[Defendant]
[Appellant] Public Prosecutor
[Defense Counsel] Attorney Kim Hyung-gi
[Lower Court Decision] Seoul Criminal District Court Decision 88No6269, rendered November 7, 1990
[Order]
The appeal against the part of the lower court's judgment concerning the violation of the Labor Dispute Adjustment Act (노동쟁의조정법) is dismissed, and the part concerning dereliction of duty 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 regarding the violation of the Labor Dispute Adjustment Act
The lower court determined as follows:
Article 33, Paragraph 2 of the Constitution (헌법) provides that "public officials who are workers shall have the right to organize, the right to collective bargaining, and the right to collective action only to the extent provided by law," thereby recognizing the right to collective action for public officials as provided by law.
Article 66, Paragraph 1 of the State Public Officials Act (국가공무원법) provides that "a public official shall not engage in labor movements or other collective acts for purposes other than official duties: Provided, That this shall not apply to public officials who are actually engaged in manual labor," thereby permitting the labor movement activities restricted above for public officials who are actually engaged in manual labor.
The category of "public officials who are actually engaged in manual labor" includes "technical public officials engaged in manual labor at operational agencies affiliated with the Railroad Administration" as set forth in Article 28 of the Public Officials' Service Regulations (공무원복무규정). Since the defendants were, at the time of this case, all public officials affiliated with the Railroad Administration performing the duties of train engineers, they fall under the category of "technical public officials actually engaged in manual labor," and therefore are not public officials who are barred from being the subject of a labor dispute act under Article 12, Paragraph 2 of the Labor Dispute Adjustment Act.
The lower court's determination in this regard is correct, and there is no error of law in misapprehending the legal principles as argued by the appellant. This ground of appeal is without merit.
2. As to the grounds of appeal regarding the point of dereliction of duty
According to the reasoning of the lower court's judgment, the lower court, with respect to the charge of dereliction of duty against the defendants, held that the defendants' acts in this case constituted a labor dispute act and thus constituted justifiable acts under the Criminal Act (형법), which corresponds to "justifiable cause" under the crime of dereliction of duty, and therefore does not constitute the crime of dereliction of duty; and, finding no other evidence to recognize that the defendants engaged in an unlawful labor dispute act or that they neglected their duties, acquitted the defendants on all charges.
However, a worker's labor dispute act is exempted from illegality under the Criminal Act and is not punishable only when such act is legitimate (Article 2 of the Trade Union Act (노동조합법)). The legitimacy of a labor dispute act can be recognized only when all of the following conditions are satisfied: first, the subject of the act must be one who is capable of being 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 act must be initiated after the employer has refused to engage in collective bargaining regarding specific demands for the improvement of workers' working conditions, and, absent special circumstances, must go through the resolution of approval by union members (Article 12, Paragraph 1 of the Labor Dispute Adjustment Act) and the report of the occurrence of a labor dispute (Article 16, Paragraph 1 of the same Act); and fourth, the means and methods employed must be in harmony with the employer's property rights and must not amount to the exercise of violence (see this Court's Decisions 90Do357, rendered May 15, 1990, and 90Do1431, rendered October 12, 1990).
Accordingly, the lower court's determination—citing the single reason that the defendants' acts in this case constituted a labor dispute act, without examining at all whether such act was legitimate, and directly holding that it constituted a justifiable act under the Criminal Act and, further, "justifiable cause" for the crime of dereliction of duty—constitutes an error of law that misapprehends the legal principles concerning the legitimacy of labor dispute acts and thereby affects the judgment. Furthermore, according to the facts charged in this case, the subject of the labor dispute act in this case was the so-called "Special Collective Bargaining Promotion Committee," which lacked the right to collective bargaining, and the procedures such as the report of the occurrence of a labor dispute set forth above were not followed. Therefore, the lower court's judgment, which, without examining these points, carelessly held that there was no evidence to recognize that the defendants engaged in an unlawful labor dispute act or neglected their duties, also contains an error of law due to insufficient examination resulting in a mistaken finding of fact, which affects the judgment.
3. Therefore, the prosecutor's appeal regarding the point on the violation of the Labor Dispute Adjustment Act is dismissed, but the part of the lower court's judgment concerning the point of dereliction of duty is reversed, and the case is remanded to the court below for further examination and determination. The opinions of the Justices involved being unanimous, the judgment is rendered as stated in the Order.
Justice Yoon Young-cheol (Presiding Judge), Park Woo-dong, Bae Seok, Kim Sang-won