(a) Whether the subway Corporation falls under the category of public service enterprises subject to compulsory arbitration under Article 30 subparagraph 3 of the Labor Dispute Adjustment Act (affirmative);

B. In the case of Article 30 subparag. 3 of the Trade Dispute Mediation Act, whether Article 31 of the same Act, which prohibits industrial actions, is unconstitutional (negative)

C. Whether Article 31 of the Trade Dispute Mediation Act, which provides for the prohibition of industrial actions in cases falling under subparagraphs 1 and 2 of Article 30 of the same Act, is unconstitutional (negative)

(d) The scope of labor disputes subject to the arbitration by the Arbitration Commission;

E. Criteria for determining the legitimacy of labor dispute actions, which are the grounds for denying illegality under the Criminal Act

(f) Cases of denying the legitimacy of an employer's act of occupation occupation excluding the occupation on the part of the employer;

(g) A case denying the legitimacy of the act of free boarding tickets for passengers;

(h) requirements for trade union activities to have legitimacy;

A. The "public works" under Article 30 subparagraph 3 of the Labor Dispute Mediation Act, which provide for the case of compulsory arbitration regardless of the intention of both labor and management, refers to the businesses under subparagraphs 1 through 5 of Article 4 of the same Act, which are not indispensable for the daily life of the general public or are likely to seriously endanger the national economy, and it is obvious that the Seoul subway Corporation belongs to such public works.

B. A lock-out by an employer is an inherent limitation (if so, the necessity of restriction for public welfare) that can not be without permission for industrial action of workers in the body of public works. The so-called three labor rights are the fundamental rights emerging as a new era of revising the liberal legal principles of civil law to ensure the substantial equality between the employer and workers through the establishment of collective labor-management relations. This three labor rights should be respected and protected, and the degree of difference between them should not be determined in light of the purpose of existence of the right to life for improvement of working conditions, and in light of the above three rights, the right to collective bargaining is the most nuclear right, and thus, the right to collective bargaining is restricted within the necessary minimum, and thus, it cannot be seen that the right to collective bargaining has been established for a short period of time after the establishment of collective labor-management dispute, and if the right to collective bargaining has been established for the same purpose as the right to collective labor-management dispute under Article 33(1) of the Constitution, it cannot be deemed that the right to collective bargaining has been established for the same purpose.

C. In each case under Article 30 subparagraphs 1 and 2 of the Trade Dispute Mediation Act, the exercise of the right to dispute is prohibited in the form of legal inquiry pursuant to Article 31, but Article 30 subparagraphs 1 and 2 of the same Article of the same Act does not necessarily mean that the disputing party's right to dispute establishes a collective agreement with the employer. Rather, Article 31 of the same Act does not necessarily mean that the collective workers who choose the paths under subparagraphs 1 and 2 of Article 30 of the same Act can easily choose mediation procedures under Chapter IV of the same Act, which are not accompanied by prohibition of the exercise of the right to dispute. Thus, it cannot be said that the prohibition measures under Article 31 of the same Act infringe on the essential contents of the right to dispute.

D. The term "claim between the parties to labor relations" as referred to in the definition of "labor dispute" under Article 2 of the Labor Dispute Adjustment Act includes any assertion about the labor relations and any of the collective labor relations, and it includes not only the assertion of the rights under collective agreements or labor contracts (rights disputes) but also the assertion to form a new agreement on them. Thus, the subject of arbitration by the Arbitration Commission is both an interest dispute and a right dispute.

E. The workers' exercise of the right to dispute is that the illegality under the Criminal Act is not denied only when it is legitimate. The legitimacy of industrial action should be conducted by a person who is entitled to be the subject of collective bargaining, and the second one should be to create autonomous negotiations between labor and management. Third, an employer shall commence the collective bargaining or a reply to refuse such demand in the place of collective bargaining with respect to a specific demand for improving the working conditions of the workers, unless there are special circumstances, in principle, a prior report shall be made. Fourth, the method of exercising the right to dispute shall be to completely or partially suspend the provision of labor, as well as to stop the provision of labor in whole or in part, and shall be consistent with the principle of fairness in labor and management relations. The exercise of violence shall be in harmony with the ownership and other property rights of the employer's corporate facilities, which is in violation of the basic principles of the law, physical freedom and safety, so it shall not be permitted, and in particular, the right to dispute, which means the collective use of labor force or collective action of the employer, and thus, it shall not be protected by the employer's right to use or collective action.

