[1] Whether it constitutes an act of publishing political opinion prohibited under Article 94 of the former Military Criminal Act in itself by publicly announcing the incumbent president’s opinion on support for a specific policy or performance (affirmative) / Whether the publication of the government’s opinion on support for a specific policy or performance constitutes an act of publishing a political opinion prohibited under Article 94 of the former Military Criminal Act (affirmative), and whether it can be viewed differently solely on the sole basis that the inter-party opinion was not explicitly expressed by the time of publication of support or dissenting opinion (negative)

[2] The criteria for determining whether an act constitutes an act of publishing political opinions prohibited under Article 94 of the former Military Criminal Act and the case where the published contents are deemed to constitute an act of publishing political opinions even if there is no direct reference to a specific political party or politician, or only the facts are indicated without express value judgment

[1] Since the President concurrently holds the position of a public official as a member of the administration and the position of a political constitutional institution or politician, publication of his/her opinion on support for the incumbent president constitutes an act of supporting a specific political person, which is prohibited by Article 94 of the former Military Criminal Act (amended by Act No. 12232, Jan. 14, 2014; hereinafter the same shall apply).

In addition, supporting a specific policy or performance of the government can be understood as opposing to a specific political party, such as a party that is accompanied by the government, such as a party that is sharing a political position with the president and the president, or that criticizes the government’s pertinent policy or political party. Therefore, publication of the government’s support opinion on a specific policy or performance constitutes an act of publishing a political opinion prohibited under Article 94 of the former Military Criminal Act. Moreover, even if such support or opposing opinion was not explicitly expressed by the public at the time of publication, such circumstance alone does not change.

[2] Whether an act constitutes an act of publishing a political opinion prohibited by Article 94 of the former Military Criminal Act (amended by Act No. 12232, Jan. 14, 2014) ought to be determined in light of the content of the opinion or fact at issue, method of expression, the circumstances leading to the publication, the overall context, etc. The issue is whether an act of publishing a political opinion constitutes an act of publication of a specific political party or politician. Even if there is no direct reference to a specific political party or politician, or there is no express reference to a specific political party or politician, if a statement of fact is made only without a specific value judgment, it is difficult to deem that the statement of fact is an act of publication of a specific political opinion. If the main purpose of the statement is to support or oppose the specific political party or politician in light of the method and circumstance of expression, the whole context, etc., if there is no direct reference to a specific political party or politician

[1] Article 94 of the former Military Criminal Act (Amended by Act No. 12232, Jan. 14, 2014; see current Article 94(1)) / [2] Article 94 of the former Military Criminal Act (Amended by Act No. 12232, Jan. 14, 2014; see current Article 94(1))

[1] Constitutional Court en banc Order 2007Hun-Ma700 Decided January 17, 2008 (Hun-Gong136, 217)

Defendant

Defendant and Prosecutor

Law Firm Barun Law LLC, Attorneys Signature-soo et al.

Seoul High Court Decision 2015No1607 decided February 7, 2017

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

The grounds of appeal are examined.

1. As to the part concerning the political participation

A. Judgment on the Defendant’s grounds of appeal

1) Claim on the unconstitutionality of Article 94 of the former Military Criminal Act (amended by Act No. 12232, Jan. 14, 2014; hereinafter the same)

Article 1 of the Military Criminal Act applies to soldiers, civilian employees, etc. of the Republic of Korea (Article 1) and Article 94 of the former Military Criminal Act provides that "persons who join a political organization or make a campaign speech, publish political opinions by means of documents or other means, or engage in other political activities shall be punished by imprisonment without prison labor for not more than two years."

In light of the legislative purpose and language, etc. of Article 94 of the Military Criminal Act, the lower court determined that the act of publishing political opinions prohibited by Article 94 of the former Military Criminal Act is limited to the act of publishing opinions that may undermine the military political neutrality, such as supporting a specific political party or politician or its policy or activities or opposing opinions, to ensure the observance of the political neutrality of the national army. Furthermore, the lower court determined that such act of publishing political opinions is constitutional interpretation only where a soldier or a civilian military employee uses his/her status.

