[1] Where the crime of publishing false facts under Article 250(2) of the Public Official Election Act is applied, in a case where “any fact” is published by lending the form of delivering written documents or other statements to another person, the method of determining whether the publicly announced fact is false

[2] In a case where a suspicion against a candidate for an election for public office is made based on the grounds that there are reasonable grounds to believe that the raising of suspicion is true, whether such punishment may be punishable (negative)

[3] Whether the judgment of the court of final appeal is justifiable as to whether Article 51 of the Criminal Act and the circumstances before the opening of the sentence are obvious (negative)

[1] In applying Article 250(2) of the Public Official Election Act, which applies mutatis mutandis under Article 49(1) of the Local Education Autonomy Act, in cases where “any fact” is publicly announced by lending the form of delivering written questions or other words of another person, or the form of raising suspicions, not whether such written questions or suspicions were false, but rather whether “any fact”, which is the content of written questions or suspicions, should be determined by a false fact.

[2] Under a democratic political system, the freedom of speech is the most fundamental right, which shall be sufficiently guaranteed in the election process, and it is necessary and important to verify candidates in an election for public office. Thus, in a case where there is a reason to suspect the candidate’s eligibility for public office, the raising of a question should not be easily obstructed. Therefore, in a case where a suspicion against a candidate is made based on the grounds that there are reasonable grounds to believe that the raising of suspicion against a candidate is true, even if it is found that the suspicion is not true later, it shall not be punishable in order to guarantee the freedom of expression.

[3] Matters concerning the meaning of Article 51 of the Criminal Code and whether the circumstances prior to the opening of a sentence are obvious belongs to the court’s discretionary discretion. As such, in a case where the court of final appeal rendered a death penalty, life imprisonment, or imprisonment with or without prison labor for not less than 10 years pursuant to Article 383 subparag. 4 of the Criminal Procedure Act, unless the grounds of final appeal as to the propriety of the determination of punishment are adjudicated, the court below’s determination of whether the suspended sentence and whether the conditions prior to the opening of a sentence are obvious cannot be tried.

[1] Article 49(1) of the Local Education Autonomy Act, Article 250(2) of the Public Official Election Act / [2] Article 21 of the Constitution, Article 49(1) of the Local Education Autonomy Act, Article 250(2) of the Public Official Election Act / [3] Articles 51 and 59(1) of the Criminal Act, Article 383 subparag. 4 of the Criminal Procedure Act

[1] Supreme Court Decision 2001Mo193 Decided April 10, 2002 (Gong2002Sang, 1295), Supreme Court Decision 2007Do3598 Decided July 27, 2007 / [2/3] Supreme Court en banc Decision 2001Do6138 Decided February 20, 2003 (Gong2003Sang, 876) / [2] Supreme Court Decision 2007Do2879 Decided July 13, 2007 (Gong2007Ha, 1332), Supreme Court Decision 2008Do1847 Decided December 22, 201 (Gong2012Sang, 200)

Defendant

Defendant and Prosecutor

Attorneys Noh Byung-hun et al.

Seoul High Court Decision 2015No1385 decided September 4, 2015

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The summary of the facts charged in this case is as follows.

On June 4, 2014, the Defendant was elected as a superintendent of the Seoul Special Metropolitan City Office of Education in the national Dong local election on June 6, 2014, and Nonindicted Party 1 was a candidate for the above election.

A. At around 11:00 on May 25, 2014, the Defendant: (a) as the title “Nonindicted Party 1 candidate, according to the information received by the Defendant Camp, i.e., the U.S. Residential Rule; (b) he had the permanent residence right in the U.S.; and (c) he had the permanent residence right in the U.S. when he works in the U.S.....; (d) Nonindicted Party 1 candidate has a suspicion of suspicion that he/she has the permanent residence right in the U.S......; (e) if he/she had this fact, Nonindicted Party 1 candidate distributed the news report data prepared with the purport of “I would not be eligible for the Superintendent of the Seoul Office of Education; and (e) by reading the above report data as it is, the Defendant held a briefing check (hereinafter “first publication”); and (e) the Defendant did not have any false information that he/she had the permanent residence right in the U.S. for the purpose of preventing Nonindicted Party 1 from being elected in the Seoul Office of Education.

B. On May 26, 2014, the Defendant sent to the Defendant’s election campaign website and each reporter’s e-mail in the Defendant’s election campaign office, stating that “According to a number of testimony reported to the Defendant at low-scar camp, Nonindicted Party 1’s thickness would have come back from Gongcheon for a few years before he left, “I do not know. I do not live in the U.S.A.’s permanent residence right,” and that I am going to the Defendant. Nonindicted Party 1’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s respective reporters and each reporter’s her son’s son’s 10 years son’.

2. Prosecutor's grounds of appeal are examined.

A. We examine the grounds of appeal as to the first publication portion.

1) In applying Article 250(2) of the Public Official Election Act, which applies mutatis mutandis under Article 49(1) of the Local Education Autonomy Act, in cases where “any fact” is published by lending the form of delivering written questions or other words to another person’s speech, not whether such written questions or suspicions were false, but whether “any fact”, which is the content of such written questions or suspicions, is false (see, e.g., Supreme Court Order 2001Mo193, Apr. 10, 2002; Supreme Court Order 2007Do3598, Jul. 27, 2007).

Meanwhile, under a democratic political system, the freedom of speech is the most fundamental right, and it is necessary and important to verify candidates in the election process. As such, in a case where there is a reason to suspect the candidate’s eligibility for public office, the raising of a question should not be easily obstructed. Therefore, in a case where the raising of suspicion as to candidates was made based on the grounds that have considerable reasons to believe that the raising of suspicion as to the candidate is true, even if the suspicion is found to be true, it shall not be punishable in order to guarantee the freedom of expression (see, e.g., Supreme Court en banc Decision 2001Do6138, Feb. 20, 2003; Supreme Court Decision 2007Do2879, Jul. 13, 2007).

