[1] The method of determining whether an industrial action constitutes “competence” under the crime of interference with business where a procedural defect exists in the industrial action caused by collective refusal of labor supply, such as a strike, or an industrial action was conducted for the purpose of management right of

[2] In a case where the Defendants were indicted on charges of interfering with the work of construction by force over several occasions by delaying train operation or refusing to provide labor in a group against the restructuring proposal of the Korea Railroad Corporation pursuant to the Government's advance plan, in collusion with the chairman and members of the Korea Railroad Workers' Dispute Mediation Committee, the case affirming the conclusion of the first instance judgment which acquitted the Defendants on the grounds that each of the above industrial actions cannot be readily determined as constituting "defluence" to the extent that the employer's free will is suppressing.

[1] Considering that workers’ right to collective action is guaranteed as fundamental rights under the Constitution, if an industrial action, such as a strike, falls under ordinary industrial action situation, i.e., general cases where a trade union goes through a series of processes through which industrial action takes place as a result of a collective bargaining with an employer even though the industrial action was conducted on the part of the employer, i.e., collective action, unlike pure political strike where there is no right to dispose of the industrial action in relation to the purpose of the industrial action, and thus, collective action is not premised on the existence of some defects in the process of the industrial action, etc., or where the purpose of the industrial action cannot be deemed justifiable due to the existence of the right to dispose of the industrial action, such as the purpose of the employer’s right to dispose of the industrial action, etc., even if the industrial action is not limited to damages caused by the industrial action that occurred by the nature of the workplace at a time when the industrial action cannot be predicted by the employer, and even if such serious consequences were not caused by the “fullness,” the act of refusing collective action cannot be deemed to constitute a crime of interference with business.

[2] In a case where Defendants were indicted on charges of interfering with the transportation of passengers and freight by force over several occasions by delaying train operation or refusing to provide labor in a group against the restructuring proposal of the Korea Railroad Corporation under the Government's advance plan in collusion with the chairperson and its members of the Korea Railroad Trade Union and Labor Relations Adjustment Committee (hereinafter "railroad Corporation"), the case affirming the Defendants' conclusion that each industrial action was committed in accordance with the procedure stipulated under the Trade Union and Labor Relations Adjustment Act, only passive refusal of labor, and not used violent means, prior to industrial action, and that prior to industrial action, the time, method, place, etc. of industrial action can not be seen as "commercial strike for political purposes" even if purely included in matters concerning the purpose of industrial action other than the purpose of industrial action, such industrial action can sufficiently anticipate the occurrence of industrial action, and even if considerable damage was caused by industrial action, it is merely the nature of the workplace itself, and it is difficult to conclude that industrial action was conducted by itself, and thus, the Defendants' free will cannot be concluded to be acquitted.

[1] Article 33(1) of the Constitution, Article 314(1) of the Criminal Act, Article 2 subparag. 6 of the Trade Union and Labor Relations Adjustment Act / [2] Articles 20 and 314(1) of the Criminal Act, Article 325 of the Criminal Procedure Act

[1] Supreme Court en banc Decision 2007Do482 Decided March 17, 2011 (Gong2011Sang, 865), Supreme Court Decision 2009Do3390 Decided October 27, 2011, Supreme Court Decision 2010Do7733 Decided October 27, 201 (Gong2011Ha, 2496)

Defendant 1 and 21 others

Prosecutor

The number of persons outside the garden and two others

Attorney Doh-ho et al.

Daejeon District Court Decision 2010Gohap1581, 2729 Decided January 28, 2011

All appeals filed by the prosecutor against the Defendants are dismissed.

1. Summary of the grounds for appeal (the mistake of facts and misapprehension of legal principles);

The respective industrial actions of this case (hereinafter referred to as "railroad action") referred to as "each of the industrial actions of this case" by referring to the interference with the business set forth in the main points of the facts charged as follows. The obstruction of business set forth in each of the industrial actions of this case is "the industrial action of June 24, 2009", "the industrial action of September 8, 2009", "the industrial action of September 16, 2009", "the industrial action of November 5, 2009" and "the industrial action of November 26, 2009" decided on the restructuring agenda such as reducing the fixed number of 5,115 persons pursuant to the government's advance plan, and contrary thereto, the public action of this case (hereinafter referred to as "the industrial action of this case") was conducted in compliance with the requirements of "the joint strike headquarters for the advancement of the public sector and strengthening of social public nature", "the withdrawal and withdrawal of dismissal of the industrial action of the public sector's labor union, including railroad labor union's."

In addition, among the industrial action of this case, the industrial action of this case aims not to urge the faithful negotiation of collective bargaining, but to oppose the advancement of a public enterprise, which was not an issue at the time of commencement of the industrial action around 2008, and thus, it was a new industrial action. Thus, the industrial action of this case goes through a separate vote for pros and cons and procedure for conciliation, and the legitimacy of the procedure is not satisfied unless it goes through the procedure.

Nevertheless, the lower court acquitted the Defendants of each of the charges of this case, by misapprehending the facts or misapprehending the legal principles on justifiable acts, thereby adversely affecting the conclusion of the judgment.

