[업무방해·노동조합및노동관계조정법위반][공2004.2.1.(195),277]
[1] Whether Article 62 subparag. 3, Article 63, and Article 91 subparag. 1 of the Labor Union and Labor Relations Adjustment Act prohibiting an industrial action during the period of ex officio arbitration violates the principle of excessive prohibition under the Constitution (negative)
[2] Where workers' refusal to provide collective labor constitutes the crime of interference with business under the Criminal Act
[3] Whether punishing workers' refusal of collective labor supply as the crime of interference with business violates the prohibition of forced labor (negative)
[4] The standards for determining the legitimacy of the entire industrial action where there are many purposes pursuing the industrial action, and some of them are not legitimate
[5] Where a trade union applied for mediation of a labor dispute to the Labor Relations Commission, whether the procedure for the industrial action is legitimate after the Labor Relations Commission decided to mediate the dispute (negative)
[1] Article 62 subparag. 3, Article 63, and Article 91 subparag. 1 of the Labor Union and Labor Relations Adjustment Act stipulate that the legislative purpose of Article 62 subparag. 3, Article 63, and Article 91 subparag. 1 of the Labor Union and Labor Relations Adjustment Act is to maintain the daily lives of the public and preserve the national economy by allowing the resolution of disputes through arbitration of the Labor Relations Commission in lieu of agreement between the labor and management to resolve disputes. The legislative purpose of Article 62 subparag. 3, Article 63, and Article 91 subparag. 1 of the Labor Union and Labor Relations Adjustment Act is just, and the method of restricting fundamental rights stipulated in the Act is appropriate, and the degree of restricting fundamental rights is also minimum, and the balance between the public interests to be protected and the private interests to
[2] The force as stated in the crime of interference with business under Article 314 of the Criminal Act refers to not only assault and threat, but also pressure and confusion of human freedom. As labor industrial action is essentially a element of interference with business by force, since workers are under pressure and pressure. Therefore, the failure of workers to work in group during their working hours is nothing more than the failure of the duty to provide labor unless there are other illegal elements. However, even if refusal of the provision of labor is a mere refusal of the duty to provide labor, the crime of interference with business under the Criminal Act may be established unless it is justifiable or if it interferes with the normal operation of the business by force.
[3] Even though the refusal of collective labor service constitutes an element of the crime of interference with business, which essentially causes the threat of force, if it is acknowledged justifiable as an exercise within the scope of the Constitution and laws, it shall not be punished as unlawful. This is merely a regulation of conduct (an act outside the protection area of the Constitution) beyond the inherent limit of the three basic labor rights guaranteed by the Constitution, and it does not punish legitimate exercise of rights. Thus, it shall not be deemed a forced labor against the will of the principal.
[4] In a case where there are many purposes pursuing an industrial action, and some of them are not legitimate, the legitimacy of the industrial action should be determined by the legitimacy of the main or genuine purpose. If it is recognized that the industrial action would not have been conducted if the industrial action had not been conducted for the reason of unfair demand, the entire industrial action shall not have the legitimacy.
[5] Although a labor dispute must go through mediation procedures in its procedure, unless there are special circumstances, it shall not be justifiable to proceed with the industrial action after the Labor Relations Commission makes a mediation decision, and the trade union may conduct the industrial action as it goes through mediation procedures after the completion of mediation procedures or the completion of mediation period without completing mediation procedures after filing an application for mediation with the Labor Relations Commission for mediation of a labor dispute.
[1] Article 62 subparag. 3, Article 63, Article 91 subparag. 1 of the Trade Union and Labor Relations Adjustment Act, Article 37(2) of the Constitution / [2] Article 314 of the Criminal Act / [3] Articles 20, 314 of the Criminal Act, Article 12(1) of the Constitution / [4] Article 20 of the Criminal Act, Articles 1, 4, and 37(1) of the Trade Union and Labor Relations Adjustment Act / [5] Article 45(2), 54, Article 63, and Article 91 subparag. 1 of the Trade Union and Labor Relations Adjustment Act, Article 20 of the Criminal Act
[1] Constitutional Court Order 201Hun-Ga31 decided May 15, 2003 (Hun-Ga81, 454)/ [2] Supreme Court Decision 90Do2961 decided April 23, 1991 (Gong1991, 1554) Supreme Court Decision 91Do326 decided November 8, 1991 (Gong1992, 152), 2001Do435 decided September 28, 2001 / [4] Constitutional Court Order 97Hun-Ba23 decided July 16, 198 (Hun-Ba29, 660)/56 [3] Supreme Court Decision 200Do2949 decided June 26, 201; Supreme Court Decision 2000Do3299 decided May 29, 201 (Hun-Ga, 209)
Defendant
Defendant and Prosecutor
Attorneys Kim Kim-soo et al.
Seoul District Court Decision 2000No10376 delivered on April 4, 2001
Each appeal shall be dismissed.
