The industrial action of this case (hereinafter referred to as "railroad action of November 26, 2009") referred to as "each industrial action of this case" by referring to the point of obstruction of business as described in the summary of the following facts charged. The obstruction of business as described in each of the industrial action of this case is "the industrial action of June 24, 2009", "the industrial action of September 8, 2009", "the industrial action of September 16, 2009", "the industrial action of November 5, 2009", and "the industrial action of November 26, 2009" in accordance with the government's advance plan to reduce the number of 5,115 members of the public agency, and against this, the public action of this case (hereinafter referred to as "the industrial action of this case") did not meet the requirements of "the joint campaign headquarters for the advancement of the public sector and enhancement of public nature of the industrial action of the public sector, such as withdrawal of dismissal and dismissal of the industrial action of labor union."

In addition, among each industrial action of this case, the industrial action of this case is not for the purpose of urging the faithful negotiation of collective bargaining, but for the purpose of opposing the advancement of a public enterprise, which was not an issue at the time of commencement of collective bargaining around 2008. Thus, since the industrial action of this case goes into a new industrial action, the legitimacy requirement of procedure is not satisfied even though it goes through a separate vote for pros and cons and conciliation procedure.

Nevertheless, the lower court acquitted the Defendants of each of the charges of this case, by misapprehending the facts or misapprehending the legal principles on justifiable acts, thereby adversely affecting the conclusion of the judgment.

2. Summary of the facts charged

A. The defendant's obstruction of business on June 24, 2009

On April 25, 2009, the Railroad Labor Union, which is a trade union consisting of the employees of the Railroad Corporation, held 'the 'the 'the 'the 'the 'the 'the 'the 'the 2,500 members' in the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'M' in which the 'the 'the 'the 'the 2,500 members' participated' in the 'the 'the 'the '

On June 17, 2009, KimE, the chairperson of the Central Committee on Countermeasures against Railroad Labor Relations, issued a "Guidelines for the Safe Operation and Practice of Motor Vehicle Members" to the effect that, in order to accomplish the above arguments, "the members working on board shall be driven to the maximum extent possible, considering the safety of transportation personnel when entering the National Committee. The transportation personnel shall cooperate with the examination of the regulations and the regulations of the tallyman. They shall comply with all restricted speed. They shall thoroughly conduct the operation test. They shall maintain the entrance speed at the safe speed at all times. They shall thoroughly implement the entry speed. They shall carry out the entry speed at the safe speed as prescribed by the regulations. They shall not be able to own nor get out. The vehicle members shall safely examine according to the regulations."

On June 24, 2009, Defendant 00 and Defendant 00, the director of the regional headquarters of the Daejeon District Headquarters for Railroad Workers, who are the head of the Organization Bureau pursuant to the guidelines for regulatory duties and safe operation practice as above, puts a kicket on the place of business of the Daejeon Police Division, the head of the organization and Defendant 00, who are the head of the organization headquarters, in accordance with the guidelines for transportation of electricity and mobile phone text messages from 07:00 to 07:00 of the same day, using a train or directly boarding the train to transport the train to the business office of the Daejeon Deputy Police Division, the head of the Daejeon Police Division, the Daejeon Police Division, the head of the organization division, around June 24, 2009.

The direction and encouragement was directed and urged.

Despite the fact that the management authority's high-level decision or management decision is based on the suspension of railroad fighting, strengthening of public railroads, removal from office of dismissal, etc., it does not engage in strike or occupation in order to prevent it, etc., the member of the transportation partner of the Daejeon Daejeon Motor Vehicle Business Group *, Kim 00, from June 24, 2009 to 07:00, without undergoing prior procedures such as the vote of cooperative members and the Labor Relations Commission mediation, etc., the member of the association *, from June 24, 2009 to June 30, 2009, claimed the suspension of railroad fighting, public railroads, strengthening of public railroads, removal from office of dismissal, etc., and delayed operation of 7 trains, which start from the Seodae-gu, the launch station, to 11 to 56 minutes due to interference with normal operation of trains pursuant to the "Guidelines Guidelines for Regulation and Safety Operation."

