Defendant 1 and four others

Defendants

Dog-Appellee (prosecution) and strict trial (public trial)

Law Firm Jin, Attorney Kim Sung-jin in charge

Gwangju District Court Decision 2014 Godan1696, 2014 Godan2251 (Consolidated) decided June 4, 2015, and application for compensation order (Withdrawal)

The judgment of the court below is reversed.

The punishment against Defendant 1 and Defendant 3 shall be prescribed by each of the fine of three million won, the fine of five million won against Defendant 4, and the fine of four million won against Defendant 5.

In the event that Defendant 4, Defendant 5, Defendant 1, and Defendant 3 did not pay each of the above fines, the above Defendants shall be confined in a workhouse for the period calculated by converting KRW 100,000 into one day.

Defendant 4, Defendant 5, Defendant 1, and Defendant 3 order the provisional payment of the amount equivalent to the above fine.

Of the facts charged against Defendant 1 and Defendant 3, the violation of the Punishment of Violences, etc. Act (joint injury) and the violation of the Assembly and Demonstration Act around June 5, 2014 and Defendant 2 are acquitted, respectively.

1. Summary of grounds for appeal;

A. Legal principles: Defendant 1 (Defendant 1) and Defendant 2 (Defendant 2) and Defendant 3 (Defendant 3 of the Supreme Court Decision)

In the case of "2014 Godan1696" decision of the court below, an employer may not employ or substitute a person unrelated to the business during the period of the labor dispute to conduct the business suspended by the industrial action, and if the employer violates this, it shall be subject to criminal punishment (Article 43 (1) and Article 91 of the Trade Union and Labor Relations Adjustment Act (hereinafter "Act"). At the time of the case, the victim escaped from the defendant while performing alternative work in violation of the above provision. Since the result of the defendants' arrest of the victim as a flagrant offender was caused by the victim, this constitutes a legitimate act, and thus, the judgment of the court below which judged otherwise and sentenced the defendants guilty.

B. Unreasonable sentencing

The sentence of the lower court against the Defendants (Defendant 1: 2 years of probation, probation, 200 hours of community service order, Defendant 2, and Defendant 3: the probation, probation, 200 hours of community service order, Defendant 4: the probation, 2 years of probation, probation, 8 months of probation, 200 hours of community service order, Defendant 5: the probation, 2 years of probation, 200 hours of probation, 2 years of probation, 200 hours of community service order, 2 years of probation, 200 hours of community service order) is too unreasonable.

2. Determination

A. Ex officio determination on Defendant 4 and Defendant 5

Before the judgment on the grounds for appeal is examined ex officio prior to the judgment on the grounds for appeal, the judgment of the court below was no longer maintained in this respect since the crime of violation of the Punishment of Violences, etc. Act (joint property damage, etc.) and the crime of violation of the Assembly and Demonstration Act against the Defendants in relation to the "Case 2014 Go-Ma2251" as stated in the judgment of the court below are mutually concurrent relations. However, the court below erred by omitting ordinary concurrence while applying Acts and subordinate statutes.

B. Judgment on the misapprehension of legal principles as to Defendant 1, Defendant 2, and Defendant 3

(1) Summary of the facts charged

피고인 1은 ▲▲▲▲▲ 소속 근로자로서 ○○○○ 산하 △△△△노동조합 □□□□□□□□지부 ◇◇◇◇☆☆☆지회(이하 ‘☆☆☆지회’라 한다) 지회장이고, 피고인 2는 ▷▷▷▷에서 해고된 후 ▲▲▲▲▲에서 근무하고 있는 근로자로서 위 ☆☆☆지회 교육선전차장이고, 피고인 3은 ■■■■■ 소속 근로자로서 위 ☆☆☆지회 조합원이다.

