Defendant

Defendant

Ise-dong

Attorney Song Young-young

Seoul Central District Court Decision 2006Ra1724 Delivered on May 24, 2006

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 10,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

The 49 days of detention before the pronouncement of the judgment below shall be included in the period of detention in the workhouse.

1. Summary of grounds for appeal by the defendant;

A. misunderstanding of legal principles

① The strike of this case is just in the subject, means, and purpose of the strike of this case, as well as in the process of the decision of the National Labor Relations Commission to refer the case to arbitration itself, and it constitutes a legitimate exercise of the right to collective action. ② The strike of this case is merely a passive refusal to provide labor, and it does not constitute a "defensive force" of the crime of interference with business. ③ In order to establish the crime of interference with business by omission, the duty of labor based on the labor contract requires a guarantor's status in the crime of interference with business. In order to establish the crime of interference with business by omission, workers cannot be deemed as a guarantor's status. ④ Even if the strike of this case constitutes the element of the crime of interference with business, the illegality should be avoided as a justifiable act that does not go against the social rules in light of the situation of the strike of this case, etc., but the court below erred by misapprehending legal principles

B. The assertion of unfair sentencing

Considering the circumstances of the instant case, the sentencing of the lower court against the Defendant is too unreasonable, because it is too unreasonable to take into account the following circumstances: (a) the instant strike was conducted peacefully; (b) the trade union voluntarily withdraws from the strike; and (c) the Defendant has faithfully worked in the Korea Railroad for more than ten years; and (d) there was no previous conviction for more than a suspended sentence.

2. Facts of recognition;

Comprehensively taking account of all the evidence presented by the defense counsel at the trial of the court below and duly admitted by the court below, the following facts can be acknowledged in relation to this case.

A. The Korea Railroad Corporation is a corporation that runs railroad transport service business, and is an essential public-service establishment as prescribed by Article 71(2) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Act”), and the Korea Railroad Workers’ Union is a trade union that forms workers of the Korea Railroad Corporation as its target.

B. From August 31, 2005 to November 4, 2005, the National Railroad Workers' Union and the Korea Railroad Corporation engaged in collective bargaining 43 times in total, including 6 bargaining and 37 practical negotiations, but did not reach agreement. Accordingly, pursuant to Article 53 of the Act, the National Railroad Workers' Union terminated mediation without submitting a mediation proposal, considering that the application for labor dispute mediation was defective to the National Labor Relations Commission pursuant to Article 53 of the Act, the special mediation committee organized by the National Labor Relations Commission pursuant to Article 72 of the Act, and the special mediation committee organized by the National Labor Relations Commission pursuant to Article 72 of the Act, after a prior mediation meeting, tried to present this mediation meeting on November 25, 2005 to coordinate the issues between the labor and management in the amount of 209 cases, but it was difficult to present a mediation proposal due to a sudden argument between the labor and management, making it difficult to conclude mediation.

C. However, the Special Arbitration Committee held on November 25, 2005 submitted a letter of commitment that “in order to make a decision by autonomous bargaining, it shall faithfully negotiate without strike until December 16, 2005.” The Special Arbitration Committee recommended the National Railroad Labor Relations Commission to submit a conditional referral to arbitration that “if the National Railroad Workers’ Union suspends the submission of such referral to arbitration and the trade union is highly likely to lead to industrial action without complying with the commitment, it shall recommend the submission of the relevant workplace to arbitration.”

D. On November 25, 2005, the chairman of the National Labor Relations Commission, upon request of a public interest member to present his opinion that the conditional referral to arbitration would be reasonable by the public interest members, notified the Korea Railroad Workers' Union and the Korea Railroad Corporation of the decision to withhold the referral to arbitration by December 16, 2005, which stated that “the referral to arbitration will be deferred until December 16, 2005, but if it is highly probable that the Korean Railroad Workers' Union will immediately refer to arbitration if it does not comply with the commitment, and if it is highly probable that the industrial action would be taken place without complying with

E. After that, around December 16, 2005, the Korean Railroad Workers' Union submitted a new promise to the effect that "the negotiation shall be conducted in good faith without any strike until January 31, 2006," and the chairperson of the National Labor Relations Commission notified again on December 16, 2005 that "the National Railroad Workers' Union will suspend the submission to arbitration by January 31, 2006." After that, the National Railroad Workers' Union cannot make a promise to refrain from the strike until January 31, 2006, but the chairperson of the National Labor Relations Commission expressed that "the National Railroad Workers' Union shall not make a promise to refrain from the strike." However, the chairperson of the National Labor Relations Commission would guarantee to the maximum extent the basic right of negotiation and labor by labor-management autonomy in consideration of the fact that the negotiation is continuing at the time and the specific strike is not established, the National Railroad Workers' Union and the Korea Railroad Corporation suspended the consultation with the National Railroad Workers' Association and the Korea Railroad Corporation to postpone the decision of special referral to arbitration."

