Open Decision Ledger · Criminal law
Tacit intent in a candidate's delegated property report
Supreme Court, Mar. 12, 2026, 2025Do12988 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 특정경제범죄가중처벌등에관한법률위반(사기)·사문서위조·위조사문서행사·공직선거법위반
Official text on the National Law Information Center
Question
Where Defendant 1 entrusted the drafting of his candidate property report to campaign staff, made no confirmation or review of it, and it was filed with the published price rather than the higher actual transaction price of the jointly owned flat, could tacit intent be found for the false-statement publication under Article 250(1) of the Public Official Election Act?
Holding
Not on this record. The Court held that tacit intent requires both an awareness that the crime may occur and an inward will to accept that risk, and that whether the risk was accepted is inferred not from the accused's own statement but from the outward form of the conduct and the concrete circumstances around it, asking how an ordinary person would assess the risk and then reading the state of mind from the actor's standpoint. Because Defendant 1 had left property reports to campaign staff in earlier elections without any problem, the report had been through the election commission's prior check, which asked for corrections only to such matters as the share ratio in the flat, no property was omitted and no motive to understate or suspicion of breach appeared, and the whole course pointed to a simple mistake rather than an acceptance of the risk, tacit intent was not made out.
Points at issue, verbatim
미필적 고의의 요건 및 행위자에게 미필적 고의가 있었는지 판단하는 방법
Unofficial English translation
Requirements for dolus eventualis (conditional intent) and the method of determining whether an actor had dolus eventualis (conditional intent)
Disposition
Partly reversed and remanded Stated in the decision
원심판결 중 피고인 1에 대한 각 공직선거법 위반죄 부분을 파기하고, 이 부분 사건을 수원고등법원에 환송한다. 피고인 1의 나머지 상고 및 피고인 2의 상고를 각 기각한다.
Unofficial English translation
The parts of the judgment of the court below concerning each violation of the Public Official Election Act by Defendant 1 are reversed, and the case as to these parts is remanded to the Suwon High Court. The remaining appeal of Defendant 1 and the appeal of Defendant 2 are each dismissed.
Form of the test
Elements stated Stated in the decision
범죄구성요건의 주관적 요소로서 미필적 고의라 함은 범죄사실의 발생 가능성을 불확실한 것으로 표상하면서 이를 용인하고 있는 경우를 말하고
Unofficial English translation
Dolus eventualis (conditional intent), as a subjective element of the constituent elements of an offence, refers to a case where a person recognizes the possibility of the occurrence of a criminal fact as uncertain yet tolerates it, and
Factors
- 범죄구성요건의 주관적 요소로서 ‘미필적 고의’의 의미
- 미필적 고의의 요건 및 행위자에게 미필적 고의가 있었는지 판단하는 방법
- 미필적 고의의 존재에 대한 증명책임 소재(=검사) 및 유죄를 인정하기 위한 증거의 증명력 정도
Unofficial English translation
• Meaning of 'dolus eventualis' (conditional intent) as a subjective element of the constituent elements of an offence
• Requirements for dolus eventualis (conditional intent) and the method of determining whether an actor had dolus eventualis (conditional intent)
• Where the burden of proof regarding the existence of dolus eventualis (conditional intent) lies (= the prosecutor) and the degree of probative value of the evidence required to find the defendant guilty
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2017. 1. 12. 선고 2016도15470 판결(공2017상, 427)
Unofficial English translation
Supreme Court Decision 2016Do15470 decided January 12, 2017 (Gong 2017 Sang, 427)
Decisions referred to
대법원 2004. 5. 14. 선고 2004도74 판결(공2004하, 1101), 대법원 2008. 8. 21. 선고 2007도8726 판결, 대법원 2017. 1. 12. 선고 2016도15470 판결(공2017상, 427)
Burden of proof
The prosecution Stated in the decision
미필적 고의의 존재에 대한 증명책임 소재(=검사)
Unofficial English translation
Where the burden of proof regarding the existence of dolus eventualis (conditional intent) lies (= the prosecutor)
Open question and revisit condition
When a candidate had left property reports to staff before without any incident but knew the actual transaction price of the property, would that same expectation of no problem still defeat the inward will to accept the risk?
The retrial judgment of the Suwon High Court on each Public Official Election Act count against Defendant 1 will show how the tacit-intent elements are applied after remand. A later decision changing the standard for tacit intent, or a change to the rule requiring a candidate to report the higher of the published price and the actual transaction price of a building, would require this entry to be read again.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-24
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 6 of the 8 axes; the readings differed on axis 4 (form of the test), axis 8 (open question and revisit condition).
