[1] Cruel suspicions as to the corruption, etc. of candidates for public office and criminal liability due to publication of false facts

[2] The method of proving the “falseness” of the publication in the crime of publishing false facts under Article 250(2) of the Public Official Election Act

[3] The standard for determining whether the crime of publishing false facts under Article 250(2) of the Public Official Election Act constitutes “the perception of falsity”

[4] The meaning of "the purpose of prohibiting the election from being elected" in the crime of publishing false facts under Article 250 (2) of the Public Official Election Act and the standard for determining such "the purpose

[5] Probative value of the suspect statement prepared in the course of investigation by the investigative agency / The requirements for using the suspect interrogation protocol prepared by the judicial police assistant without admissibility as impeachment evidence by denying the contents of the defendant

[1] Article 21 of the Constitution, Article 250(2) of the Public Official Election Act / [2] Article 250(2) of the Public Official Election Act, Article 308 of the Criminal Procedure Act / [3] Article 250(2) of the Public Official Election Act / [4] Articles 2 and 250(2) of the Public Official Election Act / [5] Articles 312(3) and 318-2 of the Criminal Procedure Act

[1] [2/3/4] Supreme Court Decision 2008Do11847 Decided December 22, 2011 (Gong2012Sang, 200) / [1] Supreme Court en banc Decision 2001Do6138 Decided February 20, 2003 (Gong2003Sang, 876) / [2/3] Supreme Court Decision 2005Do2627 Decided July 22, 2005 (Gong205Ha, 1462) / [2] Supreme Court Decision 2005Do4642 Decided May 25, 2006 (Gong206Ha, 1209) / [34] Supreme Court Decision 201Do38485 Decided June 24, 2011 / [205] Supreme Court Decision 2005Do38485 Decided June 24, 2015]

Defendant

Defendant

Law Firm Man-Myeon, Attorneys Nam Jong-Un et al.

Daegu High Court Decision 2013No341 decided September 26, 2013

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the assertion of misapprehension of legal principles as to false facts and recognition thereof, mistake of facts, and admissibility of evidence

Although raising doubt as to the corruption, etc. of candidates for public service, even if they are for the purpose of verifying the eligibility of public service, it cannot be permitted without limit, and if there are reasonable grounds to believe that such suspicion is true, it shall not be punishable to guarantee the freedom of expression even if it is found that the suspicion is not true later. In addition, in the crime of publishing false facts, a person who actively asserts that there is a suspicion against a person who asserts that he/she has not committed suspicion is not true in the crime of publishing such false facts, shall be liable to present prima facie evidence to the effect that the existence of such fact is acceptable, and the prosecutor may prove the falsity by means of impeachmenting the credibility of the materials presented. In this case, the materials to be presented are insufficient merely by presenting the written indictment in light of the above legal principles, and at least the materials to the extent that it is possible to prove the falsity, and if there is no presentation or impeachment of the materials presented, it shall be held liable for publication as false facts (see, e.g., Supreme Court Decision 2008Do1284, Dec. 128, 2017).

Meanwhile, in the crime of publishing false facts under Article 250(2) of the Public Official Election Act, it is necessary to recognize that the facts disclosed as the content of the actor’s intentional act are false. As long as it is difficult to know or prove such subjective perception in light of its nature, the existence or absence of such subjective perception ought to be determined normatively by comprehensively taking into account all the circumstances, such as the Defendant’s educational background, career, social status, circumstances surrounding the publication, time of the publication, and objectively anticipated ripple effect, based on the contents of the publication, identity, existence and content of explanatory materials, and the source and awareness of the fact revealed by the Defendant. The crime of publishing false facts is established by willful negligence (see, e.g., Supreme Court Decisions and Supreme Court Decisions 2011Do3824, Jun. 24, 201

원심은 그 판시와 같은 사정을 종합하여, ‘○○을 공소외 1 의원의 꼼수로 유력후보 뺀 여론조사 실시. 공심위 사실확인. 시도의원 공천대가로 5억 수뢰 등 공소외 1 비리폭로 및 검찰고소 예정.’이라는 이 사건 문자메시지의 주요 내용은 의혹에 불과하고, 그러한 의혹이 진실인 것으로 믿을 만한 상당한 이유가 있었다고 보기 어려우며, 피고인에게 미필적이나마 이 사건 문자메시지의 내용이 허위라는 것에 대한 인식이 있었다고 판단하였다.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted and investigated by the first instance court, the lower court’s aforementioned determination is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding “false proof” in the crime of publishing false facts, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

On the other hand, the remaining evidence except the testimony at the court of first instance before the transfer by the witness non-indicted 2 is sufficient to recognize the falsity of the text message of this case and the intention of the defendant about it. Thus, the ground of appeal on the admissibility of evidence of the above witness does not affect the conclusion of the judgment

2. As to the assertion of misapprehension of legal principles as to the scope of application of Article 250(2) of the Public Official Election Act and the "purposes to prevent the election from being elected", or as to mistake of facts and impeachment evidence

The purpose of Article 250(2) of the Public Official Election Act is to prevent a candidate from being elected in an election for public office as provided for in Article 2 of the Public Official Election Act. The purpose is to make the public announcement of false facts known to the effect that the candidate is unable to be elected, and the result is not required to actively desire or desire to be elected, and whether there is a purpose of the public announcement shall be determined reasonably in light of social norms, by taking into account various circumstances, such as the social status of the defendant, personal relationship between the defendant and the candidate or the candidate for competition, motive and circumstance of the public announcement, method and method of the public announcement, contents and form of the act, nature and scope of the other party to which the public announcement was conducted, and social situation at

Examining the reasoning of the judgment below in light of the aforementioned legal principles and the evidence duly admitted and investigated by the first instance court, the court below is justified in applying Article 250 (2) of the Public Official Election Act to the defendant at the time of sending the text message of this case, deeming that Nonindicted Party 1 had an intention to prevent him from being elected in the election of a National Assembly member, and there is no error in the misapprehension of the legal principles as to the scope of application of Article 250 (2) of the Public Official Election Act or the "purpose to prevent him from being elected" or in violation of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal. The Supreme Court precedents cited in the grounds of appeal in this part

Furthermore, if the document stating the suspect's statement was prepared in the course of investigation by the investigative agency, it cannot be seen as different from the suspect interrogation protocol even if it was prepared in the process of investigation, and as long as the defendant denies its content, the suspect interrogation protocol of the defendant prepared by the prosecutor as evidence of guilt may be used as opposing evidence to impeachment the defendant's statement in the court unless there are circumstances to suspect that it was not made at will. (See Supreme Court Decisions 2004Do3588 delivered on September 3, 2004, Supreme Court Decisions 2005Do2617 delivered on August 19, 2005, etc.). According to the reasoning of the judgment below and the record, the court below used the police's statement of the defendant accompanied by the contents of text transmission as impeachment evidence to dispute the probative value of the defendant's statement in the court. Thus, contrary to what is alleged in the grounds of appeal, there is no error of misapprehending the legal principles on impeachment evidence.

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 Kim Yong-deok (Presiding Justice)