2016Gohap1006 Violation of the Public Official Election Act

A

Hong-young (prosecution) and Kim Goods (Trial)

Attorney B (Korean National Assembly)

January 20, 2017

The accused shall notify publicly the summary of the judgment of innocence.

1. Summary of the facts charged

The defendant is the reporter belonging to the sixth floor of the Seoul Jung-gu Seoul Metropolitan Government, who is in charge of the position of the head of the political department.

A person who operates or manages broadcasting, newspapers, communications, magazines, or other publications, or a person who publishes, gathers materials, writes, or reports shall not make a false report or make a false report on an election in a distorted manner with respect to the purpose of causing a specific candidate to be elected or not to be elected.

Nevertheless, around March 9, 2016, the Defendant, on the D Internet homepage (D) as the title of the E Act, is promoting the competition among the candidates for the same political party in which the FF political party is notified of the pressure on the 20th general election. In particular, there is no complaint or accusation against the counter-party candidates, and the request for investigation to the prosecution to the Central Election Authority up to the Central Election Authority. In particular, in the case of the FF political party, which has put a withdrawn mark in the FF Party in Seoul, Seoul, the Central Election Authority requested the prosecution to file a recent accusation against the 18th National Assembly member election, and the Central Election Authority failed to participate in the H election, and re-election the 20th National Assembly member election. However, the article was prepared to report the article to the 19th National Assembly member, which did not change the contents of the article to the 19th National Assembly member election.

As a result, the Defendant reported false facts about I's election campaign experience in order to prevent the 20th National Assembly member election, which was implemented on April 13, 2016, from being elected as a preliminary candidate for the Seoul HH political party.

2. Defendant and his defense counsel’s assertion

As a result of the Internet portal site search, the Defendant prepared and reported articles on the basis of the 19th general election campaign period of the Defendant’s 19th general election campaign period, and there was no perception that there was a mistake in failing to properly verify the facts while preparing articles in a rash or prudent manner, but there was no awareness that it was false. Furthermore, the Defendant was merely a reporter who maintained political neutrality and prepared articles, and there was no intention to avoid winning a specific candidate.

3. Determination

A. Relevant legal principles

Since a crime of reporting false facts under Article 96 (2) 1 of the Public Official Election Act is a crime of reporting false facts, an actor should be aware that the facts are false, and the existence or absence of such subjective perception is difficult to know or prove it outside due to its nature, it shall be determined by taking full account of various objective circumstances such as the Defendant’s educational background, career, social status, background of the report, time, and anticipated ripple effect, etc. based on the contents and identity of the reported facts, the existence and content of the materials, the source and awareness of the facts revealed by the Defendant.

In addition, the crime of reporting false facts is also established by willful negligence (see Supreme Court Decision 2011Do3824, Jun. 24, 2011, etc.).

Furthermore, in order to establish the crime of reporting false facts, the crime of reporting false facts is required to be established as an excessive subjective element. "the purpose of preventing the election for the political party" is to make sure that there is sufficient awareness that the candidate is unable to be elected by reporting false facts, and it does not require active desire or desire to cause such result. Whether there is such purpose or not should be determined reasonably in light of social norms by taking into account various circumstances, such as the social status of the defendant, personal relationship between the defendant and the candidate or the candidate for competition, motive, process, method and method of reporting, contents and manner of the act, nature and manner of the act, nature and scope of the other party to whom such reporting was committed, and social situation at the time of the act (see Supreme Court Decision 2015Do9471, Nov. 26, 2015, etc.).

Meanwhile, the term "election campaign" refers to an act for the success or defeat in an election for a public office, and the act for the success or defeat in an election at a competition for the election of a political party to be recommended by a political party to participate in an election for a public office does not constitute "election campaign". However, in substance, an act for the success or defeat in an election for a public office may be deemed an election campaign within the scope of exceptional cases where it can be deemed that an act for the success or defeat in an election is performed in an election for a public office. For the same reason, the term "the purpose of getting elected or not to be elected" refers to the purpose of getting elected or not to be elected in an election for a public office, and the purpose of getting elected or elected in an election for a political party to be recommended by a political party to participate in an election for a public office is not to constitute an election for a public office, but to be interpreted not to constitute an act for the election or defeat in an election for a public office for a public office for a public office for a public office. 2. 1. 3. 1. 2. 2. 2. 15. . . . . 2. . . . 2. 2. .

