Defendant 1 and four others

Defendants

The e-ray;

Attorney Soh Chang-hwan et al.

Gwangju District Court Decision 2004Kadan1441 Decided November 10, 2004

Gwangju District Court Decision 2004No2593 Decided January 21, 2005

Supreme Court Decision 2005Do890 Delivered on May 12, 2005

The part of the judgment of the court below against the Defendants is reversed.

Defendants shall be punished by imprisonment for not less than two years and six months.

The number of days of detention before the pronouncement of the judgment below shall be 82 days included in the above punishment.

except that the execution of each of the above penalties shall be suspended for three years from the date this judgment becomes final and conclusive.

The gist of the defendants' appeal is that the punishment sentenced by the court below to the defendants (two years and six months of imprisonment) is too unreasonable.

Therefore, as the court below explained in detail in the reasons for sentencing, the participants in the strike of this case, including the defendants, went to a collective action accompanied by an act of violence without significantly deviating from the scope of protection, such as the Trade Union and Labor Relations Adjustment Act, in order to fulfill the requirements of the trade union, as well as the defendants, in light of the form, content, and result of the crime, such as inducing them to participate in the strike of this case or to take measures to have the union members who left the strike of this case from the middle, to cause severe mental suffering, and inducing them and their family members to participate in the strike of this case regardless of their will, and thus, they displayed their forms of behavior extremely dynamic and dangerous to the social means, such as forcing them to participate in the strike of this case regardless of their will, and as a result, the defendants' acts of this case should be sufficiently criticized and punished and the result of the crime of this case should be seen as not only in the national economy and regional economy, but also in light of the form, contents and result of the crime.

However, the defendants do not seem to go to dispute in order to take an individual's desire for th five-day working hours per week, 40-hour working hours, elimination of non-regular workers, contribution to local community development fund, etc. In this case, the defendants also were punished for disciplinary action during dismissal, etc., a considerable period of detention (not less than 1 year and 1 months) and long-term trial process to cause harm to others beyond the framework of the law. Defendant 1 was first and without any specific criminal record. In addition, considering the roles and positions of the defendants in the dispute of this case, the defendants' age, character, environment, and relationship, the motive, means and results of each crime of this case, the circumstances after each crime of this case, and all other conditions of sentencing as indicated in the records of this case, the court below's punishment against the defendants is too unfair.

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, since the defendants' appeal is well-grounded, and the following decision is rendered again after pleading.

As stated in each corresponding column of the judgment of the court below, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article relevant to the facts constituting an offense and the selection of punishment;

The point of night collective confinement (defendants): Articles 3(2) and (1), 2(1), and 276(1) of the Punishment of Violences, etc. Act, and Article 276(1) of the Criminal Act

Each collective housing intrusion (defendants): Articles 3(1) and 2(1) of the Punishment of Violences, etc. Act and Article 319 of the Criminal Act

Each group intimidation (defendant 1, 2, and 3): Articles 3(1) and 2(1) of the Punishment of Violences, etc. Act and Article 283(1) of the Criminal Act

Article 314(1) and Article 30(1) of the Criminal Act (Appointment of Imprisonment)

The point of each collective injury (defendants): Articles 3(1) and 2(1) of the Punishment of Violences, etc. Act and Article 257(1) of the Criminal Act

The point of collective damage(defendants): Articles 3(1) and 2(1) of the Punishment of Violences, etc. Act and Article 366 of the Criminal Act

Joint confinement (Defendant 1, 2, and 3): Article 2(1) of the Punishment of Violences, etc. Act and Article 276(1) of the Criminal Act

Joint Violence (Defendant 1, 2, and 3): Article 2(1) of the Punishment of Violences, etc. Act and Article 260(1) of the Criminal Act

The point of defamation of each judgment (Defendant 1): Article 307(2) of the Criminal Act (Appointment of Imprisonment)

Industrial action during the period of prohibition of industrial action(defendants): Article 91 subparag. 1, Article 63 of the Labor Union and Labor Relations Adjustment Act, Article 30 of the Criminal Act (Preparation of Imprisonment)

1. Aggravation of concurrent crimes;

Article 37 (Aggravation of Penalty for Violation of the Punishment of Violences, etc. Act due to Night Confinement or Collective Confinement in the Judgment with the most serious punishment)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act

1. Calculation of the number of days pending trial (the accused);

Article 57 of the Criminal Act

1. Suspension of execution (the defendants);

Article 62 (Consideration of Criminal Act)

Although the Defendants did not claim as the reason for the first appeal, they will examine the issues raised by the defense counsel in the final appeal of this case and the case after remanding.

