Defendant

Both parties

Choi Young-gu

Attorney Park Ho-ei

Suwon District Court Decision 2009Gohap422 Decided February 17, 2010

All appeals by the defendant and the prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of facts

Although the Defendant was living in Pyeongtaek Factory during the strike period in relation to the strike of two vehicles in this case, there was no fact that the strike participants did not command the participants in the strike to commit each crime as stated in the facts charged, and did not commit acts of exercising violence against the police and the employees of the company in collaboration with the strike participants, and in light of the Defendant’s status, specific role, behavior, etc., it cannot be deemed that the Defendant had the intent to jointly process each of the above crimes or have functional control over each of the above crimes through substantial contribution.

(2) Unreasonable sentencing

The three-year imprisonment with prison labor determined by the court below against the defendant is too unreasonable.

(b) Prosecutors;

The above-mentioned sentence determined by the court below against the defendant is too uneasible and unfair.

2. Judgment on the defendant's assertion of mistake of facts

A. Details of the assertion

The Defendant did not prepare guidelines related to negotiations and documents related to the strike in relation to the strike of a pair of automobiles, and the documents attached to e-mail sent and received by the Defendant during the strike period are not directly prepared by the Defendant, but merely sent out his e-mail by taking the e-mail in order to refer to the preparation of a white paper in the future. While the Defendant proposed a "sken mold" in relation to the strike of a pair of automobiles, it is not related to the detailed strike plan, it is not related to the establishment of a command system that imitates a military organization, and there is no fact that the Defendant has built a command system that imitates a military organization, and the Defendant appealed against the company and the police as the input of public power to raise the morale of the union members. As such, even though the Defendant did not act in collusion with the participants of the strike of a pair of automobiles or by functional control, the lower court erred by misapprehending the fact that all the charges were guilty.

B. Determination

(1) Legal principles

Article 30 of the Criminal Act is established upon fulfilling the subjective and objective requirements, such as the intent to jointly process and the implementation of a crime through functional control based on the intent to jointly act. Even in cases where part of the competitors have not been carried out by directly sharing part of the constituent elements, if it is acknowledged that there exists a functional control through the intrinsic contribution to the crime rather than a mere conspiracy, but rather a functional control through the intrinsic contribution to the crime, the so-called crime cannot be exempted. In this case, in light of all the circumstances such as the means, attitudes, number of participants and their inclinations, time and characteristics of the crime, possibility of contact with others and anticipated response to the crime in the process of the crime, and the possibility of such contact with others is anticipated or expected to result in another incidental crime in order to achieve the objective, even if there was no possibility of such contact with others, it should be deemed that there was no reasonable measure to prevent the occurrence of the crime, as well as 207 individual criminal acts, even if there was no contact with them, as well as 207 individual criminal acts.

In addition, the co-principal of an aggravated crime is established when he/she wishes to jointly act as a basic act, and there is no need to jointly act as a result. The crime of bodily injury resulting from the obstruction of performance of official duties is established when he/she committed violence or intimidation against an organization or a public official carrying dangerous objects, thereby causing the death or injury of a public official. It is sufficient that the perpetrator is not required to intend the result, and that the result can be predicted (see Supreme Court Decision 2000Do3485, Apr. 12, 2002, etc.).

(2) Determination

According to the evidence duly admitted and investigated by the court below, the following circumstances are recognized:

① Both automobile companies (hereinafter referred to as “company” when referring to the side of the company in labor-management relations, and in other cases, hereinafter referred to as “a pair of automobiles”) began to commence rehabilitation procedures with the Seoul Central District Court on January 9, 2009, when they were suffering from chronic financial shortages since 2008. Both automobiles announced a self-rescue plan and announced the plan to conduct restructuring such as reduction of human resources. The head of ○○○-affiliated car branch (hereinafter referred to as “a pair of automobile unions”) was opposed to the above restructuring of the company, and declared the total wave business on May 22, 2009. During that process, two cars moved in a two-party car stack factory, reduced the management staff out of the factory, obstructed the entrance and exit of the factory, etc., and let the manager in possession of the pipe with a pipe container, etc., make sprinkn and sprinkn in the process of manufacturing and sprinking the plant.

