2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

10. J

11. K;

12. L.

13. M;

14, N

15,00

16. P;

Q. Q.

18. R

19. S;

20. Telecommunication

21. U;

22. V

1. On June 24, 2009, the Korea Railroad Corporation (hereinafter “KRA”), which is a trade union consisting of employees of Defendant A and Defendant C, for the main axiss, claimed that the NAA, in the presence of 2,500 members belonging to the 2,500 members at the 25th square of Seoul Station on April 25, 2009, “the public enterprise’s opposition to the advancement, 5,115 personnel reduction and welfare reduction, and the preparation of the basic measures for the Incheon Airport Railroad, public enterprise governance, democratization of corporate structure of public enterprise, compensation for damages, and labor union and accusation.”

On June 17, 2009, Y of the Central Committee for Countermeasures against Railroad Labor Relations shall, in order to accomplish the above arguments, drive a member working on board a vehicle in accordance with the Guidelines 11 for Countermeasures against the Central Committee for Countermeasures against Railroad Labor Relations, taking into account the safety of transportation personnel when entering the facility as much as possible. The transportation personnel cooperate with the examination of the regulations and regulations of the tallyman. They shall comply with various restricted speed. They shall thoroughly conduct the operation test. They shall maintain the entrance speed at the safe speed at all times. They shall conduct the entry and exchange thoroughly as the regulations. They shall carry out the entry and exchange thoroughly. They shall not go beyond or go against. The vehicle members shall not be able to safely examine according to the regulations.

At around 04:30 on June 24, 2009, Defendant A and the Director of the Organization Bureau, the head of the Local Headquarters for Railroad Labor Management in accordance with the "Guidelines for Safe Operation Practice and Guidelines for Safe Operation", Defendant C, the Director of the Organization Bureau of the Korean National Railroad, followed the softet with the content of 'cafeteria foreignization of restaurant', the opposition, the prevention of railroad extinguishment, the strengthening of public railroads, the dismissal, the direct return of the dismissal, the curtailment of the labor union pressure, the chain of the regular union platform platform, etc. by using the free electricity, cell phone text messages, etc. or directly boarding the train from around 07:00 on the same day, instructed AB and AC of the transportation of the vehicle office of the ZJ and the transportation of the train, which caused the transportation of the train, to stop the normal operation and delayed the operation.

On the basis of the high-level decision or management judgment of the management entity, such as the prevention of railroad fighting, strengthening of public railroads, dismissal from office, etc., it is a matter of management right, and it shall not engage in strike, occupation, etc. to prevent it.

Nevertheless, from June 24, 2009 to June 24, 2009 to 07:00, the members AB, and AC, which caused transportation of the vehicle office of the Z Chief, had 7 trains start from the discharge from the launch station for 11 to 56 minutes by obstructing the normal operation of trains in accordance with the "Guidelines for Safe Operation and Safety Operation". Accordingly, the Defendants interfered with the normal transportation of passengers and freight in the railway construction, in collusion with AB, AB, AC, which caused transportation of the Central Committee for Countermeasures against Railroad Disaster, and AC, and by force, interfered with the normal transportation of passengers and freight of the railway construction.

2. Interference with the affairs of Defendant A, C, D, and E on September 8, 2009

The advanced policies of public enterprises, such as the reduction of the number of regular staff of the railroad construction, the 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 in order to accomplish such claims, as matters belonging to the unique rights area of the management unrelated to the determination of working conditions, such as reinstatement of dismissed persons, reinstatement of complaint, complaint, complaint, withdrawal of disciplinary action, withdrawal of lawsuit for 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 with such argument.

Nevertheless, on September 8, 2009, the Defendants urged 249 drivers belonging to the 2nd local headquarters to participate in the 'railroad Workers' Resolution Meeting held at the Do square for the Do square for the 2nd National Railroad. On September 8, 2009, 1,440 members including 249 drivers belonging to the 2nd local headquarters participated in the 'railroad Workers' Resolution Meeting' which is held at the Do square for the 2nd local headquarters, without going through the procedure for the adjustment of the union members and the Labor Relations Commission, and without going through the procedure for the adjustment of the union members, etc., the Defendants refused the 20th 2nd 20th 2nd 15th 200 to participate in the 'railroad Workers' Resolution Meeting' which is held at the Do square for the 2nd 2nd 2nd 2nd 2nd 15th 2009.In collusion, the Defendants rejected the 20th 20th 2nd 3rd 10th m.

3. Interference with duties on September 16, 2009 by Defendant A, Defendant C, Defendant F, Defendant G, Defendant H, Defendant I, Defendant J, and Defendant K

The advanced policies of public enterprises, such as the reduction of the number of regular staff of the railroad construction, the 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 in order to accomplish such arguments as belonging to the unique rights area of the management that is irrelevant to the determination of working conditions, such as reinstatement of dismissed persons, reinstatement of complaint, complaint, complaint, withdrawal of disciplinary action, withdrawal of lawsuit for compensation for damages, etc., and shall not engage in a strike to secure and maintain proper human resources and maintain personnel including the counterclaim to the amendment of the union of the union of the railroad labor union, and the single cooperation concerning the consultation on reduction

Nevertheless, around 09:30 on September 16, 2009, the Defendants: (a) held a general meeting of the members of the Z branch of the Z; (b) held a meeting of the Z branch of the Z; (c) withdrawn from the reduction of the prescribed number of members; (d) the opposition to the acquisition of Incheon Airport Railroad; (e) the opposition to the introduction of the wage reduction and annual salary system for new business personnel; (d) the opposition to the externalization of a restaurant; (e) the opposition to the filing of a complaint, accusation, complaint, and loss; and (d) the withdrawal of dismissal; and (e) ordered the members of the Z regional headquarters and the Z Maintenance Regional Headquarters to refuse to provide labor; (e) 1,750 railroad union members including 446 drivers of the Z branch of the Z branch of the Z branch of the Z branch of the Z branch of the Z branch of the Z branch of the Z branch of the Korea Railroad Corporation; and (e) refused to provide labor and labor by the members from September 16 to 370 days.

4. Defendant A, Defendant C, Defendant C, Defendant D, Defendant E, Defendant F, Defendant G, Defendant H, Defendant J. Defendant K, Defendant N, Defendant0, Defendant P, Defendant P, Defendant Q. The policy for the promotion of public enterprises and the takeover of airport railroads, etc., such as withdrawal of the full number reduction of railroad construction for business obstruction from November 5, 2009 to June 2009, based on the management body’s high-level decision or management decision, fall under the management right, and the restoration of dismissed persons, Defendant C, Defendant D, Defendant E, Defendant F, Defendant H, Defendant H, Defendant I, Defendant I, and Defendant R, Defendant T, Defendant T, Defendant U, and Defendant V’s acquisition of public enterprises, such as withdrawal of the full number reduction of railroad construction for business obstruction from November 5, 209 to June 6, 2009. The provisions pertaining to the collective agreement on the reduction of the full number of workers, which belong to the inherent right area of a manager irrelevant to the determination of working conditions, shall not engage in strike to achieve this.

Nevertheless, on November 5, 2009, 3,81 members of a regional railroad labor union outside the Seoul Metropolitan area participated in the strike process held in the major discharge plaza, Busan Station plaza, Permanent Railroad Station plaza, Y Station plaza, and Dong Sea Area plaza on November 5, 2009 (the defendants were 14:00 on November 5, 2009 to 16:00, and 1,300 members of the regional headquarters and the Z Improvement Chang local headquarters from 7:0, to 16:00, the number of members of the regional railroad labor union 2,986 members of the regional railroad labor union from 0: the number of members of the regional railroad labor union 2,90 and the number of members of the regional railroad labor union from 0: the number of members of the regional railroad labor union 2,98 and the number of members of the public railroad labor union from 100 to 15:0,000, the number of members of the public railroad labor union 2,500, etc.

As a result, Defendants conspired with Y and 6,790 members of the National Committee for Countermeasures against Railroad Labor-Management Disputes, and interfered with the transportation of passengers and freight by force.

5. Defendants A, B, C, Defendant D, Defendant F, Defendant G, Defendant H, Defendant J, Defendant K, Defendant M, Defendant M, Defendant M, Defendant M, Defendant N, Defendant P, Defendant Q, Defendant R, Defendant C, Defendant T, Defendant T, U, U, and Defendant VI on November 26 through December 3, 2009 on the basis of high-level decision-making or management decision-making by the managing body, including the reduction of the number of personnel of obstruction railroads, etc., and the acquisition of public enterprises, such as the reduction of the number of personnel, etc. from November 26, 2009 to December 3, 2009, the management rights fall under the management rights of the managing body, reinstatement of dismissed persons, accusation and disciplinary action, withdrawal of damages lawsuit, which falls under the inherent scope of management rights, which are irrelevant to the determination of working conditions, and the maintenance of adequate human resources consultation including the assertion that the collective agreement under Article 10 of the Railroad Labor Relations does not conflict with the provisions on the reduction of the number of employees.

Nevertheless, on November 26, 2009, more than 11,70 members of the Korean Railroad Union participated in the strike held in the Seoul Station square, the discharge plaza, the Busan Station square, the Net Station square, and the Dong Sea Area square on November 26, 2009 (the defendants from November 26, 2010 to 16:00, up to 17:00 members of the Korean Railroad Labor Relations Headquarters and the Z Improvement Project Headquarters, from 13:00 to 16:00, the number of members of the Korean Railroad would be 1,50 members of the Korean Railroad Relations Committee, and the number of members of the Korean Railroad would be 1,50, and the number of the members of the Korean Railroad would be 1,000 members of the Korean Railroad Relations Committee from 20:00 to 3:00, the number of members of the Korean Railroad Disaster Disaster and the number of the members of the Korean Railroad Disaster Disaster to 9:5:00, the number of the members of the Korean Railroad Disaster Disaster Disaster to 200.

