.

In the name of EWS, Non-Indicted 15 prepared a memorandum of around 4 May 2007, after entering into an investment agreement with ○○ on the 11st day of the same month, and entered into an investment agreement with ○○ on the 19th day of the same month, and became a public ceremony on October 19 of the same year.

Along with the ○○ City's stability, the C&M project is a project that creates accommodation facilities, amusement facilities, etc. with the business period from 2007 to 2011, the total project cost of KRW 180 billion. Around October 2007, the name of the project was changed to the ○○ P&M development project through brand open recruitment around October 2007.

In early 2008, Non-Indicted 15 requested the cooperation of the supply of ready-mixeds to the above business because Non-Indicted 15 found the ready-mixed company that is operated by the defendant and carried out the business due to the defendant.

(B) Determination

① Determination on whether false facts are false

As seen above, the project for the creation of a tourist hot spring resort complex is a project for the creation of infrastructure at ○○ City and the creation of a comprehensive resort complex by selling part of the site and the bathing room, etc. to private investors, whereas the project for the creation of the ○○○○○ City Steering Group is entirely different from the main contents, such as the method and nature of the project for the development of a resort facility including the infrastructure by purchasing the site of the private investors, and the scale of the project differs by at least two times. In light of the fact that there is a difference between the two projects and the two projects, only the said two projects are

(C) In addition, the project to create a hot spring resort complex is planned and promoted at the time of the Defendant’s employment in the ○○○ market, and even after the Defendant’s non-participation notice was given, efforts have been made to attract private investment by inviting private investment on June 28, 2007. However, in light of the fact that Nonindicted 15’s renunciation of participation in the project to create a hot spring resort complex after Nonindicted 15’s renunciation of participation in the project, Nonindicted 15 newly purchased the site for the implementation of the project, and currently implements the project at the request of Nonindicted 14 ○○ market and Nonindicted 3 National Assembly members, etc., and the Defendant did not make any effort to attract the said project, the Defendant cannot be said to have induced or contributed to attracting the ○○○○○ resort development project.

However, it is not consistent with the truth that Nonindicted 3 candidates moved only to the place of the above business, and the fact that the Defendant made public the false information about the candidate to the extent that the accurate judgment on the candidate is to be affected.

② Determination as to whether false information is recognized

As seen above, as long as it is difficult to ascertain or prove that the facts were false in light of the nature of the fact of publication, the existence and content of explanatory materials, and all the circumstances such as the Defendant’s academic background, career, social status, time and time of publication, and objectively anticipated ripple effects arising therefrom, should be determined on the basis of the Defendant’s source and awareness of the fact revealed, it is inevitable to determine them on a normative basis. In other words, as seen in the above facts, the project for creating a hot spring resort complex appears to have been implemented mainly by the Defendant while working in the market in light of the above circumstances, such as the size and ripple effect of the project, and the ○○○○ City notified the Defendant of the opinion meeting that the Defendant could not accept the requirements of this case’s construction before the suspension of market duties. In light of the fact that the Defendant was aware of the fact that the hot spring resort development project was established in the above opinion line with the Defendant’s project’s implementation of the project’s implementation of the project’s implementation of the project’s implementation of the project’s implementation of the project’s implementation of the project’s implementation of the project’s and the project’s implementation of the project’s implementation of the project.

Therefore, the prosecutor's assertion on this part is well-grounded.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act without examining the prosecutor's allegation of unfair sentencing as to the guilty portion, and the prosecutor's appeal is well-grounded, and the guilty portion is concurrent with the above acquittal portion under the former part of Article 37 of the Criminal Act. Thus, the judgment of the court below is reversed in accordance with Article 364(2) and

In the 18th election of National Assembly members of April 9, 2008, the Defendant, who claimed a “lostous solidarity to which he belongs” in the 18th election of National Assembly members of ○○ City, went out, but was killed.

1. The distribution of documents by unlawful means;

No one shall distribute, post, distribute, play, or run an advertisement, letter of personnel management, poster, photograph, document, picture, picture, printed matter, recording, video tape, or other similar things which include the contents supporting, recommending, or opposing a candidate (including a person who intends to become a candidate) without following the provisions of the Public Official Election Act from 180 days before the election day to the election day, or which indicates the name of a political party or candidate's name.

On March 29, 2008, the defendant sent a letter of invitation informing the defendant of the opening of an election campaign office in order to enter the defendant's photograph, book, etc. in the above invitation book in detail.

