[2] Where an employer’s expression of opinion through a speech, in-house broadcast, notice, etc. constitutes an unfair labor practice by controlling and joining the organization and operation of a trade union, and whether the establishment of such unfair labor practice requires the result of infringing the employee’s right to organize (negative)

[3] The measures to be taken by the court in a case where the original person making the original statement recognizes the actual authenticity on the interrogation protocol or statement of the prosecutor, only when it is part of the interrogation protocol or statement

1. As to the Defendants’ grounds of appeal

A. As to the legality of the instant trade union’s industrial action

Article 1 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Act”) provides that “The purpose of this Act is to maintain and improve working conditions and enhance workers’ economic and social status by guaranteeing the workers’ right to organize, collective bargaining and collective action in accordance with the Constitution, and to contribute to the maintenance of industrial peace and the development of the national economy by preventing and resolving labor disputes fair adjustment of labor relations.” Article 20 of the Act provides that “The provisions of Article 20 of the Criminal Act shall apply to legitimate activities which are conducted to achieve the purpose of Article 1 as collective bargaining, industrial action and other activities by trade unions.” Article 37(1) of the Act provides that “an industrial action shall not be in violation of Acts and subordinate statutes or other social order in its purpose, method and procedure.” Thus, in order that an industrial action by workers may be a justifiable act, the subject of collective bargaining should be the subject of such action, and that the employer should also declare that the industrial action is not subject to collective bargaining between the labor and management, and that it should not be subject to the determination of 100 or 15 of the employer’s right to collective bargaining.

The court below, after compiling the adopted evidence, found the facts as stated in its decision. As to the legality of the industrial action around August 2005 of the trade union of this case, even though the trade union of this case claimed a certain distance from the improvement of working conditions, such as direct employment and succession to employment of workers by the contracting company of non-regular workers, the main purpose of the industrial action is to improve working conditions of the contracting company of non-regular workers employed by the contracting company of this case, so the industrial action is legitimate, and the industrial action has procedural legitimacy, and even though some union members deviate from the place and method originally reported during the assembly, it is not sufficient to view the industrial action as unlawful. Further, as to the legality of the industrial action of this case around June 2005 and around July 2005 of the same year, the defendant's industrial action of this case was not subject to the illegal industrial action of workers at around June 205 and around July 2005, the court below found the defendants guilty of the industrial action of this case as to the procedure and part of the industrial action of this case.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and the evidence duly admitted by the court below, the above fact-finding and judgment by the court below are just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation of the logical and empirical rules,

B. As to whether the posting of each notice constitutes an unfair labor practice

It is reasonable for an employer to have the freedom of press to express his/her opinion through a speech, internal broadcast, notice, or letter. However, in cases where it is acknowledged that the employer has an intention to control or intervene in the organization, operation, and activities of a trade union by taking into account the situation, time, place, method, and influence that it may affect or may affect the operation or activities of a trade union, the act of controlling or participating in the organization or operation of a trade union is established as "the act of controlling or participating in the organization or operation of a trade union" and the establishment of unfair labor practices as a control or intervention does not necessarily require the result of infringing the workers' right to organize (see, e.g., Supreme Court Decision 2006Do388, Sept. 8, 2006).

In the same purport, the court below held that the act of posting each of the notice of this case was an act of delaying trade union activities by creating unstable status by threatening not only civil and criminal responsibilities but also dismissed when the union continues union activities from the employer’s standpoint to the members of the trade union of this case. It is just to determine that it was an act of intervening in the operation of the trade union as an attempt to affect individual decisions and actions of the union members and the operation of the trade union. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on unfair labor practices or by exceeding the bounds of the principle of free evaluation of evidence by

2. As to Defendant 2 and 4’s grounds of appeal

After finding facts as stated in its reasoning based on adopted evidence, the lower court determined that Defendant 2 and 4’s act of demanding each worker to sign constitutes an unfair labor practice by controlling or participating in the organization or operation of a trade union by workers under Article 81 subparag. 4 of the Act, beyond simply preventing damages caused by illegal strike of workers and operating the company normally, in light of the following: (a) Defendant 2 and 4’s act of demanding each worker to sign the trade union, including the instant trade union, refers to a trade union including the National Democratic Union Federation of Labor Unions; and (b) the content of each of the instant trade union would not be absolutely engaged in the activities of the trade union.

