[Defendant] Defendant 1 and 1 other
[Appellant] Defendants
[Defense Counsel] Attorney Kwon Young-guk and 3 others
[Lower Court Judgment] Seoul District Court Decision 2002No8046, 2003No1767, dated May 13, 2003
[Order]
The guilty portion of the lower court judgment as to Defendant 2 is reversed, and this part of the case is remanded to the Seoul Central District Court Panel Division. The appeal by Defendant 1 is dismissed.
[Reasoning] The grounds of appeal are examined.
1. As to Ground of Appeal No. 1
"Labor movement," as prohibited under Article 66 of the State Public Officials Act (국가공무원법), must be interpreted, in light of the relationship between the Constitution and the State Public Officials Act and the fact that our Constitution guarantees the three labor rights separately from the freedoms of assembly and association while placing constitutional restrictions specifically on the three labor rights of public officials, as meaning the three labor rights in the constitutional and labor-law sense, namely, the right to organize, the right to collective bargaining, and the right to collective action. The right to organize that is restricted refers to the right of subordinate workers to form, join, and engage in activities of a labor union, which is an economic association organized vis-à-vis the employer for the purpose of maintaining and improving working conditions, among other things. Furthermore, "collective act for purposes other than official duties" under the same Act does not mean every collective act performed by public officials for any matter other than official duties; rather, considering comprehensively Article 21(1) of the Constitution, which guarantees the freedoms of speech, press, assembly, and association, constitutional principles, the purpose of the State Public Officials Act, and the duty of good faith and duty of devotion to duty under the State Public Officials Act, it must be interpreted restrictively as meaning "a collective act that has the effect of, among other things, neglecting the duty of devotion to duty for a purpose contrary to the public interest" (see Supreme Court Decision 90Do2310, delivered February 14, 1992).
Comprehensively considering the evidence adopted by the lower court, the following facts may be recognized: the National Federation of Public Officials' Workplace Associations (hereinafter "Jeongongryeon") is an organization established in violation of Article 2(2) of the Enforcement Decree of the Act on the Establishment and Operation of Public Officials' Workplace Associations (공무원직장협의회설립·운영에관한법률시행령), which maintains a union-promotion planning group under it and aims to build a single nationwide organization composed of public officials and to convert itself into a public officials' union, and is thus an organization for the formation of a labor union; while Defendant 1 was serving as chairperson of the Workplace Association of the Fair Trade Commission, upon the formation of Jeongongryeon on March 23, 2001, he joined Jeongongryeon and, acting in accordance with the decisions to participate and the publicity efforts of the Jeongongryeon leadership, in the capacity of a Jeongongryeon member or Senior Vice Chairman, participated together with numerous Jeongongryeon members in each of the following events hosted by the "Joint Countermeasures Committee for Public Sector Reform and the Attainment of Basic Labor Rights for Public Officials" (hereinafter "the Countermeasures Committee"): the rally for the attainment of basic labor rights held at Yongji Park in Changwon on June 9, 2001, the rally denouncing the suppression of Jeongongryeon held at Busan Station Square on July 28, 2001, and the National Public Officials' Family Gathering held at Boramae Park on November 4, 2001; that one of the core constituent organizations of the Countermeasures Committee is Jeongongryeon, which aims at the formation of a labor union, that a majority of the participants at each of the above rallies were public officials belonging to Jeongongryeon, and that the preparation of the venues for each of the above rallies was carried out by the local workplace associations under Jeongongryeon; and that at each of the above rallies, a resolution opposing the restructuring of public officials was read out, and there were speeches urging the public officials in attendance to unite as well as announcements of the progress in preparing for the establishment of the National Public Officials' Union (hereinafter "Jeongongno"). In light of the legal principles set forth above, each of the above rallies had the character of preparatory acts for the formation of a public officials' labor union, such as strengthening the solidarity of Jeongongryeon members and publicizing the process of preparing the union, and Defendant 1's participation therein constitutes joining in these preparatory acts of Jeongongryeon for the formation of a labor union. Therefore, Defendant 1's participation in each of the above rallies constitutes a labor movement prohibited under Article 66 of the State Public Officials Act, and this conclusion is not altered by the fact that the host of each of the above rallies was the Countermeasures Committee or that each of the above rallies took place outside of working hours.
Accordingly, the lower court's determination finding Defendant 1 guilty of the charged facts constituting a violation of the State Public Officials Act due to his participation in each of the above rallies is justified, in the same vein, and there is no illegality therein such as incomplete deliberation or violation of the rules of evidence as argued in the grounds of appeal.
