(영문) 전주지방법원 2007.10.12.선고 2007노727 판결

The guilty portion of the judgment of the court below is reversed. The violation of the Trade Union and Labor Relations Adjustment Act due to the neglect of collective bargaining among the facts charged in the instant case is acquitted.

The prosecutor's appeal against the acquittal portion of the judgment below is dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant

In relation to the guilty portion of the judgment below, it was true that the defendant was unable to comply with collective bargaining at the time requested by the trade union as stated in this part of the facts charged, but at the time, the defendant requested to change the date and time of bargaining for the purpose of review and preparation of the negotiation items, etc., and thus there is a justifiable reason to refuse collective bargaining. However, the court below erred by misapprehending the facts or by misapprehending the legal principles

(b) Prosecutors;

In relation to the acquittal portion of the judgment below, in light of the fact that the defendant's assignment of C, D was changed immediately after the defendant was notified of joining the labor union, and the change of C, D was placed more than other places and the working environment was poor, the court below found the defendant guilty of this part of the charges, despite the fact that the court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.

2. Determination

A. Judgment on the defendant's assertion

1) Summary of each of the facts charged in the judgment of the court below

The Defendant, as a practical operator of the EF located in Kim Jong-si, is a person who ordinarily employs 33 full-time workers and engages in the meat processing business, and the employer may not refuse or neglect collective bargaining without any justifiable reason, even though the employer did not refuse

Around July 18, 2006, a notice of notification from the above G Trade Union to the effect that the above G Trade Union's collective bargaining defects at the company's office at around 10:00 on July 24, 2006, was received, but it did not comply with the demand for collective bargaining without any response, and that the above G Trade Union should proceed to collective bargaining after the end of the working hours on July 25, 2006, and received the notice of notification from the above G Trade Union, but did not assert that it would proceed to collective bargaining as of August 15, 2006, and did not comply with the demand for collective bargaining. The above G Trade Union received the notice of notification from the above G Trade Union and demanded postponement, and failed to comply with the demand for collective bargaining.

2) The judgment of the court below

The lower court determined that the Defendant neglected to conduct collective bargaining without justifiable grounds, by comprehensively taking account of the current status of collective bargaining process, the details of neglect, and each description of the minutes of collective bargaining process, etc.

3) Determination of the immediate deliberation

A) Criteria for determination

The burden of proof for facts constituting an offense prosecuted in a criminal trial shall be borne by a public prosecutor, and the conviction shall be based on evidence of probative value, which leads a judge to have a conviction that the facts charged are true beyond a reasonable doubt. If there is no such evidence, even if there is doubt as to the defendant's guilt, it shall be determined as the defendant's interest (see, e.g., Supreme Court Decision 2002Do5662, Dec. 24, 2002). Further, Article 81 subparagraph 3 of the former Trade Union and Labor Relations Adjustment Act (amended by Act No. 8158, Dec. 30, 2006; hereinafter the same) provides that even if an employer refuses or neglects to conclude collective bargaining or other collective bargaining with the representative of a trade union or a person delegated by a trade union without good cause, the determination of whether there is a justifiable reason for the employer to refuse or neglect collective bargaining should be made in accordance with the employer's practice or practice of collective bargaining, such as the time and time limit of bargaining, etc.

B) Facts of recognition

In full view of the evidence duly admitted by the court below and the trial court, the following facts are recognized.

(1) The Defendant’s management of F is about 33 full-time workers as the Yangdo stable distributor. On June 2006, 11 of the Habman’s workers first established G Trade Union (hereinafter “instant trade union”). On June 26, 2006, the Defendant was notified of the establishment of the trade union by telephone from Kim Jong-il and received the first notice of establishment from the side of the instant trade union around July 15, 2006.

(2) The defendant received official questions from the trade union of this case on July 18, 2006 that "A collective agreement was concluded around 10:00 on July 24, 2006," and the defendant, around July 22, 2006, under the title "a case of collective agreement and time adjustment schedule and time adjustment schedule", "a case of collective agreement", the defendant adjusted the schedule as follows, considering the characteristics of the industries related to the above and the recent domination period, and completed the main time after adjusting the schedule. The date and time: 16:00 on August 15, 2006: 206; 139:0 on July 24, 2006; 206, the trade union of this case was delivered to the defendant on July 26, 2006, and the collective agreement was delivered to the defendant on July 26, 2006.

After the end of working hours on July 26, 2006, collective bargaining was not conducted upon the Defendant’s request for the postponement of the negotiation date. The collective bargaining was conducted only on the part of the trade union of this case and the Defendant (Evidence Separation Record No. 62).