As a result, the Defendants conspired with the Chairman KimE of the Central Committee for Countermeasures against Railroad Labor-Management Disputes and the Vice Chief of Daejeon Motor Vehicle's transportation members**, Kim00, which interfered with the normal transportation of passengers and freight in the railroad construction by force.

B. The defendant's obstruction of business on September 8, 2009

On September 6, 2009, Kim E-E, the chairman of the Central Committee for Countermeasures against Railroad Labor-Management Disputes, issued an order of strike against the temporary representative meeting held on August 26, 2009. "In accordance with the resolution of the temporary representative meeting held on September 26, 2009, the member of the Railroad Labor-Management Member started in the strike on September 8, 2009 and started in the strike, and on September 14, 2009, the member of the Railroad Labor-Management Member was held in Daejeon on September 14, 2009."

The policy for the promotion of public enterprises, such as the reduction of the number of personnel, and the acquisition of airport railroads, etc., are based on the high-level determination or management judgment of the management body, and matters belonging to the management rights, such as reinstatement of dismissal, reinstatement of complaint, accusation, withdrawal of disciplinary action, withdrawal of lawsuit for compensation for damages, etc., shall not engage in a strike to accomplish such claims, which are matters belonging to the unique rights of the management that are irrelevant to the determination of working conditions, and shall not engage in a strike to secure appropriate human resources, maintain the prescribed number, and consult on reduction of the number of employees, which are included in the assertion against the amendment of the union of the union of

Nevertheless, on September 8, 2009, the Defendants urged 249 drivers belonging to the Daejeon District Headquarters for Railroad Workers to participate in the 'Rabing for Railroad Workers' Resolution held at the Do square for the Daejeon District of Daejeon District Headquarters'. On September 8, 2009, 1,440 passengers including 249 drivers belonging to the Daejeon District Headquarters were allowed to participate in the 'Rabing for Railroad Workers' Resolution'. On September 8, 2009, the Defendants refused to provide 29 passengers to work together in the 'Rabing for the strike', which was held in the 'Rab Labor Relations Resolution' parking lot for the Daejeon District of the Daejeon District of the Daejeon District of the Daejeon District of the Republic of Korea on September 8, 2009 without undergoing the '5,115 number reduction' and against the acceptance of airport railroads, dismissed, withdrawal of complaint or disciplinary action, withdrawal of the lawsuit for damages, the introduction of new wage reduction and annual salary system, the recruitment of new business personnel, and the non-school.

As a result, the Defendants conspired with the Chairman KimE of the Central Committee for Countermeasures against Railroad Workers' Disputes and 1,440 drivers of the Railroad Workers' Unions and interfered with the transportation of passengers and freight by force.

다. 피고인 이00, 고00, 전00, 최**, 김@@, 김##, 김$$, 김%%, 김&&의 2009. 9. 16. 업무방해의 점

On September 14, 2009, when the Korean Railroad union did not accept the requirements of railroad labor union such as the suspension of the advancement of public enterprises in the railroad labor union, the reinstatement of dismissal, etc. from the private side, it issued 30th of the strike guidelines that "the subrogation of all vehicle branch disputes shall hold a general meeting of the members of each branch from September 16, 2009 to 13th of the year from September 2009."

The policy for the promotion of public enterprises, such as the reduction of the number of regular personnel of the railroad construction, and the acquisition of airport railroads, etc., are based on the high-level decision or management decision of the management body, and shall not engage in a strike to accomplish such claims as belonging to the unique area of the management's rights, which is irrelevant to the determination of working conditions, such as reinstatement of dismissal, reinstatement of complaint, complaint, withdrawal of disciplinary action, withdrawal of compensation for damages, etc., and shall not engage in a strike to secure appropriate human resources, maintain the prescribed number, and provide cooperation on the reduction of the number of regular personnel, unless there is any disagreement in the assertion on the determination of working conditions.

