[1] The case holding that the Defendants, a teacher of the Daejeon District Office of the Korean Teachers' Union, issued a letter of assembly with the teachers' signature, and participated in the assembly such as the Am2 Blue Blue Blue Blue Blue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Dlue Plue

[2] The case holding that a fine is imposed on a violation of Article 22 (2) of the Assembly and Demonstration Act, where 20 or more executives of the Korean Teachers' Union such as the defendant et al. hold an outdoor assembly not reported in the form of a press conference

[3] The case holding that the defendant et al. was not guilty on the charges of violating Article 24 subparagraph 5 of the Assembly and Demonstration Act that the participants in the assembly, such as the defendant et al. failed to comply with the order of dispersion on the grounds of non-reported assembly

[1] The case finding the Defendants not guilty on the ground that the Defendants’ act constitutes a violation of Article 84 of the former State Public Officials Act (amended by Act No. 10148, Mar. 22, 2010) where the Defendants, a teacher of the Daejeon Branch of the Korean Teachers’ Union, announced the contents of government policy criticism with the teachers’ signature and demand for government reform (the first page) or the freedom of expression, and the contents of demand for accusation and disciplinary measure against the teachers, and participated in the assembly such as the second session of the assembly and demonstration, thereby constituting a “collective act for the purposes other than public duties,” on the grounds that the Defendants’ act cannot be deemed as a violation of public interest or a violation of the duty of care, and it cannot be deemed as a violation of the duty of care, and thus, constitutes a crime not committed.

[2] The case holding that as to the facts charged in violation of Article 22 (2) of the Assembly and Demonstration Act that 20 executives of the Korean Teachers' Union, including the defendant et al. hold an unreported outdoor assembly in the form of a press conference, since the press conference held outdoor is "Assembly" as stipulated by the above Act, the court held that a fine is imposed on the grounds that it does not infringe on the essential contents of the freedom of the press, on the ground that there is a little legal limitation as to the outdoor press conference as to the outdoor press conference, unless the press conference held outdoorly, and as long as it is permitted without restriction on the press conference inside the interior.

[3] As to the facts charged of violation of Article 24 subparagraph 5 of the Assembly and Demonstration Act that participants such as the defendant et al. failed to comply with the order of dispersion even after the chief of the competent police station ordered the dispersion of an outdoor assembly, the case holding that the order of dispersion cannot be deemed lawful on the ground that the defendant et al. failed to comply with the order of dispersion on the ground that the number of participants in the assembly is more than 20 persons, no violence or physical force was mobilized except for relief, and the situation at the time when the vehicle's traffic was not interfered with the vehicle's traffic by getting out of the demonstration cost delivered, the chief of the competent police station issued the order of dispersion on the ground that it was merely a method to guarantee peaceful demonstration of the participants in the assembly, but it did not constitute a crime.

[1] Articles 57, 65, 66(1), and 84 of the former State Public Officials Act (Amended by Act No. 10148, Mar. 22, 2010); Article 4 of the Act on the Establishment, Operation, etc. of Public Officials’ Unions; Article 3 of the Act on the Establishment, Operation, etc. of Teachers’ Unions; Articles 6(1) and 14(4) of the Framework Act on Education; Articles 7(2), 21(1), and 31(4) of the Constitution / [2] Articles 6, 22(2) of the Assembly and Demonstration Act / [3] Articles 6, 8, 20, 22(2), and 24 subparag. 5 of the Assembly and Demonstration Act; Article 21 of the Constitution

[1] Supreme Court Decision 90Nu4839 delivered on April 23, 1991 (Gong1991, 1514) Supreme Court Decision 90Do2310 Delivered on February 14, 1992 (Gong1992, 1078) Supreme Court Decision 91Nu9145 Delivered on March 27, 1992 (Gong1992, 140), 98Do662 delivered on May 12, 1998 (Gong198Sang, 1689), 2003Do2960 delivered on April 15, 2005 (Gong2005Do2064, March 24, 2006)

Defendant 1 and two others

Egypho et al.

Attorney Seo-sikng

1. Defendant 1 shall be punished by a fine of 500,000 won;

2. When Defendant 1 does not pay the above fine, Defendant 1 shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.

3. To order the provisional payment of an amount equivalent to the above fine against Defendant 1

4. Of the facts charged against Defendant 1, each violation of the State Public Officials Act and violation of the Assembly and Demonstration Act due to violation of the dispersion Order shall be acquitted, respectively.

5. The defendants 2 and 3 are not guilty.

6. The summary of each of the above acquittal judgment against the Defendants is published.

On June 28, 2009, the Korean Teachers' Union (hereinafter referred to as the "Korean Teachers' Union") held the 361 Provisional Central Execution Committee at the first room of the headquarters of the Jeon school and the first room of the headquarters of the Jeon school around 19:30.

Defendant 1, etc., the participants of the above 361 Provisional Central Execution Committee resolved to hold a unreported meeting in accordance with the strike plan decided by the said Provisional Central Execution Committee, and 20 members and 20 members and 20 of the full-time executives in front of the Cheongdae-dong Office, which is the neighboring party of the Cheongdae-dae-dong Office. From June 29, 2009 to June 14:05, Defendant 1 et al., followed up four grams stating the following relief: “The freedom of expression and conscience is not subject to disciplinary action,” “the freedom of expression,” “the freedom of expression,” “the freedom of expression,” and “the freedom of expression,” etc.

Accordingly, Defendant 1, in collusion with the participants of the above 361 Provisional Central Executive Committee, hosted the unreported outdoor assembly and demonstration.

1. Partial statement of the defendant;

1. The statement of the police officer dated June 29, 2009 against the defendant

1. Each police statement made against Nonindicted 16 and 17

1. Results of the 361 Provisional Central Execution Committee;

1. Data concerning meetings of the Provisional Central Execution Committee, which are held by the said committee;

1. Minutes of the provisional committee meeting of the 361 plenary session;

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

Articles 22(2) and 6(1) of the Assembly and Demonstration Act; selection of fines

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Defendants’ assertion

The defendants asserts that the following contents are contrary to the principle of an indictment only.

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(1) “The Defendant (Defendant 1) is the head of the Daejeon District Court for Cho Jae-chul. The Defendant, with Non-Indicted 1 and his members, tried to criticize government policies and to announce the assembly and demonstration with a view to demanding the government reform.”

(2) On June 11, 2009 to June 15, 2009, the Defendant (Defendant 1), Defendant 2, and 3 announced the Daejeon Branch website to the effect that “the signature cannot be organized at the time is closed by not later than 17 days, and the branch shall send the teachers’ name group to the branch and by facsimile to the branch, but the non-members can also send it to Defendant 3’s e-mail.” In addition, the principal of the branch of each school shall be the addressee, and the principal of each school shall be sent by facsimile the official document as “the school name declaration notice of the City Teachers’ Office” and the principal shall be sent by facsimile as “the number of persons participating in the regional declaration and the list as the principal office on June 18, 2009.”

(3) Of the members of the Daejeon District Office, the 155 members of the Daejeon District Office notified Defendant 3 of the fact that “participation in the signature of the City Declaration” was made through Defendant 3’s mail, etc. within the said period according to the public notice of the Daejeon District Office, etc., and Defendant (Defendant 1), Defendant 2, and Defendant 3 sent the list of the participation in the signature of the City Declaration to the Jeon school branch.”

