(영문) 수원지방법원 2007.8.30.선고 2007고정1290 판결

If the Defendants did not pay each of the above fines, the Defendants shall be confined in the Labor House for the period calculated by converting the amount of KRW 50,000 into one day.

Two days of detention prior to the pronouncement of this judgment shall be included in the period of detention in the workhouse for each of the above fines of the Defendants.

2. Of the facts charged in the instant case against Defendant 1 through 10, the point of obstructing the performance of special official duties, and Defendant 11 through 13, are acquitted.

Reasons

Criminal facts

Defendant 1 through 10 are public officials belonging to each department, and public officials are not allowed to engage in any collective action for labor campaign or any other work except public service, despite being asked to voluntarily close the office of the National Public Officials' Union (hereinafter referred to as the "Special Labor Union") and the office of the Ycheon-si branch from around August 18, 2006. Defendant 1 through 10 refused to accept the request even though they were sent to the major around September 15 of the same year, they refused to receive the request, and to stop the vicarious execution of administrative execution on the office of the Special Labor-Management and the Ycheon-si branch on September 27 of the same year. In collusion with Nonindicted Party A on September 27, 2006, Defendant 206.

09: From 00 to 11:10 on the same day, the office of the central office of the Dongcheon-si, the three major departments of the Dongcheon-si, the office of the Dongcheon-si, the office of the main office of the Dongcheon-si, and the defendant 1 to 10 on the part of the non-indicted A, and the public officials belonging to the Dongcheon-si, such as B, etc., who notify and implement the execution of the vicarious administrative execution in order to close the office of the Dongcheon-si, the major, together with the non-indicted A, shall be sealed in both hands, and the public officials belonging to the Dongcheon-si, such as B, etc. who wish to carry out the vicarious administrative execution in order to close the office of the Dongcheon-si, the office was stored at the entrance of the above office and corridor, fastened with the office entrance, and

Summary of Evidence

1. Defendants’ respective legal statements

1. Partial statement of the suspect interrogation protocol of the public prosecutor A;

1. The Defendants’ partial statement of each police interrogation protocol

1. Statement made to C by the police statement;

1. Illegal occupation, office, closure and guidance of public officials or organizations;

1. A certificate of receipt of the fraternity, written credit card, and written credit card;

1. Notification of the implementation of administrative vicarious execution by administrative vicarious execution of offices of the branch offices of the Gyeonggi-si branch offices of each Korean Government Workers' Union

1. A warrant for vicarious execution or certificate of receipt of vicarious execution;

1. All on-site photographs;

Application of Statutes

1. Article applicable to criminal facts;

Articles 82 and 58(1) of the Local Public Officials Act, Article 30 of the Criminal Act

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

Article 57 of the Criminal Code

The acquittal portion

1. Facts charged;

Of the facts charged of this case against Defendant 1 through 10, the facts charged of this case against Defendant 1 and Defendant 11 through 13 are as follows: “Defendant 1 through 10 shall be as public officials belonging to each department, and Defendant 11 shall be as the head of the department of major labor-related city branch; Defendant 12 shall be as the head of the Si Council; Defendant 13 shall be as the head of the committee of democratic labor-related City; Defendant 13, as the head of the committee of the Si Council; Defendant 13 shall be as the major labor-related branch of the Si Council; Defendant 1 shall be as public officials belonging to the 3,000 City/Gu office; Defendant 1,000 City office and the 1,000 City office and the 3,000 City office and the 1,000 City office and the 1,000 City office and the 1,000 City office and the 1,000 City office and the 1,000 Gu office and the 20.

2. The Defendants’ major labor-management-management-based branch is an out-of-law labor-management-related group whose substance is recognized by joining a large number of subordinate public officials, and as such, the Docheon-si branch has actually permitted the use of the office of the major labor-management-based branch, the use of the office of the major labor-management-based branch is unlawful to exclude the public property and the Commodity Management Act. Since the instant administrative execution does not meet the requirements under the Administrative Vicarious Execution Act, the act of the public officials who intend to conduct administrative vicarious execution does not constitute legitimate public duties protected by the crime of obstruction of performance of official duties. Accordingly, the Defendants cannot be held liable for special obstruction of performance of official duties against the act of preventing such unlawful performance of official duties.

