[Defendant]
[Appellant] Defendants
[Defense Counsel] Attorney Kwon Du-seop and 3 others
[Judgment Below] Seoul Central District Court Judgment 2006No2688, decided November 30, 2006
[Order]
All appeals are dismissed.
[Reasoning]
The grounds of appeal are examined.
1. It is clear from the record that the Defendants appealed against the first-instance guilty judgment solely on the ground of unfair sentencing (量刑不當). Therefore, misapprehension of facts due to violation of the rules of evidence, etc., cannot be raised as a ground of appeal against the judgment below, which upheld the first-instance judgment as is.
2. Furthermore, upon examination:
In order for a worker's industrial action to constitute a legitimate act (正當行爲) under the Criminal Act (형법), the following conditions must all 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 only after the employer has refused collective bargaining regarding specific demands for improvement of working conditions, and, absent special circumstances, must go through procedures prescribed by statute, such as approval by a vote of 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, decided January 20, 1998; Supreme Court en banc Decision 99Do4837, decided October 25, 2001, etc.).
Whether to implement corporate restructuring, such as layoffs for managerial reasons, consolidation or abolition of business organizations, or privatization of public enterprises, is a matter belonging to the high-level managerial decision of the management entity, and, in principle, cannot be a subject of collective bargaining. Absent special circumstances—such as where such restructuring is pursued for an improper purpose without urgent managerial necessity or reasonable grounds—if a trade union engages in industrial action substantially to oppose the implementation itself, then even if changes in workers' status or working conditions inevitably accompany such implementation, the industrial action cannot be recognized as having a legitimate purpose (see Supreme Court Decision 99Do5380, decided February 26, 2002).
Where the purposes pursued in an industrial action are multiple and some of them are illegitimate, the legitimacy of the purpose of the industrial action must be determined based on the propriety of the primary or genuine purpose, and where it is found that the industrial action would not have been carried out if the unjust demands had been excluded, the entire industrial action must be deemed to lack legitimacy (see Supreme Court Decision 2000Do2871, decided June 26, 2001; Supreme Court Decision 2002Do5881, decided February 28, 2003, etc.). According to the record, the members of the Korean Railway Workers' Union, including the Defendants, aimed at withdrawal of the Korea Railroad Corporation's plan to outsource new business operations. Therefore, absent special circumstances, the purpose of the Defendants' conduct was not legitimate, and their conduct cannot be deemed to constitute a legitimate industrial action.
The judgment below, which reached the same conclusion, is justified, and there is no illegality therein, such as violation of the rules of evidence or misapprehension of legal principles, as alleged in the grounds of appeal.
3. Meanwhile, in a joint principal offense (共同正犯) where two or more persons jointly participate in and commit a crime, the conspiracy or agreement need not necessarily be made directly and explicitly; it may also be formed sequentially or implicitly through mutual understanding. In any case, however, there must be a combination of intentions to jointly participate in and realize the crime together. Where a defendant denies both the point of conspiracy and criminal intent, such subjective elements can only be proven, by the nature of the matter, through proof of indirect facts or circumstantial facts that are substantially related to the criminal intent. In such cases, what constitutes an indirect fact with substantial relevance must be determined by reasonably assessing the connection of facts based on normal empirical rules and through meticulous observation and analysis (see Supreme Court Decision 2002Do6103, decided January 24, 2003; Supreme Court Decision 2005Do8645, decided February 23, 2006, etc.). Examining the record in light of the above legal principles and the evidence adopted in the first-instance judgment, which the judgment below upheld, the lower court's determination recognizing Defendant 2's intent to jointly participate in the joint destruction of property as stated in the judgment is justified and acceptable, and there is no illegality therein, such as misapprehension of facts due to violation of the rules of evidence or misapprehension of legal principles, as alleged in the grounds of appeal.
4. Furthermore, upon examination of the record, although the joint destruction of property as stated in the judgment was committed in the course of, and as part of the disturbance involved in, the obstruction of business as stated in the judgment, the two offenses not only involve different victims, but the obstruction of business as stated in the judgment was committed, in addition to the joint destruction of property as stated in the judgment, through the exercise of force by collectively occupying the office of the business division head of the Korea Railroad Corporation for an extended period of time and chanting slogans, etc.—thus differing in the mode of conduct. Accordingly, the two offenses are in a relationship of substantive concurrence (實體的 競合犯). The judgment below, which reached the same conclusion, is justified, and there is no illegality therein, such as misapprehension of legal principles concerning the number of crimes.
5. Therefore, all appeals are dismissed, and this judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Justice Park Si-hwan (Presiding Justice), Kim Yong-dam, Park Il-hwan, Kim Neung-hwan (Presiding Judge for Report)