피고인은 2008. 3. 26.경 ○○시 중앙로 41 소재 ○○우체국에서 ‘친박무소속 피고인 국회의원후보 사무소 개소식에 정중히 초대합니다’라는 제목으로 ‘ ○○의 자존심! 경제! 확실히 찾겠습니다!’, ‘ ○○의 자존심을 찾아 첫째도 지역경제 둘째도 지역경제 오로지 경제를 살리는데 온힘을 쓰겠습니다’, ‘안녕하십니까? …… 낙후된 현실을 바라보고만 있기엔 너무나 안타까운 심정으로 박근혜 전 한나라당 대표와 같은 길을 가고자 저 피고인은 이번 제18대 국회의원선거에 친박무소속으로 출마키로 결심을 하게 되었습니다. 여러모로 바쁘실 줄 알지만 부디 한 걸음 하셔서 ○○를 사랑하는 깊으신 마음을 듬뿍 담아주시기를 간절히 바랍니다. 도와주십시오’, ‘시장 재임시 월급을 모아 좋은 일을 하겠다는 약속을 지키기 위해 선거 당시 공약한 영어마을을 전국에서 민간 최초로 설립하여 2세 영어교육을 위해 봉사하고 있습니다’, ‘전국 사과 주산지 시장, 군수협의회 초대회장을 역임하였습니다. ○○시장 재임시 지속가능도시 대상을 3년 연속 수상하였습니다. ○○시를 전국 최초로 스포츠 도시로 선언하였습니다’는 등의 내용을 기재하고, 피고인의 사진을 넣은 선거사무소 개소식 초청장을 공소외 5 등 226명에게 발송하였다.

2. Publication of false facts.

(a) Publication of false facts related to the representatives prior to gambling;

On March 25, 2008, the Defendant was aware that the former president visited the former president of the Park Jong-hee, and was present at the above place on the premise that he will be elected by taking advantage of the pro-friendly tendency of the electors in the Daegu-Gyeongbuk-gu area. The former president of the Park Jong-young was present at the above place. The former president of the Park Jong-young was a courtesy of the Defendant and the supporter ( Nonindicted 6, 7, 8, 9, 10, 10, 11, 12, etc.) who was gathered, and did not speak to the Defendant, who did not have any particular relationship.

The Defendant, as above, does not have a direct knowledge of the speech that “the Defendant returned to Korea” from the preceding representative prior to Park Jong-young, for the purpose of winning an election:

around 14:00 on March 29, 2008, at the location of the Defendant’s election office located in ○○○ City, “When the survival of the President Park Jong-hee visited, the former representative of Park Jong-young knife knife knife knife knife knife knife and knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife

Around 19:35 of April 2, 2008, an election broadcast broadcast broadcast was contributed to an election broadcast broadcast speech conducted on April 2, 2008 and made a speech to unspecified electors, and “I have taken a hand from the Gu and made a speech to “I have taken a hand,” and “I have returned to I have taken a hand;

On April 5, 2008, around 16:35, 2008, while paying attention to unspecified electors in the vicinity of the Hancheoncheon-si located in ○○○○○○ City, the fact was announced falsely by stating that “I am on the Twelve that I am on the Twelve (TV) that I am on the “I am Do Do Do Do Do Do Do Do Do Do Do Do ,” although there was no direct seeing the horses from the former Do Do Do Do Do Do.”

(b) Publication of false facts regarding the attraction of ○○○○○ Market Development Project;

○○○○○○ City Development Project, which is being constructed in the 6th area in the ○○○ City, in the 6th area in the Asia-dong, a local constituency, was a project that is entirely different from an investment consultation with the above Nonindicted 15 at the time of the Defendant being employed in the ○○○○○ City, and was a project that continuously solicits Nonindicted 3, ○○○ City Council members, and Nonindicted 14 at the ○○○ City, to make investments in the area to Nonindicted 15, the representative director of E&S Co., Ltd., and that Nonindicted 15 at around May 4, 2007, the said Nonindicted 16, the above Nonindicted 14, and the above Nonindicted 15, as a project that was induced by entering into an investment agreement. Nevertheless, when the Defendant is employed in the ○○ City, the project was a project that was not opened when the Defendant was employed in the ○○ City.

