[1] The meaning of "false facts" under Article 250 (2) of the former Public Official Election and Prevention of Unlawful Election Act

[2] The scope of "a person who intends to become a candidate" included in the object of publication of false facts for the purpose of abortion under Article 250 (2) of the former Public Official Election and Prevention of Unlawful Election Act

[3] Meaning of "public announcement" under Article 250 (2) of the former Act on the Election of Public Officials and the Prevention of Unlawful Election, and whether a speech containing false facts in a rally for party members of the affiliated political party constitutes such a campaign speech (affirmative)

[4] The requirements under the proviso of Article 251 of the former Public Official Election and Prevention of Unlawful Election Act

[1] In order to establish a crime of publishing false facts for the purpose of abortion under Article 250 (2) of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 5262 of Jan. 13, 1997), a false fact shall be first published, and the false fact here shall be stated. The fact that is not consistent with the truth and is sufficient if the elector has the identity to the extent that it can cause the accurate judgment of the candidate to be affected by the accurate judgment of the candidate, and the fact is not necessary to be clearly specified over the time, place, means, etc., but it does not constitute merely an expression of opinion with the content of value judgment or evaluation.

[2] Article 250 (1) of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 5262 of Jan. 13, 1997) provides that "candidate" (including a person intending to become a candidate; hereafter the same shall apply in this Article), "candidate" in Article 250 (2) of the same Act includes "person intending to become a candidate". Here, "person intending to become a candidate" refers to a person scheduled to run in the election in question, and not only to cases where a candidate applies for an official election for a political party or prepares activities to obtain a candidate recommendation from an ordinary elector, but also to cases where the candidate objectively becomes recognizable that he/she has an intention to run in the election in question, in light of his/her status, contact, speech, behavior, etc., and thus, it cannot be an object of the crime of false publication of a candidate for the purpose of defeat before the election campaign period, since the candidate's registration begins after the completion of the candidate's registration.

[3] The term "disclosure" under Article 250 (2) of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 5262 of Jan. 13, 1997) refers to the publication of false information to many and unspecified persons, regardless of the means or method, so it does not lead to the crime of publishing false information, on the ground that such false information is included in a campaign speech at a rally of party members of a political party to which he/she belongs.

[4] In order to eliminate illegality pursuant to the proviso of Article 251 of the former Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 5262 of Jan. 13, 1997), the facts alleged in the statement should be considered as a whole and consistent with the truth, and from an objective perspective in light of its content and nature, an offender is related to the public interest and is also related to the public interest. However, even if the public interest is not a superior motive to the private interest, both parties exist at the same time and there should be reasonable grounds.

[1] Article 250 (2) of the former Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 5262 of Jan. 13, 1997) / [2] Article 250 of the former Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 5262 of Jan. 13, 1997) / [3] Article 250 (2) of the former Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 5262 of Jan. 13, 1997) / [4] Article 251 of the former Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 5262 of Jan. 13, 1997)

[4] Supreme Court Decision 96Do519 delivered on April 23, 1996 (Gong1996Sang, 1652), Supreme Court Decision 96Do977 delivered on June 28, 1996 (Gong1996Ha, 2432), Supreme Court Decision 96Do1741 delivered on November 22, 1996 (Gong197Sang, 137), Supreme Court Decision 97Do956 delivered on June 10, 1997 (Gong197Ha, 2085)

Defendant

Defendant

Gwangju High Court Decision 97No555 delivered on June 10, 1998

The appeal is dismissed.

We examine the grounds of appeal.

1. As to the publication of false facts for the purpose of falling away

A. In order to establish a crime of publishing false facts for the purpose of abortion under Article 250(2) of the former Act on the Election of Public Officials and the Prevention of Election Malpractice (amended by Act No. 5262 of Jan. 13, 1997; hereinafter referred to as the "Election Act"), the crime of publishing false facts for the purpose of abortion should first be published, and the term "the false facts" is sufficient if it is a fact inconsistent with the truth that is sufficient if the elector has the possibility of causing the accuracy of the candidate to be affected by the accurate judgment, and the fact is not necessary to be clearly specified over the time, place, means, etc., but it does not constitute merely an expression of opinion with the content of value judgment or evaluation.

