[Defendant]
[Appellant] The Defendants and the Prosecutor
[Defense Counsel] Attorney Kang Ji-hyeon and 4 others
[Lower Court Judgment] Seoul Central District Court Decision 2010No2641 dated December 23, 2010
[Order]
The guilty portion of the lower court judgment is reversed, and this portion of the case is remanded to the Panel Division of the Seoul Central District Court. All appeals by the Prosecutor are dismissed.
[Reasoning]
The grounds of appeal (including the defense counsel's supplementary briefs on grounds of appeal and the Prosecutor's opinion briefs, which were submitted after the expiration of the period for submitting grounds of appeal, to the extent they supplement the grounds of appeal) are examined as follows.
1. Judgment on the Defendants' Grounds of Appeal
A. As to Ground of Appeal No. 1
1) The principle of indictment-only-document (공소장일본주의) means that, in principle, when a prosecutor institutes a public prosecution, only the indictment itself must be submitted, and no other document or object that could create prejudice in the court regarding the case may be attached or its content quoted (Article 118(2) of the Rules of Criminal Procedure, 형사소송규칙). The prohibition on "recording other facts," meaning that facts other than those required by statute that could create prejudice in the court may not be listed in the indictment, is also included within the content of this principle. However, whether this principle has been violated must be determined specifically in each case, based on the type and content of the crime stated in the charged facts, taking into account whether the content of documents or objects attached to or quoted in the indictment, or facts stated in the indictment beyond what is required by statute, create prejudice that could impede the judge's or jury's ability to grasp the substance of the criminal facts (see Supreme Court en banc Decision 2009Do7436 dated October 22, 2009, etc.).
The lower court determined that, among the contents of the indictment in this case, the entries concerning criminal records belong to matters that can specify the Defendants, and that the portions quoting the content of entries or evidentiary documents unrelated to the elements of the crime were necessary to specify concrete facts in order to clarify the intent, conspiracy relationship, motive, or circumstances of the crime given the nature of this case, and that these did not reach the extent of creating prejudice in the judge; therefore, the manner of institution of the prosecution did not violate the principle of indictment-only-document.
Examining the reasoning of the lower court judgment in light of the legal principles set forth above and the record, the lower court's determination as above is justified, and there is no illegality therein, as argued in the grounds of appeal, that affected the judgment by misunderstanding the legal principles concerning the principle of indictment-only-document.
2) Where a prosecutor exercises the power of prosecution arbitrarily, causing substantial disadvantage to the defendant, such that the prosecutor is deemed to have significantly deviated from the discretion of prosecution, this may be judged to be an abuse of the power of prosecution, and the effect of the institution of the prosecution may be denied. However, this requires at least some degree of intent, even if only in the sense of dolus eventualis, and mere negligence in the performance of duties is insufficient (see Supreme Court Decision 2011Do9243 dated October 27, 2011, etc.).
Examining the record in light of these legal principles, the lower court's determination, for the reasons stated in its judgment, that the institution of the prosecution in this case cannot be seen as having significantly deviated from the discretion of prosecution, is justified, and there is no illegality therein, as argued in the grounds of appeal, of misunderstanding the legal principles concerning abuse of the power of prosecution.
B. As to Grounds of Appeal Nos. 2, 3, and 4
1) According to Article 2, Subparagraphs 5 and 6 of the Trade Union and Labor Relations Adjustment Act (노동조합 및 노동관계조정법, hereinafter the "Trade Union Act"), a trade union's industrial action refers to acts that impede the normal operation of the employer's business in the course of a labor dispute, undertaken by the trade union in order to achieve its assertions regarding the determination of working conditions.
Meanwhile, whether to implement corporate restructuring, such as layoffs or the consolidation of business organizations, is a matter belonging to the highly managerial decision of the management entity, and in principle cannot be a subject of collective bargaining. Absent special circumstances such as the restructuring being pursued for an improper purpose without urgent managerial necessity or reasonable grounds, if a trade union undertakes industrial action to substantially oppose the implementation itself of such restructuring, then even if the implementation of such restructuring inevitably entails changes in employees' status or working conditions, the legitimacy of purpose of such industrial action cannot be recognized. Furthermore, where industrial action pursues multiple purposes and some of them are illegitimate, the legitimacy of the purpose of the industrial action must be determined based on the primary or genuine purpose; if it is found that the industrial action would not have been undertaken had the illegitimate demand been excluded, the entire industrial action must be deemed to lack legitimacy (see Supreme Court Decision 2010Do11030 dated January 27, 2011, etc.).
