[1] The meaning of "false facts" under Article 250 (1) of the Public Official Election Act and the method of determining whether a case falls under such provision

[2] The case holding that the act of an incumbent member of the National Assembly, who participated in an election of a member of the National Assembly, made a publicity or statement that "the Minister of Construction and Transportation received a promise to abolish the toll on the Ulsan Expressway" through the news materials, etc. and publicly announced it as a result of his achievements, constitutes a crime of publishing false facts under Article 250 (1)

[1] “False facts” under Article 250(1) of the Public Official Election Act is a matter that is inconsistent with the truth, and there is sufficient reason to have the electoral authority to make an accurate judgment on candidates. However, in a case where important matters are consistent with objective facts in light of the overall purport of the published facts, even if there is a somewhat exaggerated expression, it cannot be deemed that there is a false fact.

[2] The case holding that the act of an incumbent member of the National Assembly, who participated in an election of a member of the National Assembly, made a publicity or statement that "the Minister of Construction and Transportation received a promise to abolish the toll on the Ulsan Expressway" through the news materials, etc. and publicly announced it as a result of his achievements constitutes the crime of publishing false facts under Article 250 (1) of the

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

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

Defendant

Defendant

Attorneys Son Ji-yol et al.

Busan High Court Decision 2008No744 decided Dec. 30, 2008

The appeal is dismissed.

The grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed) are examined as follows.

1. Regarding ground of appeal No. 1

A. The false fact under Article 250 (1) of the Public Official Election Act is a matter that is inconsistent with the truth, and it is sufficient that the elector has the cal structure sufficient enough to mislead the exact judgment of the candidate (see, e.g., Supreme Court Decisions 99Do4260, Apr. 25, 2000; 2001Do6138, Feb. 20, 2003). However, in a case where the important part is consistent with the objective fact in light of the overall purport of the published fact, even if there is a little difference from the truth or somewhat exaggerated expression, it cannot be viewed as a false fact (see, e.g., Supreme Court Decisions 9Do5190, Feb. 26, 2004; 2003Do7423, Jun. 25, 2004).

B. After recognizing the facts in its reasoning based on the evidence duly admitted, the lower court determined that the Defendant’s act of publicity or statement that “the Defendant received a promise to abolish the toll on the Ulsan Expressway from the Ministry of Construction and Transportation” in the news report materials, preliminary candidates’ promotional materials, the official bulletin, the broadcast advertisement or the candidate debate, etc. as stated in each criminal facts of this case and publicly announcing the Defendant’s achievements constitutes the act of publicly announcing false facts about the act of the candidate (defendant) under Article 250(1) of the Public Official Election Act. In light of the above legal principles and records, the lower court’s selection of evidence, fact-finding and determination in the above judgment is justifiable, and there is no error in the misapprehension of legal principles as to “the false facts about the candidate’s act” under Article 250(1) of the Public Official Election Act as alleged in the grounds for

2. Regarding ground of appeal No. 2

A. In the crime of publishing false facts under Article 250(1) of the Public Official Election Act, it is necessary to recognize that the facts are false as the content of the actor’s intentional act. Since the existence of such subjective perception is difficult to know or prove it outside of the country due to its nature, it is bound to make a normative determination by comprehensively taking into account all the circumstances such as the Defendant’s academic background, career, social status, circumstances leading up to the publication, time of the publication, and the influence objectively anticipated from the publication of such false facts (see Supreme Court Decision 2005Do2627, Jul. 22, 2005, etc.). The crime of publishing such false facts is established by willful negligence (see, e.g., Supreme Court Decision 9Do5190, Feb. 26, 2004; 205Do2627, Feb. 26, 2004).

B. After recognizing the facts in its reasoning based on the evidence duly admitted, the court below held that the defendant published the false facts in this case with the awareness that the publication was false for the purpose of winning the election at the time of each act of this case. In light of the above legal principles and records, the above decision of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the purpose of publishing false facts or winning the election under Article 250 (1) of the Public Official Election Act, as alleged in the grounds of appeal.

3. Conclusion

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

Justices Shin Young-chul (Presiding Justice)