[1] In a case where the Defendant was indicted for violating the Public Official Election Act by going through a prior election campaign on the 19th National Assembly member in front of the 19th National Assembly election in 2012 and posting a letter on the twitter for a specific political party’s members, the case affirming the first trial judgment holding that the Defendant’s act constitutes an “election campaign” under the Public Official Election Act

[2] Whether “information and communications” under Article 254(2) of the Public Official Election Act includes “an act of posting information, such as writing or video image, on an Internet website or its bulletin board or page room, or transmitting e-mails via an information and communications network” (negative)

[1] In a case where the Defendant was indicted for violating the Public Official Election Act by posting a letter on the 19th National Assembly member election in front of the 2012 election and posting a letter on the twitter for a specific political party’s National Assembly member, the case affirming the first trial order to the same effect on the ground that the Defendant’s act constitutes an active and planned act that can be objectively recognized for the purpose of promoting the defeat of a specific candidate, and constitutes an election campaign as stipulated in the Public Official Election Act, on the ground that the Defendant posted on Twitter a total of 19 National Assembly members by specifying and posting a specific area for a total of 19 National Assembly members and up to eight National Assembly members among them, and up to a personal character expression, the method and content of the expression, the Defendant’s writing on Twitter, the time when the Defendant written on Twitter, and the possibility of spreading the text posted on Twitter, etc.

[2] Internet is assessed as a political space where anyone can easily access media and use expenses or at least have little or relatively low cost to reduce election campaign expenses drastically. Rather, the characteristics of media themselves correspond to the purpose of the Public Official Election Act, such as balance of opportunities, transparency and enhancement of low cost. In the case of political expressions or election campaigns on the Internet, it is not likely that any prisoner or addressee accessing the Internet can accept information against his/her will, but it is not likely to harm the peace of election in that it is intended to accept information in the case of voluntary and affirmative selection of such expressions or election campaigns, and there is room for concerns that negative factors such as slandering or advertising in the political expressions or election campaigns by the general voters, and that all acts included in the concept of "information and communications" are prohibited in general and comprehensive interpretation of Article 254(2) of the Public Official Election Act, and thus, comprehensively prohibiting and punishing them entirely for a certain period by deeming that all acts do not meet the requirements of political expression or election campaign at least infringement on the Internet, or that it does not meet the requirements of the public Official Election Act’s freedom of expression or election campaign.

[1] Article 58(1) of the former Public Official Election Act (Amended by Act No. 11374, Feb. 29, 2012); Articles 58(2) and 254(2) of the Public Official Election Act / [2] Article 59 subparag. 3 of the former Public Official Election Act (Amended by Act No. 10981, Jul. 28, 201); Article 60-3(1)3 (see current Article 59 subparag. 3) of the former Public Official Election Act (Amended by Act No. 11374, Feb. 29, 2012); Article 82-4(1)1 (see current Article 59 subparag. 3) of the Public Official Election Act; Article 254(2) of the Public Official Election Act

Defendant

Both parties

Park Ho-hun et al.

Han Law Firm et al.

Suwon District Court Decision 201Da127 decided October 14, 2011

The judgment of the court below is reversed.

The defendant shall be innocent.

Defendant’s request for adjudication on the constitutionality of a law shall be dismissed.

1. Summary of grounds for appeal;

A. Defendant (De Facto misunderstanding or misunderstanding of legal principles)

An act of expressing his/her political opinion using SNS (SNS) is not an election campaign prescribed by the Public Official Election Act, which is a kind of Twitter (hereinafter referred to as "SNS"), or an act of a defendant does not constitute an election campaign prohibited by the Public Official Election Act because it is merely a statement of support and opposition to the recommendation of candidates by political parties. Even if a defendant's act constitutes an election campaign, it is unconstitutional that restriction is contrary to the principle of equality and the principle of excessive prohibition.

(b) An inspection;

In light of all kinds of sentencing conditions, the sentence of the lower court (one million won of a fine) is too unhued and unfair.

2. Judgment on the mistake of facts or misapprehension of legal principles by the defendant

A. Summary of the facts charged in this case

The Defendant, who is working in Twitter as “2MB18nomA,” was committed on April 11, 2012 in order to implement a abortion campaign against the National Assembly members belonging to the Korea National Assembly on April 19, 2012.

From May 10, 201 to May 11, 201, the Defendant posted a notice on the Defendant’s house located in Goyang-gu, Seoyang-gu, Seoyang-gu, Seoyang-gu, 952 special light village (dong name omitted), “2MB18nomA” as Twitter, “Korea-do Sara, a list of subjects, Nonindicted 1, and Seoul Dong-dong A,” and posted [Attachment] as indicated in the list of crimes, 19 members of the National Assembly belonging to Korea-do, including 19 members of the National Assembly.

