[Defendant]
[Appellant] Prosecutor
[Court Below] Incheon District Court Decision 92No882, decided December 3, 1992
[Order]
The part of the judgment below concerning the violation of the Act on the Punishment of Violent Acts, etc. (폭력행위등처벌에관한법률) is reversed, and this part of the case is remanded to the Incheon District Court Panel Division.
The prosecutor's appeal concerning the violation of the Labor Union Act (노동조합법) is dismissed.
[Reasoning]
The grounds of appeal are examined.
1. Concerning the violation of the Labor Union Act
(1) The court below acquitted the defendant of the facts charged, the gist of which is that the defendant, one of the dismissed employees of Daewoo Motor Co., Ltd., distributed on the dates indicated in the judgment approximately 300 copies of a leaflet entitled "Let Us Crush Selective Rehiring and Achieve Reinstatement" and approximately 300 copies of a leaflet entitled "A Letter to Fellow Delegates Ahead of the Provisional Delegates' Assembly for the 1991 Labor Struggle," thereby engaging in third-party intervention that would influence the decision-making of workers seeking to conclude a collective agreement. The court below acquitted the defendant for the following reasons:
In light of the purport of Article 12-2 of the Labor Union Act (노동조합법), the nature of a labor union as an autonomous organization, and the character of collective bargaining between labor and management, it is reasonable to conclude that a dismissed worker who does not fall under the category of "third party" whose intervention is prohibited under the above provision includes not only one who disputes the effect of dismissal through legal remedies such as an action for confirmation of invalidity of dismissal or an application for remedy against unfair labor practices, but also one who disputes the effect of dismissal through individual or collective consultation with the employer by means other than such legal proceedings. According to the evidence, the defendant joined the above company as a production worker around November 1987, and on December 22, 1987, was sentenced by the Incheon District Court to one year and six months' imprisonment for fabricating and submitting a résumé under another person's name and using it at the above company, and was dismissed the following day pursuant to the above company's employment rules; thereafter, on June 24, 1988, the defendant filed a lawsuit against the above company with the Incheon District Court seeking confirmation of invalidity of dismissal, but withdrew it around December 1988, and since then, together with other dismissed workers, requested the company to consult on the issue of reinstatement of the dismissed workers, and it is found that the defendant has continuously disputed the effect of the dismissal through consultation with the company. Even though the defendant, who had thus continued to dispute the effect of the dismissal, distributed leaflets urging that the issue of their reinstatement be included in matters of the collective agreement, this merely constitutes the defendant, as a direct party in interest regarding reinstatement, asserting his demands to the employer and the union in the course of resolving his own problem within the labor-management relationship concerned, and cannot be recognized as third-party intervention; moreover, it is difficult to find that the defendant had any awareness of intervening as a third party in another's labor-management relationship.
(2)
As for a dismissed worker,
a person who does not fall under the category of "third party" whose intervention is prohibited under Article 12-2 of the Labor Union Act (노동조합법) is limited to "one who, within a reasonable period, asserts that the dismissal constitutes an unfair labor practice or is invalid, and files an application for remedy against unfair labor practices with the Labor Relations Commission or a lawsuit for confirmation of invalidity of dismissal with a court, thereby disputing the effect thereof" (see this Court's en banc Decision 89Do1579, decided November 27, 1990; Decision 91Do1342, decided February 11, 1992, etc.). Accordingly, it cannot be interpreted that a dismissed worker who disputes the effect of dismissal through individual or collective consultation by means other than legal proceedings is thereby excluded from the category of "third party" referred to in the above provision. The judgment below, which held otherwise, is erroneous in this respect.
However, considering comprehensively the contents of the distributed leaflets, the content and degree of the defendant's involvement in activities related to the reinstatement of dismissed workers, the method and timing of such activities, and the relationship between the defendant and the union, as revealed through the record, the defendant's act of distributing the above leaflets, viewed as a whole, appears to be an act of the defendant, as a direct party in interest regarding reinstatement, demanding that the employer and the union accept his demands in the course of resolving his own problem; although in part it appears to have somewhat exceeded that scope, the judgment below's determination that this should not be regarded as third-party intervention and that it is difficult to find that the defendant had an awareness of intervening as a third party can be upheld, and the above error in the judgment below's reasoning has no effect on the outcome of this case. This ground of appeal is without merit.
2. Concerning the violation of the Act on the Punishment of Violent Acts, etc.
(1) The gist of the facts charged in this part is as follows: "On April 8, 1991, when the union's chief vice-chairperson, Non-Indicted 1, and others at the above company's union office had an arrest warrant executed against them by the police, and the union members of the above company, in protest thereof, seized control of the security booths at each entrance of the above company, blocked the entry of management staff, confronted the police, and engaged in stone-throwing demonstrations, among other acts, thereby occupying the company; at around 00:15 on the 11th of the same month, the defendant, together with six unidentified persons, rode in two production vehicles, divided among themselves, and entered the Pool Team office of the Assembly Division of the above company, thereby trespassing on the above company's building." The court below acquitted the defendant on this charge for the following reasons:
That is, although the defendant confessed to the facts charged in the court of first instance, in the court below the defendant retracted this confession by denying the fact of trespass, stating that "the defendant attempted to enter the Pool Team office, which the union leadership was using as a provisional union office, at the time and date indicated in the judgment, but did not enter because he encountered union officials coming out of the union office." Considering the process by which the defendant consistently denied the fact of the above building trespass during the investigation stage, then admitted the facts charged in the court of first instance, and then retracted the confession again in the court below, the court below found that the confession made by the defendant in the court of first instance was made in order to avoid a disadvantage in sentencing, and thus lacked credibility; and found further that the other evidence submitted by the prosecutor either did not constitute direct evidence or lacked credibility.
