[2] In a case where members of a trade union occupied part of the office of the Seoul Metropolitan Council of Certified Architects, which is an employer, due to an industrial action, the case holding that the crime of interference with business cannot be held liable on the ground that it constitutes a legitimate industrial action

[3] Whether the legitimacy of an industrial action can be denied solely on the ground that the obligation to report in writing under Article 17 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act is not complied with (negative)

[4] Requirements for an employer’s lock-out to be recognized as a legitimate industrial action, and whether an employee who occupied a workplace due to a lawful industrial action constitutes a crime of refusing to comply with the withdrawal request by setting up against an unfair lock-out (negative)

[5] The case holding that since the trade union's failure to conduct a strike and the employer's right to conduct a lock-out is not acknowledged as a legitimate industrial action, it does not constitute a crime of non-compliance with the employer's withdrawal even if the union members who legitimately occupied the employer's facilities refuse the employer's withdrawal request

[2] In a case where a trade union member occupied part of the office of the Seoul Special Metropolitan City Certified Architect Association, which is an employer due to an industrial action, the case holding that the act of occupation cannot be held liable for the crime of interference with business as a legitimate act under the labor relations law, on the ground that it is difficult to deem that it is in harmony with the employer's property right, and it is difficult to view that the act of occupation is a partial and sick occupation of the workplace facilities that do not fall under the use of violence, and that it is difficult to view that the employer's business was actually impeded or has a risk of interference with business.

[3] The duty to report in writing on the date, time, place, intervenor, and method of an industrial action under Article 17 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act is stipulated in the detailed and formal procedure in conducting the industrial action, and the industrial action does not constitute an essential element necessary for granting legality to the industrial action. Thus, the legitimacy of the industrial action cannot be denied solely on the ground that it does not comply with the procedure for reporting.

[4] A lock-out by an employer can be assessed as a legitimate industrial action only where it is recognized reasonable as a means of defense against and defense against an industrial action by an employer in light of the equitable circumstances, such as the negotiating attitude and progress between the labor and management, the appearance of the industrial action on the part of the worker, and the degree of shock that the employer receives. In a case where a lock-out by an employer is not recognized as a legitimate industrial action, even if the worker who occupies the workplace receives a lock-out request from the employer who has closed the lock-out, and continues his/her occupation without complying with such request, the crime of non-compliance is not established.

[5] The case holding that a trade union's passive attitude in negotiating between the labor and management, the strike of a trade union's effect on the balance of bargaining power between the labor and management, and the employer's right to lock-out is not acknowledged as legitimate industrial action, since it is not acknowledged that the trade union started the strike and the employer took a lock-out immediately for 4 hours, and even if the union members who legitimately occupied the employer's facilities were requested to leave from the employer, it does not constitute a crime of non-compliance

1. As to interference with business

A. Industrial action includes not only passive refusal or suspension of labor by a worker, but also acts that interfere with normal operation of the business in order to accomplish the claim actively. Thus, it is inevitable in light of the nature of industrial action, where the normal operation of the employer is obstructed in light of the nature of industrial action, and the employer has a duty to recognize it. However, when such industrial action exceeds the bounds of legitimacy, the worker cannot be exempted from criminal liability, such as the crime of interference with business (see Supreme Court Decision 95Do2970, Feb. 27, 1996, etc.).

In order to become a justifiable act under the Criminal Act, an industrial action by a worker must be the subject of collective bargaining, and the purpose should be to create autonomous negotiations between labor and management to improve working conditions. Third, an employer should commence when he/she refuses to conduct collective bargaining with respect to a specific demand for the improvement of working conditions of the worker, but shall undergo procedures such as the consent decision of the union members and the report of the occurrence of labor disputes, and fourth, the means and method should be in harmony with the property rights of the employer, as well as the exercise of violence (see, e.g., Supreme Court Decisions 97Do588, Jan. 20, 199; 2002Do5577, May 25, 2006).

In addition, the occupancy of workplace or workplace facilities is a form of an active industrial action, and the scope of occupation is part of workplace or workplace facilities, and it is a co-existence that does not exclude the employer's access to or control of the workplace or workplace facilities, it can be viewed as a legitimate industrial action. However, the same act that causes suspension or confusion by blocking access by any person other than union members or preventing the employer from controlling the employer's access to the workplace or workplace facilities in an exclusive and exclusive manner is deemed to exceed the bounds of legitimacy (see Supreme Court Decision 91Do383, Jun. 11, 1991, etc.).

B. Based on the evidence duly admitted, the court below acknowledged the defendants' act of occupying the meeting room in this case constitutes an industrial action, and therefore, the chairperson and executive officers of the Korea Certified Architects Association, Seoul Metropolitan City Building Association (hereinafter "Association"), which held the meeting of executive officers in the above meeting room, did not proceed with the meeting of the Association in the above meeting room and did not proceed with the meeting of the Association's executive officers in the restaurant, etc., it is reasonable to deem that the defendants' above act of occupying the meeting room in this case caused the danger of actually impeding the Association's business or causing interference with its business at least, and on the other hand, the defendants' act of occupying the meeting room in this case was completely and exclusively occupied by excluding the user's access to or control over the above meeting room, and considering that the defendants' prior reporting the time, place, intervenor and method of the industrial action in advance to the administrative office and the competent Labor Relations Commission prior to the industrial action, the defendants' above industrial action was justified, and recognized the defendants' liability for the crime of interference with business.

