[Defendant] A
[Appellant] Defendant
[Judgment Below] Seoul Criminal District Court, Judgment of June 25, 1992, Case No. 92No1967
[Order]
The judgment below is reversed and the case is remanded to the Panel Division of the Seoul Criminal District Court.
[Reasoning]
The Defendant's grounds of appeal are examined.
1. As to the point of obstruction of business
A labor dispute act (쟁의행위) includes not only the passive act of a worker refusing or suspending the provision of labor, but also active acts that impede the normal operation of business in order to achieve the worker's demands (see Article 3 of the Labor Dispute Adjustment Act (노동쟁의조정법)). Therefore, it is unavoidable, by the very nature of a labor dispute act, that an employer's normal business operations may be impeded in some cases, and the employer bears a duty to tolerate this. However, when such a labor dispute act by workers exceeds the limits of legitimacy, the workers cannot be exempted from criminal liability, including for the crime of obstruction of business. Meanwhile, the requirements of legitimacy under which criminal liability is exempted are as follows: the labor dispute act must be legitimate in its purpose, namely, that it must be conducted in connection with collective bargaining for the purpose of maintaining or improving working conditions, etc.; the timing and procedures of the labor dispute act must be legitimate, in accordance with the provisions of statutes; and the methods and manner of the labor dispute act must fall within a legitimate scope, that is, they must not involve violence or destructive acts or other acts of a highly antisocial nature.
Now, with respect to the timing and procedures of a labor dispute act, Articles 14 and 16 of the Labor Dispute Adjustment Act provide for a cooling-off period and a prior notification system, and Articles 47 and 48 of the same Act even provide penal provisions for violations of these respective provisions. However, the purpose of the provisions regarding the cooling-off period and prior notification is to provide an opportunity to resolve disputes in advance and thereby avoid the occurrence of a labor dispute, and also to give advance notice of the occurrence of a labor dispute so as to provide an opportunity to take measures to prevent damage; it is not to prohibit the labor dispute act itself. Therefore, the mere fact that a labor dispute act did not comply with the timing and procedures prescribed by the provisions on the cooling-off period or prior notification does not necessarily mean that the labor dispute act unconditionally lacks legitimacy. Rather, one must examine the specific circumstances, such as whether the violation is likely to cause an unjust result, including unexpected disruption or damage to social and economic stability or to the employer's business operations, and determine the presence or absence of legitimacy accordingly, in order to judge whether criminal liability exists.
According to the reasoning of the judgment below, the court below upheld the judgment of the first instance court, which found the Defendant guilty of obstruction of business through force, and applied the law accordingly, on the following factual findings: (1) that on December 21, 1990, from approximately 07:40 to 07:50, at the roadside in front of and in the company athletic field of Sunghwa Co., Ltd. (성화(주)), located at (address omitted), Guro-gu, Seoul, when non-indicted B was dismissed on the ground of undercover employment (disguised employment), the Defendant, without reporting to the authorities, gathered about 20 union members and led a rally, causing them to make a commotion by shouting slogans such as "Withdraw B's dismissal" and "If the president is arrogant, the workers are tough," while also, through obstruction and delay of work by management staff and non-union employees, causing production losses amounting to KRW 949,000 to the company, thereby obstructing business through force; (2) that on April 24, 1991, from approximately 07:30 to 07:50, in front of the main gate of the same company, when non-indicted C was dismissed on the ground of undercover employment, the Defendant gathered about 150 workers, asserted C's reinstatement, and led a rally by chanting slogans such as "Crush unjust dismissal, let's win the 1991 wage struggle" and leading labor songs such as "Song of Solidarity Struggle" and "Song of Comrades," with participants repeating after him, while also, through obstruction and delay of work by management staff and non-union employees, causing production losses amounting to KRW 949,000 to the company, thereby obstructing business through force; and that on the 25th, 26th, 27th, and 29th of the same month, at the same time and place, in the same manner, he led rallies while also causing, through obstruction and delay of work by management staff and non-union employees, a total of KRW 4,745,000 worth of production losses to the company, thereby obstructing business through force; (3) that on May 24 of the same year, from approximately 07:40 to 08:00, and on May 25 of the same year, from approximately 07:40 to 08:00, in front of the said company, on the ground that the wage negotiations between labor and management were delayed, the Defendant gathered about 200 workers and led a rally by chanting slogans such as "Crush labor oppression, let's win the 1991 wage struggle" and leading labor songs and strike songs, with participants repeating after him, while also, through obstruction and delay of work by management staff and non-union employees, causing production losses amounting to KRW 1,898,000 to the company, thereby obstructing business through force; and (4) that on May 30 of the same year, from approximately 07:40 to 08:00, from in front of the said company to in front of the Korea Keystone Valve Company within the nearby industrial complex, on the ground that the wage negotiations between labor and management were delayed, the Defendant gathered about 300 workers and led a rally and demonstration by chanting slogans such as "Let the union members unite as one and win the 1991 wage struggle" and leading labor songs and strike songs, with participants repeating after him, while also, through obstruction and delay of work by management staff and non-union employees, causing production losses amounting to KRW 949,000 to the company, thereby obstructing business through force.