(4) “The Jeon school support headquarters, at around 11:00 on June 18, 2009, with the signature name group of each branch as above, issued a letter of the assembly and demonstration with the contents that it would be done by opening a press conference in the presence of Nonindicted 1, the chairman of the Jeon school support team, and 10 members of the Jeon school support center in Jung-gu, Seoul.”

(1) On July 19, 2009, the contents of the indictment pertaining to the announcement of the Assembly report in Seoul Square

(2) Contents on the indictment that the First Declaration was made politically in conflict of interest.

(3) On July 19, 2009, the part of the name of the politician who participated in the assembly or demonstration at the Seoul Square

(4) Part of the speech and relief held by Nonindicted Party 1 at the above site, and the part of the organization in which the participating took part.

2. Determination

As the prosecutor asserts, the above contents are contents that explain the process and legal character of the act in question in order to support that the defendants' act constitutes a group of acts prohibited by the law, and it is difficult to view it as a reason to create prejudice to the court, and it is difficult to view it as facts other than those required by the law, and therefore, the procedure of prosecution cannot be deemed as invalid due to the violation of the principle of an indictment only, and therefore, the defendants' assertion on this part cannot be accepted.

1. Defendant 1’s assertion

Defendant 1 asserts that the assembly prior to the office of the audience movement is a reporter and does not constitute a “meeting” subject to regulation under the Assembly and Demonstration Act, and that it does not constitute a mere participation in the assembly even if it constitutes an assembly, and that it does not constitute an organizer.

2. Legal doctrine

The purpose of the Assembly and Demonstration Act is to properly harmonize the guarantee of the right to assembly and demonstration with public peace and order by guaranteeing the maximum extent of lawful assembly and demonstration and protecting citizens from unlawful demonstration (Article 1). The concept of the assembly itself is to define any demonstration as an act that affects the opinion of an unspecified number of people, by proceeding with a place where many people can freely pass through, such as roads, squares, parks, etc., or showing power or power or power (Article 2 subparag. 2), while an outdoor assembly is guaranteed and regulated under Article 3 below, in light of the fact that an outdoor assembly is being protected and regulated under the above Act, it refers to an assembly subject to guarantee and regulation under the above Act refers to an "any specific or unspecified number of people by forming their opinions and expressing them externally (Article 1)."

3. Determination

In light of the above concept of assembly, since Defendant 1’s reply to the reporters who participated in the assembly form a common opinion demanding the state to guarantee freedom of expression and is temporarily gathered at a certain place for the purpose of externally expressing this, it shall be deemed that it constitutes an assembly.

It is true that the press dog is protected as a fundamental right under the Constitution in relation to the freedom of the press. However, it is common that the press dog is being carried out in the interior, and it can sufficiently enjoy the freedom of the press without being subject to any legal restriction. On the other hand, it is reasonable to deem that the press dog, which is being carried out in outdoor, intends to deliver his/her joint opinion to the general public as well as to deliver his/her own opinion to the general public, and that it also has the effect of the meeting, and as long as it is carried out by many people in outdoor places, the need for the maintenance of order accompanying the meeting also depends on the need for the maintenance of order.

If so, the press opinion that is being carried out in the outdoor place is deemed to be a “meeting” as stipulated in the Assembly and Demonstration Act and requires a prior report pursuant to Article 6 of the same Act, and as long as the press opinion in the indoor space is permitted without restriction, it cannot be deemed to infringe on the essential contents of the press’s freedom, on the ground that there is a little legal restriction as to the outdoor press opinion. Therefore, if the press opinion is carried out in the outdoor place without completing the report, it shall be deemed to be unlawful as a matter of course.

In addition, Defendant 1 asserted that there was no fact that the above assembly was held, but the 361 Provisional Central Execution Committee passed a resolution to hold the above conference, and Defendant 1 participated in the meeting in the form of the press conference after attending the above committee and participating in the meeting. In full view of all these circumstances, Defendant 1 cannot be called the organizer of the meeting with Defendant 1 as well as the organizer of the meeting.

Therefore, Defendant 1 may be fully convicted of the part holding the unreported meeting.

Defendant 1’s participation in the conference was more than 20 participants, and there was no sign that could be developed by violence demonstration. According to the evidence submitted by the prosecutor, in fact, the assembly appears to have been completed considerably peacefully without any violent event. In light of the above circumstances, the foregoing press conference seems to have been considerably low in danger of causing danger and injury to the public safety and order. Although Defendant 1 is recognized as the organizer, the degree of his participation seems to be excessive. In addition, the above circumstances are that the statutory penalty is not heavier than 2 years by imprisonment with prison labor for not more than 2 years or by a fine not exceeding 2 million won, and that the nature of administrative punishment is strong, it is rather minor fine.

【Violation of the State Public Officials Act against the Defendant】

1. Summary of the facts charged

Defendant 1 was issued to ○○ High School on October 1984 as a biological teacher and served in the above high school until now, and was engaged in activities after the establishment of the Korean Teachers' Union (hereinafter referred to as the "former Teachers' Union") in around 1989. Since January 1, 2009, Defendant 1 was working as the head of ○○ High School, and was in charge of the affairs of the Jeonsung Daejeon Branch.

Defendant 2 started working as an elementary school teacher on September 1982 by receiving an order from Pyeongtaek-gu National School of △△△, and worked in △ Elementary School since 2008. The head of the site site of Jeon school Daejeon District Office from March 2009, and has overall control over policy affairs while assisting the head of the branch.

Defendant 3 was issued to Daejeon High School around 1998 and has been working for the above schools until now. Since January 2009, Defendant 3 is in charge of the practice of the affairs of the Daejeon High School's Daejeon High School.

A. The First Declarations

Despite the fact that a public official did not engage in a collective act for labor campaign or any other work other than public duties, the Defendants were able to announce the door of the Assembly and Demonstration with the former Twitter’s officers, including the former Twitter’s chairman, and its members, and submitted it to the former Twitter’s headquarters by gathering “the participants in the signature of the latter Declaration.”

As above, on June 18, 200, the 1st century headquarters of each branch office was signed. around 11:00, and around 11:00, it opened the 1st century in the name of Non-Indicted 1 and the 10th executive members of the Central Police Assistance Group in Jung-gu, Seoul, and held the 6th century in the presence of 10 members of the 10th executive members of the 10th century, and "the 1st century in the name of the 6th century in the name of the public authority to leave the time of the military regime," and "the 6th century in the name of the 1st century in the name of the 1st century in the name of the 6th century in the name of the 6th century in the name of the 1st century in which the 6th century in the name of the 1st century in the name of the government, and the 1st century in the name of the 1st century in the name of the government."

Accordingly, the Defendant conspiredd with the former assistant executives and affiliated teachers, who are state public officials, and committed collective acts for purposes other than public duties.

