[1] The purport of Article 13-2 of the former Trade Dispute Mediation Act

[2] The case holding that the 'international rules on civil and political rights' does not violate Article 19 of the 'International Covenant on Civil and Political Rights' in a case where a third party who has no legitimate authority under the law was punished as a crime of violation of Article 13-2 of the 'labor Dispute Mediation Act' in the distribution of a name statement and support advertisement

[3] The validity of Article 2 (3) of the International Code on Civil and Political Rights

[1] Article 13-2 of the former Labor Dispute Mediation Act (amended by Act No. 5244 of Dec. 31, 1996) prohibits a third party, excluding those who have legitimate authority under the law, from acting, instigated, or interfere with the parties involved in an industrial action, or from interfering with the purpose of affecting it, to the extent necessary for public order such as the autonomy in resolution of labor disputes and the maintenance of industrial peace.

[2] The case holding that since Article 19 (2) of the International Covenant on Civil and Political Rights, which is a member of our country, provides that all persons shall have the right to freedom of expression, the exercise of said right shall be limited to cases necessary for respect for the rights and credit of others or for national security or for the protection of public order, public health and morality, etc. under the provisions of the Act, and thus, it is recognized that the exercise of the right to freedom of expression is restricted by the provisions of the Act to the extent necessary for national security or public order, etc., in a case where a third party who does not have the legitimate authority under the Act distributes a written name and a support advertisement to a strike worker, the above written name and the content of the support advertisement, the intent of their distribution, circumstance, quantity, etc., it is an act of intervention for the purpose of affecting an industrial action beyond the mere scope of an expression act, and it is not necessary to punish it as a violation of the provisions of Article 13-2 of the former Labor Dispute Mediation Act (amended by Act No. 524 of Dec. 31, 19996).

[3] Article 2 (3) of the International Covenant on Civil and Political Rights provides that an individual whose rights or freedom has been infringed under the above International Covenant shall be entitled to effective relief measures under international law between the Parties, and that relief measures such as compensation for damages against the State may be claimed based on domestic law, such as the State Compensation Act, and it shall not be interpreted that a special right has been created for an individual to file a claim for relief measures, such as compensation for damages, against the parties to the above International Covenant.

[1] Article 13-2 of the former Labor Dispute Mediation Act (amended by Act No. 5244 of Dec. 31, 1996) / [2] Article 13-2 of the former Labor Dispute Mediation Act (amended by Act No. 5244 of Dec. 31, 1996), Articles 6(1), 21(1), and 37(2) of the Constitution, Article 19 of the International Covenant on Civil and Political Rights / [3] Article 2(3) of the International Covenant on Civil and Political Rights, Article 6(1) of the Constitution

[1] Constitutional Court Order 92Hun-Ba33 dated March 11, 1993 (Hun-Ba No. 1)

Plaintiff (Attorney Kim Chang-soo et al., Counsel for the plaintiff-appellant)

Korea

Seoul District Court Decision 96Na27512 delivered on November 15, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

Article 19(2) of the International Covenant on Civil and Political Rights in which the Republic of Korea is a member of the Republic of Korea provides that all persons shall have the right to freedom of expression. Article 19(3) of the same Act provides that the exercise of said right may be limited to cases where it is necessary to respect another person’s rights and credit, or to protect public order, public health, and morality, etc. pursuant to the provisions of the Act, so that the exercise of the right to freedom of expression may be limited within the extent necessary for national security or public order. Article 13(2) of the former Labor Dispute Mediation Act prohibits a third party, other than those who have legitimate authority pursuant to the Acts and subordinate statutes, to the extent necessary for public order, such as the autonomy in resolving labor-management disputes and the maintenance of industrial peace.

In light of the facts duly admitted by the court below and the records, the Plaintiff’s act of distributing the name, the content of the above name, the support advertisement, and the intent, circumstances, quantity, etc. of the distribution of the advertisement to the employees of treatment mediation who do not have any legitimate authority as stated in the judgment of the court below is deemed as an act of participating in industrial action for the purpose of affecting industrial action beyond the scope of simple expressive act, and thus, it is deemed necessary to prohibit industrial action for the independence of the resolution of labor-management disputes and the maintenance of industrial peace. Thus, punishing the Plaintiff as a crime of violation of the above legal provision cannot be deemed as an infringement of the freedom of expression contrary to the purport of Article 19 of the above international agreement.

In addition, Article 2(3) of the above International Covenant provides that an individual whose rights or freedom has been infringed under the above International Covenant shall be obliged to secure the legal system, etc. for effective remedies between the Parties, and a remedy such as damages against the State may be claimed based on domestic law, such as the State Compensation Act, and it shall not be interpreted that a special right for an individual to file a claim for remedy, such as damages, has not been created separately under the above provision.

In this regard, the court below's rejection of the plaintiff's claim of this case is just, and there is no error of law such as misunderstanding of legal principles as pointed out.

The grounds of appeal on the premise of the dissenting opinion cannot be accepted.

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Jin-hun (Presiding Justice)