1. As to the defendant's appeal
A. Regarding whether 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") are unconstitutional
The legislative purpose of Article 62 Subparag. 3, Article 63, and Article 91 Subparag. 1 (hereinafter referred to as the "legal provision of this case") of the Act is to maintain the daily lives of the public and preserve the national economy by allowing the Labor Relations Commission to resolve disputes through arbitration instead of agreement between the labor and management, since the extreme conflict of interests and conflict between the two parties in essential public-service businesses may lead to the risk of collapse of the national economy. Thus, the legislative purpose of the Act 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, so it does not violate the principle of excessive prohibition under the Constitution (see Constitutional Court Order 2001Hun-Ga31, May 15, 2003). The judgment of the court below is justifiable, and there is no error of law by misunderstanding legal principles as to the legal provision of this case as alleged in the ground for appeal.
B. Regarding the decision to refer the instant case to arbitration
In light of the records, the court below's determination that the decision to refer to arbitration of this case was made through legitimate procedures, and that there was no violation of law such as deviation from or abuse of discretionary power, is just and acceptable, and there is no error of law such as misunderstanding of legal principles as otherwise alleged in the ground of appeal.
C. Regarding the crime of interference with business by force
As stated in the crime of interference with business under Article 314 of the Criminal Act, the term “power” refers to not only assault or intimidation, but also the power to suppress or confused human freedom. As labor dispute action is essentially subject to pressure on workers by force, it includes elements of interference with business by force. Therefore, workers’ failure to work in group during working hours does not constitute nonperformance of the duty to provide labor unless there are other illegal elements. However, even if refusal to provide labor is a legitimate act of dispute or a force to interfere with normal operation of their business, the crime of interference with business under the Criminal Act may be established (see, e.g., Supreme Court Decision 2001Do435, Sept. 28, 2001).
In light of the above legal principles and records, if a labor dispute is referred to arbitration under Article 91 subparagraph 1 and Article 63 of the Act, and if a union member refuses to provide collective labor during the above period, even though the labor dispute cannot be conducted for 15 days from that date, it is just to determine that the labor dispute constitutes the crime of interference with business by force, and there is no error in the misapprehension of legal principles as to the crime of interference with business by force as otherwise alleged in the ground of appeal.
In addition, even though the refusal of collective labor service constitutes an element of the crime of interference with business, which essentially causes the threat of force, if it is recognized justifiable as an exercise within the scope of the Constitution and law, the illegality shall not be punished. This is merely a regulation of conduct (an act outside the protection area of the Constitution) beyond the inherent limit of the three basic labor rights guaranteed by the Constitution, and it does not punish legitimate exercise of rights. Thus, it cannot be deemed a forced labor against one's will (see Constitutional Court Order 97Hun-Ba23, Jul. 16, 1998). Accordingly, the argument in the grounds of appeal on this issue is not acceptable.
2. As to the prosecutor's appeal
A. Regarding the purpose of industrial action
In a case where there are several purposes pursuing an industrial action, and some of them are not legitimate, the legitimacy of the industrial action should be determined by the legitimacy of the main or genuine purpose of the industrial action. If it is recognized that the industrial action would not have been conducted if the industrial action had not been conducted for the reason of the improper demand, the entire industrial action shall not have legitimacy (see Supreme Court Decision 91Nu5204 delivered on January 21, 1992, etc.).
In light of the above legal principles and records, the court below is just and correct to determine that the defendant's act of industrial action is justifiable, and there is no error of law by misunderstanding the legal principles of industrial action, as otherwise alleged in the ground of appeal.
B. Regarding the procedure for an industrial action
Article 45 (2) of the Act provides that "Any industrial action shall not be conducted without completing adjustment procedures under Sections 2 through 4 of Chapter 5: Provided, That this shall not apply in cases where mediation is not completed within the period under Article 54, or arbitration award is not made within the period under Article 63," and Article 54 (1) of the Act provides that "in cases of mediation, within 10 days in cases of a general business and within 15 days in cases of a public-service business from the date on which an application for mediation is filed under Article 53, and within 10 days in cases of a public-service business," and subparagraph 1 of Article 91 of the Act provides that "in cases of a labor dispute, it shall be completed within the period under the main sentence of Article 45 (2) of the Act, unless there are any special circumstances, it shall undergo adjustment procedures in the procedure, but this procedure shall not be conducted only after the Labor Relations Commission makes a mediation decision after the Labor Dispute Mediation Committee makes a mediation request to the Labor Relations Commission."
In light of the above legal principles and records, the court below acknowledged the fact that each industrial action of this case was conducted after the lapse of 15 days from the filing of an application for dispute mediation with each Regional Labor Relations Commission around May 15, 2000 at each of the above hospital's Health Care and Labor Relations Commissions of this case, and that there was no room for mutual agreement between the two in fact due to additional opinion conflict between each of the labor and management, and held that each of the industrial actions of this case is justifiable in its procedure. There is no error in the misapprehension of legal principles as otherwise alleged in the ground of appeal.
3. Therefore, each appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Yoon Jae-chul (Presiding Justice)