B. Second Declarations

On June 26, 2009, the Ministry of Education, Science and Technology (hereinafter “the Department”) held a meeting of the Superintendent of City/Do Office of Education on June 26, 2009 and accused 88 executive members including Nonindicted 1 of the former Chief of Education in relation to the First Declaration of Assembly and Demonstration, and requested the City/Do Office of Education to take measures such as heavy disciplinary action. On June 28, 2009, the former Chief of Education, Science and Technology (hereinafter “the Department of Education”) against the policies of the said Department of Education held the 361 Temporary Central Executive Committee in the first room of the former Chief of Education Headquarters.

25 members, including Defendant 1, who are the head of the Daejeon branch of the Jeon school, participated in the above Central Execution Committee, and Nonindicted 2, who is the head of the planning and management office of the Jeon school, was assigned a clerk.

In the above Central Execution Committee, Non-Indicted 3, the chief of the Jeon school policy office, made a report on the progress related to the announcement of disciplinary policies of the Department of Education in accordance with the meeting data of the Provisional Central Execution Committee. Then, Non-Indicted 1, the chief of the Jeon school, presented the case of the strike plan against the freedom of expression and the Jeon school assistant disciplinary action as an agenda item. The above agenda item was passed as an original agenda item with the consent of the above Central Execution Committee members. The main contents of the agenda item are to convert the headquarters of Jeon school into the regime of the strike. ② around 14:00 on June 29, 200, Non-Indicted 3, who was the chief of the Jongno-gu Seoul Central Assembly, was jointly and severally trying to move the audience and Jeon school to deliver the letter under paragraph.

On the other hand, on June 29, 2009, Defendants 1, 2, and 3, etc. held a joint meeting of the 340 Daejeon Branch Executive Committee and the 5th Standing Executive Committee at the meeting room of the 361 Daejeon Branch, and deliberated on the execution matters according to the results of the 361th Provisional Central Execution Committee of the 361 Assembly. On July 3, 2009, at the meeting room of the 3rd Sejong Branch, the president, representative, the representative, the replacement of the present branch branch, and the former branch group were replaced by a general meeting, and decided to organize the participants of the Assembly.

On June 30, 2009, the previous school group: (a) sent the e-mail under the title of the chairman of the former school group to the former teachers belonging to the former school group through the main account of the former school group (Internet address 1 omitted); and (b) demanded the former teachers to participate in the second school group; (c) distributed the text of the Assembly and the form of signature; and (d) Non-Indicted 4, the representative of the former school group, on July 2, 2009, called the “Promotion of the Declaration of the Democratic School Teachers and Staff” under the title of the “Promotion of the Presidential Decree of the Democratic School,” which read “the freedom of expression, guarantee of freedom of discipline against teachers, withdrawal of disciplinary action against teachers, expansion of educational welfare, suspension of educational policy, etc.” was posted on the front school group’s website.

Defendant 1, 2, and 3, etc. demanded the members of the Daejeon District Office, who are public officials, to participate in the Second Declaration by either posting a signature or sending a notice on the second school unit and sending a guide on the promotional place through the Daejeon Bridge’s website, which was sent from the former Bridge’s headquarters, or by confirming the intent to participate in the Declaration. By July 16, 2009, Defendant 1, 2, and 3, etc., reported to the former Bridge’s headquarters by gathering a signature or signing from the teachers of the Daejeon District Office, who were public officials, or by gathering a list of the participants, and the organization of the former Bridge’s headquarters was combined with this.

On July 19, 2009, from around 14:00 to around 14:20 on July 19, 2009, 200 20 members of the previous school group: (a) read a written opinion of the press conference containing the contents such as “the previous school will proceed to a strong strike for continuous efforts, accusation, and withdrawal of disciplinary action to confirm the legitimacy of the assembly; and (b) announced a written statement of the assembly assembly declaration of democratic school building under the name of Nonindicted 1 and 28,634 teachers.

In addition, the former Twitter posted the said reporters’ interview and the assembly report on the Internet homepage (Internet address 2 omitted) of the same day.

The key contents of the Assembly and Demonstration are criticismd as unconstitutional abuse of public authority. The Assembly and Demonstration demanded the guarantee of freedom of expression under the Constitution and the withdrawal of the accusation and disciplinary measure against the teachers. The First Assembly and Demonstration demanded the legitimacy of the First Assembly and Demonstration, which is an expression of opinion by the teachers belonging to the former and the higher interest conflict of interest, on the one hand, to change the position of the President.

Then, on July 23, 2009, the Assembly and Demonstration made public a video containing a list of 28,711 teachers who participated in the Assembly and Demonstration on the previous school website on July 23, 2009.

From 16:00 on July 19, 200 to 17:00 on the same day, the chairperson, etc. of the Jeon school took place at the forum in Seoul Station: (a) Nonindicted Party 5 member of the Democratic Labor Party; (b) Nonindicted Party 6; (c) Nonindicted Party 7 members of the Democratic Party; (d) the representative of Nonindicted Party 8, Nonindicted Party 9; (b) the chairperson of the Korean Civil Labor Group; (c) Nonindicted Party 10; (c) 1,100 members of the former Civil Labor Group; (d) 1,100 members of the former Civil Labor Group; (e) 150 members of the former Civil Labor Union; (e) 10 members of the former Civil Labor Union; and (e) 50 members of the court labor union; and (e) Nonindicted Party 11, a prior event of the “Ath 19th National Assembly of the Republic of Korea”.

The former Chief of the Korean Democratic Public Officials Labor Union (hereinafter referred to as the “Private Labor Union”), Nonindicted 12, the Chairman of the Korean Public Officials Labor Union (hereinafter referred to as the “Special Labor Union”), Nonindicted 13, and the Chairman of the Court Public Officials Labor Union (hereinafter referred to as the “Court Labor Union”) were listed on the top together with Nonindicted 14, and made a speech that “The democracy will be restored to its original state.” After the speech between Nonindicted 12 and the above Nonindicted 13, Nonindicted 1 and the former Nonindicted 13, the former Chief of the Police Union made a speech that “The Government will make efforts to restore it to its original state

On the other hand, the participants of the assembly in the process of the assembly revealed the relief of the present government such as “the MB MB Act was prevented by the Assembly and Demonstration,” “Sim Declaration, the Ambane Suspension”, “the fourth marbation was absolutely inside,” “the fourth marbation,” “the fourth marbation of the Press Act”, “MB music Act No. 100,” “the Republic of Korea will take into consideration,” and “the fourth marction of the fourth marction,” etc. The participants participated in the assembly by citing political arguments against the present government, such as “the debate’s sexual nature”, “the Democratic Party,” “the Chang Korea Party,” “the STP,” “the Truth Party,” “the National Transport Workers’ Union,” “the thickness,” and “the marction of the social organization,” etc.

Defendant 1, 2, 3, etc. participated in the Blue Conference of the Republic of Korea with the method of creating relief at the Seoul Station Sluxa, etc. during the process of the Pacific Games.

Through such series of actions, the Defendants conspired with the members of the former Telecommunication Union, the private labor union, the major labor union, and the court labor union to engage in collective action for activities other than official duties.

2. Whether the Defendants’ change was necessary

A. The facts other than those set out below are generally recognized.

B. However, Defendant 2 and Defendant 3 did not conspired to commit a crime, and Defendant 3 did not take charge of practical affairs according to the direction of Defendant 1, and Defendant 2 did not take part in the practical process.

