[1] The meaning of "a statement of fact" under Article 251 of the Public Official Election and Prevention of Unlawful Election Act

[2] Criteria for interpreting "election campaign" under the Public Official Election and Prevention of Unlawful Election Act

[3] The case holding that a candidate's defamation or prior election campaign under the Act on the Election of Public Officials and the Prevention of Election Malpractice is not a mere opinion or expression expressed in the process of debate on the election in light of the contents of the article, etc.

[1] The phrase "statement of fact" in the main sentence of Article 251 of the Act on the Election of Public Officials and the Prevention of Election Malpractice refers to a report or statement of a specific past or present fact in time and space, and the contents of the report or statement refer to what can be proved by evidence, and in distinguishing whether the statement of decision is a fact or an opinion, the ordinary meaning and usage of the language, the possibility of proof, the context in which the expression at issue was used, and the social circumstances in which the expression was made shall be considered.

[2] An election campaign as referred to in the Act on the Election of Public Officials and the Prevention of Election Malpractice shall be strictly construed as an active and planned act that is objectively revealed to the general public in light of all the circumstances, such as the place, content, and mode of such act, as well as the subjective purpose that the election campaign is for the success or defeat of a specific candidate. Other acts shall be deemed as a mere opinion about the election, and it shall be interpreted that all the provisions of the Act on the Election of Public Officials and the Prevention of Election Malpractice, which punish a prior election campaign, to the maximum extent possible

[3] The case holding that if a candidate criticizes or defends a specific candidate in connection with an election for a free debate on the candidate's Internet homepage, it does not constitute a defamation or a prior election campaign under the Act on the Election of Public Officials and the Prevention of Election Malpractice on the ground that the content of the article is merely a simple opinion or expression expressed in the process of debate on the election in light of

[1] Article 251 of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [2] Articles 58 (1), 59, and 254 (2) 2 of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [3] Articles 251 and 254 (2) 2 of the Act on the Election of Public Officials and the Prevention of Unlawful Election

Defendant 1 and three others

Attorney A and one other

Daejeon High Court Decision 2002No594 delivered on November 22, 2002

Defendants shall be punished by a fine of KRW 800,000.

In the event that the Defendants did not pay the above fine, the Defendants shall be confined to the Labor House for the period calculated by converting the amount of KRW 30,000 into one day (the amount to be received shall be one day).

In regard to Defendant 1, 53 days of detention before the imposition of this judgment shall be included in the period of detention in the workhouse.

To order the Defendants to pay the amount equivalent to the above fine.

Of the facts charged in the instant case, Defendant 1, 2, and 3 are acquitted as to the violation of the Act on the Election of Public Officials and the Prevention of Election Malpractice due to the violation of the Election Campaign Period and the campaign speech period as of May 27, 2002.

Criminal facts

The Defendants shall not defame a person who wishes to be a candidate by openly pointing out facts through a speech, broadcast, newspaper, communications, magazine, poster, propaganda document, or any other means, with the intention of getting elected or getting elected, or not to be elected. Notwithstanding the fact that the Defendants could not carry out an election campaign by means of broadcast, newspaper, communications, poster, propaganda document or other means prior to the election period, the Defendants conspired to publish an article to the effect that, in order to prevent the election of the Cparty D candidates from being elected in the national provincial election, which is scheduled to be carried out on June 13, 202, there is a risk that the Do governor, who is the person who has the authority to appoint the above universities, may change his appointment if changed due to the election, and to defend the F Party candidates, with the intention of inducing the election of the E Party F candidates to be elected;

1. The Defendants jointly cooperate:

On May 21, 2002, around 17:13, in Seo-gu, Daejeon, the seated in HPC room and, as shown in Articles 7 and 13 of the List of Crimes attached hereto, the following: “The use of violence in the preceding Taekwondo Association shall not be allowed in the election of the branch of this case, i.e., the use of violence at the meeting loving North Korean defectors even in scom,” and i.e., “D candidate shall go back to the clothes of his clothes when the election is held, the same shall apply to the Dogg,” which read D candidate’s use of violence from time to time, thereby openly pointing out the fact that D candidate’s use of violence, and simultaneously pointing out the fact that D candidate’s use of violence before the election campaign period, and at the same time, i.e., the election campaign is carried out, prior to the election campaign period.