Nevertheless, at around 09:30 on September 16, 2009, the Defendants held 5,115 members' general meeting at the business office of the Daejeon metropolitan head office located in the Daejeon metropolitan head office, Daejeon metropolitan head office, the Daejeon metropolitan head office and the Daejeon metropolitan head office and ordered the members of the Daejeon metropolitan head office and the Daejeon metropolitan head office to refuse to provide labor. From September 16, 2009 to September 16, 2009, the Defendants conspired with the Chairman of the Daejeon metropolitan head office and the Daejeon metropolitan head office and the Daejeon metropolitan head office to offer 1,750 passengers' union members, including 446 drivers belonging to the Daejeon metropolitan head office and the Daejeon metropolitan head office, to withdraw the reduction of the number of union members, to oppose the takeover of Incheon airport railroad, to oppose the takeover of new employees' wage reduction and annual salary system, to oppose the introduction of new employees' wage reduction and annual salary system, to oppose the opening of restaurants, to the outside of the restaurant, to oppose the members of the National Railroad and the Daejeon metropolitan head office and the Daejeon local head office.

라. 피고인 이00, 고00, 전00, 최00, 남00, 최**, 김@@, 김##, 김$$, 김%%, 김&&,전00,김++,박**,강00,조00,김~~,정00,이%%, 정@@의 2009.11.5. ~ 6. 업무방해의 점

On October 29, 2009, the Railroad Labor Relations Adjustment held a committee for countermeasures against extended disputes at the Railroad Labor Relations Management Office, and decided on November 5, 2009, the full-time strike of the Seoul metropolitan area from November 6, 2009, and from November 14, 2009 to December 22, 2009, and on October 31, 2009, the members of the Central Committee issued a strike order under the name of KimE on November 5, 2009 to the regional circulating business from November 5, 2005: Daejeon, Taedong, Chang-gu, Busan, Busan, Seocheon District Headquarters, Changcheon District Headquarters, Seoul, Changcheon District Headquarters, and the members of the Seoul metropolitan area from November 14, 2009 to October 31, 209: 00-09 to April 40, 200: on the day of the issuance of the strike order.

The promotion of public enterprises, such as withdrawal of the reduction in the number of regular staff of the Railroad Construction, and acquisition of airport railroads, etc., are based on the high-level determination or management judgment of the management body, and shall not engage in a strike to accomplish such claims, as matters belonging to the unique area of rights of the managers who are irrelevant to the determination of working conditions, such as reinstatement of dismissal, reinstatement of complaint, accusation, withdrawal of disciplinary action, withdrawal of lawsuit for compensation for damages, etc., and shall not engage in a strike to secure appropriate human resources and maintain the prescribed number, and the provisions of collective agreement on consultation for reduction in the number of regular personnel are not relevant to the determination of working conditions.

Nevertheless, on November 5, 2009, 3,81 members of a regional railroad labor union outside the Seoul Metropolitan Area participated in the strike that was held on November 5, 2009 in accordance with the order of the said strike (the defendants were 1,300 members of the Daejeon Regional Headquarters and the Daejeon Regional Headquarters for Maintenance and Improvement of the Seoul Metropolitan Area and 1,300 members of the Daejeon Local Headquarters and 1,300 members of the Daejeon Local Headquarters and 2,986 members of the regional railroad labor union from 00 to 16:00 members of the regional railroad labor union and 2,97 members of the regional railroad labor union and 2,98 members of the regional railroad labor union and 2,90 members of the regional railroad labor union from 00 to 00 members of the regional railroad labor union and 1,50 members of the public railroad labor union and 1,50 members of the regional railroad labor union from 00 to 300 members of the public railroad labor union and 50 members of the train, etc.

