(영문) 서울고등법원 2018.5.31.선고 2018노792 판결

Defendant shall be punished by a fine of KRW 1,000,000. Where the Defendant fails to pay the above fine, the Defendant shall be confined in the workhouse for a period calculated by converting KRW 100,000 into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

Reasons

1. Progression of litigation and scope of adjudication of this court;

A. According to the record, the following facts are recognized:

1) The lower court acquitted the Defendant of both the facts charged in the instant case’s violation of the Public Official Election Act due to the prior election and the violation of the Public Official Election Act due to the posting of advertisements, and the prosecutor filed an appeal on the grounds of mistake of facts or misapprehension of legal principles.

2) The first instance court prior to remand dismissed the prosecutor’s appeal, and the prosecutor filed an appeal on the grounds of misapprehension of legal principles or omission of judgment.

3) The Supreme Court reversed the above part and remanded it to this court on the ground that there was an error of law by misunderstanding the legal principles as to the requirements for establishing a crime of violating Article 256(3)1 of the Public Official Election Act, etc., which affected the conclusion of the judgment, and dismissed the Prosecutor’s appeal on the remainder of the judgment.

B. As seen earlier, the part of the judgment of the party in the judgment prior to the remanding of the case is excluded from the scope of the judgment of the court of final appeal on the ground that the argument in the grounds of final appeal was rejected as it is deemed that there was no merit in the grounds of final appeal.

Therefore, the scope of this court's trial is limited to the violation of the Public Official Election Act due to the posting of advertisements.

2. Summary of grounds for appeal (misunderstanding of legal principles or factual errors);

The judgment of the court below which found the defendant not guilty on the ground that the defendant's one-person demonstration constitutes "Posting of advertisements" under Article 90 (1) 1 of the Public Official Election Act, is erroneous in the misunderstanding of facts or in the misunderstanding of legal principles, which affected the conclusion of judgment.

3. Determination

A. Summary of "violation of the Public Official Election Act due to the posting of advertisements" among the facts charged in the instant case

The defendant is the chairperson of the youth organization called "E", and F was planned to leave the 20th National Assembly member election which was held on April 13, 2016 as a member of the 19th National Assembly to run as a candidate for the H political party in the 20th National Assembly election for the 19th National Assembly member. The defendant has claimed that F was involved in the recruitment of I.

No person may install, display, post, or distribute placards, advertising materials, or facilities from 180 days before the election day to the election day. Around 12:00 J, the Defendant conducted one person’s demonstration by putting the phrase “M”, “N”, and “O”, and the name and photograph of “F” in front of K, L, L, and L, Seoul, Yeongdeungpo-gu, Seoul, and L, and the name and photograph of “O”. Accordingly, the Defendant’s demonstration by 180 days before the election day to the election day.

The advertising materials were posted.

(b) Fact of recognition;

According to the evidence duly adopted and examined by the court below, the following facts can be acknowledged:

1) The 20th National Assembly member election, which was held on April 13, 2016, F, as the 19th National Assembly member, was planned to leave the 19th National Assembly member as a H party candidate in GJ, and the Defendant held one person demonstration by putting the words “0”, such as “0” in front of the JL agency’s 180 days before and after the election day, and the F’s photograph (the name of F is written in the photograph) in the color “1” sign.

2) At the time of the instant case, F served as a three-party National Assembly member, and served as a president in the H Party and sent 2 and AA. Therefore, F was a national well-known person.

3) After such one-person demonstration, the Defendant mentioned that F will be punished for a abortion campaign in the event of F’s success through an interview with the press.

4) Since then, the 'E organization', which is a youth organization in which the defendant is the chairperson, was actually punished by the abortion campaign against F through the Internet homepage.

