Supreme Court Confirms Pastor Kim Jin-hong Not Guilty for Saying "63 Pro-China and Pro-North Korea Democratic Party Lawmakers Must Be Removed"

Supreme Court, Seocho-dong, Seoul.

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[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] A pastor who preached during an online worship service before the 21st National Assembly election that "pro-China and pro-North Korea Democratic Party candidates must be defeated" was acquitted.

According to the Public Official Election Act, "election campaigning" must be an act aimed at the election or defeat of a specific candidate. Therefore, even if the actor subjectively had the election in mind or the act ultimately influenced the election, if the candidate is not specified, it cannot be punished as pre-election campaigning.

The Supreme Court's First Division (Presiding Justice Oh Kyung-mi) announced on the 30th that it upheld the acquittal verdict of the lower court in the appeal trial of Pastor Kim Jin-hong of Dure Church in Dongducheon, who was indicted for violating the Public Official Election Act.

The court stated, "The lower court found no evidence to prove the crime in the indictment and maintained the first trial's acquittal judgment," adding, "There is no error in the lower court's judgment that violates the rules of logic and experience or exceeds the limits of free evaluation of evidence, nor any misinterpretation of the law regarding election campaigning under the Public Official Election Act," thus dismissing the appeal.

Pastor Kim was prosecuted for remarks made in early 2020 before the 21st general election, urging people to vote against the ruling Democratic Party candidates.

According to the prosecution, on January 4, 2020, around 1 p.m., Kim attended the "People's Rally for the Resignation of Moon Jae-in" held at Gwanghwamun Square in Seoul as a speaker. Using a microphone connected to a loudspeaker installed there, he told the participants, "On December 27, 2019, the Election Act was passed, and on the 30th, the Corruption Investigation Office Act was passed. Around me, there are people sighing as if the country is doomed. But let's have hope. There is an opportunity ahead. On January 8, the Corruption Investigation Office Act will be published in the official gazette and will take effect six months later. In between, on April 15, there is an election to choose the 21st National Assembly members. Out of 300 members, if the people elect only 151, that is the way. Everyone, on April 15, at the 21st National Assembly election, let's vote for more than 151 patriotic citizens opposing the pro-Juche faction regime to be elected. April 15 must be PR (public relations). PR means 'promoting until it bleeds.' Everyone, let's PR until it bleeds on April 15. The pro-North leftists are gaining power. The day to drive them all out is coming," urging people not to support the Democratic Party and its candidates in the 21st National Assembly election.

He also preached during an internet broadcast of Sunday worship at his church in Dongducheon on March 8 of the same year to about 400 church members, saying, "In the April 15 election, we should elect people who are not close to the Juche faction. One and a half years after that election, there will be a presidential election. Last time, 63 ruling party lawmakers declared a pro-China and pro-North Korea policy. Sixty-three incumbent lawmakers signed it. I live in the mountains, so I am not in the political scene, but I tell my political friends that the list of 63 is all out. We should expose it and defeat the pro-China and pro-North Korea lawmakers in the next election. This is the kind of politics the church should do. If we tell people not to vote for those who did such things, the public is smart and will not vote for them," again urging people not to support the Democratic Party and its candidates in the 21st National Assembly election.

The prosecution indicted Pastor Kim on charges of "pre-election campaigning using a loudspeaker" and "election campaigning using official duties within an organization" under the Public Official Election Act, citing the above two remarks.

The trial focused on whether Pastor Kim's remarks could be seen as opposing the Democratic Party, a specific political party, or aimed at defeating specific candidates.

The first and second trial courts judged, "Pastor Kim's remarks asked not to support people who are 'Juche faction,' 'pro-North leftists,' or 'pro-China and pro-North Korea-leaning,' but these concepts are abstract and inevitably involve subjective judgment, so it is difficult to objectively specify the scope of these concepts or to conclude that specific parties or candidates are clearly identified."