피고인들은 위 ☆☆☆지회 근로자들이 근무하고 있는 ◎◎◎◎, ◁◁◁◁◁, ▷▷▷▷ 등 ▽▽ ▽▽ 소재 중장비 임대업체에서 단체협상을 제대로 진행하지 않고 근로자를 해고하고 부당 직장폐쇄를 했다는 이유 등으로 2014. 6. 5. 13:00경부터 ▽▽시 ▽▽▽▽ 인근에서 ○○○○ △△△△노조 □□□□□□□□지부 주최로 방송차량 50대, 인원 250명 등을 동원한 집회에 참가하였다.

피고인들은 위와 같이 집회에 참석하여 같은 날 15:30경 ▽▽시 ♤♤동에 있는 ♡♡화학 ●●●공장 중문 앞에서 집회를 하던 중, 위 ●●●공장 내부에서 ◎◎◎◎의 ☆☆☆로 대체근로를 하고 있는 피해자 공소외 1(남, 40세)을 발견하고 피해자에게 다가가 “우리는 어렵게 투쟁을 하고 있는데 너 혼자 잘 먹고 잘 살겠다고 대체근로를 하느냐, 잠시 얘기 좀 하자”고 하면서 피해자의 양팔을 붙잡아 집회 참가자들이 모여있는 중문 밖으로 끌어내려 하였다.

Therefore, when the victim gets away from the factory by spreading the defendants, the defendants got away from the factory, and the defendants got out the part of the victim's arms and neck beyond the miscellaneous bottom.

As a result, the Defendants jointly committed an injury to the victim, such as the full-scale escape of the first Daegu on the left-hand side, which requires about four weeks of treatment, and at the same time conspired to commit an act of violence, etc. as the participants in the assembly.

(2) Relevant legal principles

Any person may arrest a flagrant offender without a warrant (Article 212 of the Criminal Procedure Act). As such, the arrest of a private person in a flagrant offender is dismissed as an act under the law, and the illegality of the arrest of a flagrant offender is limited to the requirements of the arrest of a flagrant offender. In addition to the punishment of the act, the current and timely contact of the crime, the necessity of the arrest, i.e., the necessity of escape or destruction of evidence, in addition to the apparentness of the crime and the crime. Meanwhile, arrest exceeding the appropriate limits can not be an act under the law in relation to that part. However, the issue of whether an act goes beyond the appropriate limits should be determined depending on whether the act satisfies the general requirements of the aforementioned justifiable act, as argued in the lawsuit, it is not necessary to determine whether the act is a passive defensive act (see Supreme Court Decision 98Do3029, Jan. 26, 199, etc.).

On the other hand, an employer shall not employ or substitute a person who has not been involved in the business to conduct the business which was interrupted by the industrial action during the period of the industrial action, and shall be punished by imprisonment with prison labor for not more than one year or by a fine not exceeding ten million won (Articles 43(1) and 91 of the Act).

(3) Determination

위와 같은 법리에 비추어 보건대, 원심이 적법하게 채택하여 조사한 증거에 의하여 인정할 수 있는 다음과 같은 사정들을 종합해 보면, 당시 피해자는 사용자인 ◎◎◎◎ 측과 공모하여 또는 이를 방조하여 법 제91조 , 제43조 제1항 에 위반한 불법 대체근로를 하고 있었다 할 것이고, 피고인들은 이와 같이 불법 대체근로를 하다가 피고인들을 보고 도망치던 피해자의 신원을 확인하여 신고하고자 피해자를 붙잡는 과정에서 피해자에게 원심 판시와 같은 상해가 발생하였다고 봄이 상당하다. 따라서 피고인들의 위 행위는 적법한 현행범인 체포로서 정당행위에 해당하여 위법성이 조각된다고 할 것이므로 피고인들의 위 주장은 이유 있다.

① ◆◆◆◆ 소속 근로자들은 2013. 10. 5. △△△△노동조합에 가입하였고, △△△△노동조합과 ◎◎◎◎는 단체교섭을 진행하였으나 단체교섭이 결렬되었다. 이후 △△△△노동조합은 법 제45조 에서 규정하는 조정절차를 진행하고, 2014. 3. 13.부터 쟁의행위를 시작하여 ◆◆◆◆ 차량의 운행이 중단되었다(소송기록 84쪽).