C. Defendants’ act cannot be deemed as a “collective act for purposes other than public official duties” prohibited by the Act.

3. Exclusion from presumption of constitutionality of the exercise of public authority that limits freedom of expression;

The assembly and demonstration of the Defendants' participation can be said to have expressed a political opinion of teachers on political situation in Korea.

Today's democratic politics is premised on the freedom of expression, and a country that does not guarantee the freedom of expression can not be a democratic state. There is no world-oriented diversity in any place without the freedom of expression, nor a democratic politics can be established.

Therefore, in today's liberal democracy countries, the freedom of expression is protected as a high mental fundamental right, and the strict requirements are required to limit the freedom of expression, and the exercise of public power that limits the freedom of expression is presumed to be unconstitutional (excluding 2). It is possible to limit the scope of cases where the existence and security of the state and the democratic fundamental order cause clear and present specific risks (in principle, 3).

Therefore, it is proper to view that it is presumed unconstitutional as the end of the prosecutor's indictment seeking criminal punishment against the Defendants' political expressive act, and the prosecutor must voluntarily prove the constitutionality of the above indictment.

4. The meaning of Article 66 (1) of the State Public Officials Act in light of the Supreme Court and the Constitutional Court precedents

The Defendants were indicted as having violated Article 66(1) of the State Public Officials Act, which stated that the Defendants participated in the above assembly and demonstration, “public officials shall not engage in any collective action for labor campaign or activities other than public duties.”

The meaning of “collective action for activities other than public duties” in the above Article cannot be interpreted simply as “collective action for which multiple persons jointly engage.” This is because the scope of “collective action” can be interpreted as being subject to criminal punishment by simply expanding the same club activity at the same time and may seriously limit the fundamental rights of the public officials. In this sense, it is highly likely that the above provision of the law is in violation of the principle of clarity under the principle of no punishment without the law, and it is desirable to explicitly indicate the type of prohibited collective action, as seen in the Japanese State Public Officials Act and the Regulations on Personnel Management enacted with the delegation of the law.

The Supreme Court and the Constitutional Court define the scope of its meaning through the interpretation of the above-mentioned unclear legal provisions, and it seems that the interpretation in this case should be the basis of the interpretation.

The Supreme Court precedents held that “collective acts other than public duties, which are prohibited under Article 6(1) of the State Public Officials Act, do not mean any collective acts conducted by public officials for any purpose other than public duties, but rather mean any collective acts that may undermine the essence of public duties by comprehensively taking into account the media, publishing, assembly, and freedom of association, the constitutional principles, the purport of the State Public Officials Act, the duty of good faith under the State Public Officials Act, duty of care and duty of care under the State Public Officials Act, etc.” (Supreme Court Decision 90Do2310 Decided February 14, 192). In addition, the Supreme Court held that “collective acts other than public duties,” which are prohibited under Article 66(1) of the State Public Officials Act, means acts in a situation that do not reach the formation stage of an organization for a specific purpose that impedes the essence of public duties, such as undermining the discipline of duties as public officials or violating this part of duties.” (Supreme Court Decision 90Nu43979 Decided April 23, 1991).

The Constitutional Court also interpreted that the concept of “collective action for activities other than public service” does not mean all collective action, but shall be mitigated and interpreted as against the public interest among collective action for activities other than public service (see Constitutional Court en banc Order 2003HunBa51, 2005Hun-Ga5, August 30, 2007, en banc Order 2003Hun-Ba51, 2005Hun-Ga5, en banc Decision 2005Hun-Ga5, May 5, 200). In addition, in the same decision, the prohibition of collective action by public officials for activities other than public service is likely to interfere with the overall interest of the people by representing the interests of the public officials, and the above concept is clearly construed as “collective action that affects the general duty of care for the purpose of public interest”.

In light of the purport of the above precedents, as explained by some media, the Supreme Court precedents do not have determined that the crime was established with only the “distribution of the declaration of the state”, and the purport of the precedents is generally problematic with the “content” of the assembly and demonstration. In other words, it is centered on the determination whether the contents of the assembly and demonstration are contrary to the public interest or not.

In this sense, the series of decisions previously rendered in relation to the assembly and demonstration of this case cannot be seen as a conviction case, not guilty case, and the precedents of the Supreme Court and the Constitutional Court, and should be concluded by free and secret legal reasoning. The Court widely reviewed various grounds, was well aware of the rationality of the argument, and the conclusion was determined as follows.

5. Requirements for collective action prohibited by this Act in light of the attitude of precedents

The act of the executive officers of the Jeonsung and the Defendants’ above acts does not constitute a principal official duty of the Defendants, who have the status as a teacher.

However, in light of the above precedents of the Supreme Court and the Constitutional Court, it is necessary to first examine whether the Defendants’ act constitutes a group act prohibited to public officials, first of all, ① the purpose was against the public interest, ② the act of neglecting the duty of care, ③ the public official’s performance of duty should meet the requirement that it would be an act detrimental to the public interest or against the part of the duty (see, e.g., Supreme Court Decision 2006Do328, Apr. 1, 2006).

6. As to whether an act is against the public interest

A. Whether public officials violated their political neutrality obligations

The Prosecutor expressed his opinion on the case where the act of assembly and demonstration of this case is enforced by a public official who is subject to political neutrality, and thus, it is alleged that the act violates the duty of political neutrality and is contrary to the public interest. Therefore, we examine as follows.

(1) The meaning of the political neutrality obligation imposed on the public official

(A) Relevant statutory provisions

Article 7 (2) of the Constitution of the Republic of Korea "The status and political neutrality of public officials shall be guaranteed as prescribed by Act."

Article 4 of the Act on the Establishment, Operation, etc. of Public Officials' Unions shall not engage in political activities.

Article 3 of the Act on the Establishment, Operation, etc. of Teachers' Unions shall not engage in any political activity.

Article 6 (Educational Neutrality) (1) Education shall be operated to fulfill its functions according to the original purpose of education, and it shall not be used as a tool for propagating political, fact-finding, or individual prejudice.

Article 65 of the State Public Officials Act; (1) No public official may participate in an organization of, or join in, any political party or other political organization.

(2) No public official shall engage in the following activities to support or oppose a specified political party or person in an election:

1. Soliciting any person to cast or not to cast a vote;

2. An act of attempting, leading, or soliciting a signature-collecting campaign;

3. Posting or causing another person to display documents or books at public facilities, etc.;

4. Raising, or causing another person to raise, any contribution, or using, or causing another person to use, public funds;

5. Soliciting another person to join or not to join a political party or any other political organization.

(3) No public official shall demand other officials to engage in any activity against the provisions of paragraphs (1) and (2), or promise him/her any advantage or disadvantage as a reward or retaliation for any political activity.

(4) Except as provided in paragraph (3), limits on prohibition of political activities shall be determined by the National Assembly Regulations, Supreme Court Regulations, Constitutional Court Regulations, National Election Commission Regulations

(B) The meaning of this political neutrality obligation in light of the content of the above statute

The contents of the political neutrality obligation stipulated by the State Public Officials Act are mainly about supporting, opposing and opposing certain political parties.The other laws prohibit public officials or school teachers from political neutrality or political activities, but they do not specify the contents of such political neutrality or political activities. Considering that the above provisions of the State Public Officials Act are the standard for embodying the contents of political neutrality or prohibited political activities required for public officials or school teachers.