1. Meritorious of legal principles as to co-principal

A. Summary of the defense counsel's assertion

As to each of the remaining facts charged except for the violation of the Labor Union and Labor Relations Adjustment Act, the Defendants did not commit such crimes in collusion and joint with each of the co-offenders listed in the facts charged. However, the lower court erred by misapprehending the legal doctrine on co-principal, thereby adversely recognizing the Defendants as co-principal of each of the instant crimes, thereby adversely affecting the conclusion of the judgment.

B. Determination

In a case where two or more persons are jointly processed in a certain crime, the conspiracy does not require any legal punishment, but is a combination of two or more persons to jointly process a crime and realize a crime. Although it comes to the combination of doctors through the common intent, even if it comes to an impliedly, the conspiracy relationship is established if the two or more persons agree to realize a crime. In a case where the functional control of the act based on the common intent is recognized in the course of the commission of the crime, even those who do not directly participate in the act of the conspiracy shall be held liable as a joint principal offender (see Supreme Court Decisions 2003Do6779, May 27, 2004; 2004Do2034, Jun. 11, 2004, etc.).

In full view of the various evidences duly adopted and examined by the court below, Defendant 1, the secretary general of the labor union of ELKex (hereinafter “the labor union of this case”), as the chief of the labor union at the time of the industrial action of this case, shall exercise overall control over the affairs to instruct and instigate the individual acts of the labor union as the chief of the labor union at the time of the industrial action of this case. Defendant 2, the policy vice chief of the labor union, as the chief of the labor union, shall exercise overall control over the planning, propaganda, public relations, negotiations, etc. of the labor union as the chief of the labor union, and Defendant 3, the chief of the labor union, as the chief of the labor union, shall direct and lead the activities of the labor union to receive and take advantage of all kinds of major facilities of the company as the chief of the labor union’s labor union’s campaign team, and Defendant 4, the chief of the labor union, as the public relations team of the labor union of this case, was aware of the fact that the labor union of this case and some other members participated in the labor union of this case, etc.

2. Violation of the Labor Union and Labor Relations Adjustment Act

A. Summary of the defense counsel's assertion

The crime of violation of the Labor Union and Labor Relations Adjustment Act, which is punished due to industrial action during the period of prohibition of industrial action in the essential public-service business, is established through industrial action during which 15 days are prohibited from being conducted by the chairman of the Labor Relations Adjustment Commission because the special mediation committee legally composed of the special mediation committee deems that it is not possible to establish mediation, and accordingly the Labor Relations Commission's decision to refer the case to arbitration after hearing the opinion of the public interest members. In relation to the organization of the special mediation committee which recommended the referral to arbitration in this case, the special mediation committee under Article 72 (3) of the Labor Union and Labor Relations Adjustment Act (hereinafter "Labor Union and Labor Relations Adjustment Act") stipulates that the special mediation committee's designation shall be made by the chairman of the Labor Relations Commission from among the public interest members of the Labor Relations Commission and the remaining members after excluding some members of the special mediation committee. Thus, the special mediation committee's appointment of the special mediation committee member as a special mediation committee member without disregarding the special mediation committee member. Thus, the special mediation committee's attendance at this case's referral to arbitration is unlawful and void.

B. Determination

(1) The basic facts

In full view of the various evidences duly admitted and examined by the court below, the following facts can be acknowledged, comprehensively taking into account Non-Indicted 5’s legal statement, Non-Indicted 6’s witness of the Seoul Administrative Court 2004Guhap24837 case, Non-Indicted 6’s witness examination protocol, the above case’s certified copy, and the official document of the National Labor Relations Commission:

① The instant trade union and the ELVTEX Co., Ltd. (the present name was changed to “NETEX,” and hereinafter “instant company”) have negotiated eight times from May 13, 2004 to June 23, 2004 in order to conclude a collective agreement on wages and collective agreements in 2004, but they could not narrow the difference of opinions. As such, the instant trade union filed an application for labor dispute mediation with the National Labor Relations Commission on June 28, 2004.

② On the same day, the National Labor Relations Commission sent public questions to the trade union and the instant company on the same day upon receipt of the application for the mediation of the said labor dispute, and intended to conduct a prior investigation as of June 30, 2004, and notified each public interest member to attend the meeting and to prepare and submit a list of four members who intend to successively exclude public interest members from the composition of the special mediation committee.

③ On June 30, 2004, the instant trade union submitted to the National Labor Relations Commission a statement of exclusion to exclude Nonindicted 7, 8, 9, and 10 from the order of “Nonindicted 7, 8, 9, and 10,” and “Nonindicted 11, 12, 13, and 14,” respectively.

④ However, as of July 2, 2004, the chairman of the National Labor Relations Commission constituted a special mediation committee consisting of three public interest members, such as non-indicted 7 excluded from the instant trade union as public interest members, and notified the instant trade union and the instant company of the list of special mediators, and notified the prior mediation of July 5, 2004 and the attendance at the mediation committee of July 13, 2004.

