2010No2572 A. Violation of the Local Public Officials Act

B. Violation of the State Public Officials Act

1. A.

2.2.B

3.(a) C.

4.(a) D.

5.(a) E

6.b)F

7.(a) G

8.(a) H

9.2.1

Defendants and Prosecutor

Lee Hun-Ba (Court of Prosecution), Lee Jin-hun, and leap Superintendent (Court of Public Trial)

Law Firm M (For the defendant)

[Defendant-Appellant]

Law Firm Q (for the defendant)

Attorney R R

Attorney BP (for the defendant)

Attorney J (for the accused)

Attorney K (for the defendant)

Attorney BO (for the defendant)

Attorney L (for the defendant)

Law Firm BR (For the defendant)

[Defendant-Appellee]

Seoul Central District Court Decision 2010Gohap220 Decided September 13, 2010

June 21, 2012

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

1. Summary of grounds for appeal;

A. Defendants

1) Common assertion

A) Of the facts charged in violation of the principle of an indictment only, among the facts stated in the indictment of this case, the part as to the contents of disciplinary policy as to the public official trade union's public official's disciplinary measure as of June 23, 2009, 'the contents of e-mail between the roles and related parties of each organization' in the preparation process of the second public competition, 'the contents of 'the contents of e-mail', 'the participants who are unrelated to the defendants' acts and their acts in the second public competition of this case should have a judge's unfavorable prejudice against the defendants, and 'the contents of 'the contents of e-mail' are against the principle of an indictment only because it is against the principle of an indictment only 'the contents of other facts that are disadvantageous to the defendants by allowing the acceptance of un

B) misunderstanding of facts or misapprehension of legal principles

For the following reasons, the court below erred by misunderstanding of facts or misunderstanding of legal principles which affected the judgment.

(1) A public official’s “school building and a public official’s “the second citizen’s meeting for the recovery of democracy”, which is a second citizen’s meeting due to the difference between the contents of the first and second assemblies, was an assembly directly related to the improvement of working conditions, such as the objection to disciplinary action and the public officials’ pension, and the second citizen’s meeting for the recovery of democracy was organized by a political party and a civic organization, and the defendant et al. was merely a mere attending the meeting with the invitation or individually, and there are many differences in its name, organizer, agenda, content of assertion, the attendance of the defendants, and the degree of involvement. However, the judgment of the court below erred in the misapprehension of legal evaluation or disregarding the difference.

(2) The illegally interpreted scope of "reasonable activities related to a trade union" under Article 3 (1) of the former Act on the Establishment and Operation of Public Officials' Unions constitutes legitimate activities related to the exercise of the right to organize as "the strengthening of union's union's union formation". As long as the nature of freedom of expression, etc. is permitted as a constituent body under the Constitution, a trade union may be the subject of fundamental rights. As such, the participation in the second half assembly constitutes legitimate trade union activities as the subject of freedom of expression. In light of the opposite interpretation of the Trade Union Act or the Public Official Election Act, it can be confirmed that a trade union may engage in certain range of political activities. Nevertheless, the judgment of the court below is erroneous in the misapprehension of legal principles that are not included in legitimate trade union activities, thereby affecting the conclusion of the judgment.

(3) Violation of legal principles as to public officials' political neutrality obligation

The judgment below held that "the duty of political neutrality of public officials as provided in Article 4 of the former Act on the Establishment and Operation of Public Officials' Unions (amended by Act No. 10133, Mar. 17, 2010; hereinafter referred to as the "former Public Officials' Labor Unions Act") shall be borne by a private person as long as a public official acts as part of the activities of a trade union." However, it is unlawful as an interpretation contrary to the decision of the Constitutional Court that "the status of a public official is divided into a private person's status and a status as a State agency" and "the political neutrality of a public official" is limited to the neutrality based on the status as a state agency and even if a public official is a private person, the fundamental right in a private person's status shall

(4) Violation of the misapprehension of legal principles as to the interpretation of the prohibition provision of political activities under Article 4 of the former Public Officials Labor Union Act

Article 4 of the former Public Officials' Labor Unions Act and its members' political activities should be limited to political activities or election campaigns prohibited by the State Public Officials' Labor Unions Act, the Local Public Officials' Act, or Public Officials' Election Act, but the judgment of the court below interpreted that the violation of Article 4 of the former Public Officials' Labor Unions Act is not a ground for criminal punishment against public officials, since there is no separate penal provision regarding the violation of Article 4 of the former Public Officials' Labor Unions Act, it is not a ground for criminal punishment against public officials. In the review report and review report discussed in the National Assembly at the time of the enactment of the Public Officials' Labor Unions Act, it was expressed that the public officials' labor union should not additionally prohibit political activities in accordance with the formation of the public officials' labor union union union, and it was prohibited from election campaigns and political funds under the title that Article 12 (1) of the former Public Officials' Labor Unions Act is prohibited, and even in the military Germany case where the political activities of private unions are restricted, it was prohibited from joining the election campaign and collection of public officials' labor union.

