[2] The case affirming the judgment of the court below holding that a strike mainly aimed at accomplishing the position of the trade union that the dismissed dismissal itself, which is conducted due to urgent managerial needs of the company, is not justified

[3] Where there are some provisions under a collective agreement that the employer shall enter into force an agreement with a trade union on matters that fall under the nature of management rights and cannot be subject to collective bargaining, the standard for interpreting the meaning of such agreement

[4] The case affirming the judgment below which found the Defendants guilty of obstruction of business by the chief of a trade union branch, etc. on the ground that the purpose of industrial action cannot be justified even if the collective agreement provisions that provide that a dismissal may be conducted by an agreement with the trade union

[5] The standard for determining whether there was an implied conspiracy and functional control over a crime derived incidentally from the crime, other than the crime committed by the conspiracy to the conspiracy of co-principals

[6] The case affirming the judgment below convicting the defendants, including the president of trade union branch offices, of violation of the Punishment of Violences, etc. Act, on the ground that even though they did not specifically gather, directly share, or implement part of the offenses such as assault, arrest, and bodily injury committed by the union members during the course of the automobile factory occupation business, they constitute not only implied conspiracy for each offense, but also a person who has been engaged in functional control through essential contribution to the crime

[7] The meaning of "a shot gun" among the requirements for "a shot gun" under Article 11 (1) of the Control of Firearms, Swords, Explosives, etc. Act, and the requirements for "a shot gun similar to that of a shot gun" under Article 13 and attached Table 5-2 of the Enforcement Decree of the same Act

[8] The case affirming the judgment below which acquitted the defendant, who was the president of a trade union branch, of the charge of violation of the same Act, on the ground that there is no evidence to acknowledge that the launch vehicle, which was manufactured and used by the defendant in the vehicle factory occupancy business, constitutes the "mark guns" under Article 13 and attached Table 5-2 of the Enforcement Decree of the Control of Firearms, Swords, Explosives, etc. Act

[2] The case affirming the judgment of the court below that an industrial action, the main purpose of which is industrial action, is to achieve the position of the labor union that it cannot be entirely dismissed due to the urgent managerial necessity of the company, and such a trade union's demand is about the matters that are not subject to collective bargaining, since the employer's right to layoff itself is completely denied and infringe on the essential contents of management right, and thus it cannot be subject to collective bargaining

[3] Where a collective agreement provides that an employer shall enter into an agreement with a trade union on matters that fall under the nature of management right and cannot be subject to collective bargaining, the meaning of “agreement” under the provision should be interpreted by comprehensively examining the following: (a) the only provision is not to recognize a partial waiver or significant restriction of management rights; and (b) the circumstance and situation at the time of entering into such collective agreement; (c) relationship with other provisions of the collective agreement; and (d) whether a trade union bears the responsibility for its management on the basis of the principle that the labor union shall assume the responsibility for its management.

[4] The case affirming the judgment below which found the defendants guilty of obstruction of business by the head of a trade union and the head of a trade union, on the ground that the collective agreement provisions of the collective agreement to the effect that "the company may be dismissed by an agreement with the trade union," in light of various circumstances, such as the entire contents of the collective agreement concluded between the company and the trade union, and the situation at the time of the conclusion of the collective agreement, should be interpreted as "the purpose of consultation to guarantee the rationality and fairness of the restructuring by providing the trade union with an opportunity to present necessary opinions in advance about the criteria for dismissal, etc. in order for the company to make management decisions, such as layoff," not to mention that it must be agreed with the trade union in advance, but to refer in good faith

[5] In the case of a co-principal, in light of all the circumstances such as the means and manner of the crime, the number of participants and their inclinations, the time and place of the crime, the characteristics of the place of the crime, the possibility of contact with others in the course of the crime, and anticipated or sufficiently anticipated that the conspiracy would result in another crime incidental to the crime committed by the conspiracy, even though the conspiracy could perform the crime, or even if it is likely that other crimes incidental to the crime would be anticipated or expected to result in the crime committed in order to achieve the purpose, and the conspiracy to commit the crime which was anticipated to result in the conspiracy without taking any reasonable measures sufficient to prevent it, if the crime was eventually anticipated to result in the occurrence of the crime, even though there was no contact with one of the derivative crimes, it shall be deemed that there was an implied conspiracy as well as a functional control as to

