(a) Where an industrial action cannot be exempted from criminal liability, such as interference with business;

B. Requirements for legitimacy exempted from criminal responsibility for industrial actions

(c) Purport of the provisions governing cooling period or prior report under Articles 14 and 16 of the Labor Dispute Mediation Act, and existence of criminal liability for industrial actions not in compliance with the timing and procedures prescribed in each of the above provisions;

A. Industrial action includes not only passive refusal or suspension of labor by a worker, but also acts that interfere with normal operation of the business in order to accomplish the claim. As such, it is inevitable that the nature of industrial action impedes the normal operation of the employer in light of the nature of the industrial action, and therefore, the employer has a duty to recognize it. However, when such industrial action exceeds the bounds of legitimacy, the worker cannot be exempted from criminal liability, such as the obstruction of business.

B. The requirement of justification for industrial action to be exempted from criminal liability is that the industrial action aims to maintain and improve working conditions in relation to collective bargaining. The purpose of industrial action should be justified. The time and procedure of the industrial action should be in accordance with the provisions of the laws and regulations, and the method and manner of the industrial action should be accompanied by violence or destruction or other acts of destroying high level of anti-sociality.

C. Articles 14 and 16 of the Labor Dispute Mediation Act provide for the cooling period and the prior report system, and Articles 47 and 48 of the same Act provide for the penal provisions for each violation of the above provisions. However, the purport of the cooling period and the prior report of an industrial action is to provide an opportunity to avoid the occurrence of a dispute by mediating disputes in advance and give prior notice of the occurrence of a dispute, and not to prohibit an industrial action itself. Thus, the industrial action does not constitute an act of industrial action lacking justification on the ground that the industrial action did not follow the cooling period or the time and procedure stipulated in the above report regulations, but rather, it does not constitute an act of industrial action lacking justification on the ground that it does not constitute an act of industrial action without any justifiable reason, and it is likely that the act of industrial action might cause any unexpected confusion or damage to the social, economic stability, or the management of the business of the user, and the determination of whether there is a criminal liability by examining detailed circumstances, such as whether there is a concern about the legitimacy of the industrial action.

(b)Article 2 of the Trade Union Act, Article 3(c) of the Trade Dispute Adjustment Act, Articles 14, 16, 47, and 48 of the same Act;

B. Supreme Court Decision 90Nu4006 delivered on May 14, 1991 (Gong1991, 1654) 91Nu324 delivered on May 24, 1991 (Gong1991, 1817) 91Nu10473 delivered on March 13, 1992 (Gong1992, 1324) 2. Supreme Court Decision 90Do1431 delivered on October 12, 1990 (Gong190, 234) 91Nu5204 delivered on January 21, 1992 (Gong192, 927)

A

Defendant

Seoul Criminal Court Decision 92No1967 delivered on June 25, 1992

The judgment of the court below is reversed and the case is remanded to the Panel Division of the Seoul Criminal Court.

We examine the Defendant’s grounds of appeal.

1. Point of interference with business;

Industrial action includes not only the passive refusal or suspension of labor by workers, but also the act impeding the normal operation of their business in order to accomplish their claims (see Article 3 of the Labor Dispute Mediation Act). As such, an employer has a duty to authorize workers to take criminal liability, such as the obstruction of business, when an industrial action by a worker goes beyond the bounds of legitimacy. Meanwhile, the requirement of justification for exemption from criminal liability should be justified since the industrial action is aimed at maintaining and improving working conditions in relation to collective bargaining, and its purpose should be justified, as the time and procedure of the industrial action is in accordance with the provisions of Acts and subordinate statutes, and the method and form of the industrial action must be accompanied by violence or destruction or other high-level anti-social behavior.

However, Articles 14 and 16 of the Labor Dispute Mediation Act provide for the cooling period and the prior report system, and Articles 47 and 48 of the same Act provide for the penal provisions for violations of each of the above provisions. However, the purport of the cooling period and the prior report is to provide the opportunity to avoid the occurrence of the dispute by mediating the dispute in advance and give prior notice of the occurrence of the dispute in order to prevent the industrial action itself. Thus, the industrial action itself does not intend to prohibit the industrial action. Thus, the industrial action did not comply with the cooling period or the time and procedure stipulated by the provision of the said cooling period and the prior report, but rather it does not constitute an industrial action which lacks justification, and it does not mean that the industrial action is an industrial action which lacks justification, and it should be determined whether there is a criminal liability by examining specific circumstances, such as whether there is concern that the industrial action might cause any unexpected confusion or damage to the social, economic stability or the user's business operation.