② The Defendant had been detained while serving as the Director General of the Headquarters for the Joint Stopover against Daewoo Motor in 2002 when he was dismissed. From 2002 to ○○○, from 2005 to 2008, the Director General of the Organizational Organization Planning Bureau was in charge of managing the Organizational Organizational Organizational Organizational Organization Bureau from 2008 to 300. The Defendant started to take exclusive charge of the support work from May 22, 2009 upon the request of one person in this Article from the Department of the Operational Organization of Both Motor Vehicles in 209 to 3.6.00 to 2.09 to 3.00 (hereinafter “the Organizational Organizational Organizational Organizational Organizational Change”) and had both factories stay in the two factories, to support the Operational Operational Structure in 2009 (hereinafter “the Operational Structure”).

③ On May 15, 2009, the Defendant: (a) prepared a document under the title “measures to utilize negotiations in terms of both sides of present time”; (b) made it available when negotiating with the private party; (c) attended 50-60 standing executive members and branch representatives during the period of occupation and wave; (d) attended 5-6 times in the “Dispute Countermeasure Committee,” which generally discusses the scambling of the members of both parties, as witnesses; (b) made it available for the use of the document under the title “the measures to utilize negotiations in terms of both sides of present time”; and (c) made it available for the use of the document under the title “the measures to utilize negotiations in terms of both sides of present time; and (d) made it possible for the Defendant to negotiate with the chief of the YU and the chief of the YU in terms of how much he/she is in charge of the scambling in relation to the development of the two-party motor vehicles under the title of the YU and present the direction to negotiate with the chief of the Y.

④ On May 20, 2009, from May 20 to 21, 2009, the Defendant sent documents under No. 1 (No. 24), “No. 23” (No. 29), and on May 28, 200, to the point where the two-party strike is considered for the two-party strike” (No. 29) by e-mail, and during the period of the occupation and strike, the Defendant sent the documents under the joint representative 8 (△△△), Nonindicted 6 (the head of the branch office of the two-party vehicle), Nonindicted 5 (the head of the policy planning office of the branch office of the two-party vehicle), and other members of the Joint Execution Headquarters, respectively, and the Defendant was in a close relationship between the two-party joint strike headquarters and the instant strike.

⑤ A mobile storage device (USB) from the Defendant stores 25 documents related to the instant strike. On June 30, 2009, the list 7 lists “pre-cover planning (revision)” was formulated in a document that was stored on June 30, 209, when public power is anticipated to be put into the future. The list 16 sets out three detailed scenarios and pre-coverages in preparation for the injection of public authority, and the “coverages and checks” was prepared in detail and prepared for response scenarios for attack by the company and public authority. In particular, the list 24 sets out that the Defendant planned training against entry of public authority, and provided a comprehensive direction and direction-making method to the head of the 6th office of the police station, and provided a comprehensive direction and direction-making method to the head of the 1st office of the 6th office of the 2nd office of the 1st office of the 2nd office of the 2nd office of the 1st office of the 2nd office of the 6th office.