C. Determination

In light of the following circumstances, Defendant’s demonstration, such as the above facts charged, constitutes an act of posting an advertisement prohibited by Article 90(1) of the Public Official Election Act (hereinafter “one person demonstration”), and the name of a political party and the name and photograph of a person who intends to be a candidate are specified in the Preferred to in the above Article 90(1) of the Public Official Election Act, and thus, it is sufficient to deem that the name of a political party and the name and photograph of a person who intends to be a candidate have an influence on the election pursuant to the above provision. The first person demonstration of this case is deemed to have an motive for the election campaign. Thus, even if the first person demonstration of this case does not constitute an election campaign, even if it does not constitute an election campaign, Article 256(3)1(h) and Article 90(1) of the Public Official Election Act against the Defendant is established, and the prosecutor’

1) Article 90(1)1 of the Public Official Election Act prohibits “establishment, display, display, or distribution of advertising materials, etc.” In order to influence elections. This is intended to regulate various acts that have the effect of delivering intention to many and unspecified persons. However, it is difficult to view that there is a significant difference in the effect in that both the act of fixing advertising materials on the wall, etc. and the act of carrying advertising materials in hand are methods that can easily deliver intention to many and unspecified persons. Therefore, deeming that the act of carrying advertising materials as hand corresponds to the legislative intent of the Public Official Election Act to correspond to the same.

2) The prior meaning of “Posting” refers to the posting of a notice in such a way as not to be fixed to the surface of an object that does not open to the public, or to look at it by putting the notice on the public. However, the concept of “Posting” used in daily verbal life refers to the act of displaying the notice in such a way as to be easily seen by the public, and it does not necessarily mean that the notice is fixed to a certain place or object’s surface. Therefore, it is reasonable to regard the phrase as one of the methods of displaying the notice.

3) Article 256 of the Public Official Election Act provides that a person who commits an act falling under any item of paragraph (3) 1 in relation to an election campaign shall be punished under the title of "violation of various restrictive regulations." Among them, (h) prohibited acts include acts of posting propaganda materials in violation of Article 90 of the Public Official Election Act. Article 90(1)1 of the Public Official Election Act provides that an act of posting advertisements, etc. except those provided for in this Act shall not be performed from 180 days before the election day to the election day, and in such cases, the name of a political party or the name and photograph of a candidate or a person who intends to be a candidate shall be deemed to have an effect on the election.

4) The Public Official Election Act has a provision that individually prohibits "act affecting the election" (Article 90(1) or "act related to the election" (Article 115, etc.) other than in the case of "act affecting the election according to the degree that may affect the election as of the election day (see, e.g., Supreme Court en banc Decision 2015Do11812, Aug. 26, 2016). In addition, "act related to the election" under Article 115 of the Public Official Election Act is sufficient if it is related to the election, such as motive or lending of the relevant election even if it is not an election campaign for the relevant election, even though it is not an election campaign, it is appropriate to see, as referring to, e.g., Supreme Court Decision 2004Do5298, Mar. 25, 2005; 2010Do12010, Feb. 1, 2002>

4. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, pursuant to Article 364 (6) of the Criminal Procedure Act, the part of the judgment below's violation of the Public Official Election Act due to the display of advertisements is reversed, and it is

In other words, the facts constituting the crime of this case

The facts constituting an offense acknowledged by this Court shall be determined on the grounds of the above appeal 3. A. This provision shall also apply to the facts stated in paragraph (1).

Summary of Evidence

1. Defendant’s partial statement in the court below

1. Partial statement of the police interrogation protocol of the defendant;

1. Statement of requests for suspension of violations of Public Official Election Act prepared by the Seoul Special Metropolitan City Line Official Election Act;

1. Each press material, each press material, printed material, printed material on the website of E-organization, printed material on the press and printed material on the page, investigative report, and printed material on the press respectively;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 256(3)1 (h) and Article 90(1)1 of the Public Official Election Act (Selection of Fines)

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judgment on the argument of the defendant and defense counsel

1. Whether the requirements for establishment are satisfied;

A. Summary of the assertion

The defendant and his defense counsel asserts that the defendant's demonstration of this case does not constitute the elements of Article 256 (3) 1 (h) and Article 90 (1) 1 of the Public Official Election Act for the following reasons.

