[Defendant] A
[Appellant] Prosecutor
[Judgment Below] Busan District Court Decision 90No1791, delivered on December 12, 1990
[Order]
The part of the judgment below finding the Defendant not guilty of obstruction of business and, with respect to the trespass upon a building on February 7, 1990, violation of the Punishment of Violences, etc. Act (폭력행위등처벌에관한법률) is reversed, and the case is remanded to the Panel Division of the Busan District Court.
The remainder of the Prosecutor's appeal is dismissed.
[Reasoning]
1. As to the first ground of appeal.
"Force" as referred to in the crime of obstruction of business under Article 314 of the Criminal Act (형법) means a force capable of suppressing or disturbing a person's freedom of will. Since labor dispute action is, by its nature, an act by which workers unite to exert pressure on the employer, it inherently contains the element of obstruction of business by force. However, since the right to collective action of workers, together with the right to organize and the right to collective bargaining, is a right guaranteed by the Constitution (헌법), even where a labor dispute action falling within the right to collective action formally satisfies the elements of the offense of obstruction of business, if it is a reasonable means for asserting the maintenance or improvement of working conditions or other legitimate interests of workers, it shall be regarded as a legitimate act and its illegality shall be denied.
In its reasoning, the court below found the following facts: at Company B's labor union, of which the Defendant was chairman, a dispute arose with the company over the rate of the year-end bonus; on December 14, 1989, the union held an extraordinary general meeting and, with 97 votes in favor out of 114 members present, resolved to demand payment of a 200% year-end bonus and, if the company refused, to file a report of the occurrence of a labor dispute; on December 16 of the same month, the union filed a report of the occurrence of a labor dispute with the Gyeongsangnam-do Regional Labor Relations Commission; and from December 18 of the same month, as alleged in the indictment, the Defendant delayed the commencement of work, refused overtime work and had workers leave for the day, and had workers collectively leave work early, thereby causing work to be interrupted. Having found these facts, the court below determined that the mere fact that the Defendant and other workers collectively failed to engage in work during working hours, thereby causing disruption to the company's operations, leaves only the issue of nonperformance of the duty to supply labor under the employment contract owed by the workers to the company, and that this alone cannot constitute the crime of obstruction of business; and since there is no room to find that the Defendant, while leading the said law-abiding struggle, used force against other workers or prevented them from participating in work, the Defendant's aforesaid conduct does not constitute the crime of obstruction of business.
However, while it is true that workers' collective failure to engage in work during working hours amounts to no more than nonperformance of the duty to provide labor, absent any other element of illegality, even a mere refusal to provide labor, if it is not a legitimate act of dispute and reaches the point of obstructing the normal operation of business by force, can constitute the crime of obstruction of business under the Criminal Act (see this Court's Decision 90Do2771, delivered on April 23, 1991). The refusal, interruption, and delay of work led by the Defendant in this case (hereinafter referred to as "the work refusal conduct") obstructed the normal operation of the company's business, such as production and sales, and caused damage. Furthermore, the record clearly shows that the aforementioned members' vote for and against the proposal concerned only the decision to file a report of the occurrence of a dispute, and was not specifically intended to commence a dispute action. Meanwhile, the "law-abiding struggle" referred to by the court below is a form of struggle whereby a group of workers or a labor union, in the name of complying with legal provisions and exercising rights as provided therein in order to achieve their demands, uses means such as arriving at work on time, leaving work on time, and refusing overtime work. The Defendant's aforesaid work refusal conduct, however, consisted of acts of failing to observe working hours or acts committed during working hours, and thus cannot be regarded as a law-abiding struggle. Even if this were viewed as a dispute action, there was no lawful resolution as prescribed in Article 12 of the Labor Dispute Mediation Act (노동쟁의조정법), and the procedure violated, among other things, the cooling-off period prescribed in Article 14; moreover, this caused disruption to the normal operation of the Defendant company's business and resulted in damage. Therefore, unless it constitutes a legitimate act under labor-related statutes such that its illegality is denied, the Defendant cannot escape liability for the crime of obstruction of business. Furthermore, a collective refusal to work can itself constitute "force," an element of the crime of obstruction of business, and the crime of obstruction of business is not established only where, as the court below determined, the employer's business is obstructed by having workers refuse to work through the use of force against them. Therefore, the court below should have examined whether the Defendant's work refusal conduct in this case constituted a legitimate act of dispute, and should have held that its illegality is denied and it cannot be punished as obstruction of business only if such legitimacy is recognized. Nevertheless, the court below erred by determining that the aforesaid work refusal conduct was a law-abiding struggle and merely a nonperformance of the duty to supply labor, such that the crime of obstruction of business could not be established, thereby misunderstanding the legal principles regarding the crime of obstruction of business and failing to exhaust its examination, which constitutes an unlawfulness affecting the judgment. Therefore, the argument pointing this out has merit.
