[2] Whether a strike as an industrial action constitutes "component force" under the crime of interference with business (affirmative with qualification)

[3] In a case where the Defendant, the vice-chairperson of the Korean Metal Trade Union, was indicted for interfering with the business of users by force by carrying out a general strike at a nationwide place of business affiliated with the union with the main purpose of “the opposition against the import of U.S. beef,” etc. in collusion with the core department of the union, the case holding that the judgment below convicting the Defendant of all the facts charged, including some business places which cannot be evaluated as cases where

[2] The crime of interference with business is established in a case where a person interferes with another’s business by deceptive means or by force (Article 314(1) of the Criminal Act). The term “defensive force” refers to any force that is capable of suppressing or mixing a person’s free will. As an industrial action, the strike is merely an omission of refusing to provide labor under a labor contract, and is an actual exercise of power to collectively suspend the provision of labor to accomplish the employee’s assertion by pressure exceeding the same, and thus, includes an element constituting “defensive force” under the crime of interference with business. However, as a fundamental right guaranteed by the Constitution, an employee has an independent right to organize, collective bargaining, and collective action right to improve working conditions (Article 33(1) of the Constitution of the Republic of Korea), it does not always constitute the crime of interference with business. In light of the circumstances and circumstances before and after the strike, it is reasonable to deem the crime of interference with business to be established only where an employer’s free will to continue business can be evaluated as causing serious confusion or serious damage to the employer’s business operation.

[3] In a case where the Defendant, a vice-chairperson of the Korean Metal Trade Union, was prosecuted for interference with the business of the employer by force in collusion with the core departments of the union and its members with the "request for the import opposition or renegotiation of U.S. beef," etc., at a nationwide place of business under the control of the union, the case holding that the court below erred in the misapprehension of legal principles as to the crime of interference with business, which found the Defendant guilty of all of the facts charged, on the ground that, in light of the fact that only nine workers among 182 employees participate in the partial strike, etc. and the place of business cannot be deemed to have caused serious confusion or enormous damage to the business operation of the user as the place of business is indicated as the damaged place of business

1. As to interference with the business of two vehicles

The co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, namely, the implementation of a crime through functional control based on the intent of co-processing and the intent of co-processing. Even if a person who did not directly share and implement part of the elements of a crime among the conspiracys, if it is acknowledged that a functional control through an essential contribution to a crime exists rather than a simple conspiracy, but rather a functional control through an essential contribution to a crime is held with respect to the crime committed by another conspiracy (see, e.g., Supreme Court Decisions 2006Do1623, Dec. 22, 2006; 2007Do235, Apr. 26, 2007).

The court below affirmed the judgment of the court of first instance which convicted the defendant of this part of the charges on the ground that the defendant is the vice-chairperson of metal labor unions (hereinafter referred to as "metallic labor union") in light of the following circumstances: (a) the strike process and the process of the strike by the branch of two motor vehicles trade unions (hereinafter referred to as "salon union") (hereinafter referred to as "salon union"); (b) the relationship between metal labor unions and two motor vehicles labor unions and the strike support circumstances; and (c) the defendant was present at the decision-making process at the Central Executive Committee and the Standing Execution Committee which determines the metal labor union activities as the vice-chairperson of metal labor union; and (d) the defendant was living in a two-party shop factory in which the entire plant is located and carried out the role of identifying the situation, such as taking a site, and encouraging occupied workers; and (e) the defendant played a functional control by contributing to the crime.

Examining the evidence legitimately admitted by the court below in light of the reasoning of the judgment below and the legal principles as seen earlier, the above judgment of the court below is just.

The court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles as to the requirements for establishing a joint principal offender.

2. As to interference with each business due to the strike in July 2008

The crime of interference with business is established in cases where a person interferes with another’s business by deceptive means or by force (Article 314(1) of the Criminal Act). The term “power” refers to any force that is capable of suppressing and mixing a person’s free will.

The strike as an industrial action that obstructs the normal operation of business by refusing to provide labor for the purpose of accomplishing the claim is a practical exercise that prevents the employee from providing labor under a labor contract, and thus collectively suspends the employee's assertion by imposing pressure on the employer. Thus, the elements constituting force as referred to in the crime of interference with business include the elements of force as referred to in the crime of interference with business.

However, under Article 37(2) of the Constitution, workers may be limited on the grounds of public interest, such as national security, maintenance of order, or public welfare, and the exercise of their rights should be justified, and there is no absolute right, but in principle, they have the right to independent association, collective bargaining, and collective action to improve working conditions as fundamental rights guaranteed by the Constitution (Article 33(1) of the Constitution).

Therefore, the strike as an industrial action does not always constitute the crime of interference with business, and it is reasonable to deem that the collective refusal of labor constitutes the crime of interference with business as an abuse of force only when it can be evaluated that the free will of the employer to continue the business may be disturbed and confused because the strike as an industrial action is conducted at a time unforeseeable by the employer in light of the situation and circumstances before, after, after, and after, the time when the employer was unable to predict and cause a serious confusion or enormous damage to the business operation of the employer (see Supreme Court en banc Decision 2007Do482, Mar. 17,

However, as to whether the strike on July 2, 2008 and the strike after July 8, 2008 caused a serious confusion or enormous damage to the business operation of an individual user by taking part in the strike at a time unforeseeable by the individual user who is the victim, the health department, and this part of the facts charged, such as the participation of nine workers in the partial strike, are indicated as the damage to the business operation of the employer in light of the size of the strike, such as the participation of nine workers in the partial strike. In light of the fact that the place of business cannot be deemed to have caused a serious confusion or enormous damage to the business operation of the employer, there is room to view that some of the places of business indicated in the facts charged in this part does not constitute a case where the free will to continue the business can be deemed to be a crime of pressure or confusion.

Nevertheless, the court below did not properly deliberate and decide on the above circumstances, and found the defendant's act constituted the crime of interference with business, thereby convicting the whole of the facts charged. The court below erred by misapprehending the legal principles on the crime of interference with business, which affected the conclusion

3. Conclusion

Therefore, among the judgment below, the part concerning the obstruction of business against the defendant due to the strike in July 2008 is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the remaining appeal by the defendant is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)