⑥ 피고인의 이메일( ▷▷▷@hanmail.net)로 송수신한 문건 및 자료(증 제11호부터 증 제58호까지)를 보면 주18) , 피고인이 쌍용자동차 파업 경위를 상세하게 정리한 파업 주요 일지 주19) , 쌍용자동차 공동투쟁본부로부터 수신한 문건 주20) , □□□ 정책국장 공소외 10으로부터 받은 ‘쌍차 관련 정세보고와 대응’, “온 힘으로 정치쟁점화를 통해 국면을 돌파해 나가자”, 그리고 ‘전술기획팀 3차 회의 자료 주21) ’ 등인데, 그 내용이 주로 이 사건 파업투쟁과 관련한 각 주차 투쟁평가와 전술 및 사업계획, 각종 회의 자료 및 결과, 투쟁계획 등에 관한 것으로, 특히 전술기획팀 3차 회의 자료나 각종 파업 주요 일지들은 파업투쟁에 대한 상당한 경험과 지식이 있는 사람이 아니면 작성하기 어려운 문건으로 보이고, 다른 문건들도 쌍용자동차 노조 자체의 시각이나 입장에서 작성된 것이라기보다는 □□□나 ○○○의 입장과 시각에서 작성된 것으로 보이며, 피고인이 쌍용자동차 점거파업에 가담하게 된 경위 및 이유 등에 비추어 볼 때, 위 이메일로 송수신한 주요 문건은 2002년 대우자동차 정리해고 파업 투쟁의 경험이 있는 피고인이 이 사건 파업투쟁과 관련하여 작성한 것으로 보여 진다.

7) On June 4, 2009, the Defendant received a note 22 from Nonindicted 6, the head of the Trade Union Branch of a two vehicles: (a) the mobile phone and the mobile phone number were sent to Nonindicted 6; and (b) the Defendant took charge of the contact between △△ and the two car unions by communicating the people in the above mobile phone with those in the above mobile phone, and transmitting the labing response, etc. to the executive body of the two cars; and (c) took charge of the contact between △△ and the two car unions, and took charge of the movement of the police outside the factory and delivery of them to Nonindicted 6, etc.

8. On June 19, 2009, the defendant was a two-wheeled motor vehicle during the period of the strike.

In order to prevent the police from entering a factory, a defense wall is installed on July 20, 2009 to prevent the entry of the police as well as on July 20, 21, 2009. The fact that two assistant workers participated in the process of transmitting rice for the purpose of getting a pan-national countermeasure against the workers of two vehicles at the front line of the bus head office, and on August 23, 2009, the fact that he participated in the process of spreading rice on the 2nd line of the painting factory, and that he sawd on August 24, 2009, in the painting factory, the 26th day after viewing the surrounding circumstances, and the defendant instructed the 28th day of the 2nd day of the 2nd day of the 2nd day of the 2nd house.

9) The Defendant, in writing stored in the book and the mobile storage device, asserts that the reason why the place of the strike was last put in place is to create a white paper for the period of the strike. However, if the contents written in the above book were not simply arranged the situation of the strike, rather than simply arranging the situation of the strike, the Defendant’s assertion that “2-1 line and reinforced the factory from the company’s side of June 26, 2009,” “29 line and reinforcement, related to the number of branch offices, need to enter outside, and need to enter outside, 29 note,” and “22-day large-day entry plan is carried out, 30 weeks if it is possible to enter the factory, so that many of the Defendant’s arguments that support the Defendant’s operation of the factory, such as the fear that there is no concern that there is no concern that two-day ex officio arrest after entering the factory would be effective.”

① On August 4, 2009 to June 6, 2009, the Defendant: “The Defendant was led to a long time in the curative doping system from Non-Indicted 10, etc.; “Urgently, Symp-top-on-site subleted in the house at the police and fire fighting vehicle in a two-site, during the event of a two-site sub-deflusing,” “electric cable Heon-to-door Round 2 Factory Round Dopp-rop distribution unit: “Woo Dop-to-door Dop-rop distribution unit Dop-rop in the electric cable?” and “the two-place factory of the electric cable Adu 2 was sp-to-face.” This was sent by a text, such as “Syp-to-door removal, joint flusp and joint wind,” which was used by the Defendant to the enforcement department of a two-way motor vehicles by taking advantage of the detailed situation of the Defendant’s violent into force.

