[Defendant] Defendant 1 and 1 other
[Appellant] The Defendants
[Judgment Below] Busan District Court Decision 90No257, dated August 2, 1991
[Order]
The appeal by Defendant 1 is dismissed.
The judgment below as to Defendant 2 is reversed, and the case is remanded to the Busan District Court Panel Division.
[Reasoning]
1. We examine the grounds of appeal as to the Defendants' violation of the National Security Act (국가보안법).
The expressive materials prescribed in Article 7(5) of the former National Security Act (before amendment by Act No. 4373 of May 31, 1991), which applies to this case, require that the expressive material itself express the quality of benefiting the enemy (이적성). Examining the record, each of the booklets and leaflets set forth in the judgment below all concern communist economic theory, revolutionary theory and strategy/tactics, or the standpoint of class struggle theory, or contain content sympathizing with North Korea's strategy and tactics for revolution against the South, and are thus active and aggressive expressive materials that threaten the safety of the Republic of Korea and the free democratic system. Accordingly, the court below's determination that each of these booklets and leaflets constitutes expressive material benefiting the enemy is acceptable, and the fact that such booklets were, as argued, being sold in bookstores in the market does not mean they are not expressive materials benefiting the enemy.
Considering the various pieces of evidence in the first-instance judgment cited by the court below together, it is amply recognized that the Defendants acquired and possessed the above expressive materials with awareness of their enemy-benefiting nature and of the enemy-benefiting act.
Therefore, the argument to the effect that the judgment below misapprehended the legal principles under Article 7(5) and (1) of the National Security Act or erred in its fact-finding is without merit.
2. We examine the grounds of appeal as to the Defendants' violation of the Act on Assembly and Demonstration (집회및시위에관한법률) and Defendant 2's obstruction of business.
Examining the reasoning of the judgment below against the record, the court below's findings of the fact of violation of the Act on Assembly and Demonstration as to Defendant 1 and the fact of obstruction of business as to Defendant 2 are acceptable, and it cannot be said that there is an illegality in finding guilt based solely on a confession, or an illegality in violating the rules of evidence, as argued. Furthermore, the argument that the Act on Assembly and Demonstration is invalid or should be abolished cannot be accepted as it is merely an idiosyncratic view. Each of these arguments is without merit.
3. We examine the grounds of appeal as to Defendant 1's obstruction of business.
In the crime of obstruction of business by deceptive means, "deceptive means" refers to causing the other party to have a misunderstanding, mistake, or lack of awareness in order to achieve the actor's purpose, and using this; if the other party, as a result, takes an erroneous action or disposition, the crime of obstruction of business by deceptive means is established.
In this case, according to the record, it is recognized that when Korea Trading Co., Ltd. (고려상사주식회사) recruited factory workers, it received documents such as a resume stating academic background and work experience, a copy of the resident registration, a school record, and a written pledge, and administered a test to applicants consisting of objective questions at the level of second or third grade of middle school and a subjective question asking "What do you think of labor-management disputes?" This was not merely to evaluate the applicants' labor capacity, but to obtain data to determine whether the applicant was suitable to be hired as an employee of the said company, taking into account the applicant's intelligence, experience, level of education, honesty, and adaptability to the workplace, for the purpose of building trust between labor and management and maintaining order within the enterprise. Furthermore, the Defendant wished to find employment at a labor site in order to engage in labor movement activities, but knowing that he could not easily be hired because of his academic background of having been admitted to the Department of Political Science at Seoul National University and his prior conviction for violation of the National Security Act, he, as stated in the judged criminal facts, prepared a resume under the name of non-indicted ○○○ falsely stating academic background and work experience, and prepared and submitted documents such as the high school record of the said ○○○ as specified in the judgment, and passed the test. It is thus clear that the Defendant obstructed the business of hiring a suitable employee for the said company by deceptive means.
The argument is to the effect that there is no concrete evidence that business was obstructed; however, the above offense is a danger offense (위험범) for which it suffices that a state of risk of obstructing business arises, and furthermore, as noted above, the business of hiring employees for the said company was in fact obstructed by the Defendant's conduct. Therefore, the court below's application of the crime of obstruction of business by deceptive means to the Defendant was proper, and the argument is without merit.
4. We examine the grounds of appeal as to Defendant 1's violation of the Trade Union Act (노동조합법) and Defendant 2's violation of the Labor Dispute Mediation Act (노동쟁의조정법).
