Defendant

Defendant

Manobalty

Attorney Kim Tae-tae

Chuncheon District Court Decision 2010Gohap41 Decided October 14, 2010

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

(1) Even though the act of the Defendant’s offering the instant name to a press organization via a candidate’s election campaign worker does not constitute “an act of distributing documents, etc.” as provided by Article 93(1) of the Public Official Election Act, the lower court found the Defendant guilty of the facts charged of distributing documents by unlawful means.

(2) Even though the fact that the specific organization, the content of the instant name, supports the candidate does not constitute “career” as provided by Article 250(1) of the Public Official Election Act, the lower court found the Defendant guilty of the facts charged of publishing false facts by misunderstanding of facts.

B. Unreasonable sentencing

Punishments (three million won of fine) sentenced by the court below are excessively unreasonable.

2. Determination

A. Judgment on misconception of facts and misapprehension of legal principles

(1) As to the argument regarding the distribution of documents by unlawful means

(A) The judgment of the court below

Article 93(1) of the Public Official Election Act refers to the act of delivering documents, books, etc. as provided in Article 93(1) to many unspecified persons; however, even if documents, books, etc. are delivered to a certain individual person individually, if there is a possibility that the documents, books, etc. might be transmitted to many unspecified persons, the requirements for the act of delivery are satisfied (see Supreme Court Decision 2000Do1696, Jan. 25, 2002, etc.). According to the evidence duly adopted and examined by the court below, according to the evidence duly adopted and examined by the court below, the defendant delivered the letter of name of this case to Nonindicted 2, who exercises overall control over administrative affairs, such as providing news materials to media companies at the time and place on which the crime of the court below was recorded, sent the above letter of name to the said 13 media reporters, and it is recognized that New Zealand, among the above media companies, actually posted the above letter of name on the Internet. Accordingly, the delivery of the defendant's name of this case

(B) Judgment of the court below

Article 64 through 66 of the Public Official Election Act permits only the election campaign by propaganda posters, election campaign bulletins, written campaign promises, etc. in order to ensure the public interest, such as guaranteeing the fair execution of the election, guaranteeing the election campaign which requires less expenses, and guaranteeing the equal opportunity through such means, and imposes certain restrictions on them. In order to prevent the loss of the meaning of such regulations, Article 93(1) prohibits acts such as distributing or posting documents, drawings, etc. by unlawful means in order to influence the election for a certain period before the election day.

Article 93(1) of the Public Official Election Act limits the method of election campaign under the premise that the provision on prohibition of distributing documents, etc. by means of law, etc. is "to restrict the freedom of expression or the fundamental rights of the people, such as freedom of press in election campaigns." However, in order to balance with the public interest protected by the above provision and the freedom of press restricted by the above provision, the above provision limits the method of election campaign under the premise that "to influence the election," (see Constitutional Court Order 99Hun-Ba92, 200Hun-Ba39, 200Hun-Ba39, 200Hun-Ma167, 168, 199, 205, 280, etc.).

In light of the legislative intent of Article 93(1) of the Public Official Election Act, where false information about whether a specific candidate support or not is supported as in the instant name is provided beyond providing objective facts even if materials are provided to media organizations, the act of distributing documents is deemed to constitute “an act of distributing documents, etc. prohibited under Article 93(1) of the Public Official Election Act.”

In addition to the above circumstances, the judgment of the court below that the defendant's act of delivering the name of this case constitutes "an act of distributing documents, etc." under Article 93 (1) of the Public Official Election Act is just and acceptable, and there is no error of misunderstanding of facts or misunderstanding of legal principles. Therefore, the defendant's above assertion cannot be accepted.

(2) As to the assertion regarding the publication of false facts

(A) The judgment of the court below

The term "career, etc." in Article 250 (1) of the Public Official Election Act refers to a candidate's "career, academic background, academic degree, degree and reward" (Article 64 (5) of the Public Official Election Act) and in light of the legislative intent of Article 250 (1) of the Public Official Election Act, "career" refers to a candidate's experience in the past, such as the candidate's behavior or private history, which may affect the fair decision on the elector's voting. In other words, the candidate's performance and ability, etc. are likely to seriously increase the candidate's ability and influence the elector's fair decision. Thus, it is reasonable to view that a certain organization's support and recommendation is included in the facts concerning "career" as mentioned above, in relation to the candidate's performance and ability.

Therefore, even though the general meeting of △△△ High and High Schools did not issue a statement of intent to support the candidate for Nonindicted 1, preparing and distributing a statement to the effect that “the above interview will not disclose the candidate for Nonindicted 1” as recorded in the criminal facts in the judgment of the Defendant constitutes the publication of false facts as to “career, etc.” of the candidate for Nonindicted 1.

(B) Judgment of the court below

Examining the above judgment of the court below after comparing it with the records, it is just and there is no error of law by misunderstanding facts against the rules of evidence or by misunderstanding the legal principles, which affected the conclusion of the judgment. Therefore, this part of the defendant's assertion cannot be accepted.

B. Determination on the assertion of unfair sentencing

It seems that the defendant has no criminal power for the same kind of crime and reflects his mistake, and the fact that most of the media companies immediately after the crime of this case have made efforts not to recover and report the name of this case shall be considered as favorable circumstances.

However, the Defendant distributed false facts about the candidate’s career, etc. to reporters in the press as news materials. Accordingly, some media reports the contents thereof. Such acts interfere with the elector’s right judgment on the eligibility for public office, such as the candidate’s quality, thereby seriously impairing the fairness of election and promoting unfair competition in election campaign, and thus, it is necessary to strictly punish the crime of this case. The crime of this case was committed 4 days before the election day, and it is relatively highly likely that the election had influenced. In full view of all the sentencing conditions in the argument of this case, such as the Defendant’s age, character and behavior, environment, etc., the punishment imposed by the lower court cannot be deemed to be unfair.

3. Conclusion

Thus, the defendant's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act since there is no justifiable reason.

Judges Yoon Jae-sik (Presiding Judge)