The meaning of “the freedom of professors” protected as one of the contents of the academic freedom and the limitation of such freedom / Where a professor or researcher of a university investigates, criticizes, and teaches certain historical cases, human resources, social issues, or cultural phenomena, etc., requirements to determine which teaching content and method constitutes “election campaign” prohibited by the Public Official Election Act.

The freedom of professors is the freedom for professors and researchers at higher education institutions, such as universities and colleges, to teach and teach in accordance with their academic research and achievements and not subject to any instruction, interference or control in the contents and methods of professors. Such freedom of professors is protected as one of the contents and methods of academic freedom guaranteed by Article 22(1) of the Constitution. Article 31(4) of the Constitution guarantees the autonomy of universities, which is the basis of academic research and faculty freedom.

The essence of the freedom of learning, which is the core of mental freedom, is to guarantee the activities to obtain new recognition by constantly raising problems or criticism without following the existing perception and method. The freedom of learning is the foundation of the freedom of learning. The act of professor is an act of transmitting the research results and developing research outcomes by accepting new and diverse criticism and stimulities through academic dialogue and debate, and is an act of developing research outcomes by itself through academic dialogue and debate, and ultimately, it can develop a science. In light of the purport of the Constitution particularly protecting the freedom of learning and the freedom of teaching at universities and colleges, restrictions on the freedom of professors should be limited to the minimum necessary. Therefore, even if the contents and methods of a certain teaching act are deemed to deviate from the existing practices and order, it is reasonable to view the teaching act as unlawful, and the contents and methods of the teaching act as constituting the form of professors only from an objective perspective, and as a matter of principle, it is evident that the contents and methods thereof cannot be viewed as an academic research and development act for teaching purposes, barring special circumstances.

A professor or researcher of a university shall be guaranteed widely as the freedom of professors, if he/she investigates, criticizes, and teaches a specific historical case, character, social pending issue, or cultural phenomenon. In such cases, if a specific person publishes or announces the results of evaluation, criticism, etc. of a historical case, character, etc. related to a specific election or expected to be going out or going out in a specific election as an election campaign, all acts of a professor or researcher deemed to be an election campaign, it would result in the actual prohibition of academic research and teaching activities related to such historical case, character, etc., and may seriously infringe on the freedom of professors and research.

Therefore, if a professor’s contents and method constitute an election campaign prohibited by the Public Official Election Act, it should be objectively recognized that the professor’s act is not a transmission of academic research results or academic process, but an act with intent to promote the election or defeat of a specific candidate, if it goes beyond the inherent function and limit of academic research and teaching activities from the viewpoint of the elector.

Articles 22(1) and 31(4) of the Constitution of the Republic of Korea; Articles 58(1), 85(2) (see current Article 85(3)), 95, 252(1) (see current Article 252(3)), 254(2), and 255(1)9 of the former Public Official Election Act (Amended by Act No. 12111, Aug. 13, 2013);

Defendant

Defendant

Attorney Shin Sung-chul et al.

Daegu High Court Decision 2013No694 decided March 12, 2014

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The grounds of appeal are examined.

1. As to whether it constitutes an abuse of public prosecution power

In a case where it is deemed that a prosecutor voluntarily exercised his/her authority to institute a public prosecution and gives substantial disadvantage to the defendant, the effect of the institution of public prosecution can be denied by regarding it as abuse of the authority to institute a public prosecution (see Supreme Court Decisions 9Do577, Dec. 10, 199; 2001Do3106, Oct. 9, 2001, etc.).

However, even in light of the record, the prosecutor’s instant indictment does not seem to significantly deviate from his/her authority to prosecute as a arbitrary exercise of authority to prosecute. Therefore, the allegation in the grounds of appeal that the instant indictment constitutes abuse of authority to prosecute cannot be accepted.

2. As to whether Article 58(1) of the former Public Official Election Act (amended by Act No. 12111, Aug. 13, 2013; hereinafter the same) constitutes an election campaign under Article 58(1)

A. (1) The main text of Article 58(1) of the former Public Official Election Act provides that an election campaign is “an act to make another person or not to be elected,” and the proviso provides for “a simple statement of opinion and expression of opinion on the election” (No. 1) and “a simple statement of opinion and expression of opinion on the recommendation of candidates by a political party” (No. 3) as an act that does not constitute an election campaign.