In light of the relevant legal principles, the lower court did not err by misapprehending the legal principles regarding the freedom of political expression, the principle of no punishment without law and clarity, the constitutional interpretation, etc., as alleged in the grounds of appeal.

2) Claims as to the application of Article 94 of the Military Criminal Act

The lower court determined that, even if the name of a specific political party or politician, which is the object of publication of a political opinion, is not directly mentioned, if it is possible to specify the contents of the expression, or if the contents of the publication inevitably lead to support or opposition to a specific political party or politician, it constitutes a “public announcement of political opinions” as stipulated in Article 94 of the former Military Criminal Act.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on the application of Article 94 of the Military Criminal Act, contrary to what is alleged in the

3) As to the recognition of accomplice relationship between the Defendant and the ○○○ Branch’s assistant members

The lower court determined that the Defendant, among the auxiliary unit members of the ○○○○○○○○○○○○ unit, could individually recognize the fact that the Defendant conspiredd with the author of the writing written in the column for recognition of “recognition” in the annexed crime list (1) of the lower judgment.

The allegation in the grounds of appeal disputing this part of the lower court’s fact-finding is merely an error of the lower court’s determination of evidence selection and probative value, which belong to the free judgment of the fact-finding court. In addition, considering the reasoning of the lower judgment in light of the relevant legal principles and the evidence duly admitted, the lower court’s conclusion that there is a conspiracy relation between the Defendant and each of the above auxiliary unit members is acceptable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not exhaust all necessary deliberations and did not err by misapprehending the legal doctrine on the amendment

B. Judgment on the grounds of appeal by the prosecutor

1) The assertion on the part of the article supporting the President

A) Since the President concurrently holds the position of a public official as a member of the executive branch and the position of a political constitutional institution or politician (see Constitutional Court en banc Order 2007Hun-Ma700, Jan. 17, 2008). The publication of opinions on support for the incumbent president constitutes an act of publishing political opinions prohibited under Article 94 of the former Military Criminal Act, by itself, as a support for a specific political person.

In addition, supporting a specific policy or performance of the government can be understood as opposing to a specific political party, such as a party that is accompanied by the government, such as a party that is sharing a political position with the president and the president, or that criticizes the government’s pertinent policy or political party. Therefore, the publication of the government’s support opinion on a specific policy or performance constitutes an act of publishing a political opinion prohibited under Article 94 of the former Military Criminal Act. Moreover, even if such support or opposition was not explicitly expressed by the public at the time of publication, it does not change solely on the sole basis of the fact that there was no express presentation of opinions among the parties regarding the pertinent policy or performance.

B) For the following reasons, the lower court determined that there is insufficient evidence to acknowledge that the Defendant, either directly or in collusion with the members of the ○○○○○ Group, committed political intervention, and that there was no other evidence to acknowledge that the Defendant committed any act of political intervention, among the comments on the facts charged in the instant political interventions, regarding some 1,732 items related to the President’s remarks and activities, government policies, and performance in the field of economy and diplomacy, as alleged in the grounds for appeal. Accordingly, the lower court reversed the judgment of the first instance that found the Defendant guilty of this part of the facts charged, and acquitted the Defendant on the grounds that there was no serious disagreement among the presidential officials or that there was no conflict of opinion among the members or that there was a crime of political intervention at the time of posting by the members of the said ○○○○ Group. In other words, it is difficult to readily conclude that there is a lack

C) However, in light of the aforementioned legal principles, posting comments to support and advocate specific policies or achievements of the incumbent president or government constitutes an act of publishing political opinions prohibited under Article 94 of the Military Criminal Act, which is an act of supporting the president or the ruling party that is a specific political person, even though it is not explicitly expressed among the parties to such policies, etc.

The lower court should have deliberated on whether the materials posted in each part of the facts charged include a specific policy or performance of the incumbent president or government, and determined whether such materials can be regarded as a political publishing act. Nevertheless, the lower court acquitted the Defendant of this part of the facts charged on a different premise. Therefore, the lower court erred by misapprehending the legal doctrine on whether such materials constitute the elements of Article 94 of the former Military Criminal Act, thereby adversely affecting the conclusion of the judgment, and the allegation contained in the grounds of appeal on this point is with merit.