In addition, considering that the presumption of constitutionality of freedom of expression as a highly mental fundamental right is excluded, it is reasonable to regard the above restriction as close to the listed regulations at least in the expressive act, and among the acts not prohibited by the law, the acts belonging to the freedom of expression are permitted as much as possible.

In the case of an election commission public official who requires the highest level of political neutrality among public officials, the scope of political activities as prohibited by the law is limited to the activities falling under the support and opposition of a specific political party or political force such as the State Public Officials Act. However, the fact that the regulation on the form of such activities is only embodying, it can be an important reference in the above judgment).

The Supreme Court precedents (Supreme Court Decision 2005Do2209 Decided March 24, 2006; Supreme Court Decision 2005Do2514 Decided April 13, 2006; Supreme Court Decision 2005Do3289 Decided April 13, 2006; Supreme Court Decision 2005Do9199 Decided April 27, 2006; Supreme Court Decision 2005Do4513 Decided May 12, 2006; and Supreme Court Decision 2005Do4513 Decided March 12, 206; etc.) also allow collective action against public officials or candidates as prohibited by the Public Official Election Act and the State Public Officials Act, which is against the public interest, to be considered as a "collective act contrary to the public interest", as well as in the context of the public official election Act and the State Public Officials Act, or to protect the establishment of illegal public officials' trade unions, or to oppose the execution of administrative vicarious execution (see Supreme Court Decision 20005Do1494.

(C) As to the assertion that an expression of opinion is prohibited on a matter over which the establishment of a political conflict of interests is added

If a prosecutor expressed an act of expression representing the opinion of a specific political party on a matter in which a static interest is sharply in conflict, it is against the public interest, and thus, it constitutes an act contrary to political neutrality. However, since a human being is a local political entity, all acts conducted by a human being in connection with a social life is political nature. Therefore, if a person is punished for both political activities, the scope of punishment would be unlimited and broad, and such logic cannot be accepted.

According to the reasoning of the prosecutor, criticism of the government will inevitably lead to the total blocking of criticism of the government of public officials by raising a possibility of consistent with the allegations of the party branch and the party branch branch branch. However, it is reasonable to view public officials as a matter of course enjoying fundamental rights to express the opinion on the governmental policy formation within the scope that does not harm the unity of duties beyond the citizen’s day. Therefore, if a punishment for a political expression of opinion is imposed solely on the ground that it is a case of a party-spatiated interests, it is inevitable to use it as a seizure force against the party that criticizes the power, and it is clear that it is an action that damages democracy.

Cruel may cause interference with the smooth execution of official duties by widely recognizing the freedom of expression of a public official. However, since a public official imposes an obligation to obey an official order under Article 57 of the State Public Officials Act with respect to his duties directly entrusted to him, the smooth execution of official duties can be secured.

(D) Legislative cases in the world.

For the above reasons, countries around the world allow broad political activities of public officials, and even Japan that prohibits political activities of public officials similar to our state public officials, as long as they do not intend to influence elections, support and opposition to specific policies is not considered a prohibited political act. The European Human Rights Treaty providing important guidelines for the protection of human rights also stipulates that the intervention of government power in the freedom of expression by public officials should be made very limited according to strict standards, and it can be referred to as the part of the case.

In other words, in light of the legislative cases in the world, as long as it is difficult to see that public officials' political activities are absolutely bad, and it seems that they are merely the subject of legislative choice, it is difficult to adopt an interpretation that excessively limits the freedom of expression, which is the core fundamental rights of democracy, and it is consistent with the spirit of the Constitution to conduct an interpretation of the direction to further fundamental rights

(E) As to the precedents cited by the prosecutor

The Court held that a public official’s political activity does not fall under Article 65 of the State Public Officials Act is unlawful, and a series of judicial precedents pertaining to the Assembly and Demonstration in 2004 (Supreme Court Decisions 2005Do2209 delivered on March 24, 2006, Supreme Court Decision 2005Do4513 delivered on May 12, 2006, etc.) are repeated.

However, as seen above, the issue at issue in the above precedents is on the ground that there was an intention to affect the election, such as opposing the government and the office of association, and declaring support for a specific political party, etc., at the time of the election. It is not a content supporting and opposing a specific political force, such as in the instant assembly and demonstration, but a case where a public prosecutor expressed a political opinion to demand the government to reform the state affairs, and it is only a case where the public prosecutor repeatedly cites the above precedents and asserts that it is a precedent for the instant case.

(2) Review of the contents of the Assembly and Demonstration

(A) On the contents of the First Declaration

The contents of the First Assembly Declaration are as follows: (a) the investigation of PD pocketbookss, the investigation of various candlelights fire cases, criticism on the investigation of the crime, and the statement of opinions on the reason of the past president of the labor union; (b) the demand to suspend the amendment of the Media Act; (c) the opposition to the “Korean-do canal projects”; and (d) the apology and demand against the abuse of public authority. It does not contain any support or opposition to a specific political party or political

The Prosecutor asserts that the First Declaration was passed by the Presidential Decree on June 9, 2009 at the Central Execution Committee, and that there was an explanation that “the present level is important due to the local election with the 10th line and the 19th local election” in the process of deliberation and resolution on the above Declaration, and that there was an intention to ultimately affect the election.

However, as long as the Criminal Act does not punish the internal intent of the Assembly, the issue of legal violation must be determined only with the content revealed as a result. In other words, the contents of the Assembly and Demonstration should be determined in light of the purpose, background, motive, specific contents, etc. (see Supreme Court Decision 2005Do4513, Jan. 19, 2010). The foregoing consideration of the purpose, circumstance, motive, etc. of the Assembly and Demonstration should be limited to the extent to clearly interpret the specific contents of the Assembly and Demonstration within the scope of the specific contents within the scope of the expression, and it does not lead to a change in the purport of the specific contents of the expression (see Supreme Court Decision 2009Da1119, 2009Da1105, Jan. 19, 2010).

Most citizens have the result of the election that they are themselves, and it is reasonable to regard that if their expressive act is done within the lawful scope, regardless of their intention of internal deliberation, it shall be permitted.

As the prosecutor argued, the basic attitude of the election of the Jeon school team is merely that it can only be seen by the internal documents obtained in the course of search and seizure of the Jeon school team. If the contents of the instant assembly and seizure are examined only, it is difficult to understand such intent.

In addition, according to the legal opinion of the members of the Korean Democratic Trade Union’s Act (Evidence No. 640 page), the Defendants can be found to have been given legal advice so that they may be conducted within the lawful scope. In the process of planning each of the instant reports, it can be acknowledged that there was considerable revision of the draft of the Assembly report according to the advice that it would be reasonable not to reveal the intent that may affect the election, support for a specific fact-finding, and the opposite intent. In this context, the Prosecutor’s assertion that there was an intention to affect the election through the Assembly and Demonstration is difficult to accept.

