2020Do16062 Interference with Computer Services and Violation of the Public Official Election Act

A

Defendant and Special Prosecutor

Law Firm LBBS Partners

Attorney Lee Jong-soo, Kim Jong-soo, and Lee Jae-chul

Attorney Lee Sang-hoon, Profit-Making, Slurl, Gangwon-ho, Han Man, Hawn

Law Firm, Kim & Lee LLC, Attorneys Kim Sung-soo

Law Firm D.L.S., Attorneys Yoon Young-young

Seoul High Court Decision 2019No461 Decided November 6, 2020

July 21, 2021

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the Defendant’s ground of appeal

Of the facts charged in the instant case, the lower court found the Defendant guilty by deeming that the Defendant participated in the said crime as a co-principal, on the grounds that there exists a co-principal intent for co-processing with respect to the crime of order manipulation of writing comments using string clocks between the Defendant and B, etc., and that there exists a functional control through essential contribution to the said crime.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the degree of proof and proof in violation of the principle of presumption of innocence under the Constitution, and by failing to exhaust all necessary deliberations, or by failing to exhaust all necessary deliberations, as alleged in the grounds of appeal.

2. Regarding the grounds of appeal by the special prosecutor

A. Summary of violation of the Public Official Election Act among the facts charged in the instant case

The Defendant proposed that the 7th local election (hereinafter referred to as “instant local election”) scheduled to be held on June 13, 2018 will continue to be used for the election campaign to be carried out for democracy in addition to the instant local election by allowing the Internet Nibera D’s Economic and Socialization Meeting, and continuing to manipulate comments by continuously using the Internet, and expressed the intent to provide benefits to B in relation to the election campaign for democratic party, around December 28, 2017, through the C Assistant, and around January 2, 2018, it is difficult to directly contact B, and it is difficult to recommend D attorneys as a Japanese consul, instead, to recommend Japan's Republic of Korea as a consul, so that Japan's Republic of Korea can be appointed as a consul (hereinafter referred to as “the expression of intent to provide benefits of this case”).

B. The judgment of the court below

1) In order to establish a crime of violation of Article 230(1)4 and Article 135(3) of the Public Official Election Act, “in connection with an election campaign,” provision of money, valuables, or other benefits, or expression of intent or promise to offer such money, valuables, or other benefits, shall be carried out. In order to meet the requirement of “in relation to an election campaign,” the existence of a specific election and a specific candidate should be recognized, and its relevance should be recognized. As such, it cannot be deemed that the act of advertising and supporting a specific political party in consideration of a specific election in a situation where the existence of a specific candidate cannot be presented meets the requirement of “in relation to an election campaign.”

Since there is no evidence to prove that there was a specific candidate who declared the horse in the local election of this case at the time when the defendant expressed his intention to offer the benefits of this case to B, or who can objectively be recognized as having the intention to run for the election, the defendant's expression of intention to offer the benefits of this case cannot be deemed as being made in relation to the election campaign.

2) In addition, there is insufficient evidence to deem that the Defendant’s expression of intent to provide the instant benefits was made in connection with the instant local election.

3) Therefore, it cannot be deemed that the Defendant expressed his intention to offer the instant benefits to B is related to the election campaign of the instant local election. Therefore, the charge of violating the Public Official Election Act among the facts charged in the instant case constitutes a case where there is no proof of crime.

C. Judgment of the Supreme Court

1) Article 135(3) of the Public Official Election Act provides that no person may offer or express his/her intention to offer money, goods, or other benefits in connection with the election campaign, or promise, instruct, recommend, mediate, demand, or receive any money, goods, or other benefits in connection with the election campaign regardless of the pretext such as allowances, actual expenses, and other compensation for volunteer service provided by the Act (Article 230(1)4). Furthermore, in violation of the above provision, any person who expresses his/her intention to offer, or promises to offer money, goods, or other benefits in connection with the election campaign, regardless of the pretext such as allowances, actual expenses, and other compensation for volunteer service, shall be punished by imprisonment for not more than five years or by a fine not exceeding 30 million won (Article 230(1)4).

In relation to an election campaign under Article 135(3) of the Public Official Election Act, the term "in relation to an election campaign" is more broad than "for an election campaign, motiveing matters concerning an election campaign", and even if there was no purpose of influencing the purpose or election, the act itself was established in the necessity to regulate the act that is likely to infringe on the freedom and fairness of the election (see, e.g., Supreme Court Decision 2004Do6795, Feb. 18, 2005). A violation of Articles 230(1)4 and 135(3) of the Public Official Election Act is subject to punishment that expresses an intention or promises to provide money, valuables, or other benefits in relation to an election campaign, and thus, the subject of punishment is not limited to the provision of money, valuables, or other benefits during the election campaign period as prescribed by the above Act (see, e.g., Supreme Court Decisions 2010Do910, Dec. 23, 2010; 2013Do315.

In light of the above legal principles and regulations, the crime of violation of Articles 230(1)4 and 135(3) of the Public Official Election Act is sufficient if it is recognized that money, valuables, and other benefits are related to the election campaign in a specific election. Therefore, if a candidate who is the subject of the election campaign at the time of providing benefits in connection with the election campaign in the future is not specified, even if the candidate who is the subject of the election campaign is not specified at the time of providing benefits in connection with the election campaign in the future, it shall be deemed that the crime of violation of Articles 230(1)4 and 135(3) of the Public Official Election Act is established, and it shall not be deemed that a specific candidate exists at the time of providing benefits. Accordingly, the court below erred by misapprehending the legal principles on the interpretation of the "election campaign" as alleged in the grounds of appeal.

2) However, as seen earlier, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine as to whether the Defendant’s expression of intent to provide the instant benefits was related to the instant local election, in addition to the fact that the Defendant’s expression of intent to provide the instant benefits was not considered to have been made “in relation to the election campaign” on the grounds that the lower court acquitted the Defendant of this part of the facts charged. Examining the reasoning of the lower judgment in light of the record, the lower court did not exhaust all necessary deliberations and did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules

3) Therefore, even if the lower court erred by misapprehending the legal doctrine on the interpretation of the “election campaign”, insofar as there is no evidence that the Defendant’s expression of intent to provide benefit in this case was made in connection with the election campaign of the local election of this case, this part of the facts charged is deemed to constitute a case where there is no evidence of crime, and thus, the lower court’s error as

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jae-chul et al.

Justices Min You-sook

Justices Lee Dong-won

Justices Yang Tae-sung