In light of the fact that the scope of restrictions on political activities is expanded, thus going against the principle of equality, and the improvement of working conditions, such as the wages of public officials, can only be realized only through the revision of statutes or the resolution of the Council, so trade union activities have certain characteristics of political activities to a certain extent, and public officials are also the subjects of enjoying freedom of political expression as a citizen of the Republic of Korea, it is unfair by excessive expansion interpretation.

(5) Violation of the legal principles as to the interpretation of Article 66 of the former State Public Officials Act and Article 58 of the former Local Public Officials Act

First, Article 3(1) of the former Public Officials' Labor Unions Act provides that the main sentence of Article 66(1) of the former State Public Officials' Act (amended by Act No. 10148, Mar. 22, 2010; hereinafter "former State Public Officials' Act") and Article 58(1) of the former Local Public Officials' Act (amended by Act No. 10147, Mar. 22, 2010; hereinafter "former Local Public Officials' Act") shall not be applied to legitimate activities related to labor unions. Thus, the application of Article 66(1) of the former State Public Officials' Labor Unions Act or Article 58(1) of the former Local Public Officials' Labor Unions Act other than the penal provision of the former Public Officials' Labor Unions Act is unfair contrary to the purpose of legislation.

다음으로, 원심판결은 피고인들의 이 사건 집회 참가행위는 구 공무원노조법 제4조 에 위반하는 집단적 정치활동에 해당하고 또한 사회의 갈등과 혼란을 가중시킬 우려가 크다는 점에 비추어 공익목적에 반한다고 판단하였는바, 이는 이 사건 집회 참가행위는 구 공무원노조법 제4조 위반에 해당하지 않는다는 점, 공무원이 정부정책의 문제점을 지적한다고 해서 사회의 갈등과 혼란이 가중될 것이라는 판단은 검증되지 않은 자의적 추측에 불과하다는 점, 잘못된 정책으로 인한 피해가 빤히 보이는데도 모든 공무원들이 단지 공무원이라는 이유만으로 무조건 침묵한다면 그로 인한 사회적 피해와 혼란은 더욱 클 것이라는 점, 정부는 공무원노동조합의 사용자라는 지위도 가지고 있어 노동조합은 언론활동을 통하여 사용자의 정책을 비판할 수 있고 이러한 활동은 표현의 자유라는 기본적 인권의 행사이기도 하고 단결권의 행사이기도 하다는 점, 국제기준에 비추어 보면 공무원의 일반적인 정치적 표현의 자유를 제약하는 입법례는 거의 없고 공무원이라는 이유만으로 일반적인 정치적 표현의 자유를 제약하는 것이 오히려 공익에 부합하지 않는다는 점, 형벌은 최후의 수단으로서 최대한 자제되어야 한다는 점 등을 고려하면 공익 목적에 반하는지 여부를 해석함에 있어 법리오해의 위법을 범하였다. 또한 원심판결은 공무원의 집단행위가 공익 목적에 반하면 직무전념의무도 해태한 것으로 의제하였는데, 이는 '공익 목적에 반할 것' 뿐만 아니라 '직무전념의무를 해태하였을 것'을 별도의 요건으로 해석한 대법원 판례에 정면으로 반한다. '직무전념의무를 해태하였는지 여부'는 직무수행을 매개로 하여 판단할 문제이며, 휴일에, 직무와 상관없이, 공적인 행정기구가 아니라 사적인 임의기구에 불과한 노동조합을 매개로 행위가 이루어진 이상 직무전념의무를 해태한 바가 전혀 없다.

C) Unreasonable sentencing

The sentence against the Defendants of the lower court (the fine of KRW 2 million for Defendant A, H, and I: each of the fines of KRW 2 million; KRW 1.5 million for Defendant B, C, D, E, and G; Defendant F: each of the fines of KRW 1.5 million; the fine of KRW 1 million for Defendant F) is too unreasonable.