Moreover, while a strike as industrial action is an exercise of force whereby workers collectively suspend the provision of labor in order to exert pressure on the employer to achieve their assertions, and thus contains elements that could be regarded as "force" (위력) under the crime of obstruction of business, workers, in principle, have the fundamental rights guaranteed under the Constitution of the right to organize, the right to collective bargaining, and the right to collective action for the improvement of working conditions autonomously; therefore, such a strike does not always satisfy the elements of the crime of obstruction of business. It is appropriate to hold that such a collective refusal to provide labor constitutes "force" and thus constitutes the crime of obstruction of business only where it can be evaluated that the employer's freedom of will concerning the continuation of business could be suppressed or thrown into confusion due to circumstances such as the strike being carried out abruptly in light of the surrounding circumstances and process, thereby creating a risk of causing severe disruption to or enormous damage to the employer's business operations (see Supreme Court en banc Decision 2007Do482 dated March 17, 2011).
Accordingly, the lower court's rejection of the Defendants' argument that a strike as industrial action can never satisfy the elements of the crime of obstruction of business, or that punishing it as obstruction of business is unjust and violates international legal norms concerning the prohibition of forced labor, is justified.
2) As to the portion of the charged facts concerning obstruction of business from May 1, 2009 to June 9, 2009 (hereinafter the "safety operation struggle"):
A) The gist of this portion of the charged facts is that, under the leadership of the Defendants, who were officers of the Korean Railway Workers' Union (Non-indicted) and its subordinate Seoul Regional Headquarters, approximately 100 union members at the Seoul Suchack district, without going through prior procedures such as a union member vote on whether to strike or mediation by the Labor Relations Commission, asserted matters belonging to the managerial rights of the Korea Railroad Corporation, such as "opposition to outsourcing of the cafeteria, withdrawal of personnel reduction," and, in accordance with the struggle guidelines, from May 1, 2009 to June 9, 2009, obstructed normal train operations by methods such as excessively and strictly complying with work-related regulations, causing 56 trains departing from Seoul Station and Yongsan Station to be delayed by 10 to 46 minutes, thereby obstructing the normal passenger transport business, etc. of the Korea Railroad Corporation by force.
B) In this regard, the lower court determined, to the effect that the safety operation struggle, whose primary purpose was opposition to outsourcing of the cafeteria—a matter belonging to the managerial decision of the Korea Railroad Corporation as the management entity and thus not a subject of collective bargaining—could not be viewed as a legitimate industrial action, and that the crime of obstruction of business was established.
Examining the reasoning of the lower court judgment in light of the above legal principles and the record, the lower court's determination, premised on this being industrial action, that the primary purpose of the safety operation struggle was opposition to outsourcing of the cafeteria, a matter that could not be a subject of collective bargaining, and its denial of legitimacy on that basis, is justified, and there is no illegality therein, as argued in the grounds of appeal, of misunderstanding the legal principles concerning the concept of industrial action or the legitimacy of its purpose.
C) However, it is difficult to accept the lower court's determination that the safety operation struggle immediately constitutes the crime of obstruction of business solely on the ground that its legitimacy as industrial action is not recognized, for the following reasons.