Article 12-2 of the Trade Union Act prohibits a third party from intervening for the purpose of manipulating, instigating, obstructing, or otherwise influencing the parties concerned with respect to the establishment and dissolution of a trade union, joining or withdrawing from a trade union, and collective bargaining with the employer, and Article 13-2 of the Labor Dispute Mediation Act likewise prohibits such intervention with respect to a labor dispute act. The purpose of each of these provisions is to prevent a third party, who is not a party to the labor-management relationship, from inducing, expanding, radicalizing, suppressing, or halting collective bargaining or a labor dispute act between the employer and employees, thereby impeding the autonomous resolution of the matter between the parties. As a requirement thereof, the act of instigation or other intervention prohibited by each of the said provisions refers to objective and concrete involvement to the extent of impeding the autonomous decision-making of the parties to the labor-management relationship (see this Court's Decisions 90Do1751, delivered on September 13, 1991, and 91Do614, delivered on October 25, 1991, among others).
The court below, based on the evidence adopted in the first-instance judgment, found as follows: with respect to the criminal facts stated in Paragraph 1-ja, Items (1) and (2) concerning Defendant 1, the court found that the Defendant, as a third party, did not merely make a simple suggestion for the conclusion of a collective agreement, but, as stated in the judgment, prepared the first and second issues of "The Advancing Elephant" (전진하는 코끼리), which contained content instigating workers, including the Defendant's suggestions concerning conduct guidelines at the time of concluding a collective agreement and a wage increase struggle, copied 100 copies of each issue, and had them distributed at the said Korea Trading Co., Ltd.; this was found to constitute a third-party intervention act that would directly influence the decision-making of workers seeking to conclude collective bargaining. Also, with respect to the criminal facts stated in Paragraph 2-ma concerning Defendant 2, the court found that the Defendant, at a company where a labor dispute had arisen, continuously chanted slogans such as "Korea Leather (고려피혁) must immediately withdraw the lockout and immediately accept the demands of the trade union," thereby engaging in a third-party intervention act that would influence the labor dispute act of the parties concerned who were workers. The court below upheld the first-instance judgment, which applied the provisions on third-party intervention under each of the above statutes to these acts. This is properly acceptable in light of the legal principles set forth above, and there is no illegality of misapprehension of legal principles as argued.
However, the court below also upheld the first-instance judgment with respect to the criminal facts stated in Paragraph 2-ba concerning Defendant 2, finding that it was recognized that the Defendant attended an event site where workers of another company were engaging in a labor dispute act, and that he, together with them, chanted slogans and encouraged the labor dispute act, and thus applied the provision on third-party intervention to this act.
However, neither according to the evidence adopted in the first-instance judgment as cited by the court below, nor according to the facts charged themselves, is it recognized that the Defendant attended the event site and, together with the workers, chanted slogans and encouraged the labor dispute act, as found by the court below.
Rather, according to the record, it is recognized only that the Defendant, at around 16:40 on August 7, 1989, as stated in the facts charged, visited Taepyeongyang Valve Co., Ltd. (주식회사 태평양밸브) together with seven members of the editorial department of the labor union of Manho Steel (만호제강), where he worked, in order to cover the matter for the workers' news section of the union bulletin; entered the trade union office of the said company; asked two union members (picket guards) about the progress of the strike; made a greeting to the effect that "at our company, we lost to the management, but at your company, I hope the trade union side fights hard and surely wins"; and then returned. Such conduct of the Defendant cannot be regarded as constituting objective and concrete involvement to the extent of impeding the autonomous decision-making of the parties to the labor-management relationship.
Therefore, the court below's upholding of the first-instance judgment, which applied the provision on third-party intervention even to the above criminal facts, ultimately constitutes an illegality arising from incomplete deliberation and violation of the rules of evidence, resulting in erroneous fact-finding or misapprehension of the legal principles on third-party intervention, and the ground of appeal pointing this out is with merit.
Therefore, the judgment below cannot be upheld in this respect, and since this portion of the violation of the Labor Dispute Mediation Act as to Defendant 2 is in a concurrent crime relationship under the first clause of Article 37 of the Criminal Code (형법) with the remainder of the crimes in this case, the judgment below as to Defendant 2 must be reversed in its entirety.
5. Accordingly, the appeal by Defendant 1 is dismissed as without merit, and as to Defendant 2, the judgment below is reversed and the case is remanded to the court below, by the unanimous opinion of the participating Justices, as set forth in the Order.
Justice Kim Ju-han (Presiding Justice), Choi Jae-ho, Yoon Kwan, Kim Yong-jun