Defendant

Both parties

For the purpose of the trial, the prosecution shall be held by the Prosecutor, the Prosecutor, or the Prosecutor.

Attorney Hong Jin-jin in charge of law Firm Jeong-jin

Seoul Southern District Court Decision 2013Gohap47 Decided June 4, 2013

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

(i)misunderstanding of facts and misapprehension of legal principles

㈎ △△△ 사무실은 SNS 관련 교육 및 SNS를 이용한 홍보 등 컨설팅을 목적으로 만든 공간이고 공소외 1(대법원판결의 공소외인) 등 7명은 △△△의 직원이 아니라, 피고인으로부터 SNS 교육을 받으려고 자발적으로 찾아온 교육생일 뿐이다. △△△ 사무실은 교육생들이 △△△ 실무교육 차원에서 대선 관련 자료를 수집하고 이슈를 다루기는 하였지만 △△△ 사무실의 주된 업무는 피고인이 SNS 관련 프로젝트를 수행하며 공소외 1 등에게 SNS 직무교육을 하는 것이고 선거사무소 또는 선거연락소처럼 이용하는 정도에 이르지 않았다. 따라서 △△△ 사무실을 공직선거법에서 규정하는 선거사무소 외의 유사기관으로 볼 수 없다.

㈏ 이 사건 사무실에서 근무하던 공소외 1 등의 활동은 선거운동이 아니라 선거 준비행위로서 유권자에게 영향을 미치지 않는 내부적 행위에 불과하므로 △△△ 사무실을 선거사무소 유사기관으로 보기는 어렵다.

㈐ 피고인은 헌법재판소가 2011. 12.경 SNS를 이용한 선거운동을 금지하는 규정에 대하여 위헌으로 결정하였다는 취지의 기사를 읽고 SNS를 이용한 인터넷상 선거운동은 법에 저촉되지 아니하는 것으로 생각하여 개인 트위터 계정에 공소외 2 후보를 지지하는 등 일련의 글을 게시하였을 뿐이고 이러한 행위가 SNS를 이용한 선거운동이 되더라도 위 헌법재판소의 결정에 따라 허용되어 △△△ 사무실의 개설이 공직선거법에 저촉될 여지가 없다고 판단하였던 것이므로, 피고인으로서는 자기가 행한 행위가 법령에 따라 죄가 되지 아니한 것으로 오인함에 있어 정당한 이유가 있다.

【Unjustifiable sentencing

Taking into account all the circumstances, such as the fact that the defendant was not a planned and systematic office of the △△△△ branch office, the fact that there was no separate illegal act detrimental to the freedom of election and the fairness of election by spreading false information, etc., and there was no other purpose of obtaining unjust profits; that it is difficult to deem that the defendant's act was affected by the election of public officials; that the defendant was in depth and re-influences the defendant, and that there was no fact of criminal punishment, etc., the sentence (ten months of imprisonment and two years of suspended sentence) imposed by the court below is too unreasonable.

(b) Prosecutors;

(i)misunderstanding of facts and misapprehension of legal principles

In addition to the election campaign, △△△△△ has the nature of a general company and a similar agency that conducts an election campaign, such as partial implementation of a project irrelevant to the company, and some of the employees of △△△△△△ are deemed to have been employed for purposes other than election campaign. Therefore, ordering the employee to conduct an election campaign by taking advantage of his superior position is allowing the employee to conduct an election campaign.

【Unjustifiable sentencing

Considering the fact that the crime of election campaign is inferior to that of the defendant by establishing a similar institution in a systematic manner, the sentence of the court below is too uneasible and unfair.

2. Determination

A. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

(i) Summary of the facts charged

No one shall newly establish or install an election promotion committee, supporters' association, research institute, counseling center or resting place, or any similar institution, organization, or facility, or use the existing institution, organization, organization, or facility for a candidate, other than the supporters' association under the Political Funds Act, by one election promotion committee, supporters' association, research institute, counseling center or resting place, regardless of the name thereof.

피고인은 “□□□□□□(◇◇◇◇◇♥),(☆☆☆☆)"이라는 필명으로 트위터 등 주2) SNS 활동을 하는 사람으로 2012. 3.경 ‘SNS 관련 교육 및 SNS를 이용한 홍보 등 컨설팅’ 사업을 목적으로 '○○○○○커뮤니케이션(이하 ‘△△△’라 함)'이란 상호로 사업자등록을 하였다.