2. Summary of the facts charged

A. Defendant 1, 3- June 24, 2009

On April 25, 2009, the Railroad Labor Union, which is a trade union comprised of the employees of the Railroad Corporation, took part in the 2,500 members belonging to the Seoul District square on April 25, 2009 by holding the “Rabb Labor Force Resolution for Railroad Workers” and claimed the “refluence against the advancement of public enterprises, 5,115 personnel reduction and welfare reduction, preparation of the fundamental measures for Incheon Airport Railroad, such as the democratization of the governance structure of public enterprises, compensation for damages, and the bylaws of labor union and accusation.”

On June 17, 2009, Nonindicted Party 1, the chairperson of the Central Committee for Countermeasures against Railroad Labor Relations, issued the “Guidelines for Operational Safety” under the “Guidelines 11 for the Elimination of the Central Committee for Countermeasures against Railroad Labor Relations” to the effect that the above allegations are followed, taking into account the safety of the transportation personnel when entering the train. The transportation personnel cooperate with the examination of the regulations and the regulations of the tallyman. They shall comply with all restricted speed. They shall thoroughly conduct the operation test. The transportation personnel shall maintain the entrance speed at the safe speed at all times. The transportation members shall thoroughly implement the entry and exit at the safe speed. As prescribed by the regulations. The vehicle members issued the “Guidelines for Operational Safety” to the effect that “the vehicle members shall safely examine according to the regulations.”

At around 04:30 on June 24, 2009, Defendant 1 and Defendant 3, the director-general of the regional headquarters in the Daejeon-gu Daejeon District Headquarters, who are the head of the railroad labor union in accordance with the above guidelines for practice of safety operation, instructed Non-Party 2 and 3, who are the members of the vehicle office in the Daejeon-gu Daejeon-gu, Daejeon-gu, Daejeon-gu, to refrain from operating trains normally and delayed operation by using electricity and mobile phone text messages, etc. from around 07:00 on the same day, and urged Non-Party 2 and 3, who are the transportation members of the vehicle office in the Daejeon-gu, Daejeon-gu, Daejeon Special Metropolitan City, to refrain from operating trains normally and delayed operation.

Although the prohibition of railroad extinguishment, the strengthening of public railroads, the removal from the office of dismissal, etc. on the basis of the management authority’s high-level decision or management judgment, it does not engage in strike or occupation in order to prevent it. However, from 04:30 on June 24, 2009 to 07:00, Non-Party 2 and Non-Party 3, the transportation partner of the Daejeon Motor Vehicle Department, the transportation partner Non-Party 2 and Non-Party 3, the transportation partner of the Daejeon Motor Vehicle Department, claimed the prevention of railroad extinguishment, the strengthening of public railroads, the removal from office of the dismissed, etc. without going through the cooperative vote and the mediation of the Labor Relations Commission, etc.

As a result, the Defendants conspired with Nonindicted 1 and Nonindicted 2 and 3 members, who are the transportation cause of the Chairman of the Central Committee for Countermeasures against Railroad Industry Coordination, and the Vice Chief of Daejeon, interfered with the normal transportation of passengers and freight in the railroad construction by force.

B. Defendant 1, 3, 4, 5- September 8, 2009

On September 6, 2009, Non-Indicted 1, the chairman of the Central Committee for Countermeasures against Railroad Labor-Management Disputes, issued an order of strike against Non-Indicted 1, which was held in Daejeon on September 8, 2009, for the first time after September 8, 2009, “The members of the Railroad Labor-Management Working Group start-up to a strike on September 8, 2009,” which was held in Daejeon on September 14, 2009.

As the advanced policies of public enterprises, such as the reduction of the number of regular staff of the railroad construction, acquisition of airport railroads, etc. are based on the high-level determination or management judgment of the management body, matters falling under the management right, reinstatement of dismissed persons, accusation, complaint, withdrawal of disciplinary action, withdrawal of damages lawsuit, etc., which are matters belonging to the inherent rights of the management that are irrelevant to the determination of working conditions, and shall not engage in a strike to accomplish such arguments. In addition, it shall not engage in a strike on the ground that there is any disagreement in the assertion that there is any disagreement in the determination of working conditions, such as securing adequate human resources and maintenance of the prescribed number and consultation

Nevertheless, on September 8, 2009, the Defendants urged 249 drivers belonging to the Daejeon District Headquarters for Railroad Workers to participate in the 'Rab Labor Relations Resolution' held at the Do square for the Daejeon District of Daejeon District Headquarters. On September 8, 2009, the Defendants refused to provide 23 passengers to the 1,440 passengers' train by participating in the 'Rabing of the 5,115 passengers' resolution meeting held at the Do square for the State enterprises, including the withdrawal of the number of passengers on September 8, 2009, in accordance with the order of the 2009, by asserting that the 249 drivers belonging to the Daejeon District of the Daejeon District Headquarters participated in the Do square for Railroad Workers, including the 249 drivers, and without going through the procedures such as the vote of union members and the adjustment of the Labor Relations Commission.

