Defendant 1 and four others

Prosecutor and Defendants

Lee Ho-hun et al.

Law Firm et al.

Seoul Central District Court Decision 2010Ma12 Decided July 2, 2010

Of the judgment of the court below, the part on obstruction of business from May 1, 2009 to June 9, 2009 shall be reversed.

Defendant 1 is punished by imprisonment for two years, by imprisonment for two years, by imprisonment for two and five years, by imprisonment for one year and six months, and by imprisonment for three and four years, respectively.

However, the execution of the above punishment shall be suspended for three years for Defendant 1, and for two years for Defendant 2, 5, 3, and 4 from the date this judgment became final and conclusive.

The prosecutor's appeal on the obstruction of business on September 8, 2009 and obstruction of business on September 16, 2009 among the acquitted portion of the lower judgment is dismissed.

1. Summary of grounds for appeal;

(a) A prosecutor;

The prosecutor appealed on the ground that: (a) interference with business on May 1, 2009 to June 9, 2009; (b) interference with business on September 8, 2009; and (c) interference with business on September 16, 2009; (b) mistake of facts and misapprehension of legal principles as to interference with business on September 16, 2009; and (c) the summary of the grounds for appeal in detail is indicated in the relevant issues’ judgment; and (b) each sentence of the lower court against the Defendants (Defendant 1: two years of imprisonment; (c) three years of suspended execution; (d) three years of suspended execution; (c) two years of suspended execution; (d) one year of imprisonment; and (e) two years of suspended execution), one year; and (e) two years of suspended execution.

B. Defendants

Of the facts charged in the instant case, the Defendants appealed on the grounds of mistake of facts and misapprehension of legal principles as to ① interference with business on November 5, 2009 to November 6, 2009, ② interference with business on November 26, 2009 to December 3, 2009 (hereinafter the summary of the grounds for appeal in detail is indicated in the relevant issues’ judgment item), and that the lower court’s punishment against the Defendants is unreasonable.

2. Judgment on the defendants' grounds of appeal that are common to the whole facts constituting the original judgment

A. Violation of Japaneseism in indictment

1) Summary of the grounds for appeal

Of the written indictment of this case, the part citing the description on the criminal records of the Defendants, the description irrelevant to the facts constituting the crime, or the contents of the documentary evidence among the facts constituting the crime, shall hinder the judge from forming prejudice and understanding the substance of the crime. The evidence is presented in advance before the examination of evidence is conducted. This constitutes a violation of Article 254(3) of the Criminal Procedure Act concerning the principle of an indictment only and Article 118(2) of the Rules on Criminal Procedure, and thus, the procedure of indictment of this case is null and void in violation

2) The judgment of the court below

In light of the type and content of the crime as stated in the indictment only, the court below should make a concrete determination in the relevant case on the basis of whether the facts stated in the indictment are likely to obstruct the judge or jury to grasp the substance of the crime (see Supreme Court en banc Decision 2009Do7436, Oct. 22, 2009). The indictment must contain only the facts required by the law, and it cannot be said that it is reasonable to make the court unnecessary to predict the facts of the offense regardless of the initial head of the indictment. It is reasonable to see that the facts of the indictment related to the facts of the indictment should be stated in the elements of the crime as a matter of principle, and it is unnecessary to see that the first head of the indictment and the facts of the indictment are unnecessary, and it cannot be said that there is no clear motive or circumstance that the Defendants cannot be charged in violation of the principle of an indictment only with the motive or circumstance of the prosecution, and it does not constitute a violation of the principle of an indictment only by the court.

3) Determination of the immediate deliberation

As acknowledged by the court below in light of the above legal principles and records, the defendants' statement on the criminal records belongs to the items that can identify the defendants, and the part citing the contents of the statement or documentary evidence which are unrelated to the elements of the crime among the criminal facts of this case must clearly state specific circumstances in order to clarify the criminal intent, conspiracy relation, motive or circumstance of the crime, etc., and it does not seem to have reached the degree to cause a judge's prejudice. Thus, the method of instituting the prosecution of this case cannot be deemed to violate the principle of an indictment only.

Therefore, the Defendants’ assertion on this part is without merit.

B. The abuse of prosecution discretion

1) Summary of the grounds for appeal

The investigation and prosecution of this case are the abuse of public prosecution power, which started by the unilateral planning of political intent and unreasonable planning according to the direction of the President.

2) The judgment of the court below

원심은, 원심법정에서의 증인 공소외 34의 증언 및 피고인들 및 변호인들 제출의 ⊙⊙⊙⊙담당팀장회의자료, 신문 등 언론 기사의 각 기재만으로는 이 사건 공소제기가 공소권남용에 해당된다고 보기에 부족하고 달리 이를 인정할 증거가 없다는 이유로 피고인들의 공소권 남용 주장을 배척하였다.

3) Determination of the immediate deliberation

In a case where the prosecutor shows that the prosecution significantly deviates from the power of prosecution by arbitrarily exercising the power of prosecution to give substantial disadvantages to the defendant, it shall be deemed that the abuse of the power of prosecution can be denied the validity of prosecution (see Supreme Court Decision 2004Do482, Apr. 27, 2004, etc.). However, in the case of this case where it is deemed that the transportation of passengers and freight by the Korea Railroad Corporation was considerably obstructed due to the defendants' refusal to provide illegal labor for a certain period of time, etc., and the damage by the Korea Railroad Corporation is not considerable due to such act, the prosecution of this case where the prosecution of this case is held liable for the above defendants' actions shall not be deemed to have remarkably deviates from the power of prosecution. Accordingly, the defendants' assertion in

(c) Whether the refusal of simple supply of labor constitutes interference with business;

1) Summary of the grounds for appeal

The Defendants’ act is merely a mere refusal of providing labor. This is not merely a default of obligation and is not a threat of force, and thus the crime of interference with business is not established, and it is unfair to punish industrial actions themselves as the crime of interference with business in the purport of guaranteeing the right of collective action as fundamental rights under the Constitution.