Even if the administrative vicarious execution of this case is lawful, the defendants are engaged in passive resistance against illegal administrative vicarious execution. Thus, the defendants are erroneous as to the presumed facts of the grounds for denying illegality. Thus, the defendants cannot be punished as special obstruction of performance of official duties.

3. Determination

(a) Relevant statutes;

As shown in the attached Form.

B. Determination

1) As to whether a major labor union constitutes a so-called non-governmental labor union, there is a conflict of opinion about the legal status of workers' organizations who have met the substantive establishment requirements under Article 2 subparagraph 4 of the Trade Union Act (hereinafter referred to as the "Labor Union Act"), but have not reported the establishment. However, such a union may enjoy the protection or benefits under the Constitution, which is subject to guarantee of the right to organize pursuant to Article 33 (1) of the Constitution (e.g., collective bargaining right, right to conclude collective agreements and right to exempt civil and criminal liability), and the Trade Union Act provides that the Trade Union Act shall apply only to a trade union, the establishment of which has been reported (e.g., Article 7 (1)), ② the use of trade union name (Article 7 (3)), and ③ the benefit of tax exemption under tax law (Article 8).

Meanwhile, Article 33(2) of the Constitution reserving the scope of labor rights of public officials guaranteed by the Act is intended to coordinate the integration of the rights and interests of interested parties, such as the status of public officials as a servant for the entire citizens and sovereign rights and interests of public officials. Article 58(1) of the Local Public Officials Act provides that "no public official shall engage in any collective activity for any labor campaign or activities other than public services, unless it is a public official." However, the purport of the above provision is to restrict the three labor rights of public officials in accordance with the above purport, and it cannot be deemed that it goes beyond the scope of discretion granted to the legislative authority, and it does not fall within the essence of the three labor rights of public officials (see Constitutional Court Decision 2003HunBa50, 203HunBa62, 2003HunBa62, 2004HunBa49, Oct. 27, 200), and Article 58(1) of the Act on the Establishment and Operation of Public Officials' Unions, and Article 16(6) of the Labor Union Act does not apply.

The purpose of this case is to secure collective action rights, etc. of public officials who are not allowed to join a trade union beyond the scope permitted by the Act on the Assistance to Public Officials' Unions, and to guarantee collective action rights, etc. of public officials who are legally prohibited regardless of before or after the enactment of the Act on the Assistance to Public Officials' Unions. Although the Government urged such organization to convert it into the Joint Labor Union under the Act on the Assistance to Public Officials' Unions after the enforcement of the Act on the Assistance to Public Officials' Unions, the Government refused major labor and collective bargaining on the ground that the major labor union was not converted into the Joint Labor Union under the Act on the Assistance to Public Officials' Labor Unions. In light of the fact that the major labor union refused collective bargaining on the ground that the major labor union was not converted into the Joint Labor Union under the Act on the Assistance to Public Officials' Labor Unions, it is difficult to see that the major labor union did not meet the substantial requirements for the establishment of the Act on the Assistance to Public Officials, but it is difficult to see that the so-called 2,000 office has legitimate authority.

According to the records, the 4th floor of the viewing building was provided to the Dongcheon-si Branch of the Work Council as its office, and thereafter, the employees council of the Dongcheon-si Branch decided to convert the 3th floor of the viewing building into the Dongcheon-si Branch of the Work Council and changed the location of the office. At the time of this case, the major labor union of the work council and the Mancheon-si Branch of the Work Council can use the office located in the 3th floor of the viewing building as its office. In light of the above fact that the major labor union of the Dongcheon-si Branch is a lawful organization in accordance with the Act on the Establishment and Operation of the Work Council of Public Officials, and that the Major labor union of the Dongcheon-si Branch is not permitted by the Labor Union of the Public Officials Act, as seen above, it cannot be deemed that the Dongcheon-si Branch permitted the use of the office of the major labor union of the Dongcheon-si branch of the Public Officials' Labor Union, and the public property and Commodity Management Act Article 6 (1) and Article 25 of the same Act.

