The case holding that it is the case where the head of the regional headquarters of the Korean Public Officials' Union, in the course of achieving the ultimate objective of the Korean Public Officials' Union, which is to secure the right of collective action of public officials who are legally prohibited by law, carried out pro and pro-con voting on industrial actions such as the annual strike to accomplish the request, constitutes the "labor movement or other collective action for activities other than public services

The case holding that it is the case where the head of the regional headquarters of the Korean Public Officials' Union held a pro-con voting for industrial actions, such as the annual strike to accomplish the request in the process of achieving the ultimate goal of the Korean Public Officials' Union, which is securing the right of collective action of public officials prohibited by law, constitutes the "collective action for labor campaign or other activities other than public services" as provided by Article 58

Articles 58(1) and 82 of the Local Public Officials Act

[Plaintiff-Appellant] Plaintiff 2004Do5035 delivered on October 15, 2004 (Gong2004Ha, 1904)

Defendant

Defendant and one other

Lee Jae-deok

Attorney Maju-cheon

1. Changwon District Court Decision 2003Mo308 decided Oct. 12, 2005; 2. Seoul Central District Court Decision 2005Mo2327 decided Jun. 24, 2005

All judgment of the court below shall be reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

77 days of detention before sentencing of the judgment below shall be included in the above sentence.

However, the execution of the above punishment shall be suspended for three years from the date this judgment becomes final and conclusive.

The defendant shall be ordered to be put on probation for two years.

1. Summary of grounds for appeal by the defendant;

A. misunderstanding of facts and misapprehension of legal principles

(1) Of the judgment of the court below of first instance, as to the violation of the Act on the Injury resulting from the obstruction of special performance of official duties, general traffic obstruction, and assembly and demonstration

The defendant participated in the 5.18th National Public Officials' Union Resolution (hereinafter referred to as the "Korean Public Officials' Union Resolution") held in the judgment of the court below and completed a worship at the 5.18th National Cemetery, and there was a conflict between the police and public officials belonging to the major labor union who refrained from entering the said cemetery as a new cemetery. However, since the police officers were not aware that the police officers were carrying out the presidential security service, the defendant cannot be held responsible for the obstruction of special performance of official duties because he was unaware of the situation that the police officers were carrying out the presidential security service, and even if police officers were injured in the process, they did not act protruding and contingently by some participants, and the defendant was not responsible for the failure to participate in fighting on the road at the time, and the police officers were not responsible for causing any harm to the police officers, including the above, to the extent that the police officers were not responsible for causing harm to the police officers, and it cannot be said that the defendant's participation in the assembly and threat of public safety and order, including the above.

(2) As to the violation of the Local Public Officials Act between May 22, 2003 and May 23, 2003 in the judgment of the court below of first instance

The pro-con voting in this case is merely an expression of the intention of a public official on the fact that the government made an promise to allow public officials' labor union and made an unlawful or unfair disposition, and merely an expression of the intention of a public official on whether to conduct an industrial action merely rather than an industrial action, and thus does not constitute a collective act prohibited under Article 58(1) of the Local Public Officials Act.

(3) As to the second judgment of the court below

Each assembly listed in Articles 2 through 6 of the facts constituting the crime in the judgment of the court below in which the public officials including the defendant et al. participate is held on Sundays or a holiday. Among them, each assembly listed in paragraphs 3 through 5 of this Article is held in a peaceful manner through legitimate procedures for filing a report. As such, the act of participating in such assembly does not constitute "collective activity for any day other than official duties" as stipulated in Article 58 (1) of the Local Public Officials Act.

In addition, each act of the defendant in the judgment of the court below in the second instance is committed to the purport that the government unilaterally promises to gather consensus from the public officials in the process of allowing the labor union of public officials and objects to the pre-announcement of illegal and unfair legislative bills, so it is not "act for the purpose against the public interest", and it does not violate Article 58 (1) of the Local Public Officials Act.

B. Unreasonable sentencing

In light of all the circumstances, each sentence imposed on the defendant (two years of suspended sentence in one year and six months of imprisonment, two years of suspended sentence in one year and one year of imprisonment, and two years of suspended sentence) is too unreasonable.