⑤ However, Nonindicted 7, as the president of the Special Coordination Committee, did not raise any special objection against Nonindicted 7’s prior coordination as the president of the Special Coordination Committee and the Coordination Committee on July 13, 2004, while the trade union of this case knows that public interest members excluded by him were designated as special mediators.

(6) Thus, on July 14, 2004, the Special Conciliation Committee presented a proposal of conciliation to the instant trade union and the instant company, but both parties refused to accept the proposal of conciliation. At this time, the instant trade union did not refuse the qualification of Nonindicted 7’s special mediators, but did not include the contents reflected in most of the instant company’s arguments.

7) On July 14, 2004, the Special Arbitration Committee recognized that there is no possibility that the mediation will be constituted, and recommended the National Labor Relations Commission to refer the case to arbitration (hereinafter “in this case’s recommendation”), and the chairman of the National Labor Relations Commission decided to refer the case to arbitration on July 18, 2004 after hearing public interest members’ opinions (hereinafter “instant decision to refer the case”).

(8) However, even if the National Labor Relations Commission held an arbitration meeting on July 23, 2004, Nonindicted 7 was present at the arbitration committee, and the trade union in this case raised an objection against Nonindicted 7’s attendance at the arbitration committee.

9. The National Labor Relations Commission rendered an arbitration award on July 23, 2004.

(2) Relevant regulations and their interpretation

(1) In Article 72 (1) of the Trade Union and Labor Relations Commission Act, a special mediation committee shall be established in the Labor Relations Commission for the mediation of labor disputes for public works, and in paragraph (2) of this Article, a special mediation committee shall be composed of three special mediation committee members, and special mediation committee members shall be nominated by the chairman of the Labor Relations Commission from among three to five members remaining after a trade union and an employer successively excludes the public interests of the Labor Relations Commission from among members representing the public interests of the Labor Relations Commission: Provided, That where the parties concerned recommend a person who is not

On the other hand, Article 21(1) of the Labor Relations Commission Act on the Establishment, Operation, etc. of a Labor Relations Commission provides that a member shall not be involved in deliberation, resolution, or mediation on matters in which he/she has a direct interest, and Article 21(2) provides the grounds for exclusion, and Article 21(2) provides that a member who is difficult to expect the fairness of deliberation, resolution, or mediation may file

(2) As above, the Trade Union and Labor Relations Adjustment Committee grants the right to exclude public interest members on both unions and companies in relation to the composition of the Special Coordination Committee in light of the authority to recommend the Labor Relations Commission to refer a case to arbitration in cases where the Special Coordination Committee deems that there is no possibility for the mediation to be established. The Trade Union and Labor Relations Adjustment Act provides that both unions and companies may select those committee members from their own position without explicitly stipulating the grounds for exclusion, such as the grounds for exclusion prescribed in the Labor Relations Commission Act in relation to the organization of the Special Coordination Committee. In addition, the Special Coordination Committee does not stipulate the effect of the violation. Furthermore, if the Trade Union and Labor Relations Adjustment Committee recommends those who are not the members of the Labor Relations Commission due to the agreement between the parties concerned, the recommended person shall be designated as the members of the Special Coordination Committee. In light of the fact that the Trade Union and Labor Relations Adjustment Committee provides that both unions and the company members of the Special Coordination Committee are able to reach a voluntary agreement, it does not take the same legal effect as the exclusion immediately, and if the chairperson of the National Labor Relations Commission declares expresses the public interest members in spite of one party.

(3) Sub-determination

In full view of the above facts, the illegality in the composition of the Special Arbitration Committee of this case was cured, and such conclusion cannot be deemed to be unlawful since the trade union of this case raised an objection at the latest in the arbitral proceedings. Thus, the recommendation of this case cannot be deemed to be unlawful. On the other hand, the above assertion by the counsel premised on the invalidity of the recommendation of referral to arbitration of this case cannot be viewed as unlawful. Even if the recommendation of this case is invalidated as the counsel's assertion, it is not reasonable (Article 74 (1) of the Trade Union and Labor Relations Commission may recommend the referral of the case to the Labor Relations Commission in question if it is deemed that there is no possibility of the establishment of mediation in essential public works." Article 75 of the Trade Union and Labor Relations Commission of this case provides that "The chairperson of the Labor Relations Commission may recommend the referral of the case to arbitration according to Article 74 (1) of the Labor Relations Commission's opinion, if there is a recommendation under the above provision that the chairman of the Labor Relations Commission should refer the case to arbitration in accordance with the above provision, and it cannot be deemed unlawful merely because the chairman of the Labor Relations Commission's decision of this case.

It is so decided as per Disposition for the above reasons.

Judges Park Byung-il (Presiding Judge)