Defendant 1 and one other

Prosecutor

Freeboardboard (prosecution), leapju (public trial)

Attorney Full-time (for all the defendants)

Suwon District Court Decision 2016Gohap86 Decided January 5, 2017

The judgment of the court below is reversed.

The Defendants are not guilty.

1. Summary of the grounds for appeal;

Article 96 (1) of the Public Official Election Act provides that "distort the results of public opinion polls" should be interpreted not only to artificially manipulate or modify the existing results of public opinion polls, or to artificially manipulate them in the public opinion poll being conducted, but also to publish the results as if they were actually conducting public opinion polls.

In full view of the fact that Defendants conducted Defendant 1’s opinion from October 16, 2015 to March 4, 2016, 180 days before the election day, and there is no room for Defendants to conduct a public opinion poll, the Defendants presumed to be an unrealistic company, the Defendants’ “KRI” as indicated in the public opinion poll agency, the fact that the result of the public opinion poll transmitted by the Defendants is considerably different from the real public opinion, and even if Defendant 1 received the result of the public opinion poll from arbit group, if it is unclear whether the public opinion poll company is a reliable company, it should have verified the source of the public opinion poll but it has not been confirmed. Nevertheless, the lower court erred by misapprehending the Defendants, thereby adversely affecting the conclusion of the judgment.

2. Ex officio determination

Before making decisions on the grounds for appeal, this paper will examine ex officio.

In the first instance trial, the prosecutor applied for the amendment of indictment with the content that the facts charged in the instant case was modified as stated in the following 3. The court permitted this. Therefore, the judgment of the court below became no longer able to be maintained as the subject of the judgment changed.

However, even if such a ground for ex officio reversal exists, the prosecutor's assertion of mistake of facts against the judgment of the court below is still subject to the judgment of the court within the scope related to the modified facts, and this is also examined. However, since the modified facts charged are also the same as the facts charged prior to the modification, it is also

3. Summary of the modified facts charged

Defendant 1 was registered as a preliminary candidate on January 13, 2016 in order to leave the 20th National Assembly member election conducted on April 13, 2016, and Defendant 2 was a partner of Defendant 1.

No one shall publish the results of a public opinion poll on election in a distorted manner.

Defendant 1, around 15:20 on February 27, 2016, using Defendant 1’s election campaign office located in ○○○○○○○○○ (name omitted), using mobile phones used by Defendant 1, Nonindicted Party 1’s cell phone, “Non-Indicted 21, Non-Indicted 31, Non-Indicted 34, Non-Indicted 57, Non-Indicted 527, Non-Indicted 30, Non-Indicted 27, Non-Indicted 4, Non-Indicted 5, Non-Indicted 26, Non-Indicted 4, Non-Indicted 5, Non-Indicted 7, Non-Indicted 2, Non-Indicted 4, Non-Indicted 5, Non-Indicted Party 2, Non-Indicted Party 4, Non-Indicted Party 2, Non-Indicted Party 4, Non-Indicted 7, Non-Indicted Party 4, Non-Indicted Party 2, Non-Indicted Party 1’s sample of this case’s sample of Non-Indicted 2, Non-Indicted 3’s sample.

However, among the contents of the public opinion poll distributed by the Defendants in sequential order as above, the public opinion poll institution called KRI (KRI) is an institution that did not have been actually engaged in or requested to conduct the above public opinion poll, and the Defendants did not directly confirm the source and reliability thereof, and the text message itself is premised on the fact that the contents of text message do not meet the procedure and requirements prescribed in the Public Official Election Act, and thus, it is obvious that the above public opinion poll result was not actually conducted or that the results of the public opinion poll were artificially fabricated. Nevertheless, the Defendants offered 50 samples at the public opinion poll institution called KRI, which conducted the public opinion poll for 50 samples, and conspired to publish the results of the public opinion poll with the intent of creating a favorable public opinion environment for the preliminary candidate in the process of the preliminary candidate competition, as they obtained the results that Defendant 1, who was the preliminary candidate, was earlier than other preliminary candidates.

As a result, Defendants conspired to publish the results of the public opinion poll.

4. Judgment on the prosecutor's assertion of mistake of facts and changed charges

(a) Details of publication of results of the public opinion poll;

In full view of the evidence duly admitted and examined by the court below, the following facts can be recognized:

1) On April 13, 2016, Defendant 1 registered a preliminary candidate to run for the election of the 20th National Assembly members, and to run for the election district of △△△○ Si/Gun on January 13, 2016, and opened an election campaign office on February 5, 2016.

