[Defendant] A
[Appellants] Defendant and Prosecutor
[Defense Counsel] Attorney Yoon Jong-hyun and 3 others
[Judgment Below] Seoul Criminal District Court Decision 91No2817, dated July 9, 1991
[Order]
The judgment below is reversed, and the case is remanded to the Panel Division of the Seoul Criminal District Court.
[Reasoning]
1. As to the grounds of appeal by defense counsel
A. On the point of obstruction of business
(1) Activities of a labor union, where recognized as legitimate, are exempted from illegality under criminal law pursuant to Article 2 of the Labor Union Act (노동조합법). For labor union activities to be considered legitimate, they must be activities that can be regarded, by their nature, as labor union activities, or as activities that can be deemed to have received implicit authorization or approval from the labor union; they must be necessary for maintaining and improving working conditions and for enhancing the economic status of workers, and must contribute to strengthening the solidarity of workers. Except where there is a separate permissive provision in the rules of employment or the collective agreement, or where there is a practice or the employer's consent, such activities must be conducted outside working hours. Union activities conducted within the workplace must comply with reasonable regulations or restrictions based on the employer's facility management rights, and must not involve methods such as violence or destructive acts.
According to the reasoning of the judgment below, the Defendant, in protest against the transfer of union member D, a dietary and meal-service worker at C Hospital, to a cleaning position in the General Affairs Department on September 4, 1990, together with union officials and members, demanded that the hospital reinstate D to his original position, but was refused. In the course of this, on the pretext that union member E had been assaulted by security manager F, the Defendant, from the 14th of the same month, entered into a sit-in protest together with union officials and about 80 dietary department union members and others. The Defendant occupied the corridor in front of the General Affairs Manager's office on the 2nd floor of the hospital's administration building and staged an overnight sit-in, moving about the corridor in front of the director's office and deputy director's office and the lobby on the same floor, shouting slogans and singing songs. On the dates specified in the judgment, when personnel section chief G and others attempted, on two occasions, to deliver notices of standby assignment and advance notice of dismissal to the union members engaged in the sit-in, the Defendant obstructed this and seized the notices. During a second rally to report on the progress of the protest held in the lobby on the 2nd floor of the hospital, the Defendant closed the doors leading to the lobby to control access, and on eight occasions obstructed meal-serving work by having about 50 union members shout slogans and sing songs while circling around the serving counter and hurling abuse at the working staff, when dietary worker H and others were serving meals. Further, in the corridor in front of the hospital director's office, the Defendant coerced hospital director I, who had come out to make his rounds, to accept the union's demands including D's reinstatement, and when I fled to the deputy director's office, the Defendant occupied the corridor in front of the deputy director's office and staged a sit-in, preventing I from coming out, thereby obstructing the business of hospital staff including I, J, G, and H by force. Examining the record, this factual finding by the court below is correct, and there is no illegality of misapprehension of facts therein. Given these facts, even if the motive that led the Defendant to such conduct was as pointed out in the grounds of appeal, this cannot be conclusively deemed conduct that does not violate social norms. The Defendant's conduct, having placed the collective force of a crowd at the forefront to actively obstruct the business of hospital staff who were on duty, clearly exceeded the scope of legitimacy of labor union activities as set out above, and thus there is no error in the court below's finding of guilt on this point.
(2) In establishing the crime of obstruction of business, it is not required that the result of obstruction of business actually occur; it suffices that a risk of such obstructive result has arisen. According to the facts established by the court below, it is clear that the delivery of the notice of advance dismissal and the notice of standby assignment was obstructed by the conduct of the Defendant and others; therefore, whether or not the notices were subsequently delivered does not affect the establishment of the crime of obstruction of business.
(3) Furthermore, even if this act of obstruction of business was based on a decision made by the dietary department union members, it is clear from the record that the Defendant was deeply involved in that decision, and since the Defendant acted together with them, he cannot be relieved of liability as a co-principal. This ground of appeal is without merit.
B. On the point of defamation
Upon examining the evidence set forth in the reasoning of the first instance judgment, which was upheld by the court below, in light of the record, the factual finding of the court below that the Defendant had the purpose of disparaging the victim K can be affirmed, and there is no illegality of misapprehension of facts as argued in the grounds of appeal.
Furthermore, according to the facts established by the court below, the contents of the union newspaper written and distributed by the Defendant were defamatory of the victim's reputation, and there was no substantial ground to believe them to be true; therefore, the Defendant's conduct cannot be deemed legitimate union activity that does not violate social norms. This ground of appeal is also without merit.
2. As to the grounds of appeal by the prosecutor
A. According to the reasoning of the judgment below, the court below held as follows: Article 30 of the Labor Union Act (노동조합법) provides that "an administrative agency may, when deemed necessary, require the submission of the accounting status and other relevant documents of a labor union for investigation." Article 9-2 of the Enforcement Decree of the same Act (같은법시행령) provides that "an investigation under Article 30 of the Act shall be conducted where there has been a petition, complaint, or request concerning the labor union concerned (item 1); where a dispute has arisen between or within the organization of the labor union requiring mediation or guidance (item 2); or where guidance is necessary concerning the accounting status or other operations of the labor union (item 3)." Accordingly, the court below held that an administrative agency's investigation of a labor union's business, or its demand for submission of materials for such investigation, is permissible only where one of the grounds set forth in each item of Article 9-2 of the Enforcement Decree exists. The court below further held that, considering all the evidence submitted by the prosecutor, there was no material whatsoever to establish that, around the period from February 9 to February 25, 1990, when the Mayor of Seoul demanded that the C Hospital labor union submit relevant documents for a business investigation, there existed any ground falling under each item of Article 9-2 of the Enforcement Decree with respect to the union; therefore, even if the Defendant refused such demand, the crime of violation of Article 47 of the same Act would not be established.
B. However, according to Article 30 of the Labor Union Act and Article 9-2 of its Enforcement Decree, an administrative agency may require the submission of the accounting status and other relevant documents of a labor union for investigation not only where there has been a petition concerning the labor union concerned or where a dispute has arisen, but also where guidance is necessary concerning the labor union's accounting, financial status, or other operations. Accordingly, where an administrative agency determines that such need for business guidance exists, it may demand the submission of relevant documents and conduct an investigation. Moreover, even if it does not, in fact, fall under a case where guidance concerning the labor union's accounting, financial status, or other operations is necessary, so long as the administrative agency has made such determination and decided to conduct an investigation, the labor union is obligated to comply therewith (see Supreme Court Decision 91Do897, decided July 12, 1991). Therefore, inasmuch as the Mayor of Seoul demanded that the C Hospital labor union submit materials for the business investigation at issue in this case, that demand must be deemed to have satisfied the aforementioned requirements.
Nevertheless, the court below determined, for the reasons stated in its judgment, that the crime of violation of the Labor Union Act was not established against the Defendant. This determination is ultimately erroneous in that it misapprehended the legal principles concerning Article 30 of the Labor Union Act and the items of Article 9-2 of its Enforcement Decree, and such error affected the outcome of the judgment.
3. Accordingly, the Defendant's appeal against the guilty portion of the judgment below is without merit, but the prosecutor's appeal against the acquittal on the point of violation of the Labor Union Act is meritorious. Since the crime of violation of the Labor Union Act is in a concurrent crime relationship under the first clause of Article 37 of the Criminal Code (형법) with the portion found guilty by the court below, the entire judgment below is reversed and the case is remanded to the court below, the opinions of the Justices concerned being unanimous, as set forth in the Order.
Justice Kim Sang-won (Presiding Justice), Park Woo-dong, Yoon Young-cheol, Park Man-ho