A) Defendant D

Although Defendant D is a public official who is actually engaged in labor, which is excluded from the application of the prohibition of collective action, the prohibition of collective action and the provision on criminal punishment shall be considered as an identification crime, and the judgment of the court below which applied the main sentence of Article 33 of the Criminal Act in full and applied the same as a co-principal shall be erroneous in the misapprehension of facts

B) Defendant F

Defendant F did not participate in the second citizen competition of this case held in the Seoul Square, which is likely to be at a disadvantage in relation to his status, but did not appear in the second citizen competition in the Seoul Square, and the situation of the assembly was maintained, but Defendant F participated in the above assembly but there is an error of law that affected the conclusion of the judgment by mistake of facts.

C) Defendant 1’s labor union did not decide to attend the first session, and reserved the decision of the union members or the individual members to decide whether to participate in the meeting. Defendant 1 cannot be the organizer of the first session, and Defendant 1 is merely an individual participation in the second session without being invited as an open space, and thus, it cannot be deemed that Defendant 1 did not engage in collective action. However, the judgment of the court below which found Defendant 1 guilty of the facts charged in this case as to Defendant 1, was erroneous in the misapprehension of facts or in the misapprehension of legal principles

(b) Prosecutors;

The sentence against the Defendants of the lower court is too uneasible and unreasonable.

2. Determination:

A. Determination as to the Defendants’ common assertion

1) Judgment on the violation of the principle of an indictment only

The principle of an indictment only shall be submitted when a public prosecutor institutes a public prosecution, and it shall not be attached or quoted to other documents or articles that may cause prejudice to the court on the case (Article 118(2) of the Rules on Criminal Procedure). It shall be included in the contents of the principle of an indictment only as ‘Prohibition of entry of other facts' that may cause prejudice to the court as a fact other than the facts required by the law. Whether the violation of the principle of an indictment only is included in the contents of the indictment. In light of the type and contents of a crime as stated in the facts charged, etc., the issue of violation of the principle of an indictment only shall be specifically determined in the relevant case based on whether the facts other than those attached or quoted in the indictment may cause prejudice to the judge or jury to grasp the substance of the crime (see, e.g., Supreme Court Decision 2009Do7436, Oct. 10, 209; 2009Do7436, Feb. 22, 202).

With respect to this case, the part of the facts charged in this case where the Defendants pointed out in the grounds of appeal is with a view to clarifying the motive, circumstance, etc. leading up to the Defendants’ collective action for work other than official duties under Article 66(1) of the former State Public Officials Act and Article 58(1) of the former Local Public Officials Act, and it does not seem to have explicitly stated the reasons that may cause a judge’s prejudice. Thus, the part of the facts charged in this case’s cannot be deemed to be in violation of the principal principle of indictment.

Therefore, this part of the Defendants’ assertion is without merit.

2) Judgment on misconception of facts or misapprehension of legal principles

A) misunderstanding of facts due to the difference in the content of the first and second assemblies

(1) Facts of recognition

According to the evidence duly admitted and investigated by the court below, the following facts are recognized:

① On June 18, 2009, the Assembly of the Republic of Korea's Teachers and Employees' Union (hereinafter referred to as the "Korean Teachers' Union") referred to as ‘candlelightlights investigation investigation', ‘PD pockets investigation investigation investigation', ‘use fire accident investigation', ‘inter-Korean relations light color', and ‘education crisis' of the current government', which caused a crisis in democracy as fundamental human rights have been seriously damaged due to abuse of public power by the present government. This was criticized for the current government's policies that were derived from the reading of the present government and the operation of the reading station.

(2) On the same day, the Korean Democratic Public Officials’ Union (hereinafter “Public Officials’ Union”) supported the Assembly and Demonstration Act on the same day. The government, “the withdrawal of disciplinary policy,” supported the Assembly and Demonstration Act, and announced the name claiming to withdraw the disciplinary action against the participants.

③ On June 22, 2009, the executive officers of the public-private partnership union, the National Public Officials' Union (hereinafter referred to as the "public-private partnership union"), the court-private partnership union (hereinafter referred to as the "law-private partnership union"), etc. (hereinafter referred to as the "three public-private partnership unions") discussed that three public-private partnership unions jointly cooperate with the public-private partnership union at the court-private partnership office located in Seocho-gu Seoul, Seocho-gu, Seoul.

④ On June 23, 2009, the Ministry of Public Administration and Security: (a) stated that the assembly and Security was a collective act prohibited by the State Public Officials Act; (b) and (c) requested the assembly and Security to refrain from taking judicial and disciplinary measures against all the persons concerned.