② ◎◎◎◎는 2014. 6. 5.경 원심 판시 ♡♡ 화학 ●●●공장에 ☆☆☆를 제공하기로 하였는데, 피해자는 ◎◎◎◎의 지시를 받고 위 공장에 가 ◎◎◎◎의 ☆☆☆를 운전하여 작업을 하였다. 피해자는 ◎◎◎◎의 직원이 아니었다(소송기록 78 ~ 80, 84 ~ 88쪽).

③ 당시 피해자는 ◎◎◎◎ 대표이사인 공소외 2에게 전화를 하여 집회 중인데 차에서 내려야 되는지 말아야 되는지를 물은 사실이 있다(소송기록 79쪽). 이에 비추어 피해자는 자신의 ☆☆☆ 운행이 법에서 금지하는 대체근로 제공행위에 해당함을 미필적으로나마 인식한 상태에서 ◎◎◎◎의 요구에 응하여 ☆☆☆ 작업을 한 것으로 보인다.

④ As described in the facts charged, the Defendants sought to find the victim that the victim was engaged in the △△△ work as seen above, and, as indicated in the facts charged, tried to bring the victim into the victim “I would have ever fluently fluent and well fluently live in our country, and fluent fluent fluent fluencingly fluencing.” The victim attempted to escape. The victim was used in the course of the victim’s escape in order to see the victim’s escape. After the victim was written, the victim was sexually used in the course of the victim’s escape. After the victim was written, the Defendants did not appear to have exercised other tangible power, such as priceing of the victim, etc. during the course of benefiting the victim (from the 2014 Godan1696 Evidence No. 100 CD No. 1696, Dec. 16, 196).

⑤ Although the Defendants did not take any follow-up measures such as passing the victim to an investigative agency, the Defendants consistently asserted that “the victim was suffering from the case in the process of taking advantage of the victim’s intent to make a report on his/her replacement service or making a report,” and subsequently, the Defendants stated that “the victim went back to the place of assembly on the ground that he/she left the scene without getting the victim out of the investigative agency, etc., and went back to the place of assembly on the ground that he/she went back without getting the victim out of the scene.” (see, e.g., Supreme Court Decision 2014Da1696, Jul. 16, 201).

④ According to the above CD reproduction result, the name in question appears to have been taken and taken by the Defendants. However, the Defendants appears to have failed to accurately understand who was the above name in person or what they had been. From the perspective of the Defendants, when the victim did not accurately take photographs of the site, it seems that there is a possibility that the victim might deny the fact of substitute service after leaving the site.

7) The Defendants did not notify the victim that they were arrested as a flagrant offender who engaged in illegal alternative labor during the course of taking the victim into custody. However, the provisions on arrest and notice of suspected crime are applicable mutatis mutandis to the arrest of a flagrant offender by a public prosecutor or a judicial police officer (Articles 213-2 and 200-5 note 1 of the Criminal Procedure Act) under the system of the Criminal Procedure Act, which requires that the above provision shall apply mutatis mutandis to the arrest of a flagrant offender by a public prosecutor or a judicial police officer (Article 213-2 and

3. Conclusion

Therefore, since the part of the judgment of the court below against Defendant 4 and Defendant 5 on the above ground of ex officio reversal, it is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the argument of unfair sentencing, and the part on the facts of the crime of “2014 high-level 1696” in the judgment of the court below among the appeals by Defendants 1, 2, and 3 is justified. Since the above facts of the crime and the remaining facts of the crime against Defendant 1 and 3 are deemed to be concurrent crimes, the court below rendered a single sentence pursuant to Article 364(6) of the Criminal Procedure Act, since the above facts of the crime against Defendant 1 and 3 are deemed to be concurrent crimes, the part on Defendant 1, 2, and 3 of the judgment of the court below as well as the part on Defendant

The summary of facts constituting an offense and evidence recognized by this court shall be as stated in each corresponding column of the judgment below except for deletion of the part of "2014 Highest 1696" in the criminal facts column and the summary of evidence of the judgment below (Article 369 of the Criminal Procedure Act).