F. A member’s workplace occupation is justifiable only in cases of partial or co-existenceal occupation that does not exclude the occupation of the employer, but does not interfere with the operation thereof. Thus, if the Defendants were to have been employed by more than 660 members, if they interfered with the performance of their duties by interfering with the force of force by leaving the employees who were on duty by using more than 660 members and occupying the subway office, it cannot be deemed justifiable

G. In a case where the Defendants did not go through the vote for and against union members, which is required by Article 12 of the Labor Dispute Adjustment Act, as well as through the procedure required by Article 12 of the same Act, the Defendants did not go through the vote for and against union members, and in addition, during the cooling period stipulated in Article 14 of the same Act, the Defendants’ act of opening the opening of each subway station in Seoul Special Metropolitan City and soliciting passengers free to board through guidance broadcasting, thereby causing damages equivalent to KRW 1,620,682,940 of the fare to the subway Corporation, the above act is not reasonable among the general criteria for legitimacy of the right to dispute under Article 12 of the same Act, and is not justifiable as it constitutes abuse of the right to dispute.

H. In order for partnership activities to be legitimate, it shall be subject to reasonable rules or restrictions based on the right to manage the facilities of the employer for partnership activities in the workplace, except as otherwise provided in the rules of employment or collective agreement, practices, and consent of the employer. Although union activities are conducted outside the workplace, the duty of good faith under the labor contract of the workers (it shall be considered to the interests of the employer) should be fulfilled even if they are performed outside the workplace. Thus, it is also necessary to perform the duty of good faith under the labor contract of the workers. However, if the association activities conducted outside the workplace during the working hours together with the union departments, such activities as a 200-year-scopic painting, hallways, offices, walls, etc. attached to the office of the subway construction in cooperation with the union departments during the working hours, it is within the scope of the right to use the association activities, which is outside the scope of legitimacy.

A. Article 4, Article 30 subparag. 3, Article 30 subparag. 1 and 2(f) of the Trade Union Act. (h) Articles 32, 2, 3, 12, 13, 14, and 16(b) of the Trade Union Act. Articles 33(1) and 37(2)(d) of the Trade Union Act. Article 2 of the Trade Union Act, Article 314(f) of the Criminal Act. Article 314(h) of the Criminal Act. Article 4 of the Labor Standards Act, Article 356(h) of the Criminal Act, Article 319 of the Criminal Act

Defendant 1 and six others

Defendants by Prosecutor

Attorney Choi Byung-mo

Seoul Criminal Court Decision 89No5044 delivered on December 7, 1989

All appeals by the Defendants and the Prosecutor are dismissed.

The ninety-six days of detention days before the final appeal shall be included in the penalty of the original judgment against Defendant 1.

1. As to each of the grounds of appeal by the defense counsel and Defendant 1

(1) Since Articles 47 and 31 of the Trade Dispute Mediation Act (the next anniversary of the Trade Dispute Mediation Act) infringe on the essential contents of the right to dispute as a collective action guaranteed by Article 33(1) of the Constitution, and thus, it is unconstitutional that cannot be relieved by Article 37 of the Constitution, the judgment of the court below that applied the above provisions to the Defendants is a violation of the law that affected the conclusion of the judgment.

Therefore, Article 47 of the Public Health Unit and Trade Union Act is a penal provision for a person who violates Article 31 of the same Act, and eventually, the theory of lawsuit is a violation of Article 31 of the same Act, and Article 31 of the Trade Union and Trade Union Act, which leads to the commencement of arbitration under Article 30 of the same Act, provides that an industrial action cannot be conducted for 15 days if it is submitted to arbitration. Thus, it is a provision that an industrial action cannot be conducted for 15 days if it is submitted to arbitration. Thus, it is divided into two cases under Article 30 subparagraph 3 of the same Act and Article 1.2 of the same Act.

(A) Article 30 subparag. 3 of the Trade Union and Labor Relations Act means the case of the so-called compulsory arbitration in which the decision to refer to arbitration is made regardless of the intention of the labor-management support of the pertinent company, and the case of the so-called compulsory arbitration, which is the case of the so-called compulsory arbitration where the public works are not indispensable for the daily life of the public, or where the suspension or discontinuance of such services is considerably in danger of the national economy, and it is clear that Article 4 subparag. 1 through 5 of the Trade Union and Labor Relations Act is clearly stipulated in Article 4 of the same Act, and it is apparent that the business chain belonging to

However, in full view of the provisions of the former part of Article 10(1) of the Constitution and Article 34(1) and (2), the former part of Article 35(1), Articles 37(1) and (2), 119(2), and 23(2) of the same Act and the purport of the enactment thereof, it can be seen that Korea and the nation have the duty of both the nation and the people to maintain, improve, and respect the welfare life of the people, as well as the duty of both the nation and the people to do so, and it also indicates that it is a basis for an individual’s welfare life. Under the economic life system of Korea, the persons concerned with public services directly affecting the daily life of the people can only operate the business through the loss of the relevant employer and the workers concerned, it cannot be said that the employer’s industrial action and lock-out are not an inherent limitation (if at the time, the necessity of restricting the public welfare) without permission.