2) At around 15:20 on February 27, 2016, Defendant 1 used his mobile phone in his own election campaign office located in ○○○○○Gun (name omitted), and sent the text message “On February 18 through 20, Nonindicted 21, Nonindicted 31, Defendant 134, Nonindicted 47, and Non-Indicted 30, which was reported on the line line, to Non-Indicted 1’s cell phone used by Nonindicted 1, and sent the text message “On February 18 through 20, Nonindicted 21, 31, Defendant 134, and Non-Indicted 47, and Non-Indicted 30, which was reported on the line line.” On the same day, Defendant 1 sent the text message “On February 18, 2015, Non-Indicted 1 and Non-Indicted 1’s cell phone text message” to Non-Indicted 1’s mobile phone transport.

3) On February 27, 2016, around 20:29, Nonindicted Party 1 sent a text message to Nonindicted Party 7’s mobile phone, which had been able to carry out the election campaign by Defendant 1, that read, “The △△△△△△ preliminary candidate’s public opinion poll results: The period from February 18 to 20: 500 specimens from February 18 to March 20: 500: As a result, Nonindicted Party 21, Nonindicted Party 31, Nonindicted Party 134, Nonindicted Party 47, Nonindicted Party 527, and Nonindicted Party 30 replys. This investigation was non-disclosure and thus, it cannot be disseminated, and thus, it is difficult to spread the text message to the person related to the office in Korea.”

4) On February 28, 2016, Nonindicted 7 sent text messages that are almost the same as the text messages received from Nonindicted 1 to Defendant 2’s mobile phone, and Defendant 2 sent text messages to Nonindicted 6, etc. from February 29, 2016 to March 4, 2016, as indicated in the list of crimes attached to the lower judgment, (a) Nonindicted 7 sent text messages to 58 persons, including Nonindicted 6, etc., (b) as indicated in the list of crimes attached to the lower judgment (hereinafter “instant results of the public opinion poll”).

B. Falseness of the result of the instant public opinion poll

In full view of the following circumstances admitted by the evidence duly admitted and investigated by the court below, it is judged that the results of the instant public opinion poll were objectively false.

① In text messages sent by Defendant 1, the public opinion poll institution stated “KI” as “KI”. The above institution is not a public opinion poll institution registered in the Korea Research Association, but there is no data that exists or has worked as such public opinion poll institution, and thus, it appears that it is not a public opinion poll institution.

② The result of the instant public opinion poll is not registered in the Central Election Process Deliberation Committee. The Defendants did not conduct a public opinion poll with Defendant 1 from October 16, 2015 to March 4, 2016, which was 180 days before the election day, and there was no data that a third party other than the Defendants conducted such public opinion poll for the same period.

③ The Defendants’ result of the public opinion poll published in text messages differs from the result of the public opinion poll conducted from March 3, 2016 and March 7, 2016 to March 8, 2016 (Nonindicted 540.6%, Defendant 123.4%, Nonindicted 412.0%, and 24.0%, respectively).

④ The text message sent by Defendant 1 refers to “from February 18 to 20,” and if there exists a result of the pertinent public opinion poll, and Defendant 1 received a note from a third party on this matter, the delivery time should be after February 20, 2016, at least the date when the public opinion poll is completed. However, according to Defendant 1’s statement, the above Defendant was delivered a note after the lapse of the Gu affairs or after the lapse of the Gu affairs on February 8, 2016, and thus, it is not logically inconsistent with the above public opinion poll period and at the time.

C. Whether Defendants’ act constitutes an act of publishing distorted outcomes of the public opinion poll

1) The premise for the determination

In this case, Defendant 1 consistently asserted to the effect that, with respect to the process of sending text messages on the results of the instant public opinion poll to Nonindicted 1, Defendant 1, who was present at several events around February 2016 (or the Gu administration) at the investigative agency, stated that “I sent text messages to Nonindicted 1, 2016, who was present at several events of the Gu administration (or the Gu administration) and was forgotten by inserting them in the main machine at the bar cycle, as it was favorable for the election commission to read by taking out on February 27, 2016, and was confirmed as favorable for the election commission, but it was confirmed as the result of the public opinion poll that was not registered, and that “I sent text messages to Nonindicted 1 as it is, as it is, the content of which is only known to the election campaign officer and a person who was friendly.

Accordingly, while instituting the instant indictment against the original Defendants, the prosecutor: (a) stated in the indictment that “the Defendant did not conduct a public opinion poll on preliminary candidates for △△△ and ○○ constituency areas; and (b) stated Defendant 1’s statement that “34% of Defendant 1’s support rate as a result of Defendant 1’s public opinion polls,” and conspired to distort it with the knowledge that it was not registered at the Central Election Campaign Deliberation Committee; and (c) based on the premise that Defendant 1’s statement that Defendant 1 was delivered a medal stating the results of the instant public opinion poll from an unregistered person and published it.”

The prosecutor deleted the part concerning the process of delivering the above main text message, which was originally recorded in the trial after filing an application for changes in the indictment after the appeal, on the premise that “(the results of the instant public opinion poll) did not have all confirmation on its source and reliability, etc., and the text message itself itself is an unlawful act,” and thus, it is obvious that the results of the public opinion poll were not actually carried out or that the results of the public opinion poll were artificially fabricated. Nevertheless, the Defendants still declared that Defendant 1 was published by delivery of the results of the public opinion poll suspected of falsity by a third party.”