Here, the term “election campaign” refers to an act objectively recognized by the intent of promoting the election or defeat of a specific candidate in a specific election, and whether it constitutes an election campaign ought to be objectively determined on the subject of the act indicated outside, rather than the intent of the principal agent who performs the pertinent act. Therefore, if it is difficult to recognize such act as an act intending to realize the intent of the said purpose in an objective manner under the circumstances at the time, such act cannot be deemed an election campaign even if the actor was in mind, or as a result, deemed to have an effect on the election. From the perspective of a State agency or legal expert, it is not ex post facto or reconcept, but rather, based on the specific situation at the time of the act. As such, whether an elector, who experienced the pertinent act, rather than closely analyzing the organic relationship between the act in question or emphasizing legal meaning and effect, can be seen as having an intention of such purpose in the situation at the time of the act. The foregoing purpose ought to be determined not only by the explicit method, such as requesting support for a specific election, but also by the objective motive or intent of the election.

(2) The freedom of professors is the freedom to teach and teach at higher education institutions such as universities and colleges according to their academic research and achievements, and is not subject to any instruction, interference, or control in the contents and methods of professors. Such freedom of professors is protected as one of the contents and methods of academic freedom guaranteed by Article 22(1) of the Constitution. Article 31(4) of the Constitution also guarantees the autonomy of universities that are the basis of the freedom of academic research and teaching.

The essence of the freedom of learning, which is the core of mental freedom, is to guarantee the activities to obtain new recognition by constantly raising problems or criticism without following the existing perception and method. The freedom of learning is the foundation of the freedom of learning. The act of professor is an act of transmitting the research results and developing research outcomes by accepting new and diverse criticism and stimulities through academic dialogue and debate, and is an act of developing research outcomes by itself through academic dialogue and debate, and ultimately, it can develop a science. In light of the purport of the Constitution particularly protecting the freedom of learning and the freedom of teaching at universities and colleges, restrictions on the freedom of professors should be limited to the minimum necessary. Therefore, even if the contents and methods of a certain teaching act are deemed to deviate from the existing practices and order, it is reasonable to view the teaching act as unlawful, and the contents and methods of the teaching act as constituting the form of professors only from an objective perspective, and as a matter of principle, it is evident that the contents and methods thereof cannot be viewed as an academic research and development act for teaching purposes, barring special circumstances.

(3) The university professor or researcher’s activities should be widely guaranteed as the freedom of professors’ freedom to explore, criticize, and teach specific historical cases, human resources, social issues, or cultural phenomena. In such a case, if a specific person publishes a result of evaluation, criticism, etc. of his/her historical case, human resources, etc., or his/her teaching activities are considered as an election campaign, the period during which the relevant election campaign is prohibited may result in the actual prohibition of academic research and teaching activities on such historical case, human resources, etc., and may seriously infringe upon the freedom of professors.

Therefore, if a professor’s contents and method constitute an election campaign prohibited by the Public Official Election Act, it should be objectively recognized that the professor’s act is not a transmission of academic research results or academic process, but an act with intent to promote the election or defeat of a specific candidate, if it goes beyond the inherent function and limit of academic research and teaching activities from the viewpoint of the elector.

B. Based on the following circumstances, the lower court determined that the Defendant’s teaching act (hereinafter “the instant teaching act”) recorded in the facts constituting an election campaign under Article 58(1) of the former Public Official Election Act is an active and planned act involving the students’ intent of promoting abortion by adversely affecting the students’ candidates for the fright-of-age election who are elected as the candidates for the fright-of-age candidate (hereinafter “fright-of-age candidate”) in the judgment of the first instance.

(1) (A) The Defendant, at the time of the 2012-year 2012-year 201-year 201-2, took place the instant lecture (hereinafter “instant lecture”), has joined the “(title 1 omitted)” and “(title 2 omitted).” The two organizations resolved on February 25, 2012 on the following: (a) the Consolidated Progress Party and the Democratic Integration Party are closed on February 25, 2012; (b) the objective and orientation that the instant teaching act ought to take place; and (c) the Defendant would participate in the activities to take place in the anti-party strike with the goal and orientation that it should take place; and (d) the Defendant decided on the 2012-year 2

(B) The Defendant, as an operating member of two organizations, participated in the central operating committee, the general meeting of operating committee, etc. at the time of the above resolution. In addition, the Defendant actively participated in the instant activities by inviting a standing representative on November 2, 2012 (title 2 omitted) to the instant course, which is called “the realization of the Peace Agreement” and “the realization of the Korea-do Peace Agreement.”

