[1] The meaning of "collective act for activities other than public affairs" prohibited by Article 66 (1) of the State Public Officials Act

[2] The method of determining whether an act constitutes an act of supporting or opposing a specific political party or candidate prohibited by the former Public Official Election and Prevention of Election Illegal Act and the State Public Officials Act

[3] The case reversing the judgment of the court below which acquitted a person on the ground that the assembly and demonstration planned and implemented by the Korean Teachers and Employees' Union was an active and planned act to the extent that the intention to oppose the existing political party and to support a specific political party as an alternative to the existing political party can be objectively recognized in light of the planning, promotion, purpose, circumstance, specific expression, etc. even though the assembly and demonstration was not directly referred to as a specific political party, and constitutes an act of supporting or opposing a specific political party or candidate as prohibited by the former Election of Public Officials and Prevention of Election Illegal Act or the State Public Officials Act

[1] Article 66 (1) of the State Public Officials Act / [2] Articles 60 (1) and 93 (1) of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7681 of Aug. 4, 2005), Article 65 (2) 1 of the State Public Officials Act / [3] Article 255 (1) 1 of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7681 of Aug. 4, 2005), Article 65 (2) 1 of the State Public Officials Act

［1］ 대법원 1992. 2. 14. 선고 90도2310 판결 (공1992, 1078) 대법원 2005. 4. 15. 선고 2003도2960 판결 (공2005상, 783) ［2］［3］ 대법원 2006. 3. 24. 선고 2005도2209 판결 (공2006상, 756) ［2］ 대법원 2003. 10. 10. 선고 2003도2673 판결 대법원 2004. 4. 27. 선고 2002도315 판결 (공2004상, 941) 헌법재판소 2004. 5. 14. 선고 2004헌나1 전원재판부 결정 (헌공93, 574)

Defendant 1 and four others

Defendant 1 and Prosecutor

Attorneys Kwon Young-young et al.

Seoul High Court Decision 2004No3101, 2005No387 decided June 14, 2005

The part of the judgment of the court below, excluding the violation of the Assembly and Demonstration Act by Defendant 5, shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

1. As to Defendant 1’s ground of appeal

A. The court below acknowledged facts based on its employment evidence, and held that the assembly report of this case contains contents opposing Hanna Party and Hanna Party as a specific political party, and it is reasonable to view that the assembly report of this case was prepared and distributed for the purpose of opposing Hanna Party and Sora to exercise an influence on the election. In light of the records, the court below's evidence preparation, fact-finding and decision are just and acceptable, and there is no violation of the rules of evidence or misapprehension of legal principles as to the interpretation and application of Article 93 (1) of the Public Official Election and Prevention of Election Act (amended by Act No. 7681 of Aug. 4, 2005; hereinafter "Public Election Act"), as alleged in the ground of appeal.

B. In light of the circumstances stated in its reasoning, the court below determined that Defendant 1, the chairman of the Korean Teachers’ Union (hereinafter referred to as the “Korean Teachers’ Union”) posted the instant letter on the website of the Korean Teachers’ Union in his name beyond the mere level of delivering the policy of the Democratic Labor Union, which is the superior organization in the 17th National Assembly, and that Defendant 1 himself expressed his position as the principal; and that the contents thereof are soliciting Defendant 1 to vote for the Democratic Labor Party in order to support the Democratic Labor Party in the election of the 17th National Assembly members. In light of the records, the court below's evidence, fact-finding and judgment are just and acceptable, and there is no violation of the rules of evidence or violation of the State Public Officials Act (amended by Act No. 7187 of Mar. 11, 2004, which was enforced from Jun. 11, 2004; hereinafter the same shall apply) under Article 65 (2) 1 of the Political Campaign Act or violation of the legal principles as to the Public Election Act.

C. “Collective act for activities other than public service” prohibited under Article 66(1) of the State Public Officials Act refers to “collective act that has an impact on the failure to perform duties for the purpose against the public interest, such as neglecting to perform duties for the purpose contrary to the public interest” (see, e.g., Supreme Court Decisions 90Do2310, Feb. 14, 1992; 2003Do2960, Apr. 15, 2005).

