2014No1089 Interference with work

1. Kim○-○ (66 years old, over 10 years old);

2. Red○○ (69 years old, over 20 years old);

3. Long-distance (70 years of birth, her remainder).

Prosecutor

The Prosecutor’s Rule (Court Prosecution), the President of the Republic of Korea, the Prosecutor’s Office, the Prosecutor’s Office, or the Kim Jong-il (Court Decision)

Law Firm ○○ (private ships for all of the Defendant)

Attorney Shin-○ in charge

Seoul Southern District Court Decision 2013Ma2882 Decided June 19, 2014

April 6, 2015

All appeals by the prosecutor are dismissed.

1. Summary of grounds for appeal (misunderstanding of facts and misunderstanding of legal principles);

Although it is impossible to recognize the legitimacy of the purpose of the strike of this case, the lower court erred in the determination of damages by omitting the fact-finding on the purpose of the strike, and by determining that the loss was not caused on the basis of the reduced amount of personnel expenses for the strike workers in accordance with the principle of no labor

Although the Defendants did not recognize the legitimacy of the purpose, the Defendants engaged in the instant strike at a time when the company could not predict without undergoing the conciliation procedure as prescribed by the Trade Union and Labor Relations Adjustment Act, and thereby resulting in a serious confusion or enormous damage to the business operation of the private sector, the lower court acquitted the Defendants, despite the fact that the Defendants’ above act constitutes the crime of interference with business by force.

Therefore, the court below erred in misunderstanding of facts and misunderstanding of legal principles.

2. Determination

A. The crime of interference with business is established in a case where a person interferes with another’s business by deceptive means or by force (Article 314(1) of the Criminal Act). The term “power” means all the power that may cause confusion with another’s free will. The strike as an industrial action that interferes with the normal operation of business by refusing to provide labor for the purpose of accomplishing such assertion (Article 2 subparag. 6 of the Trade Union and Labor Relations Adjustment Act), even though the strike as an industrial action that obstructs the normal operation of business by refusing to provide labor (Article 2 subparag. 6 of the Trade Union and Labor Relations Adjustment Act) is not simply

However, since a strike is a practical exercise, it includes an element of force as referred to in the crime of interference with business. However, an employee may be limited on the grounds of public interest, such as national security, maintenance of order, or public welfare, pursuant to Article 37(2) of the Constitution, and the exercise of such right should be justified, and in principle, an employee has the right to independent association, collective bargaining, and collective action to improve working conditions (Article 33(1) of the Constitution). Therefore, a strike as an industrial action does not always constitute the crime of interference with business, but it does not constitute the crime of interference with business at all times. In light of the situation and circumstances before and after the business, it can be evaluated that the employer’s free will to continue the business may be at a time unforeseeable, which may cause serious confusion or enormous damage to the business operation, and the refusal of collective refusal to provide labor constitutes a force and constitutes the crime of interference with business.

It is reasonable to see that it is (see Supreme Court en banc Decision 2007Do482 Decided March 17, 201).

B. Based on the aforementioned legal principles, the lower court found the Defendant not guilty of the instant facts charged on the grounds that it is difficult to view that the instant strike may cause serious confusion or enormous damage to the business operation due to the fact that the Korean Broadcasting System (hereinafter referred to as the “Korea Broadcasting System”) could not be predicted, taking into account the circumstances as indicated in its reasoning, and on the grounds that there is no other evidence to acknowledge it.

C. The circumstances based on the judgment of the court below are as follows, namely, ① the witness Kim △△△△△△ is basically a system installed at the court of the first instance, so if the strike is scheduled, it can be sufficiently prepared in accordance with the strike management guidelines or manuals, and the strike in this case has already been 10 days enough to cope with the dispute. ② The advertising loss in the facts charged as the amount of damages, ② The advertising loss of KRW 313,703,700 and the special work allowance of KRW 71,414,80 are merely the minor amount of KRW 71,414,80 in light of the size of the entire revenues (such as advertising revenue, receiving fees, etc.) of the KBS, ③ In particular, the above advertising loss (the difference between the amount discounted by 20% from the normal revenues of the second half-time advertisement).

In light of the fact that the instant strike was conducted on a full basis, rather than on the ground that it was caused by the high advertising unit of the program itself, and that the amount of special work allowances is not an amount equivalent to approximately KRW 6.59 billion in accordance with the application of the principle of non-labor-free wages in KBS during the instant strike period, the lower court’s aforementioned determination is reasonable and acceptable.

The court below determined that the strike of this case did not prove that the strike of this case constitutes "power" as a constituent element of the crime of interference with business. Thus, there was no need to determine the legitimacy of the strike of this case, and there was no error of omission of judgment on this part.

As the prosecutor asserts in the court below, there is no error of law by misunderstanding facts or by misunderstanding legal principles, which affected the conclusion of the judgment.

3. Conclusion

Thus, the prosecutor's appeal is without merit, and it is dismissed under Article 364 (4) of the Criminal Procedure Act.

Judges erroneousness of the presiding judge

Judges Kim Jong-young

Judges Yang Chang-soo