7. Interference with Business by force under the Criminal Act

[21-1(B) KCCR 74, 2009Hun-Ba168, April 29, 2010]

In this case, the Constitutional Court held constitutional the part of "a person who interferes with the business of another by the threat of force," not violating the rule of clarity related to the principle ofnulla poena sine legeand the right to collective action.

Background of the Case

On July 27, 2007, petitioner, in front of OOWorldcup Stadium store, staged a protest with other union members etc., for about ten hours and twenty minutes against the dismissal of temporary employees by OO Co. Ltd and tried to occupy the store. Later, the petitioner was notified that a summary order was rendered against him, imposing a fine of 1.5 million won for interference with business by using threat of force in confrontation with the police while staging the protest in violation of Article 314 Section 1 of the Criminal Act (hereinafter, the "Instant Provision"). At this, the petitioner filed a suit and the Seoul Central District Court sentenced a fine of 1.5 million won. Subsequently, the petitioner appealed and while pending the case, he filed a motion to request for a constitutional review of the Instant Provision. Following the denial of the appeal and the motion on June 11, 2009, the petitioner filed this constitutional complaint on July 23, 2009.

Provisions at Issue

Criminal Act (Revised by Act No. 5057, Dec. 29, 1995)

Article 314 (Interference with Business) ① A person who interferes with the business of another by the method of Article 313 orby the threat of force, shall be punished by imprisonment for not more than five years or by a fine not exceeding fifteen million won.

Summary of the Decision

In a unanimous opinion, the Constitutional Court held that the Instant Provision does not violate the Constitution for the following reasons:

1. Whether the rule of clarity is violated

'Threat of force' in the Instant Provision includes all kinds of force that suppress and confuse one's freedom of opinion, and 'business' means any work or business in which a person has been continuously engaged based on its social status, and such definitions are things that can be widely accepted and understood by anyone who has sound common sense and general legal sentiment. Therefore, the Instant Provision does not violate the rule of clarity, which is one of the related themes of the principle ofnulla poena sine lege.

2. Whether the right to collective action is violated

(1)The Constitutional Court has demarcated the limit of labor dispute by stating that "when anyone involved in labor relations undertakes a labor dispute, limitations in the purpose, method and procedure of such a dispute should be respected and the civil and criminal responsibility of the parties involved in the labor dispute can be acquitted only when such a dispute is held within the limitations.... Labor dispute is the last coercive measure to which the parties involved in labor relations resort in order to take favorable position for entering into a collective agreement that stipulates salary and working position, etc. Therefore, a labor dispute is allowed only when the purpose of such a dispute is to achieve what can be the subject matters of a collective agreement and the dispute is entered by those who can be the parties of a collective agreement (2 KCCR 14, 89Hun-Ka103, January 15, 1990)." Interpretation of the Instant Provision based on the aforementioned standard would clearly reveal that the crime of interference with business under the Criminal Act only applies to the disputes that are illegitimate going beyond the innate limitations of the right to collective action.

Therefore, applying the Instant Provision only to a labor dispute that

results in interference with business beyond its limitations in the purpose, method and procedure and punishing such a labor dispute cannot be regarded as infringing on the right to collective action guaranteed by the Constitution.

But, the Constitution, while guaranteeing the right to collective action as one of the fundamental rights in Article 33 Section 1, does not have any provision that provides for separate statutory reservation regarding the right to collective action. Also, as labor dispute is the core of the right to collective action and it naturally causes the employer's business inconvenience or disturbance, such inconvenience in one's business, which can be justified as a thing naturally accompanied when exercising one's fundamental right, cannot be considered as illegal in principle falling under the crime of interference with business.

The interpretation that an act, which is legitimate under the Constitution as exercise of the right to collective action satisfying the elements required by the Labor Act, is criminal but the act is justified seems excessively curtail the scope of protection for the fundamental rights under the Constitution by lower law such as Statue or Act.

Therefore, in reviewing whether a labor dispute in a specific case can be punished by the Instant Provision as going beyond its innate limitations in the purpose, method and procedure, we should not scale down the scope of protection for workers' right to collective action guaranteed by Article 33 of the Constitution too much.

3. Whether the principle of equality and the rule against excessive restriction are violated

The crime of interference with business under the Criminal Act is different from other crimes stipulated in the provisions related to labor law in terms of the legally protectable interests or the seriousness of the crime and also basically different sentencing standards are applied. Therefore, it is hard to conclude that the legislative discretion is arbitrarily exercised in this Instant Provision, thereby violating the principle of equality in relation to other criminals, the principle of proportionality or the rule against excessive restriction.