II. Judgment.

1. In a case where it is deemed that a prosecutor voluntarily exercised his/her authority to institute a public prosecution and gives substantial disadvantage to the defendant, thereby significantly deviating from the discretionary power of the prosecution, the effect of the prosecution can be denied by deeming the abuse of the authority to institute a public prosecution (see, e.g., Supreme Court Decision 2004Do482, Apr. 27, 2004).

According to these legal principles, the defense counsel asserts that the indictment of this case was made for political purposes and is a significant deviation from the power of discretion. However, if overall circumstances before and after the prosecution of this case were instituted, the contents of prosecution and evidence relations are examined overall, it cannot be viewed as a substantial deviation from the power of discretion of prosecution.

Therefore, this part of the defense counsel's assertion is rejected.

2. As to interference with the business of Defendant A and Defendant C on June 6, 2009 (the strike for safety operation)

(a) Whether an act constitutes a strike for compliance;

(i) the definition, mode, and problems of the law-abiding strike;

According to Article 2 subparagraph 6 of the Trade Union and Labor Relations Adjustment Act (hereinafter referred to as the "Trade Union and Labor Relations Adjustment Act"), an "industrial action" means an action or counter-action that interferes with the normal operation of business, such as a strike, preparedness, lock-out, lock-out, and other activities that the parties to labor relations intend to accomplish their claims."

A law-abiding strike refers to collective action that aims to give an employer a warning of the exercise of an essential economic pressure prior to an industrial action, or to establish a compliance order in order to demonstration the power of unity. This is likely to be understood as an industrial action in the sense that the purpose is to accomplish the employer's assertion against the employer and that the work is operated in a way different from ordinary times against the employer's will.

The law-abiding strike is divided into the so-called ‘safety strike' that indirectly generates the effect of business interference by organizing the strict compliance of the laws and regulations and the work rules related to safety, and the so-called ‘rights strike' that refers to collective exercise of rights such as commuting to and from work, taking leave, and refusing to work outside time.

If a law-abiding strike constitutes an industrial action, the Trade Union and Labor Relations Adjustment Act should bear civil and criminal liability as long as it does not meet the legitimacy of the purpose, procedure, and method required for the industrial action. On the other hand, if an industrial action is not an industrial action, it may escape from the burden due to the aforementioned legal demand.

The facts charged as to obstruction of business on June 24, 2009 constitute the case of the so-called ‘safety strike’ among the so-called conceptual classification. On the premise that such a safety strike falls under an industrial action, the prosecutor rateed the Defendants to the crime of interference with business on the ground that the Defendants did not meet the legitimacy of the industrial action. However, there is a theoretical conflict as to whether the safety strike falls under an industrial action, and the examination of it is below.

2) As to whether a strike in compliance with the doctrine ought to be seen as an industrial action, it should be based on whether it impedes the normal operation of the business, and as to what meaning the "normal operation", it is presented on the basis of the ordinary operation of the business and the ordinary operation of the law. The ordinary theory of fact is a view that the actual operation of the business should be based on the actual operation of the business, and it is deemed that the collective refusal of the operation of the business, which has been usual, constitutes an industrial action regardless of the legitimacy of the operation of the business.

As a view that the legal evaluation should be based on the normal operation evaluation criteria, it is concluded that the refusal of legitimate operation of the business which has been normally harmed constitutes an industrial action, but it does not interfere with the normal operation of the business. Therefore, it is not an industrial action.

3) The attitude between the Supreme Court and the Constitutional Court

The Supreme Court has recognized a law-abiding strike as an industrial action in the position of the fact-finding theory that the ‘normal business', which is the object of industrial action, is not limited to ‘legal business', but also includes ‘business that has continued in practice' or ‘business that has been operated in the ordinary era of business'.However, the attitude of the law-abiding strike that is being observed in the case, is the form of the law-abiding strike that falls under the large-scale right strike, and there is no specific precedent as to the safety strike.

As a precedent related to the safety strike, the case where the labor union of the taxi company controlled the taxi commission in a fixed amount by self-regulation of illegal operation (see, e.g., Supreme Court Decision 91Nu636, Dec. 10, 191) and also the case where the labor union of the taxi company did not control the taxi commission while carrying out compliance operations (see, e.g., Supreme Court Decision 98Da34331, May 26, 2000). However, in the case of the former, the control over the taxi commission is difficult to be considered as pure safety speculation, and in the latter case, it is difficult to view that the issue is not justifiable for the law-abiding strike, but is justifiable for the lock-out, and thus, it is difficult to view it as an explicit precedent regarding the safety strike.

Furthermore, the latter precedent denied the legitimacy of the lock-out.

On the other hand, with regard to the above attitude of the Supreme Court, the Constitutional Court ruled that the industrial action, such as refusal of overtime work, temporary absence, and collective leave, which has the character as an exercise of workers' rights, can be immediately subject to criminal punishment (see, e.g., Supreme Court Decision 91Do326, Nov. 8, 191; 91Do326, Feb. 27, 1996; 95Do2970, May 10, 196; 96Do419, May 10; 96Do419, etc.) by expanding the scope of criminal punishment excessively, which results in de facto suppressing the exercise of workers' right to collective action, and thus, it is hard to affirm that the judgment of legitimacy of industrial action is unconstitutional because it does not conform with the purport of guaranteeing workers' right to collective action, and thus, it is difficult to determine the illegality of the existing industrial action as an employee under the influence of workers' right to engage in industrial action from the standpoint of the law.

4) Since it is irrelevant to determining the instant case in the case of the evaluation of the doctrine and the case of the right strike in the position of this court, the determination is omitted, and the position of this court is expressed as to whether an industrial action in the safety strike is in place.

First of all, since it is doubtful whether the task protected by the law can be deemed to be a work worthy of protection in the event of punishment for a strike for safety as an industrial action, there is a problem of excessive punishment. If the daily working system violates the safety regulations, and is illegal or unjust in disregarding the safety of workers, passengers, etc., workers are not obliged to work under such a system, and the normal state is restored by the safety strike, and the safety strike will not be recognized as an industrial action.

In other words, this Court takes the position of the ordinary legal theory in principle among the ordinary legal theory and the ordinary legal theory. The protection of affairs without any legal value by law is contrary to the duty of the court, which is the head of the law.4) However, in a case where the observance of the safety regulations intending to take place is considerably beyond the objectively required level of the relevant provision, or where the law and regulations that are observed should be regarded as being objectively and objectively stipulated, even if the ordinary repeated business is possessed in violation of the regulations, it cannot be said that there is no value to protect the interests of the employer derived from the ordinary repeated business, and in this case, it cannot be evaluated as an industrial action even if the safety strike is conducted.

In other words, it should not be considered that all of the strikes do not constitute an industrial action, and the issue of industrial action should be judged differently in accordance with the specific form of the strike for safety.

B. Determination of facts charged

1) The specific form of the strike for safe operation of the instant case recognized by the record

A) The provisions of the 'Rules on Handling Railroad Operations' and the 'Rules on Handling Railroad Operations' are as follows, which should be observed at the time of entering the train(5).

(1) Upon receipt of a notice from the station of transport service and the head of the passenger train that the engine is released to connect the engine to the passenger train, ② In the absence of any error, the carrier shall consult orally or wirelessly with the engine and any cable to check in advance the conditions of the tracks to be loaded, ④ notify the signal board of the sign of the sign of the sign of the sign of the sign of the sign of the signal board (on a green/def), ⑤ confirm the sign of the transport board and the serial number of the track number are legitimate; 6) proceed with the sign of the sign of the sign of the signal board of the carrier to move to the engine, and 7) proceed with the call of the signal board of the mobile line and the radio line of the carrier “0-line sign of the sign of the sign of the sign, access,” along with the radio line of the radio line of the “00-line sign of the sign of the sign of the carrier” or at night.

B) According to Defendant C’s legal statement and the purport of the entire oral argument, the Defendants continued to repay heat loans in a size different from that of the method of conducting the business of returning heat loans at ordinary times (hereinafter referred to as “the 'safety operation strike’). This means that the Defendants, among the above matters to be observed, failed to provide a number of calls corresponding to 8. In short, unlike the above matters to be observed, prior to the instant case, the Defendants, at the time of the instant safety operation strike, continued to obtain heat loans by the method of sub-paragraph (a) rather than the radio code, rather than the radio code.

C) It is true that the operation of trains is somewhat delayed due to such a strike for safe operation, resulting in inconvenience for passengers.

D) On July 2009, after the occurrence of the instant case, the amendment of the regulations on the handling of driving was introduced only with the radio code and the radio code and the sign of entrance of the driver and the engineer without the guidance of the transportation source in some sections.

E) According to the overall purport of the BF’s legal statement and argument, a person in charge of labor, who is the complainant of the Railroad Corporation, the Defendants had already been aware of the scheduled amendment of the Operational Handling Regulations at the time of the instant strike for safe operation. On the other hand, Defendant C asserts that the above amendment of the Operational Handling Rules was the response of the employer to cope with the safety threat of the union and union, including the Defendants.