이로써 피고인들은 철도노조 중앙쟁의대책위원회 위원장 김EE 및 철도노조 조합원 6,790여명과 공모하여, 위력으로써 철도공사의 여객·화물 수송 업무 등을 방해하였다. 마. 피고인이00,고00,전00,최00,최**,김@@,김##,김$$,김%%,김&&, 박OO,김--,전00,김++,박**,강00,조00,김~~,정00,이%%,정@@의2009. 11.26. ~ 12.3. 업무방해의 점

On November 21, 2009, the Korean Railroad Labor Union Directive 39 on November 21, 2009, through the Central Committee Chairperson Kim E-E Directive, issued a guideline that "all union members shall go into a completely indefinite strike from November 26, 2009 if the negotiations of wages and collective agreements are finally displayed," and "all union members shall go into a indefinite total strike from November 26, 2009 to a indefinite total strike. On November 25, 2009, the Ministry of Labor issued an order to engage in a strike. All union members, other than necessary maintenance work, issued a resolution to participate in the general strike by region 26 days and a labor union resolution by the central central central labor-management public sector on November 28, 201.

The policy for the promotion of public enterprises, such as the reduction of the quota of railroad construction, and the acquisition of airport railroads, etc. are based on the high-level determination or management judgment of the management body, and matters belonging to management rights, such as reinstatement of dismissal, reinstatement of complaint, accusation, withdrawal of disciplinary action, revocation of compensation for damages, etc., shall not engage in strike to accomplish such claims, which are matters belonging to the unique area of rights of managers unrelated to the determination of working conditions, and shall not engage in strike to secure proper human resources and maintain the prescribed number, and the provisions of the collective agreement on reduction consultation shall not be in conflict with those of the management body on the determination of working conditions.

Nevertheless, on November 26, 2009, 11,70 members of the Korean Railroad Union participated in the strike-out ceremony held in the Seoul Station, the Daejeon Station, the Busan Station square, the Net Station square, and the Dong Sea Area square on November 13:00 on the 26th 16th 201, and the number of members of the Korean Railway Daejeon District Headquarters and the Daejeon District Headquarters from around 13:0 to 16:00, the number of members of the Korean Railroad Association was 1,50, and the number of members of the Korean Railroad Association was 1,50 were 1,00,00, 200, 300, 100, 300, 100, 100, 100, 200, 200, 200, 200, 30, 10,000, 10,000 members and employees of the Korean Railroad Association, from around 10, 2000.

3. The judgment of the court below

The main purpose of each industrial action in this case was to urge the employer to faithfully conduct collective bargaining, to conclude a collective agreement on working conditions, and to prevent the deterioration of the wage system, and this constitutes an industrial action related to the maintenance and improvement of working conditions, and even if some management matters were included in the purpose of industrial action, each industrial action in this case must not be deemed to have its main purpose, and thus, the industrial action in this case must meet the requirements for "justifiableness of the purpose", "industrial action in this case", "industrial action in September 24, 2009", "industrial action in September 8, 2009", and "industrial action in September 16, 2009" through the mediation procedure, and "industrial action in September 29, 2009" were to urge the collective collective bargaining to solve such inconsistency, and thus, it constitutes legitimate and justifiable grounds for each industrial action in this case to be acquitted each of the defendants under Article 20 of the Criminal Act.

4. Judgment of the court below

A. Relevant legal principles

The crime of interference with business under Article 314(1) of the Criminal Act is established when a person interferes with another’s business by deceptive means or by force, and the term “defensive force” means any force that may cause confusion with another’s free will. As an industrial action under Article 2 subparag. 6 of the Trade Union and Labor Relations Adjustment Act, a strike, an occupation, etc. is not merely an omission of refusing to provide labor pursuant to a labor contract, but is an actual exercise of power to collectively suspend the provision of labor to accomplish the worker’s assertion by imposing pressure on the employer. As such, the elements constituting force as referred to in

However, since workers have the right to independent association, collective bargaining, and collective action to improve working conditions as a fundamental right guaranteed by the Constitution in principle pursuant to Article 33(1) of the Constitution, it is reasonable to view that the refusal of collective labor constitutes the crime of interference with business as an act of strike, etc., not always deemed the crime of interference with business. It is reasonable to deem that the collective refusal of labor constitutes force and constitutes the crime of interference with business only when it can be evaluated that the employer’s free will to continue business may cause serious confusion or enormous damage to the employer’s business operation by taking place at a time unforeseeable by the employer in light of the situation and circumstances before and after the strike, etc. (see Supreme Court en banc Decision 2007Do482, Mar. 17, 201).