2. Summary of grounds for appeal by a prosecutor;

In the judgment of the court below of the second instance, the sentence imposed by the court below on the defendant (two years of suspended sentence for one year and two years of probation) is too uneasable in light of all the circumstances where the sentencing conditions are imposed.

3. Determination

A. Ex officio determination

ex officio, the case was consolidated in the trial of the case of 2005No680 and 2005No754 against the defendant. The criminal facts of the two cases are concurrent crimes under the former part of Article 37 of the Criminal Act, and one sentence should be imposed. In this regard, the judgment of the court below cannot be maintained any more.

B. Determination on the grounds for appeal

However, since the defendant's misapprehension of the legal principles and the argument of mistake of facts is still subject to the judgment of this court, we will examine this below.

(1) Of the judgment of the court below of first instance, as to the violation of the Act on the Injury resulting from the obstruction of special performance of official duties, general traffic obstruction, and assembly and demonstration

In a case where two or more persons jointly process a crime, the conspiracy does not require any legal punishment, but is a combination of intent to realize a crime through the joint processing of a crime by two or more persons. Although it comes to an implicitly, if there is a combination of intent among several persons, the conspiracy relation is established if the two or more persons intend to commit a crime. As long as such conspiracy was made, even those who do not directly participate in the act of the crime shall be held liable as a co-principal, and as a result, the co-principal of the aggravated crime is established if they intend to jointly engage in a basic act, and as a result, there is no need to jointly act as a result, and as a result, the crime of causing obstruction of special performance of official duties is established when the perpetrator committed a crime resulting in the death of a public official by assaulting and threatening an organization or a public official carrying with a dangerous object or carrying a dangerous object, it is sufficient that the perpetrator intended the result, and if it can expect the occurrence of the result (see Supreme Court Decision 200Do3485, Apr. 12, 2002).

According to the evidence duly examined and adopted by the court below, the defendant, as the chief of the regional headquarters of the Korea National Cemetery at the time, had 200 major workers, such as the non-indicted, etc., who were public officials belonging to the Korea National Cemetery at around 11:0 on May 18, 2003, attended the "five-month Mental Major Labor Relations Resolution" held in the 5:18 Burial Station located in Gwangju Northernbuk-dong, the 11:30 on the same day, and then moved to the National Cemetery with the participants of the above Resolution to attend the said National Cemetery and enter the said National Cemetery. If the 1,000 college students belonging to the Korea National Cemetery at that time were unable to reach the position of the President, the defendant was able to enter the said National Cemetery at the time, and the police officers and other public officials belonging to the Korea National Cemetery who moved to the said National Cemetery by 100 on the 11st century, and the defendant and other public officials belonging to the Korean National Cemetery were able to remove the new structures, such as the new police police fight and remaining.

In light of the above facts and the circumstances, character, process, and the degree of the defendant's involvement in the above assembly and demonstration, etc., ① the defendant had dolusent intent to allow the occurrence of the result of the physical collision with the police who prevented it in the process of the above assembly and demonstration while fully aware that collective violence was followed, and there was a contact with the person who directly committed the act of violence in order or implied intent. For the same reason, even though the defendant was unaware of the situation that the police was carrying out the presidential security duty, it does not constitute a special obstruction of performance of official duties. ② The above assembly and demonstration constitutes an assembly and demonstration which clearly and directly threatened the public safety and order due to collective violence, and the defendant was fully aware of this point. ③ The above argument by the defendant is not justified.

(2) As to the violation of the Local Public Officials Act between May 22, 2003 and May 23, 2003 in the judgment of the court below of first instance

Article 58(1) main text of Article 58(1) of the Local Public Officials Act provides that “No public official shall engage in any collective activity for any work other than a labor campaign or public service.” The term “labor campaign” prohibited in this context means the right to organize, collective bargaining, or collective action, and the right to organize, collective bargaining, or collective action, in light of the relationship with the Constitution and the Local Public Officials Act, as well as the Constitution guarantees the three basic labor rights separately from the freedom of assembly and association, but only the three basic labor rights are constitutional restrictions on public officials, and the limited right to organize refers to the right to organize, join, and act for the employer, which is an economic association organized by subordinate workers for the purpose of maintaining and improving the working conditions, and the term “collective activity for any work other than public service” refers to any collective activity conducted by public officials for any work not belonging to public service, but the legislative purport of Article 21(1) of the Constitution and the Local Public Officials Act, the duty of good faith and duty of care under the Local Public Officials Act, etc., which affect the public interest (see, 2005.).