1. Article applicable to criminal facts;

Article 2(2) and (1)1 of the former Punishment of Violences, etc. Act (amended by Act No. 12896, Dec. 30, 2014); Article 366 of the Criminal Act (amended by Act No. 12896, Dec. 30, 201); Article 24 Subparag. 5, 18(2), and 16(4)2 of the Assembly and Demonstration Act; Article 30 of the Criminal Act (violation of the code of practice for participants in an assembly);

1. Commercial competition;

Articles 40 and 50 of the Criminal Code

1. Selection of punishment;

Selection of each fine

1. Handling concurrent crimes;

Defendant 4: latter part of Article 37 and Article 39(1) of the Criminal Act

1. Detention in a workhouse;

Article 70 (1) of the Criminal Code

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

○ Defendant 1, Defendant 3

In the case of Defendant 3, the defendants actively participated in the crime of this case, such as destroying the windows of containers by bricks, etc. However, the defendants acknowledged their mistakes and reflects them, agreed with the victim in the original trial, Defendant 1 did not have any record of criminal punishment except for those sentenced to a fine twice due to the violation of the Road Act, and Defendant 3 did not have any record of serving a criminal punishment, and Defendant 3 is the primary offender, and other various sentencing conditions specified in the arguments of this case, such as the circumstances leading to the crime of this case, the circumstances after the crime of this case, the defendant's age, character and conduct, environment, etc.,

○ Defendant 4, Defendant 5

In the case of Defendant 4, the Defendants recognized their mistake and reflect, and the same should be taken into account as before and after the judgment in a concurrent crime under the latter part of Article 37 of the Criminal Act in the case of Defendant 4. On the other hand, Defendant 4 had been punished by a fine of KRW 1 million due to a violation of the Punishment of Violence, etc. Act (joint property damage, etc.) in 2014, and a violation of the Assembly and Demonstration Act. Defendant 5 had been punished by a fine of KRW 1.5 million due to a crime of property damage in the case of Defendant 5. Defendant 5 had been punished by a fine of KRW 1.5 million due to a crime of property damage in 209. Defendant 5 committed a crime in a concurrent crime under the latter part of Article 37 of the Criminal Act in 208, which had been committed by a general traffic obstruction act in the course of trial. Defendant 5 directly accessed Defendant 4’s entrance into the crime of this case, taking into account the following circumstances: the following factors: (a) Defendant 5) was directly approaching Defendant 4 years of the punishment of this case.

Of the facts charged against Defendant 1 and Defendant 3, the violation of the Punishment of Violences, etc. Act (joint injury) and the violation of the Assembly and Demonstration Act around June 5, 2014 and the summary of the facts charged against Defendant 2 are the same as indicated in paragraph 2.b. (1) above, and since the facts charged constitute a crime as stated in paragraphs 2.b. (2) and (3) above, it constitutes a case that does not constitute a crime, it shall be acquitted under the former part of Article 325 of the Criminal Procedure Act.

Judges Lee Jong-tae (Presiding Judge)

1) Articles 213-2 (Applicable Provisions): The provisions of Articles 87, 89, 90, 200-2 (5) and 200-5 shall apply mutatis mutandis to cases where a public prosecutor or judicial police officer arrests a flagrant offender or takes delivery of a flagrant offender, and Article 200-5 (Notice of Arrest and Suspected Crime): A public prosecutor or judicial police officer shall give him an opportunity to defend himself by stating the gist of the offense, the reason for arrest, and the fact that he may appoint a defense counsel when he arrests a suspect.