[Defendant] Defendant
[Appellant] Prosecutor
[Lower Court Decision] Chuncheon District Court Decision 90No430, rendered on August 30, 1990
[Order]
The appeal is dismissed.
[Reasoning]
We examine the grounds of appeal raised by the prosecutor.
1. As to Ground of Appeal No. 1
The court below rendered its judgment premised on the correctness of the first instance judgment, which had distinguished each of the acts of the Defendant that had been acquitted from each of the acts that had been found guilty, treating them as separate acts and thus as concurrent crimes in substantive competition. Upon examination of the record, it appears that the acts for which acquittal was rendered were not, as argued by the defense, a series of preparatory acts for the acts for which conviction was rendered such that they should have been prosecuted as each constituting a single comprehensive crime; rather, they appear to have been prosecuted as mutually independent and separate charges. Accordingly, the argument that the judgment below erred in its legal understanding regarding the number of crimes is without merit.
2. As to Ground of Appeal No. 2
Our Constitution (헌법), while guaranteeing to all citizens the right to dignity and worth as human beings and the right to pursue happiness (Article 10), guarantees, as a specific means of ensuring that workers, who are economically disadvantaged, may secure a life worthy of human beings, the right of workers to organize, to bargain collectively, and to act collectively (the "three labor rights") (Article 33, Paragraph 1), while also providing a restriction (Article 33, Paragraph 2) limiting the enjoyment of these three labor rights, in the case of public officials who are workers, to only those public officials designated by statute.
Meanwhile, Article 66, Paragraph 1 of the State Public Officials Act (국가공무원법), based on the above constitutional restriction concerning the three labor rights of public officials, provides that "public officials shall not engage in labor movements or other collective acts for purposes other than official duties..." and Article 84 of the same Act provides that public officials who violate the above provision shall be punished by imprisonment or a fine.
As to the concept of "labor movement" under the above State Public Officials Act, it should generally be considered that where a given positive statutory provision restricts a fundamental right guaranteed under the Constitution, the meaning of that restriction must be examined in light of the fundamental spirit underlying the guarantee of that right; and in particular, where the provision in question is a penal provision, it is required that its meaning be made clear so that the boundaries of punishable conduct are made explicit (the principle of nulla poena sine lege). Generally speaking, the concept of "labor movement" is a comprehensive and ambiguous term used in ordinary social parlance, and there is a risk that the boundaries of the conduct prohibited thereby may become unclear. In light of the relationship between the Constitution and the State Public Officials Act, and in light of the fact that our Constitution guarantees the three labor rights separately from the freedoms of assembly and association while placing a constitutional restriction on public officials only with respect to the three labor rights, the term "labor movement" under the State Public Officials Act must be interpreted to mean the three labor rights as a constitutional and labor-law concept, namely, the right to organize, the right to bargain collectively, and the right to act collectively; and the right to organize that is restricted refers to the right of subordinate workers to form, join, and engage in activities within a labor union, which is an economic association organized vis-à-vis the employer for the purpose of maintaining and improving working conditions and the like.
Upon examination of the record, the ○○ Teachers' Council and its subordinate organization, the △△ Teachers' Council, referred to in the judgment below, appear to be voluntary associations of teachers formed for the purpose of pointing out internal problems and contradictions within education—such as opposition to the expansion of supplementary classes, issues concerning Teachers' Day, and calls for teachers to withdraw from the Korean Federation of Education Associations—and asserting improvements thereto; and there is no material whatsoever in the record to support the proposition that these organizations had the character of an act of forming a labor union for the purpose of improving working conditions, or of activities thereof.
Even assuming that the ○○ Teachers' Council engaged in activities such as publicizing to teachers the need for the establishment of the Korea Teachers and Education Workers' Union (전교조) as set forth in the judgment, such activities alone cannot be deemed, by virtue of the expressive act itself, to constitute the act of establishing a labor union or the ordinary activities of a labor union.
Accordingly, the Defendant's above acts related to the ○○ Teachers' Council do not fall within the scope of the prohibited "labor movement."
Furthermore, Article 66 of the State Public Officials Act restricts not only "labor movements" but also "collective acts for purposes other than official duties," and this provision, owing to the comprehensiveness and breadth of that concept, raises questions in relation to Article 21, Paragraph 1 of the Constitution, which guarantees freedom of speech, press, assembly, and association even to public officials.
Freedom of expression, including freedom of assembly and association, is a fundamental right necessary for human beings to preserve their dignity, and this holds equally true for public officials. While in the case of public officials, given the nature of their status and duties, a greater necessity for restriction may be anticipated as compared with ordinary citizens, even in such a case the restriction must not be uniform and blanket merely by reason of the public nature or necessity thereof; and even where grounds for restriction exist, the limits of such restriction must be set by weighing and balancing the freedom of expression being restricted against the public interest sought to be protected by such restriction (the principle of comparative balancing), and even where restriction is determined to be unavoidable, it must be confined to the minimum degree necessary (the principle of minimal restriction), and the essential content of that right must not be infringed.
If so, since "collective acts for purposes other than official duties" under the State Public Officials Act cannot be deemed to mean every collective act performed by public officials for any purpose other than official duties, in order to interpret the above statutory provision in a manner restrictively construed so as to conform with the Constitution, it must be construed narrowly—taking into comprehensive account the above constitutional provisions, constitutional principles, the purpose of the State Public Officials Act, and the duty of good faith and the duty of devotion to duty under the State Public Officials Act—as meaning "a collective act undertaken for a purpose contrary to the public interest, which has the effect of, among other things, neglecting the duty of devotion to duty."
Upon examination of the record, each of the Defendant's acts—namely, holding the ○○ Teachers' Council's delegates' assembly and standing committee meetings, delivering a speech at a lecture, and drafting and distributing the newsletter of the △△ Teachers' Council—were all carried out on holidays or outside of working hours, and there is no material from which it can otherwise be found that the Defendant acted for a purpose contrary to the public interest, or that the Defendant neglected the duty of devotion to duty as a result of such collective acts. Accordingly, it is difficult to conclude that the Defendant engaged in "collective acts for purposes other than official duties." The judgment below, having ruled to the same effect, is proper, and it cannot be said that there was any error in the judgment below of misunderstanding the legal principles of the State Public Officials Act as argued by the defense; accordingly, this argument is without merit.
2. Accordingly, the opinions of the participating Justices being unanimous in dismissing the appeal, it is so ordered as set forth in the Order.
Justice Park Man-ho (Presiding Justice), Justice Park Woo-dong, Justice Kim Sang-won, Justice Yoon Young-chul