Defendant 1 and two others

Defendant 1 and Prosecutor

decoration;

Attorney Seo-sikng

Daejeon District Court Decision 2009Da2786, 2009 High Court Decision 2259, 2009 High Court Decision 4126 decided Feb. 25, 2010

The judgment of the court below is reversed.

Defendant 1 shall be punished by a fine of KRW 2,00,00, and by a fine of KRW 700,000, respectively.

In the event that the Defendants did not pay the above fine, the Defendants shall be confined in the Labor House for the period calculated by converting the amount of KRW 50,000 per day into one day.

To order the Defendants to pay an amount of money equivalent to the above fines.

1. Summary of grounds for appeal;

A. Defendant 1

1) misunderstanding of facts and misapprehension of legal principles

On or around June 29, 2009, the press conference held in the presence of the Seoul Cheongdong community service center (hereinafter “the press conference of this case”) is merely a mere press conference, not an outdoor assembly as prescribed by the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”). Even if the press conference falls under “the outdoor assembly”, the Defendant is merely the organizer of the outdoor assembly, but merely a simple participant, and thus, cannot be deemed the joint principal offender of the violation of the Assembly and Demonstration Act.

2) Unreasonable sentencing

(b) Prosecutors;

1) misunderstanding of facts and misapprehension of legal principles

A) Violation of the State Public Officials Act

The Assembly and Demonstration Act was prohibited on June 18, 2009 by the Assembly and Demonstration Act (hereinafter “the First Assembly and Demonstration Act”) and on July 19, 2009. The Assembly and Demonstration Act was prohibited by Article 66(1) of the State Public Officials Act.

B) Violation of the Assembly and Demonstration Act due to non-compliance with the dispersion order

The press conference of this case was held without any prior report as prescribed by the Assembly and Demonstration Act, and Article 20 (1) of the same Act provides that the head of the competent police authority, without any specific additional requirements, may demand voluntary dispersion and order dispersion if not complying with the request. Thus, the request for voluntary dispersion by the chief of the police station at the end of the same police station entrusted by the chief of the police station, who is the chief of the police station at the place of the press conference of this case, and three times of dispersion order is legitimate. As to Defendant 1’s act in violation of the lawful request for dispersion and dispersion order, the violation of the Assembly and Demonstration Act is established pursuant to Articles 20 (2) and 24 subparag. 5 of the same

2) Each unfair sentencing decision

2. Determination

A. As to Defendant 1’s assertion of mistake and misapprehension of legal principles

1) Summary of this part of the facts charged

On June 28, 2009, at around 19:30, the Korean Teachers’ Union (hereinafter referred to as the “Korean Teachers’ Union”) held the First Provisional Central Execution Committee at the first place of the headquarters of the previous school. The participants of the said 361 Provisional Central Execution Committee, including Defendant 1, decided to hold an assembly without filing a prior report in accordance with the strike plan decided by the said Provisional Central Execution Committee. From around 14:05 on June 29, 2009, Defendant 1 and 20 full-time officers, including Defendant 1, decided to hold an assembly at the front of the Cheongdong-gu Community Service Center. From around 14:05, in the front of the Cheongdong Campaign Community Service Center, fla cards stating that “The freedom of expression, conscience, and conscience, there is no legal basis for disciplinary action,” and the phrase “the freedom of expression, such as 17,000 teachers’ free will,” and 4,000 Puler’s free speech, etc.

As a result, Defendant 1 organized an unreported outdoor assembly in collusion with the participants of the 361 Provisional Central Executive Committee.

2) Determination

A) Even if the reporter claimed to hold a press conference, if the person was in the form of an assembly, such as making a speech or holding a relief in a state where many and unspecified people can see or hear by preparing a pl cards, microphones, and softs, it shall be deemed as an outdoor assembly as prescribed by the Assembly and Demonstration Act, regardless of the title of the event. Furthermore, the Assembly and Demonstration Act provides that a person who intends to hold an outdoor assembly should report a certain matter in advance to the chief of the competent police station, thereby protecting a legitimate outdoor assembly by pre-reporting the nature and scale of the outdoor assembly, etc., while the chief of the competent police station, upon receiving the report, shall prepare a prior measure to maintain public safety and order by preventing infringement of others or community interests through the outdoor assembly. Accordingly, it cannot be said that the above duty to report is exempted because the police station having jurisdiction over holding an outdoor assembly was aware of the fact that it would be held or the assembly would be peacefully held.

