[1] Whether it constitutes an industrial action that interferes with the normal operation of the company's business by inciting workers to collectively refuse ordinary overtime work (affirmative)

[2] The requirements for legitimacy of the industrial action exempted from criminal liability

[1] Even if overtime work is performed by the parties’ agreement, if workers instigates workers to refuse to work normally and thereby interfere with the normal operation of the company’s business, such act shall be deemed an industrial action.

[2] An 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 his claim. Thus, it is inevitable to recognize that there is a case where the normal business of the employer is obstructed in light of the essence of the industrial action. However, when the industrial action of the worker goes beyond the bounds of legitimacy, the worker cannot be exempted from criminal liability, such as the obstruction of business. The requirement of justification for exemption from criminal liability is that the industrial action aims at maintaining and improving working conditions in relation to collective bargaining, and therefore the purpose and procedure of the industrial action is justifiable. The method and form of the industrial action must be in accordance with the provisions of the Act and subordinate statutes, and the method and manner of the industrial action should be accompanied by violence or destruction, or other acts that go beyond high level of

[1] Article 3 of the Trade Dispute Mediation Act / [2] Article 20 of the Criminal Act, Article 314 of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995)

[1] Supreme Court Decision 91Do1051 delivered on July 9, 1991 (Gong1991, 2184), Supreme Court Decision 91Do600 delivered on October 22, 1991 (Gong1991, 286) / [2] Supreme Court Decision 90Nu4006 delivered on May 14, 1991 (Gong1991, 1654), Supreme Court Decision 91Do324 delivered on May 24, 1991 (Gong191, 1817), Supreme Court Decision 91Nu5204 delivered on January 21, 1992 (Gong192, 927), Supreme Court Decision 91Nu1049329 delivered on March 13, 1992 (Gong1992, 927), Supreme Court Decision 91Do193294 delivered on March 13, 1992

Defendant

Defendant

Busan District Court Decision 95No2608 delivered on November 21, 1995

The appeal is dismissed. The number of days of detention days before the pronouncement of the judgment of the court of first instance, which was included in the term of imprisonment after the appeal, and the remaining days of detention before the pronouncement of the judgment of the court of first instance which is included in the term of imprisonment, shall

We examine the grounds of appeal.

The judgment of the court of first instance that recognized each of the crimes of this case against the defendant on the ground of the above evidence, which is the examination of the evidence admitted by the court below, is just, and there is no error of misconception of facts due to the violation of the rules of evidence

In addition, even if overtime work is performed by the parties' agreement, if the normal operation of the company was obstructed by causing workers to collectively refuse overtime work ordinarily committed by them, it shall be deemed to be an industrial action (see Supreme Court Decision 91Do600, Oct. 22, 1991). Industrial action includes not only passive refusal or suspension of labor supply but also acts impeding the normal operation of the company in order to actively accomplish such assertion. Thus, it is inevitable that the nature of industrial action is undermining the normal operation of the company. Thus, the employer has a duty to be free from criminal liability, such as the crime of interference with business. However, if the industrial action of the worker deviates from the legitimacy of the industrial action, the element of justification for exemption from criminal liability is for the purpose of maintaining and improving working conditions in relation to the collective bargaining, and thus, the industrial action should be justified under the provisions of the Acts and subordinate statutes, and the method and procedure of the industrial action should be justified, and the method and method of the industrial action and acts accompanying violence or destruction or other acts of high level of society, and should be within the justified scope (see Supreme Court Decision 25Do.).

However, according to the facts established by the court below, the industrial action in this case goes against the time and procedures in violation of the law, and some of them goes beyond the legitimate scope of assignment, and thus, cannot be exempted from criminal liability of the crime of interference with business.

On the other hand, Article 59 (2) of the collective agreement of the company of this case provides that "if an agreement is not reached despite mediation or conciliation by the Labor Relations Commission, either of the company or partnership may file an application for arbitration with the Labor Relations Commission." Thus, even if the amendment of the provision becomes an issue between labor and management, the application for arbitration based on the above provision or the above cannot be deemed null and void.

There is no reason to discuss this issue.

Therefore, the appeal shall be dismissed. Among the detention days after the appeal, the number of days of detention prior to the pronouncement of the judgment of the court of first instance including the number of days of detention prior to the pronouncement of the judgment of the court of first instance and the remaining days prior to the pronouncement of the judgment of the court of original instance, shall be included in the original sentence. It

Justices Kim Jong-soo (Presiding Justice)