In a case where a collective expression of opinion by a public official constitutes a “collective act for any purpose other than public service” prohibited under Article 66(1) of the State Public Officials Act, and the standard for determination thereof / Whether such a legal doctrine likewise applies to the case of Article 58(1) of the former Local Public Officials Act that prohibits “collective act for any purpose other than public service” (affirmative)

In a case where a collective expression of opinion by a public official constitutes a specific political activity prohibited against a public official under individual Acts, such as the State Public Officials Act or the Public Official Election Act, or where it is deemed that such act may cause direct danger that may infringe on a public official’s political impartiality, such as an act that directly expresses his/her intent to support or oppose a specific political party or political force, such as an act that clearly expresses his/her intention to support or oppose a specific political party or political force, that act goes beyond the original part of the public official, and thus constitutes a collective act for work other than public service, which is prohibited under Article 66(1) of the State Public Officials Act, and thus, it constitutes a “collective act for work other than public service,” which is prohibited under Article 66(1) of the State Public Officials Act, and thus, constitutes a “collective act for work other than public service,” which is prohibited under Article 66(1) of the State Public Officials Act. In addition to the specificity of the status of a public official whose political impartiality is required under the Constitution, the aforementioned legal doctrine should be determined by comprehensively taking into account various circumstances related to the act.

Article 66 (1) of the State Public Officials Act, Articles 58 (1), and 82 (see current Article 83) of the former Local Public Officials Act (Amended by Act No. 10147, Mar. 22, 2010);

Supreme Court en banc Decision 2010Do6388 Decided April 19, 2012 (Gong2012Sang, 912)

Defendant 1 and one other

Defendants

Law Firm Citizens, Attorneys Kim Nam-han

Seoul Southern District Court Decision 2010No1783 decided July 6, 2012

All appeals are dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal

A. In a case where a collective expression of opinion by a public official constitutes a specific political activity prohibited against a public official under the State Public Officials Act or other individual Acts, such as the Public Official Election Act or the Public Official Election Act, or where it can be deemed that an act clearly revealing political bias or political stimulity, such as directly expressing a support or opposition to a specific political party or political force, may cause direct danger that may infringe on the public official’s political impartiality, such act goes beyond the original part of the public official, thereby impairing the public interest or impairing the essence of public duties, and thus constitutes a “collective act for work other than public duties,” which is prohibited under Article 66(1) of the State Public Officials Act, and it is reasonable to view that such act constitutes a “collective act for work other than public duties,” which is prohibited under Article 66(1) of the State Public Officials Act. In addition, in a specific case, the aforementioned legal doctrine should be determined by comprehensively taking into account the motive and purpose of the act in question, background, political and social background at the time of the act in question, and whether it is related with a specific political force.

Meanwhile, criminal facts have to be proved to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). However, the preparation of evidence and the probative value of evidence conducted on the premise of fact finding belong to the free judgment of the fact-finding court (Article 308 of the Criminal Procedure Act).

B. In full view of the purpose, progress, preparation process, etc. of the instant assembly, the lower court determined that Defendant 1’s act of participating in the instant assembly constitutes a collective act for purposes other than public duties prohibited under Article 58(1) of the former Local Public Officials Act, on the ground that it does not constitute an act permissible under law or a justifiable act, and rejected the Defendant’s allegation in the grounds of appeal for erroneous determination of facts or misapprehension of legal principles on this point, on the contrary, on the grounds that it is reasonable to view that it constitutes a collective act for purposes other than public duties prohibited under Article 58(1) of the former Local Public Officials Act, since it is deemed that the act of participating in the instant assembly constitutes an act of expression of political intent to exercise influence in the process of decision-making on government policies with a specific political party

C. Of the allegations in the grounds of appeal, the argument disputing the fact-finding by the lower court is merely an error of the lower court’s determination as to the selection of evidence and probative value, which belong to the free judgment of the fact-finding court. In addition, even when examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on “justifiable activities related to trade union” under Article 3(1) of the former Act on the Establishment and Operation of Public Officials’ Unions (amended by Act No. 10133, Mar. 17, 2010), “political activities” under Article 4, “collective activities other than public duties” under Article 58(1) of the former Local Public Officials Act, “collective activities other than public duties” under Article 58(1) of the former Local Public Officials Act, and the duty

2. As to Defendant 2’s ground of appeal

For reasons indicated in its holding, the lower court determined that Defendant 2’s trade union cannot be deemed to have ceased to exist due to the merger, and rejected the Defendant’s allegation in the grounds of appeal for mistake of facts

The allegation in the grounds of appeal disputing the lower court’s fact-finding is merely an error of the lower court’s determination on the evidence selection and probative value, which actually belong to the free judgment of the fact-finding court. In addition, examining the reasoning of the lower judgment in light of the legal doctrine as seen earlier and the relevant statutes and legal principles as well as the evidence duly admitted, the lower court’s aforementioned determination is acceptable (see Supreme Court Decision 2011Du921, Dec. 27, 2016). In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine

3. Conclusion

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

Justices Kim So-young (Presiding Justice)