[1] The limitation of an election campaign by a trade union permitted pursuant to Article 87 of the former Public Official Election and Prevention of Unlawful Election Act

[2] The meaning of "a person who is subject to his protection, direction and supervision due to business, employment or other relation" and "a person subject to coercion" in relation to interference with the freedom of election under Article 237 (1) 3 of the Public Official Election and Prevention of Unlawful Election Act

[3] The case holding that a worker who is a member of a trade union constitutes "a person who is under protection, direction, and supervision due to business, employment, or other relation" under Article 237 (1) 3 of the Act on the Election of Public Officials and the Prevention of Unlawful Election

[4] The case holding that the act of producing and distributing a prompt bulletin to strongly cope with members who do not comply with the resolution of the general meeting of the trade union to support a candidate of a specific political party constitutes coercion under Article 237 (1) 3 of the Act on the Election of Public Officials and the Prevention of Unlawful Election Act

[1] Article 87 of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of March 12, 2004) provides that a trade union shall not be prohibited from supporting, opposing, or opposing a specific political party or candidate during the election period, unlike a general organization. Thus, a trade union may decide to support or oppose a specific political party or candidate during the election period, and conduct an election campaign under the name of the trade union, and not only may the trade union decide to support or oppose a specific political party or candidate, but also recommend or persuade a trade union member to comply with the decision of the trade union to the extent that it is permitted as a part of the trade union's political activity. On the other hand, even if a trade union, which is not a political association with the inherent purpose of political activity, determines a political party or candidate supported or opposing through a resolution of the general meeting under Article 87 of the same Act and is allowed to conduct an election campaign in its name, it shall not be allowed to compel each member of the trade union beyond the limit of recommending or

[2] Article 237 (1) 3 of the Act on the Election of Public Officials and the Prevention of Election Malpractice provides that "a person who compels another person who is under his protection, direction, or supervision due to business, employment, or other relationship to support, recommend, or oppose a specific political party or candidate shall be punished as interference with the freedom of election. The legislative purpose of the Act is to protect the victim from being subject to protection, direction, or supervision unfairly so that the freedom of election is not infringed upon due to the status of the victim under his protection, direction, or supervision. Thus, where "a person under his protection, direction, or supervision" includes a person under actual protection, direction, or supervision, and where a legal or other organization is recognized as the subject of protection, direction, or supervision in relation to the member, the member shall be deemed to be a person under the protection, direction, or supervision of the representative agency or the institution performing the duties of protection, direction, or supervision, and "voluntary compulsion" under the above provision does not necessarily need to make it impossible or difficult to oppose the other party's resistance.

[3] The case holding that since an employee who is a member of a trade union is subject to the protection, direction, and supervision of a trade union or its chairperson, etc. in light of the trade union's rules, it is "a person who is under protection, direction, and supervision due to business, employment, or other relation" under Article 237 (1) 3 of the Public Official Election and Prevention of Unlawful Election Act.

[4] The case holding that a trade union's production and distribution of a news report to a member who does not follow the resolution of the general meeting of the trade union beyond supporting, opposing, supporting, or opposing a specific political party or candidate constitutes coercion to the extent that it interferes with the decision-making of each member's general meeting of the trade union, such as causing various disadvantages based on the internal control authority of the trade union, constitutes coercion to the extent that the trade union's production and distribution of a news report constitutes coercion

[1] Article 87 of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of March 12, 2004) / [2] Article 237 (1) 3 of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [3] Article 237 (1) 3 of the Act on the Election of Public Officials / [4] Article 237 (1) 3 of the Act on the Election of Public Officials and the Prevention of Unlawful Election

Defendant 1 and one other

Prosecutor

Law Firm Busan, Attorneys Yoon In-sap et al.

Busan High Court Decision 2003No291 delivered on December 17, 2003

The judgment below is reversed, and the case is remanded to Busan High Court.

1. Summary of the facts charged and the judgment of the court below

A. The summary of the facts charged of this case is as follows: Defendant 1, the chairperson of the non-indicted corporation, who is about 97% of the employees of the non-indicted corporation, and Defendant 2, the head of education publicity office, decided on June 13, 2002 to interfere with the election campaign of candidates from the labor union's democratic labor party in competition with the candidates from the labor union at the third time through the third time local election of Dong-dong local government, and on June 7, 2002, the defendant's act as election campaign worker at the entrance of the non-indicted corporation located in Ulsan-dong, Ulsan-dong, Seoul Special Metropolitan City, "in the event of Hanra election campaign," the defendant's act as a member of the non-indicted corporation's election campaign at the same time means to block benefits, such as various welfare and rewards, etc. implemented by the labor union by punishing the labor union's employees and to find out the candidate's desire to receive any unfavorable measures, such as the election campaign at the same time, or to receive any disadvantage from the candidate's.