In light of the above legal principles and records, the judgment of the court below that a series of acts related to the distribution and notice of the assembly and demonstration of this case affect the duty of care for the purpose of violating the public interest constitutes a collective act prohibited by the State Public Officials Act is just and acceptable, and there is no violation of law such as misunderstanding of legal principles as to collective action under the State Public Officials Act, as alleged in the ground of appeal.

Ultimately, Defendant 1’s ground of appeal cannot be accepted in entirety.

2. As to the Prosecutor’s Grounds of Appeal

A. Summary of the facts charged

The gist of the facts charged by the court below is that Defendant 1, the chief vice-chairman, Defendant 3, Defendant 4, and Defendant 5 conspired with the head of the Seoul District Court to support the democratic labor. Defendant 2’s election campaign in the form of an election campaign for the purpose of supporting the democratic labor, which was held on February 23, 2004, the regular election campaign committee’s announcement of the contents of the assembly and demonstration to the effect that “for the purpose of achieving the political force of the workers in 4/15 -, and liquidation of the anti-government will be carried out,” and Defendant 2 did not object to the open political party on March 204, and, for the purpose of supporting the Democratic Labor Party, “The 16th National Assembly was dissatt with policy errors such as impeachment of the President, etc.” from 000 to 200 - the election campaign team’s announcement of the contents of the assembly and demonstration to the 20th election campaign.”

B. The judgment of the court below

The court below affirmed the judgment of the court below that found the Defendants not guilty of a series of the acts related to one’s own democracy and labor in light of the following: (a) the Defendants’ key motive and purpose were to oppose the resolution of the impeachment prosecution against the President; and (b) criticism against the House and the Government was merely secondary contents; (c) even if the contents of the Assembly and Demonstration were to be seen, it is difficult to view that they directly opposed to the ruling; and (d) officially, the declaration of support by the Democratic Labor Party was likely to violate the Assembly and Demonstration Act; (b) the Defendants did not refer directly to the political party eligible for support from the Assembly and Demonstration’s text as a relative concept; and (c) “Voluntary Labor” and “Remuneration” are a relative concept, and there were many political parties in addition to the actual democratic labor parties, and the Defendants understood as different concepts with respect to “voluntary reform” or “compensation” as stated in the Assembly and Demonstration’s text, and thus, it cannot be readily concluded that the “voluntary force” as stated in the Assembly and Demonstration was a democratic labor party.

C. Judgment of the Supreme Court

However, we cannot accept the above judgment of the court below for the following reasons.

(1) Article 60(1) of the Official Election Act prohibits an active and planned act that is necessary for or favorable to the election campaign of a public official, i.e., election campaign for a specific candidate, or for the election or defeat of a specific candidate, and Article 93(1) of the Official Election Act prohibits an act of distributing documents, etc. containing contents supporting, recommending, or opposing a political party or candidate in order to exercise an influence on the election. Article 65(2)1 of the State Public Officials Act prohibits an act of soliciting a public official to cast or not cast a vote to support or oppose a specific political party or candidate in an election. Determination of whether an act constitutes an act of supporting or opposing a specific political party or candidate prohibited under each of the above provisions requires not only the reason why the actor acts are carried out under the pretext of the act, but also the attitude of the act that the act is carried out, namely, the time, place, method, and specific contents of the act, etc. of the act, and thus, it should be determined whether the act is a specific political party or candidate 300.4.

(2) According to the evidence admitted by the court below, the following facts are acknowledged.

(A) Jeon school assistant was a member of the Democratic Labor Group who joined the Democratic Labor Group at the time of the establishment on May 28, 1989. Man school assistant members are the representatives of the Democratic Labor Group. Man school assistant members consisting of a considerable number of members of the Jeon school assistant members. Jeon school assistant members are the members of the Central Executive Committee of the Democratic Labor Group, and Jeon school assistant vice-chairperson are the members of the Democratic Labor Group. Some of the members of the organizations and organizations overlap. Jeon school assistant took the same position as the Democratic Labor Group, a superior organization, regarding political, economic, and social issues, including the usual education policy. In addition, the percentage of the members of the Democratic Labor Group accounts for about 43.03% as of June 2003, the Democratic Labor Group and the Democratic Labor Group were very closely related.

