[1] In a case where a worker intrudes a space that he/she manages and uses jointly with a third party against the intent of the manager on the ground of a legitimate industrial action against the employer, whether the illegality of entering a residence as a justifiable act against the said third party is excluded (negative)

[2] The case reversing the judgment of the court below which acquitted the above act on the ground that the workers invaded the company's industrial action on the part of the company's commercial activity in the building street that the Korea Securities and Futures Exchange concurrently manages and uses other than the common courses of the employer, and occupied some of them

[1] In a case where two or more persons live together in a single space, each of them has a right to enjoy peace in their dwelling, and in a case where an employer intrudes upon and occupies a space jointly managed and used with a third party against the will of the manager on the ground of an industrial action against the user, even though the occupancy of such space is likely to be evaluated as a legitimate industrial action in relation to the user, as long as the third party who jointly manages and uses it without the explicit or presumed consent of the third party, it cannot be viewed as a legitimate act against the said third party, and thus, it cannot be viewed that the illegality of entering a residential life would be avoided.

[2] The case reversing the judgment of the court below which acquitted workers on the ground that the above act was justifiable in relation to the third party (State) Korea Securities and Futures Exchange as well as the case where the court below found them not guilty on the ground that there were errors in the misapprehension of the legal principles as to the denial of illegality of industrial action or incomplete deliberation, in case where the workers invaded the company's (State) stock and Futures Exchange (State)'s (State) stocks and Futures Exchange concurrently managed and used, and occupied part of them, and was accommodated in the manner of publicity, lectures, discussions, etc. while lodging for about

[1] Articles 20 and 319(1) of the Criminal Act / [2] Articles 20 and 319(1) of the Criminal Act, Article 2(2) of the Punishment of Violences, etc. Act

[1] [2] Supreme Court Decision 90Nu4006 delivered on May 14, 1991 (Gong1991, 1654) Supreme Court Decision 91Do383 delivered on June 11, 1991 (Gong1991, 1959) Supreme Court Decision 2007Do5204 Delivered on December 28, 2007 (Gong2008Sang, 187)

Defendant 1 and 12 others

Prosecutor

Attorneys Kwon Du-con et al.

Seoul Southern District Court Decision 2008No1784 decided May 15, 2009

All the judgment below is reversed, and the case is remanded to Seoul Southern District Court Panel Division.

We examine the grounds of appeal.

1. According to the above facts, the lower court: (a) determined that the Defendants were not entitled to take part of the labor dispute action, including Defendant 2, 3, 5, 6, and 7 (the head office affiliated with such labor dispute action) to the extent that the Defendants were not entitled to take part of the labor dispute action, and that the Defendants were not entitled to take part of the labor dispute action, such as the number of members of the Korea Stock and Futures Exchange (the total number of members of the Korea Stock and Futures Exchange) to the extent that the Defendants were not entitled to take part of the labor dispute action (the number of members of the Korea Stock and Futures Exchange) or to take part of the labor dispute action, such as the number of members of the Korea Stock and Futures Exchange (the number of members of the Korea Stock and Futures Exchange) to the extent that it was not legitimate to take part of the labor dispute action (the number of members of the Korea Stock and Futures Exchange) to the extent that the labor dispute action, including the number of members of the Korea Stock and Futures Exchange and the number of members of the Korea Stock Exchange, and the above labor dispute agreement was established.

2. However, it is difficult to accept the above measures of the court below.

A. In a case where two or more persons live together in a single space, each of them has a right to enjoy peace in their dwelling. Thus, in a case where an employer intrudes and occupies a space jointly managed and used with a third party against the will of a manager on the ground of an industrial action against the user, even though the occupancy of such space is likely to be evaluated as a legitimate industrial action in relation to the user, as long as the third party who jointly manages and uses it without the explicit or presumed consent of the third party, it cannot be said that the illegality of entering a residence by deeming the above third party as a justifiable act is inapplicable.

B. According to the judgment of the court below, the rain in this case occupied by the defendants is a space in which the Korea Securities and Futures Exchange, a third party (State ) manages concurrently. According to the evidence duly adopted and examined by the court below and the first instance court, the rain in this case was part of the building for the business of this case owned by the Korea Securities and Futures Exchange (State 21th floor) and the (State 2th floor to 11th floor among the building for the business of this case, and the (State 2th floor to 21th floor to 12th floor to 21th floor of the building for the business of this case. The rain in this case was used jointly with the Korea Securities and Futures Exchange (State 12th floor to 700 to 800) and there was no general office for the defendants to find out the middle part of the rain in this case and there was no automatic office for 10th to see the fact that the defendants, including the defendant's 10th floor and 10th floor to see the noise of this case.

C. In light of the above legal principles, even if there is room for the Defendants’ above actions to be regarded as legitimate industrial action in relation to the compacts in light of the circumstances stated in the judgment below, it cannot be said that the illegality of the Defendants’ act constitutes a justifiable act under Article 20 of the Criminal Act against the Korea Securities and Futures Exchange, which is a legitimate act under Article 20 of the Criminal Act, even though it is likely that the Defendants’ act would be regarded as a legitimate industrial action in relation to the compacts.

D. Nevertheless, the court below found the Defendant not guilty of the facts charged in this case on the grounds that the occupation of this case was just in relation to the Korea Securities and Futures Exchange (State). In this regard, the court below erred by misapprehending the legal principles on the exclusion of illegality of industrial action, etc., or by failing to properly examine it.

3. Therefore, without examining the remainder of the grounds of appeal by the prosecutor, all of the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)