2. As to the second ground of appeal.
Article 3 of the Trade Union Act (노동조합법) provides for the definition of a labor union, and lists, as a case not falling within such definition under item 4, "where membership is permitted to persons who are not workers," while providing as a proviso that "a person contesting the validity of a dismissal shall not be construed as a person who is not a worker." The proviso to Article 3, item 4 is a provision concerning the qualifications of persons who may become members of a labor union, enacted for the purpose of protecting the establishment and continued existence of labor unions, and is not a provision concerning the labor relationship between the employer and the worker. Accordingly, in general, the labor relationship terminates upon dismissal, and even a worker who contests the dismissal loses that status. However, in light of the purport of the aforesaid provision of the Trade Union Act, which is to protect the establishment and continued existence of labor unions and to prevent labor union activities from being obstructed by the employer's unfair exercise of personnel authority, the status of a worker or union member must be recognized, within a reasonable period, even for a dismissed worker who contests the validity of the dismissal (see this Court's Decision 89Do1579, delivered on November 27, 1990).
The court below found the following facts: after the Defendant was subjected to disciplinary dismissal by the company on or about January 3, 1990, the Defendant, contesting this, filed an application for remedy for unfair labor practice with the Gyeongsangnam-do Regional Labor Relations Commission and filed an action for confirmation of the invalidity of the dismissal with the Ulsan Branch of the Busan District Court; and, in opposition to the said dismissal measure, from on or about January 5 to March 15 of the same year, on 18 occasions, the Defendant entered the company premises by pushing past the restraint of company security guards and engaged in a "commuting-to-work struggle" at the labor union office. Having found these facts, the court below determined as follows: the proviso to Article 3, item 4 of the Trade Union Act provides that a person contesting the validity of a dismissal shall not be construed as a person who is not a worker; this is to be interpreted as meaning that, where a worker is contesting the validity of the dismissal before the Labor Relations Commission or a court, the worker does not lose, at the very least, the status of union member until the validity of the dismissal is finally determined; therefore, the Defendant's entry into the labor union office within the company in the capacity of a union member is a legitimate act which the company cannot restrain; accordingly, entering the company premises by pushing past the restraint of security guards for the purpose of accessing the labor union office cannot be punished as the crime of trespass upon a building; and thus each of the charges of trespass upon a building in this case constitutes a case where the act does not constitute a crime or where there is no proof of the criminal facts.
The determination of the court below concerning the status as a union member of the Defendant, a dismissed worker, as set out above, is in accordance with the aforesaid legal principle and is therefore justified, and the argument on this point is without merit.
However, the court below, with respect to the trespass upon a building alleged in paragraph 3 of the indictment (although items 16, 17, and 18 in the list of offenses attached to the judgment below were prosecuted as the Defendant's sole offenses, the court below erroneously premised its determination on the assumption that these offenses were jointly committed with non-indicted person C; this appears to be a clear error), found that the Defendant engaged in the "commuting-to-work struggle" at the labor union office within the company on 18 occasions, and, applying the aforesaid legal principle, determined that the Defendant's entry into the labor union office in the capacity of a union member is a legitimate act which the company cannot restrain, and that entering the company premises by pushing past the restraint of security guards for the purpose of entering the labor union office cannot be punished as the crime of trespass upon a building. However, with respect to item 13 among the aforesaid found facts, namely, the Defendant's entry into Company B's premises on February 7, 1990, at approximately 09:20, by pushing past the restraint of security guards (the remaining found facts other than this may be accepted), according to the entries in the security guards' duty log (page 122, Volume 1, Book 3 of the investigation record), which the court below lawfully examined as evidence, it can be found that the Defendant, after entering the company, distributed leaflets in the cafeteria at approximately 12:40 on the same day. In this case, therefore, it cannot be said that the Defendant entered the company premises solely for the purpose of going to the labor union office. Nevertheless, the court below, without rejecting the aforesaid duty log, failed to examine the circumstances as described above and readily found that the Defendant entered the company for the purpose of going to the labor union office, and, on that premise, determined that the crime of trespass upon a building was not established. This constitutes an unlawfulness affecting the judgment, by failing to exhaust the examination or by finding facts in violation of the rules of evidence. Therefore, the argument on this point has merit.
3. Therefore, the measure of the court below in rendering a judgment of not guilty with respect to obstruction of business and, concerning the trespass upon a building on February 7, 1990, violation of the Punishment of Violences, etc. Act, is unlawful, and this part of the judgment below cannot escape reversal, and the argument has merit.
For the foregoing reasons, the part of the judgment below finding the Defendant not guilty, to the extent indicated above, is reversed, and the case is remanded to the court below, and the remainder of the Prosecutor's appeal is dismissed; the opinions of the participating Justices being unanimous, it is so ordered as set forth in the Order.
Justice Park Man-ho (Presiding Justice), Park Woo-dong, Kim Sang-won, Yoon Young-cheol