[1] The meaning of "house-to-door visits" prohibited under Article 106 (1) of the Public Official Election Act / Do, but whether a place where many people are allowed to freely enter and leave is allowed to visit for election campaigns, etc. pursuant to Article 106 (2) of the Public Official Election Act (affirmative) / Standard for determining whether a place is open to the public for free access of the general public

[2] The meaning of "career" in the crime of publishing false facts under Article 250 (1) of the Public Official Election Act

[3] In a case where Defendant, a candidate for the nationwide simultaneous local election market, was indicted for violating the Public Official Election Act by publishing false facts about Defendant’s career, etc., who is a candidate, because he was not a fact about whether an investigation is underway in a joint forum for candidate joint debates even though he was in progress, the case affirming the judgment below holding that “the fact that a police officer is investigating Defendant” does not constitute “career, etc.” as provided by Article 250(1) of the Public Official Election Act in light of the following: (a) the procedure and activities in progress and the investigation are not conclusive, but is not clear from which time to which time the investigation falls under investigation is conducted;

[4] In a case where a door-to-door visit is made for an election campaign before the election campaign period and an election campaign is conducted, whether the violation of the Public Official Election Act due to the violation of the election campaign period and the violation of the Public Official Election Act due to door-to-door visits is

[1] Articles 106(1) and (2), and 255(1)17 of the Public Official Election Act / [2] Articles 64(1) and (5), and 250(1) of the Public Official Election Act / [3] Articles 64(5) and 250(1) of the Public Official Election Act, Article 325 of the Criminal Procedure Act / [4] Article 254(2) of the former Public Official Election Act (Amended by Act No. 9974, Jan. 25, 2010); Articles 106(1), 254(2), and 255(1)17 of the Public Official Election Act

[1] Supreme Court Decision 2009Do14558 Decided July 8, 2010 (Gong2010Ha, 1601), Supreme Court Decision 2014Do17290 Decided September 10, 2015 (Gong2015Ha, 1566) / [2] Supreme Court Decision 2010Do16942 Decided March 10, 201 (Gong201Sang, 790), Supreme Court Decision 2015Do8400 Decided October 29, 2015

Defendant

Defendant and Prosecutor

Law Firm LBnB Partners et al.

Seoul High Court Decision (Chuncheon) 2019No75 decided July 3, 2019

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

A. Determination on the assertion of violation of the Act on Citizen Participation in Criminal Trials

The jury's verdict and opinion that the jury involved in the trial in the participatory trial shall not bind the court (Article 46 (5) of the Act on Citizen Participation in Criminal Trials).

Therefore, even if the court below accepted the verdict of conviction issued by the unanimous opinion by the jury in the first instance court where the participatory trial was held, and found the first instance court guilty, it did not err by misapprehending the legal principles as to Article 46 of the Act on Citizen Participation in Criminal Trials, even though the violation of restriction on door-to-door visit and the part concerning publication of false facts in the attached list 1 among the parts convicted by the jury.

B. Determination on the assertion related to violation of the Public Official Election Act due to violation of restrictions on door-to-door visits

1) Anyone is prohibited from visiting each door for an election campaign or soliciting admission during the election period (Article 106(1) of the Public Official Election Act). A person who is entitled to engage in an election campaign may appeal for support to a political party or candidate at a road, market, shop, store, bank, waiting room or other open place where the ceremony of coming-of-age, marriage, funeral and marriage is achieved, notwithstanding the provisions of paragraph (1) (Article 106(2) of the Public Official Election Act).

In light of the legislative intent and legal interest of the crime of door-to-door visits to prevent illegal or unlawful promotion of election, such as the purchase of voters at a place that is not open to the public for election campaign and the form of the provision of Article 106 of the Public Official Election Act, the act of door-to-door visits falls under “title” under Article 106(1) of the Public Official Election Act if not only a daily life but also a widely accessible place or a place for business, etc. or a place attached thereto is located. However, even if a person falls under “title”, it is interpreted that a person can visit for an election campaign, etc. pursuant to Article 106(2) of the Public Official Election Act if he/she is a public place where the free access of the general public is available to the general public. Whether a place is open to the general public should be determined by comprehensively taking into account the structure of such place, the relation of use, and accessibility thereof, and the specific control and management form of electors (see Supreme Court Decisions 2009Do1458, Jul. 8, 2010).

2) On the following grounds, the lower court determined that the place listed in [Attachment 1-3] through [Attachment 3] as indicated in the holding constituted a place or space open for residents or civil petitioners in general and ordinary terms in light of its use, structure, accessibility, etc.

A) The meeting place, which is the place listed in the [Attachment 1] list of crimes, is a place established for the general public from the beginning.

B) Even if the work space of the community service center or viewing place, which is the place listed in the [Attachment 2, 3] No. 2, 3, is part of the inside space of the civil petition unit, the entire use of the office is for the civil petitioner, and the structure of the office is likely to have easily accessed by the civil petitioner.

3) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the concept of “title” as prescribed in Article 106(1) of

C. Determination on the assertion on violation of the Public Official Election Act due to the publication of false facts

1) A person who publishes or causes another person to publish false information about the place of birth, status, occupation, career, property, personality, conduct, act, organization to which he/she belongs (in cases where he/she inserts academic background, including cases where he/she is not published by the method provided for in Article 64(1) of the Public Official Election Act) of a candidate, his/her spouse, lineal ascendant or descendant, lineal descendant, career, property, personality, conduct, organization to which he/she belongs, etc. in favor of a candidate (including a person who intends to become a candidate) by means of a speech, broadcast, newspaper, communication, magazine, poster, propaganda document, or any other means, and a person who possesses for the purpose of distributing a propaganda document containing a false fact, shall be punished by imprisonment for not more than five years

Here, the term “career, etc.” refers to a candidate’s “career, academic background, degree, reward and punishment” (Article 64(5) of the Public Official Election Act) and Article 250(1) of the Public Official Election Act refers to a candidate’s “career, etc.” that is recognized as a candidate’s performance and ability as a candidate’s performance and ability and affects the fair judgment of electors (see, e.g., Supreme Court Decision 2010Do16942, Mar. 10, 201).

2) On the following grounds, the lower court acquitted the Defendants on the violation of the Public Official Election Act due to the publication of false facts in the instant facts charged.

A) In light of the fact that an investigation is in progress and is not a conclusive fact or activity, and that it is not clear from any point of time to any point of time that constitutes an investigation, the “fact that a police officer is investigating a defendant” cannot be deemed to constitute “career, etc.” under Article 250(1) of the Public Official Election Act.

B) Although the Defendant was in the process of investigating himself, a part of the Defendant’s reply to the question as to whether the investigation is underway in the ○○ market candidate joint debates can be deemed to have been made public of fact. However, it cannot be readily concluded that the Defendant was aware that there was a public announcement of the fact against the truth at that time.

3) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and 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 against logical and empirical rules, or by misapprehending the legal doctrine on the concept of “career, etc.” under Article 250(1) of the Public Official Election Act, and the publication of facts in the crime of

D. Determination on the guilty part

The Prosecutor appealed the entire judgment of the court below, but the guilty part is not indicated in the petition of appeal or the appellate brief.

2. As to the Defendant’s ground of appeal

A. Determination as to the counter-party to the crime of violating the Public Official Election Act due to the violation of restrictions on door-to-door visits, and the unspecified assertion

The lower court determined that this part of the facts charged was specified on the grounds that the party to the door-to-door visit under Article 106(1) of the Public Official Election Act was not specified. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, 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 on the other party to the crime of violating the Public Official Election

B. Judgment on the misapprehension of legal principles as to the violation of the Public Official Election Act due to violation of restrictions on door-to-door visits and the violation of the Public Official Election Act due to the violation of the

1) As seen earlier, Article 106(1) of the Public Official Election Act only prescribes that no person is allowed to visit each door for an election campaign, and does not limit its subject to “candidate” to “candidate.” Furthermore, Article 254(2) of the Public Official Election Act provides that a person who conducts an election campaign prior to the election campaign period, except as otherwise provided for in the Public Official Election Act, shall be punished by imprisonment with prison labor for not more than two years or by a fine not exceeding four million won.

2) This is interpreted to mean that “other provisions of the Public Official Election Act, except as otherwise provided in this Act,” as provided by Article 254(2) of the former Public Official Election Act (amended by Act No. 9974, Jan. 25, 2010), are excluded from cases where other penal provisions of the Public Official Election Act apply in cases where other penal provisions of the Public Official Election Act exist. Therefore, where an election campaign is carried out after door-to-door visits for the election campaign prior to the election period, the application of the crime of violating the Public Official Election Act due to the violation of the election period as provided by Article 254(2) of the Public Official Election Act shall not be deemed excluded, and the crime of violating the Public Official Election Act and the crime of violating the Public Official Election Act due to door-to-door visits

3) Based on its stated reasoning, the lower court determined that there was no imbalance between punishment and punishment for the case of making a door-to-door visit prior to the election campaign period and the case of failing to conduct an election campaign, and did not accept the Defendant’s assertion that the crime of violating the Public Official Election Act due to the violation of restrictions on door-to-door visits is established only when a candidate visits door-to-door visit during the election campaign period. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, 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 on the relationship between the violation of the Public Official Election Act and the violation of the

C. Determination of misconception of facts or misapprehension of legal principles concerning the places listed in [Attachment 4-14] Nos. 4 or 14 of the List of Offenses

For the reasons indicated in its holding, the lower court determined that the location listed in [Attachment 4-14] and [Attachment 4-14] as indicated in the judgment is difficult to be deemed an open place or space for civil petitioners generally and normally, and thus convicted of this part of the charges. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and 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 misapprehending the legal doctrine on the concept and intent of “for election campaign” and “ho

D. Determination as to the assertion of unconstitutionality of Articles 255(1)17 and 106(1) of the Public Official Election Act

1) The Defendant asserts to the effect that, even if “a person who is not a candidate” conducts an election campaign by door-to-door visits or door-door visits for election campaign prior to the election campaign period, a crime of violating the Public Official Election Act is established through door-to-door visits, or that, if the office of a government office is interpreted to fall under “house” as prescribed by Article 106(1) of the Public Official Election Act, it infringes on the freedom of election

2) However, contrary to the aforementioned legal principles, it is nothing more than interpreting Article 106(1) of the Public Official Election Act. Furthermore, even if examining, prohibiting door-to-door visits cannot be deemed an excessive restriction, and the private interest, such as freedom of election campaign, is more limited than the public interest such as fair and peace of privacy, and thus, it cannot be said that Article 106(1) of the Public Official Election Act restricting door-to-door visits violates the freedom of election campaign.

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 Park Sang-ok (Presiding Justice)