[1] Requirements for establishing a conspiracy relationship in a conspiracy of co-principal

[2] Whether the provisions of Article 62 subparag. 3, Article 63, and Article 91 subparag. 1 of the Labor Union and Labor Relations Adjustment Act prohibiting an industrial action during the period of ex officio arbitration are unconstitutional (negative)

[3] Requirements for establishing a crime of violation of the Labor Union and Labor Relations Adjustment Act, which is punished by industrial action during the prohibition period of industrial action in an essential public business

[4] The case reversing the judgment of the court below convicting the industrial action during the prohibition period of ex officio arbitration on the ground that it was unlawful in the decision to refer to arbitration

[1] Article 30 of the Criminal Code / [2] Article 62 subparag. 3, Article 63, Article 91 subparag. 1 of the Labor Union and Labor Relations Adjustment Act, Article 37(2) of the Constitution / [3] Article 62 subparag. 3, Article 63, and Article 91 subparag. 1 of the Labor Union and Labor Relations Adjustment Act / [4] Articles 62 subparag. 3, 63, 72, Article 74(1), and Article 75 of the Labor Union and Labor Relations Adjustment Act

[1] Supreme Court Decision 2003Do6779 Decided May 27, 2004, Supreme Court Decision 2004Do2034 Decided June 11, 2004, Supreme Court Decision 2004Do7511 Decided January 27, 2005 (Gong2005Sang, 376) / [2/3/4] Supreme Court Decision 2005Do890 Decided May 12, 2005 (Gong2005Sang, 91) / [2] Constitutional Court en banc Decision 2001Hun-Ga31 Decided May 15, 2003 (Hun-Ga81, 454)

Defendant

Defendant

Attorneys Park Jong-woo et al.

Gwangju District Court Decision 2004No2590 Decided January 19, 2005

The judgment of the court below is reversed, and the case is remanded to the Gwangju District Court Panel Division.

1. As to the remaining facts charged except for the violation of the Labor Union and Labor Relations Adjustment Act

A. In a case where two or more persons jointly process a certain crime, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process a crime and realize a crime. Thus, even if it comes to an impliedly, if the combination of doctors is made between several persons, the conspiracy relationship is established. If the functional control based on such a common intent is recognized in the course of committing the crime, even those who did not directly participate in the conduct of the crime shall be held criminal liability as a joint principal offender against the other persons (see Supreme Court Decisions 2003Do6779, May 27, 2004; 2004Do2034, Jun. 11, 2004, etc.).

According to the evidence of the judgment of the court of first instance cited by the court below, the defendant, who is the head of policy planning division of the non-indicted corporation labor union (hereinafter referred to as the "trade union of this case") at the time of the industrial action of this case, is affiliated with the chairman and vice-chairman of the labor union of this case, the secretary general, the head of the bureau, the head of the labor union of this case and its affiliated officers, and actively led the industrial action of this case until the completion of the industrial action of this case. In light of the organization and status of the trade union of this case, the process of the industrial action of this case and the method of action at the time of the industrial action of this case, the degree of involvement of the defendant in each industrial action of this case, etc., the defendant infringed upon some members of the trade union of this case in the restaurant or substation of the company of this case and interfere with the business by taking advantage of the mediation room of the company of this case, or ordered them to directly participate in the criminal action of the company of this case, or threatened members of the industrial action of this case or of this case.

The Supreme Court precedents cited in the grounds of appeal are inappropriate to rely on the case differently from this case.

