[2] The case affirming the judgment below convicting the defendant and the executive branch of the Korean Railroad Workers' Union against obstruction of business in case where the defendant and the defendant et al. instructed the strike to take care of the strike despite the decision of the chairman of the National Labor Relations Commission's ex officio referral to arbitration, and union members refused to work and thereby inflicted damage on

(B) As a matter of principle, an employee has the right to independent association, collective bargaining, and collective action to improve working conditions (Article 33(1) of the Constitution of the Republic of Korea). Thus, a strike as an industrial action does not always constitute the crime of interference with business. It is reasonable to deem that the crime of interference with business is established only when it is deemed that the employer’s free will to continue business can be avoided or confused with the employer’s business due to the fact that the refusal of collective refusal to provide labor constitutes a threat or confusion because the strike took place at a time unforeseeable by the employer in light of the situation and circumstances before and after, and after, the time when it

(C) On the other hand, Supreme Court Decisions 90Do2771 Decided April 23, 1991; 91Do326 Decided November 8, 1991; 2004Do689 Decided May 27, 2004; 2002Do3450 Decided May 12, 2006; 2002Do5577 Decided May 25, 2006, which held to the effect that the act of workers by collectively refusing to provide labor constitutes the crime of interference with business, unless it is a legitimate industrial action under labor-related Acts and subordinate statutes, which is a matter of course, and thus, constitutes the crime of interference with business, unless it is justified.

[Dissenting Opinion by Justice Park Si-hwan, Justice Kim Ji-hyung, Justice Lee Hong-hoon, Justice Jeon Soo-ahn, and Justice Lee In-bok] (A) The Majority Opinion, without using violent means, does not simply mean that a worker refuses to provide labor by failing to work at the workplace. In other words, even if a worker is “a simple strike,” the strike itself should be deemed not an omission but a commission. However, we cannot agree with this view. If the worker does not provide labor at the workplace while absent from the workplace, it is obvious that the worker’s failure to perform his/her duty under the labor contract is an omission, and there is a circumstance that the worker refuses to provide labor collectively for the purpose of industrial action, the refusal to provide labor, which is an omission, should not be converted into a commission.

(B) Unlike the opinion of the majority opinion, even if “a simple strike” is deemed an omission, if it is possible to realize the same result as exercising power by omission, and if workers are deemed to have a surety position to prevent such occurrence, the crime of interference with business can be established by force, despite different reasoning from the majority opinion. However, in general, it cannot be said that the employer has no capacity to protect the legal interests of freedom of business from simple strike of workers, or that workers are in control of the situation of the employer’s guardian against the employer. More than anything else, recognizing the duty to act to not engage in industrial action against the worker as an illegal strike between the parties to the individual and collective legal relationship, recognizing the status of guarantor to guarantee the performance of the obligation of one worker against the employer or employers’ association, which is the other party, and thus, it cannot be accepted. Although workers’ refusal to provide simple labor even if it was conducted in group, it cannot be said that there exists the value equivalent to the infringement of legal interests arising from the active act of interference with the employer’s performance of duties.

(C) As stated in the Majority Opinion, even in exceptional circumstances, the Majority Opinion’s position to regard “a simple strike” as an act and constitutes a threat of force may not agree with the standard of determination presented by the Majority Opinion as to whether it constitutes a strike. Even if a simple strike does not meet the requirement of legitimacy as an industrial action, it is unreasonable to include it in the concept of force as a strike is unreasonable from the point of view of the principle of no punishment without law. Furthermore, inasmuch as a labor union and Labor Relations Adjustment Act has a separate penal provision for an act of unlawful strike in the event an industrial action lacks legitimacy, it can be punished as a violation of the same Act. Therefore, even if an illegal strike does not constitute a crime of interference with business by force, it does not constitute a gap in punishment for an act of unlawful strike itself even if it does not constitute a crime of interference with business by force. As such, even if an industrial action, such as a passive strike, was committed in violation of the provisions of the same Act, it does not constitute a crime of interference with business under the Civil Act and a labor union and Labor Relations Adjustment Act.

(D) The Majority Opinion’s interpretation of “a simple strike” to the extent that it does not always constitute a threat of force on the ground that it does not always constitute a strike without justification is a serious position in light of the attitude of the previous precedents. However, even according to the standard for determining whether a strike constitutes a threat of force presented by the Majority Opinion, it is not always apparent whether a certain case can be seen as having been conducted on a full basis, and what scope may be distinguished as a serious confusion or enormous damage. Therefore, even according to the interpretation theory of the Majority Opinion, even if it is based on the interpretation theory of the Majority, the general provision of the concept of “competence” as provided in Article 314(1) of the Criminal Act does not sufficiently resolve, and the existence of the crime of interference with business by force does not necessarily have to have the possibility of arbitrary application of law in specific cases at issue.

