[2] Requirements for establishing a crime of violation of the Labor Union and Labor Relations Adjustment Act, which is punished by industrial action during the prohibition period of industrial action in an essential public business

[3] The case reversing the judgment of the court below convicting industrial action during the prohibition period of industrial action at the time of ex officio arbitration on the ground that it was unlawful in the decision to refer to arbitration

[2] The crime of violation of the Labor Union and Labor Relations Adjustment Act, which is punished due to industrial action during the period of prohibition of industrial action in the essential public-service business place, is an offense established by industrial action during the fifteen-day period from the date of referral to arbitration, even though the special mediation committee legally organized deems that there is no possibility that mediation would be established, and the chairman of the Labor Relations Commission made a decision to refer the case to arbitration after hearing the opinion of public interest members.

[3] The case reversing the judgment of the court below convicting the Defendants, who are workers in essential public-service businesses, of violating the Labor Union and Labor Relations Adjustment Act by engaging in industrial action during the prohibition period of industrial action at the time of ex officio arbitration, on the grounds that the organization of the Special Arbitration Commission, which is the preceding procedure of the decision to refer to arbitration, and the decision to recommend the referral to arbitration by the Commission, are unlawful in violation of the relevant Acts and subordinate statutes,

A. In a case where two or more persons jointly process a certain crime, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process a crime and realize a crime. Thus, even if it comes to an impliedly, if the combination of doctors is made between several persons, the conspiracy relationship is established. If the functional control based on such a common intent is recognized in the course of committing the crime, even those who did not directly participate in the conduct of the crime shall be held criminal liability as a joint principal offender against the other persons (see Supreme Court Decisions 2003Do6779, May 27, 2004; 2004Do2034, Jun. 11, 2004, etc.).

According to the evidence of the court of first instance maintained by the court below, Defendant 1, the secretary general of the non-indicted corporation's labor union, as the chief of the strike situation of the dispute countermeasure committee at the time of the industrial action in this case, shall exercise overall control over the affairs of ordering and inciting the individual acts of the dispute countermeasure committee. Defendant 2, the vice chief of the policy committee, as the chief of the strike planning committee, shall exercise overall control over the affairs of planning, publicity, negotiations, etc. as the chief of the dispute countermeasure committee, and Defendant 3, the chief of the propaganda committee, as the chief of the propaganda committee, shall direct and lead the activities of receiving and occupying all kinds of major facilities of the company as the chief of the strike countermeasure committee. Defendant 4, the chief of the propaganda committee, as the chief of the public relations team of the committee, received entrance doors of the committee of the non-indicted corporation 5, to prevent the members from departing from the committee, to control the members' entry, or to control the members' participation in the industrial action in part of the company's organization or activities, etc.

The Supreme Court precedents cited in the grounds of appeal by the Defendants are inappropriate to invoke the case differently from this case.

B. Meanwhile, in a case where multiple members occupy a part of a company for a long time and continue industrial action, efforts to recover from the company's side will be made, and during that process, a considerable number of members and employees of the company could have sufficiently predicted that they could be injured by assaulting the employees of the company due to physical fighting and safety appearance. Thus, the Defendants who led the members to occupy the main facilities of the company and to conduct industrial action cannot be exempted from liability for the violation of the Punishment of Violences, etc. Act (collective, deadly weapons, etc.) as to the injury of victims caused by assault by the members participating in the industrial action due to the names of other accomplices. Accordingly, the court below's decision that affirmed the judgment of the court of first instance which found the Defendant guilty of this part of the facts charged is correct, and there is no violation of law by misunderstanding the legal principles as to Article 3 (2) and (1) of the Punishment of Violences, etc. Act as argued in the Grounds for Appeal.

2. As to the violation of the Labor Union and Labor Relations Adjustment Act

A. Article 62 subparag. 3, Article 63, and Article 91 subparag. 1 of the Labor Union and Labor Relations Adjustment Act (hereinafter referred to as the "Act") have the legislative purpose of maintaining the daily lives of the public and preserving the national economy by enabling the Labor Relations Commission to resolve disputes through arbitration instead of agreement between the labor and management, since the extreme conflicts of interests and conflicts between the labor and management in essential public works can lead to the risk of collapse of the national economy. Thus, the legislative purpose is just, and the method of restricting fundamental rights prescribed in the Act is appropriate, and the degree of restriction on fundamental rights is minimum, and the balance between the public interest to be protected and the private interest to be protected is maintained, and thus, it does not violate the principle of excessive prohibition under the Constitution (see Constitutional Court en banc Decision 2001Hun-Ga31, May 15, 2003).

We cannot accept the allegation in the grounds of appeal that the provisions of the Act on the Ex officio Arbitration violate the Constitution.

B. However, Article 62 subparagraph 3 of the Act provides that "where the chairperson of the Labor Relations Commission has decided to refer the case to arbitration upon the recommendation of the Special Arbitration Committee in the essential public-service business pursuant to Article 71 (2), the Labor Relations Commission shall conduct arbitration." Article 72 provides that "Special Arbitration Committee shall be established in the Labor Relations Commission for the mediation of labor disputes in the public-service business (paragraph 1) and the Special Arbitration Committee shall be composed of three commissioners (paragraph 2). Special Arbitration Committee provides that "the Special Arbitration Committee shall refer the case to arbitration pursuant to the decision of the Labor Relations Commission where it deems that mediation is not likely to be established in the essential public-service business, from among the members representing the public interest of the Labor Relations Commission, the labor union and the three to five commissioners shall be appointed by the chairperson of the Labor Relations Commission (paragraph 3)." Article 74 (1) provides that "in the event that the chairperson of the Labor Relations Commission makes a recommendation pursuant to the provisions of Article 74 (1), the industrial action shall not be referred to arbitration for six days after hearing the dispute."

Therefore, the violation of the Labor Union and Labor Relations Adjustment Act, which is punished due to industrial action during the period of prohibition of industrial action in the essential public-service business, is an offense established by industrial action during the 15-day period from the date of referral to arbitration, even though the special mediation committee legally composed of industrial action deems that there is no possibility to establish mediation, and the Labor Relations Commission's decision to refer the case to arbitration after hearing the opinion of public interest members. In light of the records, the labor union of this case issued to the National Labor Relations Commission a list of members representing public interest and a request for recommendation of special mediation committee members to the labor union of this case and the company of this case, and the chairman of the National Labor Relations Adjustment Commission appointed a special mediation committee including public interest committee members excluded from the labor union of this case, or the chairman of the National Labor Relations Commission would have decided to refer the case to arbitration in accordance with the special mediation committee's recommendation for referral to arbitration of this case. Thus, the decision of this case's special mediation committee's violation of the Labor Union and Labor Relations Adjustment Act's violation of the law and the procedural decision of the Labor Relations Adjustment Act.

3. Scope of reversal

Therefore, among the judgment of the court below, the part which found the Defendants guilty of the violation of the Labor Union and Labor Relations Adjustment Act against the Defendants should be reversed, and the Defendants’ final appeal against the remaining criminal facts is without merit, but the court below recognized the defendants guilty and maintained the judgment of the court of first instance which sentenced the Defendants to one punishment by deeming the Defendants as concurrent crimes under the former part of Article 37 of the Criminal Act.

4. 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 Yoon Jae-sik (Presiding Justice)