⑤ At around June 26, 2009, three public officials labor unions S et al.: “Public Officials’ Union and Demonstration Council-Related Blue Blue Blue Blue Blue-Plue Blue-Plue Blue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plu, etc.” from July 8, 2009 to August 18, 2009, the two public officials’ unions Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plue Plu.” was included.

6. The public-private partnership notified the fact of holding the instant instant Extraordinary that it will proceed together with the instant second pan-national conference through the home page of the labor union through the newspaper advertisement and website in the name of the trade union, and urged the union to attend the meeting.

7) The Defendants, as a public labor dispute S, U, X, Y, Z, major labor dispute S, court labor dispute S, etc., participated in the preparation of the instant Extraordinary and the second pan-national conference, and the encouragement of members’ participation in the preparation of the instant Extraordinary and the second pan-national conference, by sharing the roles of deciding on or distributing the guidelines for the public labor union, major labor union, or court labor dispute to subordinate branches.

8) On July 19, 2009, the second national conference of this case, including the instant regular dismissal, speech-making, lecture of the press law, and lecture of the fourth class AC-D Government Finding which died, was planned and carried out under the hosting of political parties, such as AE political parties, and civic groups, such as the National Democratic Democratic People's Society, etc., with the name of "regular dismissal, lecture of the press law, and the fourth class A-D Government Finding." The three public officials' union groups, along with the previous lecture, attended by a majority and made a speech at the request of the above sponsoring group, while taking charge of the progress of the instant second national conference, which is the prior nature of the instant second national conference, which is a public official's participation, the former S and three public officials' labor unions of this case, and the former public official labor union S, made a speech to Defendant A and Defendant H as follows:

④ From the time of the instant Extraordinary Games, the organizer of the instant 2nd 2nd 1st 2nd 2nd 1st 1st 1st 2th 2th 2th 2th 2th 2nd 3th 3th 3th 2th 3th 3th 3th 3th 3th 2th 3th 2th 3th 3th 3th 3th 3th 190 3th 3th 4th 3th 4th 17th 100 3th 3th 4th 3th 3th 4th 3th 190 3th 3th 4th 3th 3th 4th 3th 4th 3th 190 3th 4th 3th 3th 4th 3th 3th 3th 3th 3th 3th 3th 3th 3th 3th 3th 3th 2nd 19th 2th 2th 10th 3th 3th 1.

① The flag of each public official labor union, to which the Defendants belong, was posted at the site of the instant assembly, and no banner or flagpole was additionally installed before the commencement of the instant second national conference after the completion of the instant Circuit, and the public officials belonging to the three public officials labor union at the site of three public officials and labor union did not leave the job almost.

(2) Determination

Comprehensively taking into account the following circumstances, ① in the process of promoting the preparation for and participation in the 2nd national conference, the participants in the 2nd national conference could not be classified into separate independent assemblies. ② The 2nd national conference and the 2nd national conference held continuously at the same place were different in form, but the overall organizer and participants of the 2nd national conference were the same. As the 2nd national conference were the prior events of the 2nd national conference, the 2nd national conference were deemed to have been a part of the 2nd national conference in entirety. ③ Since the 3nd national conference and the 2nd national conference were led to a strong relief by the participants in the entire process of the 3nd national conference, the Defendants were not able to participate in the 2nd national conference and the 2nd national conference with public officials belonging to the 3th national union and continuously participate in the 2nd national conference and the 2nd national group's political activities, such as the withdrawal of the 2nd national conference and the 2nd national group's political activities.

Therefore, this part of the Defendants’ assertion is without merit.

B) Illegal assertion that the scope of "reasonable activities related to trade unions" under Article 3 (1) of the former Public Officials' Labor Unions Act is excessively narrow.

(1) The meaning and scope of "reasonable activities relating to trade unions"

In accordance with the legal reservation of Article 37 (2) of the Constitution, the former Public Officials' Labor Union Act limits the scope of activities of a public official trade union in principle to activities to improve economic and social status, such as remuneration, welfare, and other working conditions of the public official trade union or its members. Matters concerning the management and operation of the agency, such as policy decision-making by the State or a local government under its authority, exercise of the right to appoint, etc., which are not directly related to the working conditions, shall be excluded from the scope of activities (Article 8 of the former Public Officials' Labor Union Act). Public officials shall not engage in any conduct contrary to the duties of public officials prescribed by other Acts and subordinate statutes (Article 3 (2) of the same Act). A trade union and its members shall not engage in political activities (Article 4 of the same Act).

