In a case where the Defendants, as public officials of the Korean Teachers’ Union, announced the text of the Assembly with the teachers’ signature, and participated in the assembly such as the Blue Blue Blue Blue Blue Blue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue,

With respect to the facts of violation of Article 84 of the former State Public Officials Act (amended by Act No. 10148, Mar. 22, 2010) which was a public official of the branch of the Korean Teachers’ Union, the Court found the Defendants guilty on the ground that the Defendants’ act constitutes “collective act that may affect the duty of care in good faith for the purpose contrary to the public interest” under Article 66(1) of the same Act, which constitutes “collective act for the purpose other than public service” and “collective act for the purpose other than public service” under Article 66(1) of the same Act, where the Defendants’ act constitutes “collective act for the purpose other than public service” under Article 66(1) of the same Act, which is a “collective act for the purpose other than public service” and “a justifiable act”.

Articles 65, 66(1), and 84 of the former State Public Officials Act (Amended by Act No. 10148, Mar. 22, 2010); Article 4 of the Act on the Establishment, Operation, etc. of Public Officials’ Unions; Article 3 of the Act on the Establishment, Operation, etc. of Teachers’ Unions; Articles 6(1) and 14(4) of the Framework Act on Education; Article 20 of the Criminal Act; Articles 7(2), 21(1), and 31(4) of the Constitution

Supreme Court Decision 90Do2310 Decided February 14, 1992 (Gong1992, 1078) Supreme Court Decision 98Do662 Decided May 12, 1998 (Gong1998Sang, 1689), Supreme Court Decision 2003Do2960 Decided April 15, 2005 (Gong2005Sang, 783), Supreme Court Decision 2007Do1104 Decided March 14, 2008, Supreme Court Decision 2006Du16786 Decided June 23, 2009, Constitutional Court en banc Decision 2003Hun-Ba51, 205Hun-Ba1, 205Hun-Ga6 Decided August 30, 2007 (Hun-Ga131, 131, 936)

Defendant 1 and three others

Lee Young-Nam

Attorney Shin Young-chul

Defendant 1 shall be punished by a fine of KRW 1,00,00, and by a fine of KRW 700,000.

When Defendant 1, 2, and 3 did not pay each of the above fines, the above Defendants shall be confined in the workhouse for a period calculated by converting 50,000 won into one day.

The pronouncement of a sentence against the defendant 4 shall be suspended.

1. The Defendants’ co-principal

[The Assembly of Second Declarations No. 606, 2009, 512: June 18, 2009]

Defendant 1 is the chief of the Korean Teachers’ Union (hereinafter referred to as the “Korean Teachers’ Union”), the chief site director of the above branch of the State public official who is the teacher of the ASEAN Elementary School, Defendant 2 as the state public official who is the teacher of the ASEAN Elementary School, Defendant 3 as the state public official who is the teachers of the above branch office, and Defendant 4 as the state public official who is the teachers of the foregoing branch office, and Defendant 4 as the state public official who is the Macheon High School teacher. The former principal school is the teachers’ union under the Act on the Establishment, Operation, etc. of the Teachers’ Union (hereinafter referred to as the “School Labor Union Act”). The former school is the teachers’ union under the Act on the Establishment, Operation, etc. of the Teachers’ Union (hereinafter referred to as the “School Labor Union Act”). The former school is established in the headquarters and its affiliated branch offices by 16 branch offices, such as Seoul, Busan, Daegu, Chungcheongnam, Chungcheongnam-do, Jeonnam, Jeonnam, Jeonnam, North, and Gun, 9754 branch offices affiliated.

On June 9, 2009, at the meeting of the 360 Central Execution Committee, which was held at the office of the 360th Central Execution Committee at the Jeon school’s headquarters, passed a resolution to criticize the present government’s policies and demand the government to reform the government’s policies. The Jeon school assistant’s signature was finished by the 17th day in each branch, and the teachers’ name was sent to the branch, and it is possible for non-members to send it by facsimile. The school branch sent to the head of each school branch by facsimile a letter “the teacher’s name was known.” By June 17, 2009, the head of each school branch reported the number of persons participating in the government declaration and list as the head of the headquarters.” At the same time, the Defendants expressed the government’s policy with respect to the teachers and the executives belonging to the school and the members of the government upon the request of the former members of the government.

On June 12, 209, the Defendants: (a) at the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Blue branch of the Republic of Korea: (b) the Blue branch of the Blue branch of the Blue branch of the Republic of Korea.

Ultimately, the Defendants conspired with the full-time assistant executives and their teachers to engage in collective action for activities other than official duties.