After Nonindicted 4, the Defendant, along with Nonindicted 4, decided to work for △△△△△△△, carried out an election campaign supporting Nonindicted 2 candidates at the 18th presidential election that was scheduled to take effect on December 19, 2012, and carried out SNS-related business along with the election campaign, on September 24, 2012, the Defendant leased Yeongdeungpo-gu Seoul Metropolitan Government in the name of Nonindicted 4 (location omitted) building (hereinafter “△△△△ Office”).

In order to conduct an election campaign for Nonindicted Party 2 candidates by actively disseminating “any writing that corresponds to the policies, favorable, and unfavorable contents of Nonindicted Party 2 candidates for chipary political party,” through SNS, such as Twitter and Kakakao Kakaox, the Defendant installed eight computers, monitoring six telephone units, nine telephone units, and one facsimile unit in the office of △△△△△ on October 8, 2012, and operated seven persons, such as Nonindicted Party 1, etc. (seven persons, Nonindicted Party 1, 3, 6, Nonindicted Party 7, Nonindicted Party 8, Nonindicted Party 9, and Nonindicted Party 10) to work at the above office every day.

Accordingly, on October 8, 2012, the Defendant established and established a similar institution other than the election campaign office under the Public Official Election Act for the candidate for Nonindicted 2.

She Whether △△△ Office is an election campaign office or a similar institution.

㈎ 원심의 판단

Based on evidence duly admitted and examined, the lower court determined that: (a) the Defendant was equipped with the equipment such as eight computer units, six monitors, one facsimile, and nine telephone units at △△△△ office; (b) the Defendant posted the phrase “Presar WR” within the above office (SNS) or indicated the remaining date on the day before the substitute; (c) the Defendant leased the office located at △△△△△△ office on September 24, 2012, where the large number of three months was set, and (d) the Defendant was difficult to obtain from around October 8, 2012 to December 13, 2012, which was equipped with the equipment of the △△△△△△△△ office; and (b) the Defendant obtained instructions from the office of Nonindicted Party 2 to the office of Nonindicted Party 2, which was equipped with the equipment of the △△△△△ office; and (c) obtained instructions from the office of the head of the office or team; and (e) obtained instructions from 10:100 to 210.21.2.1.27.

㈏ 당심의 판단

Examining the evidence duly adopted and examined by the court below in light of the records, the court below is justified in finding the circumstances as seen above and finding the above judgment based on it, and considering the following circumstances recognized by the records of this case, it does not seem that the above judgment of the court below is erroneous in misunderstanding of facts or misunderstanding of legal principles as alleged by the defendant.

① Nonindicted 10 stated in the prosecutor’s office that he did not directly state the separate teaching materials on SNS education, and that there was no separate time of SNS education, and the Defendant also stated in the prosecutor’s office that the education of employees was not for a certain duration and not for a specific duration of education. Nonindicted 4) and Nonindicted 3 also asked that the investigative agency did not memory as to how the Defendant had provided SNS education by any means. Note 5)

② Nonindicted 10 stated in the motive for supporting Nonindicted 2’s letter of self-introduction and the column for job placement that “I would like to be present to the SNS in which young people are exposed for Nonindicted 2 candidates, and which they are hard to work,” and Nonindicted 10 stated to the effect that Nonindicted 2’s letter of self-introduction was prepared as above, since Nonindicted 10 appears to work in the instant office at the prosecutor’s office on the process of preparing the letter of self-introduction, and Nonindicted 10 appeared to work in the instant office, and thus, he did not support Nonindicted 2’s candidate. Note 7).

③ Nonindicted 8, who worked in the instant office, stated that Nonindicted 6 was in charge of the fourth lecture publicity project, Nonindicted 3 was in charge of the Dokdo Project, Nonindicted 9 was in charge of the Saemangeum Project, Nonindicted 1 was in charge of the real estate project, and Nonindicted 8 was not in progress at the preparation stage, and that the Defendant was in the process of making a prior preparation before entering into a contract, not at the prosecution, but at the time of entering into a contract. In addition, Nonindicted 8 stated to the effect that the prosecution was in charge of the fourth lecture project, but at the prosecution, Nonindicted 8 was in charge of the fourth lecture project, and that the project was supported by this project was moved to the office around October 2012.