The summary of the publication of false facts for the purpose of the abortion that the court below found guilty is that "the defendant requested that the non-party be able to help but failed to help the non-party," and the defendant's statement is about the defendant's value judgment as a whole, but the contents of the statement are somewhat included in the defendant's opinion about the defendant's value judgment, and it is about the fact that the non-party's candidate's identity can be affected by the correct decision. The decision of the court below which seems to be that the decision of the court below is acceptable, and there is no illegality of law as to the difference between the statement of specific facts and the simple statement of opinion, such as the theory of the lawsuit, and there is no ground for the argument.

B. Article 250 (1) of the Election Act provides that "candidate (including a person intending to become a candidate; hereafter the same shall apply in this Article)" includes "person intending to become a candidate". The "person intending to become a candidate" in this context refers to not only to a person scheduled to leave the election in question but also to the extent that it objectively recognizable that the candidate has an intention to be a candidate for the election in question in light of his status, contact, speech, behavior, etc., not to a case where the candidate's intention is definitely expressed, such as the candidate's appearance or punishment for activities to obtain a candidate's recommendation from the general elector, but also to a case where the candidate's intention to be a candidate is objectively recognizable in view of his status, contact, or speech and behavior. Thus, the "candidate" in Article 250 (2) of the Election Act does not constitute an object of a crime of publication of false facts for the purpose of abortion as provided in this Article before the statutory election campaign period begins, and on the other hand, it does not include a false fact in the expression or any means of such false fact.

According to the records, at the time when the defendant made a false statement in the preceding paragraph, the 15th National Assembly member was absent and 29th National Assembly member at that time, and the non-indicted was naturally planned to leave the above election as the chairman of the local constituency belonging to the new Korean National Assembly member at that time, and the number of party members present at the above 150 National Assembly member present at that time, and if the facts are different, even if the non-indicted is the person who wants to become the candidate for the 15th National Assembly member even if he knew of the false facts at the 25th National Assembly member's rally, the non-indicted is the person who wants to become the candidate for the 15th National Assembly member, and the place of speech is many people, and the defendant's above so-called crime of publishing false facts for the purpose of the 15th National Assembly member's defeat as provided in Article 250 (2) of the Election Act is just, and there is no ground to hold that there is no error in law such as the theory of lawsuit.

The Supreme Court Decision 94Do753 Decided February 3, 1995 cited by the theory of the lawsuit is not appropriate to invoke it with regard to the prior election campaign.

2. As to the campaigning against a candidate

The summary of the facts of the candidate election campaign which the court below found guilty includes a person who intends to become a candidate as in the first sentence of Article 251 of the Election Act, since the defendant made a statement to the effect that "for the purpose of preventing the non-indicted candidate from being elected in the above party members' rally, he was a habitual offender who makes his behavior only at the time of assault in the garbage reclamation site at the south city of February 1, 200, and who assaults the police officers, university students, and village residents in the past and present public election surveillance team in the past," and that he slanders the candidate by openly pointing out facts. Thus, even if the defendant did not begin the election campaign period for the non-indicted candidate, the crime of this provision is not impeded even if the crime of this provision is established.

In addition, in order to be dismissed in accordance with the proviso of Article 251 of the Election Act, the facts alleged as a whole are consistent with the truth in light of the contents and nature of the facts, and are objectively related to the public interest in light of its contents and nature, and the perpetrator also has the motive to indicate the facts for the public interest. However, even if the public interest is not necessarily a superior motive, both parties exist at the same time and the reasonableness thereof should be recognized (see, e.g., Supreme Court Decisions 96Do977, Jun. 28, 1996; 96Do1741, Nov. 22, 1996).

According to the reasoning of the judgment of the court below, the court below judged that the defendant's above statement concerns the figures of the non-indicted who want to run for the election of public office, and it is not a public interest aspect in that it can be a material to judge the quality and eligibility as a candidate for public office, but since the private interest was a critical motive to scambling the scam and to let the defendant elected the candidate, it cannot be said that there is a substantial reason between the two. According to the records, the part of the defendant's above statement made violence against the police officer during the defendant's above statement is not true, and the whole purport of the statement is strongly showing the character of personal attack aimed at the defeat of the non-indicted, and in light of these facts and the above legal principles, the above judgment of the court below is acceptable, and there is no violation of law such as theory of defense and legal scenario as to the grounds for the scambling, etc.

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

Justices Lee Jae-soo (Presiding Justice)