2. Joint principal offenders by Defendant 1, 2, and 3;

[Participation in the Second Declaration and Assembly on July 19, 2009]

On June 18, 2009, the First Declaration was issued, and the Ministry of Education, Science and Technology decided on the disciplinary policy against the participating teachers. On June 28, 2009, the previous Department of Education, Science and Technology decided on the disciplinary measure against the participating teachers. On the contrary, the previous Department of Education, Science and Technology decided to hold a meeting of the Jeon school’s headquarters in Seoul, and the 361 Provisional Central Executive Committee meeting in Seoul, and the 16 branch heads such as Defendant 1, etc. were present as the central executive members.

On July 1, 2009, the Defendants approved by the Defendants, along with the teachers’ letter of “satisfing the pressure of teachers at the city level and guaranteeing the freedom of expression” in the documents under the title of “the second teachers’ execution plan notification” at the office of the Jeon school assistant branch,” which was signed by the teachers from June 30 to July 15, 2009, and submitted it to the Jeon school assistant branch with the signature of the teachers.

Around 14:00 on July 19, 200, the previous school group announced a press meeting containing the contents of the Assembly and Demonstration, “The previous school group shall continue to make continuous efforts and accusations to confirm the legitimacy of the Assembly and the strong strike to withdraw disciplinary action,” and the previous school group’s 20 executives, who are the chairman of the previous school group. After the previous school group’s formation, the previous school group announced the press meeting’s notice on the title “The Assembly and Demonstration for Democratic Protection” under the name of 28,634 teachers (hereinafter “the Second Assembly and Demonstration”). On the same day, the previous school group posted the above press meeting and a letter on the Internet homepage of the previous school group. The key contents of the above Assembly and Demonstration were criticism as unconstitutional abuse of public power, and demand the first Assembly and Demonstration’s disciplinary measure against the freedom of expression under the Constitution, and demand the withdrawal of the teachers and the withdrawal of the Assembly and Demonstration.

The First Declaration was held with the purport of opposing the government’s sanctions against the First Declaration and the First Declaration from July 19, 2009 to July 17:00 of the same day, which was the prior event of “In-depth and Public Officials’ Before the 1,100 members belonging to the Jeon school, 150 members belonging to the public-private partnership, 100 members belonging to the public-private partnership, 100 members belonging to the public-private partnership, and 50 members belonging to the court and labor union.” The Defendants participated in the Second Declaration from around 17:00 to around 19:00. The Defendants participated in the Second Declaration at the same place (hereinafter “instant assembly”).

As a result, the Defendants conspired with the full-time assistant executives and the affiliated teachers, etc. to collectively engage in activities other than official duties.

1. Defendants’ respective legal statements

1. Protocol concerning the examination of suspect by some prosecutors against the Defendants

1. Each prosecutorial statement concerning Nonindicted 1

1. Each police statement of Nonindicted Party 2 (Duplicate)

1. Materials pertaining to the assembly and demonstration, such as the organization of a former school aid, the public notice of the assembly and demonstration, the public notice given by the former school aid branch, the name of the teachers, the meeting minutes of the 360 Central Commission, the materials pertaining to the 361 Emergency Central Commission, and the result of the National Secretariat’s meeting (each copy)

1. Results of communications confirmation inquiries;

1. Relevant legal provisions concerning criminal facts;

Articles 84 and 66(1) of the State Public Officials Act

1. Selection of punishment;

Each fine;

1. Aggravation (Defendant 1, 2, and 3);

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Code

1. Suspension of sentence (Defendant 4);

Article 59(1) of the Criminal Act (Suspension of Punishment: Fine of 500,000 won, and Fine of 50,000 won per day converted from detention in a workhouse)

1. Determination on the legal assertion of litigation

A. unspecified facts charged

The Defendants’ defense counsel asserts that the indictment of this case is unlawful on the following grounds: (a) what constitutes “collective act” seeking punishment against the Defendants in the facts charged in the instant case; (b) whether the content thereof stated the motive, background, process, and other circumstantial facts; and (c) whether the act meeting the requirements for the formation of the crime directly stated is not specific.

Article 254(4) of the Criminal Procedure Act, which restricts the object of a trial against the court and facilitates the exercise of the right to defense by specifying the date, time, place, and method of the crime, is sufficient to include the facts constituting the element of a crime in the facts charged (see Supreme Court Decision 2007Do7700, Jan. 18, 2008, etc.). In addition, insofar as the contents of the indictment do not violate the principle of an indictment only in light of the type and contents of crime, it is inevitable to allow the Defendants to enter the same elements as the background and circumstance of the case within a certain extent, and the contents of the indictment in the indictment to the extent that it does not clearly affect the Defendants’ right to defense by submitting the background or circumstance of the crime in which the Defendants did not exercise their right to defense, etc. as stated in the facts charged (see, e.g., Supreme Court Decision 2007Do7700, Jan. 18, 2008).