(2) The instant professor’s act was conducted two to three months before an election was held after a candidate registered a preliminary candidate for the 18th presidential election under the jurisdiction of the new branch, and all newspaper articles listed in the facts constituting the crime of the first instance as indicated in the judgment of the court of first instance (hereinafter “instant newspaper articles”) used for teaching was directly or indirectly criticized.

(3) Of the lecture plan, the part of the lecture of this case merely stated that “new audio-visual materials related to heavy culture are shared together, and understanding of the influence of American popular culture based on the understanding of the formation process of popular culture in the 1920 to 1930s, its active acceptance, and understanding of the dynamics and political implications of Korean modern society, which have developed together with its active acceptance,” and thus, it was not scheduled to utilize the instant articles in the instant lecture.

(4) The Defendant, a transfer of the instant course, continued a course of the same subject in the second and second semesters in 2010 and the first semester in 2011. There were a large number of complaints regarding the Defendant’s political opinion indications, including “only providing only a negative article about a certain candidate, and affecting voting,” on the basis of the student’s lecture evaluation of the instant course.

C. However, it is difficult to accept the judgment of the court below for the following reasons.

(1) Of the circumstances based on which the lower court determined that the instant teaching act was an election campaign, there is no proof that, among the students attending the instant course, voters either knew or could have known of such fact at the time of the instant teaching act. Therefore, it is difficult to view that the Plaintiff’s act constitutes an objective circumstance that is clearly recognizable by electors.

(2) (A) Whether the instant teaching act constitutes an election campaign ought not be determined solely with the simple expression or content of the instant article. Determination should be made by comprehensively taking account of the purpose of the instant teaching act, the situation where the teaching act was conducted, the context of the lecture, the relation between the freedom of professors, etc.

(B) The Defendant distributed a copy of the newspaper article to the students during the lecture hours of the instant lecture and used it as a lecture material. The Defendant all 60 newspaper articles distributed to the instant lecture, and the lower court determined that 10 of the newspaper articles among them were distributed and demoted as an election campaign.

(C) However, the article of this case is a knife or a private opinion published in the central daily newspaper, such as a faculty of history, journalist, journalist, novelist, and editorialist. This includes some critical contents of a candidate for Park Jong-young, but its main contents are perception and evaluation of historical facts related to the former president of Park Jong-hee, media reports pertaining to such historical facts, and media reports pertaining to human rights violations during the period.

(D) The instant course includes “the process of changing and developing the times of popular culture from Japanese colonial rule to the present time through the period during which democracy is due in connection with the changes in society in Korea,” etc. In order to study the subject of “large culture” from the academic point of view of social science, critical understanding on the historical figures and cases of modern history may be deemed necessary. Therefore, the Defendant’s use of the press articles that critically assessed the historical figures and cases of Korean history as teaching materials as teaching materials and cannot be deemed to contravene the purpose and intent of opening the instant course.

(E) More than 50 articles distributed by the Defendant in the course of this case are the introduction of the media, such as film, book, documentary, etc. of a critical content of social issues, or film, book, documentary, etc. In particular, the articles distributed along with the instant articles included a critical knife in which the articles were distributed from the lecture, and a critical knife that criticizes the government’s countermeasures against the accidents in the nuclear power plant in the aftermath of Kusi-si, the article that criticizes the creative historical history and character, and a knife that criticizes Hobbbbbe’s writing and public broadcasting. The articles of this case are distributed along with other articles and used as some materials of the lectures that criticize the historical issues and criticize the historical issues.

(F) Even after the instant teaching act, the Defendant continued to give lectures in such a way as to distribute articles related to movies, paintings, etc. that dealt with human rights violations, etc. under the system of the body system and the authoritative government of the instant lecture as lecture materials, and to utilize newspapers that critically deal with social issues. Moreover, even other courses that were opened prior to the instant lecture from 1 semester to 2012 to 1 semester, the Defendant continued to offer lectures in the same way.