[1] Article 135 of the Public Official Election Act differs from the purpose of Article 90(1) of the Public Official Election Act and Article 135 of the same Act, and if the "election campaign" is deemed to be an element of a crime, the judgment of remanding the case shall be punished by the elements of the crime, and if it is not an element of the crime, the judgment of remanding the case shall be deemed to have established a new element of a crime beyond the scope of the text and text, and shall be deemed to have violated the principle of no punishment without the law. In addition, the "provokings to election campaigns", and "provokings to the matters concerning the election campaign" shall be deemed to be excessively ambiguous in the principle of regulation of expression, and further, the defendant's one-person demonstration in the case of this case shall not be deemed to have been a motive for matters concerning the election campaign. Accordingly, the defendant's one-person demonstration in this case

[2] In the first sentence of Article 90 (1) of the Public Official Election Act, the term "those under this Act" is excluded from the scope of Article 90 (1) of the Public Official Election Act, and acts other than election campaigns under Article 58 (1) of the Public Official Election Act fall under "the provisions of this Act" immediately. The Defendant's demonstration of this case constitutes "the mere opinion, opinion, and expression of opinion regarding the recommendation of candidates of political parties" under Article 58 (1) 3 of the Public Official Election Act, and thus, it cannot be viewed as "publication" under Article 90 (1) of the Public Official Election Act.

B. Determination

1) Relevant provisions

The provisions of the Public Official Election Act relating to the assertion of defendants and defense counsel are as follows.

(1) A person who falls under any one of the following items in connection with an election campaign shall be punished by imprisonment for not more than two years or by a fine not exceeding 4 million won:

The term "election campaign" used in this Act means an act of making a person elected or making another person be elected or not to be elected, or making another person be elected or not to be elected, in a manner that is deemed to be aimed at making it possible to do so; 1. The term "election campaign" used in Article 58 (Definition, etc.) (1) of the Public Official Election Act (hereinafter referred to as the "Public Official Election Act") : Provided, That the act falling under any of the following subparagraphs shall not be deemed to be an election campaign:

2) The above [1] The court to which the case was remanded from the court of final appeal as to the allegation is bound so long as the court of final appeal presented new evidence during the trial process after remanding the case with respect to the factual and legal judgment as the reason for reversal and there is no change in the evidential relation which forms the basis for binding judgment (see, e.g., Supreme Court Decision 95Do830, Dec. 10, 1996). However, the above assertion / [1] is merely a dispute over the factual and legal judgment already rendered by the court of final appeal from the remanded case to the court of final appeal as the reason for reversal, and thus, it cannot be accepted without any need to further examine the other points (if possible, this part of the argument is unacceptable as it is inconsistent with the relevant legal principles such as the en banc Decision 2011Hun-Ba163, Apr. 30, 2015; and the judgment on the ground for appeal as set forth in Article 3-2(b) of the Constitutional Court en banc Decision 3.

3) As to the allegation in the above 2-3-C. as to the grounds for appeal, it is evident that the Defendant’s demonstration of this case as one of the Defendant’s motiveed “matters concerning election campaign” (hereinafter “matters concerning election campaign”), so even though it does not constitute “election campaign,” a violation of Article 256(3)1(h) and Article 90(1) of the Public Official Election Act is established. Furthermore, even if an act is not an election campaign under Article 58(1)3 of the Public Official Election Act, it cannot be immediately viewed as an “act under this Act” under Article 90(1)1 of the Public Official Election Act even if it is an act other than an election campaign under Article 58(1)3 of the Public Official Election Act. Accordingly, the above argument is not acceptable (2)

4) As to the above 3 argument, the appellate court held that "the above 1-person demonstration of the defendant constitutes an act of posting advertisements prohibited under Article 90 (1) of the Public Official Election Act (see, e.g., Supreme Court Decision 5.2, 3). The above 3 argument can be viewed as an argument contrary to the binding force of the judgment remanded, and even if different, it is clear that the defendant's demonstration of the defendant constitutes "the posting of other advertisements" according to the circumstances described in paragraph (b) and paragraph (c) of the above 3 argument. Thus, the above 3 argument cannot be accepted.