(B) Around February 11, 2004, the Democratic Labor General determined the 17th and 15th National Assembly members general election of approximately two months, “The 4/15th National Assembly Chairperson is an opportunity to change the nature of the political as the progress of the political land by the Democratic Labor Party that was formed by a systematic resolution of the Democratic Labor Group through proportional representation system. The Democratic Labor Group shall support all candidates of the Democratic Labor Party, discover and recommend candidates of the Democratic Labor Party in the Democratic Labor Group, and raise funds, to deliver and implement the 4/15th and 15th total policy of the Democratic Labor Party.” This means that “The Democratic Labor Group shall support all candidates of the Democratic Labor Party, discover and recommend candidates of the Democratic Labor Party in the Democratic Labor Group, and to deliver and implement it to affiliated organizations, including the preceding curriculum.”

(C) On February 2, 2004, Defendant 1, who is the chief executive officer and the member of the Democratic Labor Management Central Committee, established the “Guidelines for Countermeasures against the Korean War 4/15” with the following contents: (a) held a committee for the Central Executive of the Korean Police Officers (the chief executive officer of the Korean Police Agency, which is the chief executive officer of the Korean Police Agency, consisting of the senior executive officer and the chief executive officer of the City/Do branch; and (b) delivered the said “National Police Officers 4/15’s General Policy”; and (c) in accordance with the said policy, the “Guidelines 4/15’s General Policy Guidelines for Countermeasures against the Korean Democratic Labor Party”

(D) On February 23, 2004, at the regular conference of representatives, which is the highest decision-making body for the full-time union of the previous school, Defendant 1 reported the above “Guidelines for the 4.15 Preliminary Countermeasures,” etc. In the above competitions, Nonindicted 1, Nonindicted 2, and Nonindicted 3 representatives of the Democratic Labor Group were present, and Nonindicted 3 was demoted to the effect that “the realization of the truth-finding” was made on the job. In the above competitions, the resolution was adopted to the effect that “the liquidation of the anti-corruption politics is made in front of the non-obviousness politics for the realization of the non-obviousness politics” was “the progress of the meetings of the Democratic Labor Group and the previous school group and the major discussions were widely known to the general public through the democratic labor union and the front school website or the press.”

(E) On the other hand, as a result of discussions on the “4/15-line response project plan,” drawn up on the “the total 4/15-line response plan,” which was held around March 10, 2004, by the Jeonyang Central Executive Committee, held around March 10, 2004, part of the said project plan, including the fund-raising of democratic labor relations, was selected and adopted, but the plan intended to make a declaration of support with the direct name of the Democratic Labor Party, was arranged to the point that it is difficult to say that there is a problem such as the violation of the Election Act.

(F) However, on March 12, 2004, the bill of impeachment against the President was passed at the National Assembly, and on March 16, 2004, Defendant 1, etc. decided to conduct the instant assembly and demonstration at the Presidential Committee on the Emergency Control and Execution of the Presidential Decree, which was called rapidly around March 16, 2004, and accordingly, the former Telecommunication Headquarters prepared a letter of “not only the opposition against the nuclear power, but also against the other remuneration groups and the government, etc., and sent it to 16 branches nationwide. From March 16 of the same year to March 26, 2004, the heads of each branch sent it to the headquarters with the signature of approximately 20,00 teachers viaout the country. In the former Telecommunication Headquarters and some branches opened a briefing session and posted a letter of opinion on the Internet homepage, and distributed it on the same purport as the above letter on the Internet homepage.