B) Determination

Before the start-up of the instant period for safe operation, the entry into a radio frequency has been generally taking place, and accordingly, it seems that there was no particular problem. Even if according to the Defendant A and C’s statements made by investigation agencies, the fact that the train was proceeding with the radio frequency alone, in the event that the train does not seem to be end, is recognized. As long as it cannot be deemed more difficult to exchange a short train compared with the longer train, there is no reason to raise the number of short trains. Moreover, the fact that the entry into a radio frequency under the latter radio frequency has acquired normative value by amending the regulations on safe operation of the train. In addition, it is reasonable to deem that the Defendants interfered with the normal operation of the employer by ensuring that the safety regulations that have already been stipulated in order to achieve their purpose of the instant dispute are followed. Therefore, the instant period for safe operation of the train is reasonable.

C. In order for an industrial action to become a justifiable act under the Criminal Act, the following conditions should be met: first, the subject of the industrial action shall be a person eligible to be the subject of collective bargaining; second, the purpose of the industrial action shall be to create autonomous negotiations between labor and management for the purpose of improving working conditions; third, the industrial action shall commence when the employer refuses to conduct collective bargaining with respect to specific demands to improve working conditions of the workers; however, unless there are special circumstances, the agreement of the union members and the report of the occurrence of labor disputes shall be followed; fourth, the means and method shall be in harmony with the employer's property rights and shall not constitute violence (see, e.g., Supreme Court Decision 98Do99, May 12, 2000). Since the purpose and procedure are lacking in legitimacy, a prosecutor's assertion regarding the industrial action of this case shall be examined below.

B. Whether the objective is justifiable

1) Requirements to ensure the legitimacy of the purpose of industrial action

A) The purpose of an industrial action is to maintain and improve working conditions is to create autonomous negotiations between labor and management to improve working conditions. This means that the requirements to be achieved by the industrial action should be subject to collective bargaining (see, e.g., Supreme Court Decision 94Da4042, Sept. 30, 1994; 94Da4042, Sept. 30, 199). In other words, the purpose of an industrial action is to maintain and improve working conditions, such as wages, working hours, welfare, dismissal, and other treatment.

As to this point, the Supreme Court considers that the issue of whether to implement corporate restructuring, such as layoff or corporate merger, belongs to a high-level managerial decision by a management body, which, in principle, cannot be subject to 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 reasonable reason, the industrial action cannot be justified even if it inevitably entails changes in the status of workers or working conditions (see, e.g., Supreme Court Decisions 9Do5380, Feb. 26, 2002; 9Do5380, etc.).

However, for the following reasons, this Court seems to be difficult to comply with the requirements that can be generally applied to determine the illegal purpose of industrial action, which belongs to the above-mentioned business decisions presented by the Supreme Court.

First, it is not easy to find boundaries between the matters belonging to the management matters and the matters that are not, and it cannot be said that the traditional labor management matters, such as wages, are not management matters.

Second, if the Constitution and the Trade Union and Labor Relations Adjustment Act stipulating the purpose or matters of collective bargaining and industrial action, Article 33 of the Constitution provides that workers shall have the right to collective bargaining and collective action in order to improve the working conditions, and Article 1 of the Trade Union and Labor Relations Adjustment Act (hereinafter referred to as the "Trade Union and Labor Relations Adjustment Act") provides that the purpose of this Act is to maintain and improve the working conditions and to enhance the economic and social status of workers, and that Article 2 subparagraph 5 of the Trade Union and Labor Relations Adjustment Act defines labor disputes as disputes arising out of the "incompetences with the determination of the working conditions, such as wages, working hours, welfare, dismissal, and other treatment." In addition, Article 29 of the Trade Union and Labor Relations Adjustment Act provides that the representative of a trade union has the authority to negotiate with an employer or employers' association and to conclude a collective agreement on behalf of the trade union or union members, Article 47 of the Trade Union and Labor Relations Adjustment Act does not prevent the parties from determining working conditions and other matters concerning the labor relations through direct labor-management

In full view of these provisions, collective bargaining targets include ① “matters concerning the determination of working conditions” and ② other matters concerning labor relations that affect the determination of working conditions, such as the procedures, methods, and conclusion of collective agreements, necessary for the improvement of workers’ economic and social status.”

Therefore, if it is faithful to the provisions of the law, it is reasonable to view that the employer should be the object of collective bargaining if it is a matter that affects the economic and social status of workers and the employer has the right of disposition, and if it is prohibited without any reasonable reason, it cannot be viewed as a legitimate interpretation as an interpretation that undermines consistency.

Third, in light of the fact that the Korean Constitution has the right to collective bargaining and collective action as constitutional right, and that the right to collective action for the maintenance and improvement of working conditions is generally permitted under the legal system, industrial actions need to be protected as much as possible. Moreover, in order to determine the legitimacy of industrial actions as a matter of course under the current case law, which punish illegal industrial actions as the crime of interference with business, there is a need to strictly apply criminal public interest in determining the legitimacy of industrial actions.However, if an industrial action is punished for its purpose by establishing an ambiguous concept of "an ancient-do business decision" without any clear legal basis, it would prejudice the principle of clarity under criminal law.

Although the Supreme Court prohibits and punish industrial actions aimed at matters belonging to a high-level managerial decision, there is no clear standard to determine matters belonging to a high-level managerial decision, and there is no provision on the legal basis. The Supreme Court is a ground for prohibiting industrial actions with respect to matters belonging to a high-level managerial decision, Article 31 of the Labor Standards Act provides strict requirements for layoffs due to restructuring, etc., which requires prior consultation with workers. The effect of Article 31 of the Labor Standards Act provides that judicial review is open, and the Act on the Promotion of Workers’ Participation and Cooperation is institutionalized to consult with workers and workers in a broad area including administrative matters (see Supreme Court Decision 2002Do725, Jul. 22, 2003). However, all administrative matters are not provided as a means to protect workers, such as Article 31 of the Labor Standards Act.

Therefore, in principle, if industrial action aims to maintain and improve working conditions, such as wages, working hours, welfare, dismissal, and other treatment, all of them are deemed justifiable. In addition, if such position is contrary to the existing Supreme Court precedents, it is intended to request inventory of the position of the precedents.8)

B) Determination based on the main purpose should be made

On the other hand, if there are many purposes pursuing industrial action, and some of them are not legitimate, the legitimacy of the industrial action should be determined by the legitimacy of the main purpose or the genuine purpose, and it should be recognized that the industrial action would not have been conducted if it had been subject to unfair requirements.

In the case of industrial action, the entire industrial action shall be deemed to have no legitimacy (see, e.g., Supreme Court Decision 91Nu5204, Jan. 21, 1992).

As such, the reason for determining the legitimacy of the industrial action based on the main purpose of the industrial action is that, if an industrial action is deemed to have occurred, even if it excludes matters that cannot be the purpose of the industrial action, such as political relief, from the standpoint of the employer, such industrial action could not be avoided. Thus, even if the incidental purpose is to allow an unfair industrial action, it does not unfairly impose any excessive burden on the employer, and if an industrial action is prohibited solely on the grounds that the incidental purpose is unreasonable, from the standpoint of the worker, it would result in an unfair restriction on the exercise of

2) The main purpose of the strike for safe operation of the instant case

A) The parties’ assertion

(1) Prosecutor's assertion

The prosecutor asserts that the purpose of this case is legitimate because the strike for safe operation of this case was conducted with the object of opposing against the scheme for the extinguishment of the public corporation's vessels with the aim of reducing the number of 5,115 personnel, etc.

(2) Defendants and defense counsel’s assertion

The Defendants and defense counsel asserts that the strike for safe operation of this case was made with the aim of urging the employer to faithfully respond to collective bargaining.

B) Recognized facts

According to the records, the following facts are recognized.

(1) The term of validity of a collective agreement concluded on April 1, 2006 from July 29, 2008 to October 17, 2008, when the Labor Relations Commission applied for collective bargaining in order to renew the collective agreement in 2008 and to conclude a wage agreement, but did not mediate, and the Railroad Labor Relations Commission passed the collective agreement from October 29 to October 31, 2008. The number of union members 25,170, after going through pro-con voting for industrial action from October 29, 2008 to October 31, 2008.

(2) The purpose of the pro and cons of the above votes publicly announced on the Internet homepage of the railroad union is as follows.

If the request for regular collective bargaining is not achieved, such as demand for wages in 2008, request for collective bargaining, reinstatement to the original position of the dismissed, full withdrawal of the plan for movies of the railroads, removal of discrimination against non-regular workers, withdrawal of outsourcing and restructuring, removal of pension disadvantage, strengthening of the public nature of the railroads, etc. However, the method and schedule of industrial action are above the Central Dispute Countermeasures Committee.

(3) On December 11, 2008, the Korea Railroad Corporation and the Korea Railroad Workers’ Unions agreed to the wage agreement only, and the said agreement was resolved by the National Railroad Labor Relations Adjustment Committee and the members’ general meeting, and concluded the wage agreement in 2008. However, the collective agreement was not concluded, and the agreement was concluded to resume negotiations since March 2009.

(4) A railroad union decided to elect a new executive organ Y around February 2, 2009 and agreed on May 12, 2009, with the agreement of December 11, 2008, the consultation on collective bargaining was held on May 12, 2009, and this negotiation was conducted once a week between the railroad construction and the railroad construction, and practical consultation was held twice a week. (5) Accordingly, the first negotiation was conducted on May 5, 2009, and the first negotiation was mainly discussed in collective bargaining between the railroad labor union and the railroad construction was related to the conclusion of the so-called pending issues and the collective agreement, such as the withdrawal of the railroad-fighting policy.