Furthermore, in the case of an ordinary industrial action, where there is a process of collective bargaining and there is a disagreement in opinion, a trade union has caused industrial action through a series of procedures, such as undergoing mediation procedures and undergoing a vote for and against the industrial action, as prescribed by the Trade Union and Labor Relations Adjustment Act. As such, if a trade union has undergone the process of being presented by the trade union and Labor Relations Adjustment Act, an employer is obligated to sufficiently anticipate the exercise of the right to collective action guaranteed by the Constitution and obtain the results of such strike. Thus, an industrial action which goes through such a process cannot be deemed to have been conducted in a prior way. However, there is a question as to whether an industrial action caused by collective refusal of labor such as a strike has a procedural defect, or if an industrial action is conducted for the purpose of management right of the employer, it is reasonable to consider that the right to collective action of workers is guaranteed under the Constitution. In light of the fact that an industrial action such as a strike is conducted as a fundamental right, i.e., a series of industrial action that goes through a series of management rights of the employer, even if there is no room to deny the purpose of collective action.

In other words, first of all, the issue of whether there is any defect in the procedure of the industrial action, such as whether there is a difference in the vote for the pro and cons of the industrial action or whether the quorum is met, shall be judged by the court ex post facto. At the time the industrial action is commenced

It is difficult to recognize that the industrial action was not justifiable because it is difficult to judge whether the industrial action was an act of interference with business, and in this situation, it would result in serious infringement of the right of collective action of workers under the constitutional guarantee to punish all workers participating in the industrial action as an act of interference with business on the ground that any defects in the procedure of the industrial action were found after the ex post evaluation.

Next, even in the case of a strike aimed at the management right of a user, the collective bargaining does not constitute a case where there is a procedural defect in the process of a strike in that the purpose of the collective bargaining is not to create autonomous negotiations between the labor and the management for the improvement of the working conditions. However, as seen earlier, it is distinguished from the case of a pure political strike, as seen earlier, and such "management conflict conflict strike" is most closely related to the alteration of the working conditions, and therefore, generally, it is difficult to distinguish not only the matters concerning the management right but also the matters concerning the improvement of the working conditions as well as the matters concerning the improvement of the working conditions, but also the main purpose of the industrial action is to distinguish. Thus, if a strike with such a purpose is related to the working conditions, the scale or form of employment, dismissal, etc. of workers, the industrial action related thereto can be expected to some extent.

In addition, “a serious loss” means only a loss caused by an industrial action, which was conducted by an employer at a time unpredictable by the employer, and does not include a loss caused by the nature of the workplace. Thus, even if a serious result, such as a serious loss or serious confusion caused by an industrial action by means of collective labor supply, etc., is not caused by “abstinity,” if the significant result is not caused by “abstinity,” the refusal of collective labor supply constitutes a force, and thus, the crime of interference with business cannot be established.

We examine whether each industrial action of this case satisfies the elements of the crime of interference with business in consideration of the above legal principle.

B. Industrial actions on June 24, 2009

(3) On April 1, 2006, the term of validity of a collective agreement concluded on April 1, 2008, 200 to the 20th 1st 2nd 5th m2nd mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar.