2) The judgment of the court below

Even if a worker who entered into a labor contract with an employer did not provide labor in violation of his/her own contract, it cannot be deemed to constitute the crime of interference with business, apart from the fact that he/she is liable for nonperformance of the labor contract. However, the Defendants’ assertion that the crime of interference with business under Article 314 of the Criminal Act refers not only to assault or intimidation, but also to pressure and confusion the freedom of people’s will. As labor dispute action is in essence, since workers are forced to pressure and pressure, it includes the elements of interference with business by force, and even if a refusal to provide labor is a mere refusal, if it interferes with the normal operation of business by force, the crime of interference with business under the Criminal Act is established.

3) Determination of the immediate deliberation

The Treaty No. 29 and No. 105 of the International Labor Organization (ILO) concerning the abolition of forced labor does not have ratified by the Republic of Korea, and there is no ground to regard it as having constitutional effect as an generally accepted international law under Article 6(1) of the Constitution (see, e.g., Constitutional Court Order 97HunBa23, Jul. 16, 1998). Article 314 of the Criminal Act refers to force in the crime of interference with business as stipulated in Article 314 of the Criminal Act, as well as assault or intimidation, and it refers to the force to restrain or confuse human freedom. As labor dispute action entails pressure from the employees to the employer, it includes the elements of interference with business by force. Therefore, the failure of providing labor to work collectively during working hours goes beyond the scope of non-performance of the duty to provide labor unless there is any other unlawful element. However, even if refusal of provision of labor merely constitutes a violation of Article 6(1) of the Constitution, it does not constitute a violation of the Criminal Act’s penal provision of labor within the scope of the crime of interference with business.

3. Determination on the obstruction of business from May 1, 2009 to June 9, 2009 among the facts charged in the instant case (the part of the appeal by the prosecutor)

A. Summary of the facts charged

The content of the facts charged as to the above part of the facts charged is as follows.

B. Summary of grounds for appeal

The main purpose of the strike for safe operation from May 1, 2009 to June 9, 2009 was to oppose the reduction of 5,115 personnel, and the acceptance and opposition of the △ Railroad. The lower court’s decision is not subject to industrial action as it belongs to the management right, and the issue of foreignization of the restaurant is also subject to industrial action, and the said strike for safe operation is procedurally unlawful.

C. The judgment of the court below

The lower court found the Defendant not guilty of this part of the charges on the ground that there was no procedural error in the fact that the main purpose of the strike for the safe operation of this case was in opposition to the cafeteria, that the issue of foreignization of the cafeteria was likely to be related to working conditions or welfare, that the employment of dietitians and cooks, who are employees working in the cafeteria, would be unstable, and that the establishment of a cafeteria-related provision directly operated by the demand of the Korean Railroad labor union at the time of concluding the collective agreement in 2006, it cannot be deemed as the subject of pure business judgment, and thus, it cannot be deemed as the subject of pure business judgment.

D. Judgment of the court below

1) According to the evidence duly adopted and examined by the court below and the court below, the following facts are acknowledged.

A) The Korea Railroad Corporation and Nonindicted Party 1 Railroad Workers’ Union (hereinafter “Korean Railroad Workers’ Union”) conducted several collective bargainings to conclude the wage agreement and collective agreement in 2008, but the negotiations have been ended, and they continued to conduct collective bargaining even after the completion of mediation without presenting a proposal for mediation to the National Labor Relations Commission.

B) On November 19, 2008, the Korea Railroad Corporation and the Korea Railroad Workers' Union agreed provisionally before November 20, 2008 prior to the notice date of industrial action by the Railroad Workers' Union, but the provisional agreement was rejected by the Central Dispute Mediation Committee of the Korea Railroad Workers' Union. After that, the Korea Railroad Workers' Union formed a provisional executory book and continued negotiations with the Korea Railroad Corporation on December 11, 2008, a provisional agreement was made on December 19, 2008, and the said provisional agreement was finally approved.

C) The main contents of the above agreement are as follows.

【Employment of Fixed-Term Workers】

On December 31, 2008, as a result of consultation on the employment security or treatment of fixed-term workers whose contract is terminated following the efficient performance or entrustment of the work by the Corporation, agree as follows:

11. In relation to a cafeteria, a dietitian and a cook (related to entrustment of a restaurant);

(1) In cases of entrusting an internal restaurant, dietitians shall, in principle, endeavor to succeed to employment to the entrusted business entity, but may re-contract the relevant job field (business, vehicles, facilities, and management support) and the fixed-term guidance personnel, fixed-term vehicle personnel, fixed-term vehicle personnel, and fixed-term clerical assistant under his/her jurisdiction after changing his/her duties as an alternative.

(2) A cook shall hold labor-management consultation for employment stability when entrusting an internal restaurant.

【Collective Negotiations】

1. Negotiations for the renewal of a collective agreement in 2008 shall be provisionally interrupted and shall resume negotiations after March 2009.

3. An intervenor does not lower working conditions, such as the collective agreement, until the negotiation is resumed, and the Plaintiff’s union does not engage in industrial actions.

D) From March 11, 2009 to March 25, 2009, the Korea Railroad Corporation and the Railroad Workers' Unions consulted three times with respect to the outsourcing of a restaurant. At that time, the Korea Railroad Corporation expressed its intention that the consignment schedule may be extended on the premise of the outsourcing of a restaurant. On the other hand, the Korea Railroad Workers' Union expressed its intention that the strike would be in progress for the direct operation if only the outsourcing is dismissed. On the other hand, the Korea Railroad Corporation held a board of directors on April 23, 2009 to reduce the number of persons by step 5,000 until 200 in order to efficiently manage human resources pursuant to the "the sixth advance plan of public institutions" directed by the Ministry of Strategy and Finance. Around that time, the Korea Railroad Corporation decided to hold a restaurant operated directly by the Korea Railroad Corporation from May 1, 2009.