5) Sub-decisions

Ultimately, this part of the argument by the defendant and his defense counsel cannot be accepted.

2. Whether illegality is denied

A. Summary of the assertion

Even if the Defendant’s one-person demonstration constitutes an element of a crime of violating the Public Official Election Act, the above act constitutes a refund of legitimate duties performed in accordance with the status of the chairperson of the E organization, and the act constitutes “an act arising from a business or other act that does not contravene social norms” under Article 20 of the Criminal Act, with the following: (a) legitimacy of the motive or purpose of the act; (b) reasonableness of the means or method of the act; and (c) balance

B. Determination

According to the evidence duly adopted and examined by the court below, considering the legislative purport of Articles 256(3)1 and 90(1) of the Public Official Election Act, which aims to prevent the excessive communication and confusion in the election atmosphere and to guarantee fair competition and equal opportunity among the candidates, the Defendant’s demonstration of this case does not constitute “act due to work” as provided in Article 20 of the Criminal Act, and it cannot be seen as “act which is ordinarily acceptable in social life in light of the overall legal order or the social ethics or social norms surrounding it,” and thus does not constitute a justifiable act as provided in Article 20 of the Criminal Act. Accordingly, the Defendant and the defense counsel’s aforementioned assertion cannot be accepted.

1) At the time when the pertinent election for public office is not left for two months, the Defendant conducted one person’s demonstration in front of L’s sentiments, stating that the name of the political party and the name and photograph of the person who intends to be a candidate should not be published, and that the photograph taken as it is in the form of one person’s demonstration and the content of the PPP book should be reported to the press along with the relevant article (Evidence No. 41 page). In addition, the Defendant’s organization, etc. distributed the relevant news report data to the press twice (Evidence No. 14 through 34 pages of the evidence record).

2) After the instant one-person demonstration, the Defendant mentioned that, if the candidate is present through an interview with the press, the Defendant would be punished for the abortion campaign against the candidate. After that, “E, a youth organization, the chairperson of which, was a youth group, was actually punished through the Internet homepage.

3) Although it was not confirmed at the time of the instant one-person demonstration, the Defendant conducted one-person demonstration, citing a tag stating the phrase “0”, which may be perceived as having been revealed as having been employed as a fact. The Defendant himself/herself also stated in the police investigation that “it may not be a suspicion of employment solicitation for F,” but a sufficient investigation should be conducted in order to resolve the circumstances, issues, and the suspicion of young people where they had been employed.”

4) The Defendant, not as an individual, was about 1,800 members of the community organization with eight branches nationwide, and was a representative of the 'E’ group with eight branches nationwide, and did not intend to seek advice from the competent election commission regarding the illegality of the demonstration prior to the demonstration, or to seek advice from legal experts.

3. Conclusion

Therefore, we cannot accept all the defendant's and defense counsel's arguments.

The crime of this case on the grounds of sentencing is likely to impair the fairness of election by affecting the fair and reasonable judgment of voters, because the defendant posted a ticket in favor of a specific candidate in order to influence the election of the 20th National Assembly members.

However, there are favorable circumstances such as the fact that the time when the defendant posted the pocketet is relatively short of about 40 minutes, that the crime of this case seems to have no particular influence on the success or election result, and that the defendant has no same criminal power.

In addition to the above unfavorable circumstances and favorable circumstances, the defendant's age, character and conduct, environment, motive, means and consequence of the crime, etc. of this case, conditions of sentencing prescribed in Article 51 of the Criminal Act and the results of the application of sentencing guidelines by the Sentencing Committee of the Supreme Court shall be determined by taking into account the following factors:

Judges

The presiding judge, judges and subordinate judges;

Judge Shin Jae-ok

Judge Choi Ho-hoon

Note tin

1) The defendant, in the course of police investigation, has a huge influence on the candidate who prepares for an election, if he hosting with the content that may not be an event.

I asked "I will not make a statement" (Evidence No. 132, 133 of the Evidence Records).

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