F. On February 7, 2006, the Korean Railroad Workers' Union continued to conduct collective bargaining with the Korea Railroad Corporation on March 1, 2006 at around 01:00 of the total strike schedule, which was decided by the Dispute Countermeasure Committee on March 1, 2006, but finally, the negotiations between labor and management on February 28, 2006 have ended.

G. Accordingly, on February 28, 2006, the chairperson of the National Labor Relations Commission (hereinafter “the instant decision to refer to arbitration”) made on February 28, 2006, that “the National Railroad Trade Union and the Korea Railroad Workers’ Union have continued to negotiate autonomously, but did not find any final agreement on the issues at issue, and the Korean Railroad Workers’ Union publicly notifies the general strike. However, the Korean Railroad Workers’ Union is anticipated to substantially endanger the daily lives of the general public and substantially impede the national economy at the time of the strike, and thus it is anticipated that it would substantially impede the national economy.” On the same day, the National Railroad Workers’ Union and the Korea Railroad Corporation have served the decision to refer to arbitration on the same day.

H. On March 1, 2006, the executive branch of the Korean Railroad Workers' Union including the Defendant, despite the above decision of submission to arbitration, following the Central Committee for Countermeasures against Disputes No. 3 around 01:00, the Ministry of Trade, Industry and Energy announced its members of the Ministry of Trade, Industry and Energy to the effect that “all union members shall enter the general strike around 01:0 on March 1, 2006 and maintain the general strike of high frequency, which is not harsh on various wills and infinites, etc., and may not be confirmed.” After facing the judicial process, such as the issuance of the main Dong-gu arrest warrant, etc. by declaring the government's strong response policy and subsequent measures, the members of the National Railroad Workers' Union followed the judicial process, such as the issuance of the central countermeasures committee's order, and on March 2, 2006, the members of the National Assembly continued the mountain strike and the regional headquarters shall secure and continue the hub No. 2.”

I. Accordingly, the members of the Korea Railroad Workers' Union refused to work from March 1, 2006 to April 14:00 of the same month without going to work at 641 workplaces across the country, such as the Seoul rolling stock maintenance shop, etc., thereby suspending the operation of the Korea Railroad Corporation 329 times and the Saemaul 283 times. Accordingly, the Korea Railroad Corporation suffered a total of 13.5 billion won, such as operating profit, loss of substitute personnel compensation, etc.

3. Judgment on misapprehension of legal principles

A. Whether the strike of this case constitutes a justifiable industrial action

(1) The issues of the instant case

The Defendant asserts to the effect that the instant strike does not violate Article 63 of the Act, which prohibits industrial actions following the submission to arbitration, and thus constitutes a legitimate industrial action. Accordingly, the Defendant first examines whether the instant strike constitutes a legitimate industrial action under the premise of determining whether it constitutes a legitimate industrial action, under the premise of determining whether it constitutes a legitimate industrial action.

(2) Summary of the defendant's assertion

(A) The ex officio arbitration system is in violation of Article 11(1) of the Constitution that provides for the principle of equality by giving discriminatory treatment to workers engaged in essential public-service businesses without reasonable grounds, and thus, the decision to refer to arbitration based on such unconstitutional provision is unlawful, since it violates Article 37(2) of the Constitution that provides for the principle of excessive prohibition inasmuch as the labor union does not impose any restriction on the form of an industrial action that is prohibited for fifteen days after the decision to refer to arbitration, and there is no restriction on the form of an industrial action that is prohibited.

(B) The instant decision to refer to arbitration was unlawful because it violates the provisions of the law or is in fact abused or abused discretionary power by excluding the following. In other words, in order to determine to refer to arbitration, (1) although the Special Arbitration Committee should not present a proposal to arbitration in advance, it should be deemed that it did not recommend the referral to arbitration as a result of the lack of legal grounds; and (2) the instant decision to refer to arbitration was made without the special Arbitration Committee’s proposal procedure or the special Arbitration Committee’s recommendation. (2) The chairman of the National Railroad Workers’ Union did not present a letter of commitment to arbitration on January 31, 206, which was the time of negotiations of the second declaration, on the basis of the National Railroad Workers’ Union’ Union’ commitment, and even if there was no such a letter of commitment to arbitration, the National Railroad Workers’ Union’ Union should be urged to refer to arbitration in the future, i.e., if it is highly probable that it would be likely that it will go to arbitration in the future.

