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The judgment below
Of them, the part on Defendant B shall be reversed.
Defendant
B shall be punished by a fine of KRW 3,000,000.
Defendant .
Reasons
1. Summary of grounds for appeal;
A. Although the writing written by the Defendants of mistake of facts or misapprehension of the legal principles does not constitute a candidate secret, the judgment of the court below is erroneous in finding the Defendants guilty of the candidate secret by misunderstanding the facts, thereby affecting the conclusion of the judgment.
B. The facts revealed by the Defendants, as a whole, are consistent with the truth and public interest, and thus, the judgment of the court below is not unlawful, and the decision of the court below contains an error affecting the conclusion of the judgment.
C. The sentence imposed by the lower court on the Defendants (the Defendant A’s fine of KRW 3,00,000, and the Defendant B’s fine of KRW 4,00,000) is too unreasonable.
2. Determination
A. As to the mistake of facts or misunderstanding of legal principles, the crime of aiding and abetting candidates under Article 251 of the Public Official Election Act is established when a candidate (including a person who intends to become a candidate) and his/her spouse, lineal ascendant or descendant, or sibling slanders by openly pointing out facts through a speech, broadcast, newspaper, communication, magazine, poster, propaganda document, or other means, with the intention of getting elected or getting another person elected.
In this context, the term "statement of fact" means a concept that is replaced by an expression of opinion the content of which is a value judgment or evaluation, which refers to a report or statement on the past or current facts in a specific time and spatially, and the contents of which can be proved as evidence, and the term "debris" means the detection or elimination of the other party without justifiable reasons.
In distinguishing a statement from whether it is a fact or an opinion, determination shall be made by taking into account the ordinary meaning and usage of the language, possibility of proof, context in which the language in question was used, social circumstances in which the expression was used, etc. When the expression of opinion and a statement of fact are mixed, it shall be made by pointing out the facts as a whole.