Axis 4 (Form of the test): Primary “Elements stated” vs Independent “Existing test applied”
The primary emphasizes the requirements and assessment method expressly listed in the issues, while the independent emphasizes their application to the candidate, although the supplied holding is empty and the order alone does not describe that application.
행위자에게 미필적 고의가 있었는지 판단하는 방법Axis 8 (Open question and revisit condition): Primary “When a candidate had left property reports to staff before without any incident but knew the actual transaction price of the property, would that same expectation of no problem still defeat the inward will to accept the risk?” vs Independent “What additional warnings or indications of an inaccurate declaration would suffice to establish that a candidate consciously accepted the risk of publishing false information?”
The primary asks whether knowing the actual transaction price defeats reliance on past delegation, whereas the independent asks what warnings of inaccuracy establish conscious acceptance of the risk.
미필적 고의의 요건 및 행위자에게 미필적 고의가 있었는지 판단하는 방법Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Suwon High Court, in its judgment of 24 July 2025 (2025No400), held Defendant 1 guilty on the count of publishing a false statement about the property of a candidate and his spouse. It reasoned that Defendant 1 had allowed the property report drafted by A to be submitted without any confirmation or review, knowing that his property status might be published contrary to fact, and had tolerated that possibility.
Supreme Court standard: The Supreme Court held that this misapprehended the law on tacit intent in the false-statement offence under Article 250(1) of the Public Official Election Act. Delegating the drafting and failing to check the content was not proper conduct for a public candidate, but that alone could not establish an inward will to accept the risk once the delegation history, the prior check by the election commission, the absence of omitted property or motive to understate and the whole course of drafting were taken into account. Because the underreporting count and the remaining election-law count against Defendant 1 stood in concurrence under Article 37 of the Criminal Act and were punished by a single sentence, the Court reversed each Public Official Election Act count against him and remanded this part, while finding no error on the remaining counts and dismissing the rest of his appeal and the whole of Defendant 2's appeal.
Distinguishing conditions
- A candidate who confirmed the report himself and knew that the actual transaction price of the flat was higher than the amount entered in it.
- A report in which the property itself was omitted, or where circumstances appear showing a motive to understate the value or a suspicion that a legal breach would follow.
- A ground raised for the first time in the appeal to the Supreme Court, which the Court refused to hear as not a lawful ground of appeal.
Record verification notes
Set the file against the circumstances the Court listed: who drafted the report and on what instructions, whether the commission's prior check queried the price, what the candidate had done in earlier property reports, whether any property was omitted and whether any motive to understate or suspicion of breach appears. Keep the counts apart, since the reversal rests on the underreporting count alone and the other election-law count was swept up only because the two shared one sentence. Finally, check whether the ground was raised below, because the Court refused grounds first raised on appeal to it.
From the official text
Points at issue
범죄구성요건의 주관적 요소로서 ‘미필적 고의’의 의미 / 미필적 고의의 요건 및 행위자에게 미필적 고의가 있었는지 판단하는 방법 / 미필적 고의의 존재에 대한 증명책임 소재(=검사) 및 유죄를 인정하기 위한 증거의 증명력 정도
Unofficial English translation
Meaning of 'dolus eventualis' (conditional intent) as a subjective element of the constituent elements of an offence / Requirements for dolus eventualis (conditional intent) and the method of determining whether an actor had dolus eventualis (conditional intent) / Where the burden of proof regarding the existence of dolus eventualis (conditional intent) lies (= the prosecutor) and the degree of probative value of the evidence required to find the defendant guilty
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결 중 피고인 1에 대한 각 공직선거법 위반죄 부분을 파기하고, 이 부분 사건을 수원고등법원에 환송한다. 피고인 1의 나머지 상고 및 피고인 2의 상고를 각 기각한다.
Unofficial English translation
The parts of the judgment of the court below concerning each violation of the Public Official Election Act by Defendant 1 are reversed, and the case as to these parts is remanded to the Suwon High Court. The remaining appeal of Defendant 1 and the appeal of Defendant 2 are each dismissed.
Provisions referred to
형법 제13조, 공직선거법 제250조 제1항, 형사소송법 제307조, 제308조
Read 2026-10-24 · Cross-read 2026-10-24. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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