[1] A profit bridge to meet the grounds for excluding illegality under the proviso of Article 251 of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts

[2] The legislative intent of the proviso of Article 251 of the Act on the Election of Public Officials and the Prevention of Unlawful Election

[3] Requirements for falling under the proviso of Article 251 of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts

[4] Whether a prior conviction by a candidate for an election for public office constitutes a fact concerning a public interest (affirmative)

[5] The case holding that the illegality of disclosing a criminal record before and after the other party candidate at the joint speech meeting constitutes the proviso of Article 251 of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts and subordinate statutes

[1] The proviso of Article 251 of the Act on the Election of Public Officials and the Prevention of Election Unlawful Act requires the general principles of legitimacy as long as it is one of the grounds for the exclusion of illegality, and in this respect, the protection of an individual honor and the freedom of expression under Article 21 of the Constitution and the principle of profit and bridge between the public interest should be taken into account. However, the profit and bridge should not be significantly more severe than the other. In this case, since the right to freedom of expression, which serves as the basis for the public interest, is an important right guaranteed by the Constitution, which should not be protected to the extent that the victim’s reputation based on human dignity and value is not protected, it is reasonable to view that the latter is justifiable as the grounds for the exclusion of illegality if it is more severe than the former.

[2] Article 310 (b) of the Criminal Act provides that the provisions of the former Presidential Election Act, the former Election Act, and the former Local Election Act shall be construed as excluding the case where the public interest should be at least the main motive and the incidental private interest is included. Thus, the illegality of the public interest should be avoided at least in the case where the public interest is superior to the private interest. However, such interpretation does not sufficiently guarantee the freedom of election campaigns, and where it is insufficient to provide sufficient information to the right holder to contribute to the election of a candidate as a public official, the proviso of Article 251 of the Public Official Election and the Prevention of Unlawful Election Act shall be deemed to delete the word "oly" from reflective consideration that the proviso of Article 251 of the former Election and Prevention of Unlawful Election Act is insufficient to contribute to the election of a public official. Thus, even if a statement of true fact does not necessarily have a superior motive to the private interest, it shall be deemed that the illegality is excluded pursuant to the same proviso if there exists a reasonable reason.

[3] In order to eliminate illegality under the proviso of Article 251 of the Act on the Election of Public Officials and the Prevention of Unlawful Election Act, the alleged facts are related to the public interest objectively in light of their contents and nature, and the perpetrator has the motive to indicate the facts for the public interest.

[4] The facts of previous conviction of a candidate who was candidate for an election for public office are not directly related to a crime or corruption in the course of performing his/her previous public office, and it becomes an important material to determine his/her quality and eligibility as a candidate for his/her public office, even if it is not directly related to a crime or corruption in the course of performing his/her previous public office, and it also becomes an important material to determine his/her qualification and eligibility as a candidate for public office

[5] In light of the fact that a criminal record was expressed in a way that reads the newspaper articles of daily newspaper at the place of the joint speech meeting held by the election commission, the fact that there was no exaggeration or distortion in the statement of the fact, and the method of expression, etc., it is reasonable to view that the defendant's expression of the above fact was a motive for the public interest in order to exercise appropriate voting rights by providing the data on the qualities of the counter-party candidates, although the evaluation of the counter-party candidate was at a private interest motive to make him/herself elected, by lowering the evaluation of the counter-party candidate, but it is reasonable to view that the latter would be more severe than the former, if the degree of infringement of the reputation of the counter-party candidate upon the publication of the past record, and the degree of interference with the right choice of the voters with the restriction on the freedom of expression generated by the counter-party candidate and the right choice of voters. Therefore, the defendant' statement of a criminal record of the counter-party candidate constitutes true fact and thus, it is unlawful in accordance with the proviso of Article 251 of the Election and

