[1] Meaning of “election campaign” under Article 256(3)1 of the Public Official Election Act that punishs a person who posts propaganda materials in violation of Article 90 of the Public Official Election Act

[2] In a case where the Defendant, as an incumbent member of the National Assembly, was prosecuted for violating the Public Official Election Act with the content that he posted advertising materials to influence the election by carrying the phrases against B’s success in the election of the next National Assembly member of the National Assembly as a candidate for the political party A and the name of B along with a tag attached to B and one-person demonstration with a photograph attached thereto, the case holding that even if the Defendant’s one-person demonstration does not constitute an “election”, the Defendant’s crime of violation of Article 256(3)1(h) and Article 90(1) of the Public Official Election Act is established

[1] Article 256 of the Public Official Election Act provides that a person who commits an act falling under any item of Article 256 (3) 1 in relation to election campaign shall be punished under the title "violation of various restrictive provisions." Among them, (h) acts prohibited by any act prohibited by Article 90 of the Public Official Election Act, such as posting propaganda materials in violation of the provisions of Article 90 of the Public Official Election Act. Article 90 (1) 1 of the Public Official Election Act provides that any act such as posting advertising materials, etc. shall not be performed in order to influence election from 180 days before the election day to the election day, and in this case, the name of a political party or the name and photograph of a candidate or a person who intends to be a candidate shall be deemed to be aimed at affecting election.

The Public Official Election Act separately prohibits “act affecting the election” (Article 90(1)) or “act related to the election” (Article 115, etc.) other than in the case of “election campaign” according to the degree that may affect the election on the basis of the election day. In addition, “related to the election” as provided in Article 115 of the Public Official Election Act means “act affecting the election” or “act related to the election” (Article 115, etc.). In addition, even if an election campaign is not carried out for the relevant election, it is sufficient that it is related to the relevant election, such as motive or loan of the relevant election even if it is not carried out, and “related to the election” as provided in Article 135(3) of the Public Official Election Act means “act of election campaign”, which is more broad than “for the election campaign, with the motive of the matters related to the election campaign, and even if there was no purpose or purpose of affecting the election, it is considered that the

In light of the above, it is reasonable to view “in relation to election campaign” under Article 256(3)1 of the Public Official Election Act as the meaning “inciting matters concerning election campaign” as “for election campaign”, and it is more extensive concept than “for election campaign.” Therefore, it is difficult to view that the prohibited act under the above provision is subject to punishment pursuant to the above provision.

[2] In a case where the defendant was prosecuted for violating the Public Official Election Act with the content that he posted advertising materials to influence the election by carrying the words against Eul's official nature in the election of the current member of the National Assembly as a candidate of the political party Gap and Eul's name with Eul's photograph attached, and one person demonstration with Eul's photograph attached, the case holding that the court below erred by misapprehending the legal principles as to the defendant's act of posting the advertising materials in accordance with Article 90 (1) of the Public Official Election Act, since the defendant's act of posting the advertisement before and after 180 days prior to the election day as the candidate for the National Assembly member Gap's election as the candidate for the member of the National Assembly, prior to the election day, the defendant's efforts by the job seeker for the job seeker's official nature is good, and Eul's photograph (the name of Eul is stated in Eul), and since it constitutes a violation of Article 90 (1) 1 of the Public Official Election Act's name and photograph, it constitutes a violation of Article 6 (1) of the above Act's name and photograph.

[1] Articles 58(1), 90(1)1, 115, 135(3), and 256(3)1(h) of the Public Official Election Act / [2] Articles 58(1)3, 90(1)1, and 256(3)1(h) of the Public Official Election Act

[1] Supreme Court Decision 2004Do5298 Decided March 25, 2005, Supreme Court Decision 2008Do4492 Decided August 21, 2008, Supreme Court Decision 2010Do9110 Decided December 23, 2010 (Gong2011Sang, 275), Supreme Court en banc Decision 2015Do11812 Decided August 26, 2016 (Gong2016Ha, 1457)

Defendant

Prosecutor

Law Firm Lee & Lee, et al.

Seoul High Court Decision 2017No453 decided August 9, 2017

The part of the lower judgment against the violation of the Public Official Election Act due to the posting of advertisements is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals

The grounds of appeal are examined.

1. The summary of the facts charged in the instant case is as follows: (a) around 12:00 on February 16, 2016, the Defendant: (b) stated the phrase “the efforts of a youth job seeker are not good for employment; (c) the name of the Nonindicted Party is written; and (d) placed a log with the Nonindicted Party’s photograph attached; (b) carried out an election campaign using propaganda facilities and equipment prior to the election campaign period; and (c) posted an advertisement in order to influence the election from 180 days before the election day to the election day. A prosecutor indicted the Defendant of a violation of the Public Official Election Act by an advance election campaign that he/she violated Article 254(2) of the Public Official Election Act and an advertisement that violates Article 256(3)1 Item (h) and Article 90(1) of the Public Official Election Act due to the violation of the Public Official Election Act.