Accordingly, the Defendant carried out an election campaign prior to the election campaign period.

B. As to the assertion that the defendant's act does not constitute an election campaign under the Public Official Election Act

(1) Anyone may freely carry out an election campaign except where it is prohibited or restricted pursuant to the provisions of the Public Official Election Act or other Acts (Article 58(1) and (2) of the Public Official Election Act). An election campaign under Article 58(1) of the Public Official Election Act refers to any active and planned act that is in favor of a specific candidate for the purpose of promoting the election or the defeat in the election, and that is objectively recognized as an act that is necessary for the election or the defeat in the election of a specific candidate. It is simply distinguishable from an act in preparation for an election campaign or ordinary political party activities that constitutes internal and procedural preparation for an election campaign for the future, but in determining whether a certain act constitutes an election campaign, it shall be determined by comprehensively observing not only the name of the act, but also the form and place of the act, place, method, etc. of the act, and whether it is an act that entails the intention of promoting the election or defeat in the election of a specific candidate (see Supreme Court Decision 2008Do11857, May 28, 2009)

(2) In light of the following circumstances acknowledged by evidence duly adopted and examined by the lower court, ① the Defendant posted a list of 19 National Assembly members on the twitter with the content that the Defendant was “persons subject to the one-way electoral campaign,” and the Defendant posted a notice stating the name of the 19 National Assembly members or his personal character as to eight National Assembly members. In light of the method and content of the expression, it is difficult to readily conclude that the Defendant posted a notice on the 19th National Assembly member’s election campaign with the view to criticism on the parliamentary activities of the relevant National Assembly members or simply supporting and opposing opinions on the recommendation of the relevant National Assembly members or the 19th National Assembly member’s recommendation, and rather, it is difficult to view that the Defendant used the 10th National Assembly member’s election campaign with the 19th National Assembly member candidate’s “the 10th National Assembly member’s election campaign” in the 2012 election campaign with the content that the 10th National Assembly member’s election campaign could not be included in the 10th election day.

(3) The Defendant asserts that the act of the Defendant is difficult to be deemed as an act of withdrawing a specific candidate in connection with the election of the 19th National Assembly member because some of the 19 National Assembly members at the time of the instant case was planned to leave the election, such as the presidential election, or that he was deprived of his eligibility for election, or was not yet registered as a preliminary candidate, and that even if the election district is adjusted or the 19th National Assembly member could not continue until the election of the 19th National Assembly member, it is difficult to view that the Defendant’s act was an act of withdrawing a specific candidate in connection with the election of the 19th National Assembly member. However, in the prior election, the specific candidate was planned to leave the election and applied for an election, or his activities to obtain a candidate from the general electors, and that the Defendant did not legally have any effect on the election campaign before the election of the 20th National Assembly member at the time of the instant election campaign (see Supreme Court Decision 200Do1012, Jun. 12, 2001).

(3) Therefore, the decision of the court below that recognized the defendant's act as an election campaign is just, and there is no error of law by misunderstanding the facts or misunderstanding the legal principles alleged by the defendant, and this part of

C. As to the assertion that limiting the Defendant’s instant act outside the election campaign period goes against the principle of equality and the principle of excessive prohibition under the Constitution

(1) Except as otherwise provided for in the Public Official Election Act, an election campaign cannot be carried out by means of information and communication, etc. (Article 254(2) of the Public Official Election Act). The term “information and communication” refers to using telecommunications equipment and facilities, or transmitting or receiving symbols, words, sound, or images by using telecommunications equipment and facilities, computers, and computer technologies. The facts charged in the instant case are that the Defendant carried out a prior election campaign using a Twitter. The Defendant’s Twitter shared and communicate with each other by sending or receiving a short term (within 140 persons) among persons holding a Twitter account by using radio telecommunications equipment and facilities, computers, and computers. In light of the definition of information and communication as seen earlier, the aforementioned Twitter constitutes “information and communication” as provided for in Article 254(2) of the Public Official Election Act.

(2) However, in full view of the following circumstances, the method of “information and communications”, etc. restricted under Article 254(2) of the Public Official Election Act, should be interpreted as not including “the method of posting information, such as writing or video, on an Internet homepage or its bulletin board or video room, etc. or transmitting e-mails through an information and communications

(A) The Internet is a readily accessible medium, and it is assessed as a political space where the cost of using the Internet is almost or at least so low that it can be drastically lowered. Rather, the characteristics of the medium themselves correspond to the purpose of the Public Official Election Act, such as “improvement of balance in opportunity, transparency and low cost”. Moreover, the current Public Official Election Act permits a candidate or candidate, a preliminary candidate, to engage in an election campaign in a certain online space even before the election campaign period is completed (Articles 59 subparag. 3 and 60-3(1)3), and the content posted spaces secured for an election campaign on the Internet homepage or e-mail prior to the election campaign period, and in such cases, it does not appear that the cost will increase specially.

