[1] The meaning of "collective action for activities other than public affairs" prohibited by Article 66 (1) of the former State Public Officials Act, and whether the above provision goes against the principle of clarity and the principle of excessive prohibition (negative)

[2] The meaning of the "decency" in the duty to maintain dignity under Article 63 of the State Public Officials Act, and whether this provision violates the principle of clarity and the principle of excessive prohibition (negative)

[3] Requirements for a certain act of a public official to constitute a "collective act" under Article 66 (1) of the State Public Officials Act

[4] Whether a public official’s act of publishing his/her opinion criticizeing his/her superior position constitutes an act that damages his/her body or dignity (affirmative)

[1] Article 66(1) of the former State Public Officials Act (amended by Act No. 11530, Dec. 11, 2012; hereinafter “State Public Officials Act”) provides that “No public official shall engage in any collective activity for any labor campaign or activities other than public services: Provided, That the same shall not apply to public officials who actually engage in labor.” Even though the State Public Officials Act somewhat comprehensively and widely provides that “collective activity for any activities other than public service” as above, it does not mean any collective activity conducted by public officials for any activity other than public service, but rather means any group activity conducted by public officials, which guarantees the freedom of speech, publication, assembly, and association, Article 21(1) of the Constitution guaranteeing the freedom of speech, publication, assembly, and association, the State Public Officials Act embodying the constitutional obligation required of public officials, the purport of the State Public Officials Act specifying it, the duty of good faith and duty of loyalty under the State Public Officials Act.”

If the above provision is interpreted as above, it cannot be deemed that the scope of application is ambiguous or unclear to the extent that a public official, who is a criminal, could not sufficiently predict what act constitutes it, and thus, the above provision cannot be deemed as contrary to the principle of clarity, and it cannot be deemed that the above provision is excessively broad or comprehensive, and thus, it cannot be deemed that it excessively limits the freedom of expression of public officials. Therefore, it cannot be deemed as

[2] Considering the status of public officials who are widely entrusted with public duties by the people and work for the whole people, any act detrimental to the dignity of public officials is likely to undermine the people's trust as well as the people's public service society. Thus, all public officials shall not commit any act detrimental to their dignity regardless of whether it is inside or outside the scope of their duties under Article 63 of the State Public Officials Act. Here, the term "defensiveness" refers to physical body without any color in performing their duties as servants of all citizens who are sovereign citizens, regardless of whether it is inside or outside the scope of their duties.

In full view of the contents, meaning, legislative purport, etc. of Article 63 of the State Public Officials Act, the duty to maintain dignity under Article 63 of the State Public Officials Act can be interpreted as a duty not to perform not only the duty of a public official, but also the duty not to perform any act that is likely to undermine the people's trust in the public service society, by taking charge of the public official's duty as a trustee regardless of whether it is inside or outside of his duty, but also the duty not to perform any act that is likely to undermine the people's trust in the public service society. Since the meaning of the provision is ambiguous or unclear to the extent that the average public official, who is the criminal, is unable to sufficiently predict what act constitutes it, the above provision does not violate the principle of clarity and it cannot be deemed as excessively restricting the public official's freedom of expression because the scope of application is too broad or too broad. Thus,

[3] If a certain act of a public official constitutes a “collective act” under Article 66(1) of the State Public Officials Act, it is reasonable to interpret that the act must be performed at the same time and at a place, but it should be equipped with a collective mark that is a group of acts for any purpose contrary to the public interest. Therefore, where multiple people express their intent or form a group of groups at one or more times and express their intent in the name of the group, even though they do not express their opinions in the form of actual gathering, it may be deemed that the act is an act of multiple people's participation by means of signing and sealing, etc., or where it can be seen as a collective act to impair the efficiency of government activities, such as daily leave, collective early retirement, excessive refusal of work, etc., and where it can be seen as an act of collective attitude to impair the efficiency of government activities, it may be deemed that the collective nature of an act falls under Article 66(1) of the State Public Officials Act.

