Defendant 1 and one other

Prosecutor

Seoul Kim Jae-in

Attorney-At-Law

Suwon District Court Decision 2008Gohap532 Decided October 10, 2008

The judgment of the court below is reversed.

Defendant 1 shall be punished by a fine for negligence of KRW 2,00,000 and by a fine of KRW 1,000,000, respectively.

In the event that the Defendants did not pay the above fines, the Defendants shall be confined in the Labor House for the period calculated by converting the amount of KRW 50,000 per day into one day.

An order to pay an amount equivalent to each of the above fines shall be issued.

1. Summary of the prosecutor's grounds for appeal;

The act of sending a large amount of text messages using the Internet text messages does not constitute “tele” under the proviso of Article 109(1) of the Public Official Election Act, or the act of sending text messages constitutes “telece” under the proviso of Article 109(1) of the Public Official Election Act, which is an exception to the proviso of Article 109(1) of the Public Official Election Act, and thus constitutes an election campaign using telecommunication prohibited by the main sentence of Article 109(1) of the Public Official Election Act, but the lower court acquitted the facts charged in the instant case. In so doing, the lower court erred by misapprehending the legal doctrine on Article 10

2. Determination

A. Summary of the facts charged in this case

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

B. The judgment of the court below

In light of the proviso of Article 109(1) of the Public Official Election Act and Article 82-5(2) of the same Act, the court below held that, in principle, an election campaign by sending text messages using a telephone should be carried out in principle. However, whether the act of sending text messages to a mobile phone by accessing the website is an act of using “tels installed with automatic transmission devices by using a computer” prohibited under the proviso of Article 109(1) of the Public Official Election Act. Here, the term “tels installed with automatic transmission devices by using a computer” is interpreted as a device that generates recipients or automatically transmits contents by using an information and communication network. However, the above text messages site is a device that sending text messages to the addressee at once, and it does not constitute “Automatic transmission devices by using a computer” in terms of “the act of sending text messages by using a mobile phone” and “the act of sending text messages by using a mobile phone” cannot be seen as an act of transmitting information by using an information and communication network that does not clearly violate the proviso of Article 82(1) of the Public Official Election Act.

C. Judgment of the court below

Article 109(1) of the Public Official Election Act provides that "no one shall carry out an election campaign using letters, telegramss, facsimiles, or other means of telecommunication during the election period to the elector during the election period: Provided, That the same shall not apply to the case of Internet (in the case of advertisements, limited to the advertisements under the provisions of Article 82-7 (Internet Advertisement)) or telephone (excluding the case of telephones who have installed automatic transmission devices using computers)." The legislative purport of the above provision is to prevent election campaign inasmuch as the method of correspondence and telecommunications is one-time and one-time act, and it is highly likely to cause excessive competition and confusion in election campaign, and thus, the above provision aims to prevent election campaign using letters and telecommunication, which is prohibited in principle, but it is intended to allow election campaign using the method of telecommunications only in the case of mass transmission and transmission, such as the case of telephone without installing automatic transmission devices using computers, etc. among the methods of telecommunications, and thus, it is possible to permit election campaign using the computer (see Supreme Court Decision 2005Do4654, May 2014).

In this case, according to the evidence duly adopted and examined by the court below, the court below acknowledged the fact that the defendants conspired to the 18th National Assembly member election and connected the server of the non-indicted 1 corporation with the business of mass sending text messages from mobile phoness to the server of the non-indicted 1 corporation and used its operational program, thereby sending the 19,942 text messages to several mobile telephone terminals, such as the elector, in bulk, ten times.