[2] [Majority Opinion] In a case where: (a) the executive branch of the Korea Railroad Workers' Union including Defendant et al. ordered the Korea Railroad Corporation to take care of the strike despite the decision of the chairman of the National Labor Relations Commission to refer the case to arbitration; (b) the members refused to work at the workplace nationwide; and (c) caused enormous damages, such as losses in operating income and compensation for substitute personnel, etc., to the Korea Railroad Corporation; (d) the case affirming the judgment of the court below which found the Defendant guilty on the ground that the labor union violated the former Trade Union and Labor Relations Adjustment Act (amended by Act No. 8158 of Dec. 30, 2006) and the Labor Union Act (amended by Act No. 8158 of Dec. 30, 2006) and caused considerable damages to the Korea Railroad Corporation, such as losses in operating income and compensation for substitute personnel, etc., due to the suspension of the operation of the train from the operation of the train to the back of several times as a result of the strike, after the labor union’s resolution to refer to arbitration.

[Dissenting Opinion by Justice Park Si-hwan, Justice Kim Ji-hyung, Justice Lee Hong-hoon, Justice Jeon Soo-ahn, and Justice Lee In-bok] In the above case, the case holding that the court below erred in the misapprehension of legal principles as to the defendant's liability for crime of interference with business on the premise that the defendant's refusal to provide a collective passive labor without any speech or behavior that is likely to be an unlawful act or an unlawful act, and thus, the damage was based on the wholeness of the strike, in light of the above legal principles, it cannot be seen that the strike did not constitute a "compact" as provided by Article 314 (1) of the Criminal Act in light of the above legal principles. In addition, in light of the legal principles of the majority opinion, it cannot be seen that the strike was conducted at an unforeseeable time in full view of all the circumstances.

1. As to the ground of appeal on “competence” as an element of the crime of interference with business

A. The crime of interference with business is established in cases where a person interferes with another’s business by deceptive means or by force (Article 314(1) of the Criminal Act). The term “power” means any form of force that is capable of suppressing and mixing a person’s free will.

A strike as an act of strike that obstructs the normal operation of business by refusing to provide labor for the purpose of accomplishing its assertion (Article 2 subparag. 6 of the Trade Union and Labor Relations Adjustment Act) is an act of strike that interferes with the management of business by refusing to provide labor (Article 2 subparag. 6 of the Trade Union and Labor Relations Adjustment Act). Since it is not merely an omission of refusing to provide labor under a labor contract but goes beyond that merely exercises the power to collectively suspend the provision of labor

However, under Article 37(2) of the Constitution, workers may be limited on the grounds of public interest, such as national security, maintenance of order, or public welfare, and the exercise of their rights should be justified, and there is no absolute right, but in principle, they have the right to independent association, collective bargaining, and collective action (Article 33(1) of the Constitution) to improve working conditions as fundamental rights guaranteed by the Constitution.

Therefore, the strike as an industrial action does not always constitute the crime of interference with business, and it is reasonable to deem that the collective refusal of labor constitutes the crime of interference with business as it constitutes force only when it can be evaluated that the employer’s free will to continue to engage in business may be disturbed and confused because the strike as an industrial action is conducted at a time unforeseeable by the employer in light of the situation and circumstances before, after, after, after, and after, the time when the employer was unable to predict

Unlike this, Supreme Court Decisions 90Do2771 Decided April 23, 1991; 91Do326 Decided November 8, 1991; 2004Do689 Decided May 27, 2004; 2002Do3450 Decided May 12, 2006; 2002Do577 Decided May 25, 2006, which held to the effect that the act of workers by collectively refusing to provide labor constitutes an act of interference with business, unless it is a legitimate industrial action under labor-related Acts and subordinate statutes, which is justified under the premise that the act of workers’ refusal to provide labor constitutes force, and thus constitutes an act of interference with business, unless it is justified.

