(영문) 서울중앙지방법원 2020.12.11. 선고 2018고정478 판결

When the defendant does not pay the above fine, the defendant shall be confined in the old house for the period calculated by converting 100,000 won into one day.

However, the execution of the above punishment shall be suspended for one year from the date this judgment becomes final and conclusive.

Reasons

Criminal facts

Around May 30, 2014, the Defendant is a state public official in B high school teacher. Ch elementary school D posted a written appeal to the public to urge the withdrawal of H regime as “G” on the E-Organization website. On June 5, 2014, 2014, 23 persons including I, J, K, D, L, etc. were scheduled to publish a written appeal to the public by means of newspaper advertisement, etc. on the 10th day of 20th day of 20th day of 3rd day of 4th day of 20th day of 2014, 3rd day of 20 days of 20 days of 20 days of 3th day of 20 days of 20 days of 20 days of 20 days of 3rd day of 20 days of 3rd day of 20 days of e-mail, and 15th day of 20 days of 3rd day of 20 days of 20 days of e-mail.

The above appeal against the teachers who participated in the first teachers' declaration made around May 13, 2014 and the second teachers' declaration made around May 28, 2014, against ‘H regime is responding to the disciplinary action, accusation, intimidation, influorious violence, arrest and detention, etc.', and argued that ‘R' of the present government is negative as ‘policy to search for capital', and ‘the situation requiring the withdrawal of the S president' is an unfair pressure against the press. The "The government's government's government' was defined as ‘the government' to make the people' before the people and to look into capital rather than human life, and declared ‘H regime', ‘the demand for withdrawal from the government', ‘the demand for withdrawal from the government', ‘the demand for the withdrawal from the government', ‘the request for the withdrawal from the government', ‘the inspection of truth', ‘the relaxation of regulations', etc.

Accordingly, the Defendant committed a collective act for activities other than official duties in collusion with 159 teachers such as D, I, J, K, D, L, N.

Summary of Evidence

1. Partial statement of the defendant;

1. A copy of each police interrogation protocol against T or U;

1. A copy of each accusation of the Minister of Education (1 through 3th accusation);

1. Copy of personal information, etc. of the participants in the first teachers' declaration, copy of the first teachers' declaration, etc., copy of each fact confirmation, etc., copy of the second teachers' declaration, copy of the second teachers' declaration, personal information, etc. of participants in the second teachers' declaration, copy of the second teachers' declaration, copy of the second teachers' declaration, copy of the third teachers' declaration, copy of the third teachers' declaration, copy of the third teachers' list, copy of the third teachers' declaration, J and copy of each fifth website, copy of the list of seizure documents and contents of the E organization server, copy of the media advertising officer, copy of the copy of the statement of transactions of the third teachers' account, copy of each depositor's personal information verifying personal information, copy of the access search and seizure reply data, and copy of each news report data and output (related to V bulletin

1. A copy of request for cooperation in investigation (information as to whether a public official is a public official), a copy of reply to confirmation of subscription to the public official pension, a copy of investigation report (public official's notification of investigation into crimes, reply, etc.

1. Copy, etc. of each investigation report (a copy, etc. of a bulletin board on a V website, the confirmation of the person who posted the notice on the bulletin board, the attachment of the contents of the media advertisement, the telephone conversations with the person in charge of the press advertisement, the communication related data related to media advertising contract, personal information related to the accounts of the national bank that remitted to the NongHyup account in the name of L, the data related to the seizure of Ban Do ceb

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 84-2 and 66(1) of the former State Public Officials Act (Amended by Act No. 12792, Oct. 15, 2014; hereinafter the same shall apply); Article 30 of the Criminal Act; Selection of fines

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

[1] The defendant and his defense counsel asserted that the contents of each teacher's declaration of this case are within the scope of guaranteeing freedom of expression under Article 21 (1) of the Constitution, and that the defendant's participation under his joint signature cannot be deemed as an act for a purpose contrary to the public interest, such as impairing the political impartiality of public officials, or a collective act that affects the duty of care, such as neglecting the duty of care, and thus, it does not constitute a "collective act for a day other than public duties" prohibited by the State Public Officials Act, and (2) it is a justifiable act that does not violate the social rules under Article 20 of the Criminal Act in light of the motive or circumstance of such act.

