[1] The purpose of strictly regulating the publication of “educational background” in the crime of publishing false facts under Article 250(1) of the Public Official Election Act

[2] In a case where a candidate entered the name of a high school which was retired from campaign posters, etc. under the Public Official Election Act, whether the period of study should be entered together according to the method of entry under Article 64(1) of the Public Official Election Act (affirmative), and whether the same applies to a person who passed the public notice of the certification of high school graduates and obtained recognition of an equivalent academic background with the graduate of

[1] Article 250(1) of the Public Official Election Act, which punishs a candidate (including a person who intends to become a candidate) to publish false facts, shall be deemed to fall under the publication of false facts unless it is published by the method provided for in Article 64(1). Article 64(1) of the Public Official Election Act provides that “If a candidate publishes a school career, it shall not be published with any exception of the regular school career and other foreign curriculum equivalent thereto. In this case, where a regular school career is inserted, the name of the school at the time of graduation or completion (if withdrawn, the period of school shall be stated together) shall be stated.”

The strict regulation of the publication of the educational background in the Public Official Election Act is to prevent the elector from misunderstanding or misunderstanding the academic background of the candidate, which is an important factor for the elector to choose the candidate. In particular, in the case of retirement from the domestic regular educational background, the amount of education is different compared to the case of graduation or completion, and in the case of retirement from the school, the amount of education is different for each individual. Therefore, it is difficult to compare the difference of the academic achievement due to the difference in the period of education by simply stating the early retirement from school without stating the period of education.

Therefore, if a candidate enters the name of a school which has been withdrawn in the domestic regular academic background, the period of education shall be entered together, and if the candidate fails to comply with the method of entry, he/she is subject to punishment pursuant to Article 64(1) and Article 250(1) of the Public Official Election Act.

[2] Article 27-2(1) of the Elementary and Secondary Education Act and Article 98(1)1 of the Enforcement Decree of the Elementary and Secondary Education Act provide that a person who has passed the examination of high school graduates may be recognized as having an equivalent academic background with the graduate of high school. A person who has passed the examination of high school graduates does not lose the fact that he has withdrawn from high school due to passing the examination itself or recover the term of his academic background. Article 27-2(1) of the Elementary and Secondary Education Act refers to the intellectual ability obtained through learning or training at an educational institution. On the other hand, Article 64(1) of the Public Official Election Act provides that a person who has passed the examination of high school graduates refers to a person who has not been a school and is distinct in terms of mutual concept, so long as the name of a high school is stated in campaign posters, etc., the period of education shall be entered together in accordance with the method of entry under Article 64(1) of the Public Official Election Act. Even if a candidate has obtained recognition of such purport as a person who has passed the examination of high school graduates.

[1] Articles 64(1) and 250(1) of the Public Official Election Act / [2] Articles 64(1), 250(1), 27-2(1) of the Public Official Election Act, Article 98(1)1 of the Enforcement Decree of the Elementary and Secondary Education Act

[1] [2] Supreme Court Decision 2004Do7116 Decided December 22, 2005

Defendant

Defendant

Law Firm Mapyeong, Attorneys Cho Jae-in et al.

Daejeon High Court Decision 2014No540 decided February 6, 2015

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on the failure to record the study period

A. The judgment of the court below

1) The summary of the facts charged in this part of the facts charged is as follows: “The Defendant, who was elected as a member of the ○○○ Military Council on June 4, 2014, submitted 7,400 copies of the election campaign bulletin and 70 campaign posters to the ○○ Election Management Committee, stating that “A person who was elected as a member of the ○○○ Military Council on May 21, 2014, who was elected in the 6th local election of ○○○○○○○○○○ election management commission,” without stating the education period in the academic column, submitted 7,400 copies of the election campaign bulletin and 70 campaign posters to the ○○ Election Management Committee, without stating the education period in the academic column, and published false facts as to the academic background for the purpose of election.”

2) As to this, the lower court upheld the first instance judgment convicting of this part of the facts charged.

B. Judgment of the Supreme Court

1) Article 250(1) of the Public Official Election Act, which punishs a candidate (including a person who intends to become a candidate) to publish false facts, shall be deemed to fall under the publication of false facts unless it is inserted in the manner provided for in Article 64(1). Article 64(1) of the Public Official Election Act provides that “Where a candidate publishes a school career, it shall not be inserted in any other than the one which has completed a regular academic background and a foreign educational course equivalent thereto. In such cases, where a regular academic background is inserted, the name of the school at the time of graduation or completion (where it is withdrawn, the period of study shall be stated together).”

The purpose of strictly regulating the publication of the above academic background is to prevent the elector from misunderstanding or misunderstanding the academic background of the candidate, which is an important factor for the elector to choose candidates. In particular, in the case of retirement from the domestic regular academic background, the amount of education is different compared to the case of graduation or completion, and in the case of retirement from the school, the amount of education is different for each individual. Therefore, it is difficult to compare the difference in the academic background based on the difference in the period of education by simply stating the retirement from school without stating the period of education.

Therefore, if a candidate enters the name of a school which has been withdrawn in the domestic regular academic background, the period of the school shall be entered together, and if the candidate fails to comply with the method of entry, he/she is subject to punishment pursuant to Article 64(1) and Article 250(1) of the Public Official Election Act.

2) Meanwhile, Article 27-2(1) of the Elementary and Secondary Education Act provides that “A person who has not completed the curriculum of a school pursuant to Article 2 may obtain recognition of an equivalent academic background with the graduates of an elementary school, a middle school, or a high school after passing the examination prescribed by Presidential Decree.” Article 98(1)1 of the Enforcement Decree of the Elementary and Secondary Education Act provides that “A person who has passed the examination of high school graduates shall be deemed to have an equivalent academic background with the graduates of a high school at the time of entering a school of higher level.”

However, the above provision means that a person who has passed the examination of high school graduates can be recognized as having an equivalent academic background with high school graduates, and the fact that a high school graduate itself is lost or the period of his/her academic background is not restored due to his/her pass, and the "academic background" referred to in Article 27-2 (1) of the Elementary and Secondary Education Act refers to the intellectual ability acquired through learning or training at an educational institution. On the other hand, the "academic background" referred to in Article 64 (1) of the Public Official Election Act refers to the academic ability that is obtained through learning or training at an educational institution, and it is distinguishable from each other in terms of mutual concept, so long as a candidate entered a high school which is retired in campaign posters, etc., it is reasonable to interpret that the period of his/her academic background should be entered together in accordance with the methods of entry stipulated in Article 64 (1) of the Public Official Election Act. A candidate is recognized as having passed the examination of high school graduates,

3) Therefore, even if the Defendant entered the success in the examination of high school graduates, the Defendant’s failure to enter the retirement period in △△ High Schools constitutes the crime of publishing false facts under Article 250(1) of the Public Official Election Act.

The lower court found the Defendant guilty of this part of the facts charged is in accordance with the legal doctrine as seen earlier, and did not err by misapprehending the legal doctrine as to the entry of the education period under Articles 64(1) and 250(1) of the Public Official Election Act.

2. As to the remaining grounds of appeal

In addition, the lower judgment did not err by misapprehending the legal doctrine on “the purpose to be elected” or the legal doctrine on recognition of illegality under the Public Official Election Act, contrary to what is alleged in the grounds of appeal.

3. Conclusion

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

Justices Min Il-young (Presiding Justice)