B. Violation of the principle of indictment only

(1) The Defendants and the defense counsel stated in the instant indictment that “the Defendants had the intent to criticize government policies and to participate in the assembly and demonstration” may be mistaken for the Defendants to believe that they reached the instant case while they had a usual and anti-government opinion, and that this constitutes a violation of the principle of an indictment only because they are written in the indictment that may cause prejudice to the Tribunal.

However, the indictment to the effect that “for the purpose of criticism against government policies, with the desire to participate in the assembly and demonstration,” is merely a description of the motive and conspiracy of the Defendants in the instant assembly and demonstration, and it cannot be deemed that the above facts stated in the indictment can be an obstacle to grasping the substance of the crime, which is likely to cause the Defendants’ existing political views or prejudice on the anti-government tendency.

(2) The Defendants and the defense counsel are using several expressions such as “the assistance in a war,” as the subject of the instant assembly and demonstration in the instant indictment. As such, the Defendants’ act is an individual public official, and the Defendants’ act is indicated as the act of the assistance in a war, and the act of the assistance in a war is immediately indicated as the Defendants’ act, and thus it constitutes a violation of the principle of an indictment only.

In the facts charged of this case, the Defendants directly shared with the Defendants (the Defendants’ act was defined as “the Defendants’ act of doing so by sending the teachers’ signature to the schools at each level for the purpose of conducting the assembly and demonstration, and transmitting it to the former branch.” The act was indicated as “the public official or group,” not in group, but in group. However, it is not necessary to specify individuals who participated in the assembly and demonstration as collective participants in the assembly and demonstration as indicated in the facts charged, and it is not necessary to specify as collective participants in the assembly and demonstration, and it is inevitable to specify as “the Defendants’ act of doing so.” In addition, there is a teacher who did not participate in the assembly and demonstration, among the non-members of the assembly and demonstration. However, the assembly and demonstration cannot be deemed as one of the teachers who participated in the assembly and demonstration, but it was ultimately announced by the National Assembly and Security Committee to the effect that the Defendants’ political act was announced with the view that they were expressed by the former branch and government.”

In light of the nature of a public prosecution offense punishing a group act, as long as it is inevitable to specify the subject of the assembly and demonstration as a group leader, it cannot be deemed that there was an error or error in the description of the facts charged to the extent that it would interfere with the Defendants’ exercise of defense right, and it cannot be deemed that it may interfere with the understanding of the substance of the crime by causing the Defendants’ prejudice.

(3) Ultimately, the above argument by the Defendants and the defense counsel against the principle of an indictment only shall not be accepted.

(c) Abuse of power to prosecute;

The Defendants’ defense counsel also argued that the Defendants were indicted only against the other teachers who participated in the assembly and demonstration of this case, and that the prosecution against the Defendants is an abuse of the right of prosecution against equity. In the process of the investigation and prosecution of this case, the proviso was made to inform the Defendants at the Office of Education, Chungcheongnam-do, the Ministry of Education, Science and Technology. However, even if the prosecution took into account political factors in the background of the accusation at the stage of investigation and prosecution, and the prosecution instituted a prosecution against the Defendants without investigation and prosecution against the other teachers who participated in the assembly and demonstration of this case, it cannot be deemed that the above circumstance alone deviates from the power of prosecution. Accordingly, the defense counsel’s assertion of abuse of the right of prosecution against the Defendants cannot be accepted.

2. Determination on the assertion of substantive law

A. Whether an act constitutes “collective activity for activities other than public service” as a constituent element

(1) Criteria for determination

The main text of Article 66(1) of the State Public Officials Act provides, “No public official shall engage in any collective activity for any labor campaign or activities other than public services,” and when violating this provision, he/she shall be punished by imprisonment for not more than one year or by a fine not exceeding three million won pursuant to Article 84 of the same Act.

In this case, the term "collective action for activities other than public service" under the above Act refers to an act committed by a large number of public officials for specific purposes that undermine the essence of public service, such as undermining the discipline of duties or undermining their part of duties (see Supreme Court Decision 98Do662, May 12, 1998). Specifically, it does not mean any collective action committed by public officials for any activity other than public service, but does not mean any collective action committed by public officials for any activity other than public service, and it refers to Article 21 (1) of the Constitution guaranteeing the freedom of speech, publication, assembly, association, and association, Article 21 (1) of the Constitution guaranteeing the freedom of association, the constitutional principles, the purport of the State Public Officials Act, the State Public Officials Act's duty of good faith and duty of loyalty under the State Public Officials Act, etc. (see Supreme Court Decision 90Do2310, Feb. 14, 192, etc.).

(2) The meaning of collective action that may affect the failure to perform duties for a purpose contrary to the public interest.