E) Accordingly, Nonindicted 2, 3, and 4, the head of each branch of the Railroad Labor Relations Search Zone, visited and resisted the Seoul Seoul branch office twice. On April 28, 2009, at the office of the railway labor union search and seizure vehicle, Nonindicted 2, 3, and 4, the head of each branch office of the railroad labor union search district, published three joint names of the three branches of the Korea Railroad Corporation, stating that “If the outside of the restaurant is not suspended, the outside of the restaurant would lead to a strike for safe operation from May 1 to April 29.”

바) 철도노조 ◀◀◀◀◀◀◀인 피고인 5는 2009. 4. 28. 철도노조▶▶▶인 피고인 1에게 수색지구의 2009. 5. 1.부터의 소위 ‘안전운행 투쟁’을 건의하였고, 피고인 1, 2, 3, 4와 철도노조 ♥♥♥♥ 공소외 5 등은 2009. 4. 30. 철도노조 사무실에서 수색지구가 2009. 5. 1.부터 소위 ‘안전운행’ 투쟁을 전개하도록 하기로 결의하고, 공소사실과 같은 지침을 순차로 각 하달하였다.

G) At around 09:10 on May 1, 2009, Nonindicted 2, 3, and 4, pursuant to the above guidelines in Defendant 5’s name, 100 persons, including union members, are gathered around the Seocho-gu Seoul Metropolitan Government ( Address 1 omitted), the first place office in the Seocho-gu Seoul Metropolitan Office ( Address 2 omitted) and the area around the place of business in Eunpyeong-gu, and thus, the members of the members of the cafeteria-gu who were assigned to the cafeteria-gu Office for education and training from the outside of the cafeteria-gu restaurant. A restaurant is the members’ health. “The cafeteria-gu is the member’s health.” “The number of the members who want to reduce the number of the number of the private restaurants belonging to the direct-run restaurant and the number of the employees who want to be commissioned to the outside place of business for the reduction of the number of the number of employees

2) The main purpose of the strike for safe operation of the instant case

In light of the developments leading up to the strike for safe operation of this case recognized by the above factual basis, the fact that there was a strike for safe operation at the level of three branches only, and the contents of banner at the time of the safe operation appearance, the strike for safe operation of this case seems to have been mainly opposed to the cafeteria.

3) Whether the purpose of the strike for safe operation of the instant case is justifiable

In order for an industrial action to be recognized as a legitimate act by social norms, the purpose of the industrial action should be to create autonomous negotiations between labor and management to improve working conditions. Whether to conduct corporate restructuring, such as layoff, consolidation of business organizations, and privatization of public enterprises, belongs to a high-level managerial decision by the management body, which, in principle, cannot be subject to collective bargaining. Unless there are special circumstances such as urgent managerial needs or reasonable reasons, the industrial action cannot be justified even if it inevitably entails changes in the status of workers or working conditions, even if the industrial action is conducted to substantially oppose the implementation of the industrial action (see Supreme Court Decision 2005Do5775 decided May 25, 2006). If the industrial action is deemed to have not been conducted for the purpose of industrial action, the legitimacy of the industrial action should be determined by the legitimacy of the purpose of the industrial action, and if there are various purposes pursuing the industrial action and some parts of the industrial action are not legitimate, the whole industrial action shall not be justified (see Supreme Court Decision 2006Do57575 decided May 27, 2006).

In light of the management decision of the Korea Railroad Corporation and the Korea Railroad Corporation, and the contents of the labor-management agreement that took place on December 19, 2008, etc., it is reasonable to deem that whether to directly operate a restaurant directly operated by the Korea Railroad Corporation or to entrust it to the outside, which belongs to the management decision of the management body, and in principle, it cannot be subject to collective bargaining. In light of the aforementioned management need or the process of negotiations and consultation between the Korea Railroad Corporation and the Korea Railroad Trade Union, or the contents of the labor-management agreement that took place on December 19, 2008, it is not deemed that such cafeteriaization and the reduction of the number of employees was promoted with an urgent managerial necessity or without reasonable reasons, and even if it appears that the change in the working conditions or welfare of workers, such as the deterioration of the quality of meals or the increase of food, etc., caused by the outside of a restaurant, it

4) Sub-committee

As long as the purpose of this part of the industrial action is not recognized as justifiable, the strike for safe operation of this case can not be seen as a legitimate industrial action without examining whether other requirements for legitimacy of the industrial action, such as legality of the procedure, are met. Thus, the prosecutor’s assertion on this part is justified within the scope of recognition.

4. Determination as to the obstruction of business on September 8, 2009 and obstruction of business on September 16, 2009 (the part of the appeal by the prosecutor) among the facts charged in the instant case

A. Summary of the facts charged

1) On September 8, 2009, the point of interference with business affairs

피고인 1, 2, 3, 5와 철도노조 ♥♥♥♥ 공소외 5 등 철도노조 집행부는 2009. 8. 26. 서울 용산구 한강로에 있는 철도노조 사무실에서 임시대의원대회를 개최하여 투쟁기조를 ‘▽▽ 정권의 공공부문 및 공공부문 노동조합 죽이기, 철도선진화 정책(인력감축을 핵심으로 하는 구조조정을 통한 제2의 철도민영화 정책)에 맞서 완강한 투쟁을 전개한다’로 정하고, 2009. 9. 8. 운전부분 파업을 하고, 사측에서 철도노조의 요구 조건을 들어주지 않으면 차량부분 파업도 연이어 하기로 결의하였다.

한편, 철도노조는 ◎◎◎ △△△△연맹 소속 ◁◁철도노조, ▷▷철도노조 등 9개 공공부문 노조와 연대하여 2009. 9. 3.경 서울 영등포구 영등포 2가에 있는 ◎◎◎ 회의실에서 ‘♤♤♤’ 결성 기자회견’을 개최하여 철도·◁◁·▷▷ 철도노조가 공동으로 공기업 선진화방안 저지를 목표로 대정부 투쟁을 전개할 것을 결의하였다.

