[Defendant] Defendant 1 and 9 others
[Appellant] Defendants
[Defense Counsel] Kim Nam-jun and 4 others, Attorneys, Law Firm Citizen General Law Office (법무법인 시민종합법률사무소)
[Judgment Below] Suwon District Court Decision 2002No1897 rendered on October 2, 2002
[Order]
The judgment below is reversed, and the case is remanded to the Panel Division of the Suwon District Court, main office.
[Reasoning]
The grounds of appeal are examined.
1. As to the argument concerning obstruction of business
A. For a worker's collective action to constitute a justifiable act under the Criminal Act (형법), all of the following conditions must be satisfied: first, the subject must be one who can be a party to collective bargaining; second, the purpose must be to foster autonomous bargaining between labor and management for the improvement of working conditions; third, the action must be commenced when the employer refuses collective bargaining over specific demands regarding improvement of working conditions, and, absent special circumstances, must go through the procedures prescribed by law, such as a resolution of approval by union members; and fourth, the means and methods must be in harmony with the employer's property rights and must not amount to the exercise of violence (see Supreme Court Decision 97Do588 rendered on January 20, 1998; Supreme Court en banc Decision 99Do4837 rendered on October 25, 2001, etc.). Whether to implement corporate restructuring, such as layoffs for managerial reasons, consolidation of business organizations, or privatization of public enterprises, is a matter belonging to the high-level managerial decisions of the management entity and, in principle, cannot be a subject of collective bargaining. Absent special circumstances such as the restructuring being pursued with improper intent without urgent managerial necessity or reasonable grounds, if a labor union engages in collective action substantially to oppose the implementation of such restructuring itself, then even if the implementation inevitably entails changes in workers' status or working conditions, the legitimacy of the purpose of such collective action cannot be recognized (see Supreme Court Decision 99Do5380 rendered on February 26, 2002). Where the purposes pursued in a collective action are multiple and some of them are improper, the propriety of the purpose of the collective action must be determined based on the propriety of the main or genuine purpose, and where it is found that the collective action would not have been undertaken if the improper demands had been excluded, the entire collective action must be deemed to lack legitimacy (see Supreme Court Decision 2000Do2871 rendered on June 26, 2001; Supreme Court Decision 2002Do5881 rendered on February 28, 2003, etc.).
The court below found, based on the evidence it adopted, that the Defendants, having repeatedly asserted the withdrawal of the Government's policy on privatization of the cogeneration power plant since the policy was announced, and, when the Government's privatization policy was pursued firmly regardless, then made demands difficult for the Corporation to accept, thereby engaging in the strike at issue in this case for the substantial purpose of opposing the pursuit of privatization, and accordingly determined that the strike at issue, whose main purpose was opposition to privatization, lacked a legitimate purpose. In light of the record and the legal principles set forth above, the factual findings and determination of the court below are justifiable and acceptable, and there is no error of misapprehension of facts or misapprehension of the legal principles concerning the legitimacy of collective action as alleged in the grounds of appeal.
B. Although a worker who has entered into an employment contract with an employer and who, of his own accord, breaches the contract by failing to provide labor, would be liable for damages for nonperformance of the employment contract, this alone would not constitute the crime of obstruction of business. However, where a large number of workers, acting in concert with mutual communication of intent, collectively leave the workplace or are absent from work, thereby refusing to provide labor and impeding the employer's normal operation of business such as production and sales, thereby causing damage, such conduct constitutes obstruction of another's business by force of numbers (다중의 위력) and thus constitutes the crime of obstruction of business, unless such conduct is a legitimate collective action under labor relations laws and is thereby exempted from illegality (see Supreme Court Decision 90Do2771 rendered on April 23, 1991; Supreme Court Decision 2004Do689 rendered on May 27, 2004, etc.).
Examining the reasoning of the judgment below in light of the above legal principles and the record, the court below's determination that the Defendants' refusal to work through collective sit-ins as a means of collective action having an illegitimate purpose, as in the strike at issue in this case, constitutes obstruction of business by force is justifiable, and there is no error of misapprehension of the legal principles concerning the elements of the crime of obstruction of business as alleged in the grounds of appeal.