[1] Article 251 of the Act on the Election of Public Officials and the Prevention of Unlawful Election, Articles 10 and 21 of the Constitution / [2] Article 251 of the Act on the Election of Public Officials and the Prevention of Unlawful Election, Article 310 of the Criminal Act, Article 160 of the former Presidential Election Act (repealed by Article 2 of the Addenda of the Act on the Election of Public Officials and the Prevention of Unlawful Election, Act No. 4739 of March 16, 1994), Article 175 of the former Election of Public Officials Act (repealed by Article 2 of the Addenda of the Act on the Election of Public Officials and the Prevention of Unlawful Election, Act No. 4739 of March 16, 1994), Article 17 of the former Election of Public Officials Act (repealed by Article 2 of the Addenda of the Act on the Election of Public Officials and the Prevention of Unlawful Election, Act No. 4739 of March 16, 199) / [3] Article 251 of the Election of the Election of Public Officials and Prevention of Unlawful Act

[1] [3] Supreme Court Decision 92Do3160 delivered on June 22, 1993 (Gong1993Ha, 2188) / [1] Supreme Court Decision 85Meu29 delivered on October 11, 198 (Gong198, 1392) / [2] Supreme Court Decision 96Do519 delivered on April 23, 1996 (Gong196Sang, 1652) / [5] Supreme Court Decision 88Do899 delivered on February 14, 1989 (Gong1989, 4455) (Gong193Ha, 2199) / [193Ha, 2199)] Supreme Court Decision 93Do1035 delivered on June 222, 1993

Defendant

Defendant

Seoul High Court Decision 96No139 delivered on March 28, 1996

The judgment below is reversed and the case is remanded to Seoul High Court.

1. Summary of the facts charged in this case

The defendant is the candidate of the Dongdaemun-gu Council member, who is the candidate of the other candidate for the non-party 1: around 147 June 17, 1995, when he makes a speech at the joint speech meeting of the candidate of Dongdaemun-gu Council member (former 2 Dong-dong) held in the small park located in Dongdaemun-gu Seoul, Dongdaemun-gu, Seoul (Seoul 2 Dong-dong) on September 11, 1991 with a view to preventing the other candidate from being elected, the defendant presented the newspaper to Dong-dong on September 11, 1991, and "this newspaper will be briefly read." The medical practice, the warrant of the Seoul Seoul Gu Council, and the Seoul Cheongsan Police Station will apply for the detention warrant to the non-indicted 1 of the Dongdaemun-gu Seoul Dongdaemun-gu Seoul Metropolitan Council as a special measure for the violation of the Health Crimes Control Act, and how much the non-indicted 1's life will be infringed as a security, and it would be obvious that the non-indicted 1's life will not be infringed.

2. Summary of the judgment below

The judgment of the court below held that the defendant's act of this case constitutes a crime of aiding and abetting candidates under the main sentence of Article 251 of the Public Official Election Act (hereinafter "Public Official Election Act"), but the first instance court's act did not constitute a crime of aiding and abetting candidates under the proviso to Article 251 of the same Act, and that the defendant's act of this case committed an unlawful act of misunderstanding the legal principles as to public interest under the proviso to Article 251 of the same Act, and therefore, the judgment of the court of first instance reversed the judgment

A. In order to fall under the public interest under the proviso of Article 251 of the Public Official Election Act, the expression of the fact refers to the expression of the fact objectively deemed to contribute to the public interest of society and society without being related to the appraisal or interest of a candidate, a specific individual or organization. Subjectly, the factual motive of the factual motive is not an individual’s private interest but for the public interest. Whether the alleged fact concerns the public interest or not should be determined by comparing and balancing the degree of infringement of other persons’ reputation or personality, including the specific contents of the alleged fact in question, the scope of the other party to whom the relevant fact was published, the method of expression, etc., in individual cases.

B. Even if a democratic society permits infringement of personal rights, such as an individual’s reputation, in order to guarantee the freedom of political expression or the right to know, it should be strictly construed that public interests obtained by the public allegation of facts are considerably more severe than the personality rights infringed on by the public allegation of facts, by sufficiently taking into account the nature of personality rights that form an important part of human dignity and value and the difficulty in ex post

In addition, Article 251 (A) of the Public Official Election Act stipulates a crime against candidates and punish them, which is to protect the reputation of candidates by preventing excessive personal attack against candidates, and furthermore, the purpose of legislation is to ensure fairness in the election, and therefore, it should be fully considered in the application of the proviso of Article 251 of the Public Official Election Act.

