[Defendant] Defendant 1 and 7 others
[Appellant] Defendant 1 and the Prosecutor
[Defense Counsel] Attorney Kim Seong-su and 1 other of Jipyong Jisung LLC
[Lower Court Judgment] Seoul Southern District Court Decision 2008No1686, dated August 12, 2009
[Order]
All appeals are dismissed.
[Reasoning]
1. Regarding the Prosecutor's grounds of appeal concerning the crime of obstruction of business
A. The crime of obstruction of business is established when a person obstructs another's business by deceptive scheme or force (Article 314(1) of the Criminal Act (형법)), and "force" refers to any power capable of suppressing or confusing a person's free will. A strike as an industrial action (Article 2, Item 6 of the Trade Union and Labor Relations Adjustment Act (노동조합 및 노동관계조정법)) is not merely an omission consisting of refusal to provide labor under a labor contract, but rather an exercise of force in which workers collectively suspend the provision of labor in order to exert pressure on the employer and achieve their demands, and thus it contains an element corresponding to "force" as referred to in the crime of obstruction of business. However, since workers, in principle, have the fundamental rights guaranteed under the Constitution to autonomous rights to organize, to collective bargaining, and to collective action for the improvement of working conditions (Article 33(1) of the Constitution), a strike as an industrial action should not always be deemed to constitute the crime of obstruction of business. Rather, it is appropriate to hold that the collective refusal to provide labor constitutes "force," thereby establishing the crime of obstruction of business, only where, in light of the surrounding circumstances and background, the strike is carried out abruptly at a time the employer could not have anticipated, thereby causing severe disruption or enormous damage to the employer's business operations such that it may be evaluated as having suppressed or confused the employer's free will regarding the continuation of its business (see Supreme Court en banc Decision 2007Do482, decided March 17, 2011).
B. According to the reasoning of the lower court judgment, the following facts may be recognized: the previous wage system of Non-Indicted Company 1 Life Insurance Co., Ltd. consisted of basic salary, bonus, and allowances, with productivity incentives additionally paid; the basic salary and productivity incentives were changed annually by labor-management agreement, while the bonus was changed upon renewal of the collective agreement; the performance-based pay system proposed by the Company was to change the existing wage structure into a single wage system in which all existing wages would become the subject of performance-based pay, which differed from the union's position advocating a performance-based pay system based fundamentally on a fixed wage system centered on basic salary; on September 14, 2005, labor and management agreed to renew the collective agreement, which included provisions that a performance-based pay system would be introduced in 2006, with the specific details to be implemented after agreement between labor and management, and that the introduction of the performance-based pay system would be negotiated as to specific procedures and methods by a Task Force Team (TFT) composed of equal numbers from labor and management, following which the union notified the Company of its list of participants for the TFT; thereafter, the union demanded that matters related to the collective agreement, such as wage increases, be resolved first, separately from the performance-based pay system, but the Company demanded that discussions on the performance-based pay system proceed first; on December 12, 2006, labor and management agreed that "the introduction of the performance-based pay system shall reconfirm the matters agreed upon in September 2005, and shall be implemented after agreement between labor and management in accordance with the procedures; labor and management shall introduce a performance-based pay system acceptable to both sides; the 2007 wage increase shall be paid simultaneously with the introduction of the performance-based pay system, and to this end, the performance-based pay system shall be completed first before discussion," and with respect to wages, agreed that "the 2006 wage increase shall be an 8% increase in basic salary. The productivity incentive shall be paid at 2,000,000 won per person"; the union proposed a collective bargaining renewal plan including "a 70% increase in the regular bonus, payment of work allowances, introduction of a welfare system, and revision of the provision on the scope of union membership in the collective agreement," but the Company rejected this, and on April 23, 2007, the union filed an application for mediation of a labor dispute with the National Labor Relations Commission; in the mediation procedure before the National Labor Relations Commission, the union asserted the conclusion of a renewed collective agreement including wage increases, while the Company asserted that implementation of the performance-based pay system should take priority, and ultimately the mediation procedure ended on May 14, 2007 without any mediation proposal being presented; from then until around November 14, 2007, labor and management negotiated more than ten times regarding the introduction of the performance-based pay system; not only the Company but also the union proposed a roadmap plan to the Company for the introduction of the performance-based pay system; in March 2007, the union selected Non-Indicted 2 Labor Consulting Firm