[Defendant]
[Appellant] Defendant
[Defense Counsel] Attorney Yun Jong-hyeon and 3 others
[Judgment Below]
Seoul Criminal District Court Decision 90No6800 delivered on January 17, 1991
[Order]
The appeal is dismissed.
[Reasoning]
The grounds of appeal by the defendant's defense counsel are examined.
1.
An act of dispute (industrial action) includes not only a worker's passive refusal or suspension of the provision of labor, but also active conduct that impedes the normal operation of business in order to press the worker's demands (see Article 3 of the Labor Dispute Adjustment Act (노동쟁의조정법)). Given the very nature of such acts of dispute, it is inevitable that the employer's normal business operations may be impeded in some cases, and the employer bears a duty to tolerate such impediment. However, where a worker's act of dispute exceeds the limits of legitimacy, the worker cannot be exempted from criminal liability, such as for the offense of obstruction of business. Occupation of the workplace or business premises is one form of such active industrial action. Where the scope of such occupation is limited to only a part of the workplace or business premises and does not exclude the employer's access to or management and control over the premises—that is, where it amounts to no more than a coexisting occupation—it may be regarded as a legitimate act of dispute. However, where, unlike the above, the workplace or business premises are occupied entirely and exclusively so as to block entry by persons other than union members, or to exclude the employer's management and control, thereby causing a suspension or disruption of business, such conduct cannot but be regarded as having already exceeded the limits of legitimacy.
2.
In this case, the method and manner of the defendant's act of dispute, as lawfully established by the first instance judgment which the court below upheld, are as follows. That is, the defendant, in conspiracy and joint action with Non-indicted 1 and other members of the Dispute Countermeasures Committee, as well as approximately 2,000 union members of the company who participated in the sit-in strike at the head office in Seoul, occupied and staged a sit-in protest from around 09:00 to around 18:30 on May 24, 1990, at the head office building of Daehan Educational Insurance Co., Ltd. (hereinafter "the building"), including the first-floor lobby, the second-floor insurance claims department and accounting department sales offices, the corridor in front of the fourth-floor actuarial department, the fifth-floor contract department sales office, the seventh-floor loan department sales office, and the corridor in front of the tenth-floor infirmary, mobilizing approximately 1,500 union members from all over the country who had arrived that day. In the course of this, at the second-floor insurance claims department sales office, Non-indicted 2, vice-chairman of the Busan District Union Council, led approximately 200 union members, carrying picket signs and flags bearing content related to the strike, beating drums, and shouting slogans such as "Strike!" and "Management, step down!" while occupying the sales office and urging non-union members who were working to join the strike. At the corridor in front of the fourth-floor actuarial department office, Non-indicted 3, head of the union's legal affairs department, led approximately 100 union members, beating drums and singing struggle songs, urging non-union members who were working to join the strike. At the fifth-floor contract department office, Non-indicted 3 and Non-indicted 4, chairman of the head office council, among others, led approximately 50 union members, occupying the sales office, and using a handheld microphone to shout slogans such as "Head office, join us!" while singing struggle songs. At the seventh-floor loan department sales office, Non-indicted 3 led approximately 100 union members, occupying the sales office while shouting slogans such as "Win the 1990 wage struggle and win our wives' love!" and "Join the strike!" and simultaneously blowing whistles each had brought. Subsequently, from around 18:30 to around 19:30, all of the above union members were gathered in the first-floor lobby, where, having occupied the first-floor lobby which serves as the entrance to the building, a general assembly was conducted, with drums and gongs being beaten and various slogans and songs being shouted and sung. From that day until May 31, 1990, excluding Sunday, May 27, approximately 1,500 to 2,000 union members were mobilized every day; a regular general assembly of the union members participating that day was held at around 18:00 in the first-floor lobby of the building, and for the remaining time, as designated by the Dispute Countermeasures Committee, banners bearing content such as "Let us solve worries about prices and housing costs through solidarity" and "Until the day of victory, we will not go down even if we die, and die again" were hung, and wall posters such as strike action guidelines and various publicity flyers were posted, at the building's parking lot, the first-floor lobby, the second-floor insurance claims department and accounting department sales offices, the corridor in front of the third-floor executive offices, the fourth-floor actuarial department office, the fifth-floor contract department sales office, the seventh-floor loan department sales office, the tenth-floor infirmary, and the corridor in front of the lounge, among other locations, as set forth in the attached table of dispute status, occupying each protest site with large numbers of people, obstructing the passage of customers and working employees, generating various kinds of noise through the chanting of slogans and singing of songs and the use of amplifiers, electronic organs, drums, gongs, whistles, and folk percussion performances, and displaying the collective power of a large crowd toward employees who did not participate in the strike and were working, jeering at them and shouting slogans urging them to join the strike, occupying sales counters and attempting to enter offices, engaging in physical scuffles and verbal abuse with management staff, repeatedly moving in large numbers, using elevators so as to prevent others from using them, occupying corridors, and blocking entrances by the force of numbers so as to confine [persons inside], among other methods, in the course of the sit-in occupation. The defendant, serving as the general affairs officer of the said Dispute Countermeasures Committee, managed withdrawals of various strike funds, went around each protest site to encourage the union members participating in the sit-in, and procured necessary supplies such as bringing in packed lunches and printing flyers, thereby participating in and contributing to the above, and thereby obstructed various duties, including customer service, clerical work, and inter-departmental communication, of the working employees of the head office of the said Daehan Educational Insurance Co., Ltd.
3.
As set forth above, the act of dispute of the content as established by the court below constitutes not only an entire or exclusive occupation of the workplace or business premises but also involved obstruction of business accompanied by violence, and thus cannot but be regarded as having exceeded the limits of legitimacy of an act of dispute. Accordingly, the court below's disposition in applying Article 314 of the Criminal Code (형법) to convict the defendant of the offense of obstruction of business is justified, and there is no error of law, such as a misapplication of law or a misunderstanding of the legal principles, as argued in the grounds of appeal. All of the arguments are without merit.
4.
Therefore, the appeal is dismissed, and it is so decided as set forth in the Order, by the unanimous opinion of the Justices participating in the decision.
Justice Bae Man-woon (Presiding Justice), Lee Hoi-chang, Lee Jae-seong, Kim Seok-su