However, Article 37 (2) of the Constitution provides that "All rights of the people shall be restricted by law only if necessary for public welfare." This is also a case where the fundamental contents of the rights are restricted by law." Thus, the inherent restriction above should be legislated under the positive law (applicable to Article 31, Article 3, and Article 17 (1) of the Trade Union and Labor Relations Act). (b) other necessary measures should be the minimum necessary measures, and (b) other provisions do not violate the same Constitution only if it does not infringe on the essential contents of the rights (collective action rights) established under the Constitution. Thus, the above (i) and (b) are examined, and the so-called three fundamental rights, which are established under Article 33 (1) of the Constitution, cannot be viewed as being the most fundamental rights under the Civil Act to ensure the substantial equality between employers and workers through the establishment of collective labor relations.

The reason is that under our economic order based on the respect for the economic freedom and creative initiative of individuals and enterprises as clear by the provisions of Article 119(1) of the Constitution, the determination of unilateral labor conditions that do not lead to the negotiation between labor and management is not superior to that of employers, and therefore, it is not an essential element for the improvement of working conditions to exclude the heat of workers who are not capable of being opened compared to employers and to recognize collective bargaining rights as a legal means for securing the equalness with the employer. Therefore, for this reason, when there is the right to organize as a means of collective formation and the negotiation is omitted, it is necessary to say that there is a right to collective action as a right to resolve it.

Therefore, if a worker's right to collective bargaining is properly secured, the right to collective action as a right to guarantee it is limited to the minimum extent that it is necessary to do so, and if it seems that there is a considerable target measure in light of social norms, it cannot be viewed as infringing on the essential contents of the above right.

However, since the nature of the dispute above is related to the inherent limitation of the right to arbitration, in light of Articles 30 subparag. 3 and 31 of the Trade Union and Labor Relations Act, the right to dispute between labor and management is restricted for a short period of 15 days in light of Articles 3, 15, and 17 of the same Act, if a cause corresponding to the same provision occurs, the right to dispute between labor and management is restricted for a short period of 15 days, but thereafter labor and management negotiations between labor and management are prohibited in accordance with Articles 32 through 39 of the same Act. If the arbitration committee, which has an independent and professional administrative committee, can make an arbitration award by taking charge of arbitration cases from a neutral point of view and make it final and conclusive, it has the same effect as a collective agreement (Article 39(2) of the Trade Union and Labor Relations Act). Thus, the right to dispute is a means to create collective bargaining, which is ultimately difficult to say that it does not restrict the right to dispute under Article 30(1)3 of the Constitution.

(B) Regarding the unconstitutionality of Article 30 subparag. 1 and 2 and Article 30 subparag. 1 and Article 31 of the following Trade Union Act, even in the case of Article 30 subparag. 1 and 2 of the same Act, the exercise of the right to dispute is prohibited under the provisions of Article 31 of the same Act. However, in each of such cases, whether the prohibition of the exercise of the right to dispute infringes on the essential contents of the right under Article 37 subparag. 2 of the so-called Constitution or not, the right holder of the pertinent right (collective workers) can not easily avoid the prohibition provision under the positive law (Article 31 of the Trade Union and Labor Relations Act) regardless of its minimum nature, nature, and the subject of the social concept, and therefore, it is determined that the legislative discretion cannot be seen as infringing on the legislative discretion of Article 30 subparag. 1 and No. 2 of the Trade Union and Labor Relations Act and the limitation of the right to dispute cannot be seen as an abuse of the right to dispute with the legislative discretion of Article 130 subparag.

(C) In addition, Article 47 of the Trade Dispute Mediation Act is merely a penal provision on a violation of Article 31 of the same Act, and it does not constitute a violation of the Constitution.

The legal theory criticizes that the subject of arbitration of the Arbitration Commission is limited to so-called profit dispute and that so-called right dispute, such as this case, is included in this case. However, the "claim between the parties to labor relations" as referred to in the definition of labor dispute under Article 2 of the Trade Dispute Mediation Act includes not only the assertion concerning the labor relationship and any one of the collective labor relations, but also the assertion for the formation of a new agreement with regard to the labor dispute as well as the assertion for the claim for the rights (rights dispute) under a collective agreement or a labor contract. Therefore, the judgment of the court below, which pointed out in this regard, shall be justified, and there is no illegality such as the theory of lawsuit.