(3) Whether the decision to refer the instant case to arbitration is invalid or unlawful as it is based on the unconstitutional ex officio arbitration system

(A) Whether the ex officio arbitration system violates the principle of excessive prohibition

In order to not violate the Constitution, the principle of excessive prohibition, which can be said to be the limitation of legislative activities of restriction on fundamental rights as stipulated in Article 37(2) of the Constitution, should be observed. Accordingly, in order to do so, the legislative purpose should be recognized as justifiable. The method chosen by the legislators should be effective and appropriate to achieve the purpose, and the method which infringes on fundamental rights should be used more effectively among the effective methods, and a reasonable proportional relationship should be made between the two by balancing the public interest to be protected by the legislation and the private interest infringed thereby.

However, its legislative purpose is to maintain the daily life of the public and preserve the national economy by allowing the resolution of disputes through arbitration of the Labor Relations Commission, inasmuch as the conflict between labor and management is not easy due to the extreme separation and conflict between labor and management in essential public-service businesses, and the separation of labor and management can lead to the risk of collapse of the national economy. Furthermore, the purpose of the above ex officio arbitration system is to maintain the daily life of the public and preserve the national economy by allowing the resolution of disputes through arbitration of the Labor Relations Commission. In addition, all of the purposes of maintaining the daily life of the public and preserving the national economy can be included in the broad concept of public interest, which is the maintenance of social order and the welfare of the public.

In addition, if the supply of goods and services essential for the life of the people due to labor disputes in an essential public-service business area voluntarily suspends, serious social confusion may arise, which may cause serious harm to the life and body of the people, and the national economy may be considerably harmed. If it is necessary to maintain public interest and the national economy by preventing such danger situation, doing so ex officio by the Labor Relations Commission may serve as an effective means to promptly and smoothly resolve labor disputes in a reasonable direction. In addition, the emergency adjustment and the compulsory arbitration system, which are separately recognized under the law, are merely a function as an ex post facto remedy, and are not sufficient to ensure the stability of the life and the national economy. Accordingly, adopting the method of resolving labor disputes before reaching the strike would be one of the means necessary and appropriate to pursue legitimate purposes under the Constitution.

In addition, the subject of the discretionary arbitration by the discretionary arbitration system is limited to the businesses of railroads, water, electricity, gas, oil supply, hospital, the Bank of Korea, and communications, including urban railroads. Under the current labor-management conditions of Korea, recognizing the compulsory arbitration system to promptly and smoothly resolve labor disputes before reaching the industrial action is limited to the essential public businesses as above is the minimum necessary measure to maintain and preserve the public interest and the national economy.

On the other hand, the public interest to be protected by the compulsory arbitration system is not only the legal interest that has the most important personal value, such as life, body, and health of majority citizens, but also the important public interest of maintaining and preserving the national economy as a whole. Such public interest is not easy compared to the private interest of guaranteeing the right to collective action for protecting the rights and interests of workers in the workplace in which the dispute occurred. Accordingly, the balance between the two legal interests is achieved.

Therefore, the above ex officio arbitration system is just in its legislative purpose, and its method of restricting fundamental rights as stipulated under the law is appropriate, and the degree of limitation of fundamental rights is minimized, and the balance between the public interest to be protected and the private interest to be restricted is maintained, so it does not violate the principle of excessive prohibition under the Constitution (see Constitutional Court Decision 2001Hun-Ga31, May 15, 2003).

(B) Whether the ex officio arbitration system violates the principle of equality

The principle of equality stipulated in Article 11(1) of the Constitution refers not to any absolute equality that denies any discriminatory treatment, but to relative equality that does not mean any discrimination without reasonable grounds in legislative and legal application. Accordingly, discrimination or inequality with reasonable grounds is not contrary to the principle of equality.

As seen earlier, the ex officio arbitration system limits workers' right to collective action in the above essential public works, as it causes huge social confusion in the event of temporary suspension of essential public works, such as railroad, water, electricity, gas, petroleum refining, and oil supply, hospital, Bank of Korea, telecommunications, etc., as well as brings about serious harm to the daily lives of the people and may substantially endanger the national economy. For this reason, it is justifiable to discriminate against workers in the essential public works site with ordinary workers.

(C) Therefore, the defendant's argument that the decision to refer the instant case to arbitration is unlawful is without merit, since the ex officio arbitration system violates the Constitution.