In addition, in a broad interpretation that illegality should be avoided in light of the public interest in the election process, such as a prior conviction of the other candidate, when the disclosure of the past facts such as the past facts of the public interest, the illegality should be widely interpreted. In addition, it may be abused even in a case where a candidate was indicted for an investigation agency regardless of whether he/she was admitted to the investigation agency, but the judgment of innocence was pronounced, or other cases where the defendant was detained or prosecuted. Furthermore, even if a judgment of suspended sentence or suspended sentence was rendered, if the sentence was rendered, the effect of the sentence will expire or be acquitted after a certain period of time, and even if the sentence was issued, if it is interpreted that the publication of a prior conviction of the other candidate is widely permitted in accordance with certain procedures, the purport of the main sentence of Article 251 of the Public Official Election Act would be eliminated.

In full view of these circumstances, in order to prevent illegality of the public interest pursuant to the proviso of Article 251 of the Public Official Election Act, it should be applied only when the candidate's previous conviction constitutes a criminal record directly related to the public interest, such as a crime or corruption committed in the course of the candidate's past public service.

C. According to the evidence duly examined and adopted by the court of first instance, it is true that Nonindicted 1, the counterpart candidate of the defendant, was qualified as a herb druggist at the time of his employment as a member of the Dongdaemun-gu Gu, and did not meet the qualification as herb doctor, and that he was indicted on September 11, 191 for a violation of the Act on Special Measures for the Control of Public Health Crimes and a violation of the Medical Service Act, and the judgment became final and conclusive after being sentenced guilty. Thus, the defendant presented the same newspaper at the joint speech site where about 30 persons of the public office were 30 persons of the public office, as in the facts charged, at the joint speech site where 30 persons of the public office were gathered, to the effect that the above Nonindicted 1 applied for detention warrant due to a violation of the Act on Special Measures for the Control of Public Health Crimes by committing illegal medical acts, but according to the above evidence, it does not constitute imprisonment with prison labor and the fact that the above candidate was sentenced as a member of the Gu, and thus, it cannot be seen as having committed the above criminal facts.

3. Judgment on the grounds of appeal

A. First, the proviso of Article 251 of the Public Official Election Act requires more than one of the grounds for dismissal of illegality, and in this respect, the protection of an individual’s reputation and the freedom of expression and the principle of a bridge between the public interest pursuant to Article 21 of the Constitution should be taken into account (see Supreme Court Decision 92Do3160, Jun. 22, 1993). However, the benefit bridge does not significantly focus on whether the higher value is more than that of the other. In this case, the right of freedom of expression, which serves as the basis for public interest, is an important right guaranteed by the Constitution, to the extent that it is not a victim’s reputation based on human dignity and value, and therefore, it is reasonable to deem that the above proviso is justifiable if the latter is more severe than the former one, it is reasonable to deem that the above proviso only applies to the case where the public interest obtained by the statement of fact is significantly more than that of the victim’s reputation.

B. Article 310 of the Criminal Act provides that "If the act under Article 307 (1) is true and solely for the public interest, it shall not be punished", and Article 160 (1) of the former Presidential Election Act, Article 175 (1) of the former Election Act, Article 175 (1) of the former Election Act, and Article 177 (1) of the former Local Assembly Members Act, etc. (repealed by the implementation of the Public Official Election Act) provide that "if the act under Article 310 (1) of the Act is true and solely for the public interest, it shall not be punished" and the proviso to Article 251 of the Public Official Election Act provides that "if it is true and is for the public interest, it shall not be punished."