As a result, Defendants conspired with Nonindicted 1 and 1,440 members of the National Committee on Countermeasures against Railroad Labor-Management Disputes, and interfered with the transportation of passengers and freight by force of the railroad construction.

C. Defendant 1, 2, 3, 6, 7, 8, 9, 10, 11- September 16, 2009

On September 14, 2009, when the National Railroad Union did not accept the requirements of railroad labor union, such as the suspension of advancement of public enterprises in the railroad labor union, the reinstatement of dismissed persons, etc., on the private side, the Ministry of Labor issued 30th of the strike guidelines to the effect that “All vehicle branch disputes shall hold a general meeting of the members of each district office from September 16, 2009 to 13th of the year from September 2009.”

As the advanced policies of public enterprises, such as the reduction of the number of regular staff of the railroad construction, acquisition of airport railroads, etc. are based on the high-level determination or management judgment of the management body, matters falling under the management right, reinstatement of dismissed persons, accusation, complaint, withdrawal of disciplinary action, withdrawal of damages lawsuit, etc., which are matters belonging to the inherent rights of the management that are irrelevant to the determination of working conditions, and shall not engage in a strike to accomplish such arguments. In addition, it shall not engage in a strike on the ground that there is any disagreement in the assertion that there is any disagreement in the determination of working conditions, such as securing adequate human resources and maintenance of the prescribed number and consultation

Nevertheless, on September 16, 2009, the Defendants held 5,115 members’ general meeting at the business office of the Daejeon metropolitan head office located in the Daejeon metropolitan head office, Daejeon metropolitan head office, Daejeon metropolitan head office, and suggested “5,115 members’ withdrawal of reduction, opposition to the acquisition of the Incheon Airport Railroad, the number of new employees’ wages, opposition to the introduction of the annual salary system, the number of new employees’ wage reduction and the annual salary system, the opposition to the opening of a restaurant, the objection to the outside of a restaurant, the objection to the withdrawal of complaint, accusation, accusation, the withdrawal of damages, the reinstatement of dismissal, etc.” and ordered the members of the Daejeon regional head office and the Daejeon metropolitan head office to refuse to provide labor. From September 16, 2009 to September 10, 2009, the Defendants refused to provide labor to the members of the Daejeon metropolitan metropolitan head office and the Daejeon metropolitan head office, including 446 drivers belonging to the Daejeon metropolitan head office and the Daejeon metropolitan head office, from around 30 days to September 27, 2000.

As a result, Defendants conspired with the chairman of the Committee on Countermeasures against the Central Dispute in the Railroad Labor Relations and 1,750 members of the Korea Railroad Corporation by force, and interfered with the transportation of passengers and freight by force.

D. Defendant 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 19, 20, 21, and 22-1 from November 5, 2009 to June of the same month

On October 29, 2009, the Railroad Labor Relations Adjustment held a committee for countermeasures against extended disputes and decided on the "on November 5, 2009, the regions other than the Seoul metropolitan area, the regional strike in the Seoul metropolitan area on November 6, 2009, and the full-scale strike from November 14, 2009 to November 22, 2009". On October 31, 2009, the Central Committee for Countermeasures against Disputes issued an order of strike under the name of Non-Party 1 by the chairperson of the Central Committee on Countermeasures against Disputes to go back to the regional circular strike from November 5, 2009: Daejeon, Taiwan, the permanent residence, the Busan metropolitan headquarters, the Busan Seocheon local headquarters, the Seoul Western local headquarters, the local headquarters, the number of train members of the Seoul metropolitan community headquarters, the number of hours of strike from October 31, 200 to April 4:0:0 on the day:00 on the day.

The advancement policies of public enterprises, such as withdrawal of the reduction in the number of regular staff of the railroad construction works, and takeover of airport railroads, etc., are based on the high-level determination or management judgment of the management body, and shall not engage in a strike to accomplish such claims, as matters belonging to the unique rights area of the managers who are irrelevant to the determination of working conditions, such as reinstatement of dismissal, accusation, complaint, withdrawal of disciplinary action, withdrawal of compensation for damages, etc., and shall not engage in a strike to secure appropriate human resources and maintain the prescribed number of employees, and the collective agreement on consultation on reduction in the number of employees shall not be conducted on the ground that there is disagreement in the assertion that

Nevertheless, on November 5, 2009, 3,81 members of a regional railroad labor union outside the Seoul Metropolitan area participated in the strike-out ceremony held in the e-mail hall on November 5, 2009 in accordance with the order of the said strike (the defendants were 1,300 members and 1,000 members and 1,300 members and 1,000 members and 2,000 local railroad labor union members and 3:0 local railroad labor union members and 2,986 members and 3:0 members and 5:0 members and 1,000 members and 1,000 members and 5:0 members and 1,000 members and 5:0 members and 1,000 members and 1,000 members and 5:0 members and 1,000 members and 5,00 members and 1,000 members and 5,00 members and 1,000 members of the public railroad labor union from the government and 2,000.