According to the reasoning of the lower court judgment and the record, the following facts can be ascertained: around December 2008, the Korean Railway Workers' Union (Non-indicted) and the employer Korea Railroad Corporation agreed to resume collective bargaining for the conclusion of a collective agreement around March 2009, and that the union would not engage in industrial action until then, while also agreeing to consult on matters concerning the employment of cafeteria workers in anticipation of the outsourcing of the cafeteria. However, before the collective bargaining resumed, and immediately before the safety operation struggle, on April 28, 2009, a joint statement was issued in the name of three branches under the Seoul Suchack district of the Korean Railway Workers' Union (Non-indicted) stating that, unless the outsourcing of the cafeteria was halted, they would commence the safety operation struggle, and the safety operation struggle actually proceeded with the involvement of the Korean Railway Workers' Union (Non-indicted); that in substance, the safety operation struggle amounted to no more than the union members of the Korean Railway Workers' Union (Non-indicted) working in the Seoul Suchack district, over a period of 40 days, causing 56 trains departing from Seoul Station and Yongsan Station to be delayed by 10 to 46 minutes, through methods such as complying with speed limits under work regulations and safety rules during train shunting and yard operations; that, moreover, apart from May 1, May 2, and May 4, 2009, near the beginning of the safety operation struggle, there was little train delay, and in fact there was no train delay at all during more than half of the period; and that it does not appear that there were many cases in which the Korea Railroad Corporation refunded fares to passengers or provided delay compensation due to the delays.
Examining these circumstances in light of the legal principles set forth above, it is difficult to say that the safety operation struggle created a risk of causing severe disruption to or enormous damage to the business operations of the Korea Railroad Corporation, and there is ample room to view that this case does not fall within the category where it can be evaluated that the Korea Railroad Corporation's freedom of will concerning the continuation of its business could be suppressed or thrown into confusion as a result.
Nevertheless, the lower court, without examining these circumstances at all, concluded that the crime of obstruction of business was established solely on the ground that the primary purpose of the safety operation struggle was illegitimate, and found this portion of the charged facts guilty. This determination by the lower court contains an illegality that affected the outcome of the judgment by misunderstanding the legal principles concerning "force" in the crime of obstruction of business and failing to conduct the necessary examination. The argument in the grounds of appeal pointing this out has merit.
3) As to the portion of the charged facts concerning obstruction of business from November 5, 2009 to November 7, 2009 (hereinafter the "rotational strike") and from November 26, 2009 to December 3, 2009 (hereinafter the "general strike"):
A) According to the reasoning of the lower court judgment and the evidence lawfully adopted by the lower court, the following facts can be ascertained.
(1) Around December 2008, the government announced the 4th Public Institution Advancement Plan, which included a reduction of 5,115 positions at the Korea Railroad Corporation, and accordingly, around January 2009, the Korea Railroad Corporation established detailed implementation plans for railway advancement to reduce 5,115 positions. When the board of directors, at a meeting held around April 2009, resolved on a restructuring agenda to gradually reduce 5,115 positions by around 2012, the Korean Railway Workers' Union (Non-indicted), in response, continuously asserted demands including withdrawal of the personnel reduction, prevention of restructuring, and reinstatement of dismissed workers.
(2) In addition, around September 2009, public sector trade unions belonging to the △△△△△△△△△△△ Trade Union Federation under the ○○○○ Trade Union Confederation, including the Korean Railway Workers' Union (Non-indicted), formed a Joint Struggle Headquarters and announced that they would commence an all-out struggle against the government aimed at halting the public institution advancement policy, including the cessation of privatization in the public sector, and agreed to strengthen mutual solidarity.
(3) Meanwhile, in the main negotiations for the collective agreement and wage agreement, which resumed on September 30, 2009 after the preceding strike had ended, the Korean Railway Workers' Union (Non-indicted) declared the negotiations to have broken down on that day due to significant differences between labor and management, but nevertheless continued collective bargaining until October 27, 2009. In this process, the Korean Railway Workers' Union (Non-indicted) applied for mediation regarding its wage demands but rejected the mediation proposal presented by the National Labor Relations Commission, which was to the effect of a wage freeze.
