Defendant 1 and one other

Both parties

Park Sang-Jin (Court) and Kim le-Jap (Court)

Attorneys Kim Jong-soo et al., Counsel for defendant-appellant

Seoul Southern District Court Decision 2009Ma590 Decided September 28, 2010

Of the lower judgment, Defendant 2 trade union part of the lower judgment is reversed.

Defendant 2 Labor Union shall be punished by a fine of KRW 1,000,000.

Defendant 2’s trade union shall order the provisional payment of an amount equivalent to the above fine.

The appeal by Defendant 1 and the prosecutor’s appeal by Defendant 1 are all dismissed.

1. Summary of grounds for appeal;

A. Defendant 1’s assertion of mistake or misapprehension of legal principle

Since Defendant 1’s act of taking part in the candlelight assembly is a legitimate act permitted under relevant Acts and subordinate statutes, or an act that does not go against the public interest or duty of care, the court below erred by misunderstanding of facts or misunderstanding of legal principles.

B. Fact-finding or misapprehension of legal principles on the defendant union

Defendant 2 Trade Union (hereinafter “Defendant Union”) was merged with Nonindicted 1 Trade Union and Nonindicted 2 Trade Union on September 21, 2009 and changed its name as Defendant 2 Trade Union after Nonindicted 3 Trade Union was established, and reported the establishment report and dissolution report to the Minister of Labor around December 2009. Accordingly, Defendant Union should be dismissed as it ceased to exist due to the merger.

C. The defendants and prosecutor's allegation of unfair sentencing

The sentence of the lower court (Defendant 1: a fine of three million won, and a fine of one million won in the case of the Defendant association) is too heavy or (a fine of one million won in the case of the Defendant) is unreasonable.

2. Judgment on Defendant 1

When comprehensively considering the purpose, process, preparation process, etc. of the execution of this case which is lawfully admitted and investigated by evidence, Defendant 1’s act of participating in the assembly of this case is an act of expressing political intent to exercise influence in the process of decision-making on government policies in connection with a specific political party or political force, or an act of politicalizing public official labor union, which is contrary to the public interest and is highly likely to impair the fairness of duties and infringe on the public trust, and thus is contrary to the public interest, impeding the discipline of duties as a public official, or impairing the essence of public duties. Thus, it is reasonable to view that it constitutes a collective act with neglect of duty-oriented duty as defined in Article 58(1) of the former Local Public Officials Act, on the other hand, it is reasonable to view that it constitutes a collective act with purposes other than public duties prohibited under Article 58(

Furthermore, in full view of the circumstances favorable to Defendant 1, Defendant 1 did not have any history of punishment exceeding a fine, unfavorable circumstances, Defendant 1’s crime is an offense that may cause the public confidence in the political neutrality of public officials, and all of the sentencing conditions specified in the records and arguments of this case, including the Defendants’ age, character and conduct, circumstances leading to the crime, and circumstances after the crime, etc., it cannot be deemed that the lower court’s punishment is too heavy or unreasonable.

3. Determination on the part of the defendant association

(1) The term “merger of a trade union” means that one or all of the trade unions to which the trade union is a party is dissolved and terminated without liquidation procedures; the existence or establishment of one trade union as a single trade union; and Article 28(1)2 of the Trade Union and Labor Relations Adjustment Act (hereinafter referred to as the “Trade Union Act”) stipulates that a trade union becomes extinct due to the merger or division of a trade union as one of the grounds for dissolution of a trade union. (2) A trade union newly established due to the merger of a trade union shall complete the requirements provided for in Article 2 subparag. 4 of the Trade Union Act and the report on establishment pursuant to Article 10 of the Trade Union Act if the newly established trade union fails to meet such requirements, the merger effect of a trade union may not occur if the newly established trade union fails to meet such requirements; and (3) The same legal principle applies to a public official trade union pursuant to Article 17(2) of the Public Officials Labor Relations Adjustment Act No.

However, according to Article 276 of the Criminal Procedure Act, if the defendant is absent, the court shall not revise the law, and according to Articles 27 and 28 of the same Act, the representative represents the litigation, and if there is no representative, the special representative appointed by the court shall not revise the duty of the representative. Therefore, if the defendant is a legal person, the representative or the special representative shall be present and shall not be present without his/her presence. However, under the proviso of Article 276 of the Criminal Procedure Act, other agents may be present pursuant to the proviso of Article 276 of the Criminal Procedure Act. However, according to Article 126 of the Regulation on Criminal Procedure, when the legal person is allowed to attend, the court shall submit a document proving the granting of his/her power of attorney to the court. According to the records, the representative of the defendant association shall be changed from March 19, 201 to Nonindicted 4, and March 19, 2012, the fact that the representative of the defendant association was not present at the time of examination of evidence or the judgment of the court.

4. Conclusion

Therefore, since the appeal by the defendant 1 and the prosecutor's appeal against the defendant 1 are without merit, all of them are dismissed pursuant to Article 364 (4) of the Criminal Procedure Act, and since the part of the judgment below among the defendant union is subject to the above ex officio reversal, the judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant union and the prosecutor's allegation of unfair sentencing, and it is

Since the criminal facts of Defendant 2’s trade union acknowledged by this court are the same as the corresponding column of the judgment below, they shall be quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Defendant 1 and Defendant 2’s agent’s legal statement

1. A written accusation;

1. Each defendant 2 trade union's official document, official document of corrective order, official document of resolution request, official document of corrective order request, official document of each corrective order request, official document of request for extension of due date, official document of corrective order, official document of order for corrective order, official document of order for corrective measure, defendant 2 trade union rules, each temporary meeting data of the Central Executive Committee, meeting data of the Central Committee, and public notice of convening the National Congress;

1. Article applicable to criminal facts;

Articles 94, 93 subparag. 2, and 21(1) of the Trade Union and Labor Relations Adjustment Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

In addition to the revision of the trade union rules of this case, various sentencing conditions as shown in the records and arguments of this case shall be determined in the same manner as the order.

Judge Lee Sung-gu (Presiding Judge)