(6) However, the above negotiations did not have access to opinions, and only 10 practical negotiations have been made until June 23, 2009, and the Railroad Trade Union Group, which did not carry out such negotiations, urged to hold this negotiations on June 15, 2009 and on June 22, 2009 of the same month, urged to hold this negotiations on June 17, 2009, and requested to hold this negotiations on June 22, 2009, but the Railroad Corporation did not proceed with such negotiations on June 22, 2009, or did not comply with such demands on the grounds of the president’s overseas business trip, etc.

(7) Accordingly, on June 17, 2009, Y of the Central Committee for Countermeasures against Railroad Labor and Labor Relations shall be driven by considering the safety of transportation personnel when a member on board a train enters the train in accordance with Guidelines 11 of the Central Committee for Countermeasures against Disaster. The Transport Board shall cooperate in the examination of regulations and regulations of the Tallyman. They shall comply with various restricted rates. They shall thoroughly conduct a Dong test. They shall always maintain the entrance speed at the safe speed. They shall thoroughly implement the entry and exit at all times. They shall not be able to go against or against. They shall not be able to go against. The vehicle members shall be tally examined in accordance with the regulations. The vehicle members issued the “Guidelines for Safe Operation and Safety Management.”

(8) On June 24, 2009, at around 04:30 on June 24, 2009, Defendant A and the Director-General of the Organization Bureau, who are the head of the Local Headquarters of the Railroad Labor Relations Coordination Committee, pursuant to the "Guidelines for Practice of Practice of Practice of Regulations and Practice of Safe Operation", the Defendant C, the head of the Organization Bureau of the Z of the Z of AA, recommended members AB and AC to operate the vehicle in accordance with the above "Guidelines Guidelines for Duty of Operation of Regulations and Safety Practice" by using electricity and mobile phone text messages from around 07:00 on the same day.

B) Determination of the main purpose and legitimacy of the strike for safe operation of the instant case

(1) Determination of the Prosecutor’s assertion

First of all, in accordance with the above legal principles, in a case where the matters related to the maintenance and improvement of working conditions are the purpose of industrial action, the legitimacy of the purpose is recognized even if they are related to the management affairs of industrial action.If we look at the premise that the reduction of the prescribed number of workers has a significant impact on the stability of workers' employment, such reduction of the prescribed number of workers is justifiable, and an industrial action aimed at this purpose is justifiable. Moreover, in a case involving the quality of meals used by the public prosecutor, it is related not only to the maintenance and improvement of working conditions, but also to the stability of the dietitians and cooks employed in a restaurant, and thus, it also constitutes a legitimate industrial action purpose as seen above. Accordingly, it cannot be deemed unlawful.

A prosecutor pointed out that a dietitian or cook is a fixed-term worker, and the continuous employment relationship is not recognized unless a labor contract is concluded separately with the railroad construction work, and claims that his dismissal issue cannot be the object of industrial action. However, this is the case where the concept of dismissal is too formally formal and the case where the refusal of an employment contract is regarded as dismissal (see, e.g., Supreme Court Decision 93Da17843, Jan. 11, 1994) can be pointed out in the case where the refusal of an employment contract is regarded as dismissal (see, e.g., Supreme Court Decision 93Da17843, Jan. 11, 1994). Considering that the current employment relationship is not an issue in collective labor relations, the prosecutor’s assertion

In addition, it is insufficient to view the problem of cafeteriaing out of the cafeteria as the main issue in the industrial action by itself, which is the content of the opposition against the cafeteriaing out of the cafeteria at the time of the safety operation of this case, was appeared at the site of the industrial action. Rather, in light of the contents of the documents of the railroad labor union, which was produced before and after the above safety operation movement movement movement movement such as the evidence No. 57 submitted by the defense counsel, it is nothing more than saying that the problem of cafeteriaing out of the cafeteriaing is rarely mentioned, and it is not a main issue. The prosecutor considers that the prosecutor concentratedly discusses the issue of cafeteriaing out of the cafeteria by the facts charged and legal opinion is considered to be on the line of the safety movement and the extension of the cafeteriaing in the Seoul area from May 1, 2009. However, it is difficult to find any evidence consistent with the prosecutor’s view.

(2) Whether the purpose of this case is justifiable in accordance with the standard of judicial precedents

Furthermore, in order to examine what direct purpose of the strike for the safe operation of this case is, it is necessary to examine the progress of collective bargaining. In the collective bargaining process, matters concerning management can also be discussed as a matter of voluntary collective bargaining, and it cannot be deemed that the union was wholly wrong to express its opinion on the management matters in the situation where management participation through the labor-management council is guaranteed under the Act on the Promotion of Workers' Participation and Cooperation. Furthermore, according to the testimony of the AF of the Korea Railroad, it is recognized that the labor-management council is not separately opened during the collective bargaining period, and the agenda to be discussed at the labor-management council is also discussed through collective bargaining. In light of this, even if the labor-management union expressed certain requirements prior to the arrival of the industrial action, it should be noted that it might not have any relationship with the purpose of the industrial action.

On the other hand, it is more unusual that the labor union does not have any voice on matters directly affecting the employment stability of workers, such as the reduction of the number of workers. Therefore, even if the labor union simply expresses its external opinion on such matters, it should not be directly connected to the purpose of the industrial action, and the conclusion should be paid by examining the situation before and after the industrial action.

In other words, as seen in the above facts, even if there are various requirements corresponding to the management matters of various documents issued in the railroad labor union, it is reasonable to deem that the issues to be discussed with the employer through collective bargaining concurrently with the labor-management council or that the political goal in a large framework was created, it should not be regarded as the main purpose of the strike for safe operation of this case.

In detail, the collective agreement was not yet concluded at the time of the instant collective safety resolution, and on November 3, 2008, there were 100 or more agenda items that were not agreed in the collective bargaining process until the time of the mediation decision of the National Labor Relations Commission until November 3, 2008 (the letter of mediation by the National Labor Relations Commission, No. 1). Accordingly, the main purpose of the collective bargaining was to conclude the collective agreement, the fact that the main purpose of the collective bargaining was to the construction work, the fact that the railroad labor union did not faithfully comply with the collective bargaining, and the fact that the railroad labor union began to faithfully respond to the collective bargaining, taking into account the fact that the main purpose of the collective safety resolution in the instant case was to urge the employer to faithfully engage in the collective bargaining.

Article 81 subparag. 3 of the Trade Union and Labor Relations Adjustment Act provides that an employer may not refuse or neglect the conclusion of a collective agreement and other collective bargaining with the representative of a trade union or a person delegated by a trade union without justifiable grounds. If an employer refuses or neglects a worker’s demand to conclude a collective agreement without justifiable grounds, if the employer selects an industrial action for the purpose of demanding the worker to respond to collective bargaining, the employer shall not be deemed to have fulfilled the legitimacy of that purpose (see, e.g., Supreme Court Decision 90Nu406, May 14, 19

If a large target, such as the opposition to the plan for the advancement of public enterprises, as pointed out by a prosecutor, is the main purpose of the strike for the safe operation of this case, such industrial action is difficult to understand that it has been terminated as one day. It can be recognized that the same content as the opposition to the advancement of public enterprises in the collective bargaining process has been discussed, and as a result, it can be seen that the goal of industrial action that calls for sincere collective bargaining leads to the opposite to the advancement of public enterprises in the collective bargaining process. However, it is also necessary to pay attention to the fact that the industrial action is another problem that can be regarded as the main purpose of industrial action. In other words, in determining the main purpose of industrial action, if the industrial action is excluded from illegal purpose, it is recognized that the industrial action did not proceed. Even if the opposing purpose of the plan for the advancement of public enterprises was excluded, it is reasonable to view that there was a high probability that the industrial action was in progress, as long as the industrial action had been in the opposite position

Therefore, it can be said that the strike for safe operation of this case has the legitimacy of the purpose.

C. Whether procedural legitimacy exists

1) Parties to labor relations in the procedure for commencing an industrial action, which is legally required, shall undergo the procedure of mediation prior to entering the industrial action (Article 45(2) of the Trade Union and Labor Relations Adjustment Act), and shall not conduct it unless the decision is made with the consent of a majority of the union members by a direct, secret, and unsigned vote (hereinafter referred to as “the procedure for commencing an industrial action” including the above adjustment procedure and the supporting

2) The parties’ assertion

A) Defendants and defense counsels’ assertion

The Defendants and defense counsel asserted that, in the course of the strike for the safe operation of the instant case, the strike for the safe operation of the instant case was procedurally lawful, since the strike for the safe operation of the instant case was initiated by the pro-con voting for the industrial action committed between October 29, 2008 and October 31, 2008.

B) Prosecutor’s assertion

In this regard, the prosecutor asserts that most of the issues discussed at the time of the above-mentioned pros and cons voting were resolved after the above-mentioned pro and cons voting, and that the main purpose of the strike for the safe operation of this case was to be newly raised after the above-mentioned pro and cons voting, and the defendants did not go through the vote again in order

4) Determination

In full view of the aforementioned facts and evidence relations, there is insufficient ground to view that the inconsistency between the claim regarding the working conditions of the previous collective agreement at the time of the instant collective agreement is completely resolved, as alleged by the prosecutor.