④ The report only contains the content that Nonindicted 10, Nonindicted 8, Nonindicted 6, and Nonindicted 3 collected data that support Nonindicted 2 candidates and slanders the other party candidates, and that they performed their duties by means of Twitter, retweeting, citing, interested writing, etc., and that they did not mention at all about the progress of the project that is not related to Twit line.

⑤ Nonindicted 7 stated at the prosecutor’s office that the most focused work of the Defendant and its employees on Nonindicted 2 was SNS activities in favor of Nonindicted 2 for Nonindicted 2. A week 12).

6) On the business allocation table of the office seized at the instant office, only the business affairs related to the fleet, such as monitoring of issues, creation of at least 40 tweets, and production of RT-open notice, are included in the division of business affairs among the employees, including Nonindicted Party 1, and the content of each project is not specified.

7) The Defendant prepared the 18th presidential SNS preference Headquarters planning to propose the chip party, and the proposal was accompanied by the detail of the 15th presidential SNS preference planning, and the floor plan and week 15 of the instant office and other operating expenses to operate the instant office for three months. In addition, in the instant office, there was a notice of the phrase “Presort WR” (SNS preference Headquarters).

① In the instant office, Nonindicted 3’s name was called as the head of the content production team and Nonindicted 6’s name, such as Nonindicted 3’s name as the head of the content production team and the head of the public opinion survey team. According to the report on the activities of the SNS Media Headquarters prepared by the Defendant, the “current status of the staff of the SNS Media Headquarters” includes the matters to be seen as the current status of the staff of the instant office, including one head of the content production team, one of the policy and one of the public opinion poll team team. A week 17).

9) Nonindicted 4, as a partner of the △△△△△, visited Nonindicted 4 at least twice a week at the instant office, testified that the office was operated as Nonindicted 2 candidate election campaign campaign campaign, and that the office was operated by Nonindicted 2 candidate. The Defendant also expressed to the employees that he would deal with the issues related to the company, and that he would be remuneration tendency and support the repair side.

⑤ At the prosecution’s office, the Defendant produced phrases, pictures, safds, and videos that may be used in the election campaign for Nonindicted Party 2 to the employees, and expressed to the effect that he/she utilized the Defendant’s Twitter comments for the dissemination and distribution of the Defendant’s Twitter comments. 20 week)

① The document “2012 SNS utilization scheme for the 201st Round was stored in the computer located in the instant office.” The Note 22 as indicated in the above document was increased by the arms of the 22th Rounder (Defendant). If the SNS support team collects, classifys, analyzes, and reports information, the contents produced by the Round support team distributed and disseminates the contents produced by the Rounder’s support team, and if the Roundler was publicly announced in the Kaxe group, the group members of the Kaxer’s group were set up in the Kax group and spreads it by tap and citing it, etc., are consistent with the main duties performed by the Defendant and Nonindicted Party 1, etc. at the instant office.

• Whether the act of the defendant constitutes an internal preparation activity

Since whether a certain organization, etc. constitutes a “similar organization” under the main sentence of Article 89(1) of the Public Official Election Act is determined by the purpose of election campaign, if a person who wishes to be a candidate establishes an organization, etc. with the intent to affect the electors beyond the internal source of preparation for election, it constitutes a similar organization under the above provision (see Supreme Court Decision 2005Do303, Jun. 27, 2006, etc.).

In light of the following circumstances acknowledged by evidence duly adopted and examined by the court below, the defendant started to use the office of this case from around 3 months before the election day to October 8, 2012. The main purpose of the office of this case seems to have been an election campaign for the candidate of non-indicted 2. The defendant ordered the non-indicted 1, etc. to collect materials to post them on the twitter from October 8, 2012 to December 13, 2012 and to prepare a draft statement to post them on the twitter. The defendant posted an article to the effect that the non-indicted 2 candidate support the twitter and oppose the candidate of the non-indicted 5's election campaign site based on the above draft, and posted an article to the non-indicted 2's election campaign site to the non-indicted 1's election campaign site or the non-indicted 2's election campaign site's election campaign site's election campaign site's election campaign site's election campaign site's election campaign site's election campaign site's election campaign site' 2's election campaign site's election campaign site'.