Article 2-1 of the Labor Relations Adjustment Act provides that an industrial action shall take place by encouraging members of the Daejeon Deputy Motor Vehicle Transportation Agency to operate the train in accordance with the above "Guidelines for Safety Operation" as stated in paragraph 2-1-2-2-2-2-1-2-2-2-2-2-2-2-1-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-3-2-2-3-2-2-2-3-2-2-3-2-2-3-2-3-2-3-2-3-2-4-2-3-2-3-2-3-2-3-3-3-3-3-2-4-4-4-3-3-3-3-3-3-3-3-3-2-3-3-3-2-3-3-3-3-4-3-4-3-3-3-2-3-2-3-2-2-3-3-3-3-3-4-

In light of the circumstances, etc., it cannot be deemed that an employer was conducted at an unpredictable time, and thus, it cannot be deemed that it constitutes a force under Article 314 of the Criminal Act.

앞서 든 증거들에 의하여 인정되는 다음과 같은 사정들, 즉 ① 2009. 6. 24. 쟁의행위 이후 위 각 쟁의행위에 이르기까지 철도공사와 철도노조는 단체협약의 체결을 위하여 본교섭 1회(제11차 본교섭), 실무교섭 8회(제7차 내지 제14차 실무교섭) 등을 진행하였으나 단체협약이나 현안사항 등에 대하여 별다른 진척이 없는 상태였던 점, ② 철도노조가 앞서 본 바와 같이 2009. 6.경 철도공사에 3회에 걸쳐 본교섭의 개최를 촉구함에 따라 2009. 7. 20. 약 2달여 만에 제11차 본교섭이 개최되었으나 그 후 또다시 본교섭이 진행되지 아니하자, 철도노조는 2009. 8. 4., 2009. 8. 7., 2009. 8. 18. 및 2009. 9. 1. 등 4회에 걸쳐 철도공사에 본교섭을 조속히 개최할 것을 요구하였으나 철도공사는 을지연습과 본사이전 등의 사정을 들어 본교섭이 어려우니 실무교섭을 통하여 논의하자는 이유로 본교섭에 응하지 아니하였고, 제12차 본교섭은 위 각 쟁의행위 이후인 2009. 9. 20.에야 비로소 개최된 점, ③ 이에 철도노조는 2009. 9. 6. 투쟁명령 1호로 2009. 9. 8. 쟁의행위를, 2009. 9. 14. 투쟁지침 30호로 2009. 9. 16. 쟁의행의를 각 예고하였고, 피고인 이00, 전00, 최00 남OO는 위 공소사실의 요지 제2의 나항 기재와 같이 위 투쟁명령에 따라 2009. 