In other words, regardless of whether the Defendants supported a certain fact-finding, it is difficult to regard the Defendants as a violation of the duty of political neutrality as long as they did not reveal a clear intent to influence the election, and did not state a support for a specific fact-finding or a dissenting opinion.

(B) On the contents of the Second Declaration

The contents of the Second Declarations include ① demand for teachers to guarantee freedom of speech and press guaranteed by the Constitution, ② withdrawal of disciplinary action against teachers, ③ transition of the President to respect the people’s voice, ④ change of the policy of the higher class of privilege, ④ improvement of the policy of the higher class of privilege, ⑤ suspension of school policy with competition such as the establishment of self-accident, ⑤ guarantee of democratization in school operation, etc.

The Assembly and Demonstration Act’s contents that support or oppose a specific political force does not go against the duty of political neutrality cannot be deemed as contrary to the duty of political neutrality.

The prosecutor asserts that the political nature of the Second Declaration was more obvious in the process of the strike jointly with the political authority and the political authority in the field of politics. However, at the same time, it cannot be deemed that the illegality is expressed solely on the ground that he participated in the National Assembly at the same time, and even if examining the record, there is no ground to deem that the former and former teachers, including the Defendants, committed an act of supporting a specific political party or influencing an election, and therefore, it cannot be deemed that the political neutrality is contrary to the duty of political neutrality.

In addition, the prosecutor pointed out that, from July 19, 2009 to 17:00 of the same day from July 16:00, 2009, at the pan-national forum held in Seoul Station Nonindicted 1, the chairman of the Jeon school assistant Nonindicted Party 1, pointed out that the former president “an endeavor to restore democracy to its original state. All the public officials, teachers, and citizens endeavor to gather efforts and judge the present government.” The prosecutor asserts that the Defendants violated the political neutrality obligation.

However, the foregoing mentioned above is merely a serious expression from the process of protesting that investigation or disciplinary action after the assembly or demonstration infringes on the freedom of expression, and there is an intention to affect the election, or that it constitutes support or opposition to a specific political force is an excessive weak.

(C) Sub-determination

In full view of the foregoing, the Defendants’ act of violating the duty of political neutrality imposed by the law cannot be deemed as violating the Assembly and Demonstration Act.

B. As to the view that there is a concern about the adverse effect on students with a profound ability to judge

(1) Prosecutor's assertion

Through the investigation process, the prosecutor argues that the act of assembly and demonstration is contrary to the public interest because it is highly likely for students who have not yet been able to have political and social judgment power to accept the political assertion of teachers.

(2) Determination

(a)influence based on aging experience;

However, such a view presented by the prosecutor, however, is considered to be old due to the limit of the experience of the sexual generation who has been trained in the environment without information. Unlike the present climatic generation, it is difficult to think that, unlike the current climatic generation, students who have been educated through the gold century, especially those who have been equipped with the intellectual level sufficient to understand the contents of the government policy dealt with in the instant assembly report, have the ability to obtain unlimited information through the Internet, and since they are placed under self-education on the critical view of objects continuously, it is difficult to think that teachers, some teachers, and some teachers, as they are the view of teachers.

(B) The student's grounds for the teacher's argument are considered to be all the grounds for the teacher's argument.

Furthermore, the grounds for support and opposition to the government’s policies are information available freely through the Internet, etc., and the Defendants, including the Defendants, and the teachers participating in the instant assembly are not unilaterally injected to the students through class hours, but merely avoided their assertion outside the class, and thus, the risks of accepting them are very limited.

This is because the student's assertion can be obtained through indirect routes such as the press and the Internet, and such information center does not only deliver or agree to the teacher's assertion as it is, but also criticizes the teacher's assertion or act. In the end, it is guaranteed that the student has an opportunity to equally acquire arguments against the issue. Therefore, the argument that the contents of the teachers' assembly and demonstration outside the class hours should be accepted as it is, is an excessive logical criticism.

(C) Criminal punishment against the Defendants is against democratic education.

In conclusion, we think that the argument that only the students are familiar with the ability to judge is nothing more than a prejudice from the old perspective of the sexual generation that memorys only their past experiences that grow up in the environment of information absence after undergoing a light and uniform education. Rather, if the Defendants are subject to criminal punishment on the grounds that the Defendants expressed an opinion that criticizes the government policy, it would result in the students’ criticism that it only causes damages, and as such, it would be transferred to students without room for a very practical, concrete and theoretical theory. And if so, the modern democracy that maintains the soundness of power through criticism and check will be highly likely to lose its health. Therefore, it can be said that the act of teachers’ above acts should be subject to criminal punishment.

7. Whether the duty to concentrate on duty is infringed or the performance of duty is hindered;

A. As to the failure of the principal to comply with the assembly and demonstration order

The public prosecutor asserts that the act of the assembly and demonstration of this case constitutes a breach of the principal’s order to refrain from participating in the assembly and demonstration of the assembly and demonstration of this case.

However, it is obvious that the duty of obey under Article 57 of the State Public Officials Act is merely an order of “work” of a superior under the law.

The declaration of intent that the act of assembly and demonstration is unlawful is a personal opinion (the head of school does not have the authority of authoritative interpretation on this issue). As long as the act of assembly and demonstration and signature was done regardless of the teacher’s duty, the order to refrain from participating in the assembly and demonstration cannot be deemed as an official order. It can be interpreted as a personal recommendation demanding the participation restriction.

In other words, insofar as the principal did not comply with an official order, it cannot be deemed that the Defendants failed to perform the duty of obeying the order, and therefore, it cannot be deemed that the act of this case did not neglect the duty of loyalty or go against the public interest.

(b) Whether such act impedes the duty of care or the performance of such duty;

(1) The purport of Article 66(1) of the State Public Officials Act

Article 66(1) of the State Public Officials Act provides that the prohibition of “collective action” is the same as the prohibition of “labor movement”, and the permission of a public official who is actually engaged in labor is reasonable to regard that it would result in an infringement of the fair and smooth execution of official duties due to the exercise of the right of collective action and other equivalent exercise of power.

(2) The attitude of judicial precedents

The prosecutor held that even if the above various precedents (Supreme Court Decision 2005Do2209 Decided March 24, 2006, Supreme Court Decision 2005Do9199 Decided April 27, 2006, Supreme Court Decision 2005Do919 Decided May 12, 2006, Supreme Court Decision 2005Do4513 Decided May 12, 2006, the Defendants’ act did not violate the duty of duty of duty of duty of care even if they did not infringe the right of class formally, or did not violate the duty of duty of duty of duty of care. While the above precedents asserted that the Defendants’ act violated the duty of duty of duty of care, they can affect the duty of duty of care if they committed an act contrary to the public interest. Accordingly, the direction of the precedents suggest that the judgment of duty of duty of care depends on the judgment of public interest or an act contrary to the public interest should be presumed to be a violation of duty of duty of duty of care.

