[1] Where an employer’s expression of opinion through a speech, in-house broadcast, etc. constitutes unfair labor practices under Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act, and the method of determining whether the employer has an intent to control or intervene in the organization, operation and activity of a trade union

[2] The contents of the “Objection” necessary to establish the crime of interference with business

[3] The standard of determining “influence” and “influence” in the crime of interference with business, and whether the establishment of the crime of interference with business requires “influence of interference with business” (negative)

[4] The case holding that the judgment below which acquitted the Defendants on the ground that the above special education did not constitute "business" due to unfair labor practices such as the control and intervention of trade union operation, in case where Gap, the negotiating members of the Korea Railroad Corporation, before the scheduled date of strike, was indicted for obstructing Gap's business by force, such as defects in conducting special education, such as briefing sessions, against the employees of the vehicle maintenance team Gap, and the Defendants, etc., who are union executives, were indicted for obstructing Gap's business by force

[1] Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act / [2] Article 314(1) of the Criminal Act / [3] Article 314(1) of the Criminal Act / [4] Article 314(1) of the Criminal Act, Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act, and

[1] Supreme Court Decision 2006Do388 Decided September 8, 2006 (Gong2006Han 1703), Supreme Court Decision 201Do15497 Decided January 10, 2013 (Gong2013Sang, 366) / [3] Supreme Court Decision 2009Do4141 Decided May 24, 2012 / [2] Supreme Court Decision 2008Do9410 Decided January 15, 2009 / [3] Supreme Court Decision 98Do3767 Decided May 14, 199 (Gong199Sang, 1213) 200Do32319 Decided March 29, 2009; Supreme Court Decision 200Do323149 Decided March 29, 202; Supreme Court Decision 2009Do4105 Decided March 29, 2002

Defendant 1 and eight others

Prosecutor

Attorney Choi Sung-ho

Seoul Western District Court Decision 2011No511 Decided February 21, 2012

The judgment of the court below is reversed, and the case is remanded to the Seoul Western District Court Panel Division.

The grounds of appeal are examined.

1. Of the facts charged in the instant case, as to the obstruction of business by Defendants 1, 2, 3, and 4

A. The summary of this part of the facts charged is as follows: (a) around 13:00 on May 11, 2010, the above Defendants knew of the fact that Nonindicted 1 of the Korea Railroad Technology Corporation seeks to provide special education to the management environment, such as explanation of the overall railroad situation of the Korea Railroad Corporation and its impact on the company at the time of strike, against approximately 350 employees belonging to the Seoul Railroad Enterprise Maintenance Group; (b) Defendant 1 instructed the labor union executives to gather in the future; (c) the rest of the Defendants, together with other labor union executives, such as Nonindicted 2, 3, 1, 4, and 5, by gathering together with other labor union members, and union members and union members, obstructed the passage connected to the party platform and obstructed some defects of the employees of the District Education Office, and conspired with them to interfere with the duties of the Korea Railroad Corporation by force.

As to the above facts charged, the court below found the Defendants not guilty on the ground that: (a) Nonindicted 1’s act of making a tour of the site under the Korea Railroad Corporation and providing such special education (hereinafter “the instant special education”) to its employees cannot be deemed as an act of unfair labor, and thus, it constitutes an act of unfair labor and thus cannot be deemed as an act of protection of the crime of interference with business; and (b) even if the above special education constitutes an act of protection of the crime of interference with business, the above Defendants have justifiable grounds for misunderstanding the above special education as an act of unfair labor; and (c) the said Defendants cannot be deemed as having committed a crime of interference with business.

B. However, it is difficult to accept the above determination by the court below for the following reasons.

(1) First, we examine whether the instant special education constitutes a business subject to protection of the crime of interference with business.