2. The defendants 1 and 2 shall jointly:

2002. 5. 23. 17:27경 대전 유성구 I 소재 J PC방에서 D 후보 홈페이지의 게시판에 별지 범죄일람표 제29항 기재와 같이 "존경하옵는 D 후보님 나는 옛날에 D후보님께서 K정당에 계시면서 야당의원들 입틀어막던 모습을 훤히 기억해내는 사람입니다. 그 후 충청도에서 C정당이 지역자극해서 잘 나간다니까 당선을 위해 의리깨고 C정당으로 갔지요. 이번에도 C정당에서 나와 지지가 높은 정당으로 옮기고 싶으셨겠죠. 근데 중요한 건 그 쪽에서 안 받아 준다는 것이겠지요... "라는 내용의 글을 게시함으로써 공연히 사실을 적시하여 D 후보자를 비방함과 동시에 선거운동기간 전에 선거운동을 한 것이다.

Summary of Evidence

1. Defendants’ respective legal statements

1. Protocol concerning the interrogation of the Defendants by the prosecution

1. Each police statement on L, M, N,O, P, Q and R

Application of Statutes

1. Relevant legal principles concerning facts constituting the crime;

Articles 251 (Occupancy of Candidates) and 254 (2) 2 of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts (a violation of an Election Campaign Period)

1. Formal concurrence (defendants);

Articles 40 and 50 of the Criminal Act (Appointment of Candidates and Violations of the Act on Election of Public Officials and Prevention of Election Malpractice in Violation of Election Campaign Period and Election Campaign Period, and Punishment and Selection of Fines prescribed for Violations of the Act on Election of Public Officials and Prevention of Election Unlawful Act in which punishment is heavier than punishment)

1. Aggravation of concurrent crimes (Defendant 1, 2);

Article 37 (Aggravation of Punishment for Violations of the Act on Election of Public Officials and Prevention of Election Unlawful Act, Article 38 (1) 2, and Article 50 (Aggravation of Punishment for Violations of the Act on Election of Public Officials and Prevention of Election Unlawful Act, which Has become More serious Crimes

1. Attraction in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Calculation of days of pre-trial detention (Defendant 1);

Article 57 of the Criminal Act

1. Ad hoc payment order:

Article 334(1) of the Criminal Procedure Act

Parts of innocence

1. On May 27, 2002 against Defendant 1, 2, and 3, the violation of the candidate’s defamation and the election campaign period (attached Form 33 through 47)

A. Summary of the facts charged

피고인 1, 2, 3은 각 B대학 조교수인 자들인바, 선거로 인해 위 대학의 임명권자인 도지사가 바뀔 경우에 자신들의 재임용 탈락 등 불이익을 염려한 나머지 2002. 6. 13. 실시예정인 전국동시지방선거에서 C정당 D 후보를 당선되지 못하게 하고 E정당 F 후보를 당선되게 할 목적으로 D 후보의 홈페이지 게시판에 동 후보를 비방하는 취지의 글을 게시하기로 공모하여, 2002. 5. 27. 16:45경 대전 유성구 I 소재 S PC방에서 D 후보의 홈페이지의 게시판에 "죽여준다. 지역감정조장! 죽여준다. 역시 D야, 하기사 이것 밖에는 의지할 것이 없으니 역량이 있어, 그저 주먹 하나밖에 없으니 아이고 불쌍타!! 야 참 다리도 천하무적이다. 무슨 다리인지는 상상에 맡깁니다."라고 D 후보가 지역감정을 조장하고 폭력을 자주 휘두르는 것처럼 표현하는 등 별지 범죄일람표 기재 33번부터 47번까지 총 15회에 걸쳐 D 후보를 비방하는 내용과 F 후보를 옹호하는 취지의 글을 게시함으로써 공연히 사실을 적시하여 D 후보자를 비방함과 동시에 선거운동기간 전에 선거운동을 한 것이다.

(b) Markets:

(1) The point of slandering a candidate

The term "statement of fact" in the main sentence of Article 251 of the Public Official Election Act means a report or statement of a specific past or present fact in time and space, and its contents are able to be proved by evidence, and in distinguishing whether a statement is a fact or an opinion, the ordinary meaning and usage of the language, the possibility of proof, the context in which the language in question is used, and the social circumstances in which the expression was used should be considered.

Examining the contents of communications indicated in this part of the facts charged, Articles 33 and 34 of the attached Table of Crimes 36, 43, 45, and 47 provide that “The E-Party shall criticize the C Party and defend the E-Party,” and Article 36, 43, 45, and 47 provides that “The F Candidate will advance as a result of the public opinion poll by each media organization,” and Paragraph 38 does not include any content that may undermine the social evaluation of the D candidate’s individual, and thus, it cannot be deemed that the above article constitutes an act of slander.

In addition, Paragraph 35 expressed the television debate at issue, Paragraph 37, 39 criticizes the D candidate's electoral strategy, Paragraph 40 criticizes the D candidate's policy that makes a casino run on security, and Paragraph 41 of this article argues that the whole content of the debate is defending the change of the F candidate's party membership, and the above article is merely a subjective expression of opinion of the Defendants.