피고인 1은 2009. 8. 26. 개최된 임시대의원대회 의결에 따라 2009. 9. 6.경 ‘철도노조 ▒▒조합원은 2009. 9. 8. 0시를 기하여 파업에 돌입하라. 2009. 9. 8. 14시 대전에서 개최되는 09 단협승리 결의대회에 총 집결하라’는 투쟁명령 1호를 발령하였고, 피고인 5 등 철도노조 지방◀◀◀들은 위 투쟁 명령 1호를 각 지부에 하달하였다.

피고인 1, 2, 3, 5 등의 지시를 받은 철도노조 ▒▒조합원 1,440여명은 파업에 돌입하기 위한 조합원 찬반투표 및 노동위원회 조정 등의 절차를 거치지 아니한 채 위 투쟁명령에 따라 2009. 9. 8. 대전역 ◈광장 주차장에서 개최된 '철도노동자 결의대회‘에 참가하여 ’5,115명 정원감축 철회 등 공기업선진화 반대와 □□철도 인수 반대, 해고자 복직, 고소·고발 및 징계 철회, 손해배상소송 철회, 단협개정 반대, 신입사원 임금삭감 및 연봉제 도입 반대, 신규사업 인력 충원, 식당 외주화 반대‘ 등을 주장하면서 전국 23개 사업장에 출근을 하지 아니하는 방법으로 집단으로 노무제공을 거부하여 새마을 등 여객열차 309대, 화물열차 282대의 운행이 중단되도록 함으로써 영업수익 손실과 대체인력 보상 등 한국철도공사에 853,338,000원 상당의 손해를 입게 하였다.

이로써 피고인 1, 2, 3, 5는 철도노조▒▒조합원 1,440명과 공모하여, 위력으로써 한국철도공사의 여객·화물 수송 업무 등을 방해하였다.

2) On September 16, 2009, the point of interference with business affairs

철도노조는 한국철도공사측에서 철도노조의 공기업선진화 중단, 해고자 복직 등 철도노조의 요구사항을 들어주지 않자 2009. 9. 14. 철도노조중앙쟁의대책위원회 ▶▶▶인 피고인 1 명의로 ‘모든 차량지부 쟁대위는 9월 16일 09시부터 13시까지 지부별 조합원 총회를 개최한다’라는 투쟁지침 30호를 발령하였다. 피고인 5 등 철도노조 지방◀◀◀들은 위 투쟁지침 30호를 각 지부에 하달하였다.

피고인들의 지시를 받은 철도노조 ▒▒조합원 1,750명은 파업에 돌입하기 위한 조합원 찬반투표 및 노동위원회 조정 등의 절차를 거치지 아니한 채 위 투쟁지침에 따라 2009. 9. 16. 09:00부터 같은 날 13:00경까지 ☆☆☆☆사업소 등지에서 지부장회의에 참석하여 5,115명 정원감축 철회 등 공기업선진화 반대와 □□철도 인수 반대, 해고자 복직, 고소·고발 및 징계 철회, 손해배상소송 철회, 단협개정 반대 등을 주장하면서 전국 27개 사업장에 출근을 하지 아니하는 방법으로 집단으로 차량검수 노무제공을 거부하여 대체인력 보상금 등 한국철도공사에 3,475,000원 상당의 재산상 손해를 입게 하였다.

이로써 피고인들은 철도노조 ▒▒조합원 1,750여명과 공모하여, 위력으로써 한국철도공사의 여객·화물 수송 업무 등을 방해하였다.

B. Summary of grounds for appeal

The main purpose of the strike on September 8, 2009 and September 16, 2009 is to prevent the advancement of public enterprises, reinstatement of dismissed persons, withdrawal of complaint, accusation and disciplinary action, withdrawal of damages lawsuit, withdrawal of compromise, etc. by opposing the reduction of 5,115 personnel, and thus, the purpose of the strike is not justifiable, and it is illegal industrial action, as it does not go through the procedure such as pro-con voting on industrial action.

C. The judgment of the court below

1) The facts acknowledged by the lower court based on the records are as follows.

A) On May 2009, the Korea Railroad Corporation and the Railroad Workers' Unions resumed collective bargaining, and they held once a week in two weeks in two weeks in two weeks in two weeks in one week in one week in two instances in which labor and management secretaries can adjust the bargaining cycle through consultation.

B) After May 25, 2008, the Korea Railroad Corporation and the Korea Railroad Workers' Union resumed negotiations for renewal of collective agreements with the 10th negotiation on May 25, 2009, and thereafter, they continued the 11th negotiation on July 20, 2009, September 30, 2009, the 12th negotiation on September 30, 2009, and the 2nd negotiation on October 21, 2009.

C) On May 25, 2009, the 10th bargaining and the instant strike were conducted on June 2, 2009; June 8, 2009; June 10, 2009; June 10, 2009; June 14, 2009; July 11, 2009; and July 12, 2009; and August 13, 2009; and no collective agreement or pending issues were any specific progress.

D) After the 10th of May 25, 2009, the Railroad Workers' Unions demanded the Korea Railroad Corporation to hold the 11th of June 18, 2009, as of June 22, 2009, after the 10th of May, 2009, they held the 8th of June 20, 2009. They demanded that the Korea Railroad Corporation hold the 8th of June 22, 2009 as of June 22, 2009 and demanded that the 208th of June 24, 200 if the 208th of June 24, 200, the 208th of June 29, the 2008th of June 29, the 2008th of June 29, the 2008th of June 208.