(2) However, the above determination of the court below is difficult to accept.
In determining the credibility of a confession, one must consider whether the content of the confession statement itself is objectively reasonable, what the motive or reason for the confession was, the circumstances under which the confession came to be made, and whether there is any contradiction or inconsistency between the confession and other circumstantial evidence, and on this basis determine whether there exist grounds under Article 309 of the Criminal Procedure Act (형사소송법) regarding the defendant's confession, or circumstances giving rise to reasonable doubt as to the motive and process of the confession (see this Court's Decision 92Do873, decided June 12, 1992; Decision 88Do179, decided April 12, 1988, etc.).
Upon examination of the record, it appears that the defendant denied the above facts charged before the prosecution, but confessed to the above facts charged during the prosecutor's examination at the fifth trial date of the court of first instance (this being the first examination concerning this part of the charges), and immediately thereafter, in the cross-examination by defense counsel, confirmed the content of the above confession by stating "I did visit the above Pool Team office and greeted people there and then left," whereupon the proceedings of the first instance court proceeded by way of summary trial procedure and a guilty verdict was rendered; however, in the appellate brief submitted to the court below, the defendant asserted that the confession in the first instance was made to avoid a disadvantage in sentencing. Meanwhile, it is found that Non-Indicted ○○○ stated before the prosecution and in the court below that he clearly saw the defendant enter the above office, thereby giving a statement consistent with the defendant's confession. There is no assertion that grounds under Article 309 of the Criminal Procedure Act (형사소송법) existed with respect to the defendant's confession, and it is difficult to find in the record any grounds to cast doubt on the credibility of the confession, such as that the content of the defendant's confession lacked reasonableness or that there were circumstances in the motive or process of making the confession giving rise to reasonable doubt. Rather, the truthfulness of the confession is supported by the statement of the above ○○○; nevertheless, the court below rejected the defendant's confession made in open court—which, together with the statement of the above ○○○, constitutes material evidence—for the reasons set forth in its judgment alone. This cannot escape criticism for failing to provide adequate reasoning or for violating the rules of evidence.
(3) Meanwhile, the court below additionally held, based on the evidence cited, that at the above company, outside visitors, union visitors, and others, when entering the company, were ordinarily required to fill out visitor forms at the security booth at the main gate and were issued entry badges, which visitors wore while moving about the company premises, and that the defendant and other dismissed workers of the above company likewise, in order to reduce unnecessary friction with the company, received entry badges issued by the company and entered the company premises under the pretext of consultation on reinstatement or union activities; accordingly, the court below held that even though the above factory was occupied by workers at the time, the defendant's entry into the above office must be regarded as having had the company's prior consent or presumed consent, or that there was, at the very least, a justifiable reason for the defendant to believe that such consent existed.
However, even assuming that the above company had permitted the entry of dismissed workers in the manner set forth by the court below, this should reasonably be understood as limited to entry within the scope necessary in connection with consultation on reinstatement, etc., in cases where the company's business was being conducted normally. According to the record, the above office was, at the time, being occupied without authorization by union officials and used as a provisional union office, and moreover, the point in time at which the defendant entered the above office appears to have been a time when the company was occupied by the above company's union members and the company's business was not being conducted normally. If that is so, then, absent special circumstances, the defendant's act of entry as described above must rather be regarded as contrary to the intention, or presumed intention, of the company as the manager of the premises, and it is also difficult to find that there was a justifiable reason for the defendant to believe that such consent existed. Accordingly, the above additional determination of the court below also cannot escape criticism for erring in the legal principles concerning consent and presumed consent in the crime of building trespass.
Therefore, this ground of appeal is well-founded.
3. Accordingly, since the prosecutor's appeal concerning the violation of the Labor Union Act (노동조합법) is without merit, the prosecutor's appeal on this part is dismissed; and since the appeal concerning the violation of the Act on the Punishment of Violent Acts, etc. (폭력행위등처벌에관한법률) is well-founded, the prosecutor's appeal on this part is accepted, and the part of the judgment below concerning the violation of the Act on the Punishment of Violent Acts, etc. is reversed and this part of the case is remanded to the court below. It is so decided by the unanimous opinion of the Justices involved, as set forth in the Order.
Justice Kim Ju-han (Presiding Justice), Bae Man-woon, Kim Seok-su, Jeong Gwi-ho (Justice in charge)