B. The court below acknowledged that the Defendants produced and distributed a central dispute subrogation report containing the same content as the above facts charged. However, there is no evidence to acknowledge that the Defendants, including abnormal ex officio, confirmed the status of work of the candidates for the election campaign conducted by Korea National Assembly members, expressed their desire to take photographs at the election campaign site, or warn the union members to disclose a list of denial on the Internet to the public, and there is no attitude to refuse the support of the labor union and to Nonparty. The "protection, direction, and supervision relationship" under Article 237 (1) 3 of the Public Official Election and Prevention of Election Act (hereinafter referred to as the "Public Official Election Act") is difficult to recognize that the Defendants were forced to be subject to protection, direction, and supervision by one party or to the extent that they did not have any duty to protect or supervise the union members, and thus, it is difficult to view that the Defendants were forced to exercise such duty to the extent that they did not have any duty to protect or propagate the union members, and thus, it is difficult to say that the Defendants were forced to exercise such duty within the extent of harm or harm.

2. Judgment of the Supreme Court

A. The court below held that the evidence of the court of first instance alone is insufficient to acknowledge the fact that the defendants produced and distributed the Central Dispute Subrogation news, but the rest of the facts charged, namely, that the defendants confirmed the status of work as a candidate for the Hanrara election campaign under the Trade Union of this case under the Trade Union of this case under the involvement of the defendants, or showed the attitude of creating an atmosphere, warning disclosure of the disclosure of the information, refusing benefits and assistance at the Trade Union level, and allowing them to be excluded due to defamation. In light of the records, the court below's decision on this part is just and acceptable, and there is no error of law due to incomplete deliberation or violation of the rules of evidence, as argued in the Grounds for Appeal.

B. However, the decision of the court below that the defendants' production and distribution of the Central Dispute Subrogation Report cannot be held liable for interference with the freedom of election under Article 237 (1) 3 of the Public Official Election Act on the grounds as seen earlier for the following reasons.

(1) A trade union whose right to organize is guaranteed pursuant to Article 33(1) of the Constitution shall not be established in order to maintain its organization and achieve its objective, and the union shall have an internal control right to exercise a certain regulation and enforcement against union members within a reasonable extent as may be necessary and reasonable in order to secure the right to organize. Thus, it is reasonable to interpret that a trade union has an internal control right to exercise a certain regulation and enforcement against union members within the necessary and reasonable scope. However, a trade union is originally an entity or an associated organization organized for the purpose of maintaining and improving working conditions and enhancing workers’ economic and social status by becoming its principal agent (Article 2 subparag. 4 of the Trade Union Act). As such, a trade union is entitled to engage in political activities or social activities necessary for accomplishing its objectives, and with the same purport, Article 87 of the Public Official Election Act does not prohibit any act of supporting, opposing, supporting, or opposing a specific political party or candidate during the election period, unlike a general organization. Thus, a trade union is allowed to not only make a decision to support or oppose a specific political party or candidate in an election campaign.

However, in exercising its internal control, there is an inherent limitation that a trade union should not infringe on the essential contents or other constitutional values of the fundamental rights of a general citizen. In particular, under the modern liberal democracy political system based on representative democracy, elections are the most fundamental and essential means for the democratic participation of sovereign citizens, and thus, the act of participating in the election process within the meaning of exercising sovereign rights, and the political decision on which party or candidate should be supported or restricted for any other reason. Thus, even though a trade union, which is not a political association, whose inherent purpose is political activities, determines a political party or candidate supported or opposed through a resolution of a general meeting under Article 87 of the Public Official Election Act, and is able to carry out an election campaign in its name, it shall not be allowed to compel each member of the union beyond the bounds of recommending or opposing the resolution of a trade union.