(G) The front part of the instant assembly report is the one-way party that led the impeachment (in light of the present situation, referring to one-way party or one-way party. However, there was no explicit presentation of the name of the party) to the corruption-free group by referring to the five corruption-free political reform groups, and the two-mentioned parts are closely connected with the ten-party constitutional order and the government, as well as the fact that “It is necessary for the anti-government organization to use the anti-government organization as remuneration-free as remuneration-free means of corruption-free political reform, such as illegal political funds.” It is difficult to point out that the two-way party is not free from the wrong practices of corruption-related politics, and that this is one of the causes for the election of the National Assembly members of the Republic of Korea as remuneration-free political reform groups, and thus, it is also necessary for the people to use the same politically-oriented political reform group as remuneration-free political reform group without reflections and reflections on it.”

(h) In addition, on March 27, 2004, Defendant 1, in the form of a letter of personal correspondence, posted the summary of “all school assistance, through the National Assembly Congress, passed a resolution prior to the realization of inventive politics and actively responding to this 4/15 lines. The political policy of all school assistance, which is a member of the Democratic Labor Group, is to implement the labor’s political power through the Democratic Labor Party, which is a political policy of the Democratic Labor Group.” On March 31, 2004, Defendant 1 posted the summary of “The Democratic Labor Group, on April 15, 2005, will be a member of the National Assembly for those who want to have their customers, and in the Democratic Labor Group, would gather political funds for the election of candidates.”

(i) On the other hand, it is widely known among the general public that the Democratic Labor Party has taken its own into account as “ clean and progressive reform political forces that can represent the socially alienated classes, such as workers, farmers, and ordinary people.”

(3) Comprehensively taking account of the above facts, the former executives and the heads of the former executives and the heads of the branch offices of the former executives and the former executives and the former executives and the heads of the former executives and the heads of the branch offices, who were members of the former executives and the former executives and the former executives of the Committee on the Execution of the Support for the Democratic Labor Force, who were members of the former executives and the former executives and the former executives of the Committee on the Execution of the Support for the former executives and the former executives and the head of the branch offices and the former executives, who were members of the former executives and the former executives and the former executives and the former executives and the former executives and the former executives and the latter, who were members of the former executives and the latter two months after February 204, were unable to adopt and implement a plan to support the latter executives and the former executives and the former executives and the latter, who were members of the former executives and the latter, by means of violating the Election Act. However, it was sufficient that the latter members and the latter members of the National Assembly, who were the former executives and the latter members of the National Assembly, did not adopt the impeachment.

In addition, in light of the planning and promotion of the assembly and demonstration of this case, the purpose and background of the assembly and demonstration of this case, and specific contents of expression, etc., the Defendants’ series of actions related to the assembly and demonstration of this case against the existing political forces, such as Hanraa, the open party to Korea, etc., and as an alternative force, are an active and planned act to the extent that the intent to support the democratic labor party can be objectively recognized as an alternative, and constitutes an act of supporting or opposing a specific political party or candidate prohibited by the above public election law

(4) Nevertheless, the court below found the Defendants not guilty of the facts charged on the ground that it is difficult to view the Defendants’ series of acts related to the question of this case to have been conducted for the purpose of opposing the open party of Korea and supporting the Democratic Labor Party. It erred by misapprehending the rules of evidence or by misapprehending the legal principles as to election campaign under Article 255 (1) 1 of the Public Officials Act or political activities under Article 65 (2) 1 of the State Public Officials Act, which affected the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

3. Scope of reversal

Therefore, the non-guilty part of the judgment of the court below should be reversed, and the guilty part of the defendants who committed a comprehensive crime or an ordinary concurrent crime and the guilty part of the defendant 1 who committed a concurrent crime under the former part of Article 37 of the Criminal Act (the crime of paragraph (2) of the case in 2004No3101) shall not be exempted from reversal together. However, with respect to the violation of the Assembly and Demonstration Act against the defendant 5, the court below sentenced a separate punishment in accordance with Article 18 (3) of the Official Election Act, so the scope of reversal shall be the remaining part of the judgment of the court below excluding the violation part of the Act on Assembly and Demonstration committed by the defendant 5.

4. Conclusion

Therefore, the part of the judgment below which corresponds to the above reversal portion shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Son Ji-yol (Presiding Justice)