[1] The case holding that it is reasonable to view that the act of distributing articles about the election for public office reported through the press to internal members of an organization with political purposes has "the purpose of influencing the election" under Article 93 (1) of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts"

[2] Whether Article 93 of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts applies to the act of distributing newspapers, etc. carrying articles on an election for public office by any means other than ordinary methods, or distributing such articles by reproducing such articles (negative)

[3] The case holding that the act of the operator of the Internet camera of the presidential nuclear support operator by copying articles about the election of public officials in the Internet newspaper and sending them by e-mail to his members constitutes a violation of Article 95 (2) of the Act on the Election of Public Officials and the Prevention of Election

[1] The case holding that it is reasonable to view that the act of distributing articles about the election for public office reported through the media to internal members of an organization with political purposes has "the purpose to affect the election" under Article 93 (1) of the Act on the Election of Public Officials and the Prevention of Election Malpractice.

[2] Notwithstanding the fact that a newspaper, communication, magazine, etc. carrying an article on an election for public office may be punished for a violation of Article 95 of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts where such a newspaper, communication, magazine, etc. are distributed or copied by any means other than ordinary methods, there is no room to apply Article 93 of the same Act to such distribution

[3] The case holding that the act of the operator of the Internet camera of the presidential nuclear support operator by copying an article concerning the election of public officials in the Internet newspaper and sending it to his members by e-mail constitutes an act of violation of Article 95 (2) of the Act on the Election of Public Officials and the Prevention

[1] Article 93 (1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [2] Articles 93 and 95 of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [3] Article 95 (2) of the Act on the Election of Public Officials and the

[2] Supreme Court Decision 2000Do4469 decided Apr. 9, 2002 (Gong2002Sang, 1168) Supreme Court Decision 2004Do3385 decided May 13, 2005 (Gong2005Sang, 99)

Defendant

Prosecutor

Seoul High Court Decision 2004No2117 delivered on December 14, 2004

The part of the judgment below regarding the crime of distributing newspapers, magazines, etc. other than ordinary methods is reversed, and that part of the case is remanded to the Seoul High Court. The appeal against the crime of distributing documents, etc. among the judgment below is dismissed.

1. Summary of the facts charged in this case

The Defendant, as a celebian, opened a camera of the name “(name omitted)” at the Internet portal site (main) through the following communication, and then worked as a Kakaos. A person shall not distribute or post a political party or candidate (including a person wishing to be a candidate) or a document indicating the name of a political party or candidate in order to have an influence on the election from 180 days before the election day to the election day, and shall not distribute or post a newspaper carrying articles on the election by any means other than a method of ordinary advertising, or distribute and distribute such newspaper by copying and copying the articles. However, on April 11, 2004, the Defendant, at the residence of the Defendant, entered the 91 Yang apartment-dong, Seo-dong, Seo-gu, Sung-dong (Donghh omitted) at the Internet portal site at the same time, and at the same time, distributed an online newspaper’s name, an online newspaper’s name, an online newspaper’s name, an online newspaper’s name, and an online newspaper’s name, an online newspaper’s name, etc.

2. The judgment of the court below

The court below acquitted the above charged facts for the following reasons.

A. Determination as to whether a crime of distribution is established such as documents by illegal means

First, in terms of the distribution of news articles, if the original document was already reported through the media, and the contents of the article could have an influence on the election, even if it was legitimate for the defendant to not violate the Public Official Election Act (hereinafter referred to as the "Public Official Election Act"), there were new risks likely to undermine the fairness of the election by editing part of the article, or if the original method and object of distribution of copies clearly differ and there is no special circumstance to recognize that there was a new danger that the contents of the article could undermine the fairness of the election, the act of copying and distributing the article does not constitute a "purpose that may affect the election" under Article 93 (1) of the Public Official Election Act, even if the contents of the article were to have an effect on the election of the above political organization, such as the name of the political organization or the contents of the article that could have an effect on the election of the political organization, and thus, if the contents of the article were to have an effect on the election of the political organization, it can be seen that there was no reason to view that the defendant had an effect on the Internet contents that were distributed of the article.

B. Determination as to whether a crime of distribution, such as newspapers and magazines, other than ordinary methods, is established

Article 95(2) of the Public Official Election Act provides that "the distribution in a normal way means means to publish and distribute a publication within the previous method and scope." In interpreting and applying Article 95(1) of the Public Official Election Act that limits the freedom of election campaign to ensure the fairness of election, there should not be excessive infringement on the freedom of election campaign, and it should not be infringed on the essential contents of the people's freedom of political expression. Therefore, in order to fall under "the method other than the normal one" as mentioned above, it should be deemed that the act of sending an e-mail without any increase or decrease from the original method and scope of the publication for the purpose of publication to the extent that it can be seen as a method of distributing the publication by deviating from the original method and scope of the publication for the purpose of publication. In this case, it is difficult to view that the act of sending the e-mail without any increase or decrease to the members of the closed meeting with political view constitutes an act that undermines the fairness of election by making the original news articles an election campaign, and therefore, it is difficult to view that it constitutes an act of Defendant's prohibition of this case.