(4) However, the Joint Struggle Headquarters, composed of the Korean Railway Workers' Union (Non-indicted) and others, announced around October 10, 2009 that it opposed the government's public institution advancement policy and, if the government did not come to the negotiating table, it would commence industrial action centered on workplaces belonging to the Joint Struggle Headquarters on November 6, 2009. Around the same time, on October 12, 2009, the Korean Railway Workers' Union (Non-indicted), at an extraordinary delegates' meeting, resolved to make an issue of the withdrawal of the public institution advancement policy and the implementation of the agreement to reinstate dismissed workers as goals, and decided that the first strike would be conducted as a rotational strike, timed to coincide with the Joint Struggle Headquarters' announced timing of industrial action, with strikes in regions outside Seoul on November 5, 2009 and in the Seoul region on November 6, 2009, and that the second strike would be conducted as a general strike around the time of the President's public enterprise advancement workshop, originally scheduled for November 21, 2009 (this was reaffirmed at an Expanded Dispute Countermeasures Committee meeting held on October 29, 2009); it completed the union member vote on industrial action by October 23, 2009, and issued a rotational strike order on October 31, 2009, and struggle guidelines on November 3, 2009.
(5) On November 4, 2009, the Joint Struggle Headquarters again specifically announced its plan of struggle, including a general strike launch ceremony on November 6, 2009, and a general strike timed to coincide with the President's public enterprise advancement workshop schedule (which had in the meantime been changed to November 28, 2009), and the Korean Railway Workers' Union (Non-indicted) carried out regional rotational strikes from November 5 to November 7, 2009, during which the operation of 327 passenger trains and 355 freight trains was suspended, causing the Korea Railroad Corporation substantial damage due to loss of business revenue and expenditure on compensation for replacement labor, etc.
(6) Thereafter, collective bargaining between the Korean Railway Workers' Union (Non-indicted) and the Korea Railroad Corporation resumed from November 12, 2009, and wage negotiations and working-level negotiations proceeded in the form of special intensive negotiations on four occasions until November 24, 2009.
(7) However, separately from this, the Korean Railway Workers' Union (Non-indicted) held meetings of the Central Standing Executive Committee or the Expanded Dispute Countermeasures Committee on November 9, November 13, and November 18, 2009, and after discussing postponing the timing of the general strike due to changes in the schedule of the President's public enterprise advancement workshop, ultimately resolved to commence a general strike on November 26, 2009, with goals including the expansion of new business and additional personnel, and implementation of the agreement to reinstate dismissed workers, and issued general strike struggle guidelines on November 21, 2009, and struggle guidelines for participation in a resolution rally on November 23, 2009.
(8) Subsequently, at the last special intensive negotiation session held on November 24, 2009, the Korean Railway Workers' Union (Non-indicted) put forward acceptance of the demand for reinstatement of dismissed workers as a precondition for concluding the collective bargaining, and, citing the Korea Railroad Corporation's refusal, referred to the commencement of the general strike. Later that same day, the Korea Railroad Corporation also notified the termination of the existing collective agreement, whose effect had been provisionally maintained under the effect-extension clause, citing as its reason its judgment that reaching a model collective agreement through dialogue had become difficult.
(9) After issuing a struggle order on November 25, 2009, the Korean Railway Workers' Union (Non-indicted) carried out, from November 26 to December 3, 2009, the longest general strike in its history, during which the operation of 999 passenger trains and 1,742 freight trains was suspended, causing the Korea Railroad Corporation substantial damage due to loss of business revenue and expenditure on compensation for replacement labor, etc.
B) Meanwhile, Article 71 of the Trade Union Act designates as essential public-interest businesses those public-interest businesses that are closely related to the daily life of the public or have a significant impact on the national economy, and for which the suspension or discontinuation of the business would significantly endanger the daily life of the public or significantly impede the national economy, and for which it is not easy to substitute the business; the railway business operated by the Korea Railroad Corporation falls under this category. Furthermore, among the tasks of an essential public-interest business, the "essential maintenance work," which, if suspended or discontinued, would significantly endanger the life, health, or physical safety of the public or the daily life of the public, must continue to be performed even during industrial action, and union members designated as workers performing essential maintenance work may not participate in industrial action. Article 42-2, etc. of the Trade Union Act imposes certain restrictions on industrial action at essential public-interest business workplaces from a public-interest perspective.
