[1] Whether Article 58(1) of the Local Public Officials Act essentially infringes on the three labor rights of the public official, thereby unconstitutional (negative)

[2] The meaning of "act which does not violate social norms" under Article 20 of the Criminal Code, and the elements for establishing a justifiable act

[1] Article 58 (1) of the Local Public Officials Act, Article 33 (2) of the Constitution / [2] Article 20 of the Criminal Act

[1] Constitutional Court en banc Decision 2003HunBa50, 2003HunBa62, 2004HunBa96, 2005HunBa49 decided Oct. 27, 2005 (HunGong109, 1109) / [2] Supreme Court Decision 2003Do3000 decided Sept. 26, 2003 (Gong2003Ha, 2132) (Gong2004Ha, 1615) decided Aug. 20, 2004

Defendant 1 and three others

Defendants

Attorneys Kim Young-deok et al.

Chuncheon District Court Decision 2005No65 decided May 12, 2005

All appeals are dismissed.

1. The court below acknowledged the defendants' act as a collective act under Article 58 (1) of the Local Public Officials Act on the grounds as stated in its reasoning. In light of the records, the judgment of the court below is justified and there is no error of law such as misunderstanding of legal principles as to Article 58 (1) of the Local Public Officials Act as alleged in the ground of appeal.

2. The reservation to be made by the Act on the scope of public officials whose three labor rights are guaranteed under Article 33(2) of the Constitution is to guarantee a reasonable public official system in consideration of the status of public officials as servants for the entire citizens and their impartiality in their duties, and to coordinate the rights and interests of interested parties, such as sovereign holders, etc. related to the public official system for the purpose of public welfare. Article 58(1) of the Local Public Officials Act provides that "public officials shall not engage in any collective action for any labor campaign or other work other than public services, except for those who actually engage in labor: Provided, That the same shall not apply to those who actually engage in labor." The reservation to be made by Act on the scope of public officials whose three labor rights are guaranteed under the above purport is restricted to the three labor rights of public officials, and shall not be deemed to have violated the three labor rights of public officials in essence (see Constitutional Court Order 2003HunBa50, 203HunBa62, 2003, 204HunBa96, 49)

In the same purport, the court below is justified in rejecting the Defendants’ assertion that the Defendants’ three labor rights of this worker under Article 58(1) of the Local Public Officials Act are in violation of the Constitution, and there is no violation of the unconstitutionality of Article 58(1) of the Local Public Officials Act as otherwise alleged in the ground of appeal.

3. [2] The phrase "act which does not violate the social rules" under Article 20 of the Criminal Act refers to the act which can be accepted in light of the overall spirit of legal order, or the social ethics or social norms in its hinterland, and whether a certain act is justified as an act which does not violate the social rules, and thus, the illegality should be excluded, based on specific circumstances and circumstances, should be determined individually and reasonably. Thus, for recognition of such legitimate act, the requirements such as the motive or justification of the act, the legitimacy of the act, the means or method of the act, the reasonableness of the means or method thereof, the balance of the legal interests of the protected interest and infringed interest, urgency, and any other means or method other than the act (see, e.g., Supreme Court Decision 2003Do300, Sept. 26, 2003).

In light of the above legal principles and records, we agree with the judgment of the court below that the defendants' act does not constitute a justifiable act, and there is no error of law such as misunderstanding of legal principles as to a justifiable act, as alleged in the ground of appeal.

4. In light of the records, the defendants' collective action with the exception of the total strike portion cannot be deemed to have either been punished or extinguished, and the defendants cannot be deemed to have no awareness of illegality. Therefore, the appeal to this point is without merit, on the ground that the Act on the Establishment and Operation of Public Officials' Unions was enacted and implemented.

5. The court below held that the prod square prior to the viewing of the East Sea constitutes an outdoor place as "a place with no ceiling or with no erosion control closed," and that the fact that Defendant 1 had known that the prod square prior to the viewing of the East Sea constitutes an outdoor place is merely a mere assertion of a legal site that it does not obstruct the establishment of a crime. In light of the records, the court below's evidence preparation, fact-finding and determination are acceptable, and there is no error of law such as misunderstanding of facts due to the violation of the rules of evidence, or errors in the law as alleged in the grounds of appeal.

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

Justices Kim Yong-dam (Presiding Justice)