Where an employer expresses his/her opinion through a speech, in-house broadcast, notice, letter, etc., if it is acknowledged that he/she has an intention to control or intervene in the organization, operation, and activities of a trade union by taking into account the situation, time, place, method, impact on the operation or activities of a trade union, etc. of the expressed opinion along with the contents of the expressed opinion, the unfair labor practice has been established as “the act of controlling or participating in the organization or operation of a trade union by an employee” under Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act, and the establishment of unfair labor practices as a control or intervention does not necessarily require the result of infringing the employee’s right to organize (see Supreme Court Decision 2006Do388, Sept. 8, 200

However, since an employer has the freedom to express his/her own opinion, an employer’s act of simply expressing a critical opinion on the activities of a trade union or holding a collective briefing session, etc. against an employee to explain and seek understanding of the company’s business situation and policy direction, etc., or an act of explaining the legitimacy and legitimacy of the strike and the impact of the strike on the company or its workers even though the strike is scheduled, as long as the strike does not include a threat of disadvantage, such as disciplinary action, or the promise to provide benefits, or an act of explaining the impact of the strike on the company or its workers, etc., and it is not readily concluded that the employer has an intention to control or intervene in the organization, operation and activities of a trade union (see Supreme Court Decision 2011Do15497, Jan. 10, 2013).

According to the reasoning of the judgment of the court below and evidence duly adopted by the first instance court, ① the Korea Railroad Corporation on November 24, 2009, terminated its collective agreement with the National Railroad Workers' Union (hereinafter "the trade union of this case"), the trade union of this case was engaged in strike from November 26 to December 2 of the same year, and returned to work on December 3 of the same year. ② The trade union of this case was scheduled to hold negotiations with the Korea Railroad Corporation even though it continued to engage in collective bargaining with the company, and notified the Korea Railroad Corporation of the fact that it would engage in strike again (the scheduled date of the strike is around 04:00 on May 12, 2010). ③ The head of the technical center of the Korea Railroad Corporation would not have any influence on other employees of the Korea Railroad Corporation, including the dispatch of the vehicle of this case, ④ The head of the education team of this case would have any influence on other employees of the Korea Railroad Corporation, including the dispatch of the vehicle of this case on May 11, 2010.

In light of the progress, etc. of such tour briefing sessions, the contents of Nonindicted Party 1’s explanation in the special education of this case are deemed to be similar to those of other local briefing sessions, but the lower court did not have specifically deliberated on the contents thereof. If there is no difference between the contents of Nonindicted Party 1’s explanation at the second floor conference room of the Seoul Railroad Enterprise Office prior to the instant case and about about 10 minutes, it is difficult to conclude that the contents of the explanation are beyond the scope of the freedom of speech permitted by the employer, as it is difficult to conclude that Nonindicted Party 1 expressed critical opinions on the strike policy proposed by the employer, such as explaining the overall status of the Korea Railroad Corporation in the scheduled situation of strike and the impact of strike on the company, and complaining for and benefiting from the employer’s participation in the strike.

In addition, there is no evidence suggesting that Nonindicted 1 or the Korea Railroad Corporation executives have intended to control or intervene in the organization or operation of a trade union in the course of Nonindicted 1’s attempt to conduct the special education of this case.

Therefore, the court below should have determined whether the special education in this case was presumed to have an intention to control the operation or activities of a trade union or to intervene in the activities of a trade union in the following circumstances: although the special education in this case was scheduled at the time of the strike, it should have specifically deliberated on the contents of the statement made by Nonindicted 1 in another region, the influence that such remarks, etc. may have influenced or may have influenced the activities of the union members or the trade union, and before and after the premise of recognizing the unfair labor practices of control or intervention, such as the legitimacy of the originally scheduled strike, etc.

Nevertheless, without doing so, the lower court determined that the special education in this case cannot be readily concluded to be “the act of controlling or participating in the operation of a trade union,” which constitutes the business subject to protection in the crime of interference with business. In so doing, the lower court erred by misapprehending the legal doctrine on the establishment of unfair labor practices by control and intervention, or on duties as the object of protection in the crime of interference with business, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

(2) Next, we examine whether there is a justifiable reason for the said Defendants to mislead Nonindicted 1’s special education of this case as unfair labor practice, and whether the said Defendants had a criminal intent to interfere with their business.