No theory is merely an independent opinion that a member does not employ.

(2) The exercise of the right to collective action by workers, one of the workers, is not punishable by the illegality of the Criminal Act only when it is legitimate (Article 2 of the Trade Union Act).

In addition, the legitimacy of industrial action should be first conducted by a person who is entitled to be the subject of collective bargaining, second, to create autonomous negotiations between labor and management, and third, it should be commenced when an employer refuses to conduct collective bargaining or refuses such demand in the place of collective bargaining with respect to the improvement of the working conditions of workers, and unless there are special circumstances, it should be conducted in principle through prior report (Article 16 of the Trade Union and Labor Relations Act). Fourth, the method of exercising the right to dispute should be to completely or partially suspend the provision of labor as well as to comply with the principle of fairness. It should be reasonable in accordance with the principle of good faith in the labor-management relationship, and the use of violence goes against the basic principles of law and order, such as physical freedom and safety, and thus, it should not be permitted to suspend or engage in trade in the labor dispute, which means that the employer's right to use labor or to collectively suspend trade in the collective collective bargaining with the aspect of the labor dispute, and thus, it should not be deemed that it means that the employer's right to use labor or to prevent the collective action.

Based on the above legal principles as to the worker's right to dispute, the defendants' act of occupying the office of the court below at the time of the original judgment at issue and the act of misappropriation is health;

(A) According to the judgment of the court below, the defendants conspired to occupy the subway Corporation's office in collusion with other association executives at the time and time, and occupied the office by using 660 members to find out the employees who had been on duty while working, thereby hindering the performance of duties by the chief of the general affairs department and 109 members, and this fact-finding is acceptable and there is no violation of law such as the theory of lawsuit.

However, the above workplace occupation should be viewed as justifiable only when it is clear in light of the purport of the right of dispute as seen above, and thus, the judgment of the court below convicts the other points without considering any further question, is correct and wrong.

(B) According to the decision of the court below, the defendants suffered damages equivalent to 1,620,682,940 won from the Corporation by opening the opening of each subway station within the subway station and soliciting passengers free to board through an information broadcast during the period of explanation according to the resolution of the extension of free board operation adopted at the date of explanation. This act did not go through the pro-con voting of union members, which is required in accordance with Article 12 of the Labor Dispute Mediation Act, as well as during the cooling period as stipulated in Article 14 of the same Act. The fact-finding of the court below is also pride, and there is no error of law as it did not err in the conclusion of the judgment below, and that the defendants' act was without legitimacy. Fourth, the general criteria for the legitimacy of the right of dispute as seen above, and it constitutes abuse of the right of dispute, and thus, there is no illegality in the decision of the court below that the above act constitutes an abuse of the right of dispute.

(3) Article 2 of the Trade Union Act provides that when a worker has organized or joined a trade union, he/she has the right to dispute as a collective action and has the right to act as a union. The legitimate purpose of Article 1 is to achieve....... the union's collective bargaining and other acts......" It is clear by the fact that it is confirmed that he/she should be granted criminal immunity, and that it is not specifically limited to legitimate acts as a dispute-oriented act, and that it is necessary to guarantee the right to dispute and the actions of a participatory body other than collective bargaining (including activities, such as posting or distributing, completeing, meeting, belt, speech, etc.) within a certain limit.

However, such right of association activity also becomes justified within the scope of legitimacy along with the right of dispute. The right of association activity should be justified as seen above through various aspects, such as the subject, purpose, and method of exercise, as the right of dispute. However, the general criteria for the legitimacy of the methods of association activity in this case to the extent necessary for the judgment on the violation of the Punishment of Violences, etc. Act among the above cases are met. If a union activity is legitimate, it should be conducted outside the working hours unless there is a separate provision in the rules of employment or collective agreement, practice, and consent of the employer, and it should be in accordance with reasonable rules or restrictions based on the right of management of the user in the union activity in the workplace, and even if the union activity was conducted outside the working hours outside the workplace, it should be carried out even after the fact-finding order of the worker's good faith under the labor contract (the employer's interest should be considered) reaches 00,000 office space, 30,500 office space and 40,000 office space.

2. As to the Prosecutor’s Grounds of Appeal:

It is proper that the court below found the defendant 2 not guilty on the part of the facts charged without proof of the facts charged, and there is no error of incomplete deliberation or misconception of facts due to the violation of the rules of evidence.

3. Without merit, each appeal shall be dismissed, and part of the number of days of detention pending trial of Defendant 1 shall be included in the original sentence of the original judgment. It is so decided as per Disposition by the assent of all participating judges.

Justices Kim Yong-ju (Presiding Justice)