나머지 제42, 44, 46항의 글들도 "지역감정이 나쁘다고 말하는 척 하면서 실은 조장하는 것이 아닙니까", "역시 D야, 하기사 이것 밖에는 의지할 것이 없으니 역량이 있어, 그저 주먹 하나밖에 없으니 아이고 불쌍타!! 야 참 다리도 천하무적이다. 무슨 다리인지는 상상에 맡깁니다.", "학연, 지연, 당연을 모두 들먹거리니 아마도 조금 있으면 D후보와 술집에서 만난 사람들 모여라 하고 외치겠네요." 등 일부 공격적이고 거친 내용이 있으나 이는 시간과 공간적으로 구체적인 과거 또는 현재의 사실관계를 나열하였다기보다는 D 후보에 대한 피고인의 주관적 평가를 추상적으로 표현한 것에 불과하여 전체적으로 볼 때 사실을 적시한 것으로 보기 어렵다.

Therefore, since the facts charged against the candidate in this part of the facts charged constitute a crime, it is not guilty in accordance with the former part of Article 325 of the Criminal Procedure Act.

(2) Violation of the election campaign period

Article 254 (2) 2 of the Act on the Election of Public Officials and the Prevention of Election Malpractice punishs a person who conducts an election campaign by means of broadcast, newspaper, communication or other means prior to the election campaign period, and Article 58 (1) of the same Act defines the concept of an election campaign as "an act of being elected, making another person do so, or preventing another person from doing so", but it provides that a simple statement of opinion and expression of opinion on the election, preparation for a candidate and an election campaign, and mere statement of opinion and expression of opinion on the recommendation of a candidate shall not be regarded as an election campaign.

All citizens are guaranteed freedom to freely express political opinions as fundamental rights, and such political expression leads to criticism on support for specific candidates or their qualities, ability, and political inclinations in connection with an election. Such expressive act may, directly or indirectly, affect the election and defeat of a specific candidate.

However, the Act on the Election of Public Officials and the Prevention of Unlawful Election Act provides that all of the election campaigns are "a election campaign, which is elected, has become a party, or which is prohibited from being elected," and Article 59 of the same Act limits the period from the time when the registration of the candidate is completed to the day preceding the election day. In the case of presidential election, the period of registration of the candidate is merely 22 days before the election day, and 16 days before the election day (Article 49(1) of the same Act). In the case of punishing an election campaign before the election period, the broad concept of election campaign is likely to seriously restrict the freedom of political expression or the right to participate

Therefore, an election campaign under the Act on the Election of Public Officials and the Prevention of Election Fraud as well as the subjective purpose of election campaign is for the election or defeat of a specific candidate, and in light of all the circumstances such as the place, contents, and attitudes of such act, it shall be strictly clear that the purpose of election refers to an active and planned act objectively revealed to the general public in light of the circumstances such as the place, contents, and attitudes of such act. Other acts shall be the length of interpreting all the provisions of the Act on the Election of Public Officials and the Prevention of Election Fraud, which punish a prior election campaign

As to this case, even if the Defendants, as professors of B, did not change their positions, caused the instant act to fall under the candidate’s election, the Defendants’ act was difficult to conclude that the Defendants committed the instant act systematically by specific instructions or request of the F candidate, solely based on the evidence of conviction and the circumstances indicated in the record. The Defendants’ place where the correspondence was posted is a place where any person may freely express his opinion and reflect the other party’s opinion as a matter of free debate. At the time, Chungcheongbuk-do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do 's election and criticize the F candidate’s opinion and response to such change, the Defendants also put up a correspondence that reflects the above comments by participating in the process of debate, and by taking account of the fact that the contents of this article are not sufficient enough to protect the candidate’s political opinions or opinions on the election campaign candidate’s election strategy, and by taking account of various information about the candidate’s opinions and opinions among local residents.

Therefore, since the facts charged in violation of the election campaign period are not a crime, it is judged not guilty in accordance with the former part of Article 325 of the Criminal Procedure Act.

2. A violation of the attached Table 1 through 6, 8 through 12, a candidate’s defamation and an election campaign period as provided in Articles 14 through 19; and

A. Summary of the facts charged

The Defendants conspired and conspired to prevent Cparty D candidates from being elected in the nationwide local election, which is scheduled to be held on June 13, 2002, and caused E Party F candidates to be elected. On May 21, 2002, at the HPC bank located in Seo-gu, Seo-gu, Seoul, Seoul, posted a notice to the bulletin board of the D candidate’s website and to protect the F candidates 17 times in total, as described in Articles 1 through 6, 8 through 12, and 14 through 19 of the List of Offenses Act, and made a campaign campaign to defame D candidates by openly pointing out facts and at the same time prior to the election campaign period.