2. As to Ground of Appeal No. 2
Where a university does not permit assemblies on campus and prohibits outside persons related to an assembly from entering, and a person nevertheless enters the university for the purpose of the assembly, then even if that person was not specifically stopped at the time of entry, the entry into the building constitutes entry against the will of the university's manager, and thus the crime of trespass on a building is established (see Supreme Court Decision 2004Do3212, delivered August 30, 2004).
Examining the evidence adopted by the lower court in light of the record and the above legal principles, the lower court's determination finding the defendants guilty of the charged facts constituting the crime of trespass on a building due to their entry into ○○ University is justified, and there is no illegality therein such as incomplete deliberation or violation of the rules of evidence as argued in the grounds of appeal.
3. As to Ground of Appeal No. 3
The crime of dereliction of duty is established when, despite the existence of a concrete duty to perform an act to carry out one's official duties, a person fails to perform such duty with the awareness that he is abandoning that duty. Moreover, "when the duty is dereliction" does not refer to every instance in which a public official neglects the abstract duty of diligent service under statutes, internal regulations, and the like, but rather refers to cases such as unauthorized absence from the workplace or conscious abandonment of duty, which are likely to impede the functions of the State and cause harm to the public (see Supreme Court Decision 95Do748, delivered April 22, 1997).
Examining the evidence adopted by the lower court in light of the record and the above legal principles, the act of Defendant 1, who, despite being a public official belonging to the Investigation Bureau of the Fair Trade Commission, was absent without authorization from the Fair Trade Commission from March 23, 2002 to April 29, 2002, on the pretext of attending Jeongongno rallies and the like, constitutes a case where a public official derelicted his duty without justifiable reason. Accordingly, the lower court's determination finding Defendant 1 guilty of the charged facts constituting the crime of dereliction of duty is justified, in the same vein, and there is no illegality therein such as a misapprehension of the legal principles concerning the crime of dereliction of duty as argued in the grounds of appeal.
4. As to Ground of Appeal No. 4
Examining the evidence adopted by the lower court in light of the record, it can be recognized that Defendant 1 participated in a Jeongongno rally held at △△ Cathedral on October 17, 2002. Accordingly, the lower court's determination finding Defendant 1 guilty of the charged facts constituting a violation of the Local Public Officials Act (지방공무원법) due to his participation in the above rally is justified, in the same vein, and there is no illegality therein such as incomplete deliberation or violation of the rules of evidence as argued in the grounds of appeal.
5. Ex Officio Determination
Examining the matter ex officio, according to the reasoning of the lower court judgment, the lower court, with respect to the portion of the charged facts stating that "Defendant 2, from around 10:10 to around 10:50 on May 11, 2002, participated in a Jeongongno-hosted rally held in front of the rear gate of the Central Government Complex next to the Panama Embassy, located at 77 Sejong-ro, Jongno-gu, Seoul, by shouting slogans, thereby participating in an outdoor assembly and demonstration held at a place where outdoor assemblies and demonstrations are prohibited," applied Article 20, Item 3 and Article 11, Item 1 of the former Assembly and Demonstration Act (집회및시위에관한법률, prior to its amendment by Act No. 7123 on January 29, 2004) and sentenced Defendant 2 to a guilty verdict.
However, Article 11, Item 1 of the former Assembly and Demonstration Act, which the lower court applied to this portion of the charged facts, was held unconstitutional by the Constitutional Court (Case Nos. 2000Heonba67, 83) on October 30, 2003, after the lower court judgment was rendered, and thereby retroactively lost its effect. Where a penal statute or provision retroactively loses its effect due to a decision of unconstitutionality, the case prosecuted by applying that provision falls under a case where the act does not constitute a crime (see Supreme Court Decision 91Do2825, delivered May 8, 1992). Accordingly, the above guilty portion of the lower court judgment as to Defendant 2 cannot be sustained as it stands.
Therefore, the above guilty portion of the lower court judgment as to Defendant 2 must be reversed. Since the lower court treated this portion together with the remaining offenses of Defendant 2 as concurrent crimes under the first clause of Article 37 of the Criminal Act (형법) and imposed a single sentence on Defendant 2, the entirety of the guilty portion of the lower court judgment as to Defendant 2 must ultimately be reversed.
4. Conclusion
Therefore, the guilty portion of the lower court judgment as to Defendant 2 is reversed, and this part of the case is remanded to the court below for further examination and determination, while the appeal by Defendant 1 is dismissed. This judgment is rendered as set forth in the Order by the unanimous opinion of the Justices participating in the decision.
Supreme Court Justice Yang Sung-tae (Presiding Justice), Lee Yong-woo, Lee Gyu-hong (Justice in Charge), Park Jae-yoon