1) The instant violent incident was committed by the labor union members of two automobiles under the direction or plan of the executive officers of the branch office Nonindicted 6, with the head of the branch office Nonindicted 6, by controlling the access to the two automobiles Pyeongtaek factory, and by occupying buildings. During that process, the labor union members committed an act of violence by carrying a shot gun, pipe, chemical sprink, etc., which is a dangerous object by exercising multiple force. The Defendant performed an important role in formulating the basic direction of the labor union’s strike, such as the above Nonindicted 6, etc., the basic direction for the labor union and the measures to cope with the labor union and the sp

(12) The new guns, pipes, and chloud disease, etc. used in the strike of this case were already prepared prior to each of the crimes in this case. The defendant had a hack pipe and had stayed in Pyeongtaek-si factory until August 6, 2009. In light of the size of the number of persons participating in the strike and the atmosphere at the time of heating, etc., the defendant, as the defendant, had been urged to conduct a dispute between the union members and the officers and employees of the two cars who want to enter Pyeongtaek-si factory, collective action with the police to suppress the strike of this case, physical conflict with the police for suppression, collective violence, and injury therefrom, he had already been anticipated to follow it, but the defendant had already been in possession of a hack pipe and stayed-si factory until August 6, 2009.

As seen above, according to the circumstances leading up to the defendant's participation in the strike of this case, the details and process of the strike of this case and violence situation, the status and role of the defendant in the process, and the contents and nature of the documents prepared by the defendant, even though the defendant did not specifically gather or directly take part in the crime, such as the assault, bodily injury, or injury caused by special obstruction of performance of official duties, it is recognized that the defendant had a functional control over the above crime through an implied conspiracy for each crime, as well as an essential contribution to the crime, and therefore, the defendant cannot be exempted from the criminal liability as a co-principal for each of the above crimes committed by the labor union members.

Therefore, the defendant's above assertion is without merit.

3. Determination on the assertion of unreasonable sentencing by the defendant and the prosecutor

The fundamental reason for the management crisis in which two automobiles were experienced is that the sale of the stroke cars in China and the poor operation of the stroke cars are located after the sale of the stroke cars in China. However, the company's side has a high level of restructuring, which is a large number of layoffs, and the strike of this case, which is a punishment, is conducted at the level of the right to survival of workers. In addition, the possibility of rehabilitation of the two cars is open due to the court's decision of compulsory approval on the rehabilitation plan of the two cars, etc., shall be considered as the circumstances favorable to the defendant.

However, under the pretext that such layoffs cannot be absolutely accepted, the company went to complete the company's business by illegally occupying two cars for 77 days or more on the ground that they were unable to carry out the above layoffs, and thereby, went to the situation immediately preceding the bankruptcy. The act of committing various acts of violence, such as bodily injury, assault, and special obstruction of performance of official duties, through an excessive means which cannot be justified in the process, cannot be used for any reason as a fundamental unlawful act of the rule of law.

The Defendant was involved in the strike of this case upon the request for the construction of a pair of vehicles, and was not involved in an act of violence or an act of violence. However, in light of the sentencing conditions indicated in this case, considering the following factors: (a) the head of the Trade Union and the head of the Trade Union and the head of the Trade Union and the head of the Trade Union and the head of the Trade Union and the head of the Trade Union and the head of the Trade Union and the head of the Trade Union and the head of the Trade Union and the head of the Trade Union can continue the strike of this case while participating directly or indirectly in the decision-making of the Trade Union and participating in the strike of this case; (b) the head of the strike of this case has played a significant role in the strike of this case and the act of violence; (c) the strike of this case has become more long-term and extreme with the involvement of external force like the Defendant; and (d) the defendant has the history of having been punished several times in the crime related to the demonstration

Therefore, the defendant and prosecutor's argument of unfair sentencing is without merit.

4. Conclusion

Therefore, since the appeal by the defendant and the prosecutor is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Chang-suk (Presiding Judge)

Note 1) Evidence 14 pages, 1254 pages

Note 2) In relation to the details of the police, the Defendant stated in the police that “The labor union of two vehicles has been supported by the head of the branch office so that Nonindicted Party 6 may well scam the scam.” and that “working is the support for the scambling prior to the death and the entry of the police” (Evidence Record 1257 pages).

