2014Do3932 Violation of the Public Official Election Act

A person shall be appointed.

Prosecutor

Law Firm BX (Attorney B)

Attorney C.

Law Firm F (Attorney G)

Attorney BY

Gwangju High Court ( Jeonju) Decision 2013Do237 Decided March 25, 2014

December 15, 2016

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal on the violation of the Public Official Election Act due to the publication of false facts, in order to establish the crime of publishing false facts under Article 250(2) of the Public Official Election Act, it is necessary for a prosecutor to actively prove that the published facts are false, and the fact that there is no proof that the published facts are false cannot be established merely on the sole basis of the fact that there is no proof. In this regard, as well as the proof of the absence of a certain fact in determining the burden of proof, if the absence of a certain fact is related to the absence of a specific act at a specific period and place, the prosecutor still is the active party and the prosecutor still bears the duty to prove it without reasonable doubt (see Supreme Court Decision 2008Do11847, Dec. 22,

Under a democratic political system, the freedom of speech is the most fundamental right and it is not easy to guarantee that it should be sufficiently in the election process. Since it is necessary and important to verify the candidate's eligibility to take charge of public service in an election for public office, the freedom of speech for verification of eligibility should also be guaranteed. For this purpose, in a case where there are circumstances suspected of illegality or morality in the candidate, the filing of a question should be allowed, and in a case where public judgment is made, the raising of suspicion should not be easily obstructed. Meanwhile, in a case where the public judgment is widely permitted, even if the suspicion is revealed in factless, it will not be prejudicial to the reputation of the candidate of Danama, even if it is revealed later, but it would result in a significant result that misleads the candidate's choice in an election for public office, and it would substantially go against the public interest, and thus, it would not be permissible to declare that there is a considerable reason for 201, 201, even if it is for verification of eligibility for public office, it is not permissible to declare that it is 201, 1,0.

In addition, in the crime of publishing false facts, a person who actively asserts that there was no suspicion against a person who asserts that there was no suspicion of such a fact, bears the burden of presenting materials that support the existence of such fact, and the prosecutor may prove the falsity by impeachmenting the credibility of the materials presented. In such a case, the materials to be presented are insufficient simply by presenting a complaint in light of the above legal principles, and at least to the extent that the prosecutor’s activity to prove false facts is practically feasible, and when the credibility of the presented materials is not presented or impeachmentd, the materials must be held liable for publishing false facts (see, e.g., Supreme Court Decisions 2005Do2627, Jul. 22, 2005; 2008Do11743, Mar. 12, 2009).

However, in a case where an important part is consistent with objective facts in light of the purport of the entire content of published facts, even if there is a little exaggeration or exaggeration, it cannot be viewed as a false fact (see Supreme Court Decision 2009Do26, Mar. 12, 2009, etc.).

Examining the reasoning of the judgment below in light of the aforementioned legal principles and the evidence duly adopted by the court of first instance, the court below affirmed the judgment of the court of first instance which acquitted the defendant of the violation of the Public Official Election Act due to the publication of false facts on the ground that the court below acknowledged the facts as stated in its reasoning and based on the circumstances as stated in its reasoning, it cannot be concluded that the defendant announced "B's unknown whereabouts" as "the stolen facts" in this case. The defendant's materials presented are specific materials that can be proved in the prosecutor's activities regarding impeachment of credibility, and their credibility cannot be viewed as impeachment. Although the contents of the notice in this case are different from the facts in the list No. 6 of the crime No. 17 attached to the judgment of the court below among the total 17 notices posted by the defendant, the contents of the notice in this case include contents different from the facts in the list No. 6 attached to the judgment of the court below, in light of the purport of the entire contents of the notice in this case, it cannot be deemed that the falsity of the contents of the notice in this case is not proven.

2. As to the grounds of appeal on the violation of the Public Official Election Act, even if the act of campaigning against a candidate falling under the main sentence of Article 251 of the Public Official Election Act was committed, the illegality is excluded pursuant to the proviso of Article 251 of the Public Official Election Act when the alleged facts conform to the truth and are related to the public interest. The purport of the entire content is to examine

If the essential part is consistent with objective facts, it is sufficient if there is a little difference or somewhat exaggerated expression in the detailed contents, and even if there is no reason to believe that the public interest is superior to private interest, it constitutes a case where both parties exist at the same time and it is recognized that it is reasonable (see, e.g., Supreme Court Decision 2004Do3919, Oct. 27, 2004). In the application of the proviso of Article 215 of the Public Official Election Act, even if there is no proof that the alleged facts are true, and if there is a considerable reason to believe it, it is not unlawful (see, e.g., Supreme Court Decision 96Do519, Apr. 23, 196).

Examining the reasoning of the judgment below in light of the aforementioned legal principles and evidence duly adopted by the court below, the court below was just to reverse the first instance court judgment on the violation of the Public Official Election Act due to the candidate's non-performance of illegality under the proviso of Article 251 of the Public Official Election Act, and found the Defendant guilty on the grounds that the Defendant's act of posting the notice in this case was dismissed and acquitted the Defendant on the ground that there was a considerable reason to believe the facts premised on the premise of the notice in this case, and there was private interest to allow the Defendant to resign the H candidate in the J election. However, the Defendant did not err by misapprehending the legal principles as to the proviso of Article 251 of the Public Official Election Act or by misapprehending the legal principles, etc., inasmuch as the Defendant's act of posting the notice in this case goes beyond the bounds of the principle of free evaluation of evidence against logical and empirical rules.

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 Shin-chul

Justices Kim Yong-deok

Justices Kim Gin-young

Justices Lee Ki-taik