2012Gohap890 Violation of the Public Official Election Act

FOO, Project

Seoul residential Seocho-gu

[Reference domicile]

Han-Jin Kim (Public Prosecution, Public Trial)

Attorney Lee Ho-hoon

December 7, 2012

A defendant shall be punished by imprisonment for one year.

However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive. To order the defendant to provide community service for 80 hours.

Criminal facts

On April 2, 2012, the Defendant: (a) sought to collect and inform the data on illegal election campaign in the head of Song-gu’s ideas and ideas to be disadvantageous to the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ was reported on April 7, 2012 when filing a report on the omission of a candidate’s company property report; and (b) sought a text message

On April 8, 2012, 01:03, at the house of the National Assembly member of ○○○○○○ Dong-dong, Busan Metropolitan City, ○○○○○○○○○○○, 00, using his mobile phone, the Defendant created a fake text book with the name of the head of 100 ideology and text messages belonging to the National Assembly member, “I am special?? I am special? I am special? I am special? I am special? I am special? I am special? I am special? I am special? I am special? I am special? I am special? I am special? I am special? I am special. I am special to say I am special to say I am special, I am special. I am special to say I am special, I am special, I am special, I am special. I am special, I am. I am special, I am. I am. I am special, I am. I am.. I am................ am..........................

Summary of Evidence

1. Partial statement of the defendant;

1. Each police statement on ○○○, ○○○, and ○○○;

1. Answers on the details of telephone calls (00, gold ○○ telephone calls);

1. Each internal investigation report (as to the analysis of the mobile phone contents of gold ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ on the road page from April 7, 200 to April 9), each investigation report (in addition to the output of an Internet article 0

G)

Application of Statutes

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

Article 250(2) of the Public Official Election Act (Appointment of Imprisonment)

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following consideration of favorable circumstances among the reasons for sentencing):

1. Social service order;

Judgment on the assertion of the defendant and defense counsel under Article 62-2 of the Criminal Act, Article 59 of the Probation, etc. Act

1. Summary of the assertion

A. Even if the context, circumstances, etc. of the above fake text messages made by the Defendant are considered, it is merely an expression of opinion to the Chairperson, who is the addressee, for a value judgment to request the candidate to ○○, and it is not an expression of opinion about the career or election campaign, etc. of the candidate ○○, and it is considerably insufficient to view that the addressee’s chairperson or the general public as an expression to the extent that the accurate judgment on the candidate ○○○, is reached, and thus, it cannot be deemed that the above fake text messages constitute a false fact under Article 250(2) of the Public Official Election Act.

B. At the time, if this ○○○ had reviewed the above text message received from the Defendant more carefully, it would have been sufficiently aware that the above text message was fabricated, and there is doubt as to whether it could be said that the Defendant had published false facts by using OO, etc. as a tool that he knew of the fact.

2. Determination

A. Relevant legal principles

The term “facts” in the crime of publishing false facts under Article 250(2) of the Public Official Election Act means a report or statement on specific past or current facts, time and space, and the contents of the statement can be proved by evidence, in mind of the legislative intent that guarantees the fairness of election, rather than by simply using the term of the former term, namely, the ordinary meaning and usage of the language, the entire contents of the expression, the context of the expression at issue, the opposite party to the expression, the possibility of proving the contents of the expression, and the identity of the speaker and candidate, etc., should be comprehensively considered (see, e.g., Supreme Court en banc Decision 200Do2818, Sept. 22, 1998; Supreme Court Decision 200Do3281, Feb. 28, 2008; Supreme Court en banc Decision 200Do3278, Feb. 21, 2008; Supreme Court Decision 200Do328, Feb. 16, 20198).

B. In light of the following circumstances acknowledged by the evidence of this case, “the fact that ○○○○○○○ text message was published” is not intentionally key to the content of the instant fake text message itself, but rather the true text message that ○○○○○○○○○○○○○○ was sent as the recipient of the instant text message. It would be apparent that this constitutes “the fact that ○○○○○○○○○○○○○” was not a mere expression of opinion based on value judgment or assessment, and the Defendant’s intention also appears to be an unlawful election campaign by using the text message, and it appears that it was difficult for ○○○○○ to have been aware of the facts that the instant text message was sent to the outside of the instant local constituency, and that it was an unlawful fact that ○○○○○○○○○’s act of receiving the instant text message was not a candidate’s own election campaign. Furthermore, even if considering the facts charged, it appears that it was difficult for the Defendant to have been found that the instant text message was an unlawful election campaign.

Reasons for sentencing

[Scope of Punishment] Imprisonment from one month to seven years

[Determination of Punishment] Election Crimes, Publication of False Information, and Type 3 (Publication of False Information for Purpose of Destigious Election)

[Special Aggravation] Special Aggravation: Case of stuffing on the election day

[Scope of Recommendation] One year to Three years (Aggravated Field)

[Determination of Sentence] The crime of this case 2 years of suspended sentence in one year of imprisonment with prison labor was committed by a report to the effect that the defendant fabricated text messages for the purpose of favorable benefit to the candidate of a National Assembly member supported by him/her at the election day, and that the head of the Gu who is a public official carries out an illegal election campaign supporting a specific candidate by sending text messages to another person, etc. by sending them to the press, and thus, the crime of this case was committed not only at the level of suspicion but also at the level of suspicion, but also at the level of direct producing text messages under the name of the head of the Gu. The publication of false facts is widely made through media news and SNS, which could interfere with the rational choice of the candidate of the voters. Accordingly, it seems difficult to eliminate the possibility that the election result had influenced the candidate. The defendant also caused considerable confusion with the continuous statement number in the investigation process, and it seems necessary to punish the defendant in light of the fact that the honor of ○○ and the reputation of 00.

However, it is against the defendant's wrong recognition of his mistake, the defendant seems to have expressed his intention of not to punish the sender of false text messages during the investigation process of this case, there are no records of the same kind, living in custody for three months in this case, and other factors such as the defendant's age, character and conduct, environment, and circumstances after the crime are considered in the arguments of this case. It is so decided as per Disposition in consideration of all the factors of sentencing specified in the arguments of this case.

The presiding judge and the judge;

Judges Unauthorizedd Judge

Judges or commercialia