Therefore, "reasonable activities related to a trade union" under Article 3 (1) of the former Public Officials' Labor Union Act means activities to maintain and improve the working conditions of public officials and to promote the enhancement of social and economic status, which do not violate the duties of public officials prescribed by other Acts and subordinate statutes and do not constitute political activities prohibited under Article 4 of the former Public Officials' Labor Union Act.

(2) Judgment in this case

In light of the above facts, the Defendants’ act of participating in the above assembly cannot be seen as a “justifiable act related to the labor union” under Article 3(1) of the former Public Officials’ Union Act, in light of the purpose, process, preparation process, and contents of speech and relief at the assembly, etc., as seen above, as a collective expression of political intent to pressure the government by linking the specific political parties and civic groups with the clear political decentralization, and to exercise influence in the process of government policy decision, the Defendants’ act of participating in the assembly collectively cannot be seen as a “justifiable act related to the government organization” under the above provision of Article 3(1) of the former Public Officials’ Union Act, since the Ministry of Public Administration and Security, as seen above, stated that the Defendants’ act of participating in the above Extraordinary did not appear to be a legitimate act of the public official’s participation in the assembly, which was part of the public official’s opinion and disciplinary measure against the public official in question, for the purpose of public official’s participation in the assembly, which was related to the government’s participation in the assembly and disciplinary measure.

C) The assertion of misapprehension of legal principles as to the duty of public officials to maintain political neutrality and the interpretation of the prohibition clause of political activities under Article 4 of the former Public Officials' Labor Unions Act

(1) Possibility to request public officials to maintain political neutrality and restrict freedom of political expression

Article 7 (1) of the Constitution of the Republic of Korea provides that "public officials shall be volunteers for the entire people and shall be responsible for the people," Paragraph (2) provides that "the status and political neutrality of public officials shall be guaranteed under the conditions as prescribed by Act," and the request for political neutrality of public officials shall be made in a neutral position because public officials are service providers for the entire people, and thus, public officials pursue public interest in a neutral position, prevent political intervention in administration, enhance the professionalism and democracy in administration, maintain the continuity and stability of the policy, notwithstanding the change of the regime, ensure the stability of the status of public officials, prevent any harm such as corruption and corruption caused by the parliamentary system, and actively take charge of the function as an arbitrator and mediator of socioeconomic conflict arising from the development of capitalism. In general, considering each of the above grounds comprehensively, the request for political neutrality of public officials shall be made necessary to maintain the impartiality of the performance of their duties in consideration of the nature of their duties (see, e.g., Constitutional Court Order 91Hun-Ma67, May 25, 1995).

Meanwhile, Article 21 of the Constitution guarantees all citizens the freedom of speech, publication, assembly, and association, i.e., the freedom of expression, and in particular, the freedom of political expression is superior to other fundamental rights as components of the liberal democratic fundamental order. Thus, even if a public official is a public official, all the freedom and rights of the citizens can be restricted by law if necessary for national security, maintenance of order, or public welfare. However, Article 37(2) of the Constitution limits the prohibition of political activities of public officials under Article 65 of the former State Public Officials Act and Article 57 of the former Local Public Officials Act, and Article 4 of the former Public Officials' Labor Relations Adjustment Act, the prohibition of political activities of a trade union and association members, etc., to realize the purpose of guaranteeing political neutrality of public officials, within a certain scope of freedom of political activities including the freedom of political expression of public officials or public officials' labor unions, freedom of political activities by political parties and political parties' admission

(2) Scope of "political activities" under Article 4 of the former Public Officials' Labor Unions Act

Article 4 of the former Public Officials' Labor Union Act stipulates that "no trade union nor its members shall engage in any political activity," and it prohibits political activity of a trade union in addition to Article 65 of the former State Public Officials' Act, Article 57 of the former Local Public Officials' Act, and Article 60 of the Public Official Election Act, which prohibits political activity of a trade union, but does not stipulate the specific meaning and scope of prohibited political activity.

As seen earlier, the freedom of political expression should be guaranteed to the maximum extent to the public, and the public official's status as the subject of fundamental rights under the Constitution cannot be denied. However, in accordance with the legal reservation of Article 37 (2) of the Constitution, the former Act on the Assistance to Public Officials' Unions limits the scope of activities of public officials' unions in principle to activities to enhance economic and social status, such as remuneration, welfare, and other working conditions of public officials' unions or their members, in consideration of the characteristics of the public official's duties and status, the influence of the public official's performance on the freedom and rights of the public. Matters concerning the management and operation of the government or local governments' authority, such as the exercise of the right to appoint, which are matters not directly related to working conditions, are excluded from the scope of activities (Articles 3 and 8 of the former Public Officials' Labor Assistance Act). ② Even though the former State Public Officials' Labor Assistance Act and the former Local Public Officials' Act prohibit "political activities" separately under Article 4 of the former Public Officials' Labor Assistance Act, restricting the scope of political activities or election campaign, etc.