In addition, in order to apply the principle of trust protection to the acts of an administrative agency in administrative legal relations, the first administrative agency should name the public opinion that is the object of trust to an individual; second, the administrative agency's opinion opinion that is justifiable and trusted; third, the individual should have trusted the opinion opinion that is the object of trust to the individual; third, the administrative agency should have conducted any act corresponding thereto; fourth, the administrative agency's disposition that is contrary to the above opinion opinion that is contrary to the above opinion opinion that is in violation of the interests of the individual who trusted the opinion opinion opinion should be infringed; last, when taking an administrative disposition in accordance with the above opinion statement, the office of this case should not be deemed to be an administrative disposition that is likely to seriously undermine the public interest or a third party's legitimate interest (see Supreme Court Decision 2004Du46, Jun. 9, 2006). In light of the opinion that the office of this case is an administrative property owned by the local government and should be used for the affairs of the local government; the office of this case and the opinion that the public opinion and the labor union of this case cannot be viewed prior to the public opinion or the opinion.

On the other hand, in the case where the major of the overcheon City Branch's major is also deemed to fall under the cancellation of permission for use and profit-making in the office of this case for the overcheon City Branch's request for the evacuation of the office of this case for the overcheon City Branch's office, the employees council of the overcheon City Branch's workplace and the Dongcheon Branch's office's use of and profit-making in the overcheon City Branch's office, as alleged by the Defendants, in general, in the case of an infringing administrative disposition by an administrative agency, the hearing shall be held unless the hearing is not held, and the disposition lacking the procedure shall be deemed to be unlawful. However, as seen above, even if the overcheon City Branch permitted the use of the office of the overcheon City Branch's office's own statement, as stated by the Defendants, the employees council and the Seocheon Branch's subsequent

23. In a case where the general meeting of the workplace council decided to convert the company into a major labor union-level branch, it is deemed that there is no entity at the time the permission for use and profit-making was revoked, and the procedure for the hearing is unnecessary. Furthermore, even if the procedure for the hearing is necessary, such defect is merely a ground for revocation, and such revocation does not become null and void as a matter of course. 3) As to whether the administrative vicarious execution of this case constitutes legitimate execution of official duties

The crime of obstruction of performance of official duties is established only when the execution of official duties by a public official is legitimate. The legitimate execution of official duties refers to not only the abstract authority of a public official, but also the legal requirements and methods for the specific performance of official duties. Thus, even if a public official resisting a public official performing a duty lacking legitimacy, this case's administrative vicarious execution, which was interfered with by the defendants' act, is a legitimate performance of official duties, should be examined as to whether the administrative vicarious execution of this case's interfered with the defendants' act is a legitimate performance of official duties. ① Article 2 of the Administrative Vicarious Execution Act is directly ordered by the Act (including an order issued by a statutory delegation, a municipal ordinance issued by a local government), or by an order issued by an administrative agency under the Act, and it is difficult to secure the performance of duties by other means, and if it is deemed that the failure is considerably detrimental to the public interest, the administrative agency may order the person under obligation to act by himself or by having a third party to do so and collect the expenses from the person under obligation to act by proxy or by proxy.

In other words, if the provisions of the Act and subordinate statutes stipulate the prohibition of the act and enforcement of the Act and subordinate statutes are violated, the Act and subordinate statutes stipulate the authority of the administrative agency to directly order the destruction of the offices and their performance of such duties by the time limit of 00,000 won (for example, Article 69 of the Building Act, Article 67 of the Road Act, Article 10 of the Outdoor Advertisements, etc. Control Act). In addition, if the Act and subordinate statutes do not stipulate the duty of the administrative agency to directly remove the offices and their performance of such duties by the time limit of 0,000,000 won, the Act and subordinate statutes are not applicable to the above order of the administrative agency for the removal of the offices and their performance of such duties, and the Act and subordinate statutes are not applicable to the above order of the administrative agency for the removal of the offices and their performance of such duties by the time limit of 9,000 won, and the Act and subordinate statutes are not applicable to the order of the administrative agency for the removal of the offices and its performance.

If so, this part of the facts charged on the premise of legitimate performance of official duties constitutes a case where there is no proof of crime, and thus, the court acquitted the Defendants under the latter part of Article 325 of the Criminal Procedure Act