(4) On July 26, 2006, the instant trade union sent to the Defendant an official document stating that “A collective agreement was concluded after the end of the working hours on August 1, 2006,” and requested the Defendant to conclude a collective agreement after the end of working hours on August 1, 2006, but the Defendant requested the Defendant to extend the said document 2-3 days after the Defendant was not prepared (the record on the separation of evidence No. 62 pages).

(5) After that, on August 2, 2006, the trade union sent to the defendant a letter of public notice demanding the re-negotiation, which set the date of collective bargaining on August 8, 2006 by consultation between the trade union and the defendant by telephone, and collective bargaining was conducted on August 8, 2006, and thereafter, collective bargaining was conducted on several occasions on August 18, 2006 and around August 19, 2006, but collective agreement was finally concluded on September 6, 2006 (Evidence Separation Record No. 139).

(6) On September 5, 2006, the collective bargaining was conducted around September 6, 2006 on the day following the scheduled date by the application for postponement of the side of the instant trade union.

C) Determination

In light of the following circumstances acknowledged by the above facts and records, i.e., (i) there was no labor union formed at once during the period; (ii) there was no procedure or practice agreed on the F’s temporary establishment of collective bargaining between labor and management; (iii) there was no such procedure or practice; (iv) there seems to have been a need for a considerable period of time for reviewing and preparing bargaining matters; (ii) the time when the instant trade union proposed the first collective bargaining date, 2006.7, 24:00, which was the first collective bargaining date of the instant trade union, was working hours; and (v) the time when the demand for collective bargaining stated in the facts charged was made in this part of the facts charged was the most bad time for both-scale reduction and distribution companies; and (iii) the date and time of the demand for change requested by the Defendant taking into account the period of preparation consistent with the first formation of the trade union and the period of gender acceptance; and (v) there was no reason to recognize that the Defendant violated the former Act on August 15, 2006.

4) Sub-determination

Therefore, since the facts charged in this part of the facts charged constitute a case where there is no proof of facts charged, the court below found the defendant guilty of each part of the facts charged on the grounds as stated in its decision, which affected the conclusion of the judgment, and thus, the defendant's assertion of

B. Determination of the Prosecutor’s argument

1) Summary of each of the facts charged in the judgment of the court below

The Defendant, as the actual operator of Kim Jong-si EF, is a person who ordinarily employs 33 full-time workers and engages in meat processing business, and the employer should not dismiss or put any disadvantage to the worker on the ground that the worker either joined or attempted to join a trade union, or intended to organize a trade union, or that the worker did any other legitimate act for a trade union’s operations;

A) Around July 17, 2006, C engaged in an act of giving disadvantage to C by changing the working conditions and environment at the above workplace without justifiable grounds on the ground that C, who was working at the above workplace transferer, organized a G trade union under the nationwide HH association and worked as the chairperson of the G trade union, is working as the chairperson of the G trade union;

B) Around the 21st day of the same month, D, who had worked in the said G trade union, was a member of the said G trade union and worked as the secretary-general, caused a change in the placement of the said D to the second chickens with poor working conditions than the salt farm without justifiable grounds.

2) The judgment of the court below

The lower court rendered a not guilty verdict on each of the charges of this part on the grounds that there are documents confirming C’s police and the prosecutor’s office’s respective statements, I, and D preparation, but the above evidence alone is insufficient to acknowledge the guilty of this part of the facts charged and there is no other evidence to prove otherwise.

3) Determination of the immediate deliberation

In full view of the following circumstances as indicated in the evidence and records, namely, ① there was no change of placement of the executives of two labor unions other than C and D among four persons notified as union executives, ② the F has arbitrarily changed placement in consideration of vacancy, working attitude, age, etc. without any specific standard for the change of placement; ③ it is difficult to readily conclude that the change of placement indicated in the facts charged was unfair in light of C and D B and the period of service; ③ the evidence submitted by the prosecutor alone is insufficient to recognize that the Defendant was placed at a disadvantage against C and D on the ground that the Defendant joined a trade union or organized a trade union, and there is no other evidence to support the change of placement. Therefore, the prosecutor’s assertion is without merit.

3. Conclusion,

Therefore, since the prosecutor's appeal against the acquittal portion of the judgment below is without merit, it is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act, and the defendant's appeal is with merit, it is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the violation of the Trade Union and Labor Relations Adjustment Act due to each of the facts charged in the instant case is as stated in Article 2-2(a)(1) of the same Act, but this constitutes a case where there is no proof of criminal facts as already determined in Article 2-2(a)(3) of the same Act, and thus, the court acquitted each of the facts charged in this part under the latter part of Article 325