9. 8. 쟁의행위에 참가하였으며, 피고인 이00, 고00, 전00, 최**, 김@@, 김##, 김$$, 김%%, 김&&는 위 공소사실의 요지 제2의 다 항 기재와 같이 위 투쟁지침에 따라 2009. 9. 16. 쟁의행위에 참가하는 등 실제로 쟁의행위에 나아갔는데, 철도공사는 앞서 본 바와 같이 철도노조의 수차례에 걸친 본교섭 촉구에도 불구하고 별다른 이유 없이 이에 응하지 아니하였을 뿐만 아니라 위 투쟁명 명령과 투쟁지침으로 파업이 예고된 상태였던 점에 비추어 보더라도 철도공사로서는 위 각 쟁의행위의 발생을 예상할 수 있었던 것으로 보아야 하는 점, ④ 한편, 구 노동조합 및 노동관계조정법(2006. 12. 30. 법률 제8158호로 개정되기 전의 것) 상 규정되어 있던 필수공익사업장에서의 직권중재제도가 폐지됨에 따라 새로이 규정된 필수공익사업의 필수유지업무제도와 관련하여, 철도노조는 이 사건 각 쟁의행위에 나아가기에 앞서 2009. 9. 2. 철도공사에 필수유지업무자 명단을 통보하고 그 후 파업일정에 따라 명단을 변경하였으며, 위 각 쟁의행위 당시 통보된 명단에 따른 필수유지업무 인원들은 계속 근무를 하였던 것으로 보이는 점, ⑤ 또 2009. 6. 24. 쟁의행위와 마찬가지로 2009. 9. 8. 쟁의행위 및 2009. 9. 16. 쟁의행위의 경우에도 철도공사에 대해 단체협약의 체결을 압박하는 과정에서 이루어진 것으로 앞서 본 바와 같은 이유로 종전에 거친 절차와는 별도의 절차를 거칠 필요가 없다고 보아야 하는 점, ⑥ 2009. 9. 8. 쟁의행위 및 2009. 9. 16. 쟁의행의의 목적은 2009. 6. 24. 쟁의행위와 마찬가지로 단체협약의 갱신 체결, 철도공사의 성실한 교섭촉구를 포함하여 철도공사 선진화반대, 해고자 복직, 고소·고발 및 징계 철회, 손해배상소송 철회, 신입사원 임금삭감 및 연봉제 도입 반대 등으로 보이는데, 앞서 본 바와 같이 이와 같은 사항들은 근로조건의 유지·개선과 밀접한 관련이 있다고 보아야 하는 점 등을 종합하면, 2009. 9. 8. 쟁의행위와 2009. 9. 16. 쟁의 행위는 모두 사용자인 철도공사가 예측할 수 없는 시기에 전격적으로 이루어진 것으로 볼 수 없고, 비록 위 각 쟁의행위로 인하여 위 공소사실에 기재된 바와 같이 2009. 9. 8. 쟁의행위 당시에는 여객열차 309대, 화물열차 282대의 운행이 중단되었고, 2009. 9. 16. 쟁의행위 당시에는 차량검수 관련 업무 등에 차질이 생겨 상당한 손해가 발생하였다고 하더라도 이는 전국의 철도망을 운영하는 철도공사 사업장 자체의 성격에 기인한 것일 뿐 위 각 쟁의행위가 전격적으로 이루어졌기 때문에 발생한 결과라고 보기 어렵다. 따라서, 2009. 9. 8. 쟁의행위와 2009. 9. 16. 쟁의행위도 형법 제314조 소정의 '위력'에 해당한다고 볼 수 없다.