2) The argument on the part of the article that criticizes the so-called “pro-North Korean forces”

A) Whether an act constitutes a political opinion’s publication prohibited under Article 94 of the former Military Criminal Act ought to be determined in light of the content of the opinion or fact at issue, method of expression, the background of publication, overall context, etc. Even if there is no direct reference to a specific political party or politician, or only fact-finding is indicated without express value judgment, if it is a statement of facts unfavorable to a specific political party or politician, it cannot be deemed as an expression of value-oriented facts. In full view of the method and background of expression, overall context, etc., if the main purpose of the statement is support or opposition to a specific political party or politician, it can be deemed as an act of publishing a political opinion.

B) For the following reasons, the lower court determined that the Defendant, either directly or in collusion with the members of the ○○○○ Group, could not be recognized as having engaged in political intervention, and that there was no other evidence to acknowledge the facts charged. Accordingly, the lower court reversed the judgment of the first instance that found the Defendant guilty of this part of the facts charged and acquitted the Defendant on the grounds thereof, even if it is difficult to view it as support or opposition to a specific political party or political person or such meaning may have been spread, inasmuch as it is related to national defense and security and its political meaning is weak, it is difficult to recognize that the case related to national defense and security and where it does not clearly appear to have a political significance, or it is difficult to conclude that ○○○○○ Group’s unit members had a criminal intent to participate in political intervention at the time of posting a notice.

C) However, in light of the legal principles as seen earlier, even if the content of the comments explained the objective situation, if the main purpose of the comments is to express a political opinion of support or opposition to a specific political party or politician in light of the nature of the facts explained, the purpose and motive of posting the comments, the whole context, etc., such may constitute an act of publishing political opinions.

The court below should have determined whether each of the facts stated in this part of the facts charged contains facts unfavorable to a specific political party or politician, whether it can be viewed as an expression supporting and opposing a specific political party or politician that criticizes the government policy on a specific case or policy, and whether it can be viewed as a political publication act by examining whether it can be viewed as a political publication act. Nevertheless, the court below found the Defendant not guilty of this part of the facts charged solely on the grounds as seen earlier, by misapprehending the legal principles as to whether it falls under the elements of Article 94 of the former Military Criminal Act, and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. As to the Defendant’s ground of appeal on the destruction of evidence

A. Determination on whether the crime of destroying evidence was established

The lower court determined that each of the destruction of evidence by Nonindicted 1 and Nonindicted 2, according to the Defendant’s instruction, cannot be deemed as an act of destroying evidence and not punishable.

Examining the relevant legal principles and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on the establishment of the crime of destroying evidence, contrary to what is alleged in the grounds of appeal.

B. Determination as to the value of evidence destroyed

The lower court determined that there was any material related to the Defendant’s political intervention in Nowon-gu, in which the Defendant instructed Nonindicted 1 to take early stage.

The allegation in the grounds of appeal in this part is practically disputing the fact-finding of the lower court, and is merely an error in the determination of the lower court’s choice of evidence and probative value. In addition, even in light of the relevant legal principles and the evidence duly admitted, the lower court did not exhaust all necessary deliberations and did not err by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules. 3. The remainder of the appeal by the Prosecutor

The Prosecutor appealed to the entire judgment of the court below, but there is no statement in the petition of appeal and the appellate brief about the remainder except for the part of 2,157 posting comments supporting the President and criticizeing the North-North Korean forces among the political interventions.

4. Scope of reversal

The part of the judgment of the court below as to the notice Nos. 2,157 should be reversed for the reasons as seen earlier. Moreover, the above part and the remaining part (including the part not guilty in the reason) in relation to a single comprehensive crime or concurrent crime under the former part of Article 37 of the Criminal Act should be reversed together. Accordingly, the judgment of the court below should be reversed in its entirety.

5. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)