In light of the Supreme Court Decision 90Do2310 Decided February 14, 1992, "the defendant shall not be deemed to have committed a "collective act for activities other than public duties" in the above Article 90Do2310 Decided February 14, 1992, since there is no evidence to deem that the defendant neglected his duty of care for the purpose of violating the public interest, since the meeting of the representatives of the Gangwon Teachers' Council and the standing committee, the speech at the lecture meeting, the preparation and distribution of the newsletter of the same Juvenile Teachers' Council was conducted in whole on holidays or working hours, and all of the newsletters were made outside the holidays

If such determination is not made, and if the purport that all collective acts committed by the court after working hours or on holidays are deemed to be unlawful, it would infringe on the essential part of the freedom of general action and freedom of expression derived from Article 10 of the Constitution. Therefore, it is difficult to agree with such interpretation.

(3) Determination on the instant case

In other words, as seen above, it is only possible to determine whether the Defendants’ act violates the duty of care in full-time duty, and whether the duty of care in full-time duty is impeded if the Defendants’ act does not go against the public interest.

However, even if examining the evidence presented by the prosecutor, there is no ground to view that the Defendants’ act infringed the students’ right to teach, or that the essential part of the educational administration was infringed (the same is the case as seen above). Therefore, it is difficult to view that the Defendants’ act as a teacher under the instant assembly and demonstration interfered with the performance of official duties as a teacher due to the instant act, and therefore, it is unreasonable to view it as a “collective act” prohibited by the law.

8. Conclusion

The act of the assembly and assembly of this case is mainly a criticism on the government's policy. If the government's criticism on the government's policy is not widely permitted, the government is deprived of the opportunity to correct the error, and since the government's role has a big impact on the national society, the government's national policy has an opportunity to correct the error.

As such, guaranteeing the freedom of criticism on government policies can be said to be the way to promote public interest, and it is the spirit of the Constitution guaranteeing the freedom of press.Many wrong criticism can only be exempted from the path of self-resolution due to other criticism that is opposed thereto, and punishing such expressive act with the power of public power cannot be said to be the cause of excessive nationalism.

However, the issue of punishment should be judged with regard to the nature of the conflicting fundamental rights and the scope of guarantee.In addition, it is the position of this court that a wide range of tolerance should be made in political expression as a whole of the core fundamental rights of democracy.

Therefore, even if the defendants' government fluoral expressions use somewhat excessive expressions or cause inconvenience to the general public, unless it causes a clear and present danger to the existence and security of the State and democratic fundamental order, it cannot be deemed as a fluoral price for the realization of democracy, and thus, it cannot be subject to criminal punishment without supporting the contents of the defendants' declarations.

As seen earlier, the Defendants’ act of violating the Assembly and Demonstration Act cannot be deemed as going against the public interest, or as violating the duty of care, and cannot be deemed as impeding the duty performance. Thus, the facts charged as to the violation of the State Public Officials Act constitutes a case where the Defendants did not decide on the remaining legal actions, but does not constitute a crime.

【Defendant 1’s violation of the Assembly and Demonstration Act】

1. Summary of the facts charged

Defendant 1, etc.: From June 28, 2009 to June 19: 5, 2009, the participants of the 361th Provisional Central Executive Committee, opened at the first session of the headquarters for the 361st Central Executive Committee, decided to hold a non-reported meeting before the Cheongdae-dong Office, which is in the vicinity of the Cheongdae-dong Branch, in accordance with the strike plan decided by the said Provisional Central Executive Committee, 20 persons including Defendant 1, etc.: From around 14:05 on June 29, 2009 to 4: (a) one mar card stating, “the freedom of expression and conscience,” “the freedom of expression,” “the 1st session of the 4th Special Central Executive Committee”, “the 1st Special Committee: the 4th Special Committee failed to comply with the demand of the head of the 4th Special Police Station for voluntary dispersion; (b) Defendant 1 and the 4th Special Police Station continued to comply with the demand of the 14th Special Police Station for dispersion.

2. The place where the defendant 1 was replaced by another;

A. There was no resolution by the 361 Provisional Central Execution Committee that “To attempt to move to the Cheongdae-face by holding a briefing session in the form of a reporter dog and delivering a letter of objection.”

B. There is no fact that at the 340 Daejeon District Executive Committee and the 5th Standing Executive Committee, there was a deliberation on enforcement claims according to the results of the 361 Provisional Central Executive Committee, Defendant 1, and Defendant 2 did not attend the above meetings.

3. Determination

The prosecutor issued a dispersion order to Defendant 1 by the chief of the police station guard guard who was delegated by the chief of the competent police station for the reason that the press dog held before the audience movement office was not reported, and Defendant 1 and other participants did not comply with the said dispersion order, and prosecuted Defendant 1 by applying Article 24 subparag. 5 of the Assembly and Demonstration Act (hereinafter “Act”).

Article 6(1) of the same Act provides that a person who intends to hold an outdoor assembly or demonstration shall submit a report to the competent police station from 720 hours to 48 hours prior to the commencement of the outdoor assembly or demonstration, and if so, he/she is subject to criminal punishment pursuant to Article 22(2) of the same Act.

However, Article 20 of the same Act provides that the head of the competent police authority may order dissolution of a unreported assembly, and Article 24 subparagraph 5 of the same Act provides that the person who does not comply with such dispersion order shall be punished.

The freedom of assembly is a highly fundamental right that serves as the foundation of democracy. Therefore, the permit system for assembly under the Constitution is not allowed (Article 21(2) of the Constitution of the Republic of Korea).

Article 6(1) of the Assembly and Demonstration Act imposes a duty to report on a person who seeks to hold an outdoor assembly or demonstration is one of the principles of cooperation expressed in the Assembly and Demonstration Act. In other words, there is a duty to cooperate between the organizer, manager, order keeper, and State agency, and the central means for the duty to report is the duty to report immediately. The duty to report is to enable an administrative agency to take measures necessary for the protection of assembly and public safety. Therefore, criminal punishment on a person who neglected his/her duty to report cannot be deemed as unconstitutional (see Constitutional Court en banc Decision 2007Hun-Ba22, May 28, 2009).

However, such duty to report does not create a system of permission, but does not arise only with the implementation of the duty to report. If the provision of Article 6(1) of the Assembly and Demonstration Act is interpreted as such, it would be obviously unconstitutional. Therefore, the failure to report alone constitutes a ground for dispersion order and the criminal punishment against a person who refuses to comply with such dispersion order may be deemed to be unconstitutional.

However, since the provisions of law are different, a constitutional interpretation is constitutional, and on the other hand, a judge should choose an interpretation consistent with the Constitution if it is possible to make a same interpretation (the principle of constitutional interpretation). In other words, Article 24 Subparag. 5 of the Assembly and Demonstration Act, which is suspected of unconstitutional, is not clear in itself, and should be interpreted “construction” in the constitutional sense.

The prohibition and dissolution of an assembly shall be considered only as a last resort, and it is consistent with the spirit of the Constitution to allow only when there is a direct hazard to public safety, which is not sufficient at the expense of preventing the danger. The failure to report is not a ground for prohibiting an assembly automatically. The preventive prohibition stipulated in Article 8(a) of the Assembly and Demonstration Act is premised on the direct threat to public safety. Therefore, in the event that such risk does not occur, dissolution after the fact should not be meaningful and legally permitted.