In response, the prosecution argued that Pastor Kim's mention of the "Moon Jae-in regime" at the January 4 rally and "ruling party lawmakers" in the March 8 sermon could be interpreted as urging people not to support the Democratic Party.

However, the court found that the overall content of Pastor Kim's January 4 remarks criticized the government for pro-North Korea-leaning incidents, such as the case in November 2019 when two defectors who crossed from North Korea by boat were returned to North Korea, and criticized President Moon for wasting two years on peace talks and abolishing joint US-South Korea military exercises, suggesting that the remarks were made in the context of opposing people with 'Juche faction' or 'pro-North leftist' tendencies rather than specifically targeting the Democratic Party.

Furthermore, the main content of the March 8 sermon was about "wisely coping with the COVID-19 crisis turning the crisis into an opportunity," and election-related remarks accounted for only about two minutes of the approximately 48-minute sermon. Pastor Kim also said, "We must distinguish between the Democratic Party and the Juche faction regime. It is prejudice to view the Democratic Party entirely negatively," and "There are many good people in the Democratic Party," showing caution against unconditional opposition to the Democratic Party, which was taken into consideration.

Meanwhile, the prosecution claimed that the "63 ruling party lawmakers" mentioned by Pastor Kim in the sermon could be identified as the 63 Democratic Party lawmakers who participated in the December 2016 anti-THAAD (Terminal High Altitude Area Defense) deployment signature campaign.

However, the court pointed out that the prosecution's indictment only alleged that Pastor Kim conducted a defeat campaign against the Democratic Party and its candidates through his remarks, not that he targeted the 63 individual Democratic Party lawmakers for defeat campaigns, which is clear from the wording.

It was also difficult to conclude that Pastor Kim consciously referred to the 63 lawmakers who participated in the anti-THAAD signature campaign, and from the perspective of the general public listening to his remarks, it was unlikely they would have known that the 63 lawmakers referred to were those who signed the petition about three years and three months earlier.

The biggest reason the lower courts found that Pastor Kim did not violate the Public Official Election Act was the absence of "candidate specification," an essential element of "election campaigning" under the Act.

The court noted, "The registration of candidates for the 21st National Assembly election in question took place over two days from March 26 to 27, 2020. However, the rally and worship in question were held on January 4 and March 8, 2020, respectively, before candidate registration for the election, so it is clear that candidates had not yet been specified."

It continued, "The prosecution argues that even if candidate registration had not been completed at the time of the defendant's remarks, there were at least persons intending to become candidates, and pre-election campaigning for such persons is punishable, so the defendant's remarks should be considered election campaigning. However, according to the indictment, the prosecution did not file charges based on election campaigning for specific individual candidates. Therefore, whether any individual objectively expressed an intention to run for election at the time of the rally and worship is not subject to review in this case."

Finally, the court concluded, "Therefore, at the time of the defendant's remarks, there was no 'specific candidate,' a prerequisite for 'election campaigning' under the Public Official Election Act, so the remarks cannot be considered election campaigning under the Act."

This judgment was based on the Constitutional Court's decision and Supreme Court precedents regarding the concept of election campaigning.

In 2004, the Constitutional Court stated, "The concept of election campaigning presupposes acts aimed at the election or defeat of a 'specific' or at least 'specifiable' candidate. Of course, acts aimed at gaining votes for a specific party inevitably mean acts aimed at electing the party's nominated district candidate, so supporting a specific party can satisfy the concept of election campaigning. However, even in this case, the candidate intended to be elected through support for the party must be identifiable."

In a 2016 plenary session ruling, the Supreme Court stated, "'Election campaigning' refers to acts objectively recognized as intending to promote the election or defeat of a specific candidate in a specific election. Whether an act qualifies should be judged objectively based on the act as expressed externally, not on the internal intention of the actor."

It added, "Therefore, even if the actor subjectively had the election in mind or the act ultimately influenced the election or was necessary or advantageous for promoting election or defeat, if the act is not objectively recognized as intending to realize such purpose at the time, it cannot be considered election campaigning."

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