(A) Existence of purposes contrary to public interest

(1) In a normative sense, public interest is an objective public interest to be sought, protected, and promoted by the legal order. In the event of a conflict between public interest and private interest or between public interest, the interests to be protected by the legal order shall be determined by weighing and balancing the subject of consideration of each conflicting interest based on the interpretation of the Constitution and relevant statutes, the importance and size of each interest, and the content and degree of infringement of other interests infringed by pursuing a certain interest. Meanwhile, in the interpretation of collective action, the term “purpose” contrary to the public interest is not a subjective constituent element, and it does not correspond to the objective of the crime. It is a concept that functions as a sign of interpretation in an objective and theoretical reduction of the meaning of collective action as mentioned above. Accordingly, rather than whether there was an objective purpose (the expression of collective and political intent, such as the contents of the report in this case) of the Defendants’ objective act (the expression of collective and political intent, such as the contents of the report in this case, should be examined.

In this case, the value claimed by the Defendants at the constitutional level is ultimately the freedom of speech, publication, assembly and association under Article 21(1) of the Constitution. Specifically, the freedom of collective and political expression is the freedom of expression. The key constitutional value is the political neutrality of public officials (Article 7 of the Constitution) and the political neutrality of education (Article 31(4) of the Constitution).

(2) The freedom of political expression means the freedom to express political opinions and political thoughts outside, and is superior to other fundamental rights. However, since the freedom of political expression is not absolute, it may be legally restricted pursuant to Article 37(2) of the Constitution (see Supreme Court Decision 2004Da62597, May 26, 2006, etc.). Furthermore, with respect to the Defendants as public officials and teachers, who are related to their special status as teachers, there is legitimacy to restrict political freedom by law to the extent that it does not infringe on the nature of public welfare necessity, which is the constitutional value of maintaining political neutrality and guaranteeing the political neutrality of education. The freedom of collective and political expression as a political fundamental right in this case cannot be restricted unless there is any reservation of law. In particular, the political fundamental rights of the Defendants as public officials and teachers are restricted by the State Public Officials Act, the Framework Act on Education, and the Teachers’ Union Act as follows.

Article 65 of the State Public Officials Act prohibits public officials from participating in a political organization such as a political party (Article 65 (1)), (2) an act affecting the election (Article 14 (2) of the same Act), (3) an act to achieve the objectives of other political parties, or political activities such as demonstration, publication, announcement of opinion, etc. (Article 27 (4) of the State Public Officials Service Regulations) for the purpose of getting elected or elected or elected in an election. Article 65 of the State Public Officials Act prohibits public officials from participating in a political organization such as a political party (Article 6 (1) of the same Act), (Article 14 (4) of the same Act). Article 3 of the Teachers' Unions' Unions Act provides that the Framework Act on Education shall not be used as a tool to spread political, political, or personal prejudice (Article 6 (1) of the same Act), and teachers shall not guide or instigate students to support or oppose a particular political party or party (Article 14 (4) of the same Act).

In light of the principle of political neutrality and education of public officials prescribed by the Constitution and the purport of each provision of the State Public Officials Act, the State Public Officials Act, the Framework Act on Education, and the Teachers' Labor Unions Act, public officials are obligated to strictly maintain political neutrality in performing their duties (in particular, exercise of teaching rights) due to their special status as state public officials and their special characteristics of teachers, and in particular, teachers are not allowed to engage in biased political activities as prescribed by the Acts and subordinate statutes. Furthermore, teachers as a group are prohibited from engaging in collective political activities through trade unions.

(c) As to this, Defendant 1 asserted that “this case’s assembly was not affected by the election or supported by a specific political party, and the provisions of the Teachers’ Trade Union and Education Act and the Framework Act on Education are merely a declared provision.”

(i) The argument that Article 3 of the Act on the Trade Union and Labor Relations of the National Assembly is merely a declaration provision, seems to be based on the fact that the legislative purpose of Article 3 of the Act on the Trade Union and Labor Relations of the National Assembly is to exclude the application of the proviso of Article 87 of the Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of March 12, 2004; hereinafter the same shall apply and the Public Official Election Act after this Act and the amendment, and Article 1 of the Act on the Trade Union and Labor Relations of the National Assembly is not a provision for the purpose of political restriction, and Article 3 of the Act on the Trade Union and Labor Relations of the National Assembly is not a provision for the direct punishment of a violation of Article 3 of the same Act.

First of all, separate from the legitimacy of the subjective and objective interpretation methodology in interpreting the legislative purpose of the provision of the law, it is inappropriate for the National Assembly environmental Labor Relations Commission to commemorate legislators' intentions based on only a review report prepared by the National Assembly. However, the contents of the above review report are not related to the legislative purpose of Article 14(3) of the Act on the Protection of Teachers and Labor Unions or Article 14(3) of the same Act, or is not related to Article 3 of the same Act. The expression of the legal language itself is not limited to the opening of elections among political activities through consultation (where the prevention of opening of elections was the exclusive legislative purpose of Article 9(2), it is sufficient to place provisions related to election laws and regulations. Article 9 of the Act on the Election of Teachers and Labor Unions has already been enacted before the enactment of the Act on the Protection of Teachers and Labor Unions and other persons obliged to observe political neutrality (including institutions and organizations). Of course, the legislative purpose of Article 3(3) of the Act on the Election of Teachers and Labor Unions and the legislative purpose of the Act should not be included in the Act.