As a result, Defendants conspired with Nonindicted 1 and 6,790 members of the National Committee on Countermeasures against Railroad Labor-Management Disputes, and interfered with the transportation of passengers and freight by force.

E. Defendant 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 22-11, 26 or 3, 209

On November 21, 2009, the Korean Railroad Labor Relations Adjustment issued an order of strike on November 21, 2009 to the effect that “all union members shall enter into the full-time indefinite strike from November 26, 2009 in the event that the negotiation of wages and collective agreements is made final and conclusive,” and “all union members shall enter into the unlimited total strike from November 26 to November 26, 2009. All union members, other than necessary maintenance workers, issued an order of strike on November 26 and on November 28, 2009 in the Central Labor Relations Commission’s resolution of the total number of union members by region and on November 25, 2009.”

The advanced policies of public enterprises, such as the reduction of the number of regular personnel for the railroad construction works, the acquisition of airport railroads, etc., are based on the high-level determination or management judgment of the management body, and shall not engage in any strike to accomplish such claims as belonging to the inherent rights area of the management who is irrelevant to the determination of working conditions, such as reinstatement of dismissed persons, reinstatement of complaint, complaint, complaint, withdrawal of disciplinary action, withdrawal of lawsuit for compensation for damages, etc., and shall not engage in any strike to secure appropriate human resources including arguments against the poor opposition to the amendment of the collective agreement of the railroad labor union union, maintain the prescribed number of regular personnel, and maintain the collective agreement

Nevertheless, on November 26, 2009, 11,700 members of the Korean Railroad Union participated in the strike process held in the Seoul Station, the Daejeon Station, the Busan Station Square, the Net Station square, and the Dong Sea Area square on November 13:0 on November 26, 2010 (the Defendant has a 1,50 members of the Korean Headquarters for Railroad Labor-Support Daejeon, the Daejeon Regional Headquarters for Daejeon, and the Daejeon Regional Headquarters for Maintenance and Improvement of Residents, from 16:00 to 16:00, and the 1,50 members of the Korean Government Office were present at the 20th 2nd 4th 5th 2nd 9th 2nd 9th 2nd 9th 2nd 1,000, the 19th 2nd 9th 2nd 1,000 members of the Korean Railroad and the 1st 5th 2nd 9th 2nd 10th 2nd 10th 20th 7th 2nd 20.

As a result, Defendants conspired with Nonindicted 1 and 11,790 members of the National Committee on Countermeasures against Railroad Labor-Management Disputes, and interfered with the transportation of passengers and freight by force.

3. The judgment of the court below

The main purpose of each industrial action in this case was to urge the employer to faithfully conduct collective bargaining, to conclude a collective agreement on working conditions, and to prevent the deterioration of the wage system, and this constitutes an industrial action related to the maintenance and improvement of working conditions, and even if some management matters were included in the purpose of the industrial action, such industrial action in this case is not deemed to have its main purpose, and thus, the industrial action in this case satisfies the requirements for "justifiableness of the purpose". In addition, the industrial action in this case constitutes a legitimate act in each of the industrial actions in this case, and "industrial action in September 8, 2009", "industrial action in September 24, 2009", and "industrial action in September 16, 2009" through mediation procedure, and "industrial action in September 29, 2009" were found not guilty on the grounds that the industrial action in this case was conducted in order to urge the collective bargaining in good faith at the time of signing the arguments regarding working conditions between October 29 and October 31, 2008.

4. Judgment of the court below

A. Relevant legal principles

The crime of interference with business under Article 314(1) of the Criminal Act is established when a person interferes with another’s business by deceptive means or by force. The term “defensive force” refers to any force that may suppress and confuse the free will of a person. The industrial action under Article 2 subparag. 6 of the Trade Union and Labor Relations Adjustment Act, which is a strike, negligence, etc., is not merely an omission of refusing to provide labor under a labor contract, but is an actual exercise of the power to collectively suspend the provision of labor to accomplish the employee’s assertion by imposing pressure on the employer. As such, the elements constituting force as referred to in the crime of interference

However, since workers have the right to independent association, collective bargaining, and collective action to improve working conditions as a fundamental right guaranteed by the Constitution in principle pursuant to Article 33(1) of the Constitution, it does not always constitute the crime of interference with business as an industrial action. It is reasonable to deem the crime of interference with business to be established only when it can be assessed that the employer’s free will to continue business may be a suppression or confusion due to the industrial action committed at a time unpredictable by the employer in light of the situation and circumstances before and after, and after, the industrial action, etc., causing serious confusion or enormous damage to the employer’s business operation (see Supreme Court en banc Decision 2007Do482, Mar. 17, 201).