(b) Markets:

(1) The point of candidate visa

Examining the contents of communications indicated in this part of the facts charged, the provisions of the attached Table Nos. 1 through 6, 8, 10, 12, and 18 do not criticize the level of attack or debate against the other party of the debate rather than slander against the D candidate. Paragraph 9 is a criticism against the political party. Paragraph 15, 19 is merely an expression of objection against the website operator, and it does not include any content that may undermine the social evaluation of the candidate's individual. Therefore, it is difficult to view it as a malicious act.

The other articles in paragraphs 11, 14, 16, and 17 are the same as "I look back at the fluor head of the fluor," and "D candidate" "D candidate who works for the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the fluor."

Therefore, since the facts charged against the candidate in this part of the facts charged constitute a crime, it should be pronounced not guilty pursuant to the former part of Article 325 of the Criminal Procedure Act, but as long as the court found the defendant guilty of the candidate's secret crime of Article 1 of the decision which is related to such a comprehensive crime,

(2) Violation of the election campaign period

The Defendants posted comments on the other party’s method of debate, criticism against the political party, and dissatisfaction against the operation of the debate at the free debate room on the D candidate’s website. This is merely an expression of the other party’s writing by participating in the public debate as seen earlier and presenting his/her opinion as well as an active and planned act that is objectively expressed by the intention of seeking to defeat the candidate.

Therefore, since the facts charged against the violation of the election campaign period in this part are not a crime, it should be pronounced not guilty pursuant to the former part of Article 325 of the Criminal Procedure Act, but as long as it is found guilty of a candidate's secret crime under Article 1 of the judgment in relation to the commercial concurrent crimes, it shall not be sentenced

3. The violation of the provisions of Articles 20 through 28, 30 through 32 of the attached Table of Crimes List and the election campaign period.

A. Summary of the facts charged

The Defendants conspired and conspired that the Cparty D candidate will not be elected in the nationwide local election, which is scheduled to be held on June 13, 2002, and that the E Party F candidate will be elected. On May 23, 2002, at the JPC bank located in the GPC bank located in MPC located in the MPC bank located in the MPC bank located in the MPC, published a statement that slanders the D candidate over 12 times in total, as described in Articles 20 through 28, 30 through 32 of the List of Offenses Act, and slanders the D candidate by openly pointing out facts, and at the same time, election campaign was carried out prior to the period of election campaign.

(b) Markets:

(1) The point of candidate visa

Examining this part of the facts charged, Article 24, 26, and 31 of the [Attachment List of Crimes] provides that a special hotel needs to be established in Chungcheongbuk-do, and Article 21, 25, 27, and 28 provides criticism against the other party to the debate and criticism against the debate operator who removes the start language, and Article 22 provides that the whole of the facts that have undermined the social evaluation of the candidate's individual, is difficult to be deemed to be publicly stated, and therefore, it does not constitute a defamation act.

In addition, Paragraph 20, although D candidates express and criticizes what they would have been for North Korea as a member of the central affairs of the C party, the overall content of the F branch's party is limited to the Defendants' subjective expression of opinion, and it is limited to the Defendants' subjective expression of opinion, and the words in Paragraph 23 of Article 23 of the "I am Mana? I am Mana?? I am 30 and paragraph 32 of Article 30, written in the name of the author in the name of the author in T and U, taking into account the context of this article as a whole, I cannot be deemed as a statement of fact because it is merely an abstract judgment or conjecture on D candidates or it cannot be deemed that D has provided any fact that D has fallen short of the competitiveness of the Do governor candidate. Therefore, it is difficult to regard as a statement of fact.

Therefore, since the facts charged against the candidate in this part of the facts charged constitute a crime, it should be pronounced not guilty pursuant to the former part of Article 325 of the Criminal Procedure Act, but as long as the court found the defendant guilty of the crime against the candidate under Article 2 of the judgment that constitutes a single comprehensive crime, the judgment of

(2) Violation of the election campaign period

As seen above, the Defendants’ act is merely an active and planned act that is objectively expressed to the general public by participating in the debate of the free debate room, against the other party’s writing and express his opinion, and the intent to make a candidate fall under the D candidate cannot be seen as an election campaign.

Therefore, since the facts charged in violation of the election campaign period in this part are not a crime, the innocence should be pronounced pursuant to the former part of Article 325 of the Criminal Procedure Act, but as long as it is found that the defendant guilty of the candidate's secret crime under Article 2 of the judgment in relation to the above ordinary concurrent crimes, the judgment of

Judges Lee Jae-won (Presiding Judge)