(영문) 부산지방법원 2015.3.16.선고 2014고합636 판결

The defendant shall be punished by a fine of two million won. If the defendant does not pay the above fine, the defendant shall be confined in a workhouse for a period of one hundred thousand won converted into one day.

Reasons

Criminal facts

On June 4, 2014, the defendant appeared in the D constituency for the election of the C Council members implemented on June 4, 2014 to be under his/her jurisdiction.

For the purpose of election, a candidate, his/her spouse, or his/her lineal ascendants or descendants or siblings' birth place, status work, career, etc. shall not be publicly announced or publicly announced with respect to property, personality, organization to which he/she belongs, etc., such as a candidate, his/her spouse, his/her lineal ascendants or descendants or siblings, in favor of the candidate by means

On May 23, 2014, the Defendant submitted an election campaign bulletin prepared by inserting the phrase "I am jointly with F candidates and election policies" at the office of the C election commission located in Busan Metropolitan City on May 23, 2014, which included the phrase "I am jointly with F candidates and election policies" at the bottom of pictures taken by F candidates and descendants, and made the said election campaign bulletin distributed 16,000 copies of the said election campaign bulletin to the said election commission on May 25, 2014.

Accordingly, the defendant announced false facts about the defendant's act in favor of the candidate for the purpose of election.

Summary of Evidence

1. Partial statement of the defendant;

1. The witness F, H and I's respective legal statements, and the witness J, K, L, and M's partial legal statements; 1. Part of the police and prosecutor's office examination records against the accused;

1. Statement of the police statement to I;

1. H's certificate;

1. Each investigation report (investigation of e-mail of reference witnesses, specifying the quantity of election campaign bulletins distributed, and securing videos at events);

1. The printed matter of the Facebook, election campaign bulletin, candidate information, each e-mail, cellular phone message;

1. Each voice call file between the defendant and F and H, and the results of CD reproduction;

Application of Statutes

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

Article 250(1) of the Public Official Election Act (Selection of Fines)

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

Judgment on the argument of the defendant and defense counsel

1. The assertion;

The Defendant, as a Gu Council candidate under its jurisdiction, was jointly and severally engaged in the election campaign with F, who was sent to the E candidate who does not belong to the election, and was jointly and severally engaged in election and policy with F, such as sharing a pledge, and thus, did not make any false information as indicated in the facts charged in the instant case. In addition, the Defendant did not intend to publish false information, as in the instant case, since the Defendant, during the election period, at F, called “F, jointly and severally damaged the candidate” from F during the election period, and was given F’s pro rata schedule from F election campaign to cell phone messages, and thus, the Defendant did not intend to publish such false information.

2. Determination

A. The crime of publishing false facts under Article 250(1) of the Public Official Election Act constitutes the content of the constituent elements. As such, it is necessary to recognize that the matter is false as the content of the actor’s intentional act. As long as it is difficult to know or prove it outside due to its nature, the existence or absence of such subjective perception must be determined in a normative manner by comprehensively taking into account all the circumstances, such as the Defendant’s educational background, career, social status, process of publication, timing of publication, and ripple effect objectively anticipated (see, e.g., Supreme Court Decision 2005Do2627, Jul. 22, 2005). The crime of publishing false facts is established by willful negligence (see, e.g., Supreme Court Decision 95Do190, Feb. 26, 2004).

B. Examining the following circumstances based on the evidence duly adopted and examined by this court in light of the legal doctrine as seen earlier, the Defendant is sufficiently aware of the fact that the Defendant was not jointly and severally engaged in F and election campaign, and that the Defendant disclosed false information by entering it in the Defendant’s election campaign bulletin.

1) The F and F election campaign-related persons (H and I) consistently state that they do not have a joint and several relationship by negotiating or sharing the Defendant’s election and policy with the Defendant. Defendant election campaign-related persons also stated that they did not directly contact or have interview with the F election campaign, nor did they go through the Defendant, and are consistent with the F’s statement. Furthermore, the Defendant also recognized that there was no fact that the F election campaign-related persons negotiated or have decided specifically with the F election campaign-related persons, except as otherwise alleged by the Defendant.

2) Meanwhile, in the instant election, F was sent to E as a candidate to which it belongs, and the Busan Citizens’ Association (SP) was held by F. F. F. F. F. election campaigns sent F. F. F’s pay schedule to the Defendant for the purpose of the mobilization of the head of the tax office, and the Defendant participated in part of F’s pay schedule (F’s pay note, etc.). The Defendant and F. F. on April 6, 2014, which was the election campaign period for the instant election, divided Magkkkum c. and exchanged personnel at the head of the relevant tax office. However, in light of the aforementioned circumstances, these circumstances are deemed to be only the ordinary election campaign performed by F and the Defendant in the position of a candidate for the election to which it belongs, and there is no circumstance to deem that the Defendant and the defense counsel agreed on election and policy solidarity. Accordingly, the Defendant and the defense counsel’s assertion cannot be accepted.

1. Reasons for sentencing 1. The scope of sentencing: fine of KRW 50,000 to KRW 30 million: fine of KRW 2 million to KRW 8 million (basic area)

[Determination of Punishment] Decision of Election, Publication of False Information, Prevention of Candidates, and Type 2 (Publication of False Information for Election Purposes): Fine of 2 million won;

The purpose of the Public Official Election Act is to ensure that the public election, which is the basis of democratic politics, is held fairly in accordance with the free will of the people and democratic procedures, and to prevent any malpractice related to the election, thereby ensuring the legitimacy of the power of the State and local governments and contributing to the maintenance and development of democratic politics. Therefore, there is a need to strictly separate the acts in violation of the election campaign bulletins. The election campaign bulletins are not only the content of the candidate’s pledge, but also delivered to all electorates, including the absentee, by stating essential information related to the election, such as personal information, property status, military service records, tax payment records, and criminal records, as well as the contents of the candidate’s pledge, and are delivered to all voters, including the absentee, which have a significant impact on the choice of the voters. Nevertheless, the criminal facts in the judgment of the voters are stated in the

However, among the contents of the election campaign bulletin of this case, the portion of the false facts in this case was written, and it appears that the publication of the false facts in this case, such as the failure of the defendant in the election, did not have any significant effect on the election, and that the publication of the false facts in this case did not have any particular criminal history to the defendant, and that C Council members performed parliamentary activities in good faith at the time of the defendant's employment, and other factors of sentencing as indicated in the arguments of this case, such as the defendant's age, character and behavior, environment

jury verdict and sentencing opinion;

1. Written verdict of guilt of guilt or not guilty: Nine persons (in unanimous verdict);

2. Opinions on sentencing

2 million won by fine: Six persons;

A fine of one million won: Three persons;