Even if some issues were added for the purpose of industrial action, if it is required that a separate application for mediation and a separate vote for the dispute should again be made on the new issues while the disagreement on the working conditions at the time of the occurrence of the previous industrial action is not resolved due to a disagreement between the claim on working conditions and the claim on the labor conditions at the time of the occurrence of the previous industrial dispute, it is difficult to take it because it excessively limits the right of collective action guaranteed by the Constitution.

Therefore, even if the Defendants did not take a separate procedure prior to the Defendants’ intervention in the strike for safe operation of the instant case, it cannot be said that the procedural legitimacy was not satisfied.

Even if it is interpreted that it conforms to the purport of the Act to allow the labor union to separately commence a strike for the safe operation of the instant case, if the situation of the dispute has already occurred between the Korea Railroad Corporation and the Korea Railroad Union, as the collective agreement was resumed around May 2009, this negotiation followed the year 2008, as it was confirmed in the record, following the 10th negotiation, and the 2008 negotiations continued by the 7th practical bargaining, and the 2008 negotiations were continued in the collective agreement on matters not agreed in the year 2008, the recognition of the continued state of the dispute is deemed to coincide with the labor union. Therefore, it cannot be deemed that the Defendants were aware that there was no awareness that the Defendants failed to meet the procedural justification requirements, and that there was a considerable reason for such mistake (misunderstanding of the premise of an illegal ground for dismissal).

D. Sub-determination

In full view of the above review, the strike for the safe operation of June 24, 2009 led by Defendant A and C shall be deemed to meet all the justification requirements required by the Trade Union and Labor Relations Adjustment Act, and thus, it shall not be punished as a justifiable act under Article 4 of the same Act and Article 20 of the Criminal Act.

3. As to obstruction of business on September 8, 2009 and on the 16th day of the same month

A. Whether the act of refusing to provide labor can be punished as the crime of interference with business

1) Issues

As long as the Defendants’ acts do not proceed to active violence but merely refuse to provide labor, they cannot be seen as "defensive force, which is the constituent element of the crime of interference with business under the Criminal Act," the Defendants and defense counsels argue that such simple refusal to provide labor should not be punished for the crime of interference with business under the Criminal Act, by constituting a non-performance of civil obligation.

This falls under the issue of whether the industrial action in this case constitutes a constituent element, and it is judged prior to the issue of whether the industrial action in this case can obtain immunity.

2) Determination

The Supreme Court takes the position that the act of refusing simple collective labor supply as a strike is established with the crime of interference with business unless the illegality is excluded as a justifiable act by deeming it as a threat of force. (9) Furthermore, the labor dispute action is "in essence including the elements of interference with business by force, since workers are under pressure due to the division of workers," which includes the elements of interference with business by force.

For the following reasons, it seems that the attitude of judicial precedents should be followed.

An industrial action cannot be denied that it inevitably causes damage to an employer and its intent to suppress an employer’s intent in an indefinite form. Moreover, there is no doubt that an act of refusing to provide labor would result in difficulties in performing duties by an act of refusing to provide labor. It is not punishable as the crime of interference with business, but it is possible to regard that an act of refusing to provide labor as a "act of refusing to provide labor" as a "act of refusing to provide labor, as long as the Supreme Court recognizes the establishment of the crime of interference with business by collectively leaving the workplace or absent from the workplace under mutual communication with one another. It is not a reasonable interpretation. Such interpretation is a limitation on refusing to provide labor. Accordingly, it cannot be said that it goes against the Constitution and the principles of international law that prohibit forced labor.

A defense counsel asserts that the interpretation of the collective nature itself as the expression of crime infringes on the spirit of the Constitution providing the right to collective action. However, as the social law provision cannot be seen as completely replacing the traditional provisions of the Civil Code, and as long as mutual harmony should exist, the interpretation of the social law of the right to collective action cannot be adopted in advance of the order of the Civil Code.

In addition, it is right to regard such collective labor site as an active act rather than a mere suspension of provision of labor. Even in accordance with the opinion of 12 that such collective labor site should be evaluated from the perspective of a non-voluntary omission crime, the status of a guarantor under the labor contract can be recognized for workers, and the collective labor provision suspension act can also be recognized as the behavior of the crime of interference with business. 'the right not to be forced' is not the guarantor status'. It is difficult to agree with the opinion that the worker who has concluded the labor contract is not the guarantor status. It is because the worker already agreed to limit the right to refuse his forced labor, and the status of the guarantor is also set by the contract.

3) Sub-determination

As examined above, this court's refusal to provide labor is also deemed to constitute an element of the crime of interference with business if it was conducted in group in the form of industrial action, i.e., the act of refusal to provide labor.

(b) Whether the objective has been justified or not;

1) The parties' assertion

A) Defendants and defense counsels’ assertion

Defendants and defense counsel argued that the industrial action was conducted for the purpose of urging the collective bargaining in good faith.

B) Prosecutor’s assertion

On the other hand, the prosecutor asserts that the defendants' assertion was conducted to accomplish the requirements that cannot be used as the object of industrial action such as "the opposition to the advancement of public enterprises, such as withdrawal of reduction in the number of regular personnel," "5,15, and actually against the acceptance of airport railroads, the opposition to the acceptance of public enterprises such as dismissal, reinstatement of dismissal, withdrawal of complaint, accusation and disciplinary action, withdrawal of damages lawsuit, opposition to the amendment, withdrawal of compromise, withdrawal of new employees' wages reduction and annual salary system, opposition to the introduction of new employees' wage reduction,

2) Facts recognized

A) On May 2009, the Korea Railroad Corporation and the Korea Railroad Workers resumed collective bargaining around May 2, 2009, and the Korea Railroad and the Korea Railroad Workers held once a week in two weeks and two times in one week in one week, but the labor-management executive secretary could adjust the bargaining cycle through consultation.

B) On May 25, 2008, the Railroad Corporation and the Railroad Labor Unions resumed negotiations for the renewal of collective agreements with the 10th bargaining on May 25, 2009, and thereafter they continued the 11th bargaining on July 20, 2009, the 12th bargaining and the 1st bargaining on September 30, 2009, which was after the instant strike, and the 2nd bargaining on October 21, 2009.

C) On May 25, 2009, the 10th bargaining and the instant strike were conducted on June 2, 2009; June 8, 2009; June 10, 2009; June 10, 2009; June 14, 2009; July 11, 2009; and July 12, 2009; and August 13, 2009; and no collective agreement or pending issues were any specific progress.

D) After the 10th of May 25, 2009, the Railroad Labor Union demanded that the 18th of the same month be held as of June 15, 2009, when demanding that the 11th of the said month be held as of June 15, 2009, the 2009 and the 22th of the same month be held as of June 17, 2009, and that the 25th of the said month be held as of June 22, 2009, and demanded that the 5th of the said month be resumed.

E) As the 11st plenary session was held on July 20, 2009 upon such continuous demand as above, but the 14th plenary session did not proceed thereafter, the 5th plenary session again urged the 12th plenary session to hold the 18th plenary session on August 4, 2009, as of August 7, 2009, and as of August 18, 2009, the 25th of the same month as of August 18, 2009, and the 4 or 7th of the same month as of September 1, 2009, demanded that the 14th plenary session hold the 14th working negotiation on August 28, 2009. However, the 5th plenary session notified the 14th working-level (8.17. - 2007) and the 309th working-129th of the same month as of August 29, 2009.

F) On September 1, 2009, Nos. 22, 24, and 30 of the Guidelines for the Countermeasures against the Central Dispute of the Railroad Act stated the Korea Railroad Corporation's sincere promotion of the Korea Railroad Corporation due to its neglect of principal bargaining as the motive for the strike on September 8, 2009 and on September 16, 2009. The Central Committee for the Countermeasures against the Disputes of the Korea Railroad Act announced the name of notifying the Korea Railroad Corporation's sincere promotion of bargaining, and also reported the reason for the strike on September 8, 2009 to the AF of the Korea Railroad Act as the neglect of this bargaining and the disagreement of the opinion of the request for renewal of collective bargaining.

3) Determination

A) Basic direction of determining the purpose of industrial action

(1) The issue of foreign exclusive documents

The prosecutor asserts that the foreign exclusive use documents produced by the labor union before the strike are used as direct evidence in determining the purpose of the strike since the foreign exclusive use documents produced by the labor union before the strike are aimed at hiding the genuine intent of the strike.

However, industrial action is conducted in order to fulfill the requirements of the labor union for the original employer. Therefore, the genuine purpose of industrial action is to clearly convey to the employer. Therefore, it can be pointed out that it is not easy to understand the existence of industrial action in itself, which uses a disguised method to conceal the purpose or requirements of industrial action while entering industrial action.

Therefore, even if the perception of the purpose of an industrial action is clear on both sides of the labor and management, it may be recognized that there is a case of a disguised external position in order to obtain the genuine purpose of the industrial action, taking into account the significance of the existence of the industrial action as seen above, the worker should not easily disregard the purpose of the industrial action. If the worker externally accepts the demands of the industrial action in question from the employer, then the industrial action would lose the order to continue the industrial action. Nevertheless, if the industrial action continues, the industrial action would lose legitimacy at the end, and thus, the industrial action would lose its legitimacy. Thus, if the subject of the industrial action in question calls for a sincere collective action for the purpose of the industrial action in this case, it cannot be said that there is no meaningful meaning. In other words, if the employer urged a sincere collective action for the purpose of the industrial action in this case, it would be reasonable to determine whether the collective action in good faith has been conducted on the premise that it can be a genuine purpose, and it would be necessary to prove that such external portion is sufficiently different from the genuine purpose of the industrial action in question.