B) As to the instant case, the following facts and circumstances, which can be acknowledged by the court below by comprehensively taking account of the evidence legitimately adopted and examined, namely, 20 assistant executives including Defendant 1, including Defendant 1, by using a flock card and scacker, etc. as stated in the instant facts charged, and by using microphones and scackers, “the guarantee of freedom of expression” created relief, such as “the guarantee of freedom of expression”, and even if they flicked with the audience center prior to the audience center and flicked with the audience, the circumstances, purpose, time, place, etc. of the instant press conference, regardless of what name of the instant press conference was or whether the press conference was conducted peacefully, the instant press conference is deemed to be a co-owned act of Defendant 1 and its co-owned act of violating the Assembly and Demonstration Act, and thus, there is no reasonable ground to deem that the instant press conference was a co-owned act of Defendant 1, as seen earlier.

B. As to the prosecutor's assertion of mistake and misapprehension of legal principles

1) Summary of each of the facts charged

A) Violation of the State Public Officials Act

Defendant 1 was issued to ○○ High School on October 1, 1984 as a biological teacher and served in the above high school until now. From January 1, 2009, Defendant 2 was in charge of the affairs of the Jeon school Daejeon Branch, while working as the head of the Jeon school Daejeon Branch from around January 1, 2009. Defendant 2 started working as an elementary school teacher upon the issuance of an order from Pyeongtaek-gu National School around September 1982, and worked as an elementary school teacher from around 2008. Since March 2009, Defendant 1 was in charge of the policy affairs while assisting the head of the Jeon school. Defendant 3 was issued to the Daejeon High School at Daejeon High School at around 1998, and was in charge of the affairs of the Jeon school branch from January 1, 2009.

(1) The First Assembly Declarations of this case

Although a public official does not engage in any collective action for labor campaign or other activities other than public duties, the Jeon school assistant decided to criticize the government's policies at the 360 Central Execution Committee meeting held at the Jeon school's headquarters on June 9, 2009 and demand the reform of state affairs. In this case, Defendant 1 was present at the Daejeon Branch's above meeting. The Defendants, the full-time officer of the Jeon school assistant branch, as a result of the meeting of the 360 Central Execution Committee, conspired to receive the signature from the members of the Jeon school Seo-gu Daejeon Branch's headquarters, and accordingly, the Defendants were unable to have signed on the website from June 11, 2009 to June 15, 2009, and the members of the Daejeon Branch sent the list of the Defendants' names to the 10th National Assembly members' signature and the 17th National Assembly members' signature and the 10th National Assembly members' signature and the 16th National Assembly members' signature and the 3th National Assembly's signature and seal.

As above, on June 18, 200, all school support headquarters of each branch office was signed. around 11:0 on June 18, 200, and around 11:00, in the name of Non-Indicted 1 and 10 members of the previous school support headquarters around Jung-gu, Seoul, opening the press conference with the view of "if the public authority orders to leave the time of democracy due to abuse of public power, the freedom of assembly, expression, and association is seriously damaged, and human rights are seriously spreading." We hope that the government has announced the present era of culture with the strong view of political purposes, such as the election of the government, and the election of the 19th executive members of the previous school support headquarters, and the election of the Republic of Korea with the view to the development of the present culture and the operation of the government's new culture and the election of the Republic of Korea."

As a result, the Defendants conspired with the former executives and the lower teachers who are state public officials, and committed collective acts for purposes other than official duties.

(2) Assembly of Second Declarations of this case

(3) On June 26, 209, the Ministry of Education, Science and Technology (hereinafter referred to as the “Seoul High Court”) took part in the 6th session of the Seoul High Court’s 20th session and the 19th session of the 2nd session of the 3th session of the 1st session of the 2nd session of the 2nd session of the 2nd session of the 2nd session of the 2nd session of the 2nd session of the 2nd session of the 2nd session of the 3nd session of the 2nd session of the 2nd session of the 3th session of the 4th session of the 2nd session of the 2nd session of the 2nd session of the 3nd session of the 3th session of the 3th session of the 1st session of the 2nd session of the 2nd session of the 3th session of the 1st session of the 3rd session of the 3rd session of the 3th session of the 1st session of the 2nd session of the 36th session.