In the case of teachers who are public officials, freedom of political expression is guaranteed, but in light of the constitutional spirit that declares the political neutrality of public officials and the political neutrality of education and the purport of relevant statutes, the freedom of political expression is bound to be limited within a certain scope. This is the limitation to assume teachers who are public officials. Moreover, in a case where the political expressive act of teachers, who are public officials, is performed in a large scale by putting their status on the front of teachers, evaluation is required taking into account their ripple effects on educational sites and society. Therefore, in a case where a group of expression by teachers, who are public officials, constitutes a specific political act prohibited against public officials under the State Public Officials Act or other individual Acts, such as the Public Official Election Act, or an act of directly expressing a specific political party or political power, and such act constitutes a degree of direct danger and injury to the political impartiality of teachers who are public officials, such as an act of directly exposing a specific political party or political force, and thus, it is difficult to see that the act constitutes a specific act against public interest beyond the present portion of teachers who are public officials, and its motive and degree of political neutrality.

"Acts which do not violate social rules" under Article 20 of the Criminal Act refers to acts which can be accepted in light of the overall spirit of legal order or the social ethics or social norms in its hinterland. Whether certain acts constitute legitimate acts that do not violate social norms and thus, the illegality of which is excluded should be determined individually by rationally and reasonably considering the following specific circumstances. Thus, to recognize such legitimate acts, the requirements such as legitimacy of the motive or purpose of the act, reasonableness of the means or method of the act, balance between the protected interests and the infringed interests, urgency, and supplementary nature that there is no other means or methods than the act (see Supreme Court Decision 2008Do11044, Mar. 14, 200).

○○ In light of the above legal principles, each of the instant declarations is a state public official, and the contents of the declarations are entirely revealed as to the instant case, and are collectively made. The demands for truth-finding and responsibility to the President at the time to criticize the government’s measures at the time and the appeal for citizens to participate in the campaign of leaving the government. As such, it is inevitable to see that the act constitutes an infringement of political neutrality by inducing the people to participate in the campaign of leaving the government by taking advantage of the status as a teacher. Ultimately, even if the act was performed outside of work hours, or even if done directly at the education site, it harms the nature of the public official’s duties, and thus, constitutes a “collective act for work other than public duties prohibited by the State Public Officials Act.” (2) In addition, it is difficult to view that the act of the public official and the public official’s collective efforts were an infringement of social interests by clarifying that the act of the public official and the public official’s collective efforts were an infringement of social interests, including the highest government officer’s political activities, and it is also difficult to consider the political and social neutrality of public officials.

Therefore, all of the arguments by the Defendant and his defense counsel cannot be accepted. The reason for sentencing is that the Defendant, through the third teachers’ declaration of this case, declared that he will leave the teachers’ status in a collective presidential campaign and resisting the people to participate in it, thereby infringing on the political neutrality to be observed by a public official. It is recognized that the Defendant violated the State Public Officials Act that prohibits collective action outside the public service, but, even though the Defendant violated the State Public Officials Act that prohibits him from acting outside the public service, it is still recognized that he expressed a question about the illegality of his behavior

However, considering the unique characteristics of the W Staff who died as he did not receive any significant relief measures, and the previous national shock and pain of him at the time, it seems that the degree of the Defendant, who was guiding students, as the same teacher, seems not to have been somewhat weak in terms of the motive or circumstance of the instant crime. However, there are some circumstances to consider the motive or circumstance of the instant crime.

In addition, the Defendant did not participate in the instant teachers’ declaration related to W Visits by means of joint signature or support, but did not take a leading role in the instant teachers’ declaration. Furthermore, the Defendant did not participate in the instant collective dispersion or E organization’s assembly assembly assembly assembly report.

Considering the above circumstances favorable to the defendant, the court shall decide to suspend the execution of a fine to the defendant who was simplely contained in the teacher's declaration and shall take into account the defendant's age, character and conduct, environment, motive, means and consequence of the crime, circumstances after the crime, equity 1 of punishment with accomplices, etc. as stated in the arguments of this case.

Judges

Judges, Chief Judge

Note tin

1) The Seoul High Court takes the lead in all or part of the first and third teachers’ declarations on August 21, 2017, and further collectively.

The Assembly and Demonstration Act’s declaration of 100,000 won and 100,000 won as against X, I, N, and J which led or participated in the Assembly and Demonstration Act.

In the case of K, T, U, D, or L which participated under the lead of the division, a fine of KRW 500,000 shall be imposed, and an appeal shall be filed against this.

In addition, the sentencing of the above punishment has become final and conclusive(Seoul High Court 20162918).

During the final appeal process without the Minister of Education, the participants of each teacher's declaration on March 2019, including the Defendant of this case, by the first policeman.

Since the complaint against the complaint was revoked in a lump sum, this is considered.

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