[6] The case affirming the judgment below convicting the defendants of violation of the Punishment of Violences, etc. Act, on the ground that the defendants, such as the head of the above trade union and the head of the above trade union, did not specifically gather or directly share part of the criminal acts such as assault, arrest, and injury committed by the union members during the process of occupation and occupation of a two-wheeled vehicle branch of the Korean Metal Trade Union (hereinafter referred to as the "a paird vehicle trade union") in consideration of various circumstances such as the position and role of the defendants in the process of occupation and distribution of a car factory, the nature and circumstances of the group violence committed during the occupation process, the size and form thereof, specific methods and process, and the direction system of the above trade union

[7] Article 11(1) of the Control of Firearms, Knivess, Swords, Explosives, etc. Act provides that “any object which seems to be similar to a gun,” which satisfies the requirements prescribed by the Presidential Decree, is prohibited from manufacturing, selling, and possessing it. Here, “a gun that appears to be similar to a gun” includes not only cases where the gun shape is similar to that of a gun but also cases where it is deemed to be similar to a gun because its function is similar to that of a gun. Thus, the concept includes cases where: (a) Article 13 and [Attachment Table 5-2] subparagraph 2 of the Enforcement Decree of the same Act which requires similarity with a gun, which does not require such similarity, unlike cases under subparagraph 1 of subparagraph 2 of the same Article; and (b) where it is recognized that a gun is similar to a gun as a whole after having function and structure prescribed in the same subparagraph.

[8] The case affirming the judgment below which acquitted the defendant on the charges of violation of the Act on the Control of Firearms, Swords, Explosives, etc. on the ground that the launch vehicle, which the defendant was manufactured and used in the car factory occupation and use in the car factory, does not correspond to the maternity gun under Article 13 and [Attachment 5-2] 2 of the Enforcement Decree of the Act on the Control of Firearms, Swords, Explosives, Etc., on the ground that the size, weight, physical energy, the shape of the front part, the degree of net explosion, the existence of inflammable flame, etc., are not included in the elements of the crime of violation of the Act, and there are no sufficient evidence to acknowledge it on the records.

1. Judgment on the Defendants’ grounds of appeal

A. Regarding ground of appeal No. 1

The issue of whether to implement corporate restructuring, such as layoff or corporate merger, belongs to a high-level managerial decision of the managing body, and in principle, it cannot be the subject of collective bargaining, and if a trade union goes to an industrial action to substantially oppose the implementation of the industrial action without an urgent managerial necessity or any reasonable reason, the industrial action cannot be justified even if it inevitably entails changes in the status or working conditions of workers (see, e.g., Supreme Court Decisions 9Do4893, Apr. 24, 2001; 9Do5380, Feb. 26, 2002; 200Do380, Feb. 26, 200, etc.). In addition, if an industrial action is conducted with multiple purposes and part of it is not justifiable, it should be determined whether the industrial action is legitimate by the principal or genuine purpose of the industrial action, and if it is deemed that the industrial action was not subject to collective agreement, it should be determined that the industrial action was not subject to legitimate by the Supreme Court’s decision.