as the consulting firm for the introduction of the performance-based pay system and notified the Company thereof, but the Company demanded that the firm be changed, whereupon the union selected Non-Indicted 3 Labor Consulting Firm as a new consulting firm and notified the Company, but the Company again refused and demanded that the union select the previous Non-Indicted 2 Labor Consulting Firm; when the negotiations for renewal of the collective agreement with the Company failed to conclude, the union conducted a strike ballot among union members for a general strike on November 20, 2007, and obtained 95.5% approval; although the main issues of the strike ballot concerned renewal of the collective agreement and the productivity incentive, the union stated in its message urging members to vote that "the Company is refusing to renew the collective agreement, saying it cannot give even one penny without the introduction of the performance-based pay system"; after the ballot for the general strike passed, the union, on November 22, 2007, initially withheld the strike and instead decided to and did conduct industrial action by means of work-to-rule tactics or picketing; while the industrial action was ongoing, the Company presented a revised proposal for the performance-based pay system to the union on December 21, 2007, and the union demanded revision of the proposal; however, under these circumstances, the Company unilaterally announced the introduction of the performance-based pay system on January 17, 2008, and paid the first wages under the performance-based pay system on January 21, 2008; in response, the union went on strike on January 23, 2008, opposing the Company's implementation of the performance-based pay system.
In light of the above facts, the union's strike of January 23, 2008 was carried out in opposition to the Company's unilateral implementation of a performance-based pay system that negated the collective agreement proposal, during the course of industrial action for renewal of the collective agreement. Considering the differences in positions between labor and management and the process of discussions regarding the collective agreement and the introduction of the performance-based pay system, it is difficult to conclude that the purpose of this strike was disconnected from and unrelated to the purpose of the November 22, 2007 industrial action—namely, renewal of the collective agreement—which the union ultimately sought to achieve. Moreover, the Company could reasonably have anticipated that the union would go on strike if it unilaterally implemented the performance-based pay system during the course of the union's industrial action for renewal of the collective agreement. In light of these circumstances and the legal principles set forth above, it is difficult to view the strike led by the Defendants in this case as having been carried out abruptly at a time the employer could not have anticipated, and thus it is difficult to find that it constitutes "force" under Article 314(1) of the Criminal Act.
The lower court found that, although the Defendants' conduct in this respect satisfies the elements of the crime of obstruction of business, its illegality is negated, and accordingly rendered a not-guilty verdict. Although the lower court erred in finding that the Defendants' conduct in this respect satisfies the elements of the crime of obstruction of business, the lower court's disposition of finding the Defendants not guilty of this portion of the charge is ultimately justified, and thus there is no error in the lower court's determination that affected the outcome of the judgment. The Prosecutor's argument on this point is without merit.
2. Regarding the Prosecutor's appeal concerning the violation of the Trade Union and Labor Relations Adjustment Act
A. Regarding the violation of the Trade Union and Labor Relations Adjustment Act arising from the branch managers' joining the union
Article 92, Item 1, Subitem (bah) of the former Trade Union and Labor Relations Adjustment Act (before amendment by Act No. 9930 of January 1, 2010; hereinafter the same) provides for the punishment of a person who violates matters relating to industrial action within a collective agreement. In such a punitive provision, the violations defined by law must not be arbitrarily interpreted by analogy or expanded interpretation.
However, considering that Chapter 7, which stipulates matters relating to industrial action within the collective agreement, only provides for requirements for industrial action, prohibition of unfair labor practices during the period of industrial action, use of company facilities, non-participants in industrial action, obligations to prevent emergency disasters, and the duty of peace, but contains no provision whatsoever regarding whether branch managers are eligible to be union members; and that, whereas the above provision on punishment for violations of matters relating to industrial action within the collective agreement was intended to establish rules of conduct that a union must observe in connection with the implementation of industrial action and to subject violations of such matters to criminal punishment in order to secure compliance therewith, matters concerning eligibility for union membership restrict the right to organize itself by limiting who may become a union member, independent of the implementation of specific industrial action; taking these points together, matters concerning eligibility for union membership should not be deemed to fall under "matters relating to industrial action" as provided for in the above provision.