B. According to the reasoning of the judgment below, the Korea Railroad Workers' Union submitted a letter of undertaking that "the Korean Railroad Workers' Union shall faithfully negotiate without a strike," and the Special Arbitration Committee recommended conditional referral to arbitration on November 25, 2005, stating that "if a trade union fails to comply with the promise and is highly likely to interfere with industrial actions, it shall recommend that it refer the relevant place of business to arbitration." The chairperson of the National Labor Relations Commission recommended conditional referral to arbitration on two occasions on November 25, 2005 and December 16, 2005, while the Korea Railroad Workers' Union decided to suspend such referral to arbitration on two occasions on February 28, 2006, collective bargaining between the Korea Railroad Workers' Union and the Korea Railroad Workers' Union, including Defendant 2 and the Korea Railroad Workers' Union, were ordered to suspend such collective bargaining from 31:00 on the same day to 300 billion won on February 7, 2006 and continued to work for 14:06 members of the Korea Railroad Workers' Union, including Defendant 2 and the Korea Railroad Workers' Association.

According to the above facts, the chairman of the National Railroad Union decided to suspend referral to arbitration twice pursuant to the purport of the recommendation of conditional referral to arbitration by the Special Arbitration Committee has expressed his/her intention to resolve the dispute by discretionary arbitration without permission of industrial action by the Korea Railroad Corporation, which is an essential public business place, which is highly likely to cause social confusion, if both labor disputes are judged to no longer be resolved autonomously through collective bargaining. Accordingly, the Defendant, the chairman of the National Railroad Workers' Union, was taking part in the instant strike at the nationwide railroad business place. Nevertheless, even if the National Railroad Workers' Union decided to suspend referral to arbitration on February 7, 2006 around 01:0, it could not be seen that there was a significant violation of the former Act, such as suspension of referral to arbitration by the National Railroad Workers' Union and the Korea Railroad Workers' Union and the Korea Railroad Workers' Union and the Korea Railroad Workers' Union and the Korea Railroad Union and the Korea Railroad Union and the Korea Railroad Union and the Korea Railroad Union and the Korea Railroad Union and the Korea Railroad Union and the Korea Railroad Workers' Union were finally allowed to refer to arbitration by 200.

Examining these circumstances in light of the legal principles as seen earlier, it is sufficient to view the instant strike led by the Defendant as constituting “defensive force” under Article 314(1) of the Criminal Act, as a force capable of suppressing and mixing free will of the Korea Railroad Corporation, which is an employer.

In the same purport, the court below is just to render a guilty verdict on the facts charged of obstruction of business of this case, and there is no error of law by misunderstanding legal principles as to the force of obstruction of business as

2. As to the ground of appeal on whether the decision to refer ex officio to arbitration is valid

A. As to the assertion that the ex officio arbitration system is in violation of the Constitution

The legislative purpose of Article 62 subparag. 3, Article 63, and Article 91 subparag. 1 of the former Trade Union and Labor Relations Adjustment Act is to maintain the daily lives of the public and preserve the national economy by allowing the resolution of disputes through arbitration of the Labor Relations Commission in lieu of agreement between the labor and management to resolve disputes, and its legislative purpose is just, and the method of restricting fundamental rights prescribed in the Act is appropriate, and the degree of restriction on fundamental rights is also minimum, as well as the balance between the public interest to be protected and the private interest to be restricted, and thus, it does not violate the principle of excessive prohibition under the Constitution and does not discriminate against workers engaged in the general business and workers engaged in the public business without reasonable grounds (see, e.g., Supreme Court en banc Decision 2001Do1863, Dec. 26, 2003; Constitutional Court en banc Decision 2005Do3815, Jun. 24, 2005).

The judgment of the court below to the same purport is just, and there is no violation of law as alleged in the grounds of appeal.

B. As to the assertion that the discretionary authority has been abused

The lower court acknowledged the facts as indicated in its reasoning after comprehensively taking account of the relevant employment evidence, and determined that the instant decision to postpone the referral to arbitration and the instant decision to refer to arbitration was conducted by taking into account the situation in which autonomous bargaining is underway, and it cannot be deemed that the industrial action was used as a means to substantially restrict the industrial action itself, and that the mere fact that the decision to refer to arbitration was made three months after the conditional recommendation of the Special Arbitration Committee was made, the Special Arbitration Committee’s recommendation decision and the opinion submission system of public interest members cannot be deemed to have

In light of various provisions on the procedure of the ex officio arbitration system under the former Trade Union and Labor Relations Adjustment Act and the records of this case, the above judgment of the court below is just, and there is no error of law by misunderstanding legal principles as to the ex officio arbitration system

3. As to the ground of appeal on the justifiable act

The court below held that the strike of this case led by the defendant was conducted during a period during which the industrial action cannot be conducted in accordance with the decision to refer the dispute to arbitration of this case, and thus constitutes an industrial action in violation of the Acts and subordinate statutes, and the damages suffered by the employer are also reasonable, so such an act does not constitute a justifiable act that does not violate the social norms. The judgment of the court below is justified, and

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Park Si-hwan, Justice Kim Ji-hyung, Justice Lee Hong-hoon, Justice Jeon Soo-ahn, and Justice Lee In-bok as to the judgment of the above 1.

