[Defendant]
[Appellant] Defendants
[Defense Counsel] Attorney Shin Yeong-hun
[Lower Court Judgment] Gwangju District Court Decision 2006No1715, decided January 18, 2007
[Order]
All appeals are dismissed. The word “사” in line 5 of page 3 of the lower court judgment is corrected to read “아.”
[Reasoning]
The grounds of appeal are examined.
1. As to the first ground of appeal by the Defendants
Article 1 of the Trade Union and Labor Relations Adjustment Act (노동조합 및 노동관계조정법, hereinafter “the Trade Union Act”) provides: “The purpose of this Act is to guarantee workers’ rights to organize, to collectively bargain, and to act collectively as provided by the Constitution, to promote the maintenance and improvement of working conditions and the enhancement of workers’ economic and social status, to fairly adjust labor relations, and to prevent and resolve labor disputes, thereby contributing to the maintenance of industrial peace and the development of the national economy.”
Article 4 of the Trade Union Act provides: “Article 20 of the Criminal Code shall apply to legitimate acts performed by a trade union through collective bargaining, industrial action, or other conduct, in order to achieve the purpose set forth in Article 1.”
Article 37(1) of the Trade Union Act provides: “Industrial action shall not violate statutes or other social order with respect to its purpose, method, and procedure.”
Accordingly, in order for a worker’s industrial action to constitute a legitimate act under the Criminal Code, the following conditions must all be satisfied: first, the actor must be a party capable of being a subject of 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 has refused collective bargaining over specific demands concerning the improvement of workers’ working conditions, and, absent special circumstances, must go through the procedures prescribed by statute, such as a resolution of approval by union members; and fourth, the means and methods employed must be compatible 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.).
Furthermore, where a branch or chapter, as a subordinate organization of a trade union, possesses its own rules and executive bodies and operates as an independent organizational entity, it may independently engage in collective bargaining and conclude collective agreements with respect to matters peculiar to that organization or its members, and this is not affected by whether such branch or chapter has filed an establishment report pursuant to Article 7 of the Enforcement Decree of the Trade Union Act (see Supreme Court Decision 2000Do4299, decided February 23, 2001, etc.).
Having comprehensively considered the evidence it adopted, the lower court found the facts as set out in its judgment, and determined that the strike carried out from May 11, 2005 onward under the leadership of the Emergency Countermeasures Committee headed by the Defendants excluded the lawful representative of the Jangheung Transportation Branch of the Korean Democratic Bus Workers’ Union and failed to comply with lawful procedures, such as by giving no notice whatsoever to the employer; and that the demands put forward at the time by the Emergency Countermeasures Committee, such as criminal punishment and resignation of the company’s representative and the complete municipalization of intra-county bus operations, could not be regarded as matters that could be autonomously resolved between labor and management. On this basis, the lower court concluded that the Defendants’ strike action could not be found to satisfy the requirements for a legitimate act. Upon examination in light of the above legal principles and the record, the lower court’s fact-finding and determination are deemed justified and are accepted, and there is no error affecting the judgment such as a misapprehension of facts due to a violation of the rules of evidence, or a misapprehension of the legal principles concerning legitimate acts, as alleged in the grounds of appeal. The arguments in the grounds of appeal on this point cannot be accepted.
2. As to the second through fifth grounds of appeal by Defendants 1, 2, 4, 5, 6, 7, and 18
Having comprehensively considered the evidence it adopted, the lower court found the facts as set out in its judgment, and, in light of all the circumstances including the time, place, background, and context, as well as the meaning and content of the statements made by the said Defendants, determined that each of the acts of the said Defendants as set out in the judgment constituted the crime of intimidation. Upon examination of the record, the lower court’s measures are deemed justified and are accepted, and there is no error such as a misapprehension of facts due to a violation of the rules of evidence, or a misapprehension of the legal principles concerning the crime of intimidation. The arguments in the grounds of appeal on this point likewise cannot be accepted.
3. Accordingly, all appeals are dismissed; and since it is evident that there is a clerical error in the lower court judgment, the Court, acting on its own authority, corrects this error. The judgment is rendered as set forth in the Order, by the unanimous opinion of the Justices participating in the decision.
Justice Park Si-hwan (Presiding Justice), Kim Yong-dam, Park Il-hwan, Kim Neung-hwan (Justice in charge)