2. As to the argument concerning violation of the Integrated Energy Business Act (집단에너지사업법)
Examining the relevant evidence in light of the record, it is recognized that the strike at issue in this case caused disruption to the supply of integrated energy from the cogeneration power plant at issue in this case, and, as noted above, since the purpose of the strike at issue lacked legitimacy and its illegality is not thereby excused, the court below's determination finding the Defendants guilty of the charge of violation of the Integrated Energy Business Act in this case, on that basis, is justifiable, and there is no error of misapprehension of legal principles, etc., as alleged in the grounds of appeal.
3. As to the argument concerning punishable illegality
As noted above, insofar as the Defendants participated in a strike lacking a legitimate purpose and, as a means of collective action, refused to work through collective sit-ins or failed to return to work, thereby causing obstruction of business by force and disruption of the supply of integrated energy from the cogeneration power plant at issue in this case, it cannot be said that there is no punishable illegality merely because the Defendants participated in the strike in accordance with the results of the vote of approval or disapproval of collective action by all union members and the directions of the executive body of the head labor union. Accordingly, the Defendants' grounds of appeal, taking a different position, are not accepted.
4. As to the argument concerning violation of the Trade Union and Labor Relations Adjustment Act (노동조합 및 노동관계조정법, hereinafter "the Trade Union Act")
A. Determination of the court below
The court below determined that whether a specific facility within a place of business constitutes a "safety protection facility" under Article 42(2) of the Trade Union Act (hereinafter "the Trade Union Act") must be determined, considering all circumstances of the place of business concerned, specifically and comprehensively, according to whether a risk to human life or body would arise. The court below determined that the electrical facilities such as the generators, the steam facilities such as the boiler, the water facilities such as the fire-fighting water supply facility, the plant air compressor, the instrument air supply facility, etc. of the cogeneration power plant at issue in this case, if their operation were suspended, discontinued, or obstructed by collective action, could cause considerable harm to human life or body, and thus determined that these constitute "safety protection facilities" under Article 42(2) of the Trade Union Act, and accordingly found the Defendants guilty of the charge of violation of the Trade Union Act in this case.
B. Determination of the Supreme Court
However, the above determination of the court below is difficult to accept for the following reasons.
Article 42(2) of the Trade Union Act provides that "acts of suspending, discontinuing, or obstructing the normal maintenance and operation of safety protection facilities of a place of business shall not be conducted as collective action." Here, "safety protection facilities" refers to facilities necessary to prevent danger to human life or body or necessary for hygiene, and whether a given facility falls within this category must be determined by comprehensively and specifically considering all circumstances, including the nature of the place of business concerned, the function of the facility concerned, and the danger that could arise if the facility concerned were not normally maintained and operated (see Supreme Court Decision 2002Du7425 rendered on September 30, 2005).
Meanwhile, considering comprehensively that the legislative purpose of Article 42(2) of the Trade Union Act is the "protection of the safety of human life and body" and that Article 42(2) of the Trade Union Act constitutes an element of a crime, where an act of suspending, discontinuing, or obstructing the maintenance and operation of a safety protection facility has occurred in form, but no danger whatsoever to human life or body has arisen as a result thereof, the crime of violation of Article 91(1) and Article 42(2) of the Trade Union Act is not established.
