"Reported for statement 'Passing the Bar Exam with 1,000 Yoon Passers'"
[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] A civic group has filed a complaint against former Roh Moo-hyun Foundation director Yoo Si-min for allegedly spreading false information related to Yoon Seok-yeol, the People Power Party's presidential candidate. The case has been assigned to the special investigation unit dedicated to election cases.
During the prosecution's investigation, whether Yoo will be indicted is expected to hinge on whether he was aware at the time of his statement that his claim that "Candidate Yoon passed the bar exam when there were 1,000 successful candidates" was factually incorrect.
According to the legal community on the 3rd, the civic group "Action Alliance for Establishing the Rule of Law" (led by Lee Jong-bae) filed a complaint against Yoo at the Seoul Central District Prosecutors' Office for violating the Public Official Election Act by spreading false information and defamation through the Information and Communications Network Act by disseminating false facts. The case was assigned to the Public Investigation Division 2 (Chief Prosecutor Kim Kyung-geun), which specializes in election and political cases.
Yoo appeared on MBC's "News Outside" on the 24th of last month and made remarks comparing the bar exam success of Lee Jae-myung, the Democratic Party candidate, and Yoon Seok-yeol to emphasize Lee's superior intellectual ability.
At that time, he stated, "Candidate Lee passed on his second attempt when 300 people were selected, while Candidate Yoon passed on his ninth attempt when 1,000 people were selected," comparing the two and suggesting that Lee's strength was intelligence, whereas Yoon did not seem intellectually outstanding.
However, the actual number of successful candidates in the 28th bar exam in 1986, when Lee passed, was 300, and the number for the 33rd bar exam in 1991, when Yoon passed, was 287, meaning that the number of successful candidates was actually lower when Yoon passed. The number of successful candidates exceeded 1,000 only starting from the 46th bar exam in 2004.
The complainant argued that Yoo's statement falls under Article 250 of the Public Official Election Act, which punishes the publication of false facts about a candidate or their family with the intent to prevent their election, and also under Article 70, Paragraph 2 of the Information and Communications Network Act, which punishes defamation by publicly revealing false facts through information networks with the intent to slander a person.
It is clear that Yoo's statement was false. All the objective elements required to establish a crime are thus met.
The issue lies in the subjective elements. For a crime to be established, except in cases of negligence, 'intent'?meaning awareness and will regarding the crime?is essential. Furthermore, for the offenses under the Public Official Election Act and the Information and Communications Network Act to be established, in addition to intent, there must be subjective elements beyond intent, such as the purpose of preventing a candidate's election or the purpose of slandering a person.
It is likely to be easily recognized that Yoo had the purpose of promoting Candidate Lee's election and preventing Candidate Yoon's election by comparing the two during the broadcast. His remarks implying a significant difference in general intelligence and mentioning Yoon's passing on the ninth attempt were intended to highlight Yoon's relative intellectual inferiority compared to Lee, ultimately aiming to influence voters' decisions ahead of this presidential election.
The key question is whether Yoo knowingly made false statements on the broadcast despite being aware that the number of successful candidates when Yoon passed was not 1,000 but similar to that when Lee passed.
During the investigation, Yoo is likely to attempt to evade legal responsibility by claiming he was unaware of the facts or that he heard the information from others and believed it to be true when speaking on the broadcast.
However, the Supreme Court does not require clear awareness of all elements constituting the crime or a definite intention to commit the act when judging intent. Through the concept of 'dolus eventualis' (conditional intent), the court has expanded the scope of intent to include cases where the perpetrator did not know the exact facts at the time but could have known.
For example, if a person strikes a victim's face with a blunt object intending only to cause serious injury but not murder, even if the perpetrator did not truly intend to kill, they can be legally charged with murder rather than manslaughter or injury resulting in death. This is because the perpetrator is considered to have conditionally recognized and accepted the possibility of death resulting from the act.
In the detailed investigation, various specific circumstances such as Yoo's motive for making the statement and the sources of his information will be considered. Since the number of successful bar exam candidates by year is easily verifiable through internet searches, depending on the prosecution's determination, there is a possibility that Yoo will be brought to trial.
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