[1] Method of interpreting Article 41(2) of the Trade Union and Labor Relations Adjustment Act, which prohibits an industrial action by a certain worker employed by a major defense company / In a case where a company designated as a major defense contractor entrusts part of its business to another company by in-house subcontract, whether an employee employed by a sewage company constitutes “worker employed by a major defense company” which prohibits an industrial action under the said provision (negative)

[2] In a case where the Defendant was indicted for violating the Trade Union and Labor Relations Adjustment Act on the ground that he had engaged in the intra-company subcontractor business, which belongs to the special line business department A of major defense industry chain Company A, and engaged in a strike on several occasions even though the industrial action cannot be conducted, the case affirming the judgment below which acquitted the Defendant on the ground that Article 41(2) of the Trade Union and Labor Relations Adjustment Act does not apply to the industrial action by the Defendant, who is a sewage supplier of the major

[1] Article 33(1) of the Constitution stipulates that the right to organize, the right to collective bargaining, and the right to collective action of workers shall be the fundamental right guaranteed by the Constitution, and Article 33(3) of the Constitution stipulates that the right to collective action of workers engaged in major defense enterprises may not be restricted or recognized as prescribed by the Act. This, at the same time, declares the principle of maximum guarantee of fundamental rights with respect to the three labor rights of workers, and sets aside a reservation so that the right to collective action against workers engaged in major defense enterprises may be restricted or prohibited by the Act in order to prevent risks to national security arising from collective action of workers in major defense enterprises in special circumstances where two Koreas stand across, in

Based on this, Article 41(2) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) provides that “No person engaged in the business of producing electricity, water or major defense materials from among workers engaged in major defense enterprises designated by the Defense Acquisition Program Act shall conduct any industrial action, and the scope of a person engaged in the business of producing defense materials shall be determined by the Presidential Decree.” As such, the Trade Union Act completely prohibits certain workers engaged in a major defense enterprise from exercising the right to collective action, which is the core of the right to collective action, and limits the scope of workers prohibited from industrial action. Furthermore, Article 88 of the Trade Union Act provides that an industrial action violating it shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 50 million won, which is the largest statutory penalty among the penal provisions of the Trade Union Act.

Although it is inevitable to restrict or prohibit the collective action rights of workers of major defense enterprises by law in that the smooth operation of major defense enterprises is an essential element for national security, in light of the principle of minimum infringement on the legislation on the restriction of fundamental rights and the principle of proportionality, the principle of strict interpretation of penal law derived from the principle of no punishment without law, the scope of workers whose fundamental rights are seriously restricted by the prohibition of industrial action in accordance with Article 41(2) of the Trade Union Act should be strictly interpreted.

In accordance with the requirements and procedures prescribed by the relevant Acts and subordinate statutes, the Minister of Commerce, Industry and Energy requires the designation of major defense enterprises individually, and Article 41(2) of the Trade Union Act limits the scope of application to those engaged in business specifically enumerated in electricity, water and Presidential Decree among workers employed by an enterprise designated as major defense enterprises. In full view of the language, content, structure, and purpose of the aforementioned legal provisions based on the principle of interpretation as seen above, in a case where a company designated as a major defense enterprise entrusts part of its business to another enterprise in an intra-company subcontract for the manufacture of defense materials, it cannot be deemed that a worker employed by a subcontracting enterprise falls under a “workers engaged in major defense enterprises” prohibiting industrial action under Article 41(2) of the Trade Union Act by providing labor for the manufacture of major defense materials by serving in the same place as a major defense enterprise. Considering that a worker employed by an independent subcontractor, who is not designated as a major defense enterprise, is not allowed to be regarded as a “service engaged in the major defense industry enterprise” in the direction unfavorable to the defendant.