According to the record, the evidence corresponding to the point that the electrical facilities such as the generators, the steam facilities such as the boiler, the water facilities such as the fire-fighting water supply facility, the plant air compressor, the instrument air supply facility, etc. of the cogeneration power plant at issue in this case, as specified in the facts charged in this case by the prosecutor, are safety protection facilities under Article 42(2) of the Trade Union Act, consists of: the inquiry materials sent by the Corporation to the Ministry of Labor, the letters urging self-restraint from strikes sent by the heads of the Gumi and Ansan Regional Labor Offices, and the respective statements of Non-Indicted 1, a manager of the Corporation's Head Office Personnel and Labor Affairs Team, and Non-Indicted 2, the head of the Corporation's Western Regional Headquarters. However, these pieces of evidence alone make it difficult to confirm for what reason the above facilities of the cogeneration power plant are facilities for preventing danger to human life or body, or specifically what kind of danger such facilities pose. Even according to the above evidence, there arises the question of whether the fire or explosion risk of the boiler and generator pointed out is not rather a risk applicable to the situation where only the operation of each individual device is suspended while the power plant is otherwise operating (the facilities of the cogeneration power plant at issue in this case were in a state of complete shutdown of operation, either for inspection and repair or after prior notice of the shutdown had been given to the receiving companies). As to the fire-fighting water supply facility among the facilities of the cogeneration power plant at issue in this case, while there is room to view this facility itself as a safety protection facility, the collective action at issue in this case took place at a time when the operation of the power plant had been completely suspended, including the shutdown of all boilers, and thus there arises the question of whether it can be said that the Defendants obstructed the normal maintenance and operation of the fire-fighting water supply facility so as to cause danger to human life or body. Furthermore, the Banwol and Gumi cogeneration power plants at issue in this case have suspended the operation of the power plant facilities every year during the Chuseok holiday period for inspection and repair of the power plant facilities, and even in 2001, before the collective action at issue in this case occurred, the Corporation notified the steam-receiving companies that steam supply would be suspended during the Chuseok holiday period, and the steam-receiving companies prepared accordingly for the suspension of steam supply. In the case of the Gumi cogeneration power plant, on September 29, 2001, the day immediately before the Chuseok holiday period, the Corporation reversed its previous decision and decided to normally operate one of the four boilers of the power plant, and notified only Sahan Co., Ltd., the company with the largest steam demand, of this fact by telephone; however, since Sahan Co., Ltd. did not receive formal written notice of this fact until September 30, 2001, it had been operating its own backup power facility as a precaution, and upon receiving a call around 07:30 on September 30, 2001, again informing it that steam supply from the Gumi cogeneration power plant would be suspended and instructing it to operate its own boiler, Sahan Co., Ltd. connected to receive steam supply from its own boiler and thus did not suffer any particular damage. The receiving companies that received steam from the Banwol and Gumi cogeneration power plants only complained of property damage, such as disruptions to production due to failure to receive steam as scheduled, and made no statement whatsoever concerning any damage to human life or body. Considering all of the foregoing comprehensively, it is difficult to conclude that the above facilities of the cogeneration power plant specified in the facts charged by the prosecutor constitute safety protection facilities under Article 42(2) of the Trade Union Act, or that the Defendants, by obstructing the maintenance and operation of the above facilities through collective action, caused danger to human life or body.
Therefore, the court below should have more closely examined, before determining whether the crime of violation of Article 91(1) and Article 42(2) of the Trade Union Act is established with respect to the facts charged in this case: on what basis the above facilities of the cogeneration power plant specified in the facts charged are facilities for preventing danger to human life or body, and specifically what kind of danger such facilities pose; whether necessary safety measures were taken in suspending the operation of the above facilities of the cogeneration power plant; what danger to human life or body arose from the suspension of operation of the above facilities of the cogeneration power plant; and whether there was any fact that the receiving companies receiving steam from the above cogeneration power plant suffered damage to human life or body due to failure to receive steam at the scheduled time. However, without mentioning, as noted above, for what reason the above facilities of the cogeneration power plant constitute safety protection facilities, the court below rejected the Defendants' arguments and found the Defendants guilty of this part of the criminal facts. Accordingly, the judgment below is erroneous in that it violates the rules of evidence or contains a misapprehension of facts due to insufficient deliberation, or contains a misapprehension of the legal principles concerning the concept of "safety protection facilities" prescribed in Article 42(2) of the Trade Union Act.
Accordingly, the part of the judgment below concerning the crime of violation of the Trade Union Act against the Defendants is unlawful and must be reversed. Since the reversed part is in a relationship of concurrent imagination (상상적 경합) with the remainder of the judgment found guilty by the court below, it must be deemed to have affected the outcome of the judgment as a whole, and accordingly, the judgment below is reversed in its entirety.
5. Conclusion
Therefore, the judgment below is reversed, and the case is remanded to the court below for further examination and determination, the opinions of the Justices concerned being unanimous, and the judgment is rendered as stated in the Order.
Justice Yang Seung-tae (Presiding Justice), Kang Shin-uk (Justice in Charge), Ko Hyun-cheol, Kim Ji-hyung