2019Do13687 Violation of the Public Official Election Act

Defendant

Defendant

Law Firm (LLC)

[Defendant-Appellee] Plaintiff 1 and 1 other

Gwangju High Court ( Jeju) Decision 2019No57 Decided September 11, 2019

June 24, 2021

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

The grounds of appeal are examined.

1. Summary of the facts charged

In the local election conducted on June 13, 2018, the Defendant was elected as a Do Council member by going to the candidate for the (name omitted) constituency of Jeju City (name omitted). On June 4, 2018, the Defendant posted a telephone to Nonindicted 1, the electorate, the electoral electorate, for a period of 28 points. Around 30%, and 28.5%, the Defendant already put to a line. This means that “I have already been employed sports fields. A sexual party must go to a day.” However, since the Defendant was registered as a candidate, there was no fact that there was no public opinion poll for the said electoral district. Accordingly, the Defendant published the result of public opinion poll by distorted it.

2. Relevant legal principles

Article 96(1) of the Public Official Election Act provides that "no one shall publish or report the results of a public opinion poll relating to an election in distorted way." Article 252(2) provides that "any person who violates Article 96(1) shall be punished by imprisonment with prison labor for not more than five years or by a fine not less than 3 million and not more than 20 million won." This provision aims to ensure the fairness of election by punishing an elector by using trust in objectivity and fairness of a public opinion poll to exercise wrong influence on the judgment of the elector (see Supreme Court Decision 2017Do8822, Nov. 29, 2018).

The “public announcement,” which is a form of action under Article 96(1) of the Public Official Election Act, refers to widely revealing the distorted results of public opinion poll to many and unspecified persons. Although one person is aware of the distorted results of public opinion poll, if there is a possibility that it can be disseminated to an unspecified or unspecified person, this requirement is satisfied, but the prosecutor’s strict proof is necessary for the possibility of dissemination (see Supreme Court en banc Decision 2008Do11847, Dec. 22, 2011; Supreme Court Decision 2020Do5813, Nov. 19, 2020).

Meanwhile, in light of the legislative intent of Article 96(1) of the Public Official Election Act, “disscepted public opinion poll result prohibited from being published or reported pursuant to Article 96(1) of the Public Official Election Act” requires that information having the possibility of being disseminated to an unspecified person or many unspecified persons, which is likely to affect the elector’s judgment if it is published or reported. Therefore, in order to determine that the act of notifying individual persons on the grounds of the possibility of spreading information constitutes “public opinion poll result of a distorted public opinion poll”, it should be recognized that there is a possibility of being disseminated information that can be recognized as “disscepted public opinion poll result” through one person.

3. Determination as to the instant case

A. The reasoning of the lower judgment and the record reveal the following.

1) In the local election conducted on June 13, 2018, the Defendant was going to the constituency (the name of the constituency omitted) at the Jeju Special Self-Governing Province Council member election. A candidate who was going to the said constituency was the Defendant and Nonindicted 22 persons.

2) On June 4, 2018, the Defendant sent a phone call to Nonindicted 1, who was in front of an election, and made the same remarks as indicated in the facts charged.

3) Non-Indicted 1 did not record the contents of telephone conversations at ordinary times. At the time of the instant case, the contents of telephone conversations with the Defendant were set to be automatically recorded due to the problems with the contractor related to the construction work of the building, and accordingly, the contents of telephone conversations with respect to the Defendant were recorded.

4) On the day of the instant case, Nonindicted 1 asked Nonindicted 4 and Nonindicted 2, a party candidate who was going to run in the said election, at the candidate candidate site for Nonindicted 3 Jeju Do Governor.

5) Nonindicted 2 accused the Defendant on the following day.

B. Examining the aforementioned circumstances in light of the legal principles as seen earlier, it is difficult to view that the Defendant had an intentional intent to publish the distorted outcomes of public opinion poll to unspecified or many unspecified persons on the grounds that the fact that the Defendant made Nonindicted 1, while making a telephone conversation with Nonindicted 1, had an erroneous influence on the elector’s judgment, and that specific information likely to impede the fairness of election could have been disseminated. The reasons are as follows.

1) In the instant case, there is no evidence to deem that the Defendant made the same speech as that of the facts charged to Nonindicted 1 and other persons.

2) The Defendant requested Nonindicted Party 1 to provide the same words as written in the facts charged by asking Nonindicted Party 1 to jointly support with inside and outside personnel by telephone. Generally, the delivery of information by oral means is difficult to maintain and spread the form of the body, unless it is active or recorded.

3) Nonindicted 1’s recording of the contents of conversations with the Defendant is merely an easy circumstance.

4) Furthermore, it does not seem that the Defendant knew or could have known of Nonindicted Party 1’s recording.

C. Nevertheless, the lower court found the Defendant guilty of the instant facts charged solely on the grounds as indicated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the meaning of “public opinion pollsd” under Article 96(1) of the Public Official Election Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Justices

Justices Lee Dong-won

Justices Cho Jae-chul et al.

Justices Min You-sook

Justices Yang Tae-sung