5. Dissenting Opinion by Justice Park Si-hwan, Justice Kim Ji-hyung, Justice Lee Hong-hoon, Justice Lee In-bok

A. Basic premise

In the event of industrial action, such as strike, is often likely to involve violent means such as assault, threat, coercion, and occupation and farming. However, this case is a case in which members of the Korea Railroad Workers' Union, including the Defendant, do not work at the workplace of the Korea Railroad Corporation. Therefore, the subject of discussion here is the case in which a worker does not simply attend the workplace without using violent means, and does not provide labor (in the case of suspension of provision of passive labor, only a simple strike has been reduced; hereinafter referred to as " simple strike"), and in this respect, it shall not be confused with the case of strike that entails violent means.

B. Whether the crime of interference with business by force constitutes a constituent element of the crime of interference with business, and whether the crime of omission by force is established

The majority opinion argues that even if a strike as a strike is based on the premise of the above, as long as workers intend to accomplish the worker's assertion by putting pressure on the employer, it does not act collectively, but includes "salutic elements" as "salutic elements". However, even if the simple strike is an act as above, it does not constitute "salutic elements" constituting the crime of interference with business under Article 314 (1) of the Criminal Act, but it constitutes a crime of interference with business only if it can be assessed that the free will for the continuation of business can be controlled and mixed by force only when it can be assessed that the employer's intent for the continuation of business can cause serious confusion or enormous damage to the employer's business operation at an unforeseeable time in light of the situation before, after, after, after, and after the strike, etc.

First, the majority opinion argues that even if a strike is a simple strike, it is not an omission, but an act of commission. However, we cannot agree with this opinion.

The basic form constituting a criminal act is generally understood as not only a case of commission but also a case of omission, such as a case of omission where the constituent elements prescribed in a penal provision can only be realized by simple omission (Article 116) and a crime of non-compliance with eviction (Article 319(2)) under the Criminal Act (Article 116), etc. In general, it is understood as a case where not only a case of commission but also a case of omission (see Supreme Court Decision 2002Do995, Jun. 24, 2004). In a case where it can be realized by passive omission that does not prevent the occurrence of a result as well as active commission, if the perpetrator infringes on another person’s legal interest by actively worsening another person’s legal interest through his physical or chemical action, then it is a crime committed by commission (see Supreme Court Decision 2002Do995, Jun. 24, 200).

In general, commission and omission are generally distinguishable from a realistic point of view. The above precedents also indicate, where there is an active act through physical activity or physical and chemical activity, it shall be deemed to have been committed by commission, and any other passive act shall be deemed to have been committed by omission.

If so, the Majority Opinion erred by understanding the concept of act and omission that can be distinguished from a factual point of view as an act of simple strike that merely does not work for an employee. It is clear that the employee’s failure to provide labor is an omission that does not perform his/her duty under a labor contract. The Majority Opinion appears to have reported as an act on the ground that the refusal to provide labor is not an individual but a collective action is conducted for the purpose of industrial action. However, the Majority Opinion does not differ in that the employee does not have any and all other active acts, such as a physical activity, regardless of the purpose or motive of the employee’s refusal to provide labor, and the employee does not have any and all other persons’ refusal to provide labor for the purpose of industrial action. Accordingly, it cannot be said that the refusal to provide labor individually, on the ground that there exists a circumstance that the employee refuses to provide labor for the purpose of industrial action.

Of course, the term “defluence” as a constituent element of the crime of interference with business by force under Article 314(1) of the Criminal Act refers to any force that can suppress and mixed a person’s free will. The act of causing danger or consequence that the perpetrator may control and mixed another person’s free will can be possible not only by an active act such as physical activity of the actor, but also by omission that does not perform passive act is consistent with the legal doctrine as seen above. Therefore, the establishment of the crime of interference with business by force cannot be denied solely on the ground that the refusal to provide collective labor constitutes omission. In such a case, the act of interference with business by force must be in a surety position to prevent the occurrence of the result (i.e., a prior case where the mother is a child, and the mother is able to realize the result of murder by a method that does not boom the other person’s free will). In order to recognize that the perpetrator is in a fiduciary position, ① the legal guardian’s duty to explain the risk of infringement of legal interests by itself, i.e., the actor’s legal interest protection.