마) 2009. 9. 1.자 철도노조의 중앙쟁의대책위원회 투쟁지침 제22호, 제24호, 제30호는 ‘한국철도공사의 본교섭 해태에 따른 한국철도공사의 성실촉구’를 2009. 9. 8.과 16.자 파업의 동기로 기재하고 있고, 철도노조 중앙쟁의대책위원회는 2009. 9. 4. 한국철도공사의 성실교섭촉구 경고파업을 예고하는 성명을 발표하였고, 한국철도공사의 ▤▤▤▤팀장 공소외 21의 노경현안보고(수사기록 10058쪽)에도 2009. 9. 8.자 파업이유를 본교섭 해태, 단체교섭 요구안 갱신교섭 의견 불일치로 보고하였다.

F) The Korea Railroad Corporation and the Korea Railroad Workers' Union had conducted collective bargaining from July 29, 2008 to renew the collective agreement in 2008 and to conclude a wage agreement. The Labor Relations Commission applied for mediation on October 17, 2008, but did not make mediation.

G) From October 29, 2008 to October 31, 2008, a railroad labor union passed a vote for dispute action with 25,170 union members and passed a resolution with 15,268 union members. The vote for and against the above industrial action was a content that “the above industrial action shall go into an industrial action including a total strike when the demand, such as wage, collective bargaining, dismissal, full withdrawal of a motion picture plan, withdrawal of outsourcing and restructuring, strengthening of the public nature of the railroad, is not achieved.”

아) 그 후 2008. 12. 11. 임금협약은 체결되었으나 단체협약은 체결되지 아니하다가 한국철도공사의 전임 ▥▥인 공소외 32가 구속되면서 2008년도 단체협약 갱신 교섭을 잠정 중단하고 2009. 3. 이후 교섭을 재개하기로 하였고, 2009. 5.경 단체협약 교섭이 재개되면서 2008년도에 이어 본교섭은 제10차 본교섭으로, 실무교섭은 제7차 실무교섭으로 연속하여 순번을 매기고, 2008년도에 합의되지 않은 단체협약사항에 대하여 교섭을 진행하여 왔다.

2) On August 4, 2008, when the Korea Railroad Corporation urged the Korea Railroad Corporation to participate in the negotiations several times until September 1, 2009, when considering the fact that the Korea Railroad Corporation has continuously refused to participate in collective bargaining without adjusting the bargaining cycle, the court below determined that there was a sufficient time for the Korea Railroad Corporation to review and prepare the negotiations, etc., and that there was no reasonable reason for not complying with the Korea Railroad Union to avoid this negotiation. Further, even if the Korea Railroad Corporation and the Korea Railroad Corporation decided to proceed with the collective bargaining on several occasions by the agreement between the Korea Railroad Corporation and the Korea Railroad Corporation before the temporary bargaining, it did not grant the right to represent collective bargaining to the representative of the worker with the right to participate in collective bargaining, and that the Korea Railroad Corporation failed to comply with the aforementioned collective bargaining purpose, and therefore, it was justifiable to have determined that there was a reasonable reason for not only giving the right to participate in collective bargaining but also not giving the right to participate in the collective bargaining to the bargaining.

3) In addition, the court below did not show that there is no evidence that the disagreement regarding the working conditions of the previous collective agreement at the time of the industrial action in this case is terminated, and it did not show that the industrial action should be conducted by the association through a new application for mediation and a pro-con voting for the industrial action, and even if the new dispute was added, it did not show that the industrial action should be conducted again through a separate application for mediation and a separate vote for pro-con voting for the labor conditions at the time of the occurrence of the previous industrial action after the occurrence of the industrial action in this case, since there is no procedural illegality in the industrial action in this regard, the court below acquitted each of the facts charged.

D. Judgment of the court below

1) Whether the purpose is justifiable

Article 81 subparag. 3 of the former Trade Union and Labor Relations Adjustment Act (amended by Act No. 930 of Jan. 1, 2010) provides that an employer may not refuse or neglect collective bargaining without justifiable grounds, such as the conclusion of collective agreements with the representative of a trade union or with a person delegated by a trade union. Whether an employer has justifiable grounds for refusing or neglecting collective bargaining shall be determined depending on whether it is difficult for an employer to expect the implementation of collective bargaining obligations under social norms by taking into account the bargaining authority of the trade union, the bargaining time, bargaining place, bargaining circumstances, and their attitude of bargaining, etc. (see, e.g., Supreme Court Decisions 2007Du1542, Apr. 29, 201; 2005Do8606, Feb. 24, 2006). If an employer refuses collective bargaining without justifiable grounds, such as the employer’s refusal of collective bargaining, even if there is no justifiable reason to refuse collective bargaining, such as the employer’s temporary demand or change of circumstances in the trade union.

The main purpose of each industrial action of this case is to urge the Korea Railroad Corporation to conduct collective bargaining as to the neglect of collective bargaining, in light of the fact that the Korea Railroad Corporation's rejection process of the Korea Railroad Corporation's demand for collective bargaining and the difference between the main bargaining and the practical bargaining as acknowledged by the records of the court below. Thus, the purpose of each industrial action of this

2) Whether the procedure is lawful

As acknowledged by the court below, in light of the Korea Railroad Corporation and Railroad Labor Relations Adjustment's renewal of collective agreement, collective bargaining process to conclude wage agreements, the contents of negotiations conducted after the resumption of collective agreement, etc., as acknowledged by the records, it is deemed that there is no need to again file a separate application for dispute mediation and pro-con voting on the matters under the circumstance that the disagreement in the claim regarding the working conditions at the time of the occurrence of previous labor disputes is not resolved. Thus, each industrial action

3) Sub-decisions

As seen above, each of the above parts of the industrial action satisfies the requirements for legitimate acts, such as legitimacy of the purpose and legitimacy of the procedure, so the prosecutor's allegation in this part is without merit

5. Determination as to interference with business on November 5, 2009 to November 6, 2009 and November 26, 2009 to December 3, 2009 among the facts charged in the instant case (the part on appeal by the defendants)

A. Summary of grounds for appeal

The main purpose of each industrial action in the instant case is to renew collective agreements on the terms and conditions of employment in collective agreements and to prevent unfair practices in the wage system, and thus constitutes legitimate industrial action.

