2017Gohap412 Violation of the Public Official Election Act

A

Category National Quantities ( Indictment and Public Trial)

Attorney B (Korean National Assembly)

June 2, 2017

A defendant shall be punished by imprisonment for not less than eight months.

However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive.

Criminal facts

The defendant is a national of the Republic of Korea who has become a Brazil in 1983 and lives there.

From September 2016, the Defendant opened and operated a personal broadcasting channel called "C" on the Internet (www.youte.com) from around September 2016, posted a video of the title "C" in the Defendant's office located in Paris-gu, Paris-gu, on December 8, 2016.

From the foregoing video, the Defendant: “I swear I will see the Franch of the Republic of Korea, along with a synthetic photograph of the North Korean Forces’ face; I will see the franch of the Republic of Korea as soon as I will open the G, while I will see the franch of the Republic of Korea as the background of G. F will be soon as I will correct. F will be the franch of the Republic of Korea, which is franched in the election of the past president. F will be the franch of the Republic of Korea. F will be the franch of the Republic of Korea, which will be the top priority to North Korea rather than the Republic of Korea, in which the public policy is unlawful. If Franch and unification officers of Franch of the Republic of Korea will succeed to the Franch of the Republic of Korea and will change the Franch of the Republic of Korea as the franch of the Republic of Korea, and will not be able to subscribe to the National Security Act as soon as I expect the franch of the Republic of Korea.

However, the father of F was born at the Hanam-si in 1920 and worked as the head of agriculture division in the Heungnam-si in 1920, and served in the North Korean armed forces as a refugee who has escaped to the Republic of Korea at the time of the Korean War in 1950. And it is not true that F did not assert that he would be unconstitutional in the Republic of Korea and that he did not claim the acceptance of usfk.

Nevertheless, as above, the Defendant stated that F’s father was from the upper coordinate group of the People’s Republic of Korea and that F was asserting that F would be able to harmonize the public policy of the People’s Republic of Korea and to accept the U.S. army. Based on such false facts, the Defendant expressed F as “F as soon as pit, Gongsan, Cho & Cho, Cho’s failure to crymism, converted to the political fraud of scarbs, and the number of anti-war group crimes to return to the Republic of Korea, and human races that were not taken away,” etc.

Ultimately, the Defendant published false facts with respect to F and his lineal ascendants in order to prevent F from being elected by a person who wishes to be a guardian after the 19th presidential election that was scheduled to be held before or before December 20, 2017, with the aim of preventing F from being elected.

Summary of Evidence

1. Partial statement of the defendant;

1. Statement to the prosecution of I;

1. A copy of a recording book of video, a video screen screen screen, a video CD (Evidence No. 7), a press article (No. 17) and a press article, a copy of a press article, a three copy of a press article (No. 20), aF book, a copy of a "K", a one copy of the 19th presidential election day, a list of preliminary candidates for the 19th presidential election, and a copy of a public announcement of the 19th presidential election day;

1. Confirmation of the appearance time of the background of the text of the investigation report ("G");

1. A written accusation;

Application of Statutes

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

Article 250(2) of the Public Official Election Act (Appointment of Imprisonment)

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following consideration of favorable circumstances among the reasons for sentencing):

Grounds for conviction

1. Summary of the defendant's lawsuit;

A. In the Internet and SNS, the Defendant: F’s father was the North Korean military origin; F was in contact with F’s assertion of the legality of Gongsan and the U.S.F.’s assertion that the contents (hereinafter “the publication of this case”) were all true, and produced and posted the video of this case as indicated in the holding that the contents thereof (hereinafter “the video of this case”) are all true, and thus, there was no perception that the publication of this case was false.

B. The Defendant merely posted video images as a means of expressing political opinions while putting a view on the evaluation of other people with respect to F’s policies or ideas, and did not aim to prevent F from being elected to the President.

2. Relevant legal principles

A. Under a democratic political system, the freedom of speech is the most fundamental right, and it does not need to be sufficiently guaranteed 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 the purpose of verification of eligibility is also guaranteed, and to this end, if there are circumstances, it shall be allowed to raise a question, and it shall not be easy to raise suspicions against the candidate. On the other hand, if it is widely permitted to raise suspicions on the basis of the public judgment before the public judgment is made, it shall not be easily obstructed. On the other hand, even if the suspicions are revealed in fact, it would be prejudicial to the reputation of the candidate for Danama, even if it is found later, and it would result in a significant result that is remarkably contrary to the public interest, and thus, it shall not be justified in the event that there is no evidence to prove that there is a suspicion of truth ex post facto, even if it is for the purpose of verification of eligibility for public service, it shall not be justified in the absence of such evidence.

Since the intention of a crime includes the so-called willful negligence, which is the intention to recognize the occurrence of a result, as well as the conclusive intention, the crime of publishing false facts under Article 250(2) of the Public Official Election Act is also established by dolusent intention (see, e.g., Supreme Court Decision 99Do5190, Feb. 26, 2004). In applying the crime of publishing false facts, where “any fact” is published by lending the form of delivery of written documents and other other people’s words or suspicions, not whether such written statements or suspicions were false, but whether “any fact,” which is the content of such written statements or suspicions, should be determined by whether it is false (see, e.g., Supreme Court Decision 2015Do14375, Dec. 27, 2016).

B. "Purpose of preventing the election of a candidate" in the crime of publishing false facts is sufficient if the publication of such false facts makes it impossible for the candidate to be unable to be elected, and it does not require active desire or desire to result in the crime, and it is sufficient that the “purpose of preventing the election of a candidate” has doluence without requiring active desire or final recognition. In addition, whether there exists such objective should be determined reasonably in light of social norms by comprehensively taking into account various circumstances, such as the social status of the defendant, personal relationship between the defendant and the candidate or the candidate for competition, motive and circumstance of the act of publication, method and method of publication, contents and manner of the act of publication, nature and scope of the other party to whom such publication was conducted, and social situation at the time of the act (see, e.g., Supreme Court Decision 2005Do4642, May 25, 2006).