The legislative purpose of the Teachers' Labor Union Act is to grant special exceptions to allowing only teachers the right to organize and the right to collective bargaining among the basic labor rights of public officials who were not allowed in principle pursuant to Article 66(1) of the State Public Officials Act (excluding teachers, general public officials became legally guaranteed the above basic labor rights only after the enforcement of the Act on the Establishment and Operation of Public Officials' Labor Unions by Act No. 7380 on January 27, 2005). However, since the purpose of labor unions to achieve through a labor union is premised on the improvement of the overall working environment and social conditions, it is necessary to link with political activities and election by participating in legislation and administration as a profit organization. However, the participation in such political activities in the teachers' labor union is likely to undermine the political neutrality of public officials and education under the Constitution, and it is necessary to block such participation as it does not comply with the legislative purpose of the above Act that does not permit the right to collective action, it is interpreted that there is a general provision prohibiting political activities.

Furthermore, Article 3 of the Act on the Trade Union and Labor Relations Adjustment of Teachers does not stipulate the same Act. However, if an organization or individual prohibited from political activities performs an election campaign, it violates Article 87 of the same Act, and is punished by Article 255 (1) 11 of the same Act. For the same purpose, if a public official prohibited from political activities becomes a promoter of a political party, he/she violates Article 22 of the Political Parties Act, and is punished by violation of Article 53 of the same Act, and further public officials need to comply with the above Act (see Supreme Court Decision 2005Du15298, Sept. 22, 2006, etc.). The violation of such Act and subordinate statutes constitutes grounds for disciplinary action under Article 78 of the State Public Officials Act. Thus, it is difficult to understand that there is no abstract or declaration provision on the ground that there is no punishment provision in the Act itself.

Based on the above review, Article 3 of the Act on the Trade Union and Labor Relations Adjustment of Teachers has the public interest value to be protected by the law, and it is a major factor to be considered in determining the violation of the public interest of the collective action of this case (in particular, whether a public official violates the political neutrality of the public official) (However, as seen below, in terms of the balance between the freedom of collective and political expression and the interests of the defendants, it shall be examined in line with the principle of proportionality.)

(ii) We examine the opinion that the contents of the assembly and demonstration of this case are not related to a static interest, and thus, it did not harm the public official’s political neutrality duty, and it was not allowed under the Teachers’ Labor Assistance Act.

According to the division of the scope of political activities, the political activities in consultation constitute a political activity or election campaign aimed at the acquisition, maintenance, and exercise of political power, and the broad political activities constitute all the acts of expressing individual or collective political opinions as an act of participating in collective decision-making procedures between the parties conflicting with authority or power in social relations. In the event a public official conducts political activities in consultation, it has a provision that is separately regulated in Article 65 of the State Public Officials Act, Article 87 of the Public Officials Election Act, Article 22 of the Political Parties Act, and other broad political activities are problematic in this case. Although the Act prohibits all the political activities of a teachers' union, the meaning of “one person’s political activities” does not restrict all the above broad political activities of a public official (if interpreted, it is likely to infringe on the essence of political fundamental rights. Of course, the legislative purpose of the Act that excessively reduces the scope of political activities of a public official’s political neutrality, including acts that are prohibited by the National Public Officials Election Commission Regulations and other political activities within the scope of political neutrality in the Act.

In the instant case, Jeon school’s assistance constitutes a political collective act with the intent of undermining the government’s policy decision-making and enforcement or exercising critical influence collectively. Moreover, it is an act conducted under the intention of bringing about social strike in connection with other political forces and social groups that have criticized for government policies. Therefore, it constitutes a political collective act.

(3) Articles 6(1) and 14(4) of the Framework Act on Education stipulate that education shall not be used as a political tool or for the purpose of supporting or opposing a specific political party or faction, and that the purpose of education is the protection of political neutrality in the area of an individual teacher’s duty. The argument that it is merely a declared and abstract meaning due to lack of a penal provision on a violation of the above provision, is difficult to accept in terms of the constitutional value and the duty of a public official, as seen earlier, from the point of view of the constitutional duty and the duty of a public official’s law. (Basicly, in this case, the reason why the pertinent provision’s purpose of the Act on the Teachers’ Labor Unions and the Framework Act on Education is not to directly and compulsorily apply the pertinent provision, but to interpret the purport of the above provision’s provision to determine whether the act of a group, which is composed of several defendants, constitutes a violation of public interest. Accordingly, even if all the above provisions have been yielded in a declared and abstract sense as asserted by Defendant 1, it should be considered as a major element of value determination in accordance with the constitution.