(2) The meaning of the speech at the site of the strike assembly

Through the facts charged, the prosecutor argues that it is the main purpose of industrial action, such as the opposition to the advancement of public enterprises such as the withdrawal of reduction in the number of 5,15 and the opposition to the takeover of airport railroads, the reinstatement of dismissed persons, the withdrawal of complaint, accusation and disciplinary action, the withdrawal of damages lawsuit, the opposition to the amendment of the compromise, the reduction of wages of new employees and the introduction and opposition to the introduction of the annual salary system, new human resources recruitment, and the opposition to the outside of restaurant.

However, Trade Union and Labor Relations Adjustment cannot be deemed to have been erroneous for a certain political objective and orientation as a single profit group. Such goals and orientations are always maintained at all times, and there is no choice to take place at almost at all times in the place where Trade Union and Labor Relations Mediation Commissioner gather, and it is somewhat a logic to regard it as a genuine objective of the industrial action in question only when the Trade Union and Labor Relations Mediation Commissioner took part in the conference site where they are gathered about such political objectives and orientations. In other words, it cannot be said that the statements from the conference site can be a critical basis for determining the purpose of the industrial action.

B) Considering the above industrial action as a strike for collective bargaining promotion, it is reasonable to view it as a strike for the above industrial action as a strike on the surface, but in substance, it was an industrial action for the purpose of opposing the railroad fighting policy, etc. in terms of AH, Al, AJ, AK, AK, AL, AM,N, and AO’s respective statutory statements (Seoul Central District Court Decision 2010 Man-Ma12) are difficult to believe in light of the objective facts as seen above, and in light of the above facts, the above industrial action was conducted for the purpose of promoting collective bargaining in good faith.

On the other hand, whether there is a justifiable reason for employer's refusal or neglect of collective bargaining should be determined depending on whether it is difficult to expect an employer to fulfill the obligation of collective bargaining by social norms by taking into account the bargaining right of the trade union, negotiation time, negotiation place, negotiation contents as required by the trade union, and their negotiation attitude (see Supreme Court Decision 97Nu8076, May 22, 1998).

If there are procedures or practices agreed upon between labor and management regarding the determination of the date and time of collective bargaining, the date and time of collective bargaining shall be determined in accordance with such procedures or practices, and if there are reasonable grounds, such as the necessity for review of the matters of collective bargaining and preparation therefor, it may be claimed to the other party for the alteration of the date and time of collective bargaining. In such a case, regardless of whether the other party has accepted the request for the alteration of the date and time of collective bargaining, there are justifiable grounds for the refusal of collective bargaining.However, the employer is notified that the other party is unable to attend the date and time of collective bargaining without reasonable grounds, and if the other party fails to comply with the collective bargaining as a date and time of collective bargaining without expressing his/her intention, such refusal shall not be deemed to have complied with the collective bargaining

As seen earlier, in light of the fact that the Railroad Labor Relations Adjustment urged to negotiate several times on August 4, 2008 and requested to negotiate several times until September 1, 2009, the Railroad Corporation continued to refuse collective bargaining without adjusting the bargaining cycle between the executive secretaries, it shall be deemed that turering Corporation had a sufficient time to examine and prepare the negotiation items, etc. during that period, and it shall not be deemed that there was a reasonable reason to avoid this negotiation to the Railroad Labor Relations Adjustment on the sole basis of the reasons such as Eul practice and the relocation of head office, etc., and it may be recognized that there was no opinion expressed on the specific negotiation date, such as seeking the change of the date and time before the date and time of the negotiation, and therefore, it cannot be said that there is justifiable reason that the Railroad Labor Relations Adjustment failed to comply with collective bargaining on each such date and time as notified by the Railroad Labor Relations Mediation Committee, and that it did not refuse or neglect collective bargaining without justifiable grounds, even if the representative of the employer failed to comply with collective bargaining in the situation where the employer failed to reach the collective bargaining agreement with the representative in practice.

C) Determination on the Prosecutor’s argument that the strike is planned

A prosecutor pointed out that the railroad labor union has already set the goal of the strike in early 2009, and that around September 2009, planned the physical bargaining of the wage group and the organizing of the labor union, and argues that the labor union declared the collective bargaining conference and that the labor union's labor union's labor union's labor union's labor union's labor union's labor union's labor union's labor union's labor union's labor union's labor union's labor union's labor union's labor union's labor union's labor union's labor union union'

However, from the standpoint of the guidance division which leads to the large labor union, it is natural to hold a long-term forecast scenario for the flow of the state of the dispute. It is reasonable to understand such scenarios as being in mind of industrial action as a countermeasure plan under the premise that the state of the dispute has not been resolved by the scheduled time. On the other hand, it is somewhat unreasonable to deem that a strike is to resume regardless of any change in the situation.

According to the testimony of the NAF (Seoul Central District Court 2010Kadan12 case), the strike already planned in 2008 has been withdrawn, and as examined below, the implementation of the planned industrial action in the internal communication of the NA has been premised on the failure to properly conduct collective bargaining, and according to the evidence No. 31-4, etc. of the submission by the counsel, it can be known that there was a case where the workplace where the wage organization agreement was concluded among the workplaces belonging to the POM did not go against the scheduled strike, so the above logic of the prosecutor cannot be seen as sufficiently proven.

C. Whether procedural illegality is procedural

The essence of the industrial action of this case is to cause the strike for safe operation and the extension of the industrial action on June 24, 2009, and thus, it is deemed that there is no procedural illegality in the industrial action of this case as seen above.

D. Sub-determination

In full view of the above review, the industrial action on September 8, 2009 and on September 16, 2009 also deemed to meet all the justification requirements required by the Trade Union and Labor Relations Adjustment Act, and thus, it cannot be punished as a justifiable act under Article 4 of the same Act and Article 20 of the Criminal Act.

4. As to interference with business on November 5, 2009 and on the 6th day of the same month

A. The parties' assertion

1) Defendants and defense counsel’s assertion

Defendants and defense counsel also proceed with warning strike in order to urge the negotiation of collective agreement against the construction of the said industrial action. They asserted that the purpose of the industrial action is to renew collective bargaining, and it constitutes legitimate industrial action for the purpose of the industrial action.

2) Prosecutor’s assertion

On the other hand, the prosecutor asserts that the industrial action is a strike aimed at determining working conditions, not related to the determination of labor union pressure, such as crushing of railroad-fighting plan, opposition to the collective agreement outline, accusation, accusation, etc., dismissal, reinstatement, securing of new business quota, and securing of human resources, and thus, it is not justifiable for the purpose of the industrial action. Meanwhile, the prosecutor argues that the above industrial action is a strike without legitimacy.

B. Facts recognized

According to the records, the following circumstances are recognized.

1) The collective bargaining was resumed following the strike on September 8, 2009. Accordingly, since the resumption of bargaining on May 25, 2009, a total of 77 negotiations, including working negotiations, were conducted by November 24, 2009, but the collective agreement was 97 provisions among the total 187 provisions of the collective agreement, and the agreement was 90 provisions still inconsistent.

2) In addition, with respect to wage negotiations, the Corporation demanded the payment of 2.5% wages from the Corporation, and the Trade Union and Labor Relations Adjustment showed that the amount of 9% wages has already been reduced, such as the redemption of performance bonus in 2007, etc. On the other hand, the Construction and Labor Relations Adjustment Committee requested the change of the wage system, such as the annual salary system and the wage peak system, and it was also difficult for the Trade Union and Labor Relations Adjustment Committee to accept the same.

3) During the process of the above practical negotiations, the difference between labor and management is not narrow, and the Corporation also maintained the draft of the initial collective agreement in its contents, as well as submitted a proposal to demand revision or deletion of the provisions of the existing collective agreement on October 16, 2010, on the ground that it infringes on the right of management or personnel rights or has a conflict of interest. Accordingly, the Trade Union and Labor Relations Commission expressed its position that it is not acceptable to give an opinion to delete the matters already agreed upon in the course of collective bargaining.

4) On October 21, 2009, the second wage main bargaining held on October 21, 2009 and the special coordination meeting held at the National Labor Relations Commission on October 23, 2009, the construction representative did not attend and did not hold such negotiations.

(i) cannot dismiss that it is for the purpose of promoting sincere collective bargaining.

In light of the above facts, the collective bargaining process for the renewal of collective agreement was not conducted smoothly, and the Korean Railroad Corporation did not seem to have active intent.

Although the railroad union union did not withdraw the requirements such as the withdrawal of the plan to extinguish the railroad vessel (However, the collective bargaining union did not do so since September in the collective bargaining union), the renewal of the collective agreement was under serious circumstances, the collective agreement was not reached up to 90 collective agreements, and the industrial action in this case was conducted over two days, it can be deemed as the meaning of urging the employer to faithfully conduct collective bargaining, as alleged by the Defendants and their defense counsel.