2) Contents and key issues of the relevant provisions

Article 96 (1) of the Public Official Election Act provides that "no person shall publish or report the results of public opinion poll on election in distorted manner."

The prior meaning of the phrase “drawing” refers to “dissipating or misleadingly misleading facts.” In light of such prior meaning or general tolerance, the act of “dissipating and publishing the results of public opinion polls,” which is a constituent act of Article 96(1) of the Public Official Election Act, is “an act of interpreting or falsely publishing the results of public opinion polls,” which includes the act of artificially manipulating or altering the results of public opinion polls already existing or artificially manipulating them in the public opinion poll being conducted, thereby drawing up the wrong results of public opinion poll, other than the act of publishing them, even though it did not actually conduct public opinion poll, it also includes the case where a public opinion poll is published as if it was conducted.

Furthermore, even in cases where an actor did not voluntarily write out the results of the public opinion poll, which is a false content without substance, and only the act of simply publishing them after receiving them from a third party, if the actor had awareness of the falsity of the results of the public opinion poll at the time of publication, it is a matter of whether such publication also constitutes the act of “distorting the results of the public opinion poll” as referred to in Article 96(1) of the Public Official Election Act. In this case, Defendant 1 received from a third party the messages with respect to the results of the public opinion poll, which is false contents, from a third party, and sent them to Nonindicted 1, and Defendant 2 also sent them to Nonindicted 6, etc. as they are, after receiving text messages on the results of the public opinion poll in this case from Nonindicted 7, which is a false content without substance. Even if the Defendants did not voluntarily write and transmit them to a third party, if they were aware of the falsity of the results of the public opinion poll in this case, it can be seen as constituting the act of publishing the results of public opinion poll.

3) Determination

A) The penal provisions should be strictly interpreted, and the meaning of the explicit penal provisions should be excessively expanded or analogically interpreted in the direction unfavorable to the defendant, and the principle of no crime without the law shall be respected, and the offender's act at two stages of "public" is demanded under Article 96 (1) of the Public Official Election Act, and the Public Official Election Act has a provision punishing the act of publicly announcing false facts separately under Article 250 (2) of the Public Official Election Act (However, it seems that the subject is not included in the results of the public opinion poll), and the inclusion of the defendants in the public opinion poll only in passive state that recognizes the falsity of the results of the public opinion poll, but also in the case that the defendants did not actively participate in the falseness of the results of the public opinion poll, even if the result of the public opinion poll transmitted by the defendants to the third party was not actually implemented, so long as the defendants transmitted it to the third party without the substance, it cannot be deemed that the defendants' act constitutes an act of publicly announcing the results of the public opinion poll referred to in Article 96 (1) of the Public Official Election Act.

B) Meanwhile, the prosecutor asserts that, in full view of the fact that the Defendants did not conduct a public opinion poll conducted by Defendant 1 from October 16, 2015 to March 4, 2016, which was 180 days before the election day, the Defendants are presumed to not have been actual, and that there is a substantial difference between the results of the public opinion poll in the fact that the Defendants are presumed to have been presumed to have been actual, and that there is a substantial difference from the actual public opinion, even if Defendant 1 received the results of the public opinion poll, if it is unclear whether the contents of the media report are different from the public opinion poll at the time, and it is unclear whether the public opinion poll company is a trusted company, it should have been confirmed even if it was not confirmed, and that the Defendants were aware that there was no public opinion poll conducted, which was the basis of the results of the public opinion poll at least at the time of transmitting the results of the public opinion poll at least, or that the results of the public opinion poll were false.

In addition to the circumstances acknowledged earlier, the period of the public opinion poll stated in the results of the public opinion poll of this case and the point at which the defendant defended for the defendant does not meet the time to receive the results of the public opinion poll of this case, so it is highly suspected that the defense of the defendant is true or true, and the defendant was unable to make any statement about the person who delivered the results of the public opinion poll of this case without keeping the memenmenmen who contained them at least.

However, as alleged by the prosecutor, even though the Defendants knew that the result of the instant public opinion poll was false, if it was merely delivered by a third party and delivered it to the third party, it cannot be deemed that the Defendants’ act of publishing the result of the public opinion poll under Article 96(1) of the Public Official Election Act constitutes an act of distortion and publication.

5. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act, and the judgment below is reversed and it is decided as follows.

The summary of the facts charged of this case is as stated in Paragraph (3) above, and since this constitutes a case where there is no proof of facts constituting a crime for the same reason as stated in Paragraph (4), it is so decided as per Disposition by the decision of not guilty against the Defendants under the latter part of Article 325

Judges Haak-Jon (Presiding Judge)

Note 1) The Defendants appears to be the clerical error of the “Krorea Reste”, which appears to be the clerical error of the “Krorea Resarite”.