(2) 그런데 공직선거법 제237조 제1항 제3호 는 '업무·고용 기타의 관계로 인하여 자기의 보호·지휘·감독하에 있는 자에게 특정정당이나 후보자를 지지·추천하거나 반대하도록 강요한 자'를 선거의 자유방해죄로 처벌하도록 규정하고 있는바, 그 입법 취지는 피해자가 보호·감독·지휘를 받는 지위로 인하여 선거의 자유가 부당하게 침해받지 아니하도록 보호하기 위하여 규정된 것이므로, 여기서의 '자기의 보호·지휘·감독을 받는 자' 중에는 사실상의 보호·지휘·감독을 받는 상황에 있는 자도 포함되고 법률상 법인 기타 단체가 그 구성원에 대한 관계에서 보호·지휘·감독의 주체로 인정되는 경우에는 그 구성원은 그 대표기관 내지 보호·지휘·감독업무를 수행하는 기관의 보호·지휘·감독을 받는 자에 해당한다고 볼 수 있는 것이다. 그리고 위 규정상의 '강요'는 반드시 상대방의 반항을 불가능하게 하거나 곤란하게 할 정도에 이를 필요는 없으며, 상대방의 자유로운 의사결정과 활동에 영향을 미칠 정도의 폭행이나 협박이면 충분하고 현실적으로 선거의 자유가 방해되는 결과가 발생하여야 하는 것은 아니라고 할 것이다 . 기록에 의하면, 이 사건 노동조합의 규약에도 조합원에게는 규약을 준수하고 제반 결의 및 지시사항에 따를 의무가 부과되어 있으며(규약 제14조 제1호), 조합원이 조합의 각종 결의사항을 위반하였을 때에는 운영위원회의 결의에 따라 징계할 수 있도록 정하고 있고(규약 제17조 제2호), 조합원이 조합활동을 하다가 신분 또는 그 외의 불이익을 당할 경우에는 피해보상을 하여야 하는 것으로 규정하여(규약 제15조 제1항) 조합원을 보호하고 있는바, 위에서 본 법리에 비추어 보면, 이 사건 노동조합에 가입한 조합원인 근로자는 공직선거법 제237조 제1항 제3호 에 정하여진 노동조합이나 그 위원장 등의 보호·지휘·감독을 받는 자에 해당하는 것으로 보아야 할 것이다. 나아가 원심이 확정한 사실과 기록에 의하면, 이 사건 노동조합은 총회의 결의로 공직선거에서 민주노동당의 후보를 지지하기로 결정하였음에도 불구하고, 조합원이나 그 가족들 중 개인적으로 노동조합의 결의와 달리 한나라당의 후보를 위하여 선거운동을 하는 경우가 있다고 알려지자 대의원대회 및 운영위원회 등에서 지지 후보자에 관한 노동조합의 결의에 따르지 아니하고 다른 정당의 후보를 위하여 선거운동을 하는 조합원 등에 대하여 제재를 가하자는 결의를 하였고, 그와 같은 결의에 따라 '정치실천단 부정선거 감시'라는 제목으로 "조합원과 조합원 가족 중 한나라당 운동원 적발될 시 강력 조치하겠다." "지난 조합원 총회와 대의원대회에서 결의된 바와 같이 오늘부터 정치실천단이 공식적인 활동에 들어간다. 막판 돈 살포 등 부정선거가 횡행하고 있다. 특히 우리 조합원과 조합원 가족들 중 노동자의 목줄을 죈 정리해고를 도입한 한나라당의 선거운동원으로 활동하는 사람에 대해 발각될 시 카메라로 채증, 신분을 확인하여 이후 노동조합에서 시행하는 각종 복지와 포상 등 각종 혜택을 차단할 것이다. 그리고 조합원이나 가족 중 신고자에 한하여 포상방안을 마련토록 할 것이다."는 내용이 기재되어 있는 중앙쟁대위 속보(제6호)를 발행하여 조합원들에게 배포하였고, 제3회 동시지방선거를 앞두고 조합원 중 한나라당의 선거운동을 하는 일부 사람에 대한 근무상황의 확인이 이루어지거나 선거운동과정에서 사진촬영과 비방 등이 있었으며, 노동조합의 홈페이지 자유게시판에는 한나라당 선거운동을 하는 조합원과 그 부인들을 비난하며 명단을 공개하겠다는 경고성 내용의 글이 실렸던 사실을 인정할 수 있는바, 이와 같은 속보 발행의 경위와 그 내용 등의 제반 사정에 비추어 보면, 이는 노동조합이 그 조합원에 대하여 특정 정당이나 후보자를 지지·반대하거나 지지·반대할 것을 권유하거나 설득하는 정도를 넘어서 노동조합 총회의 결의 내용을 따르지 아니하는 조합원에 대하여는 노동조합의 내부적인 통제권에 기초하여 여러 가지 불이익을 가하는 등 강력하게 대처하겠다는 내용으로서, 이는 조합원인 근로자 각자가 헌법상의 기본권인 선거권에 의하여 자주적으로 행사하여야 할 공직선거에 관한 의사결정을 방해하는 정도의 강요행위에 해당한다고 할 것이다.

Nevertheless, the judgment of the court below which acquitted the defendants on the grounds that the defendants are not in a position to protect, direct and supervise their members and that the defendants' act does not constitute an act of compelling the support or opposition of a specific political party or candidate. In so doing, the court below erred in the violation of Acts and subordinate statutes regarding the interpretation and application of Article 237 (1) 3 of the Public Official Election Act, which affected the conclusion of the judgment, and thus, the prosecutor's

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jack-dam (Presiding Justice)