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The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 2,000,000.
The above fine shall not be paid by the defendant.
Reasons
1. According to the evidence submitted by the Prosecutor (misunderstanding the facts), the Defendant’s guilty of the facts charged in the instant case that the Defendant published false facts as to C with the intent of making the F Party’s preliminary candidate for the election in the constituency E in Changwon-si (hereinafter “instant constituency”) in the election of the 20th National Assembly members of the Republic of Korea, for the purpose of preventing the election from being elected from being elected in the competition in the competition in the party.
2. Determination
A. 1) The term “fact” as stated in the crime of publishing false facts under Article 250(2) of the Act on the Election of Public Officials in the relevant legal doctrine is sufficient if the elector has the existence of the structure to the extent that it can cause the elector to correct the accurate judgment of the candidate. The term “fact” refers to a report or statement on specific past or current facts in time and space, and its contents can be proven by evidence.
The distinction between which expression is a statement of fact or an expression of opinion or abstract judgment shall be determined by comprehensively taking into account all circumstances surrounding such expression, namely, the ordinary meaning and usage of language, the entire contents of expression, the context in which the expression in question is used, the background of the expression, the method of delivery, the other party, the possibility of proving the contents of expression, the candidate’s identity, etc., in mind of the legislative intent that guarantees the fairness of election, rather than by simply distinguishing between the terms of the former Section used.
In addition, even if one opinion or evaluation is an opinion or evaluation, the above crime is established even if it is found based on facts contrary to the truth or if it is revealed that it is an opinion or evaluation, and it is found that it is an indirect or roundive expression (see Supreme Court Decision 2008Do11847, Dec. 22, 2011, etc.).