(3) (A) Of the 97 students attending the instant course, it was pointed out that there was 87 students who made a lecture, and 4 students who made a lecture, among the students who made a lecture, were political inclinations of the Defendant during the lecture. Among them, only one of them pointed out that distributing negative articles against a specific candidate may affect voting, and there was no content that the Defendant made a statement to the effect that he made a campaign for the defeat of a specific candidate at the time of his lecture. In addition, in the first instance court, some students stated that there was no statement that the Defendant would have made an election campaign for the defeat of a candidate who was provided with gambling at the time of his lecture.

(B) The Defendant took part in the course of the 2010-year 1 semester, the 201-year 1 semester, the 201-year 201 year, and the 2012-year 2012 1 semester, and there were pointed out that some of the students’ lectures expressed political opinions or have a lot of political opinions with respect to the social pending issues that are dealt with in the lecture, regardless of the election. The Defendant appears to have revealed that he had expressed his political opinions about the election during the ordinary class of class, and that the instant teaching act was conducted while continuing the course for two years.

(C) The ○ University to which the Defendant belongs did not deal with the Defendant’s lecture method and content prior to the instant course. After the instant course, the Defendant had the Defendant take charge of the same course during the first semester of 2013.

(4) The reality is that a variety of evaluations or opinions may be presented in accordance with their respective views with respect to the historical cases, humans, and social controversial issues of the Korean modern history, and that political position or interests may be divided based on such evaluations or opinions. Under this reality, a researcher should be recognized as inevitable to a certain extent that the contents may be identical with or opposite to the assertion of a specific political group when he/she studies and delivers the results of the studies freely in a scientific aspect with respect to the said subjects. Furthermore, the Defendant did not unilaterally deliver his/her results of the study to the extent that he/she is able to actively participate in such a way as to unilaterally deliver the results of the study to students, and there was an opinion that positively evaluates the method of such lectures during the student’s lectures.

(5) Therefore, the mere fact that part of the newspaper articles distributed from the lecture of this case to lecture as lecture material included critical contents on the candidates for gambling benefit, etc., it is difficult to view that the instant teaching act does not constitute an objective case where it is objectively obvious that the Defendant had engaged in the act of promoting the defeat of the candidates for gambling benefit in relation to the 18th presidential election, from the perspective of the electors included in the students who participated in the lecture.

D. Nevertheless, the lower court determined that the instant teaching act constituted an election campaign under Article 58(1) of the former Public Official Election Act, solely based on the grounds stated in its reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on the limitation of election campaigns and freedom of professors under the former Public Official Election Act, thereby adversely affecting the conclusion

3. As to whether distribution is made in a way other than normal methods such as newspapers under Article 95 of the former Public Official Election Act

Except as provided for in the Public Official Election Act, no one may distribute newspapers, etc. on which articles related to an election are posted by any means other than ordinary means (Article 95(1) of the former Public Official Election Act). The term "article on an election" means ex officio of a candidate (including a person who intends to be a candidate) or articles favorable or unfavorable to a specific political party, and the term "distribution in a normal way" means publishing and distributing them within the previous method and scope (Article 95(2) of the same Act).

The court below determined that since the defendant copied newspaper articles and distributed them as election campaign material in the lecture, it is reasonable to view that the act of distribution constitutes "distribution in a way other than normal one" under Article 95 (1) of the former Public Official Election Act.

However, under the circumstances where it is objectively difficult to view that the Defendant’s instant teaching act constitutes an election campaign, as seen earlier, it cannot be deemed that the Defendant’s act of copying newspaper articles as part of or accompanied by lecture materials and distributing them to students by means other than ordinary means, such as newspapers, etc. prohibited under Article 95(1) of the former Public Official Election Act, by deeming that the act of copying newspaper articles as part of or accompanied by lecture materials constitutes an election campaign. In addition, in addition to the fact that the Defendant copied newspaper articles even before the second semester of 2012 and distributed them as lecture materials, it is difficult to view that the act of copying newspaper articles from the above lecture to distribute them as lecture materials goes beyond the “previous method and scope.” Ultimately, the lower court erred by misapprehending the legal doctrine on Article 95(1) of the former Public Official Election Act, which affected the conclusion of the judgment.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is 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

Justices Kim So-young (Presiding Justice)