[1] Whether Article 84 of the State Public Officials Act, which is a penal provision for a violation of Article 66(1) of the State Public Officials Act prohibiting a collective action by a public official, can be applied to a public official in non-career service (negative)

[2] Whether the non-standing members of the Committee for Finding Questions, which are deemed public officials pursuant to Article 38 of the Special Act on Finding Questions, may be deemed public officials in career service (negative)

[1] In full view of the structure of the State Public Officials Act and the principle of no crime without the law that the penal provisions should be specific and clear, Article 66(1) of the State Public Officials Act prohibiting all public officials under the State Public Officials Act which prohibits such collective action, but Article 84 of the State Public Officials Act, which is a criminal punishment provision for such violation, applies only to public officials in career service and does not apply to public officials in non-career service.

[2] In full view of the provisions of the Special Act on the Examination of Questions and Photographss, and various provisions concerning the members and employees of the Committee, the term of two-year non-standing members of the Committee shall not be deemed as public officials in career service (public officials appointed by performance and qualification, whose status shall be guaranteed, and who are expected to serve as public officials) in the application of penal provisions under the Criminal Act or other Acts pursuant to Article 38 (1) of the Special Act on the Examination of Questions and Photographss, which are temporarily established as part of the investigation activities for a question case. This is because the special Act on the Examination of Questions and Photographss and its Enforcement Decree shall not be deemed as public officials in career service (public officials appointed by performance and qualification, whose status shall be guaranteed, and who are expected to serve as public officials) in the application of penal provisions under the Criminal Act or other Acts, considering that both the chairperson, standing members, chief of investigation, and expert members of the Committee shall be comprised of public officials in non-permanent service (regular public officials, special service, and public officials in contractual service)

[1] Articles 66 (1) and 84 of the State Public Officials Act / [2] Article 38 of the Special Act on Finding Literatures, Article 66 (1) and Article 84 of the State Public Officials Act

Defendant

Prosecutor

Law Firm Chang-chul, Attorneys Lee Jae-soo et al.

Seoul Central District Court Decision 2005No468 Delivered on June 1, 2005

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 2 of the State Public Officials Act provides that “The provisions of this Act, except as otherwise provided for in Articles 33, 46 through 67, and 69, shall not apply to public officials in non-career service, unless otherwise provided for in this Act and other Acts, shall not apply to public officials in non-career service, while the provisions on the service (Articles 55 through 67) of Chapter VII of the State Public Officials Act (Articles 78 through 83-2) and Chapter XI Penal Provisions (Article 84) of the State Public Officials Act (Article 83-3 of the State Public Officials Act) do not list those public officials in non-career service as applicable provisions, and the provisions on the disciplinary action against public officials in non-career service (Article 83-3 of the State Public Officials Act shall not apply to those who are appointed by performance and qualification as public officials and who are expected to serve as public officials in non-career service) and the main sentence of Article 3 (1) shall not apply to those public officials in non-career service.”

Article 66(1) of the State Public Officials Act prohibiting collective action against all public officials under the State Public Officials Act, but Article 84 of the State Public Officials Act, which is a criminal punishment provision for such offense, applies only to public officials in career service and does not apply to public officials in non-career service.

In the same purport, the court below is just in holding that Article 84 of the State Public Officials Act, which is a criminal punishment provision, is not applicable on the ground that all the standing members, investigation officers, and expert members belonging to the Committee for Finding Questions and Photographs who are public officials in non-career service under the State Public Officials Act violated Article 66 (1) of the State Public Officials Act, and the court below is not erroneous in the misapprehension of legal principles as otherwise alleged in the ground of appeal. The prosecutor's ground

2. The penal-related laws and regulations must not only clarify the contents of the regulations, but also strictly and analogically interpret them.

As seen earlier, Article 84 of the State Public Officials Act, which is a criminal punishment provision for a violation of Article 66(1) of the State Public Officials Act, can be applied only to a public official in career service. Thus, Article 38 of the Special Act on Finding Literature, notwithstanding that a public official is not a public official, “A member or employee of the Committee who is not a public official, shall be deemed a public official in the application of the penal provisions under the Criminal Act or other Acts” shall be deemed to be the non-standing member of the Committee on Finding Literature, which is a criminal punishment provision for a violation of Article 66(1) of the State Public Officials Act, in order to apply Article 84 of the State Public Officials Act, which is a criminal punishment provision on the ground of a violation of Article

However, in light of the various provisions of the Special Act on the Finding of Questions and Photographss on the Finding of Questions and Photographss on the Members and Employees of the Committee (Article 4), in particular, the duties and composition of the Committee (Article 5), the period of investigation (Article 23), the independence and status guarantee (Article 9), the status guarantee (Article 13), and the status guarantee (Article 13), etc. of the Committee, it is difficult for non-standing members of the Committee to be regarded as public officials in career service (public officials appointed by performance and qualification, whose status is guaranteed, and who will work as public officials) in the application of penal provisions under the Criminal Act and other Acts pursuant to Article 38 (1) of the Special Act. Above all, in the application of the special Act and its Enforcement Decree, it is difficult to consider that the non-permanent members of the Committee constitute public officials in career service who are not public officials in contractual service.

Therefore, even non-standing members who are deemed public officials under Article 38 of the Special Act shall not be subject to Article 84 of the State Public Officials Act, which is a criminal provision on the ground of violation of Article 66 (1) of the State Public Officials Act, like the chairperson, standing member, chief of investigation department, and expert member belonging to the committee who is a public official

In the same purport, the court below maintained the first instance court's decision that the defendant, who is a non-standing member and a standing member publicly recruited, cannot be held liable for the crime in violation of Article 84 of the State Public Officials Act, is justifiable, and there is no violation of law such as misunderstanding of legal principles as otherwise alleged in the ground of appeal. This part

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)