[2] In a case where the defendant was indicted for violating the Political Parties Act and the former State Public Officials Act on the grounds that he was a public official, judicial trainee, or prosecutor, under the status of Party A and Party B as a party member, the case holding that the defendant's lawful admission of the defendant without a judicial trainee or prosecutor's status at the time of party admission cannot be deemed as violating the Political Parties Act and the former

[3] In a case where the defendant joined a political party Gap's party and Eul's party and became a member of more than two political parties up to a certain time, and was prosecuted for violating the Political Parties Act, the case holding that the prosecution against the defendant is acquitted on the ground that it is evident that the statute of limitations has expired since the act of violating the Political Parties Act due to the party member's joining constitutes an immediate crime and the act of violation of the Political Parties Act occurred at the same time

[2] In a case where the defendant was indicted for violation of the Political Parties Act and the former State Public Officials Act (amended by Act No. 10148, Mar. 22, 2010; hereinafter “State Public Officials Act”), on the ground that he was appointed as a public official in extraordinary civil service who is a public official in the status of Party A and Party B as a party member, the case holding that Article 22(1)1 of the Political Parties Act prohibits "public official" from becoming a party member, and Article 65(1) of the State Public Officials Act prohibits "public official" from joining a political party, and is punished under Article 53 of the Political Parties Act, Article 84 of the State Public Officials Act and Article 84 of the State Public Officials Act against the violation of the Political Parties Act and Article 84 of the State Public Officials Act are punished for immediate crimes, and it is reasonable to view that the elements of the above Act are a crime that requires a certain status as a public official to the principal at the time of joining a political party, even if he did not have any status as a public official at the time of joining a political party or prosecutor.

[3] In a case where the defendant joined a political party Gap's party and Eul's party and became a member of more than two political parties until a certain time, and was prosecuted for violating the Political Parties Act, the case holding that the prosecution against the defendant is acquitted on the ground that it is evident that three years have elapsed after the expiration of the statute of limitations from the time of joining each political party, since the violation of the Political Parties Act due to joining a party member constitutes an immediate crime and the crime of violation of the Political Parties Act has occurred at the same time

The charge of violating the Political Parties Act due to two or more political parties joining the facts charged in the instant case is acquitted.

The defendant is a judicial trainee who is a public official in extraordinary civil service on March 2, 2009, and is appointed as a public prosecutor who is a public official on February 14, 201 and currently serving as a public prosecutor at the Busan District Public Prosecutor's Office.

No State public official may become a member of any political party, nor join any political party or political organization, regardless of the pretext thereof, and may support a specific political party or political organization with money or material for a political purpose.

No person may be a member of more than two political parties.

A. On March 2004, the Defendant entered the Defendant’s personal information, etc. on the roster of party members by accessing a computer located at the Sincheon-si, Sincheon-si, Dong-si’s health center to the website of the Democratic Labor Party, and automatically applying for the payment of party membership fees via the CMS transfer method, and on March 25, 2004, transferred KRW 10,000 from the Defendant’s national bank account via the CMS transfer to the Defendant’s financial settlement center located in the Gangnam-gu, Seoul Metropolitan City (hereinafter “CMS transfer”). From that time to February 14, 2006, the Defendant purchased 10,000 won from the Defendant’s national bank account to the democratic labor bank account established in the Yeongdeungpo-gu, Seoul Metropolitan City, Young-gu, for every month from February 24, 2006, including transfer of KRW 240,000 in total as party membership fees.

B. On March 13, 2004, the Defendant entered the Defendant’s personal information, etc. on the roster of party members by accessing the Internet homepage of the Korea Party (former Democratic Party) opened on the computer at the same place as the above A, and applied for automatic payment of party membership fees through the CMS transfer method, and then registered on the roster of party members (party members number 2 omitted). On April 9, 2004, the Defendant transferred KRW 10,000 from the Defendant’s national bank account at the Defendant’s national bank account via the CMS transfer method via the CMS transfer method to the financial settlement center located in Gangnam-gu Seoul, Gangnam-gu, Seoul, to the Defendant’s national bank account for the payment of party membership fees, and thereafter, from July 8, 2004 every month until July 8, 2004, the Defendant joined as the Defendant and the democratic party succeeded thereto by June 13, 2011.

