Defendant

Prosecutor

Constitution of the Republic of Korea

Law Firm Dasan General Law Office (Attorney Lee Dong-chul)

Seoul Central District Court Decision 2004Da3624 Delivered on January 28, 2005

The prosecutor's appeal is dismissed.

1. Summary of prosecutor's grounds for appeal;

A. First, Article 3(1) of the State Public Officials Act provides that “The provisions of this Act shall not apply to public officials in special career service except for the provisions of Articles 33, 46 through 67, and 69, unless otherwise provided for in this Act and other Acts, the provisions of this Act shall not apply to public officials in special career service.” As to public officials in special career service, Article 66(1) of the same Act shall be interpreted as a premise for the application of Article 84 of the same Act, which is a penal provision for the violation of Article 66 of the same Act, as a matter of course, as long as Article 66(2) of the same Act stipulates that public officials in special career service shall be subject to the duty of service. However, the lower court erred by misapprehending that Article 84 of the same Act shall not apply to public officials in special career service, unless Article 84, which

B. On the other hand, Article 38 of the Special Act on the Finding of Questions and Photographs provides that "the members or employees of the Committee who are not public officials shall be deemed public officials in the application of penal provisions under the Criminal Act or other Acts." Thus, non-standing members who are not public officials may be punished for the collective action of this case by applying Article 38 of the above Act and Articles 84 and 66 of the State Public Officials Act to the collective action of this case, and if the defendant jointly committed a collective act with them, he can be punished as a joint principal offender, the court below, as seen earlier, punish only public officials with career experience experience experience experience in the collective action of the State Public Officials Act, and "public officials" in Article 38 of the Special Act on the Finding of Speakers and Photographss shall be deemed public officials, considering the nature of the Committee in terms of literary photographs and the fact that other members except non-standing members are public officials with special career experience in the application of penal provisions to collective action of the State Public Officials Act, so it shall be interpreted as a joint principal offender.

2. Determination

In light of Article 3(1) of the State Public Officials Act, except for the provisions of Articles 33 and 46 through 67 of the same Act, the provisions of this Act shall not apply to public officials in non-career service. Unless there are special provisions that Article 84 of the above Act applies to public officials in special career service, it shall not be avoided that Article 84 of the above Act shall not apply to public officials in special career service according to the principle of no punishment without the law. Non-standing members of the Committee who are "non-standing members of the Committee" under Article 38 of the Special Act on Finding the Truth of Questions shall be divided into public officials in career service and public officials in special career service, and it shall be deemed that public officials in special career service are public officials for the same reason as the court below's instruction, and thus, it shall not be deemed that there is an error of law in the misapprehension of legal principles as to the act of publishing this case's name and public interest, and it shall not be deemed that it does not constitute a violation of the law of no punishment of a public official in special career of 9.

3. Conclusion

Therefore, since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Jong-sik (Presiding Judge)