3. Determination

(a) Whether there was a false perception;

1) In full view of the evidence duly admitted and examined by this Court, the following facts and circumstances are revealed.

A) From May 10, 2012 to December 2, 2013, the Defendant was working as Lins Chairman from May 10, 2012 to Lins Chairman, and is currently going in writing against Lins as a knife list of the Binsian Mins Newspapers. On September 22, 2016, the Defendant opened a channel “C” on the Internet Youb website and produced and posted a video image of Korean nationals abroad on a total of 32 minutes from March 19, 2017.

B) On June 21, 2013, in relation to the facts of the crime that the father of the M Party NE 0, at the time of the 18th presidential election, spreads false facts to the effect that the father of F was the North Korean military origin, a report was made through several media companies on June 21, 2013 that the Seoul Eastern District Court sentenced to a fine of KRW 3 million as a violation of the Public Official Election Act. Since then, on October 29, 2015, the J Party spreaded a false fact about the F father’s origin, and reported it to the majority media, which included false facts about the F father’s origin.

C) The Defendant did not verify whether the instant publication was true, such as asking the preparing person about the authenticity or searching the press articles related thereto, through the SNS written by other people (it does not confirm at all the materials on the assertion that the U.S.F.’s U.S. demand and the Notarialististististististististististististististististististististististististististististististististististististististististististististististististististististist, and there is no technology that his father served in North Korea on September 201.).

D) The Defendant stated that, along with the phrase “G”, the pictures containing F’s face and uniforms of North Korea forces were inserted on the background screen (00:53 to 01:55, 08:41 to 09:12) of the instant videos, the Defendant stated that the Defendant was using the pictures regardless of the Internet, i.e., “F and as soon as possible pit number,” and that the pictures were reproduced and reproduced, and thus, the authenticity of the publication of the instant case seems to have not been the main matter of interest (Article 311 of the Investigation Records).

2) In light of the above Defendant’s activity field, the source of the publication of this case, and the attitude of the publication of this case, etc., it can be inferred that the Defendant was aware that the publication of this case was false at least, and even if the Defendant believed that the publication of this case was true, it is difficult to deem that there was a considerable reason to believe that the Defendant was true.

(b) Whether there was an intention to prohibit an election;

1) In full view of the evidence duly admitted and examined by this Court, the following facts and circumstances are revealed.

A) The purport of the publication of this case revealed by the Defendant is that F’s father is North Korea’s origin, and F is trying to legalize the Republic of Korea’s Gong300, and that F may bring about an accurate judgment related to the election by having the right holder of the Republic of Korea, a divided country, have negative view on F.

B) In the video of this case, the Defendant stated that “F” was a fluent holder of the next presidential election (02:39-02:45), “F would be a fluent holder of the next presidential election (03:4-00), “F would not be an absolute president,” and “F would not be a fluent president.” The Defendant stated that he produced the video of this case in the mind that he would not be a at least a fluent person, and that he would not be a person equal to F would not be a fluent person (the Investigation Records No. 31).

C) Due to the characteristics of the SNS website where the instant video was posted, there was sufficient room to have an impact on the election of the 19th presidential president because it can be widely and promptly disseminated through SNS. In fact, many people shared the instant video and posted it on an individual block (Investigation Records No. 460-468).

D) At the time of posting the instant video, the 19th presidential election was scheduled on December 20, 2017 at the time of the Defendant’s posting of the instant video, and around that time, the National Assembly of the Republic of Korea proposed a motion for impeachment against the President P, and thereafter the resolution for impeachment was initiated by the National Assembly of the Republic of Korea, there was a possibility that the 19th presidential election will be held early (F registered as a preliminary candidate for the 19th presidential election to the National Election Commission on March 14, 2017).

2) In light of the motive, background, and frequency of the production of the instant video, and the political situation of the Republic of Korea at the time, etc., it is reasonable to deem that the Defendant, “a person who wishes to be a candidate,” published false facts with the intention of preventing the election from being elected in the 19th presidential election, which will be future.

Reasons for sentencing

1. Scope of recommendations according to the sentencing criteria;

[Determination of Punishment] Type 3 (Publication of False Information for the Purpose of Destigious Election)

[Special Aggravation] Aggravations: Where the other party is considerably majority or highly radio wave.

[Scope of Recommendation] One year to Three years (Aggravated Field)

2. Determination of sentence;

The crime of this case was committed by the Defendant, who works as the knife permanent resident of Brazil, produced video images containing false and indecent expressions about F without undergoing a fact-finding procedure, and posted them in the Pib. This is a crime that may impair the fairness and transparency of election by distorted public opinion and leading to the wrong choice of voters. In fact, the number of inquiries about the video of this case was disseminated to approximately KRW 320,000 to a large number of other parties on February 20, 2017.

However, the Defendant produced the instant videos by bringing out and editing letters and pictures, etc. irrelevant to the Internet and SNS, and there are many parts corresponding to the expression of opinion, along with the statement of fact. Moreover, in the 19th presidential election, F was elected and the crime of this case was not likely to have an impact on the election of the President. The Defendant deleted the instant videos around April 10, 2017, and did not distort such errors in the future, and there is no criminal power.

In addition to these various circumstances, the defendant's age, character and conduct, environment, circumstances after the crime, etc. are determined to be the same as the order to lower the range of recommended sentencing criteria in consideration of various circumstances shown in the arguments and records, and the execution thereof is suspended.

The presiding judge and judges;

Judges Sung Jae-in

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