However, considering the values pursued by the above Framework Act on Education as the factors of balancing interests, it is necessary to consider the following points. Even if teachers assume the duty of political neutrality as a public official, it is not deemed that uniformly restricting the nature of fundamental rights even in a case where a political expression of opinion is made in an individual or civil level other than the case where a public official bears the duty of political neutrality as a public official’s expression of opinion. In other words, it is the subject of controversy over whether the expression of political opinion of teachers and political social activities in accordance with various educational theories and philosophy such as traditional educational theory, alternative educational theory, practical education theory, and critical educational theory, etc. Furthermore, it is not necessary to respect the freedom and educational purpose of education as well as sound social neutrality in the exercise of the right of education for students on the grounds that teachers bears the duty of political neutrality in exercising the right of education for the students as a public official, or that it is not necessary to pursue the political neutrality of social values and political neutrality as well as sound social neutrality in the exercise of the right of education as a public official.

However, teachers are also in the position of teacher having a big impact on students in the process of forming values, and it is likely that students receive certain political orientations, emotional, and evaluation orientations based on their personal values and experiences if they are exposed to the position of teacher, which is sharply conflicting with each other, without any critical consideration (the legitimate authority coming from the position of teacher is respected by the student, but it is not a removal of the risk that students might be mistaken that the teacher gives legitimacy to the individual political orientation of the teacher. Accordingly, teachers should not confuse their individual and subjective political convictions with the position of an objective educator who educates their individual and subjective political person). Moreover, it is not permissible to allow the use of school lessons for the purpose of delivering individual political convictions.

Based on these circumstances, the legislative purpose of Articles 6(1) and 14(4) of the Framework Act on Education is to consider in determining the violation of the public interest of the collective action of this case (in particular, whether the neutrality of education is infringed or not), but to the extent that it does not infringe on the nature of the individual and civil political freedom of education, and it does not go against the value of the teacher's right to teach, the student's right to learn, the right to learn, and the real political neutrality of education.

(d) Comparison of Benefits;

On the basis of the comprehensive circumstances such as the planning and promotion process, purpose and details of the instant assembly and demonstration, the Defendants’ freedom of collective and political expression and the political neutrality of public officials and education, the State Public Officials Act, the Teachers’ Labor Assistance Act, and the Framework Act on Education are examined as to whether the assembly and demonstration violated public interest.

(1) The Assembly and Demonstration Act provides that “The Assembly and Demonstration Act’s 10th assembly and government’s 6th assembly and government’s 0th assembly and government’s 10th assembly and government’s 6th assembly and government’s 0th assembly and government’s 6th assembly and government’s 0th assembly and government’s 10th assembly and government’s 6th assembly and government’s 0th assembly and government’s 10th assembly and government’s 6th assembly and government’s 10th assembly and government’s 6th assembly and government’s 10th assembly and government’s 6th assembly and government’s 0th assembly and government’s 6th assembly and government’s 10th assembly and government’s 6th assembly and government’s 10th assembly and government’s 6th assembly and government’s 10th assembly and government’s 10th assembly and government’s 6th assembly and government’s 10th assembly and government’s 10th assembly.

(ii) It is deemed that the Defendants’ exercise of collective and political liberty in the form of an assembly and demonstration, thereby infringing on the value of political neutrality of public officials and education.

① In relation to the political neutrality of a public official, the public interest is to protect the public interest by removing not only the conflict between the public official in political relations relations with the public official and the influence on the politics of the public official, but also by enhancing the impartiality of policy execution. However, the act of this case against the public interest, regardless of the Defendants’ duties as the teacher or the purpose of the teachers’ union, expressed a political opinion criticisming the general policy of the government where interests conflict rapidly. In light of the fact that the number of teachers participating in the signature is considerably large scale, this act is likely to affect the politics through multiple forces, thereby encouraging social conflicts and confusions, thereby causing a considerable degree of damage to the public interest in the impartiality of the public official as the teacher’s political impartiality.

② For the political neutrality of education, the period during which elementary, middle, and high school teachers receive education at school may form a political self-help and value, and the political children formed at this time become adults in the future, and the value and political inclinations of society and politics. As such, not only political education through the indirect method of transferring knowledge to elementary, middle, and high school students in the formation process but also political education through criticism of the Government, but also other social and political voices criticism of large school teachers by taking advantage of other social and political voices, even if they were conducted outside school classes, it is difficult to view that a large scale of teachers’ announcement of the Assembly report does not affect elementary, middle, and high school students who have a special interest in maintaining the political neutrality of education, and in particular, it is difficult to deem that there is a low concern about political neutrality of education.