In particular, considering that the return of 2.5% of the wages, annual salary system, and wage peak system, which have a position that it is difficult for the railroad construction to accept from the labor union, were required to operate the labor union, and the above problem of wage constitutes the core part of the working conditions, it would be difficult to say that the labor union started to conduct the labor union's labor union's labor union's labor union's labor union's labor union's labor union's labor union'

2) On the point of view that wages and collective bargaining did not appear in a situation, there is a view that the Railroad Labor Union declared the negotiations on September 30, 2009 on the date of the first wage principal bargaining, and that there was no situation where collective bargaining is likely to be concluded particularly on the grounds that the 16th working bargaining on October 16, 2009, and the 17th working-level bargaining on October 16, 2009, and the 17th working-level bargaining on October 27, 2009. Such view was that the said industrial action was already planned, and that some of the collective bargaining negotiations were declared in order to disguise its legality.

However, as to wages, negotiations have to be concluded until the end of the year due to budgetary problems (the testimony of a witness in Seoul Central District Court 20102641). On November 30, 201, the National Assembly of Labor and Labor Relations (the data on the preparation of the railroad construction) evidence No. 63 of the submission of defense counsel. In order to punish industrial actions from the perspective of labor union, additional procedures such as mediation procedures and union members' vote are required, and from the perspective of labor union union members, it was necessary that the first time of the labor union's wage negotiations has already been driven at the end of September. 30, 2009. However, even if the working negotiations were several times prior to the wage negotiations, the construction company's first time after the wage negotiations had been conducted on September 30, 209, cited new agenda such as ‘the annual salary system of full-time employees' and wage wage negotiations', and made a declaration that there was no difference in the working-level requirements prior to the labor union.

In addition, as seen above, regardless of the strike schedule set forth by the public law, there was an example that the wage agreement and the organization agreement was not involved in the intended industrial action in the workplace where the agreement was concluded, and considering the fact that the industrial action intended to be terminated by the conclusion of the wage agreement in 2008 has been withdrawn, the prosecutor’s argument that the industrial action was planned to take place in the industrial action as long as the pending issues were not resolved, regardless of the outcome of the collective agreement on the working conditions, is not sufficient.

Therefore, it is not reasonable that the labor union's declaration of wage negotiations in the main bargaining of the first wage negotiations, and it is called the planned negotiation and negotiation.

4) Sub-determination

In full view of the above, it is reasonable to view that the industrial action on November 5, 2009 and the 6th of the same month was conducted mainly for the purpose of urging the collective bargaining in good faith, as alleged by the Defendants and their defense counsels, and the prosecutor’s assertion against it is not acceptable.

D. Sub-determination

In full view of the above review, the industrial action on November 5, 2009 and the 6th of the same month also deemed to meet all the justification requirements required by the Trade Union and Labor Relations Adjustment Act, and thus, it cannot be punished as a justifiable act under Article 4 of the same Act and Article 20 of the Criminal Act.

5. The point of interference with business between November 2009 and December 3, 2009

A. The parties' assertion

1) Prosecutor’s assertion

According to the inspection, the above industrial action is an industrial action for the purpose of the maintenance and improvement of working conditions such as crushing of railroad fighting plan, the opposition to the short suppression, the accusation of a complaint, etc., pulververization of union unions, reinstatement of dismissal, securing of new business capacity, and securing of human resources resources, and thus, it is unlawful to determine the legitimacy of its purpose.

2) Defendants and defense counsel’s assertion

Defendants and defense counsel asserted that the primary purpose of the industrial action in this case is to renew collective agreements on working conditions, and to stop out wages systems in bad faith, thereby constituting a legitimate industrial action.

B. Determination

1) Until the aforementioned industrial action can be seen as an industrial action related to the maintenance and improvement of working conditions, the collective agreement agenda that is not concluded between the railroad construction and the labor union still reached 90 items, including wage negotiations, and among the aforementioned industrial action agenda, there were key issues related to the maintenance and improvement of working conditions, such as the annual salary system and wage peak system of full-time employees, and the change of work status (in the case of the modified labor system such as Article 3, Article 5 and Article 5, the introduction of the modified labor system such as the changed labor system), which was demanded by the railroad construction in the side of the said unsatisfy agenda, and the demand for the railroad construction was difficult from the standpoint of the labor union, considering that it was difficult to easily accept from the standpoint of the labor union, as argued by the public prosecutor, the trade name of the labor union, such as the conclusion of a collective agreement that is formally inside and the suspension of the change of the wage system, is merely a mere nominal portion on the surface.

2) Determination of the Prosecutor’s assertion that the external reputation should not be trusted

The prosecutor eventually leads to the plan for the strike of the government-private partnership regardless of the progress of collective bargaining. The purpose of the industrial action is to create the contents that can not be used as the object of industrial action such as opposing the plan for the promotion of public enterprises, such as the reduction of the number of railroad construction personnel, opposing the plan for the promotion of public enterprises, opposing the takeover of airport railroads, reinstatement of dismissed persons, filing a complaint, accusation, withdrawal of disciplinary action, withdrawal of damages lawsuit, etc.

As a result, the legitimacy of the purpose is not recognized, and it is argued that the data that are externally legitimate for the purpose should not be trusted in order to realize their illegality.

First, as stated in the facts charged, the fact that the purpose of industrial action should not be determined only by the speech that occurred at the strike, as described in the facts charged, should be seen earlier. Also, it is also possible to know the internal position of the labor union's labor union's policy head, and the main purpose of "the paper" (Evidence No. 26, Evidence No. 28-1, No. 28-3) that BG, the head of the labor union's policy office, sent to the labor union members through the internal communication network, is to adjust the second strike schedule (14-21, No. 14-21, Nov. 26, 199) if a substantial negotiation has been carried out. In light of such internal data, the second strike schedule (14-21, No. 14-21, Nov. 26, 200) was not carried out.

Rather, in the case of industrial action as of November 26, the Korean Railroad Corporation notified the Korean government of the intention to terminate the collective agreement on November 24, 199, and caused the labor union to lose the right to withdraw the industrial action scheduled by the Korean government.

In addition, the prosecutor argues that the legitimacy of the purpose of industrial action on the ground that the pending issues (management matters) have been discussed in the collective bargaining process should not be recognized. However, according to the AF's testimony (Seoul Central District Court 2010Kadan12 case), it can be recognized that the facts and the pending issues have been clearly distinguished in the negotiations and pending issues in the negotiation held in a manner that the labor-management council is not carried out separately during the negotiation period and the labor-management council is discussed in a lump sum. Considering that these circumstances can be discussed in a multi-party collective bargaining, it can be said that the proposal to link the pending issues in the negotiation with the main purpose of industrial action is a logic.

3) Determination on the principal purpose of an industrial action

In order to deny the legitimacy of the purpose of an industrial action, the illegal purpose should be the main purpose of the industrial action, and it should be recognized that the industrial action would not occur if the industrial action was excluded in order to determine the main purpose of the industrial action.

In the instant case, considering that labor conditions, such as wages, were not reached prior to the conclusion of the industrial action, it is necessary to recognize that the management matters, such as the opposition to the advancement plan of a public enterprise, were included in the purpose of the industrial action, as alleged by the public prosecutor, even if the contents of the industrial action, such as the maintenance and improvement of labor conditions, are recognized as having been included in the purpose of the industrial action. However, the evidence submitted by the public prosecutor and the grounds for the examination are insufficient to recognize the industrial action.

4) Sub-determination

Therefore, in full view of all the circumstances, it is reasonable to view that the primary purpose of the industrial action in this case was related to the maintenance and improvement of working conditions, and it is not the primary purpose of the industrial action even if the management matters were included in the objective of the industrial action. In other words, the legitimacy of the purpose of the industrial action in this case is recognized.

In full view of the above, the industrial action from November 26, 2009 to December 3 of the same year also satisfies all the justification requirements required by the Trade Union and Labor Relations Adjustment Act. Thus, the industrial action cannot be punished as a justifiable act under Article 4 of the same Act and Article 20 of the Criminal Act.

III. Conclusion

In light of the evidence and arguments presented by the prosecutor and the defense counsel in this case, it is necessary to pay clear attention to the difference between the two parties and the labor-management positions found in the collective bargaining process connected to a series of trends in which each industrial action in this case occurred. regardless of whether the position of the labor-management union is reasonable or not, it is an important issue that the labor-management union has the right to choose the means of industrial action when such difference occurs. Moreover, it may be said that the conclusion that the labor-management has been somewhat different from the prosecutor’s assertion is due to the fact that the labor-management has paid more attention to the two aspects of

As can be seen, when both labor and management positions arise in the course of collective bargaining, whether individual unions are able to raise political capacity by linking them with superior groups or other relevant labor unions and to criticize the taking of joint assistance can be said to be a matter of fundamental level in the labor law. From the aspect of the progress of this case, the form of collective strike has been rare in terms of linkage with higher groups and association with other labor unions. In the course of such collective strike, mutual schedule has been set in the course of the collective strike, i.e., the support of industrial actions, and in such a series of processes, whether the main body of the labor movement should be absolutely dismissed if the purpose of the industrial action is not essentially contaminated.This court determined that, in other words, if individual industrial actions deviate from the essential track and purpose of the collective bargaining process, the ratio of individual industrial actions in order to achieve the political flow may be limited to a certain extent, regardless of the extent of permission for political strike (i.e., purely, within a certain limit).