The Supreme Court’s ruling that “an assembly that deviates from the scope of the report should not immediately be dissolved or prevented, and, accordingly, it can only take measures appropriate for preventing and removing the danger in a case where there is a direct danger to the legal interests of others and other public safety and order.” However, such measures should be limited to the minimum necessary extent permitted by law (Supreme Court Decision 98Da20929 Decided October 9, 2001).” The Constitutional Court also reflects such purport. In the same purport, a representative public authority’s act that restricts the freedom of assembly is prohibited, dissolved and conditional permission as prescribed by the Assembly and Demonstration Act. The restriction on the freedom of assembly is justified only when it is necessary to protect other important legal interests, and in principle, the prohibition and dissolution of assembly can be permitted only when there is a clear direct threat to the public safety and order. It can be said that the prohibition and dissolution of assembly may be limited to cases where it is clearly permitted, i.e., any other means that restricts the freedom of assembly, i.e., a means that permits the assembly to be combineded (300.).

With respect to the interpretation of Article 15(2) of the German Assembly and Demonstration Act that provides an order to dissolve a unreported assembly, the German Constitutional Court of Germany added the requirement that the interpretation of Article 15(2) of the German Assembly and Demonstration Act, which provides for an order to dissolve a unreported assembly, should not be subject to direct risk to public safety and order, and further, the information body caused by a non-reported assembly may be considered in the area of assessment as to whether it constitutes an outdoor assembly or demonstration to be dissolved. However, the information body caused by a non-reported assembly does not per se form a risk, and the fact that a non-reported assembly does not perform its duty to report does not constitute a itself does not automatically prohibit it or order dissolution. (See Decision 14 May 14, 1985, Decision 2VerfGE 69, 315/351/352), and there are significant implications in interpreting our law.

Therefore, Article 20 (1) 2 of the Assembly and Demonstration Act provides that a person may immediately be ordered to dissolve an unreported assembly without any particular additional requirement, but it should be limited to the case of an assembly or demonstration which clearly causes direct danger to the maintenance of order such as traffic flow, etc. corresponding to subparagraph 3 of the same Article.

When comprehensively considering the statements made by Nonindicted 16 and 17 investigation agencies, which are auxiliary police officers who participated in the suppression of the demonstration, Defendant 1 participated in the assembly of the press dog form, the number of participants was more than 20, and the assembly of the press dog form in which Defendant 1 participated was not mobilized by any violence or physical power in addition to the gathering of relief, and it is recognized that the assembly or demonstration did not interfere with the traffic of the vehicle beyond delivery.

The receipt of civil petition documents in the Cheongdae-gu civil service center is a content of the right to petition that citizens enjoy, and the movement for the receipt of civil petition documents is also included in the contents of the fundamental right of freedom of residence transfer. Even if the progress of the participants falls under a demonstration, the freedom of assembly and demonstration constitutes a core fundamental right that constitutes democracy, and public authority bears the duty to guarantee to the maximum extent possible the exercise of their fundamental rights while conducting the minimum control for the maintenance of order.

A prosecutor has planned to fill up a brupt farming before and after the assembly, and is expected to be carried out as a matter of course in that process, and should be punished. According to a brupt plan, participants were holding an assembly with extreme resistance to the police, and accordingly, argued that they have an inevitable nature of the dispersion order.

However, in light of the aforementioned circumstances, it is difficult for participants to find an extreme resistance against the police, and there is no ground to view that there was a direct threat to public peace and order. Furthermore, the risk cited by the prosecutor, namely, the possibility that participants engaged in the assembly have been imprisoned up to the audience, and that there is a need to be punished as a matter of course, cannot be said to be a direct threat to public safety and order. As long as such plan is not realized in reality, it cannot be a cause to justify the dispersion order merely because it is a potential and abstract risk. Rather, it can be pointed out that the exercise of police power that obstructed the assembly and demonstration is an excessive response that restricts the fundamental rights of the people.

In other words, although the head of the competent police authority could ensure peaceful demonstration of participants including Defendant 1, the head of the competent police authority ordered such dispersion only on the grounds that it was merely an unreported assembly, and thus, the dispersion order cannot be deemed lawful. The act of failing to comply with the illegal dispersion order is not unlawful as a matter of course.

Therefore, even if Defendant 1 did not separately determine the remainder of the lawsuit, the above facts charged against Defendant 1 do not constitute a crime.

【Opinion】

In full view of the above, since the facts charged against Defendant 1 constitute a violation of the State Public Officials Act, a violation of the Assembly and Demonstration Act due to a failure to comply with an order of dispersion, and the facts charged against Defendant 2 and Defendant 3 constitutes a case where each crime is not committed, each of the charges is acquitted under the former part of Article 325 of the Criminal Procedure Act, and the summary of each judgment of innocence is publicly notified under Article 58 of the Criminal Act.

It is so decided as per Disposition for the above reasons.

Judges Kim Dong-dong

Note 1) Kim Jong-soo, No. 19 of the Constitution of the Republic of Korea, Park Jong-soo (2009), 719 of the Republic of Korea.

Note 2) See the above books 721 to 722.

Note 3) See the above Note 723.

2. Acts to require the election of a specific political party or organization to be elected or to be elected in an election of a specific political party or organization under Acts; 3. Acts to require the person to participate in an election of a specific political party or organization or to participate in an election of a specific political party or organization for the purpose of supporting or opposing such political party or organization; 2. Acts to require the person to participate in an election of a specific political party or organization or to participate in an election of a specific political party or organization for the purpose of supporting or opposing such political party or organization; 3. Acts to require the person to participate in, or to participate in, an election of a specific political party or organization for the purpose of supporting or distributing newspapers or publications belonging to the political party or organization or to interfere with such acts; 4. Acts to require the person to participate in, or to participate in, an election of a specific political party or organization under paragraph (1);

5) The case holding that even if the Gangwon Teachers' Council related to the defendant pointed out the opposition to the expansion of supplementary classes, the strawing day problem, the teachers' withdrawal from the school, etc., and it appears that it was a voluntary organization of the teachers to claim the improvement thereof, or that it had engaged in the activities such as publicity of the necessity of the establishment of a full-time school, such activities alone do not constitute "collective activities for activities other than public affairs".

6) In the case of France and Germany, the entry of officials into political parties and political party activities are allowed, and in the case of the United States, the submission of political issues and candidates, the attraction and provision of funds, participation in political party activities, election campaigns for specific candidates, etc.

7) Under Article 102 of the State Public Officials Act of Japan and Article 14-7 of the Personnel Personnel Rules (political conduct), simple arguments on policies and collective signature campaigns for opposing objections are allowed.

8) State interventions in the freedom of expression of a public official are permitted only in compliance with the following criteria. ① Such interventions are prescribed by the laws of the member country, ② such interventions have legitimate objectives which are not more than those provided for in the treaty. The protection of national security, territory conservation, public safety, disorder or crime, health or morality, the protection of others’ credit or morality, the prevention of width of information obtained from confidential interests, and the maintenance of authority and impartiality of judicial authorities.

9) The Supreme Court Decision 2009Da4623, 6734, 6958 (Joint) and the Daejeon District Court Branch of Hongsung Decision 2009Da606, 2009Da512, 2009Dadan873 (Joint) Decided February 4, 2010, which found the Defendants guilty of each assembly and assembly of this case, did not explicitly indicate the precedents cited by the prosecutor as precedents.