C. Meanwhile, the Defendant joined the Democratic Labor Party and the Open Party as described in the above A, B, and Korea respectively and became a member of two or more political parties until June 13, 201.

2. Defendant and his defense counsel’s assertion

A. The violation of the State Public Officials Act and the Political Parties Act regarding the facts charged in the instant case constitute an immediate crime upon completion of the act of joining as a party member.

B. The fact that the defendant is a judicial trainee or prosecutor after joining a political party does not constitute a violation of the State Public Officials Act or the Political Parties Act.

C. Of the facts charged in the instant case, the violation of the Political Parties Act due to two or more political parties joining also constitutes an immediate crime. This part of the prosecution was instituted after the statute of limitations for three years has expired from the time when the Defendant joined two or more political parties.

3. Determination

(a) Relevant provisions of the Political Parties Act and the State Public Officials Act (related Acts and subordinate statutes: omitted);

(b) Whether an act of joining a political party or becoming a member of a political party is an immediate crime;

(1) Article 65(1) of the State Public Officials Act refers only to the case where a party member is a party member under the law of a political party. Ultimately, the decision on whether a party member is a party member under Articles 53 and 55 of the Political Parties Act and the “party member” under Article 65(1) of the State Public Officials Act shall be made.

(2) In full view of the following circumstances, it is reasonable to view that the violation of the Political Parties Act due to a party accession and the violation of the State Public Officials Act constitute an immediate crime, and the crime is completed at the same time as the occurrence of the result of establishment at the time of registration on the roster of party members

(1) The crime of joining an organization is completed when the procedure for joining the organization is completed. In the case of verbal joining the organization, it is terminated when the other party is aware of the intention of the other party and it is possible to deem that the other party has approved or approved it in writing. In the case of joining the organization, the elements of the crime of joining are terminated, and it is not necessary to continue at the time of the other party's act, such as arrest, confinement, and confinement. There may be doubts as to whether the illegal state of membership does not continue as a member of the organization unless the act of joining the organization itself continues, but it is true that the constituent result continues after the act of joining the organization is completed, and it is not different from the acquisition of another's property in larceny or embezzlement, and it is distinguishable from the continuation of the unlawful state in the continuous crime (see Supreme Court en banc Decision 4293Mo57 delivered on April 5, 1960).

② In the case of violation of the State Public Officials Act, the term “party membership” in the text of the Act clearly states that the elements of a political party are “party membership.” However, in the case of a violation of the Political Parties Act, the term “party membership” means a party membership to join a political party in accordance with the nature of an association, and when a party member becomes a party member, the term “party membership” refers to the party membership; in Article 23 of the Political Parties Act, the term “party membership” applies for the “party membership”; deliberation by the examining agency; the decision of whether to grant permission; and the procedure for registration of a party membership roster; and the term “party membership” also states that the effect of the term “party membership” arises when the party membership is entered on the roster of party members and is not recognized as a party member. Thus, even in the case of a violation of the Political Parties Act, the act constituting the elements of a political party membership itself, i.e., the act of becoming a party member, which constitutes a violation of the State Public Officials Act and the intrinsic act

(3) According to the legal principles as seen earlier, the act of joining a political party as a party member under the provisions of the Political Parties Act and the crime of joining a party, is terminated by being entered on the roster of party members, and no additional act is required to continue

④ Although a public official continues to be in violation of the duty of prohibition of joining a political party until he/she withdraws from the political party even after the act of joining the political party is terminated, the act of becoming a member in violation of the duty of prohibition of joining the political party and the act of becoming a member after the said act of becoming a member of the political party shall be carefully divided and examined. If the statute of limitations does not run because the act of becoming a member of the political party does not run even though he/she did not engage in any political party activity after only joining the

