(영문) 서울중앙지방법원 2017.11.24. 선고 2017고합847 판결

In the event that the Defendants did not pay the above fine, the Defendants shall be confined in the Labor House for the period calculated by converting each of the 100,000 won into one day.

An order to pay an amount equivalent to each of the above fines shall be issued.

Reasons

Criminal facts

Defendant A shall be the secretary general of the Incheon District Office of the D Party, and Defendant B shall be the same member.

No one shall distribute, put up, spread, screen, or display any advertisement, letter of personnel management, poster, photograph, document, drawing, printed material, etc., which contains the contents supporting, recommending, or opposing a political party or candidate, in an effort to influence the election from 180 days before the election day (in cases of a special election, the time when the reason for holding the election becomes final) to the election day, without going through the provisions of the Public Official Election Act.

Nevertheless, on April 15, 2017, the Defendants expressed their arguments that the peace of the Korean Peninsula is threatened by the installation of a high-level defense system (THAD; hereinafter referred to as "THAD") within the Republic of Korea with about 10 D parties members of the 19th presidential election in order to express their opposing opinions to G, H, and I, a major candidate supporting the posting of the POD among the candidates of the 19th presidential election, with 42cm wide, 60cm wide, 42cm long, f0cm printing paper of the size of 60cm long, 'D party', 'Private Party', and 'D party', 'J, K, L, the following pictures, G, I, H, and H photograph (hereinafter referred to as "the poster of this case") adjacent to the poster of this case.

The Defendants prepared the instant poster in advance, from April 15, 2017 to around 17:00, up to 15:50 to April 15, 2017, and instructed members to attach posters as a person responsible for the field, and Defendant B attached Chapter 132 of the instant poster to E floor and N Walls along with other party members.

As a result, Defendants conspired to post a poster containing three opposing candidates during the election period from the time when the cause for holding a special election becomes final.

Summary of Evidence

1. Defendants’ respective legal statements

1. Statement of each police officer about 0 and P;

1. Place and purchase of posters, specific printed materials, photographs of violation of the Public Official Election Act, field photographs (Evidence Nos. 7, 10), and related photographs (CCTV image closures No. 32, 34);

1. Each investigation report (the surface of a site where a poster is installed on the wall surface of Q building, CCTV image data confirming the passage of a poster attachment and moving route, the analysis of R CCTV images, and the confirmation of specific circumstances B in the record 185 pages of the investigation report);

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 255(2)5 and 93(1) of the Public Official Election Act; Article 30 of the Criminal Act; Selection of each fine

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judgment on Defendants’ assertion

1. Summary of the Defendants’ assertion

Although the Defendants attached the instant poster to E, this constitutes a political party activity for the suspension of posting, which is one of the ten lectures of D political parties, as stated in its reasoning, and thus, it constitutes an ordinary political party activity under Article 37(2) of the Political Parties Act, which is permitted under the proviso of Article 93(1)2 of the Public Official Election Act when not the election period.

2. Relevant legal provisions and legal principles

A. Article 93(1) of the Public Official Election Act provides, “No one shall post a poster (including a person who intends to become a candidate) that supports, recommends, or oppose a political party (including a preparatory committee for the formation of a new political party and a party platform or policy of a political party) or a candidate (including a person who intends to be a candidate) in order to influence the election from 180 days before the election day (in the case of a special election, the time when the reason for holding the election becomes final) to the election day, or that the name of the political party or a candidate’s name is indicated.” However, the proviso provides, “any act falling under any of the following subparagraphs shall be excluded.” Article 37(2) of the Political Parties Act provides, “The ordinary political party activities under Article 37(2) of the Political Parties Act, which are conducted at a time other than the election period, shall be guaranteed as ordinary activities to recruit party members by using printed materials, facilities, advertisements, etc. or political pending issues.”

B. In order to establish a crime of violating the prohibition provisions, such as the distribution, posting, etc. of document drawings by unlawful means under Articles 93(1) and 255(2)5 of the Public Official Election Act, the name of a specific person supporting, recommending, and opposing the expression is not required. However, the expression must be clearly supported, recommended, and opposed to a specific person when comprehensively considering the objective contents of the expression, the ordinary meaning of the words used, the overall flow of the expression, the connection method of the expression, the social context underlying the expression, the overall appearance of the expression, etc., as well as the overall appearance of the expression given to the elector (see, e.g., Supreme Court Decision 2008Do5178, Sept. 11, 2008).

3. Determination

A. Comprehensively taking account of the various evidence duly adopted and examined by this Court, the following facts can be acknowledged.

1) On November 21, 2016, the Defendants are affiliated with D political parties registered with the National Election Commission as the central party. The instant poster deals with the issue of PO, G, and I’s photograph, which is the 19th presidential election, which has emerged as the issues among the candidates in the 19th presidential election. However, the Defendant’s position of consenting to PO, G, and I’s photograph as the candidate for the 19th presidential election is printed, along with the phrase “Pace and Sace?” which is at the bottom of the 19th presidential election.

2) The date on which the Defendants attached the instant poster was 2 days before the beginning date of the 19th presidential election. At the time of the 19th presidential election, E was a situation in which not only party members but also the general public can easily access the instant poster.

3) The Defendants installed a bulletin board in the vicinity of E, and divided the printed matters in the form of newspaper published by D political party into F. The two pages of the above newspaper include contents similar to the instant poster (Evidence Record 50-67 pages, 130-141 pages).

B. In light of the above facts, even if the primary purpose of attaching the instant poster, as alleged by the Defendants, was to form public opinion on the suspension of posting and widely announce the position of the political party to which they belong, it is evident that the instant poster includes not only the message that “the instant poster threatens peace of the Republic of Korea,” but also the photograph of the candidates for the election that consented to the posting of the PO, and thus includes the contents of opposing specific political parties or candidates. Furthermore, it is reasonable to view it as “the act of posting posters, etc. to influence the election” prohibited under the main sentence of Article 93(1) of the Public Official Election Act as it is likely to have an effect on the election due to an infringement of the fairness of the election, and it does not constitute “ordinary political party activities” under Article 93(1)2 of the Public Official Election Act.

Reasons for sentencing

1. Scope of recommendations according to the sentencing criteria;

[Determination of Punishment] Violation of Election Campaign Act in violation of the Election Campaign Period for Election Campaign

[Special Aggravations] Aggravations: Where they are intended for unspecified or many other parties;

[Scope of Recommendation] Fine of 1 million won to 4 million won (Aggravation)

2. Determination of sentence;

The crime of this case is a crime that damages the legislative intent of the Public Official Election Act that prohibits the posting of posters, etc. having the character of election campaign, in fact, is a variety of places where the election commission’s employees attached the instant poster at the site, and even if the employees requested the suspension and removal of posting, the Defendants did not comply with such request and continued posting.

However, in a representative democracy, the organization and activities of a political party necessary for the formation of the people’s political will should be fully guaranteed. As such, the Defendants’ opinion was widely known and criticized the government’s policies. Moreover, the amount of the instant poster attached by the Defendants is not much much, and the Defendants’ act did not have any particular impact on the result of the election. Defendant A did not have any criminal record beyond the suspension of execution, and Defendant B did not have any criminal record.

In addition to these various circumstances, in consideration of various circumstances shown in the records and arguments such as the age, character and conduct and environment of the defendants, and the circumstances after the crime, the punishment such as the order to lower the scope of the recommended sentencing guidelines to the defendant B shall be determined within the scope of the recommended sentencing guidelines.