[1] The meaning of "non-libation" in the crime of candidate-libation under Article 251 of the Public Official Election Act and the requirements for the elimination of illegality

[2] Legislative intent of Article 109(1) of the Public Official Election Act prohibiting election campaigns by letters, telegramss, etc. and meaning of "in cases of telephone with automatic transmission system installed by computer" under the proviso of the same Article

[3] The case holding that the act of issuing text messages to the elector by installing a program capable of sending text messages in bulk on the mobile phone ( smartphone) where a primary and primary computer is located constitutes an election campaign by means of a telephone installed with a computer under the proviso of Article 109 (1) of the Public Official Election Act

[1] The term "debrison" under Article 251 of the Public Official Election Act refers to the detection or elimination of the other party without justifiable grounds. On the other hand, in order to eliminate illegality pursuant to the proviso of the same Article, the alleged facts conform to the truth in view of the whole, and in light of its content and nature, the perpetrator has the motive to indicate the facts for the public interest. However, even if the public interest does not necessarily have superior motive to the private interest, both parties exist at the same time and the reasonableness thereof should be recognized.

[2] The legislative intent of Article 109(1) of the Public Official Election Act prohibiting election campaign by correspondence, telegram, etc. is to prevent the act of unilateral and easy communication, and to prevent election campaign by means of mass transmission or non-discrimination in a case where the full permission is granted. Therefore, the above provision is prohibited in principle inasmuch as election campaign by means of correspondence and telecommunications is likely to spread in a large quantity or cause confusion in election campaign, and the above provision is to exceptionally allow election campaign by means of mail and telecommunications. However, in light of the legislative intent as seen above, the above provision should be deemed to include a case where a large quantity of mobile phone text messages, etc. can be automatically sent to a mobile phone, which has a computer function.

[3] The case holding that the act of massive sending text messages to the elector by installing a program to send text messages in bulk on the mobile phone ( smartphone) where a primary and primary computer is located constitutes an election campaign by means of a telephone with a computer under the proviso of Article 109 (1) of the Public Official Election Act

[1] Article 251 of the Public Official Election Act / [2] Article 109(1) of the Public Official Election Act / [3] Article 109(1) of the Public Official Election Act

[1] Supreme Court Decision 99Do4260 delivered on April 25, 200 (Gong2000Sang, 1350) Supreme Court Decision 2004Do3919 Delivered on October 27, 2004 (Gong2004Ha, 1975) / [2] Supreme Court Decision 2004Do5446 Delivered on March 11, 2005 (Gong2005Sang, 620) Supreme Court Decision 2009Do1376 Delivered on April 23, 2009 (Gong2009Sang, 818)

Defendant

Defendant and Prosecutor

Law Firm Barun et al.

Daejeon High Court Decision 2008No527 decided Feb. 5, 2009

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. As to the Defendant’s grounds of appeal Nos. 1 and 2

A. Whether it constitutes a violation of the Public Official Election Act due to a violation of restrictions on transmission of the election campaign information

Examining the evidence duly admitted by the court below in light of the records, the court below is just in finding the facts based on the evidence and finding that the act of sending text messages or sending text messages with the phrase "to delete at the time of refusal of reception," stating the phrase "to delete at the time of refusal of reception," or automatically displaying a paid telephone number or sending text messages with the phrase "to delete at the time of refusal of reception," shall not be deemed to have indicated in the election campaign information or to have taken necessary measures so that an addressee under Article 82-5 (2) of the Public Official Election Act (hereinafter "Act") may easily express the intention of refusal of reception in the election campaign information, or a receiver shall not bear the telephone fee or other cost incurred at the time of refusal of reception as provided under paragraph (5) of the same Article, as otherwise alleged in the ground for appeal.

B. Whether the statute is erroneous

Article 16 of the Criminal Act provides that "the act of misunderstanding that one's own act does not constitute a crime under Acts and subordinate statutes shall not be punishable only when there is a justifiable ground for misunderstanding." In this case, the issue of whether there is a justifiable ground for the act at issue is determined depending on whether the act was not aware of illegality as a result of failure to perform his/her duty even though there was a possibility that one's own act could have been aware of illegality if he/she had done so with his/her intellectual ability and could have been able to review or inquire about the possibility of illegality of his/her act. The degree of efforts necessary for recognizing illegality should be determined differently according to specific circumstances of act, individual awareness ability of the actor, and social group to which the actor belongs (see Supreme Court Decision 2005Do3717, Mar. 24, 2006).