The court below acknowledged that the main purpose of the industrial action in this case is to achieve the position of the labor union that it is not able to accept the layoff itself, which is conducted due to the urgent management necessity of the company in the course of the industrial action in this case, taking into account various circumstances, such as the background of the promotion of the industrial layoff in this case, the company's financial status at the time, the company's efforts and response to the labor union to avoid the layoff, and the labor union's attitude in the course of the industrial action in this case, and determined that the industrial action in this case, the contents of which are such requirements, is a matter that the employer's authority for the layoff itself is entirely denied and it infringes on the essential contents of the management right, and thus,

Furthermore, the court below affirmed the judgment of the court of first instance that found Defendant 10, 16, 17, and 19 guilty of this part of the facts charged on the ground that the collective agreement provisions in its holding that "the company may be dismissed by an agreement with the labor union in light of various circumstances, such as the entire contents of the collective agreement in this case and the situation at the time of the conclusion of the collective agreement, etc." should be interpreted as "the purpose of consultation to ensure the rationality and fairness of the restructuring by giving prior opportunity to give prior advice to the labor union in order for the company to make management decisions, such as layoff" rather than the purport that it must be agreed with the labor union in advance, and by having faithfully refer to the opinion of the labor union in good faith."

Examining the evidence legitimately admitted by the court below in light of the reasoning of the judgment below and the above legal principles, the above fact-finding and judgment of the court below are just, and there is no error of law by misunderstanding facts against logical and empirical rules or by misunderstanding the legal principles as to the legitimacy of industrial actions, which affected the conclusion of the judgment.

B. Regarding ground of appeal No. 2

Article 30 of the Criminal Act is established upon fulfilling the subjective and objective requirements, namely, the implementation of a crime through a functional control based on the intent of joint processing and its common intent. Even if a person is not directly engaged in an act among the conspiracys, if it is not deemed that a functional control exists through an essential contribution to a crime rather than a simple conspiracys, but rather, if it is deemed that there exists a functional control through an inherent contribution to a crime, such as a crime committed by another conspiracys (see, e.g., Supreme Court Decisions 2006Do1623, Dec. 22, 2006; 2007Do235, Apr. 26, 2007). In such case, even if the conspiracys did not take any reasonable measures, such as the means and attitude of the crime, the number of persons participating in the crime, the time and time of the crime, the possibility of contact with another person during the process of the crime, as well as the possibility of contact with the other person, it should not be deemed that there were any other factors to achieve the crime.

The lower court affirmed the first instance judgment convicting the remaining Defendants of this part of the facts charged, on the ground that the remaining Defendants, except Defendant 10, 16, 17, and 19, did not specifically gather or directly share part of the criminal acts such as assault, arrest, and injury committed during the process of the occupation and strike of this case, taking into account the following circumstances: (a) the Defendants’ status, role, nature and developments of the act of violence committed in the course of the occupation and strike of this case; (b) the size, form, and process of the act of violence committed in the course of the occupation and strike of this case; and (c) the direction system of the trade union of this case.

Examining the evidence legitimately admitted by the court below in light of the reasoning of the judgment below and the above legal principles, the above fact-finding and judgment of the court below are just, and there is no error of law by misunderstanding facts against logical and empirical rules or by misunderstanding the legal principles as to the requirements for establishment of a joint principal offender, which affected the conclusion of the judgment

C. Regarding ground of appeal No. 3

A written statement or a document containing a statement prepared by a person other than the defendant, which contains the writing, signature or seal of its maker or person who has made such statement, may be admissible as evidence when it is proved to be genuine by the maker thereof or the person who made such statement at a preparatory hearing or during a public trial (Article 313(1) of the Criminal Procedure Act). A copy of a document shall also be admissible as evidence in case of a document prepared under a circumstance that the defendant consented to, or consented to, the admissibility of evidence, even if it is acknowledged that the document was prepared as genuine, or that it was not prepared, or that it was not agreed to, (see Supreme Court Decisions 90Do2601, May 10, 199; 2007Do2853, Jul. 13, 2007

According to the records, the copy of the book of this case is recognized by the statement of the non-indicted, who is the author, and is also deemed to have been prepared under the circumstances which are particularly reliable in light of its preparation process, content and form, and thus, its admissibility is admissible.