B. Judgment of the court below

1) In order for a worker's act to be a legitimate industrial action, the objective of the industrial action is to maintain and improve working conditions in relation to collective bargaining. The purpose of the industrial action is to maintain and improve working conditions in relation to collective bargaining. The time and procedures must be in accordance with the provisions of Acts and subordinate statutes, and it should not be justified, and the industrial action that seeks to achieve matters that cannot be a collective action shall not be a legitimate ground for that purpose. (See Supreme Court Decisions 91Do324 delivered on May 24, 1991, 97Do2543 delivered on February 27, 1998, etc.). If there are various purposes pursuing the industrial action, and some of them are not legitimate, the legitimacy of the industrial action should be determined by the legitimacy of the purpose of the dispute by the main or genuine purpose, and if it is not recognized that the industrial action has not been conducted for the improper reason, the industrial action should not be justified in its entirety (see, e.g., Supreme Court Decision 2003Do3860, Feb. 2013).

2) According to the evidence duly adopted and examined by the court below and the court below, the following facts are acknowledged.

가) 정부가 2008. 12. 22. 공기업의 정원 감축(철도공사는 5,115명 감축), 자산매각, 예산절감 등을 내용으로 하는 4차 공공기관 선진화 계획을 발표하고, 한국철도공사는 위와 같은 정부의 공기업 선진화 방안에 따라 2009. 1.경 5,115명 정원 감축 등 철도선진화 세부 실천계획을 수립하자, 철도노조는 2009. 3. 1. 피고인 1을 ▶▶▶으로 한 새로운 집행부가 출범하면서 2009. 3. 26. 철도노조 정기대의원대회를 개최하여 노조 집행부 2년 임기동안의 ‘4대 핵심목표’를 ① 철도공공성 강화, ② 민주철도 혁신강화, ③ 산별노조 강화, ④ 사회연대성 강화로, ‘2009년도 철도노동자 5대 투쟁과제’로 ① 철도공공성 강화 및 고용안정 쟁취, ② 구조조정 저지 및 노동조건 개선, ③ 해고자 복직 및 정기단협 갱신, ④ 비정규직 철폐, ⑤ 완전한 노동 3권 쟁취를 결의함으로써 공공기관 선진화 계획 폐기 및 해고자 복직 등이 2009년 주요 투쟁 목표임을 확인하였다.

B) On April 23, 2009, the Korea Railroad Corporation decided on the restructuring agenda, such as reducing the number of 5,115 persons by April 23, 2009, according to the government’s advancement plan, and the public union and the railroad union respectively announced on April 25, 2009 a letter of statement of the resolution for the collective power strike to stop the reduction of human resources. In particular, the railroad union, in the square of the Seoul Station on the same day, was contrary to the City/Do, such as holding “the opposition to the president of the Nakdongsan, the withdrawal of the reduction of the number of 5,115 persons, the withdrawal of the reduction of the number of 5,115 persons,

다) 철도노조는 2009. 5. 19. 2009년 제1차 확대쟁의대책위원회를 개최하여 ① 철도선진화 분쇄(5,115명 정원 감축 철회 등), ② 공공철도강화, ③ 노조탄압 중지(손해배상, 고소·고발 철회 등), ④ 해고자 복직 등 합의사항 이행을 ‘4대 핵심요구’로 정하여 투쟁하기로 결의하였고, 2009. 5. 28. ◎◎◎◎ △△△△연맹이 개최하는 ‘5. 30. 공공기관 구조조정분쇄, 열사정신 계승, ▽▽악법 저지 △△△△연맹 결의대회’에 전 조합원이 참석할 것을 지시하였으며, 2009. 7. 15. 2009년 제2차 확대쟁의대책위원회를 개최하여, ① 인력감축·구조조정뿐인 철도선진화 계획 분쇄 및 철도 공공성 강화, ② 해고자 복직 합의이행, ③ 단체협약 개악, 성과주의 임금체계로의 개악 분쇄, ④ 고소고발 등 노조탄압 분쇄 등을 향후 투쟁목표로 설정하였고, 공공기관 선진화 정책에 대한 공동대응 필요성에 따라 철도·▷▷·◁◁노조 소속 조합원들은 2009. 8. 11. 과천 정부청사 앞에서 ‘공기업 선진화 분쇄를 위한 철도, ◁◁, ▷▷ 간부 결의대회’를 개최하여 선진화 정책 중단, 일자리 확대, 인력감축 중단, 노조 무력화 시도 중단 등을 위해 공동투쟁 하겠다는 결의문을 발표하였고, 2009. 8. 21. 2009년 제3차 확대쟁의대책위원회를 개최하여 철도선진화 계획 분쇄, 단협 개악 반대, 고소고발 등 노조탄압 분쇄, 해고자 복직 등이 향후 투쟁목표임을 확인하였다.

D) On September 30, 2009, the Railroad Labor Union declared the 12th bargaining and the first wage bargaining on the date of labor and management on the grounds that there was a significant difference in the position between labor and management. On October 8, 2009, the National Labor Relations Commission submitted an application for adjustment of the demand for wages, etc. on October 12, 2009. On October 12, 2009, the said union decided to hold a temporary rally to “to issue the withdrawal of advance policies of public institutions, recruit new human resources, compromise and farite, to carry out the agreement on reinstatement of dismissal, etc.” In relation to the specific strike schedule, the first strike was conducted by region-circulating, and in particular, on November 6, 2009, the first strike decided to extend the number of union members to the maximum extent possible before and after the 10th of Seoul Labor Relations Commission’s temporary strike on the basis of the 10th of the 19th of Seoul Labor Relations Act’s 20th of November 26, 20009.

