Defendant 1 and one other

Defendants et al.

Happiness

Attorney above-at-Law

Gwangju District Court Decision 2004Gohap394, 395 (Consolidated) Decided January 27, 2005

All appeals filed by the Defendants and the prosecutor against the Defendants are dismissed.

1. Summary of grounds for appeal;

A. Defendants

(1) misunderstanding of legal principles

The Act on the Establishment and Operation of Teachers' Unions (hereinafter "the Act on the Establishment and Operation of Teachers' Unions") prohibits all political activities against teachers' trade unions (Article 3 of the Act on the Establishment and Operation of Teachers' Unions). However, even if the trade union of the teachers engaged in political activities, such activities cannot be deemed as an act contrary to the public interest. The Defendants' act of distributing the information of this case, the act of distributing it, the solicitation campaign, and the signature campaign, etc. (hereinafter "the act of this case") do not constitute a collective act detrimental to the public official's duties or detrimental to the nature of public duties. However, the court below erred by misapprehending legal principles, thereby adversely affecting the conclusion of the judgment.

(2) The assertion of unreasonable sentencing

In light of the circumstances leading up to the assembly and demonstration of this case, the sentence imposed by the court below against the Defendants is too unreasonable.

(b) Prosecutors;

(1) misunderstanding of facts

In full view of the Defendants’ social status and activity contents, the contents of the Defendants’ announcement, and the trend of the Korean Teachers’ Union (hereinafter “former Union”)’s trade union, etc., the Defendants committed the instant act with the intent to criticize the Hanra, the New Man’s Democratic Party, the Free Democratic Union, and the open political parties and support the Democratic Labor Party, but the lower court erred by misapprehending the facts, thereby adversely affecting the conclusion of the judgment.

(2) The assertion of unreasonable sentencing

In light of the influence of the act of the assembly and demonstration of this case on the election, the social demand for the establishment of a healthy election culture, the nature of the crime of this case, and the circumstances leading to the crime, etc., the punishment imposed by the court below against the Defendants is too uneasible and unfair.

2. Determination on the grounds for appeal

A. As to the Defendants’ assertion of misapprehension of legal principles

(1) Article 66(1) of the State Public Officials Act provides that “A public official shall not engage in any collective act for any work other than a public official.” In light of all citizens’ freedom of speech, publication, assembly, and association (Article 21(1) of the Constitution), the status of a public official as a servant of all citizens (Article 7(1) of the Constitution), the public official’s duty to comply with laws and regulations, the duty to maintain good faith (Article 56 of the State Public Officials Act) and the duty to maintain good faith (Article 58(1) of the State Public Officials Act), etc., the term “collective act for any work other than a public official” under the above provision shall not be deemed to mean any collective act conducted by a public official for any work other than a public official, but it shall be interpreted that “a group act in the state of formation of an organization with a specific aim detrimental to the nature of public service, such as interfering with the discipline of duties as a public official or violating this part of the public official” (see Supreme Court Decision 2008Do626, May 26, 1998).

(2) Meanwhile, as a legitimate organization established under the Act on the Trade Union and Labor Relations of Teachers, a full-time union activity is allowed, taking into account the unique characteristics that public officials occupy a high ratio among its members and the positions of students who take lessons from the teachers belonging to the full-time school and taking into account the position of students who take lessons (Article 8 of the Act on the Trade Union and Labor Relations of Teachers). As such, in assessing the political activities of the public officials belonging to the full-time school, Article 6(1) of the State Public Officials Act stipulating that “the public officials shall not engage in any collective activity,” it is reasonable to interpret that daily union activities other than the aforementioned industrial action, such as establishment of a cooperative, various competitions for the purpose of exercising voting rights of representatives, various training meetings, and academic discussions, etc., do not include collective activities under Article 66 of the State Public Officials Act.

On the other hand, however, students who do not yet have an independent political ideology, and whose independent political decision-making ability is less mature, are engaged in political activities such as expressing the position of supporting or opposing any specific political party, political party, or candidate, etc., it is possible for teachers to accept or absorption without any reason. Therefore, it is necessary to prohibit teachers from engaging in political activities within and outside the school. For this reason, the Teachers' Labor Union Act provides that "the teachers' union shall not engage in any political activities (Article 3 of the Teachers' Labor Union Act)."