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court is just and acceptable. 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 free evaluation of evidence in violation of logical and empirical rules, or by exceeding the bounds

3. As to Defendant 1’s ground of appeal

After comprehensively taking account of the adopted evidence, the court below found that Defendant 1 committed an act of controlling or intervening in the organization or operation of a trade union by making statements directly to, or through Nonindicted 7 and Nonindicted 8, the worker Nonindicted 2, 3, 4, 5, and 6 on July 20, 2005, as stated in this part of the facts charged, and found that the disciplinary action against Nonindicted 9, 10, 11, and 12 on September 12, 2005 constituted an unfair labor act, such as that he was taking part in the strike from August 4, 2005 to September 6, 2005, and thus, it convicted all of the facts charged.

Examining the reasoning of the judgment below in light of the evidence duly admitted by the court below, the above judgment of the court below is just and acceptable, and there were no errors in the misapprehension of legal principles as to unfair labor practices, as alleged in the grounds of appeal.

In addition, the lower court’s determination that Defendant 1’s above disciplinary action related to the above disciplinary action on September 12, 2005 constituted Article 81 subparag. 1 of the Act is justifiable, and even if the above unfair labor practice falls under Article 81 subparag. 5 of the Act, Article 81 subparag. 1 and 5 of the Act merely differing from the grounds for handling disadvantage as a specific type of unfair labor practice through each unfavorable treatment, and it cannot be deemed that there was no difference between the nature of the crime and statutory punishment, thereby affecting the conclusion of the judgment. Thus, the allegation in the grounds of appeal on this part is not acceptable.

4. As to the Prosecutor’s Grounds of Appeal

A. On August 4, 2005, as to Defendant 1-2's non-participation in the strike

According to each statement of Nonindicted 13 and 4, the lower court found that four persons, including Nonindicted 14 and 15, who are the managers of Defendant 1’s operating company, engaged in the act of locking out the door in order to prevent Nonindicted 13 and 4, who want to participate in the strike of the labor union on August 4, 2005. However, there is no evidence to prove the fact that the above Defendant directly engaged in the above act or ordered Nonindicted 14, etc. to do such act, and there is no evidence to prove the fact that the above Defendant was taking the position of opposing the workers’ labor union activities or strike as employers of Nonindicted 14, etc. at the time, and on the sole basis, it is insufficient to recognize that the above Defendant conspired to commit the above act of preventing the labor union participation of Nonindicted 14, etc., the lower court acquitted this part of the facts charged.

Examining the reasoning of the judgment below in light of the records, the judgment below is just and acceptable, and there is no violation of rules of logic and experience and free evaluation of evidence beyond the limit of the free evaluation of evidence.

B. As to Defendant 3’s demand for signature of Defendant 3’s name

Article 312(1) of the Criminal Procedure Act provides that a protocol in which a public prosecutor states a suspect's statement made by the defendant is prepared in compliance with due process and method, and contains the same contents as the defendant stated in the protocol at a preparatory hearing or during a public trial; it shall be admissible as evidence only when it is proved that the statement recorded in the protocol was made in a particularly reliable state (Article 312(1) of the Criminal Procedure Act). In a case where the defendant denies the authenticity of the formation of the protocol, it shall be admissible as evidence only when it is proved by a video product or any other objective means that the statement recorded in the protocol is the same as the defendant stated, and it is proved that the statement recorded in the protocol was made in a particularly reliable state (Article 312(2) of the Criminal Procedure Act). In addition, in a case where the original person makes a statement of a suspect or a person other than a suspect and it is recognized that the actual authenticity has been made at a preparatory hearing or during a public trial, the court shall admit admissibility of evidence only for any part recorded in the protocol as the original person's statement, and it shall be denied.

The court below found the defendant not guilty of this part of the charges on the ground that among the evidence submitted by the prosecutor, the prosecutor's interrogation protocol regarding the defendant's request for signature in this part of the facts charged on the defendant's name, but the above defendant's statement related to his name document was denied in the court of first instance, and there is no evidence to acknowledge the actual authenticity of the part, and there is no evidence to prove that the above defendant's above defendant's statement related to his name document was not admissible, and most of the contracting parties except the above defendant's management company did the above defendant's act of receiving signatures from his employees, and it cannot be readily concluded that the above company also received signatures from his employees.

Examining the reasoning of the judgment below in light of the above legal principles and records, the above judgment of the court below is just and there is no error in the misapprehension of legal principles as to admissibility of the suspect interrogation protocol prepared by the prosecutor, as otherwise alleged in the ground of appeal.

5. Conclusion

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

Justices Lee Sang-hoon (Presiding Justice)