Furthermore, in ordinary industrial action, in a case where there is a process of collective bargaining and there is a disagreement in opinion as a result, a trade union may conduct industrial action through a series of procedures, such as undergoing mediation procedures and undergoing a vote for and against industrial action, as prescribed by the Trade Union and Labor Relations Adjustment Act. As such, if a trade union has undergone the process presented in the Trade Union and Labor Relations Adjustment Act, an employer is obligated to sufficiently anticipate the exercise of the right to collective action guaranteed by the Constitution and obtain the results of such strike. Thus, an industrial action which goes through such a process cannot be evaluated as an "full-time action". However, there is a question as to whether an industrial action by collective refusal of labor offer, such as a strike, etc., is a procedural defect, or if an industrial action is for the purpose of the employer's right to collective action is guaranteed as a fundamental right under the Constitution. In light of the fact that an industrial action, such as a strike, etc., is a kind of industrial action that goes through a series of process of industrial action upon the employer's right to collective action, etc., even if there is no room to deny the purpose of collective action.

In other words, the issue of whether there is any defect in the procedure of an industrial action, such as whether there is a difference in the vote for and against the industrial action or whether the quorum is met, shall be determined by the court ex post facto. At the time of the commencement of the industrial action, it is difficult to recognize that the industrial action was not justifiable because it is difficult to judge whether the procedural legitimacy of the industrial action is complied with. In this situation, it may result in serious infringement of the workers' right to collective action, which is guaranteed by the Constitution, to punish all workers participating in the industrial action as the crime of interference with business on the ground that any defect in the procedure

Next, even in the case of a strike aimed at the management right of a user, the collective bargaining does not constitute a case where there is a procedural defect in the process of a strike in that the purpose of the collective bargaining does not fall under “the creation of autonomous negotiations between the labor and the management to improve the working conditions,” but this is distinguishable from the case of a pure political strike as seen earlier, and such "management interference strike" is most closely related to the alteration of the working conditions, and it is generally a case where the matters about the management rights and the improvement of the working conditions are asserted for the purpose of a strike as well as the matters concerning the improvement of the working conditions, and it is difficult to distinguish the main purpose of the industrial action from the case where the strike with such a objective is related to the working conditions, the scale or form of employment, dismissal, etc. of workers, and the related industrial action can be expected to a certain extent.

In addition, “a serious loss” refers to only a loss caused by an industrial action, which was conducted by an employer at a time unpredictable by the employer, and does not include a loss caused by the nature of a workplace. Thus, even if a serious result, such as a serious loss or serious confusion caused by an industrial action by means of collective labor supply, etc., is not caused by “satisfy”, if the significant result is not caused by “satisfy”, the refusal of collective labor supply constitutes a threat of force, and thus, the crime of interference with business cannot be established.

In the lower court, we examine whether each of the instant industrial actions satisfies the elements of the crime of interference with business, taking into account the above legal principles.