[4] A public official’s expression of his/her external criticism of his/her commercial affairs is helpful to the improvement and development of the administrative organization, and ultimately, even if it contributes to the rationalization of the exercise of authority by the administrative agency, regardless of the authenticity or legitimacy of its contents, it can act as a factor for the citizen to lose public confidence in administration by itself as a conflict within the administrative agency, regardless of its authenticity or legitimacy. In particular, in cases where there is a part that is doubtful about the authenticity of the contents of the announcement or where there is an excessively decent and exaggerated part in the individual appraisal, it is more likely for the citizen to feel public trust in administration by having the public official as well as his/her own doubts about the fairness, impartiality, and prudentialness of the entire administrative organization, and thus, such an act constitutes an act that damages the public official’s body or dignity.

[1] Articles 7, 12, 21(1), 33(2), and 37(2) of the Constitution of the Republic of Korea; Articles 1, 56, and 66(1) of the former State Public Officials Act (Amended by Act No. 11530, Dec. 11, 2012) / [2] Articles 12 and 37(2) of the Constitution of the Republic of Korea; Article 63 of the former State Public Officials Act (Amended by Act No. 11530, Dec. 11, 2012); Article 66(1) of the former State Public Officials Act (Amended by Act No. 11530, Dec. 11, 2012); Article 63 of the former State Public Officials Act / [3] Article 6(1) of the former State Public Officials Act (Amended by Act No. 11530, Dec. 11, 2012); Article 38(1) of the former State Public Officials Act / [4]

[1] [3] Constitutional Court en banc Decision 2011Hun-Ba32 Decided August 28, 2014 (Hun-Gong215, 1338) / [1] Supreme Court Decision 2011Do914 Decided May 10, 2012 / [2] Supreme Court Decision 2011Du20079 Decided September 12, 2013 (Gong2013Ha, 1804) / [4] Supreme Court Decision 2006Du12364 Decided July 13, 2007

Plaintiff 1 and 10 others (Law Firm Dasan et al., Counsel for the plaintiff-appellant)

The Chairman of the National Human Rights Commission (Law Firm Indones, Attorneys Ba-young et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2013Nu20334 decided April 23, 2014

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Considering that the Disciplinary Rule of the National Human Rights Commission (amended by Rule 75 of the National Human Rights Commission Regulation on December 6, 2012) does not have any special provision regarding the composition of the Review Committee, the fact that the Review Committee was composed of members identical to the Disciplinary Committee alone does not constitute a violation of a discipline accused person’s right to request reexamination or an unlawful procedural violation. Therefore, the lower court did not err by misapprehending the legal doctrine on the composition of the Review Committee, contrary to what is alleged in the grounds of

2. As to the grounds of appeal Nos. 2 and 3

A. Article 66(1) of the former State Public Officials Act (amended by Act No. 11530, Dec. 11, 2012; hereinafter “State Public Officials Act”) provides that “No public official shall engage in any collective activity for any labor campaign or activities other than public services, except for those who actually engage in labor.” Even though the State Public Officials Act somewhat comprehensively and widely provides that “collective activity for any activities other than public service” as above, it does not mean any collective activity conducted by public officials for any activity other than public service, but it does not mean any group activity conducted by public officials, which guarantees the freedom of speech, publication, assembly, and association, Article 21(1) of the Constitution guaranteeing the freedom of speech, publication, assembly, and association, and the purport of the State Public Officials Act embodying the constitutional obligation required by the public officials, the duty of good faith and duty of loyalty under the State Public Officials Act, etc. are construed as collective action that affect the public interest (see, e.g., Supreme Court Decision 201Do1419, May 2).

If the above provision is interpreted as above, it cannot be deemed that the scope of application is ambiguous or unclear to the extent that a public official, who is a criminal, is unable to sufficiently predict what act constitutes it, and thus, the above provision cannot be deemed as contrary to the principle of clarity. Moreover, the above provision cannot be deemed as excessively restricting the freedom of expression because the scope of application is too broad or comprehensive, and thus, it cannot be deemed that the above provision goes against the principle of excessive prohibition (see Constitutional Court en banc Order 2011Hun-Ba32, Aug. 28, 2014).