Therefore, even if a simple strike is deemed to be an omission, unlike the majority opinion, it is possible to realize the same result as exercising power by omission, and if workers are deemed to have a surety position to prevent the occurrence of such a result, the establishment of the crime of interference with business by force can be acknowledged, although the majority opinion and reasoning are different. Therefore, the important issue is whether workers can be recognized as a surety position that satisfies the elements of the crime of non-performance of a petition.

An employer is generally in a labor relationship with an employee as a party to an individual labor relationship. In addition, in a collective labor relationship with a workers’ organization, an employer is in a mutually equal position, such as seeking means to oppose an employee’s industrial action. In this regard, it cannot be said that the employer has no capacity to protect the legal interest of freedom of business from simple strike of workers, or that the employee controls an employer’s status as a guardian against the employer. Accordingly, it is difficult to say that the above-mentioned position as a guarantor (i) the above-mentioned position is recognized, and (ii) the requirements are met.

In addition, the most important thing is the duty to act, which is the requirement of the two above. In order to establish a crime by omission which commits a crime consisting of a deceptive act, the precedent also states that “In the event a person who is legally obligated to act to prevent the occurrence of a result of infringement of legally protected interests as prohibited by the Criminal Act could have easily prevented the occurrence of the result by performing the duty, the omission is equivalent to that of infringement of legally protected interests by the act, and thus, should be deemed as an act of commission of the crime.” The duty to act is recognized not only by law, legal act, preceding act, but also by other principles of good faith, social rules, or sound reasoning (see Supreme Court Decision 2003Do4128, Apr. 28, 2006, etc.).

Therefore, it is necessary to examine whether the worker’s legal duty to act to prevent the risk or consequence of infringement of legal interests prohibited by the Criminal Act against the employer, and the omission, which does not perform the duty, can be recognized as having the criminal value equivalent to that of infringement of legal interests by the act.

First, from the perspective of individual labor relations between an employee and an employer, the obligation to work based on a labor contract exists. However, the burden of an employee’s non-violation of the labor contract falls under the area of private autonomy between the parties to the labor contract, and thus, sanctions against such obligation should be resolved by imposing civil liability, such as compensation for damages. Therefore, as a legal obligation to prevent infringement of the legal interest of an employee who is prohibited by the Criminal Act from performing the obligation to provide labor under a labor contract, it cannot be said to be an “voluntary obligation” that constitutes “the crime of interference with business by omission.” This is a criminal non-performance of the obligation to act in a crime of omission under a labor contract that causes damage to an employer by failing to perform the obligation to provide labor under a labor contract. However, it is a criminal obligation to compel an employee to provide labor under a labor contract. This is a fundamental denial of the freedom or right not to work pursuant to his/her own intention. It is not necessary to say that this is unreasonable. Therefore, it does not mean that an employee who is an obligation to provide labor under a labor contract violates the duty to act.

Next, it is considered as collective labor relations between workers' organizations and employers' organizations.

In a case where a strike satisfies the legitimate requirements as an exercise of collective action rights guaranteed as a fundamental right under the Constitution, this is an act of constitutional justification, and thus, it cannot be deemed as a threat of force, which constitutes an element for the crime of interference with business (see Constitutional Court en banc Order 2009Hun-Ba168, Apr. 29, 2010). In this regard, it is reasonable to abolish a part of the previous precedents that the Majority Opinion stated that “a strike constitutes a strike or power as a matter of course, and, in a case where a strike is conducted as a legitimate industrial action, it is reasonable to exclude illegality.” However, it is questionable whether a worker’s refusal to provide labor in group without meeting the legitimate requirements for an industrial action while the strike is in operation of the strike does not constitute a violation of the duty to act required for the workers in violation of the labor contract, unlike the worker’s nonperformance

The Majority Opinion also argues that the strike takes place as an act falling under the “compact” of the crime of interference with business by force and causes a serious confusion or enormous damage to the employer’s business operation at a time unforeseeable by the employer, and ultimately, the strike appears to have presented some cases where the strike is not justified. In recognizing the crime of interference with business by force as a quasi-compacte crime, the duty of commission should be recognized that the worker should not engage in the illegal strike leading to the above situation. However, there is no legal basis for recognizing the duty of commission on the part of the worker in relation to industrial action under the Trade Union and Labor Relations Adjustment Act (hereinafter “Labor Relations Adjustment Act”) which regulates labor relations in relation to the exercise of the right of collective action, etc., or for any other reason, there is no other legal basis for recognizing the duty of commission on the part of the worker.

