[Defendant]
[Appellant] Defendants
[Defense Counsel] Kim Cha-gon and 1 other attorney
[Judgment Below] Suwon District Court Decision 2010No5204, decided December 21, 2010
[Order]
The judgment below is reversed, and the case is remanded to a panel of the Suwon District Court.
[Reasoning] The grounds of appeal (including the supplementary appellate brief submitted after the expiration of the period for submitting the grounds of appeal, to the extent it supplements the grounds of appeal) are examined as follows.
1. Whether to implement corporate restructuring, such as a reduction in force or the consolidation of business organizations, is a matter belonging to the high-level managerial decision of the management entity and, in principle, cannot become a subject of collective bargaining. Therefore, absent special circumstances such as the restructuring being pursued for improper purposes without any urgent managerial necessity or reasonable grounds, if a labor union engages in industrial action for the substantial purpose of opposing the implementation of such restructuring itself, then even though the implementation of such restructuring inevitably entails changes in the status or working conditions of employees, the legitimacy of the purpose of such industrial action cannot be recognized. Furthermore, where the purposes pursued by an industrial action are multiple and some of them are improper, the legitimacy of the purpose of the industrial action must be determined based on the primary or true purpose; and if it is found that the industrial action would not have been undertaken had the unjust demands been excluded, then the entire industrial action must be deemed to lack legitimacy (see, e.g., Supreme Court Decision 2010Do11030, decided January 27, 2011).
Meanwhile, a strike as an industrial action is an exercise of force in which workers collectively suspend the provision of labor in order to exert pressure on the employer to achieve their demands, and thus includes elements that may be regarded as "force" under the crime of interference with business. However, since workers are, in principle, guaranteed under the Constitution the fundamental rights of autonomous association, collective bargaining, and collective action for the improvement of working conditions, such a strike does not always satisfy the elements of the crime of interference with business. It is appropriate to hold that a collective refusal to provide labor constitutes "force" and thus establishes the crime of interference with business only where, in light of the surrounding circumstances and background, the strike is conducted abruptly and creates a risk of causing serious confusion or enormous damage to the employer's business operations, such that it can be evaluated as suppressing or disrupting the employer's free will to continue business operations (see Supreme Court en banc Decision 2007Do482, decided March 17, 2011).
2. The gist of the facts charged in this case is as follows: the defendants, who are the branch head, deputy branch head, secretary general, or director of the ○○○○ Corporation Branch of the National Public Service Labor Union under the Korean Confederation of Trade Unions' Public Transportation and Social Services Workers' Federation (hereinafter "the instant Branch"), led approximately 1,200 members of the instant Branch to fail to report to their respective workplaces on November 6, 2009, and instead participate in the "Joint Struggle Headquarters Strike Launch Rally to Crush the Advancement of the Public Sector and Strengthen Social Publicness," held in front of the Gwacheon Government Complex (hereinafter "the instant strike"), thereby interfering with the business of ○○○○ Corporation.
3. Regarding this, the court below held that the instant strike, whose primary purpose was to oppose the gas industry advancement policy—a matter belonging to the managerial decision of ○○○○ Corporation, the management entity, and thus not subject to collective bargaining—could not be regarded as a legitimate industrial action, and accordingly the crime of interference with business was established.
Examining the reasoning of the judgment below in light of the legal principles set forth above and the evidence lawfully adopted by the court below, the court below's determination that the primary purpose of the instant strike was opposition to the gas industry advancement policy, which cannot be a subject of collective bargaining, and its consequent denial of the legitimacy of the strike, is justified. There is no illegality in the judgment below, as alleged in the grounds of appeal, in violating the rules of logic and experience, exceeding the limits of free evaluation of evidence, or misunderstanding the legal principles concerning the legitimacy of industrial action.
4. However, it is difficult to accept the court below's determination that the instant strike constituted the crime of interference with business solely on the ground that its legitimacy as an industrial action was not recognized, for the following reasons.
According to the evidence lawfully adopted by the court below, the following facts may be found: the instant Branch conducted a strike vote among all its members from September 22 to September 24, 2009, in which 92% of all members voted, and 85.2% of those who voted approved the strike, thereby following the necessary procedures for the instant strike; on October 23, 2009, Defendant 1, the branch head of the instant Branch, issued instructions to the members of the instant Branch regarding participation in the strike in connection with the Joint Struggle Headquarters strike launch rally scheduled for November 6, 2009; on November 3, 2009, the instant Branch and ○○○○ Corporation conducted the 14th working-level negotiation session on the amendment of the collective agreement, premised on the fact that a strike was scheduled for November 6, 2009; on November 5, 2009, Defendant 1 notified the president of ○○○○ Corporation that the instant strike would commence on November 6, 2009, and provided the list of union members subject to essential maintenance duties; on the same day, the president of ○○○○ Corporation issued a statement appealing to the employees of ○○○○ Corporation to refrain from participating in the strike, and notified the chairman of the National Public Service Labor Union of the list of union members subject to essential maintenance duties, requesting cooperation in restricting the participation in the strike of those subject to essential maintenance duties; the instant strike lasted only one day; those subject to essential maintenance duties did not participate in the instant strike on November 6, 2009, and continued to perform the receipt, manufacture, storage, and supply of natural gas, as well as the emergency maintenance and safety management of natural gas facilities; and as a result, the supply or receipt of gas was not interrupted due to the instant strike.
Examining the above factual relations in light of the legal principles set forth above, it is difficult to conclude that the instant strike created a risk of causing serious confusion or enormous damage to the business operations of ○○○○ Corporation, and there is ample room to conclude that this case does not fall within the category of cases in which it can be evaluated that the free will of ○○○○ Corporation to continue its business operations could be suppressed or disrupted as a result.
Nevertheless, the court below, without examining the above circumstances at all, hastily concluded that the crime of interference with business was established solely on the ground that the primary purpose of the instant strike was not legitimate, and thereby found the facts charged in this case guilty. Such determination by the court below constitutes an illegality that affected the conclusion of the judgment by misunderstanding the legal principles concerning "force" under the crime of interference with business and failing to conduct the necessary examination. The ground of appeal pointing this out is well-founded.
5. Therefore, the judgment below is reversed, and the case is remanded to the court below for further hearing and determination. This decision is rendered as set forth in the Order, in accordance with the unanimous opinion of the participating Justices.
Justice Kwon Soon-il (Presiding Justice), Min Il-young, Park Bo-young (Justice in charge), Kim Shin