B. Meanwhile, if multiple members occupy a part of a company for a long time and continue an industrial action, it shall endeavor to recover from the company's side, and it shall be sufficiently foreseeable that a large number of members and employees of the company may fight and commit an injury by assaulting the employees of the company due to safety appearance, etc. As seen above, the defendant leading the members to occupy the important facilities of the company and to take industrial action shall not be exempted from the liability for the violation of the Punishment of Violences, etc. Act (a violation of the Act on the Punishment of Violences, etc. (a collective, deadly weapons, etc.) as to the injury of victims caused by assault by the members participating in the industrial action due to a lack of name among other accomplices. Accordingly, the court below's decision that affirmed the first instance court's judgment that found the defendant guilty of this part of the facts charged is correct, and there is no violation of law by misunderstanding the legal principles as to Article 3 (1) of the Punishment of Violences, etc. Act

2. On the charges of violation of the Labor Union and Labor Relations Adjustment Act

A. The purpose of each provision of Article 62 subparag. 3, Article 63, and Article 91 subparag. 1 of the Trade Union and Labor Relations Adjustment Act is to maintain the daily lives of the public and preserve the national economy by allowing the resolution of disputes through arbitration of the Labor Relations Commission in lieu of agreement between the labor and management in lieu of agreement, since the frequent strike due to extreme conflicts of interests and conflicts between the labor and management in essential public-service businesses can lead to a threat of collapse. Thus, the legislative purpose of the above provision is just, and the method of restricting fundamental rights stipulated in the same Act is appropriate, and the degree of restriction on fundamental rights is also minimum, and the balance between the public interest to be protected and the private interest to be restricted is maintained, and thus, it does not violate the principle of excessive prohibition under the Constitution (see Constitutional Court en banc Decision 2001Hun-Ga31, May 15, 2003).

We cannot accept the argument in the grounds of appeal that the provisions of the Act on the Ex officio Arbitration violate the Constitution.

B. However, Article 62 subparagraph 3 of the same Act provides that "where the chairperson of the Labor Relations Commission has decided to refer the case to arbitration upon the recommendation of the Special Arbitration Committee in the essential public-service business pursuant to Article 71 (2), the Labor Relations Commission shall conduct arbitration." Article 72 provides that "Special Arbitration Committee shall be established in the Labor Relations Commission for the mediation of labor disputes in the public-service business (paragraph 1) and three special Mediation Committee (paragraph 2) and special Mediation Committee shall be appointed by the chairperson of the Labor Relations Commission (the main sentence of paragraph 3) from among the members representing the public interest of the Labor Relations Commission, the labor union and the three to five members who are remaining after the employer are successively excluded in order from the Labor Relations Commission." Article 74 (1) provides that "the Special Arbitration Committee may recommend the relevant Labor Relations Commission to refer the case to arbitration upon the decision of the Special Arbitration Committee where it deems that mediation is not possible for the essential public-service business, the chairperson of the Labor Relations Commission shall refer the case to arbitration in accordance with Article 74 (1).5)".

Therefore, the crime of violation of the Labor Union and Labor Relations Adjustment Act, which is punished due to industrial action during the period of prohibition of industrial action in the essential public-service business, is established when the special mediation committee legally organized, acknowledged that it is not likely to establish mediation and recommended the Labor Relations Commission to refer the case to arbitration. Accordingly, the Labor Relations Commission's decision to refer the case to arbitration after hearing public interest members, and industrial action is prohibited for 15 days from that day. In light of the records, the labor union of this case issued to the National Labor Relations Commission a written request for recommendation of a list of members representing public interest and special mediation members to the labor union of this case and the company of this case, and the chairman of the Labor Relations Adjustment Commission appointed a special mediation committee including those excluding public interest members of the labor union of this case, or the chairman of the Special Mediation Committee of the Labor Relations Adjustment Commission of this case should have decided to refer the case to arbitration in accordance with the recommendation of referral to arbitration of the Special Mediation Committee of this case, and the decision of the court below which found the violation of the Labor Union and Labor Relations Adjustment Commission's Act's Act's procedural defect and procedural review.

3. Scope of reversal

Therefore, the part of the judgment of the court below which found the defendant guilty of the violation of the Labor Union and Labor Relations Adjustment Act should be reversed, and the appeal by the defendant against the remaining facts charged is without merit, but the court below recognized the defendant guilty as a concurrent crime under the former part of Article 37 of the Criminal Act and maintained the judgment of the court of first instance which sentenced

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-gu (Presiding Justice)