[Defendant]
[Appellant] Defendants
[Defense Counsel] Kim Nam-jun, Attorney at Law, Sicheol Law Firm (Simin)
[Judgment Below] Seoul Southern District Court Decision 2010No1783, decided July 6, 2012
[Order]
All appeals are dismissed.
[Reasoning]
The grounds of appeal are examined.
1. As to Defendant 1's grounds of appeal
A. Where an expression of opinion collectively undertaken by public officials constitutes a specific political activity prohibited for public officials under individual statutes such as the State Public Officials Act (국가공무원법) or the Public Official Election Act (공직선거법), or where such act clearly reveals political bias or partisanship, such as by directly expressing support for or opposition to a specific political party or political force, and thereby reaches a level that poses a direct risk of undermining the political neutrality of public officials, it is reasonable to view such act as constituting "a collective act for purposes other than official duties" prohibited under Article 66(1) of the State Public Officials Act, since such act deviates from the proper role of a public official, is contrary to the public interest, undermines discipline concerning the duties of public officials or harms the essential nature of public service, and thus amounts to a neglect of the duty of devotion to one's duties. Whether a particular act reaches the level of posing a direct risk of undermining political neutrality cannot be determined uniformly; rather, it must be judged by comprehensively considering the special nature of the status of public officials, whose political neutrality is required under the Constitution, together with all relevant circumstances in the specific case, including the motive or purpose, timing and background, the political and social context at the time, the content and manner of the act, and whether there was any connection with a specific political force (see Supreme Court en banc Decision 2010Do6388, decided April 19, 2012). This legal principle applies equally to Article 58(1) of the former Local Public Officials Act (지방공무원법) (before amendment by Act No. 10147 of March 22, 2010; hereinafter the same), which prohibits "collective acts for purposes other than official duties."
Meanwhile, while the finding of criminal facts must be proven to a degree that leaves no reasonable doubt (Article 307(2) of the Criminal Procedure Act (형사소송법)), the selection and evaluation of evidence, which forms the premise of factual findings, and the probative value of evidence fall within the free evaluation of the court of fact (Article 308 of the Criminal Procedure Act).
B. The court below, upon comprehensively considering the purpose, circumstances of holding, and preparation process of the assembly at issue in this case, determined that Defendant 1's acts, including participation in the assembly at issue, constituted an expression of political opinion aimed at exercising influence over the government's policy-making process in connection with a specific political party or political force, or an act posing a significant risk of undermining the fairness of official duties and impairing public trust, and thus was contrary to the public interest and undermined discipline concerning the duties of public officials or harmed the essential nature of public service, amounting to a collective act neglecting the duty of devotion to one's duties. The court below thus found it reasonable to view this as constituting a collective act for purposes other than official duties prohibited under Article 58(1) of the former Local Public Officials Act, while rejecting the view that it constituted an act permitted by law or a justifiable act. Accordingly, the court below did not accept the above Defendant's argument on grounds of appeal alleging factual misunderstanding or misapplication of law in this regard.
C. Among the grounds of appeal, the argument disputing the court below's factual findings is, in substance, nothing more than a challenge to the court below's selection of evidence and determination of probative value, matters that fall within the free evaluation of the court of fact. Furthermore, examining the reasoning of the judgment below in light of the aforementioned legal principles and the lawfully adopted evidence, the court below's determination as described above does not, contrary to the arguments in the grounds of appeal, exceed the limits of the principle of free evaluation of evidence in violation of the rules of logic and experience, nor does it contain any error of law affecting the judgment due to misunderstanding of the legal principles concerning "legitimate activities related to a labor union" under Article 3(1), "political activities" under Article 4 of the former Act on the Establishment and Operation of Trade Unions for Public Officials (공무원의 노동조합 설립 및 운영 등에 관한 법률) (before amendment by Act No. 10133 of March 17, 2010), "collective act other than for official duties" under Article 58(1) of the former Local Public Officials Act, and the concepts of public interest purpose and the duty of devotion to one's duties.
2. As to Defendant 2 Labor Union's grounds of appeal
The court below, for the reasons stated in its judgment, determined that Defendant 2 Labor Union could not be deemed to have been dissolved by merger, and thus did not accept the above Defendant's argument on grounds of appeal alleging factual misunderstanding or misapplication of law in this regard.
The argument in the grounds of appeal disputing the court below's factual findings is, in substance, nothing more than a challenge to the court below's selection of evidence and determination of probative value, matters that fall within the free evaluation of the court of fact. Furthermore, examining the reasoning of the judgment below in light of the legal principles set out above, together with the relevant statutes and legal principles referred to in the judgment below, and the lawfully adopted evidence, the court below's determination as described above may be upheld (see Supreme Court Decision 2011Du921, decided December 27, 2016), and there is no error of law affecting the judgment due to misunderstanding of the legal principles concerning the dissolution of a corporation or exceeding the limits of the principle of free evaluation of evidence, as alleged in the grounds of appeal.
3. Conclusion
Therefore, all appeals are dismissed, and this Judgment is rendered as stated in the Order, with the unanimous consent of the participating Justices.
Presiding Justice Kim So-young; Justice Kim Yong-deok (Presiding Justice for the Report); Justice Kim Shin; Justice Lee Ki-taek