[1] Whether Article 58 (1) of the former Local Public Officials Act prohibiting collective action against public officials in non-career service under the same Act, other than public service, applies (affirmative), and whether Article 82 of the same Act, which is the criminal punishment provision for such violation, applies (negative)

[2] Where a person who does not have the status of a local public official processes a crime committed by a local public official under Article 82 of the former Local Public Officials Act in violation of Article 58(1) of the former Local Public Officials Act, whether he/she may be punished as an accomplice under the main sentence of Article 33 of the Criminal Act (affirmative), and whether a public official in non-career service may be punished as an accomplice of a public official in career service in violation of Article 82 of the former Local Public Officials Act (affirmative)

[1] Article 2 of the former Local Public Officials Act (amended by Act No. 10700, May 23, 201; hereinafter the same shall apply) separate public officials from those in career service (public officials appointed with performance and qualification and whose status is guaranteed) and those in non-career service (public officials other than those in career service). Article 3(1) main text of the former Local Public Officials Act provides that “This Act shall not apply to those in non-career service, except as otherwise expressly provided for in Articles 31, 44 through 46, 46-2, 47 through 59, 61, and 74 through 79, and shall not apply to those in non-career service, unless otherwise specifically provided for in this Act and other Acts, and shall not apply to those in non-career service, and shall not apply to those who are in special career service, with the exception of those provided for in Articles 6 through 59 of the former Local Public Officials Act, and shall not apply to those who are subject to the penal provisions of Chapter 3 of the Local Public Officials Act.

[2] The main text of Article 33 of the Criminal Act provides that "the act processed to commit an offense established on the basis of status shall be applied to a person who does not have personal status." Thus, even if a person is not a local public official, he/she may be punished as an accomplice. The main text of Article 58 (1) of the former Local Public Officials Act (amended by Act No. 10700, May 23, 201; hereinafter the same shall apply) limits the person as a local public official. However, Article 82 of the former Local Public Officials Act prohibited under Article 58 (1) of the former Local Public Officials Act provides that "the act of processing a crime established on the basis of status shall be punished as an offender's body or as a collective act for any other purpose than public service," and it does not mean that Article 82 of the same Act punishing a person who is not a local public official is punished as an accomplice in non-career service solely on the ground that he/she violates Article 58 (1) of the former Local Public Officials Act.

[1] Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Articles 2, 3(1), 58(1), and 73-3 of the former Local Public Officials Act (Amended by Act No. 10700, May 23, 2011); Article 82 of the former Local Public Officials Act (Amended by Act No. 10147, Mar. 22, 2010) / [2] Article 33 of the Criminal Act; Article 58(1) of the former Local Public Officials Act (Amended by Act No. 10700, May 23, 2011); Article 82 of the former Local Public Officials Act (Amended by Act No. 10147, Mar. 22, 2010)

[2] Supreme Court Decision 2004Do5839 Decided October 13, 2005, Supreme Court Decision 2006Do3150 Decided July 12, 2007

Defendant

Prosecutor

Attorneys Jeong Ho-eng et al.

Gwangju District Court Decision 2010No1111 Decided October 18, 2010

The judgment of the court below is reversed, and the case is remanded to the Gwangju District Court Panel Division.

The grounds of appeal are examined.

1. As to the application of Article 82 of the Local Public Officials Act

Article 2 of the former Local Public Officials Act (amended by Act No. 10700, May 23, 201; hereinafter referred to as the “former Local Public Officials Act”) separate public officials from those in career service (public officials appointed according to their performance and qualification and whose status is guaranteed) and those in non-career service (public officials other than those in career service). Article 3(1) main text of the former Local Public Officials Act provides that Articles 3(1) and 46-2, 46-3, 47 through 59, 61, and 74 through 79 of the former Local Public Officials Act shall not apply to those in non-career service, except as otherwise provided for in this Act and other Acts, with the exception of those prescribed in Articles 31, 44 through 46-2, 46-3, 47 through 59, 64 through 79 of the former Local Public Officials Act, and shall not apply mutatis mutandis to those in non-career service and other relevant provisions prescribed by Presidential Decree.

Article 58(1) of the former Local Public Officials Act prohibiting collective action against public officials in non-career service, but Article 82 of the former Local Public Officials Act, which is a criminal provision against such offense, does not apply to public officials in non-career service, comprehensively taking into account the contents of the former Local Public Officials Act’s system and the principle of no punishment without law that penal provisions should be specific and clear.

The court below's decision that Article 82 of the former Local Public Officials Act, which is a criminal provision, cannot be applied to Defendant's violation of Article 58 (1) of the former Local Public Officials Act, which is a public official in non-career service under the former Local Public Officials Act, is just in accordance with the above legal principles, and there is no violation of law by misapprehending the legal principles as to the scope of application of Article 82

2. As to the application of the main sentence of Article 33 of the Criminal Act

The main text of Article 33 of the Criminal Act provides that "the act of processing a crime to be established on the ground of status shall be applied to a person who does not have such status." Thus, even if a non-identification person is punished as an accomplice. The main text of Article 58(1) of the former Local Public Officials Act restricts the person in charge of the crime, but the form of "labor movement or other collective action for activities other than official duties" prohibited under the above provision of the same Act is limited to a local public official. Since Article 82 of the same Act does not have any important meaning as a personal element of the offender, it cannot be deemed that Article 82 of the same Act punishing the above act is punishable only where a local public official himself/herself commits the above act. Therefore, if a person who does not have the status of a local public official processes a crime of a local public official punished pursuant to Article 82 of the former Local Public Officials Act in violation of Article 58(1) of the same Act, he/she may be punished as an accomplice pursuant to the main sentence of Article 33 of the Criminal Act.

In light of the above legal principles, even in cases of public officials in non-career service under the former Local Public Officials Act that does not apply Article 82 of the former Local Public Officials Act, if processed to commit a crime by a public official in career service in violation of the above legal provisions, it shall be deemed that such a person may be punished as an accomplice pursuant to the main sentence of Article 33 of the Criminal Act, and it shall not be deemed that Article 82

Nevertheless, the lower court recognized that the main sentence of Article 33 of the former Local Public Officials Act was not applied to public officials in non-career service under the former Local Public Officials Act solely on the ground that Article 82 of the former Local Public Officials Act is not applied directly, and thus, joint principal offenders with those in career service cannot be established. In so doing, the lower court erred by misapprehending the legal doctrine on status offenders and accomplices

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 Yang Chang-soo (Presiding Justice)