In full view of the fact that the scope of restrictions on political activities cannot be extended compared to public officials who have joined a public official labor union, as it does not go against public interest, such as destroying neutrality, etc., it is difficult to view that the term "political activities of a trade union and its members" prohibited under Article 4 of the former Public Official Labor Union Act is limited to the activities of joining political parties specifically limited by individual law, such as political parties, Political Funds Act, and Public Official Election Act, election campaigns, and funding for political parties or candidates to run in public offices. It is reasonable to view that all political parties are engaged in political activities as a trade union and association activities of union members that are likely to undermine the political neutrality of public officials from all political parties and union members. Therefore, regardless of whether a political party is a force opposing the government policy, it is reasonable to interpret that the term "an act of expressing political opinions to exercise influence in the process of making decisions on government policies by pressure with a specific political party or political force" as also included in such activities (see Supreme Court Decision 2010Do6388, Apr. 19, 2019).

Therefore, the Defendants’ assertion on this different premise is without merit.

D) As to the interpretation of Article 66(1) of the former State Public Officials Act and Article 58(1) of the former Local Public Officials Act concerning the prohibition of collective action for activities other than public duties

(1) The meaning of "collective action for an activity other than public service" and criteria for determining such "collective action"

Article 66(1) of the former State Public Officials Act and Article 58(1) of the former Local Public Officials Act do not mean any collective act committed by public officials for any work other than public duties, but rather mean any collective act committed by public officials. The legislative purport of Article 21(1) of the Constitution guaranteeing the freedom of speech, press, assembly, and association, the State Public Officials Act and the Local Public Officials Act, and the former Local Public Officials Act, comprehensively taking into account the duty of good faith and duty of care under the State Public Officials Act and the Local Public Officials Act, shall be construed as "collective act that may affect the duty of care for the purpose against the public interest" (see, e.g., Supreme Court Decision 2004Do5035, Oct. 15, 2004).

In addition, in determining whether a certain act of a public official constitutes "an act of expressing a political opinion to exercise influence in the process of decision-making on a government policy by pressureing the government in connection with a specific political party or political force" prohibited by Article 4 of the former Public Officials' Labor Union Act as seen above, the mere fact of an act by an actor as well as the manner of the act by comprehensively observing the time, place, motive, method, and details of the act committed by the actor as well as the reason why the act was committed, and whether the act is an act of expressing a political opinion to exercise influence in the process of decision-making on a government policy by pressureing the government in connection with a specific political party or political force prohibited by the above provision (see Supreme Court Decision 2005Do2209, Mar. 24, 2006).

(2) Judgment in this case

(A) The following circumstances are revealed in light of the facts acknowledged under subparagraph (1) of the above subparagraph (a) of the above subparagraph (i) of the above subparagraph as to whether a labor union constitutes a collective political activity, i.e., ① the time when the assembly was held, preparation process, participating organizations, size and contents of the assembly, process of progress, etc.: (a) the Defendants’ participation in the above assembly with three public officials labor union members and expressed political intent to exercise influence in the process of government policy decision-making; (b) the Defendants’ participation in the above assembly and collectively expressed it against the political neutrality of public officials required under the Constitution, and (c) the Defendants’ participation in the assembly and the second public officials’ participation in collective political activity against the public official’s political neutrality under Article 66(1) of the State Public Officials Act and Article 58(1) of the former Local Public Officials Act, even if the Defendants’ participation in collective political activity against the public official’s provision and Article 65(1)5 of the former Local Public Officials Act and Article 68(1) of the former Local Public Officials Act.

Therefore, this part of the Defendants’ assertion is without merit.

(2) Whether the duty of care was neglected

Every public official has a duty to obey an official order of his/her superior when performing his/her duties in compliance with statutes and faithfully (the duty of good faith under Article 56 of the former State Public Officials Act), a duty to not leave his/her workplace unless he/she has a reason not to leave his/her workplace unless he/she has a reason not to leave his/her workplace (the duty of prohibiting the escape of a workplace under Article 58 of the same Act), and a duty to concentrate on duties based on the above duties.