C. Therefore, the facts charged in this case constitute a case where there is no proof of facts constituting the crime, and thus, is acquitted.

3. The judgment of this Court

A. Determination as to whether a crime of distribution is established such as documents by illegal means

Article 93(1) of the Public Official Election Act limits acts set forth therein on the premise that "in order to influence the election" under the premise that they are "for the purpose of influencing the election". In determining whether an act is an act to influence the election, it is not necessary to take active or conclusive awareness to influence the election, but it is sufficient to do so with doluence alone. In light of social status of the defendant, relationship with the defendant, candidate, or political party, motive, process, method and method of the act, contents and manner of the act, social situation at the time of the act, etc., a reasonable decision should be made in light of social norms, taking into account various circumstances such as the defendant's social status, the relation with the candidate, competition candidate or political party, the motive, method and method of the act, the contents of the act, and social situation at the time of the act. Although the legislative purpose of Article 93(1) of the Public Official Election Act is not reached until the election campaign, it infringes the fairness and peace of the election, and thus, it cannot be concluded that there is no political intent to distribute documents within the organization's.

According to the records, the defendant copied the article of the Internet future Korean newspaper and distributed it to the members. Internet future Korean newspaper is a newspaper that is not well known to the general public, and the number of the members sent e-mail reaches 3,127. In particular, the contents of the article are related to the ideological inclinations of the candidates who may directly affect the e-mail, and thus, it can be identified that the contents of the article are contents that may directly affect the e-mail. In light of the above legal principles, even if considering the fact that the defendant and the recipient of e-mail are similar to those of the defendant and are already made public, even if it is reasonable to view that the contents of the article are already made public, the defendant was found not guilty on the ground that he did not have any intention to affect the election. Thus, the court below erred by misapprehending the legal principles on Article 93(1) of the Public Official Election Act, which affected the conclusion of the judgment.

However, Article 95(1) of the Public Official Election Act provides that "No one shall distribute or distribute any newspaper, communication, magazine, organ of institution, organization, facility, or other publication that carries an article about the election by any means other than ordinary means," and Article 95(2) provides that "an ordinary method shall be published and distributed within the previous method and scope." In the case of newspaper, communication, magazine, organ of institution, organization, facility or other publication (hereinafter referred to as " newspaper, communication, magazine, etc.") in comparison with the ordinary document, picture, etc. subject to the regulation of Article 93 of the Public Official Election Act, it shall be deemed that the act of distributing newspaper, communication and magazine shall not be punished for the violation of Article 90 of the Public Official Election Act, and it shall not be punished for the violation of Article 93 of the Public Official Election Act by any means other than the ordinary document, picture, publishing, etc. 90 of the Public Official Election Act.

Thus, the act of copying and distributing articles related to the election of online newspapers as above does not include the act of conducting an election campaign by distributing and posting documents, paintings, etc., not under the Public Official Election Act, which is a violation of Article 93 of the Public Official Election Act, and therefore, the facts charged in this part shall be pronounced not guilty on the ground that it does not constitute a crime. Accordingly, the decision of the court below that acquitted this part of the facts charged is proper, and the error of the court below pointed out in the above does not affect the conclusion of the judgment. Thus, the argument

B. Determination as to whether a crime of distribution, such as newspapers and magazines, other than ordinary methods, is established

Article 95 (2) of the Public Official Election Act provides that "an ordinary method of distribution" shall be "an ordinary method of publication and distribution within the previous method and scope," and "an act of distribution other than an ordinary method" in Article 95 (1) shall be deemed to mean a case of deviation from the previous method and scope in order to achieve the purpose of publication. It shall not be deemed to mean a case where an election campaign is distributed in one kind to induce support from a specific person. Thus, it shall be deemed that the above act of distribution by the defendant constitutes a case of deviation from the previous method and scope. However, the court below's decision that the above act of distribution does not constitute a crime of distributing newspapers, magazines, etc. other than an ordinary method on the grounds of its reasoning is erroneous in the misunderstanding of legal principles as to Article 95 (1) and (2) of the Public Official Election Act, which affected the conclusion of the judgment. The ground of

4. Conclusion

Therefore, the part of the judgment of the court below regarding the crime of distributing newspapers, magazines, etc. other than ordinary methods is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. The appeal against the crime of distributing documents, etc. by unlawful means is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Shin-chul (Presiding Justice)