The purpose of Articles 96(1) and 252(2) of the Public Official Election Act that prohibit and punish acts, etc. of distorted the results of public opinion polls relating to elections / The meaning of “public opinion”, which is the form of acts under Article 96(1) of the Public Official Election Act, and the burden of proof as to the possibility of dissemination, which is the requirement for public opinion poll (=public prosecutor) and the degree of proof / The content of “drained results of public opinion poll” prohibited by Article 96(1) of the Public Official Election Act and the requirements for individually informing persons on the grounds of the possibility of dissemination

Article 96(1) of the Public Official Election Act provides that “any person who violates Article 96(1) shall not publish or report the results of a public opinion poll on an election in distorted manner.” Article 252(2) provides that “Any person who violates Article 96(1) shall be punished by imprisonment with prison labor for not more than five years or by a fine not less than three million and not more than 20 million won.” This provision aims to ensure the fairness of an election by punishing any act affecting the judgment of electors by taking advantage of the trust in objectivity and fairness of a public opinion poll.

The term "public announcement", which is the form of action under Article 96(1) of the Public Official Election Act, refers to widely revealing the distorted results of public opinion poll to many and unspecified persons. Although one person is aware of the distorted results of public opinion poll, if there is a possibility that it can be disseminated to many and unspecified persons, this requirement is satisfied, but the strict proof of the prosecutor is necessary for the possibility of dissemination.

Meanwhile, in light of the legislative intent of Article 96(1) of the Public Official Election Act, the “drawed public opinion poll result” that is prohibited from being published or publicized pursuant to Article 96(1) of the Public Official Election Act requires that an elector may have a physical nature to believe that a public opinion poll at a level of trust in objectivity and fairness is actually conducted, and where it is published or reported, it should have an erroneous impact on the elector’s judgment and may hinder the fairness of election. Therefore, in order for an individual to be deemed as an “public opinion poll result” to be an act of informing a person on the ground of the possibility of spreading information, it should be recognized that there is a possibility that information having the physical nature to be recognized as a “fluent public opinion poll result” through one person may be disseminated to an unspecified or many unspecified persons.

Articles 96(1) and 252(2) of the Public Official Election Act, Article 308 of the Criminal Procedure Act

Supreme Court en banc Decision 2008Do11847 Decided December 22, 2011 (Gong2012Sang, 200) Supreme Court Decision 2017Do8822 Decided November 29, 2018 (Gong2019Sang, 245) Supreme Court en banc Decision 2020Do5813 Decided November 19, 2020 (Gong2021Sang, 57)

Defendant

Defendant

LLC, Kim & Lee LLC, Attorneys Seo Han-soo et al.

Gwangju High Court ( Jeju) Decision 2019No57 decided September 11, 2019

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. Summary of the facts charged

In the local election conducted on June 13, 2018, the Defendant was elected as a Do Council member by going to the candidate for the (name omitted) constituency of Jeju City (name omitted). On June 4, 2018, the Defendant posted a phone to Nonindicted 1, the electorate, who was the electorate, for a telephone on the 28th election day, and called “one point prior to 28 points in our own public opinion poll. There has been almost 30 percent, and 28.5 percent. These days have already been put to a place. They have already been put to a place of play. They have already been put to a place of play. They have come to a day.” However, since the Defendant was registered as a candidate, there was no fact that there was no public opinion poll on the said candidates since the Defendant was registered as a candidate. Accordingly, the Defendant published the result of public opinion poll by distorted it.

2. Relevant legal principles

Article 96(1) of the Public Official Election Act provides that “any person who violates Article 96(1) shall not publish or report the results of a public opinion poll on election in distorted manner.” Article 252(2) of the same Act provides that “Any person who violates Article 96(1) shall be punished by imprisonment with prison labor for not more than five years or by a fine not less than three million and not more than 20 million won.” This provision aims to ensure the fairness of election by punishing an act affecting the judgment of electors by taking advantage of the trust in the objectivity and fairness of a public opinion poll (see Supreme Court Decision 2017Do822, Nov. 29, 2018).

Article 96(1) of the Public Official Election Act, “public announcement,” which is the form of an act under Article 96(1), means widely revealing the distorted results of public opinion poll to many and unspecified persons. Although one person is aware of the distorted results of public opinion poll, if there is a possibility that it can be disseminated to an unspecified or unspecified person, this requirement is satisfied, but the prosecutor’s strict proof is necessary for the possibility of dissemination (see Supreme Court Decisions 2008Do11847, Dec. 22, 201; 2020Do5813, Nov. 19, 2020).

Meanwhile, in light of the legislative intent of Article 96(1) of the Public Official Election Act, the “drawed public opinion poll result” that is prohibited from being published or publicized pursuant to Article 96(1) of the Public Official Election Act requires that an elector may have a physical nature to believe that a public opinion poll at a level of trust in objectivity and fairness is actually conducted, and where it is published or reported, it should have an erroneous impact on the elector’s judgment and may hinder the fairness of election. Therefore, in order for an individual to be deemed as an “public opinion poll result” to be an act of informing a person on the ground of the possibility of dissemination, it should be recognized that there is a possibility that information having the physical nature to be recognized as a “fluent public opinion poll result” through one person may be disseminated to an unspecified or many unspecified persons.

3. Determination as to the instant case

A. The reasoning of the lower judgment and the record reveal the following.

1) In the local election conducted on June 13, 2018, the Defendant was going to the constituency (the name of the constituency omitted) at the Jeju Special Self-Governing Province Council member election. A candidate who was going to the said constituency was the Defendant and Nonindicted 22 persons.

2) On June 4, 2018, the Defendant sent a phone call to Nonindicted 1, who was in front of an election, and made the same remarks as indicated in the facts charged.

3) Non-Indicted 1 did not record the contents of telephone conversations at ordinary times. At the time of the instant case, the contents of telephone conversations with the Defendant were set up automatically to be recorded due to problems with the contractor related to the construction work of the building, and accordingly, the contents of telephone conversations with respect to the Defendant were recorded.

4) On the day of the instant case, Nonindicted 1 asked Nonindicted 4 and Nonindicted 2, a party candidate who was going to run in the said election, at the candidate candidate site for Nonindicted 3 Jeju Do Governor.

5) Nonindicted 2 accused the Defendant on the following day.

B. Examining the aforementioned circumstances in light of the legal principles as seen earlier, it is difficult to view that the Defendant had an intentional intent to publish the distorted outcomes of public opinion poll to unspecified or many unspecified persons on the grounds that the fact that the Defendant made Nonindicted 1, while making a telephone conversation with Nonindicted 1, had an erroneous influence on the elector’s judgment, and that specific information likely to impede the fairness of election could have been disseminated. The reasons are as follows.

1) In the instant case, there is no evidence to deem that the Defendant made the same speech as that of the facts charged to Nonindicted 1 and other persons.

2) The Defendant requested Nonindicted Party 1 to provide the same remarks as the entries in the facts charged by verbally demanding the support of the inside personnel and the inside personnel by posting a phone. Generally, the delivery of information by verbally is difficult to maintain and spread the studio, unless it is active or recorded.

3) Nonindicted 1’s recording of the contents of conversations with the Defendant is merely an easy circumstance.

4) Furthermore, it does not seem that the Defendant knew or could have known of Nonindicted Party 1’s recording.

C. Nevertheless, the lower court convicted the Defendant of the instant facts charged solely on the grounds as indicated in its reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on the meaning of “public opinion pollsd” under Article 96(1) of the Public Official Election Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee Dong-won (Presiding Justice)