Unlike other contractual relationships, labor-management relations refer to “individual labor relations” centered on the relationship between workers and employers as parties to a labor contract, and also refer to “collective labor relations” based on which workers’ organizations and employers’ organizations representing labor unions as parties (Article 2 subparag. 5 of the Trade Union and Labor Relations Adjustment Act refers to “labor relations” as “parties to labor relations”).

Collective labor relations are legal relations formed in relation to the exercise of three labor rights, such as the right to organize, the right to collective bargaining, and the right to collective action guaranteed by the Constitution. Such collective labor relations mainly consist of the formation and coordination of labor-management relations with employers, employers, or employers’ organizations at a substantially equal position through a collective association that is independently organized by workers. Therefore, the basic principle of collective labor relations is to promote autonomous discipline and resolution between workers’ organizations and employers’ organizations without interference with the State, etc. In addition, collective labor relations are referred to as “collective autonomy” in another form of private autonomy.

Industrial action, such as strike of workers, which is guaranteed by Article 33(1) of the Constitution, is an act to protect workers by themselves in a situation where workers are placed in place for the maintenance and improvement of labor relations. Therefore, infringement of the legal interests of employers caused by industrial action, such as omission in the situation where the employer is unable to perform his/her production duties, is an inevitable result regardless of whether the employer’s exercise of collective action rights is illegal in collective labor relations. This is nothing more than that of a contractual relationship that promises to cause damages to the other party. In other words, even if an industrial action is conducted without justification, its substance is merely a breach of the duty required by the workers’ organization in collective labor relations between workers’ organizations and employers’ organizations, and thus, it is unreasonable to recognize the duty to act as unlawful for the reason that it does not constitute a violation of the Criminal Act that allows the other party to act in a collective labor relationship, such as a violation of the Act on the Prevention of Violations of Interests and Interests of Workers. Thus, it is unreasonable to recognize the duty to act as an autonomous one of the parties to labor relations.

In the end, recognizing the duty of a worker to act as an illegal industrial action shall not be deemed to be an act of strike on the part of the worker, because it recognizes the status of a guarantor to an employer or employers' association that is the other party to the conflict of individual and collective legal relations as a guarantor to guarantee the performance of the obligation of the worker who is the other party to the employer or employers' association. Thus, the workers' refusal to provide a simple labor shall not be deemed to have the value equivalent to the infringement of legal interests arising from the active act of obstruction of the employer'

C. Criteria for determining whether the crime of interference with business constitutes “defensive force” as an element of the crime of interference with business

In exceptional circumstances like the majority opinion, even if a simple strike is deemed as a threat of force under exceptional circumstances, we cannot agree with the criteria for determining whether it constitutes a threat of force as presented by the majority opinion.

First of all, I think the principle of no crime without law.

Article 314(1) of the Criminal Act provides that the crime of interference with business is established when an industrial action interferes with another person’s business by deceptive means or by force. In history, the crime of interference with business under the former Criminal Act was committed by the crime of interference with business under the former Criminal Act of Japan, and the original form of the crime of interference with business under the latter Criminal Act is the French Criminal Act. In 1864, Article 414 of the former Criminal Act of France provided that “for the purpose of compelling wage seal or wage seal, or for the purpose of interfering with the free operation of industry or labor, the systematic suspension of labor by force, assault, threat, or deceptive means, or for the purpose of hindering the free operation of industry or labor, the crime of interference with business may be punished only when the industrial action entails violence.” Meanwhile, Article 270 of the former Criminal Act of the Republic of Korea, which was amended in 184, has been amended in order to ensure the increase of wages by the employees of the agriculture and the agriculture industry or to change the tendency of the agriculture industry.”

In addition, the concept of "defluence", one of the constituent elements of the crime of interference with business, belongs to a very broad and ambiguous type of act. Of course, as stated in the majority opinion, our precedents understand the concept of "defluence and confusion" as "all forces capable of suppressing and mixing human free will," but it is true that the concept still has a relatively broad and ambiguous general provision in spite of such a sofluence. Therefore, in interpreting the concept of "defluence", it is necessary to pay close attention so as not to expand without permission the appearance of such concept. For example, in legal relations under private law, expanding the scope of power on the grounds that it may result in the risk or result of infringement of legal interests of the other party to the extent that it might be punished as the crime of interference with business. Likewise, in this case, even if the simple strike at issue does not meet the requirements of legitimacy as an industrial action, the concept of "defluence" and the concept of "defluence" should not be included in the concept of "defluence and confusion of the other party's."