2) On the grounds indicated in its reasoning, the lower court found the Defendant not guilty on the grounds that (i) the fact that the Defendant made public in the statement as described in the facts charged through the first public announcement was not “Nonindicted 1 and two children have permanent residence in the United States; (ii) it is difficult to see that the fact that the Defendant’s public announcement of the facts was “the suspicion that Nonparty 1 and two children have permanent residence in the United States”; and (iii) it is difficult to deem the Defendant’s public announcement as false; and (iv) it is difficult to recognize that there was a false perception on the fact that the Defendant

Examining the reasoning of the judgment below in light of the legal principles as seen earlier, it is reasonable to evaluate that the Defendant made a statement to the effect that Nonindicted Party 1, the other party candidate, through the first announcement, has a suspicion of holding a permanent residence in the United States, even though the statement took the form of demanding the counter-party candidate’s answer while raising doubt, it is reasonable to publicly announce the fact that “Nonindicted Party 1 has a permanent residence in the United States,” which is the content or premise of the statement. Therefore, whether it is false or not there was such suspicion should be determined based on whether the “Nonindicted Party 1 has a permanent residence in the United States,” which is the content of the suspicion, is false or not.

However, according to the reasoning of the lower judgment, since the fact that Nonindicted Party 1 holds permanent residence in the United States is false, even if such doubt was raised, the first publication should be deemed to constitute a publication of false facts. Nevertheless, the lower court erred by misapprehending the legal doctrine on the establishment of a crime of publishing false facts under the Public Official Election Act, under the premise that the fact that the Defendant published through the first publication is “cruel” is difficult to deem that such publication was false.

3) However, according to the facts and records established by the lower court, the following circumstances are revealed.

A) Nonindicted 2, who posted Twelves on the premise of the primary publication, was employed in the Korean Broadcasting System in 1995, retired in 2013, and was working as a reporter of the Internet media company. In the Korean Broadcasting System, Nonindicted 2, who was working as a reporter of exploration reporting, had a large number of credits related to verification of the eligibility to take charge of public service, such as misconduct of senior public officials, while working as a reporter of exploration reporting in the Korean Broadcasting System, and was so-called Twelves with a large influence exceeding 58,00 persons.

B) The two children of Nonindicted Party 1 were growing and living in the United States through education, and Nonindicted Party 1 did not have any objective circumstances to suspect that Nonindicted Party 1 had been holding permanent residence rights in the United States. On the other hand, Nonindicted Party 2’s twelgle was considerably spreading on the Internet at the time of the first publication, but there was no confirmation or judgment by the public agency as to whether Nonindicted Party 1 had permanent residence rights.

C) The Defendant was reported to the effect that Nonindicted 2, who was known as a person in charge of the election campaign’s official bulletin for 17 years, posted tweetss in the real name by Nonindicted 3, who was identified as a person in charge of the exploration reporter, and was first published. Meanwhile, Nonindicted 4, who was in charge of other official gazettes, asked Nonindicted 6, who was aware of the credibility of Nonindicted 2’s Tweetss in accordance with Nonindicted 5’s instructions, and sent it to Nonindicted 5.

4) In full view of all the circumstances indicated in the record, including the details of the first publication, the source of the publication, and the background leading up to the recognition of the defendant, it is reasonable to deem that the defendant, at the time of the first publication, believed that the non-indicted 1 had a good reason to believe that he was holding the permanent residence of the United States, and that there was a reasonable reason to believe such fact. Thus, the first publication that raised suspicion cannot be punished.

Therefore, despite the lower court’s erroneous determination, the lower court’s conclusion is acceptable. In so doing, contrary to what is alleged in the grounds of appeal, it did not err by misapprehending the facts against logical and empirical rules, or by misapprehending the legal doctrine on the participatory trial, or failing to exhaust all necessary deliberations, thereby affecting the conclusion of the judgment.

B. We examine the grounds of appeal as to the second publication.

Article 51 of the Criminal Act and matters concerning whether or not the circumstances before the opening are obvious are subject to the discretion of the court in relation to the determination of the punishment. Thus, in a case where the death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years is declared by the court of final appeal pursuant to Article 383 subparag. 4 of the Criminal Procedure Act, unless the grounds for final appeal as to the propriety of the determination of the punishment are adjudicated by the court of final appeal, the determination of the court below as to whether or not the provision of Article 51 of the Criminal Act and the conditions before the opening of the sentence are obvious cannot be tried (see Supreme Court en banc Decision 2001Do6138, Feb. 20

Therefore, the Prosecutor’s ground of appeal on the second publication is without merit, and it merely criticizes the lower judgment on the ground that the amount of punishment imposed by the lower court is unreasonable.

3. The defendant's grounds of appeal are examined.

For the reasons indicated in its reasoning, the lower court affirmed the first instance court’s judgment convicting the Defendant of the second published the following facts: (a) based on the second published publication, the Defendant published that “Nonindicted 1 had the permanent residence of the United States at the time of his escape from Gongcheon, and that it was able to do so to another person; and (b) the fact that the publication was made false and that the second published was made with the intention of dolusive intention

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on the publication of facts in the crime of publishing false facts, or by misapprehending the legal doctrine on the purpose of preventing the election from being elected, contrary to what is alleged in the grounds of appeal.

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

Justices Kim So-young (Presiding Justice)