(c) The non-guilty portion (the non-guilty portion is a judicial trainee who is a public official in extraordinary civil service on March 2, 2009, and the violation of the Political Parties Act and the violation of the State Public Officials Act due to the appointment of a public prosecutor who is a public official on February 14, 201);

(1) On March 2, 2009, a prosecutor indicted the Defendant for a violation of the Political Parties Act under Articles 53 and 22(1)1 of the Political Parties Act with respect to the part of the Defendant’s appointment as a judicial trainee who is a public official in extraordinary civil service as a public official. On February 14, 2011, with respect to the part of appointment as a public prosecutor who is a public official, a public official was indicted for a violation of the Political Parties Act under Articles 53 and 22(1)1 of the Political Parties Act and Articles 84 and 65(1) of the State Public Officials Act.

(2) As seen earlier, Article 22(1)1 of the Political Parties Act prohibits a “public official” from becoming a member of a political party, and Article 65(1) of the State Public Officials Act prohibits a “public official” from joining a political party, and is punished under Article 53 of the Political Parties Act and Article 84 of the State Public Officials Act against such offense. As seen earlier, considering the regulatory form and the fact that the violation of the Political Parties Act by joining a political party and the violation of the State Public Officials Act constitute immediate crimes, it is reasonable to deem that the above statutory provision provides for a crime that requires a specific status as a public official in the subject of the act at the time of joining a political party.

Therefore, before the defendant is appointed as a judicial trainee or prosecutor at the time of joining a political party, it is evident that the defendant's act of joining a political party without such a public official violates the above Political Parties Act and the State Public Officials Act. Furthermore, even if a member who lawfully acquired his status was a public official after being appointed as a public official, it cannot be deemed that he violated the above prohibition provisions that require a public official at the time of joining a political party (see, e.g., Supreme Court Decision 84 and Articles 65 (2) through (4) of the State Public Officials Act, and Article 85 (2) through (4) of the State Public Officials Act may be punished for violation of the Political Funds Act if a member is appointed as a public official and his status is maintained. In other cases, if there are various political acts for the political party to which he joined, it can be punished by the violation of the Political Parties Act, and if there is a gap in punishment under these provisions, it can be seen as a legislative problem, and even if it requires a change in nature of a political party membership immediately or an extension of status of a public official, it can be interpreted.

Thus, since this part of the facts charged against the defendant constitutes a case that does not constitute a crime, the defendant is acquitted under the former part of Article 325 of the Criminal Procedure Act.

(d) Acquittal portion (a violation of the Political Parties Act due to membership of not less than two political parties);

(1) The crime of violating the above Political Parties Act is a statutory penalty of one year or less or a fine of one million won or less under Article 55 of the Political Parties Act, and the statute of limitations is three years under Article 3 of the Addenda of the former Criminal Procedure Act (amended by Act No. 8730 of Dec. 21, 2007) and Article 249 (1) 5 of the former Criminal Procedure Act (amended by Act No. 8730 of Dec. 21, 2007).

(2) As seen earlier, the violation of the Political Parties Act by joining a party member constitutes an immediate crime. In the case of an immediate crime, the occurrence of the constituent consequence and the completion of the crime at the same time, and the statute of limitations has run. Therefore, this part of the prosecution against the Defendant is obvious that the prosecution against the Defendant was instituted on August 9, 201, which was three years after the expiration of the statute of limitations for the prosecution against the Democratic Labor Party and the Opening Party.

If so, this part of the facts charged against the defendant constitutes the completion of the statute of limitations, and thus, is acquitted pursuant to Article 326 subparagraph 3 of the Criminal Procedure Act.

Judges Park Gi-ri (Presiding Judge)

1) The Supreme Court has consistently held that the nature of the crime of joining the North Korean Labor Party in the above ruling on the case of joining the North Korean Shipbuilding Labor Party as an immediate crime (see, e.g., Supreme Court Decisions 91Do3, Mar. 12, 1991; 93Do99, Jun. 8, 1993) is a crime of accession or the crime of organization.