(1) For the purpose of election, from February 2, 2008 to April 9, 2008, the Defendant stated that the “culture and tourism field” column in the “culture and tourism field” in the “culture and tourism field” column in Chapter 4,442 promotional materials for the National Assembly member of ○○○ City National Assembly and Chapter 50,015 of the booktype-type election campaign bulletin for the National Assembly member of ○○○○ City” was “for the purpose of election, attracting and designing the L&C-type L&C-type L&C-type L&C-type tourism” and published false facts by asserting that the Defendant had induced the ○○○○○○○ City-type L/C-type

(2) At around April 4, 2008, the Defendant attended and discussed the broadcast discussions of the candidate for the ○○ area held in Ansan-dong MBC, the Defendant was aware that, “I would see that I would have been able to attract Non-Party 3 candidates with a thickness, and Non-Party 3 candidates would have been able to play a role in moving I would like to a stable village. I would like to know that I would like to see that I would see that I would have been discarded while I would like to see that I will see that I will start and newly attract I would like to do so. I would like to see that I would like to see that I would like to see that I would see that I would have been able to see that I would have been able to do so. I would like to see that I would like to see that I would see that I would have to move to the market without any connection with the 15th president.

2008. 4. 8. 11:40경 ○○시 풍기읍 소재 풍기역 부근에서 거리유세 당시 연설함에 있어, “저는 아지동에 온천단지를, 리조트판타시온을 거기 간다 그는 걸 허가 안 해준 사람입니다. 근데 지가 나가니까 풍기온천단지에다가 판타시온리조트를 하려고 결정했는 것이 안하고 있다 바로 안정 동촌으로 가버렸지 않습니까? 왜 이 말씀을 드리냐 하면은 봉현의 산을 거쳐서 산지유통센터와 이 풍기온천과 부석으로 이루어지는 이 통로가 동선이 되버렸는데 관광객이 머물러 가고 여기 와서 물건을 사가지고 가도록 이렇게 만들어야 하는데 안정 동촌에 갔다 놨단 얘기래요. 이거는 풍기읍민을 아주 무시하는 거고 왜 풍기읍민을 이렇게 버려야 됩니까? ○○를 망치는 일이 바로 그거 한가지만 해도 망치는 일이라고 생각합니다. 그래서 풍기읍민 여러분께서는 이렇게 된 원인이 누구 때문이냐, 리조트판타시온을 유치했다고 실지 유치도 안하면서 장소만 옮긴 사람이 바로 상대방 후보가 아니었느냐, 저는 그렇게 생각해서 저 풍기온천단지를 활성화시키겠습니다. 저가 대기업하고 여러 가지 절충을 하고 있는 중입니다.”라고 말하고,

2008. 4. 8. 18:30경 ○○시 소재 ○○오거리 부근에서 거리유세 때 연설함에 있어, “또 시장 4년을 저가 했습니다. 시민들 성원으로 인해서 시장 4년을 했지만은 큰 성과를 거두었다고 얘기합니다. 4년 시장을 했지만 10년 했는 경우와 같다 그런 평을 하는 사람이 많습니다. 그런데 상대 후보는 뭘 했습니까? 4년 동안, 국회의원 4년 동안 뭘 했냐구요. 어제 그저께 TV 토론 때 공약 한 개도 안했답니다. 그래도 한 개 있다고 그래요. 이앤씨판타시온했다 이래드라구요. 이앤씨판타시온 유치했다 그러는데 누가 유치했습니까? 저가 공소외 15 사장하고 협의하고, 설명하고, 15억짜리 설계도 만들고 저가 유치했는데 그걸 유치했데요. 사실 했다 그러면 있습니다. 뭘 했느냐. 풍기온천단지 외에는 피고인은 허가해 준 거 없고, 풍기온천단지 하는 조건에서 설계를 했드랬습니다. 그런데 저가 시장 그만두니까 안정 동촌으로 옮겼어요. 많은 의아하게 생각하는 사람들이 많습니다.”라고 말하여,

For the purpose of election, Nonindicted 3’s attraction of Nonindicted 3’s candidate to Nonindicted 3’s disadvantage at the time of attracting a false fact as if the Defendant had been confined at the time of his employment as the ○○ market, and at the same time with the aim of preventing him from being elected. Nonindicted 3 published false facts with respect to Nonindicted 3’s candidate to the effect that: (a) Nonindicted 3’s candidate moved to the place of the ○○○○○○○○○○○○○○○○ Industries development project, which was kept by the Defendant in office in the ○○ market; and (b) Nonindicted 3’s candidate only moved to the place of the ○○○○○○○○○○○

[Fact 1]