Considering this, the prohibition of political activities is a duty to be imposed as a matter of course on the teachers who are not only the labor union of non-grouped teachers but also the teachers who are its members, and there is no separate penal provision on the act of violating the above duties under the Teachers' Labor Unions Act, the collective act of a teacher who is a state public official among the members cannot be deemed

(3) In full view of the evidence duly examined and adopted by the court below, the Declaration of the Assembly and Demonstration, which was announced by the Defendants, includes the following contents: “The Assembly of the Republic of Korea took part in democracy,” “The Assembly of the Republic of Korea took part in democracy, and insulting all the people.” The 16th National Assembly of the Republic of Korea took part in the presidential impeachment as a means of dispute in order to escape the people’s adjudication on corruption politics, and the group of corrupted parties took part in the country to seek themselves.” The Defendants asserted corruption politics through this content and urged the progressive political reform, and thus, they are political activities. Furthermore, the essence of the Assembly and Demonstration of the Republic of Korea may be deemed to be a collective act that violates Article 6(1) of the State Public Officials Act or violates the duty of a public official as a collective act that violates Article 6(1) of the Public Officials Act.

(4) Sub-determination

Ultimately, the Defendants’ assertion that the instant act was not a collective act prohibited under Article 66(1) of the State Public Officials Act is without merit.

B. As to the prosecutor's assertion of mistake

(1) Summary of the facts charged

Of the facts charged in the instant case, the violation of the Act on the Election of Public Officials and the Prevention of Unlawful Election (hereinafter “Public Election Act”) and the summary of violation of the State Public Officials Act due to the violation of the signature campaign and the prohibition of voting solicitation campaign are as follows.

Defendant 1 is the president of Gwangju branch of the National Assembly (school name omitted), and Defendant 2 was the chief of the Jeonnam branch of the National Assembly, who was a teacher of Jeonnam Elementary School. The former president of the National Assembly, Nonindicted 1, 2, and other teachers belonging to the former president and the former vice-president of the National Assembly, and the former president of the National Assembly were not present. The former president of the National Assembly, the former president of the National Assembly, from March 16, 2004, announced that the former president of the National Assembly was not present at the seat of the former president of the Republic of Korea, for the purpose of supporting the former president’s democratic labor. The former president of the National Assembly was not present at the seat of the latter president of the Republic of Korea, and the latter president of the National Assembly’s impeachment against the latter president of the Republic of Korea. The latter President of the Republic of Korea’s impeachment against the latter president of the Republic of Korea’s 1st century, and the latter President of the National Assembly’s impeachment against the latter.

On March 23, 2004, around 17:25, the Assembly and Demonstration was announced in front of the Gwangju-gu Office, Gwangju-gu, Gwangju-gu, about 20 persons, and 10 persons or more engaged in each press organization in the presence of the Defendants and 20 persons in the teachers belonging to the Jeonnam-gu, Gwangju-nam Branch, and then distributed the text of the Assembly and Demonstration as news materials from the tin. At that time, they were posted on the Korean government and the Jeonnam Branch’s website, and published it on the Korean government, democratic party, democratic party, self-government training, open political party, and the present political party as a public official who is unable to engage in election campaign. In order to affect the election, the Assembly and Demonstration was conducted in an election campaign aimed at supporting the Democratic Labor Party by a lawful method, and distributed the text of the Assembly and Demonstration to support the Democratic Labor Party, and recommended the teachers of Gwangju-gu to support democratic labor, voting and signing voting for the Democratic Labor Party.

(2) Defendants’ legal actions

The Defendants’ act of the assembly and demonstration of this case, etc. is nothing more than criticism of the voters who supported the impeachment proposal of the President, and there is no change in the position related to the election or not to support or oppose a specific political party, because they merely stated the position of the former that the political parties would be able to realize the reform politics, by consistently going to the investigative agency, the court below, and the court below.

(3) Determination

(A) Comprehensively taking account of the evidence duly examined and adopted by the court below, the Assembly’s 16th National Assembly’s 12th of March, 204 “Epiced democracy,” “Epiced all the people by depicing the will of the people,” and “The 16th National Assembly depiced by the presidential impeachment as a means of dispute to relieve the people against corruption politics,” and “The 16th National Assembly’s 16th election is consistent with corruption, fluority, and reform discipline of the people, and the 10th National Assembly’s 10th of March 4th of that year’s 4th of that year’s 4th of that year’s 16th of that year’s 16th of that year’s 16th of that month’s 16th of that month’s 10th of that 1st of that 1st of that 1st of that 1st of that 3th of that 1st of that 1st of the people’s depic.

(B) As seen above, the main part of the Assembly’s decision on March 12, 2004 is that not only the camping parties that led the resolution of the impeachment prosecution resolution of the President at the National Assembly but also the House Party and the Government criticizes or oppose it as a corruption politics group, and April 15, 200 that the wall of the corrupted repair politics in the election of National Assembly was leading to the entry of a clean and inventive force into the National Assembly to represent the socially alienated, such as workers, farmers, and ordinary people. The opposition party that led the resolution of the impeachment prosecution resolution of the President was Hanna, New Manncheon Democratic Party, Self-Governing Party, etc., and the House Party was open to the public, and that the Party was a non-party representative of the non-party, such as workers, farmers, and ordinary people, and that there was almost a specific political party’s signature and signature in the election of the National Assembly members, and that it was almost one of the counter-party’s own democratic and democratic labor unions under the National Assembly.