· Whether the law is erroneous or not

Article 16 of the Criminal Act provides that an act of misunderstanding that one's act does not constitute a crime under the Acts and subordinate statutes shall not be punishable only when there is a justifiable ground for misunderstanding. It does not mean a simple legal site, but it means that an act of misunderstanding generally becomes a crime, but it is generally accepted that it does not constitute a crime under the Acts and subordinate statutes in his own special circumstances and there is a justifiable reason to mislead misunderstanding (see Supreme Court Decision 2000Do3051, Sept. 29, 200, etc.).

The court below determined that the decision of the Constitutional Court 28) cannot be deemed as being directly applied to the establishment of a similar institution, such as the statement of facts constituting a crime, as alleged by the defendant, and that the mistake cannot be deemed as a justifiable ground, even if the defendant was aware that the establishment of a similar institution, such as the statement of facts constituting a crime, was legally

The above judgment of the court below is just, and it is not erroneous in the misapprehension of legal principles as alleged by the defendant.

B. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

㈎ 공소사실의 요지

No person shall carry out or have another person carry out an election campaign using any occupational act in an educational, religious or professional institution, organization, etc. within the organization.

From October 8, 2012 to December 13, 2012, the Defendant established six monitors to grasp various issues related to the 18th presidential election from 8 computers, portal sites and Twitter accounts in real time, and had Nonindicted Party 2 publish the “Non-Indicted Party 2 candidate” through SNS, including Twitter and Kakakao Stockholm, to which Non-Indicted Party 2 candidate’s policies, favorable writing, and unfavorable contents corresponding to the 6th candidate’s policies, and to which Non-Indicted Party 5 candidate 2 candidate was posted, and to which Non-Indicted Party 1 and 2 “PWR” were posted and operated for 7th election campaign, such as the 6th election campaign team leader, Non-Indicted Party 1 (General Secretary), Non-Indicted Party 3 (Production Party 7) and the head of the 2nd election campaign team (PWR), and to which Non-Indicted Party 1 and the head of the 10th 2nd 2nd 6th 2nd 1).

Accordingly, the Defendant had seven employees, including Nonindicted 1, engage in an election campaign for Nonindicted 2 candidates by taking advantage of his occupational act, such as an educational, religious or professional institution or organization, within the organization.

㈏ 원심의 판단

The court below held that the former part of Article 85 (2) of the Public Official Election Act provides that "no person shall carry out or have another person carry out an election campaign using an act within the organization of an educational, religious or professional institution or organization, etc., taking advantage of an act within the organization of a professional institution or organization," and "act of allowing members to carry out an election campaign using an act within the organization of an election campaign" refers to "act of allowing persons who have a right to direct and supervise their status or duties within a professional organization to carry out an election campaign by taking advantage of an act related to their duties," and therefore, in a case where an order was given to members to carry out an election campaign within a certain organization after the establishment of an organization, taking into account various circumstances, such as the intention of the establishment, physical facilities, etc., if such order was merely intended to carry out an election campaign under the name of a △△△△△△△△△△△△, which appears to be a kind of act that the defendant had already carried out an election campaign in accordance with the above 7th order for the election campaign.

㈐ 당심의 판단

Article 85(2) of the Public Official Election Act prohibits a member of an educational, religious or professional institution, organization, etc. from engaging in an election campaign, or having another member engage in an election campaign by taking advantage of his/her official activities within the organization. This purports to prohibit an “educational, religious or professional institution or organization” itself from engaging in an election campaign or having another member engage in an election campaign by taking advantage of his/her official activities on the basis of the status that the organization is not organized for the purpose of election campaign. In cases where an institution or organization itself is organized for the purpose of election campaign and an election campaign is an essential business of the organization, it does not mean that an election campaign is prohibited under Article 85(2) of the Public Official Election Act by taking advantage of his/her status within the organization or causing another member to engage in an election campaign.

In the same purport, the court below was just in finding the defendant not guilty of this part of the charges in light of the purpose of the establishment of △△△ Office's office operated by the defendant.

Even though △△△△△△, which is organized and operated by the defendant, has some nature of a general company in charge of SNS-related education, publicity, and consulting, its main purpose is to carry out only SNS-related education, publicity, and consulting services for election campaign for non-indicted 2 candidates, without almost little degree, and thus, it does not mean that the defendant made an election campaign for its members by using an official act under Article 85(2) of the Public Official Election Act on the ground of such circumstance. The prosecutor’s assertion is without merit.