(3) As seen above, the degree of infringement on public interest is not somewhat weak, and as to whether limiting teachers’ freedom of collective and political expression in order to prevent such infringement on public interest accords with the principle of proportionality (the principle of excessive prohibition).

The mode of delivering a political opinion by a teacher to the outside is that a teacher expresses his/her political opinion on an individual level, rather than as a member of his/her duty, and that a teacher delivers a teacher’s political opinion to reflect his/her political values in a classroom, and furthermore, expresses a group of political opinions in the outside through an organization. In addition, even in the case of a political expression via an organization or group, it is different to a general social organization or group where a teacher participates in a personal and civil position as a teacher and an expression of opinion as a public official or a group of public officials who is a public official or a teacher. In this regard, the political expression of opinion at a personal and civil level or a class right should be protected, and if this is uniformly prohibited, it is likely to infringe on the essential content of the fundamental right or interfere with the political impartiality of education itself.

However, the act of a teacher in a special status relationship with which he/she should perform his/her duties based on high level of public nature, fairness, sincerity, expertise, autonomy, neutrality, and social responsibility through a teachers’ and public officials’ organization, such as former school aid, etc., in order to exercise social and political influence without relation to his/her duties, is highly likely to affect the overall public confidence in the civil society or educational community. Collective expression of opinion by such public officials is relatively more likely to cause public safety and order or legal peace and social conflicts compared with their expression of opinion on an individual and civil level, and the degree of undermining the political neutrality obligation of public officials is greater than that of public officials. Furthermore, the act of a teacher’s organization does not go against the legislative public hearing, policy debates, academic meetings, and other methods and procedures that can reasonably reflect it in the government policy to the extent that it does not go against its political neutrality and political neutrality, even if it is not contrary to the principle of political neutrality and political neutrality of teachers’ political and political interests, and thus, it does not require any substantial political neutrality and political neutrality of the government.

In the end, in light of the size of the public interest to be protected, it is judged that restricting the freedom of collective and political expression of the teachers' organization asserted by the defendants does not go against the principle of proportionality.

(v) Fully considering the above facts, collective and political expression by the Defendants involved in the instant assembly is an act that goes against the public interest, such as public officials’ neutrality and education neutrality.

(B) Collective acts that affect the duty of care, such as neglecting the duty of care

(1) As long as the Defendants committed an act contrary to the public interest as seen earlier in light of the nature of the public official’s duties, the Defendants were deemed to have committed an act that may affect the Defendants’ failure to perform their duties and failure to perform their duties. The Defendants’ act constitutes collective and political expression of intent (the first and second Declarations) and collective and political demonstration (the assembly participation).

(2) The Defendants and the defense counsel asserted that the act of signing on the instant text of the Assembly and Demonstration was merely one minute, and therefore, they did not violate the duty of duty of duty of duty of duty of duty of care. However, even though whether the duty of duty of duty of duty of care was neglected is merely a short time, the Defendants and the former and the former have planned and organized with respect to the instant assembly and Demonstration, sent official documents to the branch or schools at all levels, and the signature was conducted, and there was considerable time to confirm the identity of the signatory. In addition, the signatory who participated in the Assembly and Demonstration was required to take the time to make a decision in the process of signing and signing with the intent of the Assembly and Demonstration (as alleged by the Defendants, if they participated in signing and signing within one minute without understanding the social meaning of their acts, or if they were merely a mechanical act led by a political act led by the former school, it cannot be deemed that the Defendants and the latter did not have any reason to the purport of the Assembly and Demonstration.

The Defendants’ defense counsel held that the Second Declaration and the Second Declaration were conducted on holidays. In particular, the Defendants’ defense counsel argued that the Defendants did not constitute a neglect of duty to maintain good faith because they had been a peaceful demonstration conducted after the report of lawful assembly was made. However, group acts affecting the duty to maintain good faith were committed during working hours, or committed outside working hours, or did not have any relation (see Supreme Court Decision 2006Du16786, Jun. 23, 2009). In participating in the instant assembly, it does not change even if the above Defendants were lawful assemblies upon the report of the assembly (see Supreme Court Decision 2007Do11044, Mar. 14, 2008).

(c) In addition, the Defendants are in a state of deeming that they were issued as a full-time employee (Article 5 of the Act on the Assistance to Teachers’ Unions), but the status and status of basic public officials are maintained, and contrary to ordinary temporary retirements, the full-time employee is engaged in the affairs of the trade union with the permission of the appointing authority, and thus, the Defendants’ duties in charge are the duties of the teachers’ union and the duties under public law and legal relations. As long as it is deemed that the Defendants committed an act irrelevant to the guarantee of the right to work standard and the improvement of working conditions, which is the purpose of the provision on the teachers’ union, the Defendants’ duties cannot be deemed to have reached an act that may affect the failure to perform the duty of full-time employee’s duty. (Inasmuch as the Defendants are determined as a joint principal offender in collusion with other teachers who participated in the Declaration, the legal status

(3) Ultimately, the Defendants are deemed to have committed a collective act that may affect the duty of care for a purpose contrary to the public interest, such as neglecting the duty of care. This constitutes “collective act for any purpose other than public duties,” which is the constituent element of Article 66(1) of the State Public Officials Act.