Article 16 of the Criminal Act provides that an act of misunderstanding that one's own act does not constitute a crime under the Acts and subordinate statutes shall not be punishable only when there is a justifiable ground for misunderstanding. Generally, an act of misunderstanding that one's own act constitutes a crime but it is recognized that it does not constitute a crime under the Acts and subordinate statutes in his own special circumstances, and that an act of misunderstanding that one's own act does not constitute a crime shall not be punishable if there is a justifiable reason for misunderstanding (see, e.g., Supreme Court Decisions 91Do2525, May 22, 1992; 200Do1696, Jan. 25, 2002). Whether there is a justifiable reason should be determined depending on whether the act of misunderstanding was committed with due care and verification of the illegality of the act of misunderstanding that one's own act could have been recognized, and the degree of efforts to recognize illegality should be determined depending on whether the act of misunderstanding was not recognized as a result of the act of misunderstanding.

In addition, the crime of interference with business does not necessarily require the intention of interfering with business or planned interference with business, and it is sufficient to recognize or anticipate the possibility or risk of interfering with business of another person due to one’s own act, and its recognition or prediction is not only definite but also so-called willful negligence (see Supreme Court Decision 2008Do9410, Jan. 15, 2009). The term “comforcing force” in the crime of interference with business includes all force that may interfere with human free will, regardless of its type or form, it is not possible to interfere with business, and it is also included in 100, 200, 300, 200, 200, 300, 200, 300, 200, 10, 30,000, and 9,000,00,000,000,000,000,000,00,000.

According to the reasoning of the judgment below and the record, Defendant 1, Defendant 2, Defendant 3, and Defendant 4, who are the executive officers of the instant trade union, determined that “the employer would provide special education with the intent to prevent the union members from engaging in the strike,” and could have avoided the instant special education in the same manner as seen earlier. However, solely based on the circumstances stated in the judgment below, it cannot be deemed that the above Defendants made a serious effort to prevent the above Defendants from causing mistake that the instant special education constitutes unfair labor practices. Thus, even if the above special education was erroneous as constituting unfair labor practices, it cannot be said that there were justifiable grounds.

Furthermore, as seen earlier, Defendant 1, Defendant 2, Defendant 3, and Defendant 4 knew that Nonindicted 1 wanted to conduct the instant special education at the Rolling Party at the Rolling Party at the Rolling Party at the Seoul Rolling Party at around 13:00 on May 11, 2010, and Defendant 1 instructed the union executives to gather in the future. The rest of Defendants 2, Nonindicted 3, Nonindicted 1, Nonindicted 4, and Nonindicted 5, together with other trade union executives such as Nonindicted 2, Nonindicted 3, Nonindicted 4, and Nonindicted 5, by gathering in front of the presidential party, obstructed some employees from entering the district office of education, and prevented them from entering the district. Accordingly, according to the aforementioned legal principles, even if Nonindicted 1’s act was ultimately giving up the special education in the Seoul metropolitan area and was likely to directly interfere with the said activities, it is reasonable to deem that the act constitutes an intentional interference with the said Defendants’ activities by force.

Nevertheless, solely for the reasons indicated in its holding, the lower court determined that there was a justifiable reason even if the said Defendants mispercing the instant special education as unfair labor practice, and further determined that the said Defendants did not have any intent to commit the crime of interference with business. In so doing, the lower court erred by misapprehending the legal doctrine on the legitimate grounds under Article 16 of the Criminal Act and the crime

