(영문) 대법원 2011.10.27.선고 2009도6260 판결

1. As to the ground of appeal No. 1, 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 of force” refers to any force that may suppress and confuse a person’s free will

The strike as an industrial action that obstructs the normal operation of business by refusing to provide labor for the purpose of accomplishing his/her claim is not merely an omission to refuse to provide labor under a labor contract, but also an exercise of power to collectively suspend the provision of labor for the purpose of accomplishing the worker's claim, and thus, includes the elements of force as referred to in the crime of interference with business. However, an employee may be restricted by reason of public interest such as national security, maintenance of order, or public welfare pursuant to Article 37(2) of the Constitution, and the exercise of his/her right should be justified. However, in principle, an employee has the right to independent right to organize, collective bargaining, and collective action to improve working conditions (Article 33(1) of the Constitution). Therefore, a strike as an industrial action does not always constitute the crime of interference with business, and in light of the situation and circumstance before and after the industrial action, it is reasonable to deem that the employer's free will to continue its business can be deemed to be a collective threat of business operation (see, e.g., Supreme Court en banc Decision 2017Du17).

Examining the reasoning of the judgment below in light of the records, the court below is justified in rejecting the defendant's assertion that the collective bargaining and industrial action were conducted at the time of each unit workplace trade union's collective bargaining and the time of industrial action, which are the so-called so-called "joint strike of time" that the strike of this case was mainly aimed at the counter-import of U.S. beef that cannot be subject to collective bargaining on July 2, 2008, after compiling the evidence adopted by the court below.

However, as to whether the general strike on July 2, 2008 led by the defendant et al. caused a serious confusion or enormous damage to the business operation of the individual user by taking place at a time unforeseeable by the individual user, the victim, etc., in light of the fact that it is difficult to deem that the strike scale alone caused a serious confusion or enormous damage to the business operation of the individual, among 100 workers, such as the participation in the two-hour strike on the ground of the participation in the regional assembly, etc., by two of them, it is difficult to deem that the business size alone caused a serious confusion or enormous damage to the business operation of the individual, there is room to deem that some of the business places specified in the facts charged in this part does not constitute a case where it can be evaluated that the free will to continue the business of the individual user could cause pressure

Nevertheless, the court below erred by misapprehending the legal principles on the crime of interference with business, which found the Defendant’s act to constitute the crime of interference with business without properly examining and determining the above circumstances, and thereby convicted all of the facts charged, thereby affecting the conclusion of the judgment.

2. As to the second ground for appeal

According to the reasoning of the judgment below, in light of the facts acknowledged by its adopted evidence, the court below determined that the defendant's act of obstructing the business of the union members, such as giving guidelines for the strike before and after the strike and holding joint meetings around the store, etc., with the knowledge that each of the strike in this case related to AE Group was not a legitimate strike, was actively attempted, and that the defendant and the union members had a comprehensive or individual communication or awareness of illegal strike with each other, either successively or implicitly through mutual intent, and the defendant shared a certain role, and thus, the defendant constitutes a co-principal of the obstruction of business in this part. In light of the relevant legal principles and records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error in the misapprehension of law of logic and experience or the principle of free evaluation of evidence, contrary to what is alleged in the ground of appeal.

3. Conclusion

Therefore, among the judgment of the court below, each obstruction of business due to the general strike on July 2, 2008 should be reversed, and the court below rendered a single sentence on the ground that this part of the judgment of the court below is a concurrent crime under the former part of Article 37 of the Criminal Act with the remaining criminal facts, and thus, the whole judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per