In determining the legitimacy of industrial action, the purport of the precedent of the Supreme Court, which differs from the main purpose and incidental purpose in determining the legitimacy of industrial action, should also be understood in the same line. Even if the industrial action includes a somewhat unfair purpose, it is reasonable to allow such industrial action if the industrial action had no choice but to carry out only the legitimate purpose without that reason. As shown earlier, it is reasonable to allow the industrial action to be conducted in the case of industrial action. This is because, from the standpoint of workers, the industrial action does not unfairly restrict the right of collective action, and the employer

The prosecutor's assertion that each industrial action has a certain proportion to the relevant union in the course of a series of plans and trends, and that the illegality of the industrial action should be recognized by judging that the industrial action has a focus on the political purpose pursued by the union rather than for the purpose of maintaining and improving working conditions. However, this court focuses on whether the individual industrial action has escaped from its essential purpose rather than such a large trend.

즉, 이 사건 쟁의행위들이 발생할 당시 단체교섭과정에서 노사의 입장차이가 현격하였던 것은 인정되는 사실인바, 설사 이러한 입장차이가 좁혀졌다 하더라도 쟁의행위가 발생할 수밖에 없었을 것이라는 점이나, 입장차이가 크더라도 그 이유만으로는 쟁의행위를 벌일 필요가 없었을 것이라는 점을 인정할 명시적 자료가 없는 상황에서라면, 쟁의 행위의 적법성은 추정할 수밖에 없다는 것이 노동3권을 헌법적 권리로 승화시키고 있는 우리 헌법정신과 형벌의 겸억성(謙物性)에도 보다 부합한다고 본다.

In fact, as seen in the text, there were cases where industrial action was discontinued due to the deviation from the scheduled strike schedule due to the conclusion of wages and collective agreements among the places of business belonging to the main office.

If so, a significant position between labor and management found in the collective bargaining process is considered to be a part that must be noted in judging the legitimacy of the purpose of industrial action, and this court focuses on whether such a position can lead to industrial action.

The order of social law, including the labor law, was introduced into the legal system as a revision to the traditional order of the Civil Law with the title of protecting the socially weak. For this reason, there is a somewhat different factor from the traditional legal order. As such, it is natural for a legal interpreter who is familiar with the traditional order of the Civil Law to feel considerable inconvenience when considering the pending labor issues falling under the nonperformance of a typical contractual relationship. However, as long as the three labor rights are already recognized as a constitutional reality, in order to comprehensively interpret the legal order given to us, it is necessary to make an aggressive effort to avoid such inconvenience: Provided, That if it is recognized that the order of labor law is not to deny the order of the Civil Law, but to recognize that it exists on the basis thereof, workers should not neglect to make efforts to maintain reasonable points in harmony with the two legal order. The role of the legal interpreter is to find out whether such points are reasonable.

In considering the pending issues of the labor law, this court constantly consulted and reviewed whether the legal interpreter's inconvenience is likely to cause a sufficient understanding of the constitutional reality due to the inconvenience that the legal interpreter is familiar with the traditional order of the civil law. The results of such a consideration are detailed in the main text. In full view of the foregoing, each industrial action of this case, which instituted a public prosecution against the purport that the public prosecutor constitutes an unlawful obstruction of business, shall be a justifiable act by Article 4 of the Trade Union and Labor Relations Adjustment Act and Article 20 of the Criminal Act, and thus, it shall not be punished.

Therefore, since each of the facts charged against the Defendants constitutes a case that does not constitute a crime, each of the Defendants is acquitted under the former part of Article 325 of the Criminal Procedure Act.

nine public sector unions, such as power generation labor and gas labor, belonging to the Public Transport Association, including railroad labor unions, shall belong.

It is an associated organization.

(2) Supreme Court Decision 90Do2852 delivered on July 9, 1991, 199, 290Do2852 delivered on October 22, 190

Supreme Court Decision 91Do600 delivered on February 27, 1996, 95Do2970 delivered on May 10, 1996, 96Do419 delivered on May 10, 199

Supreme Court Decision 91Nu636 delivered on December 10, 1991, 91

(3) Constitutional Court en banc Order 97Hun-Ba23 delivered on July 16, 1998

4) The position of the theory of fact-finding is a determination on whether the actual business operation patterns should be protected.

In fact, we are suffering from the normative value as soon as possible in fact: naturalism.

The error is called as a hostile error.

(v)work such as newly putting or replacing a passenger/fire vehicle into a train programming, i.e. connecting multiple guest/fires.

organization of a new train or dismantling a train which has arrived at a destination, etc.

6) As pointed out by the Prosecutor, all management issues involving changes in working conditions are accompanied by changes in working conditions.

It can be used as a logic that self-management decision should be able to be able to do so, but in the end, the contribution to the working conditions.

The boundary of the purpose of the improvement and the management decision is revealed to be ambiguous.

of this chapter.

7) The grounds for the Supreme Court precedents prohibiting industrial action against management issues are as follows.

If the three labor rights conflict with each other, it is necessary to set a limit to harmonize the three labor rights with each other in the business economy.

It does not impair creative intent and investment desire, but rather promotes it and strengthen the competitiveness of the company.

For example, it should be noted that the company should find a solution, because the investment has decreased and the investment has decreased.

Employment opportunities are reduced and unemployment increases, on the other hand, enterprises are well established and new investors occur.

The status of the employee and the creation of new employment levels, resulting in the improvement of the status of the employee, together with the company and workers.

This is because it may become a winner, and in order to solve this problem, only abstract theories are required to do so.

It is not possible to respect the reality of the times, and it is necessary to find a solution suitable for the reality.

From this point of view, the economic reality of today's Republic of Korea, and today's labor disputes in Korea.

Considering the various problems revealed in the field, the competition of the company such as restructuring or merger, etc.

In principle, management measures taken by management bodies to strengthen the power shall be subject to labor disputes.

It is reasonable to facilitate the strengthening of corporate competitiveness by interpreting it as not possible. Of course, it is reasonable to interpret it.

First of all, it is true that the three labor rights of workers belonging to the enterprise are restricted, but this is excessive.

Merely, corporate competitiveness is recovered and investment is created more thanks to the fact, and more employment is created.

Since the status of the elderly can be improved, this interpretation is rather on the whole workers.

It shall be a length to develop the national economy as well as benefit.” (Supreme Court Decision 2002Do7225 Decided July 22, 2003)

[Judgment]

The problems of these decisions are as follows.

First, in the case of conflict of two or more rights, the rights of one party should be more strongly protected.

If there is reason, this also must be derived from abstract legal theory. In addition, the abstract legal theory is not required to be drawn up.

It is intended to attempt a new legislation rather than seeking to find out what the legislative agreement is.

It is an interpretation method that deviates from the limits of the authority to create a law permitted by the court. This is the judicial branch.

It is beyond the main text, and it is difficult to follow because it takes into account the consistency of legal interpretation.

Second, workers' three labor rights are restricted, the corporate competitiveness is recovered, and investment is living more.

The logic that many employment are created is not established as a single public interest, but today's controversy.

It is only one of these economic theories, and the criticism theory is gradually increasing.

Therefore, this logic is a legal argument that can be cited by a legal interpreter without a clear academic verification.

It can not be seen that the law is a coercive argument to change a clear interpretation of the law.

Since the interpreter is not an expert in the economy, he is employed as a ground for interpreting the economic situation and the principle of economy.

There is a need to pay careful attention to the maximum extent possible.

8) The position taken by this Court here is forming a majority theory in Korea and Japan; and

Japan also has such a position.

일본의 학설로는 外尾健一, 쑤樹I러休法, 鏡摩書房(1975), 376면; 中山和久 外 共著, 註釋

勞動組合 • 勞動關係調停法(萬井降令 집필부분), 有悲閣(1989). 135면; 片岡昇, 方衝法(1) 第3

版補石, 有悲閣(1998), 194면 이하; 西谷敏, 勞動組合法, 有悲閣(2006), 301면 각 참조. 특히

Japan's well-known scholars who represent the understanding of the business community relatively relatively.

It is necessary to pay attention to the assessment of our precedents that maintain the same view of the City.

을 것이다［AE, 勞幽法 第8版. 릿、文堂(平成 20年), 533~536면 참조］.

한편, 이에 관한 일본 판례로는 國야切交拘否事件, 東京地方裁判所 判決 0g和 61. 2. 27. 쏘

衝判例 469弓 10면(東京高等裁判所 判決 Bg和 62. 1. 27. 分幽判例 505弓 92면, 最高裁判所

第3小法延 判決 平成 3. 4. 23. 男-衝判例 589弓 6면) 등이 있다.

(9) Supreme Court Decision 90Do2771 Decided April 23, 1991; Supreme Court Decision 95Do419 Decided May 10, 199

Supreme Court Decision 2001Do1863 Delivered on December 26, 2003, etc.

11) Supreme Court Decision 90Do2852 Decided January 23, 1991, etc. see Supreme Court Decision 90Do2852, etc.

12) AG, “Non-application of the crime of interference with business to the strike and interference with business,” unconstitutionality of the crime of interference with business, and Democratic Law No. 12

(197), 96 pages

13) AG, the previous thesis, 96-98 pages.

14) In springing by examining the legitimacy of the purpose of each industrial action at less than below, 5,115 staff reduction.

Since the livestock problem is related to the employment stability of workers, the industrial action was taken to do so.

In accordance with the legal principles taken by this court that the purpose may be justified even if so, the prosecutor asserts

Before the fact that even if the purpose of each industrial action is recognized, the legitimacy of the purpose of the industrial action can be recognized.

§ 80.

In addition, there is room to interpret the content to be inconsistent with the legal principles taken by this Court.

The purport of the Supreme Court's ruling (the strike on the grounds of the essential contents of the management right) is permitted.

It is the next note that the legitimacy of the purpose can be recognized even if following the requirement.