However, with respect to the point of obstruction of business, it is first unclear whether the content of the obstruction of business as found by the first instance court means that the Defendant, in addition to leading the rallies as found, separately committed acts of obstructing and delaying the work of management staff and non-union employees, or whether it means that by leading the rallies as found, the rally activity itself caused the obstruction and delay of work as found.
If it is the former, then not only was the act of obstruction of business not specifically identified, but upon examining the evidence cited by the first instance court, no material can be found to support a finding of a specific act of obstruction of business.
If, on the other hand, it is the latter, the Defendant has defended that he ended the rallies before 08:00, the starting time of the company's work hours, and therefore did not impede the company's business at all; and even according to the reasoning of the first instance judgment, as upheld by the court below, it is found that the six rallies held on December 21, 1990, April 24, 1991, and the 25th, 26th, 27th, and 29th of the same month were conducted until approximately 07:50, while the three rallies held on May 24, May 25, and May 30, 1991 were conducted until approximately 08:00. Therefore, if the company's starting time for work were 08:00, then, absent special circumstances, in the six instances where the rally ended by approximately 07:50, it cannot be said that there was obstruction of business, since work had not yet commenced; and even in the three instances where the rally ended by approximately 08:00, unless the said starting time for work itself signifies the time at which actual work commences, it would be difficult to conclude that there was an act of obstruction of business.
However, according to the statement recorded in the statement of D taken by the judicial police officer, which the first instance judgment adopted, D stated that work began at 08:00, but was disrupted for 10 minutes due to the rally led by the Defendant and others, and that based on a production rate of 400 pairs of shoes per hour, the failure to produce 65 pairs during the 10-minute period resulted in a loss amounting to KRW 949,000. According to the statement of D taken by the prosecutor, D stated that although the working hours began at 08:00, workers were required to prepare the work line at 07:50, ten minutes prior, but this was delayed for 20 minutes due to the rally and other acts of the Defendant and others. Furthermore, according to the statement of E taken by the prosecutor, E stated that management staff arrived at work by approximately 07:30 to prepare for work, and workers also arrived by approximately 07:40 to prepare for work, with work commencing at 08:00, but that due to the rally activity of the Defendant and others, work could not commence at 08:00.
However, according to the testimony of D as a witness in the first instance trial, D testified that the company's starting time for work was 08:00, and that if a worker punched the time card at the main gate by 08:00, there was no problem whatsoever; and D also testified to the effect that although the Defendant and others held the rally near the main gate, when management staff came to work, a path was cleared for them so that there was no obstruction whatsoever to their commencing work. In light of the fact that, generally speaking, the starting time for work refers to the time of arrival at the workplace, which is not the same as the time work actually commences after a preparation period, and in light of the content of D's testimony in court, the content of the statements of D and E taken by the prosecutor and the statement of D taken by the judicial police officer are not readily credible.
The court below should have specifically ascertained the actual time at which work commenced at the said company and whether the rally activity of the Defendant and others obstructed work, and should have examined and determined whether this lacked legitimacy to the extent that criminal liability for obstruction of business could be imposed. Nevertheless, without doing so, the court below merely and carelessly upheld the judgment of the first instance court, thereby committing an illegality that affected the judgment by failing to exhaust its examination and erring in the evaluation of the evidence. The argument on this point is well-founded.
2. As to the point of violation of the Act on Assembly and Demonstration (집회및시위에관한법률)
Upon examination of the record, it is amply established, as found in the first instance judgment upheld by the court below, that the Defendant led an assembly and demonstration without reporting, and also participated in a demonstration that was clearly likely to pose a threat to public peace and order. Therefore, the judgment below, which found the Defendant guilty of the charged violation of the Act on Assembly and Demonstration, is justified, and there is no illegality as argued. Accordingly, the argument on this point is without merit.
3. In conclusion, the judgment below cannot be sustained with respect to the point of obstruction of business, for the reasons set forth above. Since the judgment below treated the crime of obstruction of business and the crime of violation of the Act on Assembly and Demonstration as concurrent offenses and imposed a single sentence, the entire judgment below is reversed and the case is remanded. This judgment is rendered as set forth in the Order, by the unanimous opinion of the participating Justices.
Justice Kim Seok-su (Presiding Justice), Lee Hoi-chang, Bae Man-woon, Choi Jong-young