On the grounds stated in its reasoning, the lower court found the Defendant not guilty of all the charges of this case against the Defendant on the grounds that the Defendant’s act as stated in the facts charged falls under the act of posting advertisements, etc. stipulated in Article 90(1)1 of the Public Official Election Act, but the Defendant’s act objectively opposed to the public order of the Nonindicted Party, and the Defendant’s act constitutes “a mere statement of opinion and opposition regarding the recommendation of the candidate of a political party” that is excluded from the election campaign,

2. As to the ground of appeal on the violation of the Public Official Election Act due to advance election campaign

Examining the reasoning of the lower judgment in light of the record, the lower court’s aforementioned determination on the violation of the Public Official Election Act due to prior election campaign among the facts charged in the instant case is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle

3. As to the ground of appeal on the violation of the Public Official Election Act due to the posting of advertisements

A. Of the facts charged in the instant case, the lower court found the Defendant not guilty of violating the Public Official Election Act due to the posting of advertisements, can be deemed that the Defendant’s act constitutes an election campaign in order to establish a crime of violation of Article 256(3)1 of the Public Official Election Act. However, the lower court’s determination is difficult to accept for the following reasons.

1) Article 256 of the Public Official Election Act provides that a person who commits an act falling under any item of Article 256 (3) 1 in relation to election campaign shall be punished under the title of "violation of various restrictive provisions." Of the above, (h) acts prohibited by acts of posting propaganda materials in violation of Article 90 of the Public Official Election Act. Article 90 (1) 1 of the Public Official Election Act provides that any act of posting advertisements, etc. except those provided for in this Act shall not be performed in order to influence the election from 180 days before the election day to the election day. In this case, the name of a political party or the name and photograph of a candidate or a person who intends to be a candidate shall be deemed to be aimed at affecting the election.

The Public Official Election Act separately prohibits “act affecting the election” (see, e.g., Article 90(1)) or “act related to the election” (see, e.g., Supreme Court en banc Decision 2015Do11812, Aug. 26, 2016) other than cases falling under “election” according to the degree that may affect the election as of the election day (see, e.g., Supreme Court Decision 2015Do11812, Aug. 26, 2016). In addition, the term “related to the election” under Article 115 of the Public Official Election Act is sufficient if it is related to the election, such as motive for, or borrowing of, the relevant election, even if it is not an election campaign for which the purpose of regulating the election is too much likely to infringe on the freedom of election or the necessity of election (see, e.g., Supreme Court Decision 2004Do5298, Mar. 25, 2005).

In light of the above, it is reasonable to view “in relation to election campaign” under Article 256(3)1 of the Public Official Election Act as the meaning “inciting matters concerning election campaign” as “for election campaign”, and it is more extensive concept than “for election campaign.” Therefore, it is difficult to view that the prohibited act under the above provision is subject to punishment pursuant to the above provision.

2) 원심판결 이유에 의하면, 공소외인이 제19대 국회의원으로서 2016. 4. 13.에 있을 제20대 국회의원 선거에서 ○○시 선거구에 △△△당 후보자로 출마할 예정이었음에도, 피고인은 △△△당이 국회의원 후보자를 공천하기 전으로서 선거일 전 180일 이후인 2016. 2. 16. 국회의사당 정문 앞에서 “청년 구직자의 노력을 비웃는 채용비리 인사가 공천되어선 안 됩니다.”라는 등의 문구와 공소외인의 사진(사진에 공소외인의 성명이 기재되어 있다) 옆의 빨간색 “ ” 기호 안에 “공천”이라는 글자가 기재된 피켓을 들고 1인 시위를 한 사실, 공소외인은 이 사건 당시 3선 국회의원으로 △△△당 원내대표를 역임하고 □□□□□ 장관 및 ◇◇◇◇◇를 지냈기 때문에 전국적으로 유명한 인사였던 사실, 피고인은 이와 같은 1인 시위 후에 언론 인터뷰를 통하여 공소외인이 공천되는 경우 그에 대한 낙선운동을 벌이겠다고 언급한 사실, 이후 피고인이 위원장으로 있는 청년단체인 ‘☆☆☆☆☆’이 실제로 인터넷 홈페이지를 통해 공소외인에 대한 낙선운동을 벌인 사실을 알 수 있다.

3) Examining these facts in light of the aforementioned legal principles, the Defendant’s aforementioned one-person demonstration constitutes an act of posting advertising materials prohibited under Article 90(1) of the Public Official Election Act, and the name and photograph of a political party and a person who intends to be a candidate are specified in the pocket book, and thus, it is sufficient to deem that the Defendant’s one-person demonstration was an motive for election campaign in light of the aforementioned circumstances. Thus, even if the Defendant’s one-person demonstration does not constitute an election campaign, it is reasonable to deem that the Defendant’s one-person demonstration constitutes a crime of violating Article 256(3)1(h) and Article 90(1) of the Public Official Election Act even if it does not constitute an election campaign.

B. Nevertheless, the lower court upheld the first instance judgment that acquitted the Defendant of the violation of the Public Official Election Act due to the posting of advertisements among the facts charged in the instant case solely on the ground that the Defendant’s one-person demonstration above does not constitute an election campaign. In so determining, the lower court erred by misapprehending the legal doctrine on the requirements for establishment of a crime of violation of Article 256(3)1 of the Public Official Election Act, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, the part of the judgment below regarding the violation of the Public Official Election Act due to the posting of advertisements is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal is dismissed. It is so decided as per Disposition by the assent

Justices Kim So-young (Presiding Justice)