C) In light of the above factual relationships and the content of the relevant statutes, the following circumstances can be ascertained: although it cannot be concluded that there was absolutely no intention of improving wage levels, etc., it is clearly apparent from the background and course of events that the primary purpose of the rotational strike and the general strike was, in accordance with the schedule and policy set by the Joint Struggle Headquarters, to obstruct the implementation itself of restructuring, such as opposition to the public institution advancement policy, which could not be a subject of collective bargaining; the collective bargaining that continued up until immediately before the rotational strike and the general strike does not appear to have been in a situation where it would have completely broken down; furthermore, the Korea Railroad Corporation's notification of termination of the collective agreement can be interpreted as an expression of intent to refrain from commencing a general strike and to proceed with collective bargaining limited to matters that could be a subject thereof, and there was no reason for the progress of collective bargaining to be obstructed during the remaining six-month period before the termination would take effect; and, in addition, given the nature of the workplace, it was not easy to substitute the work, so the Korea Railroad Corporation's response inevitably had limitations. Taking these circumstances together, it is reasonable to evaluate that the Korea Railroad Corporation, as an operator of an essential public-interest business with a significant impact on the daily life of the public and the national economy, could not have anticipated that the Korean Railway Workers' Union (Non-indicted) would actually carry out the rotational strike and general strike for the above illegitimate purpose, and this conclusion is not altered merely because the schedule was announced or known in advance and workers performing essential maintenance work did not participate. Furthermore, as a result of the rotational strike and general strike, conducted nationwide under the leadership of the Defendants, the operation of numerous trains was suspended, causing a huge loss of business revenue, and a considerable number of replacement personnel had to be continuously deployed to prevent disruption to the daily life of the public using trains or to the economic activities of businesses, thereby causing substantial harm; in these circumstances, it is clear that this brought about a situation causing severe disruption to or enormous damage to the business operations of the Korea Railroad Corporation.
Ultimately, examining this in light of the legal principles set forth above, the rotational strike and the general strike are sufficient to be regarded as force capable of suppressing or throwing into confusion the free will of the employer, the Korea Railroad Corporation, concerning the continuation of its business, and thus constitute "force" for purposes of the crime of obstruction of business.
Accordingly, although there are some inappropriate aspects in the reasoning of the lower court, the lower court's conclusion in maintaining the first instance judgment, which found the Defendants guilty on this portion of the charged facts, is justified, and there is no illegality therein, as argued in the grounds of appeal, of departing from the limits of free evaluation of evidence in violation of the rules of logic and experience, or of misunderstanding the legal principles concerning the purpose of industrial action, force in the crime of obstruction of business, etc., that affected the judgment.
2. Judgment on the Prosecutor's Grounds of Appeal
As to the portion of the charged facts concerning obstruction of business on September 8, 2009 and September 16, 2009, the lower court maintained the first instance judgment, which acquitted the Defendants, finding that each of the industrial actions was undertaken to urge the Korea Railroad Corporation, which had been neglecting the main negotiations without justifiable reason, to engage in collective bargaining, and that the primary purpose was legitimate and there was no procedural illegality, and thus recognized the legitimacy of the industrial actions.
Examining the reasoning of the lower court judgment in light of the relevant legal principles and the record, the lower court's determination as above is justified and acceptable, and there is no illegality therein, as argued in the grounds of appeal, of misunderstanding the legal principles concerning the legitimacy of industrial action or force in the crime of obstruction of business.
3. Scope of Reversal
For the reasons set forth above, the portion of the lower court judgment concerning the safety operation struggle cannot avoid reversal, and since the remaining portions found guilty by the lower court are in a concurrent crime relationship under the first clause of Article 37 of the Criminal Code (형법) with this portion, ultimately the entire guilty portion of the lower court judgment must be reversed.
4. Conclusion
Therefore, without examining the remaining grounds of appeal of Defendants 1, 2, 3, and 4, the guilty portion of the lower court judgment is reversed, and this portion of the case is remanded to the lower court for retrial and determination; and all appeals by the Prosecutor are dismissed. This judgment is rendered as set forth in the Order, by the unanimous opinion of the participating Justices.
Justice Kim Yong-deok (Presiding Justice), Shin Young-cheol (Justice in charge), Lee Sang-hoon, Kim So-young