C. As to the assertion of unreasonable sentencing by the Defendant and prosecutor

The Defendant’s act of establishing a similar organization causes damage to the important constitutional value that the Public Official Election Act intends to protect, such as freedom and fairness in the election of public officials. The Defendant’s crime of this case constitutes a situation unfavorable to the Defendant that is disadvantageous to the Defendant, such as: (a) the Defendant, at the time of election of public officials, collected data to support Nonindicted 2 candidates to seven employees for about three months; (b) based on these data, posted a letter on support for Nonindicted 2 candidates; and (c) spread it by means of twiting it to his employees; and (d) the crime was committed over a planned, organized, and considerable period of time; (b) the nature of the crime was extremely poor; and (c) election campaigns via SNS, such as Twitter, are spread at a rapid speed to many unspecified persons via the Internet.

However, in full view of the following circumstances: (a) the Defendant divided his mistake; (b) the Defendant’s establishment of the △△△ Office and did not seem to have obtained economic benefits in relation to the election campaign for Nonindicted Party 2 candidates; and (c) the Defendant did not have any criminal record; and (d) the Defendant’s age, character and conduct, environment, motive and means of the offense; and (c) the motive and means of the offense; and (d) all the sentencing conditions in the instant case, including the circumstances after the commission of the offense; (b) the lower court’s punishment against the Defendant cannot be deemed to be unreasonable

Therefore, the defendant and prosecutor's argument of unfair sentencing is without merit.

3. Conclusion

Therefore, the appeal by the defendant and the prosecutor is without merit, and all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges fixed-type (Presiding Judge) Kim Jong-sung

(1) The prosecutor asserts that Nonindicted 1 and Nonindicted 3, who had been employed by the Defendant prior to opening a leisure club office, are not employed for election campaign purposes.

Note 2) “Scial Network Services” means Scietwork Services.

Note 3) see 765 pages of investigation records

Note 4) Reference to investigation records 999 pages

Note 5) Reference to investigation records 783

Note 6) Reference to investigation records 781

Note 7) Reference to investigation records 778

Note 8) See Nonindicted Party 1’s statement in the investigation record

Note 9) Reference to investigation records 999

Note 10) See Investigation Records 492 to 493

Note 11) Investigation Records 11,360-1,159

Note 12) Reference to investigation records 956

Note 13) See the daily list of staff 365 pages 4, 365 of investigation records (No. 3-15)

Note 14) See investigation records 1,107 Defendant’s prosecutor’s statement

Note 15) See Investigation Records 3,264-3,271

(16) Nonindicted 4 stated in the prosecutorial office that the above operating expenses would be calculated by the Defendant and the △△△△△ business (in the investigation record 3,542 pages). In addition, since December 4, 2012, the Defendant stated in the prosecutorial office that the building owner and Nonindicted 12 entered into a real estate lease contract to pay KRW 1.8 million per month to the office of this case (the investigation record 1072 pages). As such, the Defendant appears to be consistent with the above operating expenses.

Note 17) See 6,793 investigation records, specifically 6, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1 of the content monitoring team leader, 1, 1, 1 of the strategic response team leader, 1, 3, 6, 7, 9 and 10 of the investigation records, 19, 1, 3, 6, 7, 9, and 10 of the external cooperation team leader, and the status of 3, 6, 793 of the investigation records, is consistent with the business division list (50 of the investigation records) of the office of this case, the number of persons, and duties

Note 18) Reference to investigation records 3,545

Note 19) Reference to investigation records 3,539

Note 20) Reference to investigation records 6,767

Note 21) Separate Doz. 8, 188-224 Reference to Investigation Records

Note 22) The above utilization plan is specific in terms of the number of Twitter accounts and the number of RTs and the number of Twitter accounts and the defendant's Twitter accounts.

Note 23) Reference to Nonindicted 1’s statement in investigation records 605 pages

Note 24) Reference to Nonindicted 10’s statement in investigation records 770-771

Note 25) Reference to investigation records 612

Note 26) Reference to investigation records 45 pages

Note 27) See investigation records 773, 1,033. In addition, the Defendant, through his Twitter, publicizeds that Nonindicted 1 and Nonindicted 6 3, who posted the Defendant on Twitter, can real-time see the rent site of Nonindicted 2 candidate.

Note 28) Constitutional Court Order 2007Hun-Ma101, 2010Hun-Ba88, 2010Hun-Ma173, 191 (merged) dated December 29, 201