원심판결 이유에 의하면 원심은 피고인이 당국에 신고없이 (1) 1990.12.21. 07:40경부터 동일 07:50경까지 서울 구로구 가리봉동 60의 29 소재 성화(주)의 앞 노상과 사내운동장에서 공소외 B가 위장취업을 이유로 해고하자, 노조원 20여명을 모아놓고 B의 해고를 철회하라 사장이 배짱이면 노동자는 깡다구다라는 등의 구호를 외치면서 소란을 피우게 하여 집회를 주도함과 동시에 관리직사원과 비노조원 등의 작업방해 및 작업지연으로 동 회사에 금 949,000원 상당 생산차질을 가져오게 하는 등으로 위력으로써 업무를 방해하고, (2) 1991.4.24. 07:30경부터 동일 07:50경까지 동 회사 정문 앞에서 공소외 C가 위장취업을 이유로 해고되자 근로자 약 150명을 모이게 한 후 C 복직을 주장하면서 “부당해고 박살내고 91임투 승리하자” 등의 구호와 “단결투쟁가”, “동지가” 등 노동가를 선창하고, 참가자들이 후창하는 방법으로 집회를 주도함과 동시에 관리직사원과 비노조원 등의 작업방해 및 작업지연으로 동 회사에 금 949,000원 상당 생산차질을 가져오는 등으로 위력으로써 업무를 방해하고, 같은 달 25. 같은 달 26. 같은 달 27. 같은 달 29일에도 동일 시간대에 동일한 장소에 같은 방법으로 집회를 주도함과 동시에 관리직사원과 비노조원 등의 작업방해 및 작업지연으로 동 회사에 도합 4,745,000원 상당의 생산차질을 가져오게 하여 위력으로써 업무를 방해하고, (3) 동년 5.24. 07:40경부터 동일 08:00경까지와 동년 5.25. 07:40경부터 동일 08:00경까지 위 회사 앞에서 노사간 임금협상이 지체된다는 이유로 근로자 약 200여명을 모이게 한 후 “노동탄압 박살내고 91임투 승리하자”라는 등의 구호와 노동가, 파업가 등을 선창하고 참가자들이 후창하는 방법으로 집회를 주도함과 동시에 관리직 사원과 비노조원 등의 작업방해 및 작업지연으로 동 회사에 1,898,000원 상당의 생산차질을 가져오게 하여 위력으로 업무를 방해하고, (4) 동년 5.30. 07:40경부터 동일 08:00경까지 위 회사 앞에서 부근 공단내 한국키스톤발브회사 앞까지 노사간 임금교섭이 지연된다는 이유로 근로자 약 300여명을 규합한 뒤 “조합원이 하나되어 91임투 승리하자”라는 등의 구호와 노동가, 파업가 등을 선창하고 참가자들이 후창하는 방법으로 집회시위를 주도함과 동시에 관리직 사원과 비노조원 등의 작업방해 및 작업지연으로 동 회사금 949,000원 상당의 생산차질을 가져오게 하여 위력으로써 업무를 방해한 사실을 인정하고 피고인을 업무방해죄로 의율처단한 1심판결을 정당하다 하여 유지하고 있다.

However, it is not clear whether the content of interference with business decided by the first instance court, in addition to the lead of the meeting as stated in its reasoning, the defendant interfered with the work of the management worker and the non-management worker and delayed the work, or whether it caused the interference with the work and delay in work as stated in its holding by leading the meeting as stated in its reasoning.

In the case of the former, there is no data to recognize the act of interference with business even if the act of interference with business was not specifically specified, and even if the evidence is examined at the time of the first instance trial.

On the other hand, in the case of the latter, the defendant completed the above company's attendance time 08:00, which is 08:00, so there is no interference with the business of the above company, and even according to the reasoning of the judgment of the court of first instance maintained by the court below, up to 07:50 on December 21, 1990, April 24, 1991, and June 27, 25 of the same month, until 07:50. On May 24, 1991, three assemblies of the same month from 30:0 on May 25, 1991 were held until 08:00, if the working time of the above company was 08:00, it cannot be deemed that there was interference with the business of the above company since it commenced six times from 07:50, and it is difficult to conclude that it interfered with the business of the above company's attendance time until 08:00 times.

However, according to the statement of the judicial police officer in the first instance court's preparation on D's Disposition of Affairs, when the work starts to 08:00, and the defendant et al.'s assembly interferes with 10 minutes, the defendant et al.'s 65 minutes of production between 10 minutes of production per hour and 49,000, and according to the prosecutor's protocol, the working hours should be 08:00 and 07:50,000, respectively, before 10 minutes of work, and it is difficult for the defendant et al. to make the above statements to the effect that the working hours are delayed 20 minutes due to the act of the defendant et al.'s assembly. According to the prosecutor's written statement on E, it is difficult for the manager et al. to prepare for work by 07:40 hours of work, and it is difficult for the defendant et al. to start work at the above 08:80 hours of work without the attendance of the defendant et al.

Although the court below should have tried and judged specifically whether the above company's actual time of commencement of work and the obstruction of work caused by the assembly of the defendant, etc. were lacking legitimacy to the extent of the obstruction of work, maintaining the judgment of the first instance court without any name is an unlawful act that affected the conclusion of the judgment by failing to exhaust all necessary deliberations, and thereby, it is reasonable to discuss this point.

2. The point of violation of the Assembly and Demonstration Act;

According to the records, the court below's judgment that found the defendant guilty of the violation of the Assembly and Demonstration Act is just and there is no error of law such as the theory of lawsuit, since it is sufficiently recognized that the defendant takes the lead of the assembly and demonstration without reporting and that it will pose a threat to public safety and order, such as the contents of one trial maintained by the court below.

3. Ultimately, the judgment of the court below cannot be maintained for the reason of obstruction of business on the ground of the above-mentioned reasoning. Since the court below imposed a single punishment by treating the crime of interference with business and the crime of violation of the Assembly and Demonstration Act as concurrent crimes, the entire judgment below is reversed and remanded, and it is so decided as per Disposition by the assent of all participating Justices

Justices Kim Jong-soo (Presiding Justice)