B. Article 63 of the State Public Officials Act provides, “No public official shall commit any act detrimental to his/her dignity, regardless of whether it is a public official’s official duty.” Considering the status of a public official who is widely entrusted by the citizen and serves for the entire citizen, any public official shall not commit any act detrimental to his/her dignity, regardless of whether it is a public official’s official duty, as well as a public official’s trust in the public service society. Here, “defensive dignity” refers to physical body and body of the public official, i.e., maintaining dignity, reputation, and credibility, and performing his/her duties as a servant of the entire citizen who is the sovereign, regardless of whether it is a citizen’s official duty (see Supreme Court Decision 2011Du2079, Sept. 12, 2013).

In full view of the contents and meaning of the provision of Article 63 of the State Public Officials Act and the legislative purport thereof, the duty to maintain dignity under Article 63 of the State Public Officials Act can be interpreted as a duty not only a public official who takes charge of a duty as a trustee of a citizen, but also a public official who does not engage in any conduct that is likely to undermine the public trust in the public service society, because he/she takes charge of a duty as a trustee of a citizen, regardless of whether he/she is inside or outside of his/her duty. Since the meaning of the provision is ambiguous or unclear to the extent that an average public official, who is the criminal, is unable to sufficiently predict what act constitutes it, the provision does not violate the principle of clarity, and it cannot be deemed that the provision excessively limits the freedom of expression of a public official because it is excessively broad or comprehensive. Thus, the above provision does not violate the principle of excessive prohibition.

C. In the same purport, the judgment of the court below on the merits under the premise that Articles 66(1) and 63 of the State Public Officials Act do not go against the Constitution is just, and there is no error by misapprehending the legal principles on the principle of clarity or the principle of excessive prohibition under the Constitution.

3. As to the grounds of appeal Nos. 4, 5, and 6

A. As seen earlier, comprehensively taking into account Article 21(1) of the Constitution guaranteeing the freedom of speech, publication, assembly, and association, the constitutional obligation required by public officials, the purport of the State Public Officials Act embodying such obligation, the duty of good faith and duty of care under the State Public Officials Act, etc., the term “collective action for any work other than public duties” under the main sentence of Article 66(1) of the State Public Officials Act shall be construed as “collective action that may affect the public interest, such as neglecting the duty of care.”

In addition, the violation of Article 66 (1) of the State Public Officials Act is not only a ground for disciplinary action (Article 78 (1) of the State Public Officials Act) but also a ground for criminal punishment (Article 84 of the State Public Officials Act). Therefore, the interpretation of Article 66 (1) of the State Public Officials Act, which is a penal provision under the principle of no punishment without law, should be strict, and it is not permissible to excessively expand or analogically interpret the meaning of a penal provision to the

Considering such various circumstances, in order for a public official to constitute a “collective act” as stipulated in Article 66(1) of the State Public Officials Act, the act ought not to be performed at the same time and place, but it is reasonable to interpret that a group of acts for any purpose contrary to the public interest ought to be equipped with the sign of “collectiveity”. Therefore, in cases where multiple persons express their intent at one or the group’s name by gathering at the same time, or by forming a group and expressing their intent in the name of the group, even though they do not express their intent in the form of gather, it may be deemed that a group of acts falls under Article 66(1) of the State Public Officials Act where multiple persons expressed their participation by means of signing and sealing, etc., or where a group of acts can be deemed as a collective act to undermine the efficiency of government activities, such as day-to-day leave, collective withdrawal, excessive refusal of work, etc. (see Constitutional Court en banc Decision 201Hun-Ba31, Aug. 28, 2014).

B. citing the reasoning of the judgment of the court of first instance, the court below comprehensively found the following facts: (i) the Plaintiffs’ act of posting 1’s diskettes before the National Human Rights Commission’s office building while criticizeing Nonparty 1, a public official in contractual service at the National Human Rights Commission’s general public official; and (ii) the Plaintiffs put 1’s writing on ○○ News, etc. to criticize the National Human Rights Commission; and (iii) the Plaintiffs put 1’s writing on ○○ News, etc. on the bulletin board of the National Human Rights Commission’s internal computer network; and (iv) the Plaintiffs’ act of posting 1, 2, 3, 11, 7, 9, and 4 (hereinafter “seven persons, including Plaintiff 1, etc.”) in collusion with the National Human Rights Commission’s “an act of posting 1,000,000 won or more on the first floor of the National Human Rights Commission’s office building; and (ii) the Plaintiff’s act of posting 2,000,000 won.