B. Specific determination

1) The following circumstances acknowledged by this court based on evidence duly adopted and investigated by the candidate. ① The defendant alleged that he/she had prepared part of the article 19th National Assembly member's work experience from the investigation process to the Internet portal site, i.e., part of the article 19th National Assembly member's work experience (hereinafter referred to as "the article in this case") but failed to submit data on the Internet portal site search result, i.e., failed to reproduce the search details. ② even if the defendant's assertion, he/she reported that he/she was the HD's work experience from the Internet portal site search to the 6th National Assembly member's work experience as at the time of the election (see the defendant's statement during the 1st trial date). The defendant's attempt to verify that the article 6th National Assembly member's work experience and the article 19th National Assembly member's work experience at the time of this case's election to the candidate's candidate's new work experience and information, etc.

2) However, in light of the following circumstances, it is difficult to readily conclude that the Defendant had a purpose to prevent the winning of the I candidate, and there is no other evidence to prove that such purpose had been achieved.

① In light of the article’s title of the facts charged (the commencement of the prosecutor’s investigation by the F Party Candidate for the H Party Candidate for the H District of the indictment) or the overall contents thereof, the main purpose of the article is that the prosecutor’s investigation by the National Election Commission was initiated against the prosecutor, and the part of the article of this case, which I participated in the 19th presidential election, is likely to be the part of the article in order to provide information on the I candidate, who is the person subject to the commencement of the investigation. In addition, as to the progress of the prosecutor’s investigation by the I candidate, the article of this case was followed by other media media.

② On March 9, 2010, on the day of the report, the candidate sent facsimile calls for the deletion of articles listed in the facts charged to D on March 9, 2010. On March 10, 2010, the Defendant immediately received the above facsimile from the company on March 10, 2010, the following day, and then sent a revised notice to the prosecutor’s office by correcting the part of the “written request for investigation to the prosecutor’s office” (the investigation record 43,83 pages) that the Defendant requested for the deletion of articles listed in the facts charged to the company on March 10, 201.

(3) No circumstance exists to deem that a defendant is a reporter to a press organization, who is related to a specific political party or candidate, or has an interest in the result of an election.

Furthermore, it is difficult to view that D, to which the Defendant belongs, is a media with a special hostile tendency to I candidates. D has reported four times from March 7, 2016 to March 14, 2016, including the articles indicated in the facts charged, in relation to I’s investigation with regard to I’s prosecutorial investigation with regard to I, and the articles written by other reporters than the Defendant, except the articles written in the facts charged, and the contents of other articles were also reported by stating false facts beyond I’s suspicion of violation of the Election Act and beyond I’s suspicion of violation of the Election Act (D also reported this without suspicion as to September 28, 2016).

④ There is no circumstance to suspect fairness and neutrality in the process of the report due to the Defendant’s personal interest with the I candidate or M candidate’s personal or upon request from the M candidate. Rather, on March 7, 2016, the article that the National Election Commission first reported to the prosecutor’s office on March 7, 2016, the article that requested the investigation of the I’s suspected violation of the Public Official Election Act, which was distributed to the Seoul Eastern District Public Prosecutor’s Office’s Criminal 6th, was confirmed that the I’s case was distributed to the Seoul East East District Public Prosecutor’s Criminal 6th, and that the Defendant prepared and reported the article of the facts charged at the level of subsequent report

⑤ As seen earlier, on March 9, 2016, on the day on which the instant article was published, the mobile phone text message and Kakakaox message containing Internet address links connected to the instant article to the electorates. As a result, it cannot be ruled out the possibility that the instant article affected the election of the candidates for H district in the F Party competition. However, it is not clearly revealed that the first candidate’s act of reporting the instant article at the preliminary candidate stage prior to the confirmation as a candidate for the F Party in the 20th election of National Assembly members, which was conducted before the first candidate becomes a candidate for the F Party in the 20th election of National Assembly members.

4. Conclusion

Thus, since the facts charged in this case constitute a case where there is no proof of crime, it is judged not guilty under the latter part of Article 325 of the Criminal Procedure Act, and it is so decided as per Disposition by publicly announcing the summary of this judgment under Article 58(2)

The judges of the presiding judge;

Judges Domen

Judges Go Young-han

1) At the 19th general election, the 19th general election was a party.

2) An act of success or defeat in the intraparty competition for the election of a candidate recommended by a political party to run in an election for public office

It is a decision on whether a ‘election campaign' is an election campaign under the direct election law.

3) The Defendant’s defense counsel asserted that the Defendant modified the article part of the instant case on March 9, 2016, but the I candidate asserted that the Defendant modified the article part.

The preparation time 2016. The portion of the instant article containing false information that he/she failed to participate in the 19th presidential election.

3.9.10:23 is marked (five pages of investigation records) and the defendant modified the part of the article in this case to I.

Inasmuch as text messages informing A are sent on March 10, 2010 (in the form of an investigation record 43 pages) and the period of wrong forwarding by I candidates;

The article contained in this case seems to have been revised after being published a day.