[2] The case holding that the defendant, a state public official, attending an assembly that has the character as a preparatory act to form a public official labor union constitutes "labor campaign" prohibited under Article 66 of the State Public Officials Act

[3] The case reversing the judgment of the court below which found a guilty by applying the "foreign diplomatic organization residing in the Republic of Korea" part of Article 11 subparagraph 1 of the former Assembly and Demonstration Act, on the ground that the Constitutional Court's decision of unconstitutionality as to the above provision after the sentence

[2] The case holding that the defendant, a state public official, attending an assembly which has the character as a preparatory act for the formation of a public official labor union constitutes "labor campaign" prohibited under Article 66 of the State Public Officials Act

[3] The case reversing the judgment of the court below which found the defendant guilty of violating the Assembly and Demonstration Act by applying Article 11 subparagraph 1 of the former Assembly and Demonstration Act (amended by Act No. 7123 of Jan. 29, 2004), which prohibited outdoor assembly and demonstration at a place within 100 meters from the boundary of the office building of the diplomatic organization in the Republic of Korea, on the ground that the Constitutional Court's decision of unconstitutionality as to the above provision that was rendered after the sentence is rendered

1. Regarding ground of appeal No. 1

In light of the relationship with the Constitution and the State Public Officials Act, and the fact that the Constitution guarantees the freedom of assembly, association, and association, while the Constitution guarantees the three basic labor rights to public officials only, the right to organize, that is, the right to collective bargaining, and the right to collective action as a concept of labor law should be interpreted. The limited right to organize refers to the right of subordinate workers to form, join, and act for the employer, which is an economic association organized for the purpose of maintaining and improving working conditions. In addition, the "collective act for activities other than public duties" under the same Act refers to any collective act conducted by public officials for any activities other than public duties. It does not mean any collective act conducted by public officials for the press, publication, assembly, and association, the constitutional principle, the purport of the State Public Officials Act, the duty to maintain good faith under the State Public Officials Act, and the duty to maintain good faith under the State Public Officials Act. It should be interpreted that the act of neglecting duty should be interpreted as a "collective act affecting the public interest" (see, e.g., Supreme Court Decision 2002Do194.

Comprehensively taking account of the evidence admitted by the court below, since the National Council of Workers (hereinafter referred to as the "Special") is an organization established in violation of Article 2 (2) of the Enforcement Decree of the Act on the Establishment and Operation of Public Officials' Council, it is an organization for the formation of a labor union, such as the establishment of a single organization composed of public officials and conversion into the organization of public officials' union, and Defendant 1 was established on March 23, 2001 among the members of the Council of Workers' Council, it is not an organization for the establishment of a regional public official's organization for the purpose of organization formation of a single organization and conversion into the organization of public officials' union. Upon the formation of major training on March 23, 200, it is not an organization for the organization of the National Council of Workers' Unions and Vice-Chairperson of the Major Council as well as an organization for the improvement of public officials' social service and the joint countermeasure committee for the establishment of a local public official's organization for the promotion of basic labor rights.

Therefore, the judgment of the court below which found Defendant 1 guilty of the crime of violation of the State Public Officials Act due to the attendance at each of the above assemblies is just and there is no error in the incomplete hearing or violation of the rules of evidence as alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

If a university enters a university for the purpose of assembly even though it did not permit an assembly within the school and prohibited an outside person from accessing the university, even if the university did not specifically refrain from entering the university, the crime of intrusion upon a structure is established (see Supreme Court Decision 2004Do3212, Aug. 30, 2004).

Examining the evidence admitted by the court below in light of the records and the above legal principles, the judgment of the court below which found the defendants guilty of the crime of intrusion into a structure is just, and there is no violation of the rules of evidence or incomplete deliberation as alleged in the grounds of appeal.

3. As to the third ground for appeal

The crime of abandonment of duties is established when a person has a duty to act in a specific manner under the recognition that the person has a duty to act, and the person has neglected his duty is not a case where a public official neglects an abstract duty by law, rule, etc., but a case where it is likely to impair the function of the State and cause damage to the people (see Supreme Court Decision 95Do748 delivered on April 22, 1997).

Examining the evidence admitted by the court below in light of the records and the above legal principles, since Defendant 1’s act of absence from work without permission from March 23, 2002 to April 29, 2002 on the ground of a major labor union meeting, etc., despite being a public official belonging to the Fair Trade Commission, constitutes a case where a public official abandons his duty without justifiable grounds, the court below’s judgment that found Defendant 1 guilty of the crime of abandonment of duty as alleged in the judgment of Defendant 1 is just and there is no error of law such as misapprehension of legal principles as alleged in

4. As to the fourth ground for appeal

Examining the evidence admitted by the court below in light of the records, since defendant 1 can be recognized as having attended an assembly of major labor union held on October 17, 2002, the judgment of the court below which found defendant 1 guilty of the crime of violation of the Local Public Officials Act due to the attendance at the above assembly as to defendant 1 is just, and there is no error of incomplete deliberation or violation of the rules of evidence as alleged in the grounds of appeal.

5. Ex officio determination

According to the reasoning of the judgment below ex officio, the court below convicted Defendant 2 of the charge of this case by applying Article 20 subparagraph 3 of the former Assembly and Demonstration Act (amended by Act No. 7123 of Jan. 29, 2004) and subparagraph 1 of Article 11 subparagraph 1 of the former Assembly and Demonstration Act (amended by Act No. 7123 of Jan. 29, 2004) to the part of the charge of this case that "the defendant 2 participated in the assembly of major labor union held in front of the latter part of the central office building of the government office building of the Jongno-gu, Jongno-gu, Seoul, Sejong Metropolitan City from May 11, 2002 to October 10:50."

However, Article 11 subparagraph 1 of the former Assembly and Demonstration Act, which applies to the crime of this part by the court below, has lost its retroactive effect by receiving a decision of unconstitutionality (2000HunBa67, 83) from the Constitutional Court on October 30, 2003, which is after the decision of the court below was made. In a case where the law or the law provisions on punishment retroactively become invalid due to the decision of unconstitutionality, the defendant's case prosecuted by applying the pertinent provision constitutes a case which does not constitute a crime (see Supreme Court Decision 91Do2825 delivered on May 8, 192) and the above conviction part against the defendant 2 cannot be maintained as it is.

Therefore, the part of the judgment of the court below against Defendant 2 should be reversed, and since the court below imposed the remaining part on Defendant 2 as concurrent crimes under the former part of Article 37 of the Criminal Act and imposed one punishment on Defendant 2, the part of the judgment of the court below against Defendant 2 should be reversed in its entirety.

4. Conclusion

Therefore, the part of the judgment of the court below against Defendant 2 is reversed, and that part of the case is remanded to the court below for a new trial and determination. Defendant 1’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)