[1] Whether a group of union members engaging in an industrial action against a trade union’s approval or instruction may be viewed as a group of non-organization workers’ disputes (negative)

[2] Requirements for the establishment of a crime of abandonment of duty and whether a sick person can be the subject of a crime of abandonment of duty (negative)

[3] The case holding that an industrial action by a group of certain union members does not constitute a justifiable act, and the participant in sick leave is recognized as an accomplice relationship with the participant who did not, and thus, is punished as a crime of abandonment of duty

[1] In a case where a group of certain union members conducts an industrial action in violation of the union's approval or instruction, it shall not be deemed as the group of non-organization workers' disputes.

[2] The crime of abandonment of duties is established when a person has a duty to act in a specific manner under the awareness that such duty is to be performed, and when a person abandons his duty is not a case where a public official neglects his duty to act abstractly in accordance with the law, the rules, etc., but a case where a public official neglects his duty to act without permission and is likely to impair the function of the State and cause damage to the people. Thus, in the case of a sick person, it cannot be said that there is a concrete danger of undermining the specific duty to act or national function, and thus, it cannot be the subject of the crime of abandonment of duties.

[3] The case holding that an industrial action conducted by a group of certain union members against a trade union's approval or an instruction does not constitute a justifiable act in light of the course, purpose, mode, etc. of the industrial action, and part of the union members participating in the industrial action cannot be the subject of the crime of the abandonment of duties because they are co-offenders with other union members who are the subject of the crime of the abandonment of duties even though they cannot be the subject of the crime of the abandonment of duties, all union members participating in the industrial action should be the subject of the crime of the abandonment of duties (the case of this case where railroad public officials who participated in the industrial action, together with other railroad public officials who are not the subject of the crime of the abandonment

[1] Article 3 of the former Trade Union Act (repealed by Article 3 of the Addenda of Act No. 5244 of Dec. 31, 1996) (see Article 2 of the current Trade Union and Labor Relations Adjustment Act), Article 12 of the former Trade Union Act (repealed by Article 3 of the Addenda of Act No. 5244 of Dec. 31, 1996) (see Articles 37 and 42 of the current Trade Union and Labor Relations Adjustment Act) / [2] Article 122 of the Criminal Act / [3] Article 2 of the former Trade Union Act (repealed by Article 3 of the Addenda of Act No. 5244 of Dec. 31, 1996) (see Article 4 of the current Trade Union and Labor Relations Adjustment Act), Article 12 of the former Trade Union and Labor Relations Mediation Act (repealed by Article 523 of the Addenda of Act No. 5244 of Dec. 31, 196), Article 12 of the Labor Relations Adjustment Act (see Article 323 of the current Labor Relations Adjustment Act)

[2] Supreme Court Decision 65Do984 delivered on March 15, 1966 (No. 14-1, 32), Supreme Court Decision 79Do3065 delivered on February 26, 198 (Gong1980, 12674), Supreme Court Decision 82Do3065 delivered on March 22, 1983 (Gong1983, 775), Supreme Court Decision 92Do334 delivered on December 24, 1993 (Gong194, 582) / [3] Supreme Court Decision 91Do324 delivered on May 24, 191 (Gong191, 1817), Supreme Court Decision 95Do1959 delivered on January 26, 196 (Gong1959, 197)

Defendant 1 and seven others

Defendants

Attorneys Shin Jae-in et al.

Busan District Court Decision 94No2630 delivered on February 27, 1995

All appeals are dismissed.

The grounds of appeal by defense counsel are examined.

On the first ground for appeal

The court below held that if a group of union members conducts an industrial action in violation of the union's approval or instruction, it cannot be seen as the group of non-organization workers' disputes, and considering the process, purpose, form, etc. of the crime of this case, it is difficult to view that the Defendants' act of abandonment of duty of this case is justified (see Supreme Court Decision 95Do1959 delivered on January 26, 1996). In light of the records and related Acts and subordinate statutes, the above judgment of the court below is just (see Supreme Court Decision 95Do1959 delivered on January 26, 196), and there is no error of law such as the theory of lawsuit, and the Supreme Court

On the second ground for appeal

The lower court determined that, even if part of the Defendants were sick at the time, there was no justifiable reason for the Defendants to commit the instant crime on the ground that the Defendants did not seem to have committed the instant industrial action on the grounds that the Defendants did not have any justifiable reason on the ground that the Defendants’ act was conducted as part of the instant industrial action, since the facts of treatment only for a very shorter period compared to the treatment period indicated in the medical certificate submitted by them and

However, there is a question as to whether Byung can be determined as a part of an industrial action, and the crime of abandonment of duties is established by failing to perform the duty of act under the awareness that Byung has the duty to act in detail despite the absence of the duty to act, and the abandonment of such duty is not a case where a public official neglects his duty to act abstractly by law, rule, etc., and it is not a case where a public official neglects his duty to act without permission, and it is a case where it is likely to impair the State's function and cause damage to the people (see Supreme Court Decision 82Do3065 delivered on March 22, 1983). Thus, in case of Byung, it cannot be said that there is a specific danger to harm the State's duty to act or the State's duty. Accordingly, the decision of the court below on this point is erroneous in the misapprehension of the rules of evidence and in the misapprehension of legal principles as to the crime of abandonment of duty.

However, even if a person without status is a person who processes the act of a person with status, the joint principal offense is established, and since the relationship between the Defendants in the records of this case and the rest of the Defendants is recognized, the Defendants in Byung should be punished as joint principal offense of the crime of abandonment of duty. Thus, the above unlawful acts of the court below do not affect the conclusion of the judgment, and the grounds of appeal disputing this point are therefore groundless.

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Final Young-young (Presiding Justice)