(d) Industrial actions on November 5, 2009 and industrial actions on November 26, 2009;

The following circumstances acknowledged by the evidence, namely, ① the 12th bargaining for concluding a collective agreement on September 30, 2009 and the 1st wage bargaining for concluding a wage agreement on September 30, 2009, but the 187 collective agreement was declared to have a significant difference between the labor and management on the date of the negotiation. At that time, the 187 collective agreement was just the opinion of the 90 provisions, and the 90 provisions still were inconsistent with the opinion. As to the wage agreement, the KR demanded the return of wages 2.5%, the annual salary system, and the wage peak system for the former employees, and there seems to have been considerable disagreement in view of the position that the KRR could not accept them; ② The KRR was submitted with the consent of the National Labor Relations Commission on October 8, 2009 to the 209 collective agreement and to the 2010-month labor union’s resolution on the request for adjustment of labor disputes from 2009.

조정위원회의 결정에 따라 철도공사와 2009. 10. 16. 제16차 실무교섭 및 2009. 10. 27. 제17차 실무교섭 등 2차례 실무교섭을 진행하였으나 별다른 성과를 거두지 못하였으며, 2009. 10. 21. 열린 제2차 임금교섭 및 2009. 10. 23. 개최된 중앙노동위원회 특별조정회의에서도 합의점을 찾지 못하였고, 결국 2009. 10. 30. 임금교섭이 최종적으로 결렬된 점, ④ 이에 철도노조는 2009. 10. 31. 투쟁명령 3호를 통하여 2009. 11. 5. 쟁의 행위를 예고하였고, 2009. 11. 21. 투쟁지침 39호 및 2009. 11. 25. 투쟁명령 4호를 통하여 2009. 11. 25. 쟁의행위를 예고하였으며, 피고인 이00, 고00, 전00, 최00, 남00, 최**, 김@@, 김##, 김$$, 김%%, 김&&, 전00, 김++, 박**, 강00, 조00, 김~~, 정00, 이%%, 정@@은 위 공소사실의 요지 제2의 라항 기재와 같이 위 투쟁명령 3호에 따라 2009. 11. 5. 쟁의행위에 참가하였고, 피고인 이00, 고00, 전00, 최00, 최**, 김@@, 김 ##, 김$$, 김%%, 김&&, 박00, 김-, 전00, 김++, 박**, 강OO, 조00, 김~~, 정00, 이%%, 정@@은 위 공소사실의 요지 제2의 마항 기재와 같이 위 투쟁지침 39호 및 투쟁명령 4호에 따라 2009. 11. 26. 쟁의행위에 참가한 점, ⑤ 위 각 쟁의행위 당시에도 필수유지업무자로 지정된 인원들은 위 각 쟁의행위에 참가하지 않은 채 계속 근무를 하였던 것으로 보이는 점, ⑥ 2009. 11. 5. 쟁의행위 및 2009. 11. 26. 쟁의행위의 목적도 2009년도 임금교섭 당시의 쟁점이었던 임금삭감 반대, 전직원 연봉제 및 임금피크제 반대 등이 추가된 것 외에는 앞서 본 각 쟁의행위의 목적과 크게 다르지 아니하여 근로조건의 유지·개선과 직·간접적으로 관련된 사항으로써 사용자가 전혀 처분권을 가질 수 없는 정치적 목적의 파업 등과는 그 성질을 달리한다고 보아야 하는 점 등을 종합하면, 2009. 11. 5. 쟁의행위 및 2009. 11. 26. 쟁의행위는 단체협약 및 2009년 임금교섭을 위한 협상이 결렬된 후 노동조합 및 노동관계조정법이 정하는 절차를 거쳐 이루어진 통상의 쟁의행위로 봄이 상당하고 이와 달리 철도공사가 예측할 수 없는 시기에 전격적으로 이루어진 것이라 평가하기 어려우며, 비록 위 각 쟁의행위로 인하여 여객열차 및 화물열차의 운행이 중단됨으로써 상당한 손해가 발생하였더라도 이는 앞서 본 바와 같은 이유로 사업장 자체의 성격에 기인한 것으로 보아야 한다. 따라

In addition, the industrial action on November 5, 2009 and the industrial action on November 26, 2009 cannot be deemed to fall under the “defluence” prescribed in Article 314.

E. Sub-committee

Therefore, each of the industrial actions in this case is an industrial action conducted through a procedure scheduled by the Trade Union and Labor Relations Adjustment Act in a state that disagreements between labor and management in collective agreement and wage negotiations have not been resolved through negotiations. In light of the fact that the industrial action was refused to provide passive labor and did not use violent means, and that the time, method, place, etc. of the industrial action prior to each of the industrial actions in this case was pre-determined in advance. As seen above, unless the industrial action includes matters concerning management rights such as restructuring, etc. in addition to the purpose of the industrial action in this case, it can be concluded that the industrial action as an employer could have sufficiently predicted the occurrence of each of the industrial actions in this case as long as the industrial action includes matters concerning management rights such as restructuring, etc. in addition to the matters concerning the purpose of the industrial action in this case, it cannot be concluded that the industrial action in this case constitutes a threat of free will of the employer. In addition, even if considerable damages have occurred due to each of the industrial actions in this case, it is limited to the nature of the workplace itself, and it cannot be viewed that the industrial action in this case.

Therefore, since the facts charged in this case constitute a case where there is no proof of crime, each of the defendants must be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the judgment of the court below that the illegality of each of the industrial actions in this case constitutes a justifiable act under Article 20 of the Criminal Act on the premise that each of the industrial actions in this case constitutes an element of the crime of interference with business, is unlawful, but its conclusion is just, and it does not affect the conclusion of the judgment.

5. Conclusion

Therefore, since each appeal against the Defendants by the prosecutor is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Gung-jin

Judges Kang Young-young