1. Legal statement of Nonindicted 1’s witness

1. Statement of the defendant in the seventh trial records of the court below;

1. The statement of the witness Nonindicted 1, 2, and 5 in the third trial record of the court below

1. The statement of the witness Nonindicted 17 in the sixth trial record of the court below

1. Entry of the statement of the suspect examination protocol by the prosecution against the accused;

1. Statement of each police statement on Nonindicted 1, 4, and 5

1. Entry of Nonindicted 5’s written accusation

1. To describe the delivery of a copy of the documents related to the place of invitation for opening an election campaign office;

1. Entry in the investigation report (report on the binding of copies of invitation forms for opening an election campaign office);

【Court No. 2-A's Facts】

1. Defendant's legal statement;

1. Legal statement of the witness Nonindicted 18

1. Statement of the defendant in the seventh trial records of the court below;

1. The statement of the witness Nonindicted 5 and 18 in the third trial records of the court below

1. Entry of the statement of the suspect examination protocol by the prosecution against the accused;

1. Statement of each police suspect examination protocol against the accused;

1. Statement of each police statement on Nonindicted 5

1. The statement in the written additional petition for Nonindicted 5’s preparation

1. Each investigation report (the date of resignation from the Korean National Assembly member, the confirmation of the registration date of candidates for the election of the National Assembly member in the 18th National Assembly member, and Nonindicted 12 telephone conversations for the Korean National Assembly member in the current intended area);

[Article 2-2]

1. Defendant's legal statement;

1. The legal statement of the witness Nonindicted 15 and the fixed acceptance

1. Statement of the defendant in the seventh trial records of the court below;

1. The statement of the witness Nonindicted 5 and 20 in the third trial records of the court below

1. The statement of the witness Nonindicted 14 in the 7th trial record of the court below

1. Entry of the statement of the suspect examination protocol by the prosecution against the accused;

1. Statement of each police suspect examination protocol against the accused;

1. Statement of each police statement on Nonindicted 5, 19, and 20

1. Entry of the additional accusation note for Nonindicted 5’s preparation

1. Each investigation report (the report on the result of DoVD viewing of the copy of the 18th National Assembly member's debate held by the candidate for the National Assembly member, which was broadcasted on April 4, 2008, on the result of 000 ○○○○○ City, the criminal suspect's hearing of CD-records in front of the distance flow and the wind wave station, the confirmation report on the dispatch of promotional material of the preliminary candidate, the filing of data, including the outlines of the business of the winder, hot spring resort resort complex development project, and the development project of the winder and hot spring resort development project, and the confirmation

1. Relevant Article of the Act and the choice of punishment for the crime;

Article 255(2)5 of the Public Official Election Act, Article 93(1)5 of the Public Official Election Act (generally, distribution of documents by unlawful means), Article 250(1) of each Public Official Election Act (Article 250(1)2-1 of the Public Official Election Act at the time of sale)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (No. 2-B. b. The crime of publishing false facts for the purpose of election of Domen, the crime of publishing false facts for the purpose of election of Domen, the crime of publishing false facts for the purpose of defeat, and the punishment determined for the

1. Selection of punishment;

Selection of each fine

1. Aggravation of concurrent crimes;

Article 37 (Aggravation of Concurrent Crimes in Crimes of Offense of Violating Public Official Election Act due to Publication of False Facts for Purpose of Destigious Election, Articles 38 (1) 2 and 50 (Aggravation of Concurrent Crimes for Punishment)

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

Although the Defendant restricted the distribution of documents by means of law under the Public Official Election Act, the Defendant sent a letter of invitation by stating his own values, etc. to the open door, and announced false facts to the effect that he was able to use the elector’s friendship tendency, even though he did not have any private and political relationship with the former representative prior to the election campaign, he was able to use the elector’s friendship. In addition, he had the business induced by Nonindicted 15 with the efforts of the competition candidate, etc. even though he did not participate in attracting the public interest from Nonindicted 15, and announced the false facts that he had the competitive candidate moved into another area. Such crime by the Defendant infringes on fair competition in the election, and caused the elector to reflect the wrong will in the election by making an accurate judgment on the candidate. However, this crime is not somewhat unfavorable in light of the fact that the Defendant’s act did not affect the result of the election, that the Defendant’s endeavor to observe the age and career of the Defendant prior to the issuance of the instant letter of invitation, and that there was any other factors such as the Defendant’s order and career of punishment.

Judges Cho Jong-sung (Presiding Judge)