As seen above, in Japan, which has almost the same provision as our criminal law with respect to the crime of interference with business by force, only those which interfere with the employer's business by means of violence, such as assault or intimidation, is punished, and simple strike which does not involve such violent means does not involve any problem of criminal punishment by the crime of interference with business. In addition, in addition, in the present European countries and the United States other than Japan, illegal industrial actions are merely a matter of civil liability or disciplinary responsibility, such as compensation for damages, and violence, intimidation, coercion, coercion, destruction of property, etc. caused by industrial actions are subject to punishment such as assault, intimidation, coercion, coercion, destruction of property, etc., and there are no cases where they are subject to criminal punishment such as the crime of interference with business by simple strike which is not accompanied by such violence. In this respect, the majority opinion that includes simple strike as force goes beyond the universal position of the majority opinion.

In addition, if an industrial action does not meet the requirements of legitimacy as an industrial action, it is possible to interpret that the industrial action is subject to punishment for interference with business by force in any case when it takes place at a time unforeseeable by the employer. As to the case where the monthly paid leave is legitimate as an industrial action under the Labor Standards Act or an industrial action under the Trade Union and Labor Relations Adjustment Act does not meet the requirements of legitimacy, unlike annual paid leave, the use of the monthly paid leave is entrusted to the free will of the employee, and it does not have the authority to change the period to the employer. However, if multiple workers were to use it as a means of interference with business without a legitimate purpose, it is deemed that the act constitutes interference with business if it interferes with the normal operation of the company by filing an application for monthly paid leave at one time and without a justifiable reason, and it is also justifiable to conclude that the industrial action is not subject to punishment for interference with business by force 90Do297, Jan. 29, 191.

Although it is limited to a certain exceptional situation, the Majority Opinion that simple strike constitutes “compact” of the crime of interference with business, as seen earlier, does not even apply to compelling workers to “duty to work” as a penalty. However, Article 1(d) of the International Labor Organization (ILO) No. 105 of the Treaty on the Discontinuation of Forced Labor) prohibits workers from deeming sanctions as compulsory labor. The International Labor Organization Commission’s freedom of association has continued every year since 2000, and the United Nations Economic, Social, and Cultural Right Committee has repeated in 2009, and it also faces criticism in the international society, such as recommending workers to refrain from punishing “non-vic act” under Article 314 of the Criminal Act.

On the other hand, it is clear that the illegal simple strike does not constitute the crime of interference with business by force, but there is a gap in punishment for the illegal act itself.

In other words, Articles 37 through 46 of the Trade Union and Labor Relations Adjustment Act provide for the principle, subject, procedure, method, etc. of an industrial action, and Articles 88 through 91, which are penal provisions, provide for a penal provision that imposes imprisonment for not more than five years or a fine not exceeding 50 million won (see Article 88 of the Trade Union and Labor Relations Adjustment Act), or a penal provision that imposes a fine not exceeding 10 million won (see Article 91 of the Trade Union and Labor Relations Adjustment Act), on the other hand, punishment shall be imposed by imprisonment for not more than five years or a fine not exceeding 50 million won (see Article 91 of the Trade Union and Labor Relations Adjustment Act).

If an employee who participated in an industrial action becomes subject to punishment for the crime of interference with business under the Criminal Act on the grounds that it is difficult to recognize the legitimacy of the industrial action itself due to various violations of the Trade Union and Labor Relations Adjustment Act, the former Trade Union and Labor Relations Adjustment Act does not require a separate penal provision that provides the same as the statutory punishment for the crime of interference with business or a minor punishment. Therefore, as long as an employee was engaged in an industrial action, such as a strike to refuse to provide labor on a passive basis, but does not entail the means of violence, intimidation, coercion, coercion, etc., even though the employee did not meet the legitimacy of the industrial action in violation of the above provisions under the Trade Union and Labor Relations Adjustment Act, the employee cannot be punished as the crime of interference with business under the Criminal Act on the ground of the industrial action, and the employee may be punished as the crime

Finally, it is questionable whether the Majority Opinion, based on the determination of whether a simple strike constitutes a threat of force, citing “the situation that the strike was conducted in a full time at which the employer was unable to cope with it,” and “the situation that the employer caused a serious confusion or enormous damage to the employer,” as a basis for determining whether a simple strike constitutes a threat of force, is clear enough to present it as a reasonable interpretation of penal provisions.