(C) Therefore, as to whether the contents of the Assembly report of this case can be seen as supporting a specific political party or person and democratic labor, Article 58(1) of the Act provides that "election campaign" refers to an act to be or not elected," and "election campaign" as mentioned above refers to any act necessary or not for the election or defeat of a specific political party or candidate, and is objectively recognized as an objective act for the purpose of promoting the election or defeat of a certain candidate, as an act in favor of necessary or favorable for the election or defeat of a certain political party or candidate. Specifically, in determining whether an act constitutes an election campaign, it should be determined not only on the pretext of the act, but also on the form of the act, place, method, etc. of the act, and whether it is an act accompanying the purpose of promoting a certain candidate's election or defeat of a certain candidate's election (see Supreme Court Decision 98Do1432, Apr. 9, 199).

그런데, ① 검사가 참고자료로 제출한 ‘민주노총 2004년 4·15 총선방침’ 사본(공판기록 제107쪽 내지 제121쪽), ‘전교조 4·15 총선대응 사업계획’ 사본(공판기록 제122쪽 내지 제127쪽)의 각 기재에 의하면, 민주노총의 선거전략은 민주노동당 후보를 지지하여 당선시키자는 것으로서 민주노동당을 지지하는 구체적인 지침까지 만들었는데, 전교조는 민주노총의 산하 단체이기는 하나 당시 전교조가 작성한 ‘전교조 4·15 총선대응 사업계획’에는 진보정당 지지선언 여부를 중앙집행위원회의 논의사항으로 정하였을 뿐이고 이를 확정적인 실천사항으로 결정하지는 아니한 점(다만 ‘민주노총 2004년 4·15 총선방침’의 기재에 의하면, 민주노동당을 명실상부한 진보정당으로 규정하고 있으므로 ‘전교조 4·15 총선대응 사업계획’상 진보정당은 민주노동당을 의미하는 것으로 보이나 뒤에서 보는 바와 같이 위 사업계획과 이 사건 시국선언행위 등이 견련되어 있다고 인정할 자료도 없다), 이후 2004. 3. 10. 전교조 중앙집행위원회가 개최되어 ‘민주노동당 지지선언 여부’와 ‘전교조가 정당 실명 지지선언을 할 수 있는가’를 집중적으로 논의하였는데, 당시 전교조 조합원들 중에는 한나라당이나 열린우리당, 민주노동당의 지지자들이 상호 존재하는 관계로 명시적으로 특정 정당을 지지하는 것은 조합원들의 반발이 클 것이라는 주장이 대세를 차지하였고, 또한 실정법상 교육공무원은 정치활동을 금지하는 등의 제약을 받기 때문에 결국 전교조 명의의 ‘민주노동당 지지선언’은 실정법 위반의 소지가 있어 실천할 수가 없다고 결론을 내린 점, 이에 따라 전교조는 민주노총의 총선방침인 민주노동당 공개적 지지 방침을 그대로 따를 것이 아니라 전교조 실정에 맞게 이를 실천하되 외부적으로 민주노동당을 지지한다는 내용의 결의를 하지 않기로 공식적으로 결정하였고, 다만 위원장인 공소외 1은 개인서신 형태로 민주노동당을 지지한다는 민주노총의 방침을 전교조 소속 교사들에게 전달한 점, ② 이 사건 시국선언문에는 ‘민주노동당’이란 용어를 전혀 사용하고 있지 아니하며, 그 주된 내용 또한 2004. 3. 12. 국회의 대통령 탄핵소추결의안 의결에 대하여 이를 비판 내지 반대한다는 취지이고, 이 사건 시국선언문에 나타난 탄핵소추에 찬성한 부패 수구집단을 선거를 통해서 심판해야 한다는 내용은 위와 같은 탄핵소추결의안 의결을 비판하는 과정에서 나온 부수적인 사항으로 보일 뿐만 아니라, 그 내용 또한 구체적으로 특정한 정당을 지지하거나 반대하는 것이라고 하기보다는 탄핵결의안 의결에 찬성한 부패수구집단을 반대하고 그 대안으로서 진보적인 세력을 지지하겠다는 다소 추상적이고 일반적인 정치적 의사를 표현한 것으로 보이는 점, ③ 또한 이 사건 시국선언문 중 선거와 직접 관련되는 내용으로는 “우리 교사들은 4·15 국회의원 선거에서 부패한 수구보수정치의 벽을 허물고 노동자, 농민, 서민 등 소외 계층을 대변할 수 있는 깨끗하고 진보적인 세력을 국회에 진출시키는데 앞장선다”는 문구 정도인데, 위 내용은 그 이전의 문맥에 비추어 보면 다가오는 선거에서 기존의 정치인들 중 부패한 정치인들을 추방하는 대신 참신하고 깨끗한 정치인들을 등용시키자는 원론적인 입장을 밝힌 것으로 보이고, 피고인들 또한 민주노동당 후보자들뿐만 아니라 기존의 한나라당, 열린우리당 등에도 부패에 물들지 않은 참신하고 깨끗한 정치인들이 다수 있음을 인정하고 있는 점, ④ 전교조 중앙집행위원회 모임은 대략 한 달에 한 번 정도 개최되는데, 전교조 중앙집행위원회 모임이 2004. 3. 10. 열린 바 있으므로 2004. 3.에는 더 이상 그 모임이 없었을 것임에도, 2004. 3. 12. 탄핵소추결의안이 의결되자 2004. 3. 16. 다시 비상 전교조 중앙집행위원회 모임이 개최되어 탄핵 정국에 대한 전교조의 입장을 밝히자는 논의를 하게 되었고 그 논의결과에 따라 이 사건 시국선언문이 발표되게 된 것으로 보이므로, 이 사건 시국선언문은 전교조의 4·15 총선대응 계획에 따라 선거에 영향을 미치거나 선거운동을 하기 위하여 미리 준비되어 예정된 대로 실천한 것이라기보다는 대통령 탄핵소추결의안 의결이라는 전 국민적 관심사에 대한 전교조의 입장을 밝히기 위하여 급박하게 이루어진 것으로 보여지는 점, ⑤ 이 사건 시국선언문에 나타난 ‘진보적인 세력’에서의 ‘진보’라는 개념과 ‘수구보수정치’에서의 ‘보수’라는 개념은 받아들이는 사람에 따라 의미가 다른 상대적인 개념으로서 어느 특정 정당 소속 후보자만을 일률적으로 ‘진보적인 세력’으로 단정지을 수 없고, 또한 이 사건 시국선언행위 당시 중앙선거관리위원회에 등록된 정당은 이 사건 공소사실에 적시된 ‘한나라당, 열린우리당, 자민련, 새천년민주당, 민주노동당’ 이외에도 ‘국민통합21, 민주국민당, 개혁국민정당, 노년권익보호당, 녹색사민당, 사회당’ 등 무려 22개나 되고 많은 정당들이 ‘진보’를 표방하고 있었던 것은 공지의 사실이므로, 이 사건 시국선언문에 나타난 ‘진보적인 세력’을 ‘민주노동당’(선거결과 위와 같은 ‘진보’를 표방하던 많은 정당 중에서 원내 진출에 성공한 대표적인 ‘진보’ 정당이 되었을 뿐이다)으로 한정하기는 어렵다는 점과 공선법상 선거에 관한 단순한 의견개진 및 의사표시는 허용되고 있는 점( 공선법 제58조 제1항 제1호 ) 등을 종합하여 보면, 이 사건 시국선언문에 나타난 ‘진보적인 세력’을 민주노동당이나 그 후보자를 가리키는 것으로 단정할 수는 없고, 달리 이를 인정할 만한 증거도 없다.