3) As to the seized evidence No. 22 (Evidence No. 2194) and the Defendant asserted that the documents related to the above negotiations were not prepared by themselves, the Defendant stated in the police that “I would like to advise the head of the policy planning office and the labor union chief in charge of negotiating in the two motor vehicles union about the position of this Article that I would like to explain the position of this Article by seeking advice about the position of this Article in the process of negotiating with the company.” (Evidence No. 2025 pages), the above documents appear to have been written by the Defendant in light of the content and method of the above documents, etc. (Evidence No. 2025 pages).

Note 4) Evidence records 1258 pages

Note 5) Evidence Records 2548 to 2565

Note 6) Evidence 2011 to 2012

Note 7) Evidence 2025 pages

주8) 2009. 4. 9. ○○○ 경기본부, ■■■, △△△ 등 15개 단체 대표자들이 참석하여 결성한 단체이다(증거기록 2622쪽 등)

9) The evidence records consisting of 1139-1141 pages, specifically, the following contents: “the war combat prize”, “e.g., the placement of the public authority and the promotion scenarios,” “scopic allocation of the power of the agricultural sector,” “a system and method of command”, and “scopic goods,” etc.

Note 10) Evidence Record 1184-1186

Note 11) Evidence Records 1244-1247

Note 12) Evidence Record 2012

13) In light of the fact that Nonindicted 6 stated in the police the evidence record 2310 pages 2310 pages, and that “other documents cannot be memory because they are too large,” the comprehensive plan for the foregoing tactical training was proposed by the Defendant, the court below held that Nonindicted 6’s above police statement is more reliable despite the court’s statement (379 pages of the trial record) that Nonindicted 6 was not well memory of the preparation process of the above plan.

14) On or around May 22, 2009, the strike-based power, including the chief of the Trade Union, branch of the Trade Union, Nonindicted 6, etc., established a base and response method for each of the following items: (a) from around May 22, 2009, both parties engaged in the strike-based activities, based on the resolution of the "third-time conference of the film planning team" through the organization of the participants in the strike-based activities and combat units; (b) education and tactical training in preparation for input of governmental authority, etc.; (c) production, storage and distribution of weapons such as sprinks, chloaks, chloaks, and so on; and (d) establishment of a base and response method for each of the preceding and preceding entry periods, such as public authority; and (d) the establishment of a base and response method for each of the participants in the strike-based activities (see 20-10 (20-2, 2006).

Note 15) Evidence Record 2172 pages

Note 16) Nonindicted 6 stated in the police that “I have the position of the Chief of Staff,” “I have the position of the Chief of Staff,” “I have the position of the Chief of Staff,” and “I have the position to prepare the organization in accordance with the status system, such as the Camping Commander,” (Evidence No. 2311). Nonindicted 7 stated that “I have the position of the Chief of Staff at the police and the court of original instance that “I have the position of the Chief of Staff at the end of July 2009, the police and the court of original instance to the position of the Chief of Staff.” (Evidence

Note 17) At the court of original instance, Nonindicted 6 stated in the court of original instance that “The Defendant made a broadcast using microphones and loudspeakers on the painting rooftop within the strike period on several occasions” (the trial record 385 pages).

Note 18) Evidence Record 1311~1812 Interrogation Report ( Results of e-mail search and seizure in suspect's name)

Note 19) Evidence Records 2577-2580

Note 20) Evidence Record 2422-2453

Note 21) Evidence Records 2548-2565 pages (Evidence Records 2594-2606 pages, 1318-1325 pages)

Note 22) A mobile phone (010-9352-1809) on the part of the master body of heading 2 of seized evidence

Note 23) Evidence No. 9 (Evidence No. 2648 pages) seized

Note 24) Evidence Record 2637 to 2638

Note 25) Evidence Records 1263 to 1265

Note 26) Evidence Record 1266~1267

Note 27) Evidence Records 1268-1281

Note 28) Evidence Records 1287-1296

Note 29) Evidence 1032 pages

Note 30) Evidence Record 1075 pages

Note 31) Evidence Record 1076 pages

Note 32) Evidence Records 1851~1854

Note 33) The defendant's second trial date at the court