On July 19, 200 to 14:20 on July 19, 2009, 200 members, including the president, non-indicted 1, and 20 members of the previous school: (a) read a press conference containing the contents that “the previous school will continue to make continuous efforts and accusations to confirm the legitimacy of the assembly; and (b) announced the press conference stating “the declaration of democratic heading school” under the name of Non-indicted 1 and 28,634 teachers. In addition, the previous school table posted the above press report on the front school website (Internet address 2 omitted). The main contents of the above assembly report criticizes that the disciplinary policy of the Department of the Assembly was unconstitutional abuse of public authority; and (c) demands the withdrawal of the teachers’ freedom of expression and disciplinary measures against teachers, and thus, it was justifiable to confirm the list of the previous teachers on the homepage of the Assembly.

From July 19, 200 to 17:00 on the same day, the former Twitter Chairman, etc. used Nonindicted Party 5 members of the Democratic Labor Party, Nonindicted Party 6 members of the Democratic Labor Party, Nonindicted Party 7 members of the Democratic Party, Nonindicted Party 8 members of the Korean Democratic Labor Union, Nonindicted Party 1’s Chairman of the Korean Democratic Labor Union (hereinafter “Public Labor Union”), 150 members of the former Non-Party 10, 150 members of the Korean Democratic Labor Union (hereinafter “Public Labor Union”), 100 members of the Korean Public Officials’ Union (hereinafter “Special Labor Union”), 50 members of the Korean Government’s “Public Officials’ Union” who participated in the Assembly and Demonstration, and 10 members of the Seoul National Labor Union (hereinafter “Court Labor Union”) who participated in the Assembly and Demonstration, and expressed that Non-Indicted Party 1’s National Labor Relations Commission and the former Chairman of the Korean Labor Union were the 10th National Labor Relations Commission.

By doing these series of actions, the Defendants conspired with the members of the former Telecommunication Union, the civilian labor union, the major labor union, and the court labor union, thereby collectively engaging in activities other than official duties as a public official.

B) Violation of the Assembly and Demonstration Act due to non-compliance with the dispersion order

Defendant 1 and other participants of the 361 Temporary Central Execution Committee decided to hold a unreported meeting in front of the Cheongdae-dong community service center movement, which is in the vicinity of the Cheongdae-dong community service center in accordance with the strike plan decided by the above Provisional Central Execution Committee. From June 29, 2009 to June 14:05, 2009, Defendant 1 and other 20 senior executives of the Cheongdae-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-Dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong 17,000 teachers and colleges' 17,0000 teachers's 14:5 of the order to voluntarily participate in the meeting without any prior report, and the head of the 14th police station entrusted by the chief of the police station at the place of the assembly of this case with the authority to voluntarily participate in the meeting on July 14, 15:14, without following order.

As a result, Defendant 1 conspired with the participants of the above 361 Provisional Central Execution Committee, and did not dissolve without delay even after being given lawful dispersion order as the participants of the unreported outdoor assembly.

2) The judgment of the court below

The court below held that the assembly of this case did not constitute a crime of violating Article 20 (1) 2 of the Assembly and Demonstration Act, since the assembly of this case did not violate the duty of political neutrality of the public official or adversely affect the students who are education beneficiaries, it cannot be deemed as an act for the purpose against the public interest. The assembly of this case does not constitute a crime of violating the Assembly and Demonstration Act, and it does not constitute a crime of violating the State Public Officials Act. ② Order of dispersion pursuant to Article 20 (1) 2 of the Assembly and Demonstration Act does not constitute a crime of violating Article 20 (1) 3 of the Assembly and Demonstration Act.

3) Determination of the immediate deliberation

A) Violation of the State Public Officials Act

(1) The main text of Article 66(1) of the State Public Officials Act provides that “a public official shall not engage in any collective act for any labor campaign or other work other than public service.” Here, “collective act for any work other than public service” should be limited and interpreted as “collective act that has an impact on the neglect of duty in good faith for any purpose contrary to public interest” by comprehensively taking into account Article 21(1) of the Constitution guaranteeing the freedom of speech, publication, assembly, and association, the constitutional principle, the purport of the State Public Officials Act, the duty of good faith and duty of care under the State Public Officials Act, etc. In addition, in determining whether an act constitutes a collective act as above, it should be carefully examined whether the actor’s attitude as well as the reason that the act was committed as the pretext of the act, the specific expression of the act, etc., such as the time, place, method, and method of the act, and whether the act exists for any purpose contrary to public interest and whether it affects the neglect of duty of care.