마) 당시 2009. 10. 29.자 확대쟁의대책위원회 결의문에는 “① 단협 개악 저지, ② 신규사업 및 부족인력 충원쟁취, ③ 일방적 임금 삭감 및 성과주의 임금체계 개악 분쇄, ④ 해고자 복직 노사 합의 이행과 민주노조 사수를 위해 총력투쟁에 나설 것이다.”라고 기재되어 있고, ◆◆◆ 특보 〈소식지〉 (09. 10. 30. 철도노조 홈페이지)에는 ‘2009년 정기 단협 핵심 요구 사항’으로 “① 단협개악 저지, ② 임금 삭감, 성과금 임금체계 분쇄, ③ 신규사업 및 부족 인력 충원, ④ 노사 합의 이행(해고자 복직), ⑤ 민주철도노조 사수” 등을 요구사항으로 게시하고 있다.

바) 한편, ♤♤♤은 2009. 11. 4. ◎◎◎◎ 회의실에서 기자회견을 개최하여 ‘공공기관 선진화와 민영화 중단, 단체협약 개악 및 일방해지, 임금체계 개악 시도 중단, 공공부문 일자리 확대 및 부족인력 충원, 정부의 노사관계 부당개입 중단 및 노동기본권 보장, 4대강 사업 중단 및 사회공공성 예산 확충’ 등을 요구하면서 ‘2009. 11. 6. 총파업 출정식, 2009. 11. 9.～15. 사업장별 파업 확대, 2009. 11. 16.～20. 권역별 순환파업, 2차 공기업 선진화 워크숍에 대응한 공동투쟁(11월 26일 올바른 공기업 개혁을 위한 국민토론회, 워크숍 일정에 맞춘 전면파업, 워크숍 일정에 맞추어 전국 공공부문 노동자 총력결의대회)’ 등 투쟁계획을 발표하였다.

G) On October 31, 2009, upon the issuance of an order for the central strike of railroad labor unions to the effect that “from November 5, 2009 to regional circulation,” 3 was ordered, there was 6,790 members of the railroad labor union from November 5, 2009 to November 09, 09, where 6,790 members of the railroad labor union refuse to provide labor collectively at 288 workplaces nationwide.

H) On November 9, 2009 and November 13, 2009, the Railroad Labor Union decided to hold a series of the Central Standing Committee on Railroad Labor Union and Labor Relations and enter into the full-scale strike on November 26, 2009. On November 18, 2009, the Committee for Countermeasures against Railroad Labor Relations and Labor Relations re-afforested the above full-scale strike plan, and on November 25, 2009, “from November 26, 2009 to a indefinite total strike” was ordered as 4th order for the Central Committee for Railroad Labor Relations and Labor Relations, and from November 26, 2009 to December 3, 2009, members of the Railroad Labor Union and Labor Relations Group were to provide labor to a group of employees who refuse to provide labor at a 284 workplace nationwide.

3) As seen earlier, comprehensively taking account of the progress process up to each industrial action of the instant case, including: (a) the 12nd bargaining on September 30, 2009; (b) the wage negotiations on October 16, 2009; (c) the 16th working bargaining on October 16, 2009; and (d) the 17th working bargaining on October 27, 2009; and (b) the fact that collective bargaining was under way and was not in a situation where collective bargaining is likely to be associated, each industrial action of the instant case was conducted with the main purpose of achieving the requirements for withdrawal of personnel reduction, such as withdrawal of personnel reduction, etc. in accordance with the schedule set forth in 10, and thus, the Defendants’ assertion on this part is without merit.

6. Conclusion

Therefore, the prosecutor's appeal as to interference with business on September 8, 2009 and interference with business on September 16, 2009 is without merit. Thus, the prosecutor's appeal as to interference with business on May 1, 2009 or June 9, 2009 is with merit. Thus, the prosecutor's appeal as to interference with business on May 1, 2009 or June 9, 2009 is without merit. Thus, pursuant to Article 364 (6) of the Criminal Procedure Act, the part of the judgment of the court below as to interference with business on May 1, 2009 or June 9, 2009 is reversed, and the part as to interference with business on June 1, 2009 is again decided as follows.

피고인 1은 한국철도공사 ◐◐차량사무소 차량관리원 6급으로서 공소외 1 철도노동조합(이하 ‘철도노조’라 함) ▶▶▶, 피고인 2는 한국철도공사 ♡♡역 사무영업 4급으로서 철도노조 ▣▣▣▣▣▣, 피고인 3은 한국철도공사 서울서부지사 ▨▨차량사업소 차량정비 5급으로서 철도노조 ◑◑◑◑, 피고인 4는 1994. 3.경부터 철도청에 근무하다가 2003. 8.경 해고된 해고자로서 철도노조 ▲▲▲▲실장, 피고인 5는 한국철도공사 ●●역 영업 3급으로서 철도노조 ◀◀◀◀◀◀ ◀◀◀이다.

1. The Defendants’ obstruction of business from May 1, 2009 to June 9, 2009

철도노조 ◀◀◀◀◀◀◀인 피고인 5는 2009. 4. 28. 철도노조▶▶▶인 피고인 1에게 ‘서울지구역연합지부, 서울기관차승무지부, 서울차량지부’(이하 ‘수색지구’라 함)의 2009. 5. 1.부터의 소위 ‘안전운행’ 투쟁을 건의하였고, 피고인 1, 2, 3, 4와 철도노조 ♥♥♥♥ 공소외 5 등은 2009. 4. 30. 서울 용산구 한강로에 있는 철도노조 사무실에서 수색지구가 2009. 5. 1.부터 소외 ‘안전운행’ 투쟁을 전개하도록 하기로 결의하고, 같은 날 철도노조 중앙쟁의대책▶▶▶ 피고인 1 명의로 ‘수색지구 안전운행 투쟁 등 투쟁지침 관련 건’이라는 제목 아래 서울지방본부쟁의대책▶▶▶에게 ‘조합은 이미 협의한 것처럼 조합의 투쟁지침을 서울지방본부쟁대위 투쟁지침 2호로 대신하며 이후 투쟁 과정에서도 조합과 사전 협의를 전제로 적절한 대응과 관련 투쟁지침 발령을 위임합니다. 우리 조합은 진행되고 있는 천막농성과 이후 안전운행 투쟁을 함께 책임지고, 승리를 위하여 모든 지원을 아끼지 않을 것임을 밝혀드립니다’라는 지침을 하달하였다.