In the same purport, the judgment of the court below that recognized the admissibility of evidence of the copy of the instant book is just, and there is no error in the misapprehension of legal principles as to the admissibility

D. Regarding ground of appeal No. 4

The purport of Article 254(4) of the Criminal Procedure Act to specify the facts charged by specifying the time, place, and method of the crime is to limit the scope of trial against the court and facilitate the exercise of the defense right by specifying the scope of defense against the defendant. Thus, considering the nature of the indicted crime, it is sufficient to specify the facts causing the public prosecution by stating the time, time, place, method, etc. to the extent that it can distinguish the facts constituting the cause of the public prosecution from other facts. Even if some of them are unclear, the facts charged can be specified along with the stated other matters. Thus, if there is no obstacle to the defendant's exercise of the defense right, the validity of the public prosecution does not affect (see, e.g., Supreme Court Decisions 200Do4415, Feb. 23, 2001; 2010Do2556, Apr. 29, 2010).

In light of the above legal principles and the records, even if the time, place, etc. of crime does not specify some of the facts charged, the facts charged can be specified to the extent that it can be distinguished from other facts by other facts stated in this part of the facts charged, such as the means, method, time, place of damage occurrence, etc., and there is no obstacle to the exercise of the defendant's right to defense. Thus, the validity of the indictment of

The court below did not err in the misapprehension of legal principles as to the specification of facts charged as otherwise alleged in the ground of appeal.

2. Judgment on the grounds of appeal by the prosecutor

A. As to the ground of appeal against Defendant 16

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. The so-called crime liability as a co-principal, depending on the case of a person who does not directly share and implement part of the elements of a crime among the conspiracys. However, when comprehensively considering the status, role, control or power over the progress of the crime, etc. of the whole crime, it should not be deemed that there is a functional control over the crime through the intrinsic contribution of the crime, rather than a mere conspiracy (see Supreme Court Decisions 2006Do1623, Dec. 22, 2006; 2007Do235, Apr. 26, 2007, etc.).

The court below found Defendant 16 not guilty of each of the charges against the above Defendant on the ground that Defendant 16 did not have a functional control over an individual crime committed by another member, etc. during the process of occupation and strike of this case, on the grounds that it cannot be deemed that Defendant 16 did not have a functional control over an individual crime committed by another member, etc., even though Defendant 16 attended several meetings of the Central Dispute Mediation Committee that led to the occupation and strike of this case and delivered the result of such meetings to its members.

Examining the relevant evidence in light of the above legal principles and records, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the requirements for establishment of a joint principal offender or in violation of the rules of evidence as otherwise alleged in the ground of appeal.

B. As to Defendant 1’s ground of appeal

Article 11(1) of the Control of Firearms, Knives, Swords, Explosives, etc. Act provides that "any item that seems to be similar to a gun" that satisfies the requirements prescribed by Presidential Decree and prohibits the manufacture, sale, and possession of such item. Here, "the item that appears to be similar to a gun" is a concept including not only cases where the shape of a gun is similar to that of a gun but also cases where the function of a gun is deemed to be similar to that of a gun and its function is deemed to be similar to that of a gun. Thus, as such, Article 13 and [Attachment Table 5-2] subparagraph 1 of the Enforcement Decree of the Control of Firearms, Swords, Explosives, etc. Act that requires similarity with a gun, which does not require it, unlike subparagraph 2 of subparagraph 2, it shall be deemed that it falls under the category where the whole of a gun is recognized by meeting the function and structure prescribed in subparagraph 2.

From a different perspective, the court below erred in holding that the launch vehicle of this case does not correspond to the maternity gun stipulated in subparagraph 2 of the above [Attachment Table 5-2] on the ground that the launch vehicle of this case is not similar to the gun of this case. However, even according to the facts charged itself, the above [Attachment Table 5-2] does not include the elements of the crime, such as the size, weight, physical energy, the shape of the front part, the degree of net explosion, the existence of inflammable flame, and there is no sufficient evidence to acknowledge it on the record. Thus, the court below's conclusion that acquitted this part of the facts charged is just.

The judgment of the court below is not erroneous in the misapprehension of legal principles affecting the conclusion of the judgment, as alleged in the grounds of appeal.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)