As to the instant case, even if the Defendants were ordered to take full-time care of the labor union at the time of the participation in the second Korean National Assembly, a basic public official is deemed to have received a leave order.

Unlike ordinary leave of absence, the full-time officer of a trade union is required to engage exclusively in the affairs of a trade union with the permission from the appointing authority to engage in the affairs of the trade union. The Defendants were in violation of Article 4 of the former Public Officials' Labor Relations Adjustment Act by participating in the instant regular competition and the second national conference that is not related to the improvement of working conditions of public officials and the improvement of economic, social and social status. As can be seen, if a public official's labor union is a political organization, it is highly likely that the public official's work fairness would infringe on the public's duty and fairness and infringe on the public's trust, as well as that of social conflict and confusion, it is reasonable to deem that the Defendants' act constitutes an act that may affect the public's failure to perform the duty of care. Since a group that affected the duty of care such as neglecting the duty of care, it cannot be deemed that the Defendants' act was committed during working hours, was done outside of working hours, or did not fall under the duty of care of the people (see Supreme Court Decision 2003Do2960, Apr. 15, 20005).

Therefore, the Defendants’ assertion on this part is without merit.

5) Sub-committee

Therefore, the Defendants’ taking part in the instant regular and second national conference constitutes political activities of a trade union prohibited under Article 4 of the former Public Officials’ Labor Unions Act, which expressed a political intent to pressure the government to exercise influence in the process of decision-making on government policies by linking with a specific political force. This constitutes a collective act for the purpose of infringing public officials’ political neutrality, which constitutes a collective act for the purpose of infringing public interest, and thus constitutes a violation of the duty of care, and thus constitutes a collective act for the purposes other than public duties prohibited under Article 66(1) of the former State Public Officials Act and Article 58(1) of the former Local Public Officials Act. Accordingly, the Defendants’ taking part in the instant regular and second national conference constitutes a collective act for the purposes of other than public duties prohibited under Article 6

B. Determination on the Defendants’ individual assertion

1) Defendant D’s assertion

The main text of Article 33 of the Criminal Act provides that "the act of processing a crime to be established on the ground of status shall be applied to a person who does not have such status." Thus, even if a non-identification person is punished as an accomplice. The main text of Article 58(1) of the former Local Public Officials Act restricts the person in charge of the crime, but the form of "labor movement or other collective action for activities other than public duties" prohibited under the above provision is limited to a local public official. Since Article 82 of the same Act punishing the above act does not mean that a local public official means the body of the offender, or does not have an important meaning of the personal elements of the offender, it shall not be deemed that Article 33 of the Criminal Act intends to punish a person who does not have the status of a local public official, in violation of Article 58(1) of the former Local Public Officials Act, if he processes a crime committed by a local public official under Article 82 of the same Act, he/she may be punished as an accomplice (see, e.g., Supreme Court Decision 2001Do14072.

In light of the above legal principles, even if Defendant D's "public official engaged in de facto labor" who is not subject to Article 82 of the former Local Public Officials Act, if he processes a crime committed by a public official in violation of the above provision, he may be punished as an accomplice pursuant to the main sentence of Article 33 of the Criminal Act, and it shall not be viewed differently solely on the ground that Article 82 of the former Local Public Officials Act does not directly apply to public officials engaged in labor

Therefore, Defendant D’s above assertion is without merit.

2) Defendant F’s assertion

A) Existence of credibility of confessions

Defendant F set aside the facts of participation by the court below in the facts charged in the case of this case which led to the reversal of the statement at the court below. The defendant F shall not be deemed to be doubtful of the probative value or credibility of the confession merely on the grounds that the confession in the court below's court room differs from the statement in the court below's court room. In determining the credibility of the confession, it shall be determined whether the contents of the confession's statement per se are objectively rational, what is the motive or reason of the confession, what is the motive or reason of the confession, and what is the circumstance leading up to the confession, and what does not conflict with or conflict with the confession among circumstantial evidence other than the confession, as provided in Article 309 of the Criminal Procedure Act (see, e.g., Supreme Court Decision 2001Do4091, Sept. 28, 2001).

(4) According to the following circumstances acknowledged by the court below's ruling and evidence duly adopted and examined the Defendants at the trial date: ① Defendant F was urged to attend the meeting of its members while taking charge of communication and publicity on the second citizen conference; ② Defendant F was in the first public prosecutor's business trip from July 17, 2009 to July 20 of the same year; thus, Defendant F was not present at the Seoul High public prosecutor's statement that it was hard to find the facts of Defendant Francing the Seoul High public prosecutor's testimony that it was difficult for the prosecutor to ask questions about its credibility during the second public prosecutor's rally; ② Defendant Francing the facts that Defendant Francing the second public prosecutor's questioning of the facts that it was hard to find that Defendant Francing the second public prosecutor's testimony during the second public prosecutor's questioning of the facts that Defendant Franc was present at the Seoul High public prosecutor's rally; and Defendant Franc continued to have been present at the second public prosecutor's meeting.