이에 철도노조 ◀◀◀◀◀◀ ◀◀◀인 피고인 5는 위 철도노조중앙쟁의대책위원회 ▶▶▶인 피고인 1 명의의 ‘수색지구 안전운행 투쟁 등 투쟁지침 관련 건’ 지침에 따라 2009. 4. 30. ‘수색지구(서울역 포함) 조합원은 식당 외주화에 맞서 영양사 및 조리원 조합원들의 계약 해지시 즉각 안전운행 실천투쟁에 돌입한다’라는 내용의 ‘서울지방본부쟁대위 투쟁지침 2호’와 ‘기관차 승무조합원은 입환할 때에는 수송요원의 안전을 최대한 고려해 운전한다. 소송원은 규정입환, 검수원의 규정검수에 협력한다. 각종 제한속도를 준수한다. 제동시험을 철저히 한다. 수송조합원은 입환속도를 항상 안전속도로 유지한다. 규정대로 관통 입환을 철저히 시행한다. 입환작업시 절대 뛰어 타거나 뛰어 내리지 않는다. 차량조합원은 규정대로 안전하게 검수한다’라는 내용의 ‘규정업무·안전운행실천 지침’을 발령하였다.

At around 09:10 on May 1, 2009, the above non-indicted 2, 3, and 4, etc., pursuant to the above "Guidelines 2" and the "Guidelines for Regulation and Safety Operation Practice" in Defendant 5, 100, including 100 members, are gathered around the beginning of the main station in the Eunpyeong-gu Seoul Metropolitan Government ( Address 1 omitted) and the place of business around the office of the senior director general of Eunpyeong-gu Office located in the Seocho-gu, Seoul, and the head of the office of search and seizure of Eunpyeong-gu, Seoul, and held an appearance of safe operation, with the contents that "the opposition to the reduction of the fixed number number of persons who want to stop the reduction of the number of persons who want to stop the full number of persons who want to start from the direct-time restaurant and the number of persons who want to run the train by directly boarding the train from 09:50 to 16:00 on the same day.

Defendant 1, the same Defendant 2, the same Defendant 4, and the same Defendant 5, etc.: (a) around May 1, 2009 and around May 3, 2009, the search district was found to encourage the delayed operation of trains.

The 100 members of the search district, such as Nonindicted Party 2, etc., her 10 and 5,115 members of the non-indicted 2, without going through the procedures of cooperative vote and mediation of the Labor Relations Commission, and without going through prior consultation, she hanged a banner stating the opposition to the restaurant, withdrawal of 5,115 members of the reduction of the reduction of the reduction of the reduction of the number of 5,15 members, and opposition to the takeover of the △ Railroad from May 1, 2009, and delayed operation between 10 to 46 minutes by interfering with normal train operation in accordance with the above "Guidelines Guidelines for Regulation, Business, and Safety Operation".

As a result, the Defendants conspired with 100 members of the search area, such as the above non-indicted 2, etc., and interfered with the Korea Railroad Corporation's normal transportation of passengers and freight by force.

2. The Defendants’ obstruction of business on November 5, 2009 and November 6, 2009

As stated in the corresponding column of the judgment of the court below, it shall be quoted in accordance with Article 369 of the Criminal Procedure Act.

3. The Defendants’ obstruction of duties from November 26 to December 3, 2009

As stated in the corresponding column of the judgment of the court below, it shall be quoted in accordance with Article 369 of the Criminal Procedure Act.

The summary of the evidence of the facts charged by this court,

1. Each part of the witness’s statements in the party trial court held by Nonindicted 6 and 7

1. Part of the witness’s statement in the fifth trial record of the court below

1. Each part of the witness Nonindicted 9 and 10's statements in the sixth trial records of the court below

1. Partial entry in the police protocol of Nonindicted 4, 11, 12, 5, 13, 14, 3, 15, 16, 2, 17, 18, and 19

1. 성명서 ‘비정규직 해고, 외주위탁을 전면 수용한 기만적인 노사합의서를 즉각 파기하라’ 문건, ‘우리는 외주위탁 해고에 반대합니다’, ‘외주위탁 거부하고 우리 스스로 생존을 지킵시다’ 문건의 각 기재

1. (Name) Reduction of the fixed number of staff, the suspension of a restaurant outside the restaurant, i.e., the guidelines for the subrogation of the dispute at the Seoul Local Headquarters 2, the number of regulations strict, the guidelines for practice of safe operation, the current status of the promotion of the entrusted restaurant, the current status of the entrusted restaurant, and each labor-management agreement;

With the exception of adding B, it is identical as stated in the corresponding column of the judgment of the court below, and thus, it is quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Articles 314(1) and 30 (Selection of Imprisonment with Labor)

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Code

1. Suspension of execution;

Article 62(1) of the Criminal Act (see the following reasons for sentencing)

The period and scale of the industrial action of this case are not many, the damage level of the Korea Railroad Corporation will not be much significant, and the extent of the damage incurred by the industrial action of this case seems to be considerable, and the defendants' status in the railroad transport during the industrial action of this case and the role in the industrial action of this case in each of the industrial actions of this case, while the industrial action of this case was conducted in a peaceful manner that does not involve an act of violence, and the union members of the essential maintenance business were trying to reduce the damage of the people due to the industrial action of this case due to the failure to participate in the industrial action of this case. A collective agreement was concluded only with the Korea Railroad Corporation and the Korea Railroad Workers around May 14, 2010 after this case, and all other circumstances that form the conditions for sentencing as shown in the records of this case, including the age, character and behavior of the defendants, character and environment, etc. shall be determined as ordered by the disposition of this case.

Judges Lee Chang-tae (Presiding Judge)