First, the term "telecommunications" under the main sentence of Article 109 (1) of the Public Official Election Act refers to transmission or reception of codes, words, sound, or images by wire, wireless, optical, or other electronic methods (Article 2 subparagraph 1 of the Framework Act on Telecommunications). Thus, the transmission or reception of text messages is also subject to the method of telecommunications (Article 2 subparagraph 1 of the Framework Act on Telecommunications). However, as the concept of distinction between telephone and telephone, telephone refers to the method of telecommunications transmitting or receiving voice, and it does not constitute a case of telephone under the proviso of Article 109 (1) of the Public Official Election Act, since the sending of text messages on mobile phones does not mean the transmission of

The court below held that the defendant's act of using the Internet as an information and communications network and sending text messages using the phone in terms of transmission and reception is permitted under the Public Official Election Act. However, Article 82-4 of the Public Official Election Act only permits an election campaign using the information and communications network, "an act of posting information for election campaign on the Internet homepage or its bulletin board or toilet room, etc., or transmitting e-mails" but if an election campaign is conducted by using the information and communications network in any other way, it violates Article 109 (1) of the Public Official Election Act. It is distinguishable from sending text messages on the mobile phone by using the Internet text message site from transmitting the Internet e-mail permitted under Article 82-4 of the Public Official Election Act. In light of the legislative intent of Article 109 (1) of the Public Official Election Act, it does not mean all the election campaigns using the Internet, but it should be deemed that only the one-day and both directions by means of telecommunication using the Internet are permitted, and therefore, it does not constitute the case of using the Internet service concurrently using the Internet.

Ultimately, although the defendants' election campaign using the text message of this case is in violation of Article 109 (1) of the Public Official Election Act, the court below judged that the facts charged of this case constitute a case where the facts charged of this case is not a crime and sentenced not guilty. The judgment of the court below is erroneous in the misunderstanding of legal principles as to the above provision of law, which affected the conclusion of the judgment. Thus,

3. Conclusion

Therefore, the prosecutor's appeal is with merit, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the prosecutor added the ancillary facts charged to the facts charged in this case and the party member permitted it, but if it is found guilty of the facts charged in this case, the prosecutor does not separately decide on the ancillary facts charged.

Defendant 1 is the 18th National Assembly member election campaign worker affiliated to Nonindicted 2 candidate who was going to the Suwon-si constituency in an election for the 18th National Assembly member on April 9, 2008, and Defendant 2 is the secretary of the above Nonindicted 2 candidate.

No one shall carry out an election campaign to the elector by means of letters, transfer, facsimile and other means of telecommunication during the election period.

However, at around March 29, 2008, Defendant 1 sent a text message to Defendant 2 at the office of the National Assembly member of Hando-dong Seoul National Assembly (No. 19 omitted) of the Republic of Korea National Assembly member on March 29, 2008 to Defendant 2, using Nonindicted Co. 1 Co. 1, the Internet letter delivery site, to promote Nonindicted 2 candidates. The above Defendant 2 sent a text message to 2,346 to the electorate via Nonindicted Co. 1, 2,346 to the electorate, using Nonindicted Co. 1, 237.2% of the receipt site of YTN-type and receipt site: Nonindicted 323.6] Nonindicted 2, 323.6; from that time to August 19, 2008, Defendant 1 sent a large amount of text messages to the electorate via 10-day automatic communication as indicated in [Attachment 19:35].

As a result, Defendants were engaged in election campaigns by means of telecommunication during the election period by mutual recruitment.

1. Defendants’ respective legal statements in the original judgment

1. Each prosecutor's interrogation protocol against the Defendants

1. Investigation report (the result of execution of a warrant of search and seizure No. 2008-6565);

1. Details of text delivery, and output of Nonindicted Co. 1’s website;

1. Article applicable to criminal facts;

Comprehensively, Article 255(1)19 of the Public Official Election Act, Article 109(1), Article 30 of the Criminal Act (Selection of Fines)

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Code

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The crime of this case is an election campaign in front of the election of the 18th National Assembly member and for a specific candidate, and 19,942 text messages are sent in large numbers to a large number of electorates using the Internet text message site, and the nature of the crime is not easy in light of the contents of the text messages of this case, the time, method, object, number of cases and influence on the election, etc. of the text messages of this case, and as long as the legislative intent of Article 109(1) of the Public Official Election Act as seen earlier has been considerably damaged, the defendants need to be held responsible corresponding thereto. In addition, the defendants' each age, character, character, environment, career, circumstances after the crime, and circumstances after the crime, etc., which are the conditions for sentencing as shown in the records, shall be sentenced to the same sentence as the order.

[Attachment Offense List omitted]

Judges Park Jong-nam (Presiding Judge)