[1] Whether “a crime in which a public official or a teacher of a private school becomes a party member” under Articles 53 and 22(1) of the former Political Parties Act and “a crime in which a public official joins a political party or any other political organization” under Articles 82 and 57(1) of the former Local Public Officials Act is an immediate crime (affirmative)

[2] In a case where the defendant was prosecuted for violating the former Political Parties Act and the former Local Public Officials Act prohibiting a public official from joining a political party by maintaining his status as a local public official even after he was appointed as a local public official, the case affirming the judgment below which found the defendant not guilty on the ground that it is necessary to punish him as a crime of violating Articles 53 and 22(1)1 of the former Political Parties Act and Articles 82 and 57(1) of the former Local Public Officials Act

[1] Articles 22(1) and 53 of the former Political Parties Act (Amended by Act No. 10866, Jul. 21, 2011); Articles 57(1) and 82 (see current Article 82(1) and (2) of the former Local Public Officials Act (Amended by Act No. 10700, May 23, 2011); Articles 22(1)1 and 53 of the former Political Parties Act (Amended by Act No. 10866, Jul. 21, 201); Articles 57(1), 82 (see current Article 82(1) and (2) of the former Local Public Officials Act (Amended by Act No. 1070, May 23, 201); Article 325 of the Criminal Procedure Act

[1] Supreme Court Decision 2012Do12867 Decided May 16, 2014 (Gong2014Sang, 1254) Supreme Court Decision 2013Do828 Decided May 16, 2014 (Supreme Court Decision 2013Do929 Decided May 16, 2014)

Defendant

Prosecutor

Attorney Cho Yong-chul

Gwangju High Court Decision 2012No395 decided August 22, 2013

The appeal is dismissed.

The grounds of appeal are examined.

A public official or a teacher of a private school under Articles 53 and 22(1) of the former Political Parties Act (amended by Act No. 10866, Jul. 21, 2011; hereinafter “ Political Parties Act”) is a crime in which a person becomes a member of a political party or a teacher of a private school, and a crime in which a public official under Articles 82 and 57(1) of the former Local Public Officials Act (amended by Act No. 10700, May 23, 2011; hereinafter “Local Public Officials Act”) joins a political party or any other political organization is an immediate crime in which a public official becomes a member of a political party and is completed simultaneously (see Supreme Court Decision 2012Do12867, May 16, 2014, etc.).

The lower court upheld the first instance judgment that acquitted a public official of a violation of the Local Public Officials Act and the charges of violation of the Political Parties Act due to legitimate accession on the ground that Article 53 and the proviso of Article 22(1)1 of the Political Parties Act prohibit a public official from becoming a member of a political party, and Articles 82 and 57(1) of the Local Public Officials Act prohibit a public official from joining a political party. In addition to the form of the provision, and the crime of violation of the Local Public Officials Act and the crime of violation of the Political Parties Act are immediately committed, in full view of the circumstances as indicated in its holding, the lower court affirmed the first instance judgment that acquitted a public official on the grounds that the Defendant maintained his status as a local public official before becoming a local public official after being appointed as a local public official, on the ground that it does not constitute a violation of the prohibition provisions of the Local Public Officials Act and the Local Public Officials Act.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s aforementioned determination is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the crime of violating the Local Public Officials Act

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)