(D) Sub-determination

Therefore, among the facts charged in the instant case, the Assembly and Demonstration Act was distributed and posted to support the Democratic Labor Party by means of public officials’ election campaign, unlawful act, act of distributing and posting the notice to support the Democratic Labor Party, voting solicitation campaign to support the Democratic Labor Party, violation of the Act on Election of Public Officials and the Prevention of Election Unlawful Act due to signature exercise, and violation of the State Public Officials Act due to the voting solicitation campaign to support the Democratic Labor Party, and the signature solicitation campaign to support the Democratic Labor Party cannot be recognized, and there is no proof of crime. Thus, the judgment of the court below that acquitted the Defendant on the ground that there is no proof of crime. The prosecutor’s assertion of

C. As to the Defendants and the Prosecutor’s assertion of unreasonable sentencing

Considering all the above arguments as to sentencing against the Defendants and the Defendants of the public prosecutor, in full view of the Defendants’ age, character and conduct, criminal record, occupation and environment, motive and consequence as indicated in the record, various conditions of sentencing as indicated in the records of the instant case, such as the circumstances after the crime (in particular, the contents of the instant assembly and demonstration, the place where the act was committed, the method of the act of assembly and demonstration, etc.) are deemed reasonable, and thus, each of the above arguments

3. Conclusion

Therefore, the appeal by the defendants and the appeal by the prosecutor against the defendants is without merit, and they are dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Doksung (Presiding Judge)