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(영문) 대법원 2020.6.11.선고 2016도3048 판결
폭력행위등처벌에관한법률위반(공동상해),집회및시·위에관한법률위반
Cases

2016Do3048 Violation of the Punishment of Violences, etc. Act (joint injury), assembly and time

Violation of the above Act

Defendant

Defendant 1 and two others

Appellant

Prosecutor

Defense Counsel

Law Firm Inn (for all the defendants):

Attorney Kim Sung-jin

Judgment of the lower court

Gwangju District Court Decision 2015No1554 Decided February 3, 2016

Imposition of Judgment

June 11, 2020

Text

The non-guilty part of the judgment of the original court against the Defendants shall be reversed, and this part of the case shall be remanded to the Gwangju District Court.

Reasons

The grounds for appeal are determined.

1. Fact-related relationship;

According to the reasoning of the original judgment and the evidence duly admitted by the lower court, the following facts are revealed.

가. 피고인 1 은(단체명 생략) 산하 ○○○○노동조합 △△지부 ◇◇◇ 지회 ( 이하 ◇◇지회'라 한다) 지회장이고, 피고인 2는 >◇◇지회 ☆☆☆ ☆ 차장 이며 , 피고인3은 지회 조합원이다.

나. ○○○○ 노동조합은 여수 산단 소재 중장비 임대업체인 ▽▽▽▽, ◎◎◎, ◁◁◁◁ 등과 사이에 단체교섭이 결렬되자 노동조합 및 노동관계조정법(이하 '노동조 합법 ' 이라 한다 ) 상 조정 절차를 거쳐 2014.3.20.경부터 파업에 돌입하였다. 이에 소◇ 지회 에 가입 한 ▽▽▽▽ 소속근로자들은 ▽▼ 기중기의 운행을 중단하였다.다. ▽▽▽▽ 는파업기간 중이던 2014.6.5.경 여수시 ▷▷동 에 있는 ♤♤화학 ① ♡♡ 공장 에 기중기 를제공하기로 하였다. ▽▽▽의 직원이 아닌 피해자 공소외인( 이하 ' 피해자 ' 라 한다 )은 VVVV의 지시를 받고 위 공장에 가 VVVV의 기중기를 운전하여 작업 을 하였다.

라. 피고인 들은2014.6.5. 15:30경 ♤♤화학 ♡♡♡공장 중문 앞에서 집회를 하던 중 , 위 공장 내부에서 ▽▽▽▽ 의 기중기를 운전하여 작업을 하고 있는 피해자 를 발견 하였다. 피고인 들은 위 공장의 중문 내부로 진입하여 피해자에게 다가가 "우리 는 어렵게 투쟁 을 하고있는데 너 혼자 잘 먹고 잘 살겠다고 대체근로를 하느냐, 잠시 얘기 좀 하자 " 라고 말하며 피해자 의 양팔을 붙잡았다.

E. Accordingly, the victim intending to escape from the factory to the factory, and the Defendants were trying to drive the victim behind and after the escape. In this process, the victim suffered injury, such as the first Daegu-gu (Fukin) on the upper left side of the upper left side, which requires approximately four weeks medical treatment, while going beyond the floor.

2. The first instance court and the lower court’s judgment were prosecuted for the same act as the Defendant’s order, as the crime of violation of the Punishment of Violences, etc. due to Joint Injury Act and the crime of violation of the Assembly and Demonstration Act due to the violation of the code of practice by the participants in an assembly.

The first instance court convicted all of the Defendants, and appealed the Defendants. The lower court reversed the first instance judgment and acquitted the Defendants on the following grounds.

3. Issues

The key issue of this case is whether the defendant's act of causing the victim while trying to put the victim who was working as a substitute in a chemical 000 plant constitutes an act under the law as an arrest of a flagrant offender and thus, the illegality of this case is dismissed.

The court below held that the defendant's act constitutes a legitimate act as an arrest, which is a lawful flagrant offender, and thus constitutes a justifiable act. On the other hand, the prosecutor asserts that Article 91, Article 43 (1) of the Trade Union Act is only a provision that punishs an employer, and it does not constitute a provision that punishs an employee, and unless there is a separate provision for punishment, it does not establish an accomplice or an aiding and abetting relation with the employment or replacement of an employer, and thus, the defendant cannot arrest the victim as a flagrant offender.

4. Whether the labor union has committed a violation of Article 91 or 43 (1) of the Labor Cooperatives Act and an accomplice;

An employer may not hire or substitute a person who has no relation with the business in question for the performance of the work suspended by the industrial action during the period of the industrial action (Article 91 and Article 43(1) of the Trade Union Act). The term “user” punished refers to a business owner, a person in charge of management of the business or a person who acts for the business owner with respect to matters concerning the workers of the business (Article 2 subparag. 2). Articles 91 and 43(1) of the Labor Union Act provide that an employer shall be punished for the above acts of the employer. It is apparent from a literal perspective that an employer may not immediately apply the above provision of the Trade Union Act to a person employed or replaced by the employer. Furthermore, an act of hiring or substitution with another person requires two or more persons to be employed, but it is not possible to punish such an act as an accomplice or substitute for another person under the general provisions of the Trade Union Act, such as the content and structure of the Act or an act of substitution for another person under the general provisions of the same Act.

5. Determination

Examining the aforementioned factual relationship in light of the aforementioned legal principles, the victim is merely an employee employed in the ▽▽▽▽△△ for the purpose of carrying out the duties that were interrupted by the act of dispute among the workers employed by the ▽▽▽△△△ members. Of the acts in the relation of pro-enemy, only the “employer” cannot be a sole principal offender for the crime of violating Articles 91 and 43(1) of the Trade Union Act, and the victim cannot be punished as a joint principal offender or an aiding and abetting offender by applying the provisions of accomplice under the general provisions of the Criminal Act. Ultimately, the victim is not a flagrant offender in violation of Articles 91 and 43(1) of the Trade Union Act, and even if the situation at the time when the Defendants were try to arrest the victim, the victim cannot be said to have satisfied the requirements for arrest, who

Nevertheless, the lower court determined that the Defendant’s act constitutes a legitimate act as a lawful arrest of flagrant offenders. In so doing, the lower court acquitted all of the charges on this part of the charges. In so determining, the lower court erred by misapprehending the legal doctrine on the establishment of accomplices under Articles 91 and 43(1) of the Trade Union Act, the general provisions of the Criminal Act, and the requirements for the arrest of flagrant offenders, thereby adversely affecting the conclusion of the judgment. The allegation of the grounds for appeal pointing this out is with merit.

6. Conclusion

Therefore, among the judgment of the court below, the part of innocence against the Defendants is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

It is so decided as per Disposition.

Justices Park Jae-young

Justices Min You-sook

Justices Kim Jae-hyung

Justices Lee Dong-won

Jeju High Court Decision 205No10

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