(영문) 대법원 2010.2.11.선고 2009도8947 판결

Article 250(1) of the Public Official Election Act provides that the term “a false fact” means a fact that is not consistent with the truth and is sufficient enough to have the elector make an accurate judgment on a candidate. Whether an expression is false or not should be determined on the basis of the overall increase that the expression gives to the elector, comprehensively taking into account the objective contents of the expression, ordinary meaning of words used, connection method of phrases, etc. under the premise of the overall purpose of the expression in connection with the ordinary method of expression. In addition, in the crime of publishing false facts as provided in Article 250(1) of the Public Official Election Act, it constitutes the constituent elements of the crime, and thus, it is necessary to recognize that the facts are false as the content of the offender’s intentional act, and as long as it is difficult for the elector to know or prove such subjective perception from outside, the existence of such subjective perception should not be determined on the basis of the contents of the publication, the purpose and contents of the expression, the circumstances leading up to the announcement of the fact, and the circumstances and contents of the election.”

The court below acknowledged the facts as stated in its reasoning based on the evidence duly admitted, and found the defendant guilty of this part of the facts charged on the ground that the defendant's translation of the status as HS School Research Institute that completed the I program of HS School as one propeller, as stated in this part of the facts charged, constitutes a false fact that does not fit the truth, and that the defendant's publication was made for the purpose of election at the time of the above act, and found the defendant guilty of this part of the facts charged. In light of the above legal principles, the above selection of evidence, fact-finding and determination in the court below is justified, and there is no error in the misapprehension of legal principles as to the establishment of the crime of publishing false facts under Article 250 (1) of the Public Official Election Act, which affected the conclusion of the judgment as alleged in the ground of appeal.

2. As to the publication of false facts due to the failure in the education period of foreign academic background

The part rejected by the court of final appeal on the ground that the argument in the grounds of final appeal is groundless at the same time as the adjudication of the judgment becomes final and conclusive, and the defendant can no longer dispute as to this part of the judgment, and the court remanded cannot make a decision contrary thereto, and thus the defendant cannot make a decision contrary thereto (see, e.g., Supreme Court Decisions 2006Do2017, Jun. 9, 2006; 2006Do2017, Sept. 14, 2006; 2004Do7481, Sept. 14, 2006). Therefore, the court below found the defendant guilty before the remand, and after the remand of the argument in the grounds of final appeal, the ground of final appeal on the part of the crime of publishing false facts due to failure to enter

3. As to the violation of the principle of an indictment only

In a case where a public prosecution is deemed to have been instituted in violation of the principle of an indictment only, it shall be deemed that the procedure constitutes null and void in violation of the provisions of law, and thus, a judgment of dismissing a public prosecution pursuant to Article 327 subparag. 2 of the Criminal Procedure Act shall be sentenced. However, it shall be deemed that there is no objection from the defendant's side as to the method stated in the indictment, and the court has no difficulty in understanding the substance of the crime, and the procedure of examination of evidence is completed and the judge's conviction has been completed as it is, and it shall not be deemed that the validity of the existing litigation procedure cannot be asserted in violation of the principle of an indictment only at the stage of the formation of a judge's conviction (see, e.g.,

According to the records, with respect to whether the cited part of the indictment of this case violates the principle of an indictment only, the first instance court and the original court have proceeded with the trial and the examination of evidence has been finished, and the defense counsel of the defendant has reached an argument only in the final appeal. In light of the above legal principles, the illegality of the prosecution procedure cannot be asserted on the ground that the indictment violates the principle of an indictment only.

Therefore, the defendant's assertion that the prosecution procedure is invalid in violation of the provisions of the law is not acceptable without examining whether the prosecution of this part of the prosecutor violates the principle of an indictment only. Thus, the defendant's above ground of appeal is without merit.

4. Regarding the publication of false facts by means of a speech

"False facts" in the crime of publishing false facts under Article 250 (1) of the Public Official Election Act (hereinafter "Public Official Election Act") refers to the fact that is inconsistent with the truth and is so liquid that it can cause the elector to correct correct judgment on candidates. In determining whether the published facts are false or not, in a case where important matters are consistent with objective facts in light of the overall purport of the published facts, it cannot be deemed that there are false facts even if there is a little difference from the truth or somewhat exaggerated expressions (see, e.g., Supreme Court Decision 2003Do7423, Jun. 25, 2004).

The court below acknowledged the facts as stated in its reasoning based on the evidence duly admitted, and held that in relation to the part that published false facts in the speech of the J market of this case among the criminal facts of this case, the speech made by K to the effect that the Defendant visited L district in order to support the election campaign and that such interview was likely to be known to residents during the election campaign constitutes a publication of the "false fact" under Article 250 (1) of the Public Official Election Act.

However, according to the facts decided by the judgment of the court below, the defendant never appeared on April 3, 2008 in the election campaign, and the defendant tried to see or attempt to grow up on the way that he visits and returns to the Gu due to the absence of the M Highway site. It is very difficult to see that there have been a high number of elections, and there is a good result, and he has been frequently visiting the area including L Gu. It is not interested that today has visited this area. It is now now, there is no interest that today has come to this area? It is now? It is true that the defendant actually appeared to this effect, and the defendant has come to do so at the entrance of the JJ market in 208, 300, and there has been no problem about the election of the local residents.

In light of the above legal principles and each of the above circumstances, it is possible to interpret that the Defendant’s above speech was merely a mere purport that, as the judgment of the court below, K visited L district to support the Defendant’s election campaign and allowed the residents to actively know the fact of such visit in the election campaign process. However, it is sufficient to interpret that, as alleged by the Defendant’s side, K, who had a close relationship with the Defendant, was in the election campaign, permits the Defendant to inform the Defendant of K of the fact of his visit. This is a case where the important part is consistent with the objective fact in light of the overall purport of the published fact, and it cannot be concluded that there is a little difference between the truth and truth in the actual contents.

Nevertheless, the judgment of the court below which found the defendant guilty without sufficiently examining whether the defendant's speech part of the J market of this case constitutes an act of publishing false facts, and furthermore, it erred in the misapprehension of legal principles as to "false facts" under Article 250 (1) of the Public Official Election Act and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

Therefore, the part of the judgment of the court below against the defendant in violation of the Public Official Election Act should be reversed because it cannot be maintained as it is. The court below judged that the defendant's violation of the above Public Official Election Act and the remaining guilty violation of the above Public Official Election Act are concurrent crimes under the former part of Article 37 of the Criminal Act and sentenced to a single punishment. Thus, the part of the judgment of the court below's conviction without further examining the remaining grounds of appeal cannot be reversed in its entirety.

5. Therefore, the conviction portion of the judgment 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 on the bench.