B) Existence of supporting evidence for confessions

Reinforcement evidence for confession is sufficient if it is limited to the extent that it can be recognized that the confession of the defendant is not processed, even if the whole or essential part of the crime is not recognized, and it can not be indirect evidence or circumstantial evidence (see, e.g., Supreme Court Decision 2001Do4091, Sept. 28, 2001).

As seen earlier, Defendant F, among the facts charged in the instant case, led to confessions made in the court below as to the facts of participation in the assembly and the credibility of confessions. Meanwhile, the witness BC of the court below revealed in the court that in the process of the assembly of the second national conference of the Republic of Korea, each public official labor union, to which the Defendants belong, was posted at the site of the assembly, and the printed materials prepared in the public official labor union were distributed at the site, and the public official labor union members were present at the site. According to the investigation report (the result of execution of the permission to request the provision of communication confirmation data), according to the investigation report (the result of execution of the permission to request the provision of communication confirmation data), from July 19, 2009 to 20:00 on the same day, it is confirmed that the Defendant’s cell phone communication confirmation confirmation confirmation by the cell phone of the Defendants between the six defendants, including Defendant F, and the Defendant’s telephone calls including the Defendant F, all of which were located in the Seoul East National Assembly. In light of the above legal principles, evidence supporting evidence as to this part of this part of the charges.

Therefore, Defendant F’s above assertion is without merit.

3) Defendant I’s assertion

According to evidence duly admitted and examined by the court below, i.e., ① three public officials’ unions such as the court and labor union were discussed jointly with the Assembly and Demonstration on June 22, 2009; ③ three public officials’ unions jointly participated in the Assembly and Demonstration on June 26, 2009; ② three public officials’ unions were prepared and publicized for holding the second public official’s rally from July 8, 2009 to the 18th of the same month; ③ Defendant 1 was urged to participate in the second public official’s rally and the second public official’s campaign in collusion with the court and the second public official’s participation in the Court and the second public official’s campaign; ④ Defendant 1 was urged to participate in the second public official’s participation in the Court and the second public official’s campaign at the time of carrying out the direction under the court and labor union; ⑤ Defendant 2’s participation in the second public official and the second public official’s campaign at the time of the public official’s participation in the Assembly and the second public official labor union.

Therefore, Defendant I’s above assertion is without merit.

2. Determination on the assertion of unreasonable sentencing by Defendants and prosecutors

There are various opinions on where to set the limitations on public officials’ political activities, including legislative attempts to amend Article 66(1) of the former State Public Officials Act and Article 58(1) of the former Local Public Officials Act. In the process, the instant Extraordinary Games and the instant 2nd Korean National Assembly were peacefully conducted, and the Defendants did not commit any act in violation of other Acts in addition to the instant crimes, etc. are favorable to the Defendants.

However, the Defendants actively participated in the preparation of the instant 2nd pan-national conference and the encouragement of the members' participation in the assembly by participating in a large-scale political assembly as a public official and causing the people's infinites in relation to the political neutrality of the public official, and the Defendants actively participated in the assembly such as public labor union S, U, X, Y, Z, major labor union, court labor union, etc. in the manner that they share the roles of deciding on or distributing the guidelines for public labor union, major labor union, or court labor union to subordinate branches. In particular, Defendant A, H, and I participated in the assembly, such as going to the end of the instant 2nd 2nd pan-national conference or making a speech, etc., which are disadvantageous to the Defendants.

In addition to this point, considering various sentencing conditions as shown in the argument of the instant case, such as the Defendants’ age, character and conduct, environment, motive and circumstance of the crime, means and consequence of the crime, etc., the lower court’s punishment against the Defendants is adequate, too heavy, or unreasonable, and thus, the Defendants and the prosecutor’s assertion of unfair sentencing is without merit.

3. Conclusion

Therefore, the appeal by the defendants and the prosecutor is dismissed in accordance with Article 364(4) of the Criminal Procedure Act, since all of the appeals by the defendants and the prosecutor are without merit.

The presiding judge, the senior judge;

Judges fixed-scale

Judges Kim Gon-won

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.