C. Examining the facts acknowledged by the court below in light of the aforementioned legal principles, the act of this case is merely limited to an act of the same kind in which the next players committed the act in concert with the preceding players. In a case where multiple persons express their intent by gathering at one time and expressing their intent in the name of the organization, it is difficult to view that the act constitutes an act of the group taking part in the act of the group taking part in the act, or an act of the group taking part in the act of the group taking part in the act of the group taking part in the act of the group taking part in the act of the group taking part in the act of the group taking part in the act of the group taking part in the act of the above, or that there is a group taking part in the act of the group taking part in the act of the group taking part in the act of the group taking part in the act of the above plaintiffs et al.

However, considering the motive and purpose of the National Human Rights Commission’s refusal to extend a contract against Nonparty 1, a public official in contractual service belonging to the Commission, it is difficult to regard the act as having a specific political activity prohibited by the State Public Officials Act, even if not for the public interest, or directly expressing the support or opposition to a specific political party or political force, etc., which is likely to cause a direct danger that may infringe on the public official’s political neutrality, such as the act of directly exposing the political convenience or the fact that it constitutes a specific political activity prohibited by the State Public Officials Act.

Moreover, there is no clear evidence that the plaintiffs were engaged in one person's demonstration using the time of occupation trial, and that the press was made during a day, and there is no evidence to view that the plaintiffs neglected their duty of care due to the act of this case in the record, such as neglecting their duties.

D. Nevertheless, the lower court, on the grounds stated in its reasoning, determined that the instant act constituted a “collective act for activities other than official duties” under Article 66(1) of the State Public Officials Act. In so determining, the lower court erred by misapprehending the legal doctrine on “collective act for activities other than official duties” under Article 66(1) of the State Public Officials Act, thereby adversely affecting the conclusion of the judgment.

4. As to ground of appeal No. 7

A. The act of a public official’s opinion criticizeing his/her external commercial affairs, etc. is helpful to the improvement and development of the administrative organization, and ultimately, it can serve as a factor to conceal the people’s trust in administration, regardless of the authenticity or legitimacy of the contents of the opinion, regardless of the internal conflict of the administrative agency. In particular, in a case where there is a part that is doubtful about the truth in the contents of the announcement, or where there is an excessively decent and exaggerated part of the contents of the announcement, it itself is highly likely that the public official will lose the people’s trust in administration by having the questions about the fairness, impartiality, prudence, etc. of the entire administrative organization as well as the public official, and thus, such an act constitutes an act that damages the public official’s body or dignity (see Supreme Court Decision 2006Du12364, Jul. 13, 2007).

B. After compiling the adopted evidence, the court below found facts as stated in its holding. ① The expressions through the act of this case are not expressed by any objective ground, but expressed emotionally, and the National Human Rights Commission of Korea, which must protect human rights, is likely to have injured people's trust in the National Human Rights Commission in light of the original purpose of the establishment of the National Human Rights Commission of Korea. ② Even if the National Human Rights Commission of Korea did not extend the contract with Nonparty 1, it cannot be deemed legitimate to post a statement that insults and criticizes the guidance division of the National Human Rights Commission of Korea and puts on a tag for this reason. In addition, it is difficult to view that the National Human Rights Commission of Korea refused the extension of contract with Nonparty 1 as procedural and content defects in refusing the contract with the National Human Rights Commission of Korea. ③ Since the act of this case is intended for employees of the National Human Rights Commission of Korea and many unspecified people, it was widely known that there was a serious conflict between the guidance division and employees within the National Human Rights Commission of Korea, and determined that the act of this case constitutes a violation of the National Human Rights Commission of Korea.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s aforementioned determination is justifiable, and there was no error by misapprehending the legal doctrine on Article 63 of the State Public Officials Act.

5. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)