B. Industrial actions on June 24, 2009

원심이 적법하게 채택하여 조사한 증거들 및 당심에서 추가로 조사한 증거들에 의하여 인정되는 다음과 같은 사정들, 즉 ① 철도공사와 철도노조는 2006. 4. 1. 체결된 단체협약의 유효기간이 2008. 3. 31.자로 만료되자 2008. 7. 29.부터 2008년 단체협약 갱신 체결 및 임금협약 체결을 위하여 단체교섭을 진행해 오다 2008. 10. 17. 노동위원회 조정신청을 하였으나 조정이 이루어지지 않았고, 철도노조는 2008. 10. 29.부터 2008. 10. 31.까지 쟁의행위 찬반투표를 거쳐 조합원 수 25,170명 중 찬성 15,268명으로 가결되었는데, 그 후 철도공사와 철도노조는 2008. 12. 11. 임금협약에 대해서 합의하였고, 위 합의안이 철도노조 조합원총회에서 가결되어 2008년 임금협약이 체결되었으나, 단체협약은 합의에 이르지 못하였고 2009. 3. 이후 단체협약 체결을 위한 교섭을 재개하기로 함으로써 단체협약에 관하여는 임금협약 체결 당시에도 의견의 불일치가 존재한 것으로 보이고 향후 재개된 단체협약을 위한 교섭이 타결되지 않아 쟁의행위에 돌입할 경우도 대비하여 조정절차와 조합원 찬반투표 등 노동조합 및 노동관계조정법이 정하는 절차를 거친 것으로 보이는 점, ② 철도공사와 철도노조는 2008. 12. 11.자 합의에 따라 2009. 5. 12. 단체교섭에 관한 협의를 진행하여 본교섭은 2주에 1회 진행하고 실무협의는 1주에 2회 진행하는 것으로 합의하였고, 이에 따라 2009. 5. 25. 전년도에 이어 제10차 본교섭이 열렸으나 여전히 의견접근이 이루어지지 않았으며 그 2주 후에 본교섭이 개최되지 아니하자 철도노조는 2009. 6. 15., 2009. 6. 17., 2009. 6. 22. 3회에 걸쳐 철도공사 측에 본교섭의 개최를 촉구하였으나, 철도공사는 이에 응하지 아니하여, 이 사건 무렵에도 의견의 불일치는 여전히 존재하였다고 보이고, 또 철도공사는 위와 같이 본교섭에 응하지 아니함으로써 철도노조가 향후 쟁의행위에 나아갈 것을 예견할 수 있었을 것으로 보이는 점, ③ 실제로 철도노조는 2009. 6. 17. 중앙쟁의대책위원회 투쟁지침 11호로 ‘기관차 승무조합원은 입환할 때에는 수송요원의 안전을 최대한 고려해 운전한다. 수송원은 규정입환, 검수원의 규정검수에 협력한다. 각종 제한속도를 준수한다. 제동시험을 철저히 한다. 수송조합원은 입환속도를 항상 안전속도로 유지한다. 규정대로 관통 입환을 철저히 시행한다. 입환작업 시 절대 뛰어 타거나 뛰어내리지 않는다. 차량조합원은 규정대로 안전하게 검수한다’라는 내용의 ‘규정업무·안전운행 실천지침’을 발령하였고, 이에 따라 피고인 1, 3은 위 공소사실의 요지 제2의 가.항 기재와 같이 대전조차장 차량사업소 수송원인 조합원 공소외 2, 3에게 위와 같은 ‘규정업무·안전운행 실천지침’에 따라 운행할 것을 독려하여 그 결과 열차 7대의 운행이 일부 지연되도록 함으로써 쟁의행위에 나아간 점, ④ 철도공사는 위와 같이 철도노조의 ‘규정업무·안전운행 실천지침’이 발령된 후 종전의 운전취급규정의 열차입환절차를 수송원의 유도 없이 운전취급자와 기관사 사이의 무선전호 및 입환표지에 의하여 이루어지도록 하는 내용으로 개정하여 2009. 7.경부터 이를 시행하였고, 이 사건 당시에는 운전취급규정의 개정 예정사실을 피고인들에게 알리는 등 실제로도 위 ‘규정업무·안전운행 실천지침’에 따라 쟁의행위가 발생할 것을 예상하고 그에 대비하였던 것으로 보이는 점, ⑤ 2009. 6. 24. 쟁의행위는 실질적으로 태업에 해당하는데, 이는 2008. 12. 13. 임금협약 체결 당시 2009. 3. 이후 다시 논의하기로 하였던 단체협약 체결을 위한 본교섭을 촉구하는 과정에서 이루어진 것으로 2008. 10. 말경 이루어진 조정절차 및 조합원 찬반투표 절차는 임금협약뿐만 아니라 단체협약이 결렬될 경우를 상정하여 행해진 것으로 보이므로, 그 후 임금협약이 체결되었다고 하더라도 단체협약이 미체결된 상태로 남아있는 이상 종전에 거친 절차와는 별도로 위와 같은 절차를 다시 거칠 필요는 없다고 보아야 하는 점(이와 같은 점은 종전의 단체협약을 위한 교섭 당시 논의되지 않았던 새로운 안건이 추가되었다고 하더라도, 비교적 장기간에 걸쳐 이루어지는 협상 과정의 속성에 비추어 볼 때 달리 볼 것은 아니다), ⑥ 2009. 6. 24. 쟁의행위의 목적은 이 사건 당시 약 100여 항목에 걸쳐 미합의된 상태로 남아있던 단체협약의 체결, 철도공사에 대한 성실한 교섭촉구를 포함하여 당시 현안사항이었던 5,115명 정원감축 등을 내용으로 하는 철도선진화 정책의 철회, 해고자 복직, 비정규직 차별철폐, 외주화·구조조정 철회, 연금불이익 해소, 철도공공성 강화 등으로 보이는데, 이와 같은 목적은 직·간접적으로 근로조건의 유지·개선과 관련된 사항이라고 보아야 하는 점 등을 종합하면, 2009. 6. 24. 쟁의행위는 앞서 본 바와 같은 그 전후 사정과 경위 등에 비추어 사용자가 예측할 수 없는 시기에 전격적으로 이루어진 것이라고 평가할 수 없으므로 형법 제314조 소정의 ‘위력’에 해당한다고 볼 수 없다.

(c) Industrial actions on September 8, 2009 and industrial actions on September 16, 2009;