(4) Whether the instant decision to refer to arbitration is null and void or illegal since it violates the provisions of the law or renders de facto punishment of such provisions

(A) Whether the failure to present a proposal by the Special Arbitration Commission is illegal

As above, the special conciliation committee held a conciliation meeting on November 25, 2005 and tried to coordinate the issues between the labor and management in 209 cases through a conciliation meeting on two occasions, but it is possible to find the fact that the conciliation is terminated without submitting a conciliation proposal because it is difficult to present a conciliation proposal due to a significant difference between the labor and management. This is a case where there is an inevitable reason for failing to present a conciliation proposal under Article 48(6) of the Labor Relations Commission Regulations. Thus, the special conciliation committee's failure to present a conciliation proposal cannot be deemed unlawful, and the decision to refer to arbitration cannot be deemed unlawful.

(B) Whether the decision of conditional referral to arbitration is unlawful

According to Article 74(1) of the Act, the Special Arbitration Commission may decide on the recommendation of the referral to arbitration. The recommendation of the referral to arbitration should take into account the purpose of the current law giving priority to the autonomous dispute resolution of the labor-management (see Articles 47 and 52 of the Act). Thus, the authority of the referral to arbitration of this case, which is made based on the decision of the conditional referral to arbitration, shall be interpreted as conditional or shall include the authority to adjust the time of referral to arbitration if necessary for the autonomous dispute resolution of the labor-management (see Articles 47 and 52 of the Act).

(C) Whether the instant decision to refer to arbitration was not subject to the recommendation decision of the Special Arbitration Commission and the procedure for hearing opinions on other public interest members

Although the decision to refer to arbitration was made three months after the special arbitration committee's recommendation and the hearing of opinions of other public interest members, the special arbitration committee recommended conditional referral of arbitration to the effect that "if it is possible for the trade union to withhold the referral to arbitration and not to comply with the promise but to go to arbitration, it is possible for the trade union to go to arbitration, it shall recommend that the workplace be referred to arbitration." The above conditional referral recommendation and presentation of opinion are deferred by giving priority to autonomous dispute resolution of the labor union, but if it is highly probable to go to the industrial action, it shall be deemed that the workplace should be referred to arbitration. Therefore, the decision to refer to arbitration of this case has been naturally planned to go through the recommendation of the special arbitration committee prescribed in the Act and the procedures for hearing opinions of public interest members, which are different from the recommendation of the special arbitration committee.

(D) Whether the decision to withhold the submission of the case to arbitration on January 31, 2005 and the decision to refer the case to arbitration is unlawful

Considering the purport of the current law that puts the priority of private mediation in the mediation of labor disputes, the decision to refer to arbitration which is caused by the suspension of labor-management's autonomous bargaining shall be deemed to have the limitation to function as an exception and complementary to the resolution of disputes between labor and management. Therefore, in order to achieve the purpose of the law that intends to contribute to the maintenance of industrial peace and the development of national economy by enhancing autonomy and accountability between labor and management by preventing and resolving industrial disputes through the establishment of mature labor-management relations, the decision to refer to arbitration shall be made carefully, unless there are special circumstances such as the suspension of such decision is used only as a means to substantially restrict industrial disputes themselves.

As seen above, on November 25, 2005, the Special Arbitration Committee submitted to the Korea Railroad Workers' Union a letter of commitment to faithfully respond to negotiations without strike until December 16, 2005, and decided to refer conditional arbitration by the National Railroad Workers' Union until January 31, 2006. The President of the National Railroad Workers' Union decided to withhold arbitration over two times by giving priority to dispute resolution by the labor-management's autonomous bargaining, and the National Railroad Workers' Union cannot make a promise to refrain from arbitration more than 20 times until January 31, 2006. However, the Chairperson of the National Railroad Workers' Union has continued negotiations at the time of the National Railroad Workers' Union, taking into account the fact that the National Railroad Workers' Union' 20 months' autonomous bargaining agreement was under way and the specific strike schedule was not determined, and the National Railroad Workers' 200th of the 20th of the 20th of the 20th of the 20th of the 206th of the 20th of the 20th of the 20th of the 206.

(E) Therefore, the Defendant’s assertion to the effect that the instant decision to refer to arbitration was unlawful as it violates the law or renders de facto punishment of the provision thereof is without merit.

(5) Sub-committee

Thus, the strike of this case is an industrial action in violation of Article 63 of the Act, and it cannot be viewed as a legitimate industrial action without considering its subject and purpose. Thus, the defendant's ground of appeal on this part is without merit.

