[2] The case where an industrial action constitutes the crime of interference with business as a strike constitutes a strike

1. Whether to implement corporate restructuring, such as layoff or corporate merger, belongs to a high level managerial decision of a management body, and thus, cannot be a subject of collective bargaining in principle, and if a trade union becomes an industrial action to substantially oppose the implementation of the industrial action without an urgent managerial necessity or reasonable reason, barring special circumstances, such industrial action cannot be justified, even if the implementation of the industrial action inevitably entails changes in the status of workers or working conditions. In addition, if the industrial action is undertaken for several purposes and some of them are not legitimate, the legitimacy of the purpose of the industrial action shall be determined on the basis of the main or genuine purpose. If it is deemed that the industrial action would not have been conducted until the expiration of the unfair requirements, the entire industrial action shall not be justified (see Supreme Court Decision 2010Do1030, Jan. 27, 2011, etc.).

Meanwhile, a strike as an industrial action includes an element that can be seen as a threat of force in the crime of interference with business by exercising the power to force the workers to collectively suspend the provision of labor in order to accomplish the claim by pressure on the workers. However, as fundamental rights guaranteed by the Constitution, workers have the right to independent right to organize, collective bargaining, and collective action to improve working conditions, such strike does not always meet the elements for the crime of interference with business. It is reasonable to deem that the employer’s free will with respect to the continuation of business can be disturbed and confused only when it can be evaluated that the refusal of collective labor provision constitutes a threat and confusion under the employer’s freedom of business due to the circumstances such as the possibility of causing serious confusion or enormous damage to the employer’s business operation, etc. (see Supreme Court en banc Decision 2007Do482, Mar. 17, 2011).

2. The summary of the facts charged in this case is that the Defendants, the head of the branch, the head of the site, and the head of the office or bureau of the headquarters of the National Public Service Trade Union of the Democratic Labor Group (hereinafter “instant branch”) did not attend the workplace on November 6, 2009, and the members of the instant branch did not attend the workplace on November 6, 2009, thereby interfering with the work of ○○○○○○○○○ Construction by participating in the “joint strike for the advancement of the public sector and strengthening of the public character of society” in the presence of the Government and the government office building in front of the government office building (hereinafter “instant strike”).

3. As to this, the lower court determined to the effect that the instant strike, the main purpose of which is to oppose the development policy of the gas industry, which is not a subject of collective bargaining, cannot be deemed a justifiable industrial action, and thus constitutes the crime of interference with business, on the ground that the instant strike cannot be deemed a legitimate industrial action.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted by the lower court, it is justifiable for the lower court to have denied its legitimacy by deeming the instant strike as an objection to the policy for the advancement of the gas industry, which cannot be the main purpose of collective bargaining. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of logic

4. However, the court below's decision that the strike of this case immediately constitutes the crime of interference with business is difficult to accept for the following reasons merely because the strike of this case is not justified as an industrial action.

According to the evidence duly adopted by the court below, the branch of this case held 92% of all union members voting for the strike of this case from September 22, 2009 to September 24, 2009, and 85.2% of all union members voting for the strike of this case. Defendant 1, the head of the branch of this case, delivered guidelines for the participation in the strike of this case on October 23, 2009 to union members of this case. The branch of this case and ○○○○○○○○ Corporation continued to cooperate with the chairman of the National Association of this case on November 23, 2009 on the ground that ○○○○○○○ Corporation's participation in the strike of this case was planned to participate in the strike of this case without the consent of the union members on November 6, 2009, and that ○○○○○ Corporation's participation in the strike of this case was planned to participate in the strike of this case on November 6, 2009.

Examining the above facts in light of the legal principles as seen earlier, it is difficult to conclude that the instant strike caused a serious confusion or enormous damage to the operation of the ○○○○○ Corporation, and as a result, there is sufficient room to deem that the instant strike does not constitute a case where the free will on the continuation of the ○○○ Corporation’s business may be deemed to be a suppression or confusion.

Nevertheless, without examining all the above circumstances, the lower court concluded that the crime of interference with business of this case was established solely on the ground that the main purpose of the strike of this case is not legitimate. In so doing, the lower court erred by misapprehending the legal doctrine on the force of interference with business, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

5. 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 Kwon Soon-il (Presiding Justice)