The lower court, proceeding on this premise, determined that the fact that the branch managers joined the union and participated in the strike does not constitute a violation of matters relating to industrial action within the collective agreement under Article 92, Item 1, Subitem (bah) of the former Trade Union and Labor Relations Adjustment Act, and accordingly rendered a not-guilty verdict as to the Defendants. In light of the legal principles set forth above, the lower court's determination in this respect is justified and acceptable, and there is no error therein, such as a violation of the rules of evidence or a misunderstanding of the law as argued in the grounds of appeal, that affected the outcome of the judgment. The Prosecutor's argument on this point is without merit.
B. Regarding the violation of the Trade Union and Labor Relations Adjustment Act by Defendant 1, Defendant 2, and Defendant 3 arising from procedural violations of the strike
Where workers, due to disagreement between the parties to the labor relationship over working conditions, have commenced a legitimate industrial action after going through the pre-mediation procedure and the strike ballot procedure, and a new dispute matter closely related to the original dispute matter is subsequently added, it cannot be said that the workers are obligated to go through a separate mediation procedure and strike ballot procedure for industrial action with respect to the newly added matter.
The lower court, proceeding on this premise, determined that it is difficult to conclude that the purpose of the union's strike of January 23, 2008 was ultimately disconnected from and unrelated to the purpose of the November 22, 2007 industrial action—namely, renewal of the collective agreement—which the union ultimately sought to achieve, and therefore the union was not required to go through a new mediation procedure or strike ballot for that strike. Accordingly, the lower court held that the failure to conduct a separate union member vote and mediation procedure with respect to that strike does not fall under Articles 91, 41(1), and the main text of 45(2) of the former Trade Union and Labor Relations Adjustment Act, and rendered a not-guilty verdict as to this portion of the charges against the above Defendants.
Upon examination of the record, the lower court's determination in this respect is justified and acceptable, and there is no error of misunderstanding the law as argued in the grounds of appeal. The Prosecutor's argument on this point is without merit.
C. Regarding the violation of the Trade Union and Labor Relations Adjustment Act by Defendant 1, Defendant 2, and Defendant 3 arising from the participation in the strike by agreed workers
The lower court found that Article 90, Item 2 of the collective agreement provides that "the union recognizes that one union member per regional customer service center shall engage in the Company's work during industrial action," and that, even according to the evidence submitted by the Prosecutor, it is insufficient to establish that the "regional customer service center" referred to in Article 90, Item 2 of the collective agreement has the meaning stated in the charges, namely, the customer service center of a sales division, and accordingly rendered a not-guilty verdict as to this portion of the charges against the above Defendants. Upon examination of the record, the lower court's determination in this respect is justified and acceptable, and there is no error of misunderstanding the law as argued in the grounds of appeal. The Prosecutor's argument on this point is without merit.
D. Regarding the alleged deficiency of reasoning
The first instance judgment, in setting forth its reasons for the not-guilty verdict, explained in detail the merits of the Prosecutor's legal arguments regarding the charges, the degree of proof, and the credibility of the evidence, and the lower court affirmed this while additionally addressing the credibility of the newly submitted evidence. It cannot be said that this lower court judgment is deficient in its reasoning. The Prosecutor's argument on this point is also without merit.
3. Regarding Defendant 1's grounds of appeal
The lower court, based on the evidence, found that Defendant 1, as chairman of the labor union of Non-Indicted Company 1 Life Insurance Co., Ltd., conspired with Non-Indicted 4, the chairman of the Emergency Countermeasures Committee for the Finance and Financial Services Sector, to prepare a "press conference demanding resolution of the ○○ Incident" on the road in front of Beomhyesa Temple near the entrance road to the Blue House on April 7, 2008, with approximately 120 union members present, without reporting the outdoor assembly, and that Defendant 1 participated in the assembly, shouted slogans, and delivered a speech on behalf of union members, and accordingly found Defendant 1 guilty of this portion of the charges. Upon examination of the record, the lower court's determination in this respect is justified and acceptable, and there is no error of misunderstanding the law or violation of the rules of evidence as argued in the grounds of appeal. Defendant 1's argument on this point is without merit.
4. Conclusion
Therefore, all appeals are dismissed, and this judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Presiding Justice Park Byung-dae
Justice Kim Neung-hwan
Justice Ahn Dae-hee (Reporting Justice)
Justice Lee In-bok