(B) In addition, during the election campaign period, the exercise of the freedom of political expression is not denied on the grounds that the exercise of the freedom of expression on the Internet and the urgency and proliferation of Internet expression are bordered prior to the election campaign period where anyone is permitted to engage in an election campaign using the Internet (Article 82-4(1)1 of the Public Official Election Act), and where a person receives information in cases of a political expression on the Internet or an election campaign, it is not likely that the relevant prisoner or addressee would accept information against his/her will, but is likely to infringe the peace of election in that it would receive information in a case where he/she has selected it voluntarily and actively.

(C) There may be room for causing negative factors such as slandering or advertising in the political expression or election campaign of general voters, and interpreting the above legal provision as it is, deeming that all acts included in the concept of “information and communications” in the above legal provision are prohibited generally and generally, and punishing them for a certain period of time does not meet the requirements of minimum infringement on the Internet’s political expression or election campaign.

(D) In determining the balance of the legal interests of the above legal provisions, the public interest, which is fair and peaceful, as well as the balance of the legal interests between the limitation of fundamental rights thereby, should also be taken into account not only the freedom of election to achieve this, but also the public interest, which is enhancing the development of democracy and democratic legitimacy through the participation of the people in election. In light of this, the fairness of the election obtained by the above legal provisions prohibiting political expressions or advance election campaigns on the Internet, while the fairness of the election is not obvious or specific, in the reality where communication via the Internet is universalized and various elections are frequent, the above legal provisions are highly likely to be affected or damaged by completely restricting the freedom of political expression or the freedom of election campaign on the Internet for a long time prior to the election campaign period. Therefore, the scope of information and communications under the above legal provision includes “an act of posting information, such as writing or video, on the Internet homepage or its bulletin board or video room, etc. using the information and communications network, or transmitting the

(3) Therefore, this part of the Defendant’s assertion that the act of this case, which the Defendant posted the instant text prior to the Twitter from May 10, 2011 to the 111 of the same month, violates Article 254(2) of the Public Official Election Act cannot be deemed as having violated Article 254(2) of the Public Official Election Act. The restriction of the Defendant’s act of this case outside the election campaign period violates the principle of excessive prohibition under the Constitution

3. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364(6) of the Criminal Procedure Act without examining the prosecutor's allegation of unfair sentencing, on the grounds of the defendant's argument in the above grounds of appeal, and the judgment below is reversed, and it is again decided as follows.

The summary of the facts charged in this case is the same as that of Article 2-1(a) and this constitutes a case that does not constitute a crime as stated in Article 2-3(c) and thus, a defendant is acquitted under the former part of Article 325 of the Criminal Procedure Act.

Judgment on Defendant’s motion for adjudication on constitutionality of law

1. The legal provisions which are the object of adjudication on constitutionality;

○ Article 254(2) of the Public Official Election Act

(2) Except as otherwise provided for in this Act, any person who conducts an election campaign by means of propaganda facilities or tools, various printed matters, broadcasting, newspapers, news communications, magazines, other publications, campaign meetings, debate, debate, native folks meeting, alumni meeting, neighbors' meeting, other assemblies, information and communications, the establishment of an election campaign organization or private organization, door-to-door visit and other methods prior to the election campaign period shall be punished by imprisonment for not more than two years or by a fine not exceeding four million won.

2. Defendant's assertion;

Political expression and election campaign through the Internet do not need to be restricted in view of the fairness of election, and rather, it should be recommended in order to substantially guarantee the freedom of expression of will of the people and to maintain and develop democracy. Nevertheless, the above legal provision prohibits the entire election campaign through the Internet of the general voters during all periods except for the election campaign period. This is against the Constitution as it excessively infringes on the freedom of political expression of opinion and the freedom of election campaign by the general voters.

3. Judgment on the premise of judgment

As seen earlier, the Court rendered a judgment of innocence on the ground that the facts charged in the instant case do not constitute a crime. As such, the above provision of the Public Official Election Act does not constitute a premise for the instant judgment. Therefore, the application for an adjudication of unconstitutionality regarding the above provision of the Public Official Election Act is unlawful

[Attachment] Crime List: Omitted

Judges fixed-type (Presiding Judge) Kim Jong-sung