(2) Meanwhile, Article 7(2) of the Constitution of the Republic of Korea provides that “the status and political neutrality of public officials shall be guaranteed under the conditions as prescribed by Act,” and Article 31(4) provides that “the autonomy, speciality, and political neutrality of education and the autonomy of university shall be guaranteed under the conditions as prescribed by Act.” Accordingly, a certain restriction on the political freedom of public officials in the State Public Officials Act and the Public Official Election Act, etc. shall be provided for the restriction on the political freedom of public officials. For teachers, “education shall be operated to fulfill their functions according to their original purpose and shall not be used as a means to spread political, political, or individual prejudice,” and Article 3(4) of the Act on the Establishment and Operation of Teachers’ Labor Unions (hereinafter “Trade’ Labor Unions Act”) provides that “no trade union shall engage in any political activity of each teacher,” thereby limiting the political freedom of education.

(3) In full view of the evidence duly adopted and examined by the lower court regarding the instant case, the following facts can be acknowledged.

(A) Our teachers, who should add the history and value of the First Declaration to the front and the Second Declaration of the Assembly in June, 200, are under the situation in which the development of democracy, which was put up at the right of sacrifice and sacrifice of the people, inevitably damages the freedom of speech, assembly, expression, and association of democracy due to the abuse of public power, which makes the time off the military regime,. “The investigation of various candlelights and the investigation of the persons related to PD pockets, was being carried out in excess of their common sense,” “The old 2nd Declaration of the Republic of Korea’s past president’s movement, which was mobilized for political purposes, became the cause of the destruction of the past president’s labor power,” and “the old 2nd Declaration of the Democratic Republic of Korea’s election campaign, which was destroyed by an unfluened danger of the people,” and “the old radic culture of the nation’s election campaign, including the new radic culture of the nation’s election.”

(B) In the front and middle parts of the Second Declarations, the Assembly and Demonstrations of this case state that “the teachers who expressed their position to a city level are unconstitutional and should be withdrawn because they are unconstitutional abuse of public power that disturbs the basic order of democracy,” and the latter part state that “it is not harsh how our teachers should teach democracy,” and that “it is inevitable for our teachers to go back to democracy without going through democracy,” and that “it is hard to see that the chest of the past Military Doctrine and open history, and that they do not feel deep decentralization and shock,” and that “the large volume of teachers who will be subject to a state declaration is unconstitutional abuse of public power that destroys the basic order of democracy, and thus, should be withdrawn.”

(C) Each assembly of this case was decided by the Assembly and Demonstration Committee (the President, the Chief Vice-Chairperson, the Vice-Chairperson, the Chief of Policy Office, the Chief of Compilation, the Chief of Compilation, and the Chief of City/Do branch office, etc.). The Assembly and Demonstration Act (the Assembly and Demonstration Act’s officers). ② The Assembly and Demonstration Department’s 16 branches nationwide shall be prepared and sent to the 16 branches. ③ The former Chief officer of each branch sent a notice on the “Gu Council Declaration’s sign” on the website, and sent a letter and sign to each branch by e-mail, facsimile, etc., and ④ The former Chief issued a notice in the form of a press conference by combining the signature combined with each branch as above, and (4) The Assembly and Demonstration Headquarters announced the notice in the form of a press conference, and (5) The Second Assembly and Demonstration was conducted as a series of the Defendants and other signors participating in the Assembly and Demonstration Assembly and Demonstration Act, in particular, in addition to the above notice and posting on the website.

(D) At the time of the assembly and demonstration of this case, the assembly and demonstration of this case was announced on May 28, 2009, immediately after the assembly and demonstration of the President on May 23, 2009 and the assembly and demonstration of Non-Indicted 100 on May 28, 2009, which was immediately after the assembly and demonstration of Non-Indicted 15, were announced to the government. On June 9, 2009, the assembly and demonstration of Non-Indicted 1 was announced to the same effect as the assembly and demonstration of the present government on the various levels of society, such as the assembly and demonstration of Non-Indicted 10 on June 10, 2009 and the assembly and demonstration of Non-Indicted 10 on June 13, 2009.

(4) Examining the facts that the Defendants were unable to engage in political activities based on the above-mentioned facts or to recognize them as having a high level of political public interest, namely, that they are expressed with specific opinions as to the government policies and specific cases where various groups conflict with each other, and thus, constitute a genuine and democratic spirit against which each of the above-mentioned teachers’ freedom of expression is against the fundamental rights and interests of the public. In light of the fact that the Defendants’ act constitutes a violation of the fundamental rights and interests of the public, it is unreasonable to view that the Defendants’ act would be against the fundamental rights and interests of the public, and that such act constitutes a violation of the fundamental rights and interests of the public, and that such act would not be regarded as an expression of the public official’s fundamental rights and interests, and that such act would not be regarded as an expression of the public official’s fundamental rights and interests at the same time, and that such act constitutes a violation of the fundamental rights and interests of the public. As such, the Majority Opinion appears to have no choice but to mean that it is an expression of the public official’s political position and interest.