2. Of the facts charged in the instant case, as to the intrusion upon the structure of Defendants 5, 6, 7, 8, and 9

A. The summary of this part of the facts charged is as follows: (a) the above Defendants, as the executives of the instant trade union or the Seoul Regional Headquarters of the said trade union, failed to educate Nonindicted Party 1 with the knowledge that the special education of this case was conducted; (b) sought to enter the building of the Seoul rolling stock rolling stock maintenance group by getting on May 11, 2010 a 73Mo137 rolling stock owned by the instant trade union and getting on a rolling stock maintenance group; (c) however, (d) attempted to open a broom and open a broom by putting his hand on the broom in the creshes of the broom in which the broom was corrected; (d) attempted to keep two security guards, including Nonindicted Party 8, etc., from cutting off the locks of the entrance in order to prevent them from being opened in person; and (e) cancelled the locking system after cutting on the rolling stock after passing through the rolling stock maintenance group, and then intrude them into another person’s joint building by breaking it.

The court below determined as follows: (a) pursuant to Article 11(4) of the collective agreement of this case, the Corporation provided that “the Corporation shall not restrict access to offices of associations (branch offices) and outside persons, without any special reason; (b) the members including ordinary Defendants were allowed to freely access to the Seoul rolling stock maintenance team; (c) the Korea Railroad Corporation at the time of this case installed a lock-out system on the entrance for the reason that Nonindicted 1 interfered with education; (c) the special education of this case is likely to constitute unfair labor practices; (d) the act of the Korea Railroad Corporation controlling members’ access by reason of the implementation of the above education; and (d) it is difficult to conclude that the special education of this case constitutes the business of interference with the operation of the above special education; and (e) it is difficult to conclude that the above Defendants did not have access to the entrance of the above Defendants on the ground that it did not interfere with the business of others.

B. However, it is difficult to accept the above determination by the court below for the following reasons.

Even if a person has been permitted to enter a normal building due to the relationship with a resident or manager, if the person enters the building in question against the explicit or presumed intention of the manager, the crime of intrusion on a structure is established (see, e.g., Supreme Court Decisions 94Do336, Sept. 15, 1995; 95Do2674, Mar. 28, 1997; 2006Do7079, Mar. 15, 2007; 2007Do2595, Aug. 23, 2007; 2009Do5686, May 13, 2010).

According to the reasoning of the judgment below and the evidence duly adopted by the court of first instance, the Korea Railroad Corporation at the time shall not interfere with the education of the business of Non-Indicted 1, and shall be deemed to have entered the Seoul rolling stock maintenance team in which access was controlled by the door through the door, so as not to interfere with the education of the business of the non-Indicted 1; Defendant 5, Defendant 6, Defendant 7, Defendant 8, and Defendant 9 shall restrain two security guards from entering the door, and shall remove the lock door from the door door, which was corrected, and pass through the door, and shall enter the vehicle near the party, which is scheduled to open the special education of this case; regardless of whether the above defendants committed the act of interference with the business, such as the campaign with the loudspeaker installed on the vehicle near the party, and it shall not be deemed that the above defendants simply visited the trade union of this case or its branch office, or entered the Seoul rolling stock maintenance team to collect evidence for unfair labor practices.

In addition, as seen earlier, the lower court erred in its determination that the special education in this case cannot be deemed as a business subject to protection of the crime of interference with business because it constitutes unfair labor practice, and thus, the lower court’s evaluation on the act on the part of the Korea Railroad Corporation which controlled the above Defendants cannot be maintained

Therefore, even if the above defendants are permitted to enter the ordinary rolling stock maintenance team, it shall be deemed that they entered the rolling stock management team against the explicit or presumed intent of the Korea Railroad Corporation, which is the manager. Therefore, the crime of intrusion upon a structure shall be deemed to be established in accordance with the aforementioned legal principles.

Nevertheless, the lower court, solely on the grounds stated in its reasoning, determined that it is difficult to readily conclude that the above Defendants’ act of entering the door door through the door door intrudes another person’s structure. In so doing, the lower court erred by misapprehending the legal doctrine on the crime of intrusion upon a structure, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)