However, according to the evidence duly admitted and adopted by the court below, the defendant, along with the major labor union chairperson and executives, etc. from May 22, 2003 to May 23, 2003, permitted the use of the name of public official union as to the public official labor union. However, the right to organize and the right to collective bargaining are prohibited, and the right to collective bargaining is guaranteed against the government policy to enact the Special Act on the Trade Union and Labor Relations Adjustment Act with the content that the right to collective action is restricted, thereby requiring the full guarantee of three labor rights including the right to collective action through the recognition of the public official labor union under the Trade Union and Labor Relations Adjustment Act, and can be recognized that

According to the above facts, a major worker is an organization, the ultimate purpose of which is to guarantee the right to collective action, etc. of public officials who are legally prohibited, and the defendant, as the chief of the regional headquarters at the time, has carried out pro-con voting on the above industrial action in the course of achieving the major purpose of securing the right to collective action of public officials who are legally prohibited as the chief of the regional headquarters at the time. Thus, the defendant's above act is obvious that it is "labor movement or other collective action for activities other than public duties" under Article 58 (1) of the Local Public Officials Act

(3) As to the second judgment of the court below

According to the evidence duly adopted and examined by the court below, the defendant, at the time, committed each act in the second instance judgment in the process of achieving the purpose of securing the right to collective action of a public official who is legally prohibited by law. The defendant's above act is obviously "collective act that affects the duty of care for the purpose of violating the public interest, such as neglecting duty of care" and "collective act for the purpose of labor exercise or other work other than public duties" under Article 58 (1) of the Local Public Officials Act, and each of the above assemblies is held peacefully by a law organization after the due process of reporting a meeting, or is held on a holiday other than working hours. Thus, the defendant's assertion is without merit.

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act without examining the grounds for appeal of unfair sentencing by the defendant and prosecutor, and the judgment below is reversed in its entirety, and it is again decided as follows through pleading.

The summary of the facts constituting the crime recognized by this Court and the evidence thereof are as follows: (a) “Korea Red” as stated in the first instance judgment No. 3, 17, and 4, 10, i.e., “Korea Red Red,” respectively; and (b) 4, 14, i.e., “physical evidence photographs” as stated in each corresponding column of the lower judgment, except that they are deemed as “written evidence photographs” respectively.

1. Relevant Article of the Act and the choice of punishment for the crime;

Article 144(2) main sentence, Article 144(1) and Article 136(1) of the Criminal Act, and Article 30 of the Criminal Act

Article 185 and Article 30 of the Criminal Act

Article 82, Article 58(1) of the Local Public Officials Act, Articles 33 and 30 of the Criminal Act (to imprisonment with prison labor for the violation of the prohibition of collective action between May 22, 2003 and May 23, 2003)

Article 19(4) and Article 5(1)2 of the Assembly and Demonstration Act and Article 30 of the Criminal Act

Article 82, Article 58(1) of the Local Public Officials Act and Article 30 of the Criminal Act (Appointment of Imprisonment)

1. Commercial competition;

Articles 40 and 50 (Punishments as stipulated in Article 2 of the Judgment of the court below as to the crime of bodily injury resulting from the obstruction of performance of special duties) of the Criminal Act

1. Aggravation of concurrent crimes;

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

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (see, e.g., Articles 53 and 55(1)3 of the Criminal Act)

1. Calculation of days of detention;

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (Article 62(1) of the Local Public Officials Act (In light of the fact that the defendant repeatedly committed the same crime even though he/she was pending in trial due to the violation of the Local Public Officials Act, such crime is not less than mix but, in light of the fact that he/she was in office as a public official with normal

1. Probation;

Article 62-2 of the Criminal Act

Judges Park Sung-sung (Presiding Judge) Kim Jong-Un