Ultimately, it is reasonable to view the assembly and demonstration of this case as a collective act prohibited by Article 66(1) of the State Public Officials Act. Thus, the prosecutor’s assertion pointing this out is with merit.

B) Violation of the Assembly and Demonstration Act due to non-compliance with the dispersion order

In full view of the evidence duly admitted and examined by the court below, as seen in the above 2. A. 2.2, Defendant 1 started the instant assembly without reporting in collusion with the organizer and manager on June 29, 2009. The chief of the senior police station, who is a legitimate authorized person, ordered voluntary dispersion from 14:35 to 14:55 on the same day, and ordered three or more dispersion orders. Nevertheless, Defendant 1 and the participants of the instant assembly, including Defendant 1, asserted that they would deliver a letter of objection to the President, and suggested relief, such as "the chief of the department of the department of the curriculum suppressing democracy," and eventually, it can be sufficiently recognized that the completion of the instant assembly is completed by holding the participants of the above assembly. According to this, the Defendants did not immediately dissolve the assembly without a legitimate dispersion order, and therefore, the Defendants did not clearly require additional communication under Article 20 (2) 4 and 5 of the Assembly and Demonstration Act. Therefore, there is no reason to deem that the above report of dissolution order under Article 202 of the Assembly and Demonstration Act.

3. Conclusion

If so, the prosecutor's appeal is with merit, without examining the defendant 1 and the prosecutor's argument of unfair sentencing, the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act, and the following decision is rendered again through pleading.

As above 2. A. 1 and 2.b. 1) are as listed in the subparagraphs of paragraphs (a) and (b).

1. Defendants’ respective legal statements

1. Protocol concerning the interrogation of the Defendants by the prosecution

1. A protocol concerning the examination of suspect against the defendant 1;

1. Each statement of the police made against Nonindicted 16 and 17

1. Each accusation;

1. Each investigation report (report attached to a personnel card, attachment of a notice posted on the website of the Daejeon District Office, attachment of the minutes of the 360 Central Execution Committee, attachment of the contents of e-mail confiscated, attachment of the contents of e-mail analysis, accusation and report attached to the sending of case notes, attachment of information, attachment report attached to a CD, attachment of a CD on July 19, 2009, attachment of documentary evidence attached to Defendant 1’s report on violation of the Assembly and Demonstration Act as of July 19, 2009, attachment of evidence evidence attached to Defendant 1’s report on violation of the Assembly and Demonstration Act, attachment of a copy of the list of enforcement members of the 2009 Bridge branch, attachment of printed materials on the website of the 2009 Daejeon District Office, attachment of printed materials on the homepage of the 2009 branch branch office of the 200, submission of information

1. Evidential pictures;

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

Defendant 1: Articles 84, 66(1) of the State Public Officials Act, Article 30 of the Criminal Act (collective acts, selection of fines), Articles 22(2) and 6(1) of the Assembly and Demonstration Act, Article 30 of the Criminal Act (unreported Assembly and Demonstration, Selection of fines), Articles 24 subparag. 5, 20(2) and 20(1)2 of the Assembly and Demonstration Act, Article 30 of the Criminal Act ( point of non-compliance with the dispersion order, selection of fines)

Defendant 2 and 3: Each State Public Officials Act Articles 84 and 66(1) of the State Public Officials Act, Article 30 of the Criminal Act, and each fine shall be selected.

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Code

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Code

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Even if there is a belief that their behavior would result in serving the public interest, the behavior to carry out the belief in violation of the positive law is likely to be subject to criticism because it rejected multi-dimensional and superior values in a democratic society and reject the rule of law that must be realized to move toward a democratic society as a result. The Defendants were punished due to the act of disregarding their positive law or to carry out their arguments in the investigation stage, but they again committed each of the crimes in this case. The Defendants, as the full-time officers of the Daejeon Daejeon Branch, led to the signing of each of the crimes in this case. The Defendants, as the full-time officers of the Daejeon Branch, led the signing of each of the crimes in this case. The degree of participation in the second B/L after the Second Declaration, such as participating in the Extraordinary Branch, seems not to be somewhat unfavorable to the Defendants. However, there are many social discussions about the limit of public officials and teachers' political activities, and thus, the Defendants were more favorable to each of the above Defendants, not the Defendants, but the Defendants were subject to a fine.

Judges Su Young-hee (Presiding Judge)