In light of the circumstances revealed through the evidence revealed at that time, the lower court determined that there was no justifiable ground for misunderstanding that the Defendant had made a serious effort to avoid the illegality, even if the Defendant, even if misunderstanding that his act did not violate the law and subordinate statutes.

The judgment of the court below is just in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to errors in statutes.

The judgment cited by the defendant in the ground of appeal is inappropriate to apply this case.

2. As to the Defendant’s grounds of appeal Nos. 3 and 4

Article 251 of the Act is established when a candidate (including a person who intends to become a candidate), his/her spouse, or any lineal ascendant, descendant, or sibling openly discloses facts by means of a speech, broadcast, newspaper, communication, magazine, poster, propaganda document, or any other means, and slanders a candidate (including a person who intends to become a candidate), his/her spouse, or his/her lineal ascendant, descendant, or sibling, with the intention of getting elected or preventing the person from being elected. In this case, the term “debrising” means that the other party is cut, broken, or removed without good cause (see Supreme Court Decisions 2007Do2824, Sept. 21, 2007; 2008Do3261, Jul. 10, 2008). Meanwhile, in order to be dismissed in accordance with the proviso of Article 251 of the Act, the facts stated in advance are consistent with the truth, in light of its content and nature, and the offender also has the motive to indicate such facts for the public interest.

Examining the evidence duly admitted by the court below in light of the records, the court below is just in holding that the act of sending text messages to the voters such as the contents of the judgment constitutes a crime of aiding and abetting candidates under Article 251 of the Act, and furthermore, it is difficult to view the contents of text messages as true and its purpose as well as the private interest is determined as important motive, and thus the illegality is not dismissed. In so doing, the court below did not err by misapprehending the legal principles as to the elements of the crime of aiding and abetting candidates and the

3. As to the Prosecutor’s Grounds of Appeal

Article 109(1) of the Act provides that "no one shall carry out an election campaign using letters, telegramss, facsimiles, or other means of telecommunication during the election period: Provided, That this shall not apply to cases where Internet (in the case of Internet advertisements, limited to the advertisements under the provisions of Article 82-7 (Internet Advertisement)) or telephone (excluding the case of telephones who have installed automatic transmission devices using computers) is excluded." The legislative purport of the above provision is to prevent election campaign inasmuch as the method of correspondence and telecommunications is one-time and is to act in large quantity and free transmission of letters and telecommunications, and where such act is completely permitted, it is highly dangerous to capture election campaign and cause confusion, and thus, the above provision is, in principle, prohibited from carrying out an election campaign using letters and telecommunications, but it shall also be deemed to have been carried out on the Internet among methods of telecommunications, and it shall be deemed to have been permitted to carry out an election campaign using a computer in large amounts or without discrimination, such as the case of automatic transmission devices installed on the Internet."

According to the evidence duly admitted by the court below, Non-Indicted 1, a volunteer of the defendant, purchased three mobile phones (S-M450) in which non-Indicted 1, a program capable of sending text messages in bulk from Non-Indicted 2, and Non-Indicted 3, an infant of the defendant, sent text messages to the elector by using the above mobile phones over a total of 32,205 times as shown in the facts charged. The above mobile phone purchased by Non-Indicted 1 is called a smartphone, and is a combination of a super-small-sized computer in digital mobile phones, and the primary computer is built in the cell phone itself. In the case of general mobile phones, the mobile phone manufacturer limited its function so that the users can send text messages only to up to 20 persons at a time. The program installed in the above mobile phone has cancelled the above restriction so that it can send text messages to the maximum of 1,000 persons at a time. Examining these facts in light of the legal principles as seen above, the act of the defendant by using the aforementioned large phone text messages to the elector is an automatic.

Nevertheless, the court below determined that the act of sending text messages by the defendant cannot be deemed to constitute an election campaign by telephone equipped with an automatic transmission system using computers. In so doing, the court below erred by misapprehending the legal principles as to the requirements of Article 109(1) of the Act, thereby affecting the conclusion of the judgment. The grounds for appeal by the prosecutor pointing this out are with

4. Conclusion

Therefore, the part of the judgment of the court below regarding the election campaign using the phone using a computer should be reversed, which is related to the remaining convictions and ordinary concurrent crimes, the whole judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)