The Majority Opinion’s interpretation by limiting the concept of force to a certain extent by deeming that a simple strike cannot always be deemed a strike without justification is a serious position in light of the attitude of the previous precedents. However, even according to the standard for determining whether a strike constitutes a strike as presented by the Majority Opinion, it does not necessarily mean that any case can be seen as having been conducted on a full basis, and that the scope may be divided into serious confusion or enormous damages. Therefore, even according to the interpretation theory of the Majority, even if it is based on the interpretation theory of the Majority, the general provision of the concept of “defensive” as provided by Article 314(1) of the Criminal Act does not sufficiently dismiss, and it is difficult to say that there exists a concern for arbitrary application of the law in specific cases where the establishment of the crime of interference with business by force is at issue.

D. The legitimacy of applying the Majority Opinion’s legal doctrine in this case

As pointed out earlier, I cannot agree with the interpretation theory of the majority opinion on the concept of power. However, further, even if the standard of determination presented by the majority opinion on whether it constitutes a power is applied to this case, it is difficult to view that it constitutes a case where the defendant exercises power.

In other words, according to the reasoning of the judgment below and the evidence duly admitted by the court below, in the mediation procedure applied on November 10, 2005 by the Korean Railroad Workers' Union, the Special Mediation Committee concluded that there is no possibility of mediation due to a significant difference between labor and management, and concluded mediation without presenting a mediation proposal on November 25, 2005, and upon the submission of a written promise from the Korean Railroad Workers' Union to the effect that it will faithfully respond to the negotiation without strike until December 16, 2005, it shall withhold the referral of arbitration, and if it is obvious that it would lead to industrial action in the future, it shall recommend that the relevant place of business be referred to arbitration. The chairperson of the National Labor Relations Commission shall withhold the referral of arbitration, and the Special Mediation Committee shall finally withhold the referral of arbitration until November 31, 2006, and the National Railroad Workers' Union shall not make a decision 200 days prior to the commencement of negotiations between the Korea Railroad Workers' Association and the Korea Railroad Workers' Association.

In light of these facts, the Korean Railroad Workers' Union has endeavored to autonomously negotiate prior to the industrial action such as the instant strike. In principle, the Korea Railroad Workers' Union made efforts to refer to arbitration within 30 days from the date of filing an application for mediation pursuant to the relevant provisions, such as Article 54 of the former Trade Union Act. However, the Korea Railroad Workers' Union issued an ex officio decision of February 28, 2006 when three months have much passed since the National Labor Relations Commission's modified decision, such as the postponement of referral to arbitration, and in particular, the Korea Railroad Workers' Union cannot be seen as legitimate if it had clearly expressed its intention not to maintain the commitment of the strike, which is the basis for the pre-existing decision of deferment of referral to arbitration, on January 31, 2006, and the Majority Opinion cannot be seen as having sufficiently predicted the concept of referral to arbitration including the instant industrial action, even if it was almost about 01:0 of March 1, 2006, it could not be seen that the previous decision could not be seen as legitimate before or after the industrial action.

Furthermore, insofar as the means of the strike of this case is limited to a worker’s refusal to provide a collective passive labor without any speech or behavior that is contrary to violence or otherwise, it is difficult to readily conclude that the loss caused by the strike of this case is damage based on the dynamicity of the strike of this case.

Therefore, even in light of the legal principles of the majority opinion, the strike of this case led by the defendant cannot be seen as a "defensive force" under Article 314 (1) of the Criminal Act, as a force capable of suppressing and mixing free will about the continuation of business of the Korea Railroad Corporation.

Therefore, we cannot agree with the majority opinion that held the judgment of the court below that the strike of this case, which is a mere refusal of collective labor, constitutes the crime of interference with business, is limited to the fact that the strike of this case violated Article 63 of the Trade Union and Labor Relations Adjustment Act and the damage suffered by the Korea Railroad Corporation due to the strike of this case during arbitration.

E. Conclusion

In light of the above legal principles, the facts charged against the Defendant, which led the strike of this case, which was conducted by members of the Korean Railroad Workers' Union simply refusing to provide labor, cannot be deemed to meet the elements of the crime of interference with business. However, on the contrary premise, the lower court acknowledged the Defendant’s liability for the crime of interference with business, thereby affecting the conclusion of the judgment by misapprehending the legal principles on the interpretation of Article 314(1) of the Criminal Act. Therefore, the lower court’

Therefore, I express my dissent from the Majority Opinion as above.

Chief Justice Lee Yong-hoon (Presiding Justice)