앞서 든 증거들에 의하여 인정되는 다음과 같은 사정들, 즉 ① 2009. 6. 24. 쟁의행위 이후 위 각 쟁의행위에 이르기까지 철도공사와 철도노조는 단체협약의 체결을 위하여 본교섭 1회(제11차 본교섭), 실무교섭 8회(제7차 내지 제14차 실무교섭) 등을 진행하였으나 단체협약이나 현안사항 등에 대하여 별다른 진척이 없는 상태였던 점, ② 철도노조가 앞서 본 바와 같이 2009. 6.경 철도공사에 3회에 걸쳐 본교섭의 개최를 촉구함에 따라 2009. 7. 20. 약 2달여 만에 제11차 본교섭이 개최되었으나 그 후 또다시 본교섭이 진행되지 아니하자, 철도노조는 2009. 8. 4., 2009. 8. 7., 2009. 8. 18. 및 2009. 9. 1. 등 4회에 걸쳐 철도공사에 본교섭을 조속히 개최할 것을 요구하였으나 철도공사는 을지연습과 본사 이전 등의 사정을 들어 본교섭이 어려우니 실무교섭을 통하여 논의하자는 이유로 본교섭에 응하지 아니하였고, 제12차 본교섭은 위 각 쟁의행위 이후인 2009. 9. 20.에야 비로소 개최된 점, ③ 이에 철도노조는 2009. 9. 6. 투쟁명령 1호로 2009. 9. 8. 쟁의행위를, 2009. 9. 14. 투쟁지침 30호로 2009. 9. 16. 쟁의행의를 각 예고하였고, 피고인 1, 3, 4, 5는 위 공소사실의 요지 제2의 나.항 기재와 같이 위 투쟁명령에 따라 2009. 9. 8. 쟁의행위에 참가하였으며, 피고인 1, 2, 3, 6, 7, 8, 9, 10, 11은 위 공소사실의 요지 제2의 다.항 기재와 같이 위 투쟁지침에 따라 2009. 9. 16. 쟁의행위에 참가하는 등 실제로 쟁의행위에 나아갔는데, 철도공사는 앞서 본 바와 같이 철도노조의 수차례에 걸친 본교섭 촉구에도 불구하고 별다른 이유 없이 이에 응하지 아니하였을 뿐만 아니라 위 투쟁명령과 투쟁지침으로 파업이 예고된 상태였던 점에 비추어 보더라도 철도공사로서는 위 각 쟁의행위의 발생을 예상할 수 있었던 것으로 보아야 하는 점, ④ 한편 구 노동조합 및 노동관계조정법(2006. 12. 30. 법률 제8158호로 개정되기 전의 것)상 규정되어 있던 필수공익사업장에서의 직권중재제도가 폐지됨에 따라 새로이 규정된 필수공익사업의 필수유지업무제도와 관련하여, 철도노조는 이 사건 각 쟁의행위에 나아가기에 앞서 2009. 9. 2. 철도공사에 필수유지업무자 명단을 통보하고 그 후 파업일정에 따라 명단을 변경하였으며, 위 각 쟁의행위 당시 통보된 명단에 따른 필수유지업무 인원들은 계속 근무를 하였던 것으로 보이는 점, ⑤ 또 2009. 6. 24. 쟁의행위와 마찬가지로 2009. 9. 8. 쟁의행위 및 2009. 9. 16. 쟁의행위의 경우에도 철도공사에 대해 단체협약의 체결을 압박하는 과정에서 이루어진 것으로 앞서 본 바와 같은 이유로 종전에 거친 절차와는 별도의 절차를 거칠 필요가 없다고 보아야 하는 점, ⑥ 2009. 9. 8. 쟁의행위 및 2009. 9. 16. 쟁의행의의 목적은 2009. 6. 24. 쟁의행위와 마찬가지로 단체협약의 갱신 체결, 철도공사의 성실한 교섭촉구를 포함하여 철도공사 선진화 반대, 해고자 복직, 고소·고발 및 징계 철회, 손해배상소송 철회, 신입사원 임금삭감 및 연봉제 도입 반대 등으로 보이는데, 앞서 본 바와 같이 이와 같은 사항들은 근로조건의 유지·개선과 밀접한 관련이 있다고 보아야 하는 점 등을 종합하면, 2009. 9. 8. 쟁의행위와 2009. 9. 16. 쟁의행위는 모두 사용자인 철도공사가 예측할 수 없는 시기에 전격적으로 이루어진 것으로 볼 수 없고, 비록 위 각 쟁의행위로 인하여 위 공소사실에 기재된 바와 같이 2009. 9. 8. 쟁의행위 당시에는 여객열차 309대, 화물열차 282대의 운행이 중단되었고, 2009. 9. 16. 쟁의행위 당시에는 차량검수 관련 업무 등에 차질이 생겨 상당한 손해가 발생하였다고 하더라도 이는 전국의 철도망을 운영하는 철도공사 사업장 자체의 성격에 기인한 것일 뿐 위 각 쟁의행위가 전격적으로 이루어졌기 때문에 발생한 결과라고 보기 어렵다. 따라서 2009. 9. 8. 쟁의행위와 2009. 9. 16. 쟁의행위도 형법 제314조 소정의 ‘위력’에 해당한다고 볼 수 없다.

(d) Industrial actions on November 5, 2009 and industrial actions on November 26, 2009;