However, we cannot accept the above determination by the court below for the following reasons.

Even based on the facts established by the court below, the following circumstances are revealed. The Defendants were in the position of representative of the labor union that can conclude a collective agreement, and the purpose of the above industrial action was also the conclusion of the wage agreement and collective agreement. The Defendants filed an application for mediation of labor dispute with the Seoul Regional Labor Relations Commission prior to the above industrial action (Seoul Regional Labor Relations Commission attempted mediation but the mediation was eventually not completed), and the conference room of this case was divided into about 15 square meters inside the entire association office. The conference room of this case occupied by the Defendants is about 40 square meters, not a space where the union employees or executive officers perform ordinary duties, but the president of the Association (the Association president is non-standing according to the records, and the officers and executive officers and executive officers and employees of the Association are in custody, and the meeting room of this case did not attend the meeting room of this case and the meeting room of this case did not interfere with the above officers and executive officers and executive officers and employees of the Association, and the meeting room of this case was closed.

In light of the above legal principles and the above circumstances, it is difficult to view the Defendants’ act of occupying the meeting room in this case as a whole and exclusively occupied the business facilities of the Association. Rather, it is nothing more than a partial or concurrently occupied part of the business facilities of the Association, which does not exclude the user’s access or control, and it is reasonable to view that the means and method are not an exercise of violence in harmony with the employer’s property rights. In addition, it is inevitable that there is a case where the normal business of the employer is partly hindered in light of the nature of the industrial action, it is inevitable that the situation where the meeting room in this case is held 1 and 2 times a month as above due to the act of occupying the meeting room in this case, which is not the meeting room in this case, is within the scope that the employer should sign it. It is reasonable to view that the situation where the meeting room in this case was held in a restaurant, etc. which is not the meeting room in this case, and it does not practically cause any interruption or confusion of business of the Association, and therefore, it does not seem legitimate to have actually interfere with the business or interfere with its business.

Therefore, the defendants' act of occupying the meeting room of this case is deemed to be dismissed as a legitimate industrial action under the labor-related Acts and subordinate statutes, and there is no other business obstruction during the industrial action process. Thus, the defendants cannot be held liable for the crime of interference with business. The judgment below is erroneous in the misapprehension of legal principles as to the legitimacy of the industrial action and the crime of interference with business, which affected the conclusion of the judgment. The defendants' grounds of appeal pointing this out are with merit.

2. As to refusal to leave

A. A lock-out by the employer can be evaluated as a legitimate industrial action in light of the equity in light of the specific circumstances as to the bargaining attitude and progress between the labor and management, the mode of the worker’s act of dispute, the degree of shock that the employer receives. In a case where a lock-out by the employer is not recognized as a legitimate industrial action, the employer’s act of dispute may not be deemed as a legitimate industrial action even if the worker who occupies the workplace receives a lock-out request from the employer who has closed the lock-out and continues to move at the workplace without complying with this request (see, e.g., Supreme Court Decisions 2002Do243, Sept. 24, 2002; 2006Do9307, Mar. 29, 2007).

B. The court below acknowledged the facts as stated in its reasoning based on the evidence duly adopted, and determined that the defendants committed the crime of non-compliance with the withdrawal of this case by exclusively occupying the business space of the president and officers of the Association and refusing to comply with the request of the Association. Even if the lock-out by the Family Association was illegal, such circumstance does not affect the defendants' establishment of the crime of non-compliance with the withdrawal of the Association.

However, we cannot accept the above determination by the court below for the following reasons.

In light of the legal principles as seen earlier and the following circumstances acknowledged by the court below, namely, the Association was passive in negotiating between labor and management, the balance between labor and management, or the possibility that a trade union member, which is an employee of the Association, might cause considerable harm to the Association's performance of its duties, and other circumstances, the above lock-out cannot be acknowledged as legitimate industrial action since the fact that the labor union branch of this case was involved in the strike and the Association took measures for lock-out immediately for 4 hours and 4 hours cannot be recognized as appropriate as a means of counter-defense and defense against the workers' industrial action, and therefore, if the Association requested the Defendants to leave on the ground of lock-out, the above lock-out does not constitute a crime of refusing to withdraw even if the Defendants were to comply with such demand by the Association.

On the other hand, the court below determined that the defendants' act of occupying the meeting room of this case does not affect the conclusion of the crime of non-compliance with the removal of this case even if the lock-out measures by the family association were unlawful, but it seems that the defendants' act of occupying the meeting room of this case is presumed to have exceeded the legitimacy of industrial action by excluding the access or management control on the part of the association and excluding all and exclusively taking part of the business space of the association (in this case, there is room for the defendants to be responsible for residential intrusion or non-compliance with the removal regardless of the Association's lock-out). As seen above, the defendants' act of occupying the meeting room of this case is only a part of the association's business space which does not exclude the access or management control on the part of the association's business space, and since it constitutes legitimate industrial action in accordance with labor-related Acts and subordinate statutes, the above judgment of the court below on a different premise is not acceptable.

Thus, the defendants who were occupying the meeting room partially and concurrently as legitimate industrial action do not have the duty to comply with the request for withdrawal from the Association (whether it is based on a lock-out). Thus, the judgment of the court below is erroneous in the misapprehension of legal principles as to the legitimacy of industrial action and the crime of non-compliance with withdrawal, which affected the conclusion of the judgment. The defendants' ground of appeal pointing this out has merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)