Article 310 (b) of the Criminal Code provides that the public interest shall be at least the main motive and only where the incidental private interest is included therein (see Supreme Court Decision 92Do3160, Jun. 22, 1993). Thus, the public interest shall be deemed to fall under at least where at least the public interest is superior to the private interest (see Supreme Court Decision 92Do3160, Jun. 22, 1993). However, such interpretation requires that the proviso of Article 251 of the Public Official Election Act was deleted from reflective consideration that it is insufficient to sufficiently guarantee the freedom of election campaigns and to provide sufficient information to the right holder, thereby contributing to the election of a public official in charge of public affairs. As such, the proviso of Article 251 of the Public Official Election Act is to delete the word "oly" from the perspective of reflective outcomes that it is difficult to give sufficient information to the right holder. Thus, even if the statement of true fact does not necessarily have a superior motive to the private interest, if there

C. In addition, in order to eliminate illegality pursuant to the proviso of Article 251 of the Public Official Election Act, the alleged facts are related to the public interest objectively in light of their contents and nature, and the perpetrator should also have the motive to indicate the facts for the public interest (see Supreme Court Decision 92Do3160, Jun. 22, 1993).

However, even though the facts of conviction of the candidate who was candidate for the election for public office are not directly related to the crime or corruption in the course of performing the previous public office, it becomes an important material to determine his/her quality and eligibility as a candidate for his/her public office, as well as the facts related to the public interest since he/she received the final judgment of the court, even though it is not directly related to the crime or corruption in the course of performing the previous public office.

In order to prevent illegality of a candidate's prior conviction or not guilty under the proviso of Article 251 of the Public Official Election Act, the court below held that such prior conviction or a prior conviction should be applied only when it constitutes a crime committed in the course of performing the public service or a crime directly related to the public service, such as corruption. However, the reason why disclosure of prior conviction or a crime committed in the course of performing the public service accords with the public interest is that the disclosure to the voters would provide the right holder with information to select relatively decent and personality relatively excellent candidates. Thus, disclosure of candidate's prior conviction or other criminal records is clear that the same function can be performed, and (ii) disclosure of candidate's prior conviction or non-guilty verdict cannot be made public, but (iii) disclosure of candidate's prior conviction or non-guilty verdict could not contribute to candidate's quality judgment, and thus it is difficult to recognize it as a public interest. In the case of suspension of execution or suspension of sentence, it is difficult to determine that the candidate's prior conviction or non-guilty verdict becomes void for a certain period of time, and thus, it cannot be objectively determined as an objective.

D. Therefore, in light of the above legal principles, the criminal facts that Nonindicted Party 1, the counter candidate of this case, opened a member who lent the name of an oriental medical doctor even without the qualification of an oriental medical doctor, and thus, was convicted of violating the Act on Special Measures for the Control of Public Health Crimes, even though the judgment of suspension of sentence was finally rendered, it shall be deemed as useful as a judgment on the suspension of duty, compliance, and suitability of public service of the above candidate, and thus, it shall be deemed as a public interest.

In addition, as found by the court below, in light of the fact that the defendant stated his previous offense by reading the newspaper articles on the daily newspaper articles on the decision at the joint speech site held by the election commission, there is no exaggeration or distortion in the statement of fact, and the method of expression, etc., it is reasonable to view that the defendant's statement of the above fact has a motive for private interest to make him elected by lowering the evaluation of Non-Indicted 1, the counter candidate, but it is also reasonable to view that the public interest that the defendant intended to exercise the appropriate right to vote by providing the materials about the qualification of the counter candidate to the voters.

In addition, it is reasonable to view that the latter is more severe than the former if the degree of infringement of reputation (personal rights) of Nonindicted 1, the other party, by publishing the aforementioned previous facts and the degree of obstacle to the defendant's freedom of expression and the right choice of voters, which may arise in the event of prohibition.

Therefore, it should be deemed that the illegality of the proviso of Article 251 of the Public Official Election Act should be avoided since the Defendant’s statement of Nonindicted Party 1’s criminal record, who is the opposite candidate, in this case, constitutes true facts and when it comes to the public interest. Nevertheless, the court below erred by misapprehending the legal principles of the proviso of Article 251 of the Public Official Election Act, which affected the conclusion of the judgment. Thus, the ground of appeal assigning this error is with merit.

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating judges.

Justices Park Jong-ho (Presiding Justice)