[2] In a case where the defendant was prosecuted for violating the Trade Union and Labor Relations Adjustment Act on the ground that he engaged in a strike over 32 occasions in the company Eul, which is an intra-company subcontractor belonging to the special shipping department Gap company's major defense industry chain, and engaged in a strike at a total of 32 times even though the industrial action cannot be conducted, the case affirming the judgment below which acquitted the defendant of the facts charged on the ground that Article 41 (2) of the same Act does not apply to the industrial action by the defendant who

[1] Articles 12(1), 33(1) and (3), and 37(2) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Articles 41(2) and 88 of the Trade Union and Labor Relations Adjustment Act / [2] Articles 41(2) and 88 of the Trade Union and Labor Relations Adjustment Act; Article 20 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act; Article 325 of the Criminal Procedure Act

Defendant

Prosecutor

Law Firm Alternative Law Firm, Attorney Gyeong-dae

Ulsan District Court Decision 2015No970 decided February 5, 2016

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 33(1) of the Constitution stipulates that the right to organize, the right to collective bargaining, and the right to collective action, which are three workers’ three labor rights, shall be stipulated as the fundamental right guaranteed by the Constitution, and Article 33(3) of the Constitution stipulates that the right to collective action of workers engaged in major defense enterprises may not be restricted or recognized as prescribed by law. This, at the same time, declares the principle of maximum guarantee of fundamental rights with respect to three workers’ three labor rights, and sets aside a reservation so that the right to collective action against workers engaged in major defense enterprises may be restricted or prohibited by law in order to prevent any danger and injury to national security caused by collective action of workers in major defense enterprises

Based on this, Article 41(2) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) provides that “No person engaged in the business of producing electricity, water or major defense materials from among workers engaged in major defense enterprises designated by the Defense Acquisition Program Act shall conduct any industrial action, and the scope of a person engaged in the business of producing defense materials shall be determined by the Presidential Decree.” As such, the Trade Union Act completely prohibits certain workers engaged in a major defense enterprise from exercising the right to collective action, which is the core of the right to collective action, and limits the scope of workers prohibited from industrial action. Furthermore, Article 88 of the Trade Union Act provides that an industrial action violating it shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 50 million won, which is the largest statutory penalty among the penal provisions of the Trade Union Act.

Although it is inevitable to restrict or prohibit the collective action rights of workers of major defense enterprises by law in that the smooth operation of major defense enterprises is an essential element for national security, in light of the principle of minimum infringement on the legislation on the restriction of fundamental rights and the principle of proportionality, the principle of strict interpretation of penal law derived from the principle of no punishment without law, the scope of workers whose fundamental rights are seriously restricted by the prohibition of industrial action in accordance with Article 41(2) of the Trade Union Act should be strictly interpreted.

In accordance with the requirements and procedures prescribed by the relevant Acts and subordinate statutes, the Minister of Commerce, Industry and Energy requires the designation of major defense enterprises individually, and Article 41(2) of the Trade Union Act limits the scope of application to workers engaged in business specifically enumerated in electricity, water, and Presidential Decree among those engaged in major defense enterprises. Based on the principle of statutory interpretation as seen above, when a company designated as a major defense enterprise engages in the manufacture of defense materials by leaving part of its business to another company in the form of an intra-company subcontract, it cannot be deemed that a worker employed by such subcontractor falls under “workers engaged in major defense enterprises” prohibiting industrial action under Article 41(2) of the Trade Union Act. Considering that a worker employed by an independent subcontractor, who is not designated as an independent defense enterprise, has provided labor for the manufacture of major defense materials while working in the same place as a designated major defense enterprise, it is unreasonable to deem that a worker employed by such independent subcontractor, who is an independent defense enterprise, who is not designated as a major defense enterprise, is an employer to excessively extend the penal provisions to the extent unfavorable to the defendant.

2. The summary of the facts charged in the instant case is that the Defendant, who is an in-house subcontractor belonging to the special line business department of Nonindicted Co. 1, a major defense industry chain, was engaged in the special line painting business from July 12, 2013 to March 20, 2015, and was unable to engage in industrial action under the Trade Union Act, but was engaged in industrial action on a total of 32 occasions from November 6, 2014 to January 23, 2015, including engaging in industrial action at a factory from around 08:00 to 09:00.

3. The lower court determined that the Defendant was not guilty on the ground that the Defendant’s industrial action was not applicable to the Defendant’s industrial action since the Defendant was an employee of Nonindicted Co. 1’s subcontractor, and thus, constitutes a case where the facts charged in the instant case are not a crime. The lower court’s determination is justifiable in light of the legal doctrine as seen earlier. In so determining, the lower court did not err by misapprehending the legal doctrine on the scope of application of Article 41(2)

4. The prosecutor's appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)