[판례평석] 후보자 토론회의 발언에 대한 허위사실공표죄 검토- 대상판결 : 대법원 2020. 7. 16. 선고 2019도13328 판결 -

Abstract

The Public Official Election Act stipulates that those who make public false information for the purpose of election shall be criminally punished by the Article 250 Clause 1. If false information spreads during the election process, which is the act of electing representative institutions, it may distort the people's will and undermine the nature of the representative system by hindering voters' right choice. And the aim is to ensure fairness in elections. In the debate, however, candidates will be able to promote their policies and morality and highlight their differentiation from other candidates. Voters can help identify candidates' political ideologies, election issues, and other issues, and compare and evaluate a number of candidates to vote. However, the debate on candidates has the characteristic of improvising and continuing disputes over candidates' arguments, counterargument, questions and answers within a limited time frame. Therefore, it is difficult to judge whether or not to disclose false information because the contents of the speech are unclear compared to the speech. In order to ensure the freedom of election campaigns, the ruling is left behind through competition and post-verification in the debate process, even if there are some false expressions in the forum's answers, and it is desirable for voters to make a final judgment. If the election results depend on the judicial judgment of the prosecution and the court, the ideology of democracy may be undermined. The remarks of the forum cannot be evaluated as an act of circulating false information Based on the judgment of the subject, the review will examine the distinction between facts and opinions, the falsity of remarks, the inclusion of public announcements, and the limitations of constitutional legal interpretation and the alternative method of resolving the issue through the judgment of unconstitutional law.