B. Whether the strike of this case constitutes “competence” under the crime of interference with business

(1) Even if an employee who entered into an employment contract with the employer did not provide labor in violation of his/her own contract, it cannot be viewed as constituting a crime of interference with business, apart from the fact that the employee is liable for nonperformance of the employment contract. However, if multiple workers refuse to provide labor, such as collectively leaving the workplace or absent from work under mutual communication, thereby causing damage to the employer’s normal operation of business, such as production and sale, etc., such act constitutes a crime of interference with business, unless the act is justified as a legitimate industrial action under the labor relations laws and regulations (see Supreme Court Decision 2002Do5577, May 25, 2006, etc.).

(2) Despite the decision to refer the instant case to arbitration, the executive branch of the Korea Railroad Workers' Union including the Defendant, as seen above, shall spread the policy to the members of the Korea Railroad Corporation at around 01:00 on March 1, 2006, to the effect that "All members shall go to the general strike at around 01:0 on March 1, 200, and shall not go to the general strike, and shall not be harsh to maintain the general strike due to various will rains and unabscepts, etc., and then face judicial processing procedures, such as issuing a warrant of arrest to the Government's strong response policies and subsequent measures following it, the members of the Korea Railroad Corporation shall continue to take action against members of the Korea Railroad Corporation on March 2, 2006, and the members of the Korea Railroad Corporation shall have no force from around 300,000 to 40,000,000 members of the Korea Railroad Workers' Association shall continue to engage in the strike, and therefore, it shall not be deemed that the members of the Korea Railroad's's will continue to work 14.

C. Whether the crime of interference with business by the strike of this case constitutes a crime of omission

Industrial actions are already satisfied in terms of collective action, which is a conceptual element of force, and most cases have the nature of suppressing free will in that they are exercising power to pressure, and thus, most of them have force. Moreover, refusal to provide labor under mutual communication with many workers cannot be deemed to be equal to the degree of force or in terms of danger and injury of each worker. Therefore, “an act of collectively refusing to provide labor under mutual communication with one another,” which is sufficient to suppress the free will of the employer, is deemed to constitute an element of crime of interference with business by understanding it as a kind of “compact,” and it does not constitute an element of crime of interference with business (see Constitutional Court en banc Order 97Hun-Ba23, Jul. 16, 1998; Constitutional Court en banc Decision 97Hun-Ba23, Jul. 16, 1998). This part of the grounds for appeal by the defendant is without merit.

D. Whether the strike of this case constitutes a justifiable act

In order to become a legitimate act of workers' industrial action under the Criminal Act, the first person shall be a party to collective bargaining; second, the purpose of the industrial action shall be to create autonomous negotiations between labor and management to improve working conditions; third, the industrial action shall begin in accordance with the procedures prescribed by Acts and subordinate statutes, such as the consent and decision of union members, unless there are special circumstances; fourth, the means and method should be in harmony with the employer's property rights as well as the exercise of violence (see, e.g., Supreme Court Decision 2002Do5577, May 25, 2006). Thus, the industrial action of this case, like the above recognized facts, was conducted from around 01:0 on March 1, 2006 to April 14:000 of the same month, which is a period for which the industrial action cannot be conducted in accordance with the decision to refer to the industrial action of this case; and therefore, the industrial action constitutes a violation of the provisions of the Acts and subordinate statutes; and damages suffered by the employer due to the industrial action of this case shall not be justified.

4. Judgment on the assertion of unfair sentencing

The defendant led the strike of this case as the chairperson of the Korean Railroad Workers' Union at the time of the strike of this case, and the Korea Railroad Corporation caused considerable damage to the people using railroads, causing inconvenience to the people using railroads, etc. However, it cannot be deemed that the crime of this case is less severe. Meanwhile, the defendant decided industrial action with the consent of a majority of all union members with the consent of the majority of union members and appears to start the strike of this case in accordance with the directions of the Labor Union Policy Committee. The period of the strike of this case is relatively short to 4 days, not active methods such as occupying the place of business or destroying the signs, but the defendant selected passive methods of refusing to provide labor without attending the workplace. The Korean Railroad Workers' Union seems to respond to the passive bargaining of the terms of labor union prior to entering the strike of this case, and it appears that the defendant could have prepared measures to cope with the strike of this case by giving prior notice of the commencement of the strike of the crime of this case to a certain extent, in light of the circumstances that the defendant was sentenced to punishment of imprisonment with prison labor and management, etc.

5. Conclusion

Therefore, since the defendant's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the following is ruled again after pleading.

As stated in the corresponding column of the judgment of the court below, the criminal facts of the defendant recognized as a party member and the summary of the evidence are all cited in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Articles 314(1) and 30 of the Criminal Act

1. Selection of punishment;

In light of the circumstances stated in the above argument of unfair sentencing, the selection of fines shall be taken into account.

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

Judges Kim Jong-dae (Presiding Judge)