앞서 든 증거들에 의하여 인정되는 다음과 같은 사정들, 즉 ① 철도노조의 본교섭 개최 촉구에 따라 2009. 9. 30. 단체협약의 체결을 위한 제12차 본교섭 및 2009년 임금협약 체결을 위한 제1차 임금교섭이 개최되었으나 철도노조는 교섭 당일 노사 간 입장 차이가 크다는 이유로 교섭의 결렬을 선언하였는데, 그 당시 단체협약 총 187개 조항 중 97개 조항에 의견일치가 있었을 뿐 90개 조항에는 여전히 의견이 일치하지 않은 상태였고, 임금협약에 관하여는 철도공사는 임금 2.5%의 반납, 전 직원 연봉제 및 전 직원 임금피크제 등을 요구하고 있었으며, 이에 대하여 철도노조는 이를 수용할 수 없다는 입장을 보이고 있어 상당한 의견의 불일치가 있었던 것으로 보이는 점, ② 이에 철도노조는 2009. 10. 8. 중앙노동위원회에 2009년 임금요구안 등에 대한 조정신청서를 제출하였고, 2009. 10. 21.부터 같은 달 23일까지 쟁의행위 찬반투표를 실시하여 72.56%의 찬성으로 파업을 결의하는 등 노동조합 및 노동관계조정법이 정하는 절차를 모두 거친 것으로 보이는 점, ③ 이와 같은 상황에서 철도노조는 중앙노동위원회 특별조정위원회의 결정에 따라 철도공사와 2009. 10. 16. 제16차 실무교섭 및 2009. 10. 27. 제17차 실무교섭 등 2차례 실무교섭을 진행하였으나 별다른 성과를 거두지 못하였으며, 2009. 10. 21. 열린 제2차 임금교섭 및 2009. 10. 23. 개최된 중앙노동위원회 특별조정회의에서도 합의점을 찾지 못하였고, 결국 2009. 10. 30. 임금교섭이 최종적으로 결렬된 점, ④ 이에 철도노조는 2009. 10. 31. 투쟁명령 3호를 통하여 2009. 11. 5. 쟁의행위를 예고하였고, 2009. 11. 21. 투쟁지침 39호 및 2009. 11. 25. 투쟁명령 4호를 통하여 2009. 11. 25. 쟁의행위를 예고하였으며, 피고인 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 19, 20, 21, 22는 위 공소사실의 요지 제2의 라.항 기재와 같이 위 투쟁명령 3호에 따라 2009. 11. 5. 쟁의행위에 참가하였고, 피고인 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22는 위 공소사실의 요지 제2의 마.항 기재와 같이 위 투쟁지침 39호 및 투쟁명령 4호에 따라 2009. 11. 26. 쟁의행위에 참가한 점, ⑤ 위 각 쟁의행위 당시에도 필수유지업무자로 지정된 인원들은 위 각 쟁의행위에 참가하지 않은 채 계속 근무를 하였던 것으로 보이는 점, ⑥ 2009. 11. 5. 쟁의행위 및 2009. 11. 26. 쟁의행위의 목적도 2009년도 임금교섭 당시의 쟁점이었던 임금삭감 반대, 전 직원 연봉제 및 임금피크제 반대 등이 추가된 것 외에는 앞서 본 각 쟁의행위의 목적과 크게 다르지 아니하여 근로조건의 유지·개선과 직·간접적으로 관련된 사항으로서 사용자가 전혀 처분권을 가질 수 없는 정치적 목적의 파업 등과는 그 성질을 달리한다고 보아야 하는 점 등을 종합하면, 2009. 11. 5. 쟁의행위 및 2009. 11. 26. 쟁의행위는 단체협약 및 2009년 임금교섭을 위한 협상이 결렬된 후 노동조합 및 노동관계조정법이 정하는 절차를 거쳐 이루어진 통상의 쟁의행위로 봄이 상당하고 이와 달리 철도공사가 예측할 수 없는 시기에 전격적으로 이루어진 것이라 평가하기 어려우며, 비록 위 각 쟁의행위로 인하여 여객열차 및 화물열차의 운행이 중단됨으로써 상당한 손해가 발생하였더라도 이는 앞서 본 바와 같은 이유로 사업장 자체의 성격에 기인한 것으로 보아야 한다. 따라서 2009. 11. 5. 쟁의행위 및 2009. 11. 26. 쟁의행위도 형법 제314조 소정의 ‘위력’에 해당한다고 볼 수 없다.

E. Sub-committee

Therefore, each of the industrial actions in this case is an industrial action conducted through a procedure that is scheduled by the Trade Union and Labor Relations Adjustment Act in a state that disagreements between labor and management in collective agreement and wage negotiations have not been resolved through negotiations. In light of the fact that the industrial action only refused to provide passive labor and did not use violent means, and that the time, method, place, etc. of the industrial action prior to each of the industrial actions was publicly notified in advance, the industrial action in this case is prior to each of the industrial actions. As seen above, as long as the industrial action in this case includes matters concerning management rights such as the purpose of the industrial action in addition to the matters concerning the labor conditions in each of the industrial actions in this case, it cannot be concluded that the industrial action in this case as the employer could have sufficiently predicted the occurrence of each of the industrial actions in this case, and even if considerable damages have occurred due to each of the industrial actions in this case, it is merely the nature of the workplace in question, and it cannot be viewed that the industrial action in this case has occurred due to the occurrence of the industrial action in this case.

Therefore, since the facts charged in this case constitute a case where there is no proof of crime, each of the defendants should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the judgment of the court below that the illegality of each of the industrial actions in this case constitutes a justifiable act under Article 20 of the Criminal Act on the premise that each of the industrial actions in this case constitutes a constituent element of the crime of interference with business, is unlawful, but its conclusion is just, and it does not affect the conclusion of the judgment,

5. Conclusion

Therefore, since each appeal against the Defendants by 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 Jeong Jong (Presiding Judge) (Presiding Justice)