B. Whether an act constitutes a justifiable act that denies illegality

(1) The Defendants asserted that the contents of the instant assembly and demonstration are not unlawful because they are justifiable to require the government to properly observe the State’s obligations under the Constitution. Thus, they constitute justifiable acts that do not go against the social norms.

(2) “Act which does not contravene social norms” under Article 20 of the Criminal Act refers to an act which can be accepted in light of the overall spirit of legal order or the social ethics or social norms surrounding it, and whether certain act constitutes a legitimate act which does not contravene social norms and thus, should be determined individually by considering the legitimacy of the motive or purpose of the act, the reasonableness of the means or method of the act, the balance of the protected interests and the benefit of infringement, urgency, and any other means or method other than the act (see Supreme Court Decision 2007Do1044, Mar. 14, 2008).

First of all, the purport of the Assembly and Demonstration Act that the Defendants are able to be confined to our society with a view to understanding the nation as well as demanding a reform of state affairs. However, there is a lot of doubt as to whether the Defendants expressed their signature on the basis of their free will, and the Defendants’ signature was in contravention of the legislative intent and purpose of the Assembly and Demonstration Act, rather than with sufficient discussion and deliberation on the state of the city from the beginning of May 2009, and the demand for the government’s participation. In short, it is difficult to conclude that the Defendants’ signature was in contravention of the legislative purpose of the Assembly and Demonstration Act, and the Defendants’ signature was in contravention of the legislative purpose of the Assembly and Demonstration Act. In short, it is questionable whether the Defendants’ signature was in contravention of the legislative purpose of the Assembly and Demonstration Act, and the Defendants’ signature was in contravention of the legislative purpose of the Assembly and Demonstration Act, and the Defendants’ signature was in contravention of the legislative purpose and purpose of the Assembly and Demonstration Act’s 6th of the Assembly and Demonstration Act.

The Republic of Korea is not a low level of society where uniform values can be sought and used, but a large number of benefit groups have reached the level of multi-unit democratic society that should cause conflicts and resolve such conflicts. However, such multi-unit democratic society has the legal and procedural limitations to be observed in expressing and realizing their arguments, whether individuals or groups, to ensure that the observance of procedural standards to respect mutual interests and resolve such conflicts is important. Since one’s assertion complies with the public interest, acts that constitute a violation of due process may be excluded from multi-unit and commercial value in a democratic society, and thus disregarding the spirit of the rule of law and the Constitution of the Republic of Korea. In particular, as a public official under special status, there are fundamental obligations to ensure that the teachers’ rights and interests are more strict and faithful than those of the general public, and the teachers’ fundamental rights and interests are not guaranteed within the framework of our nation’s political and social development system, and there are no fundamental rights and interests of the people who are public officials.

Positive Elements

① The Assembly and Demonstration was conducted in a way of a non-defluent collective expression. The assembly and Demonstration was conducted in a way of an explicit and implicit connection with other social forces. However, even though there was a climatic value and a certain degree of degree in a democratic state that should be resolved within the society. ② In the same purport, the content itself of the Assembly and Demonstration does not contain an anti-Constitution and anti-public interest value (i.e., the content itself is “other opinion,” and it cannot be readily concluded as a “defluent opinion.” ③ The Defendants were referred to a disciplinary procedure outside the instant criminal procedure, and are under dispute, and there seems to be considerable physical suffering. ④ The Defendants are deemed to have no serious punishment power, and there is no same type of punishment power. ⑤ Defendant 4’s involvement in the Assembly and Demonstration is relatively unrefford, and the degree of participation is merely the first one, and the first and the second session is not directly participated in the Assembly and Demonstration.

negative elements

① The Defendants expressed that they will go back to the same act under the same state situation, and it is necessary to consider the punishment force and preventive effect. ② Defendants 1, 2, and 3 have come to participate in the assembly as a collective action following the First Declaration after the First Declaration. ③ Defendant 1 played the most leading role among the Defendants, such as attending the Central Committee on the Execution of Inter-Korean Cooperation.

Judges Cho Byung-gu

1) Unless otherwise stated, the term “this case’s assembly and demonstration” refers to both the First and Second Declarations with respect to Defendants 1, 2, and 3, and the First Declarations with respect to Defendants 4. The term “the Defendants” refers to the Defendants other than the Defendants 4 in the Second Declarations and the Second Declarations as the participants in the Assembly.