[Defendant] Defendant 1 and 1 other
[Appellants] Defendants
[Defense Counsel] Law Firm Yeoneun, Attorney Jeong Ki-ho and 2 others
[Judgment Below] Busan High Court Decision 2014No781 rendered on July 22, 2015
[Order]
The part of the judgment below concerning Defendant 2 is reversed, and this part of the case is remanded to the Busan High Court. The appeal by Defendant 1 is dismissed.
[Reasoning] The grounds for appeal (including the supplementary brief on grounds for appeal submitted after the deadline for submission of grounds for appeal had passed, to the extent it supplements the grounds for appeal) are examined.
1. As to Defendant 1's grounds for appeal
A. Regarding the part on Special Obstruction of Performance of Official Duties Resulting in Injury
1) The crime of obstruction of performance of official duties is established only where the public official's performance of duties is lawful. Here, lawful performance of official duties means that the act must not only fall within the public official's abstract authority but must also be within the scope of that authority in the specific instance, and must satisfy the essential formalities as an act of duty. Whether a public official's performance of duties falling within abstract authority is lawful must be objectively and reasonably determined based on the concrete circumstances at the time of the act (see Supreme Court Decision 2011Do4763, decided August 23, 2013, etc.). Meanwhile, where a public official performs duties in accordance with a judgment that the measures taken are appropriate within the scope of his or her personnel and material capabilities in light of the specific circumstances, such performance of duties cannot be deemed unlawful unless it is found to have lost objective legitimacy and to be markedly unreasonable (see Supreme Court Decision 2010Do7621, decided November 11, 2010, etc.).
2) The court below determined, for the following reasons, that it is difficult to view the enforcement officers' performance of duties concerning the compulsory execution at issue in this case as lacking legality as a whole, and that the illegality of Defendant 1 and others' act of special obstruction of performance of official duties resulting in injury in this part cannot be deemed to be precluded either.
A) Execution of judgments falls within the duties of enforcement officers (Article 2 of the Execution Officers Act (집행관법)), and enforcement officers may not refuse an order or delegation concerning their duties without justifiable reason (Article 14 of the Execution Officers Act). The specific content and method of such official duties are entrusted to the enforcement officer's reasonable discretion based on professional judgment.
B) The original copy of the writ of execution, namely the Ulsan District Court's decision on provisional disposition No. 2012Kahap841 for prohibition of illegal assembly and interference with business, states as follows: "The respondents, including the Korean Metal Workers' Union Non-regular Workers' Branch of Non-party Company, shall remove the tents and other illegal facilities installed in the applicant's parking lot, and shall not install any facilities in the future without the applicant's permission. In the event of violation of this order, the applicant may have enforcement officers of the Ulsan District Court take appropriate measures necessary for restoration to the original state, including removal of the illegal facilities." The above illegal facilities were installed mainly to support the respondent Non-regular Workers' Branch. In light of these circumstances, it is difficult to view the enforcement officers' performance of duties concerning the compulsory execution as lacking legality as a whole.
C) In light of the fact that, when the enforcement officers attempted execution on January 8, 2013 and were obstructed, they set a deadline and gave an opportunity for voluntary removal, and that when the enforcement officers again attempted execution and demanded specification of the object of execution, Defendant 1 and others refused this and used violence against the enforcement officers, it cannot be said that Defendant 1 and others were unaware of the lawfulness of the performance of official duties.
3) Examining the reasoning of the judgment below in light of the legal principles set forth above and the evidence lawfully admitted, there is no error in the judgment below, such as a misunderstanding of the legal principles concerning the lawfulness of performance of duties and grounds for precluding illegality in the crime of special obstruction of performance of official duties resulting in injury, that affected the judgment, as argued in the grounds for appeal.
B. Regarding the Part on Obstruction of Business
The court below maintained the judgment of the first instance, which found this part of the charges guilty on the grounds that the work of the security guards attempting to prevent Defendant 1 and others from entering, pursuant to Non-party Company's access control measures, is deserving of protection, and that Defendant 1 and others' act of obstructing this by force constitutes obstruction of business and cannot be deemed a justifiable act.
Examining the reasoning of the judgment below in light of the relevant legal principles and the evidence lawfully admitted, there is no error in the judgment below, such as a misunderstanding of the legal principles concerning business protected under the crime of obstruction of business and justifiable acts, as argued in the grounds for appeal.
2. As to Defendant 2's grounds for appeal
A. Relevant Legal Principles
1) Where the occupation of a workplace or business premises takes the form of an active industrial action, if the scope of such occupation is limited to a portion of the workplace or business premises and amounts merely to a coexisting occupation that does not exclude the employer's access or management control, it may be regarded as a legitimate industrial action. However, where the occupation of the workplace or business premises is total and exclusive, preventing entry by persons other than union members or excluding the employer's management control such that it causes suspension or disruption of business, such an act already exceeds the limits of legitimacy and constitutes the crime of obstruction of business (see Supreme Court Decision 91Do383, decided June 11, 1991; Supreme Court Decision 99Do4779, decided November 27, 2001, etc.).
2) Where an industrial action constitutes the crime of obstruction of business, if a third party facilitates the execution of the industrial action while knowing of such circumstances, the crime of aiding and abetting obstruction of business may be established. However, in order to substantively guarantee the three labor rights provided for in Article 33(1) of the Constitution (헌법), it is necessary to allow workers or labor unions to broadly receive assistance from third parties when exercising their three labor rights. Furthermore, since third parties who assist workers or labor unions also possess freedom of expression under Article 21 of the Constitution and general freedom of action inherent in Article 10 of the Constitution, when determining whether an act of assistance in connection with an unlawful industrial action constitutes aiding and abetting obstruction of business, the scope of establishment of the crime of aiding and abetting obstruction of business must be carefully determined so as not to chill the aforementioned fundamental rights guaranteed by the Constitution.
3) In addition, since the crime of aiding and abetting is established as subordinate to the principal offender, a causal relationship is required between the act of aiding and abetting and the principal offender's realization of the crime. For the crime of aiding and abetting to be established, the act of aiding and abetting must be closely related to the principal offender's realization of the crime, and it must be evaluated as having made an actual contribution to the principal offender's realization of the crime, such as by causing the principal offender to realize a concrete danger or by increasing the opportunity for the criminal result to occur. Where the act merely assisted conduct that is not closely related to the principal offender's realization of the crime, the crime of aiding and abetting is not established (Supreme Court en banc Decision 2017Do19025, decided September 9, 2021).
B. Summary of the Charges Regarding the Part on Aiding and Abetting Obstruction of Business
Around 2:00 p.m. on November 15, 2010, approximately 50 members of the Non-regular Workers' Branch of Non-party Company (hereinafter "Non-regular Workers' Branch") under the Korean Metal Workers' Union (hereinafter "Metal Workers' Union") occupied the automobile door attachment/detachment production line (CTS line) at Non-party Company's (factory name omitted) plant, demanding conversion of in-house subcontracted workers to regular employment status, etc., and the Non-regular Workers' Branch issued a struggle directive instructing members to assemble at Non-party Company's (factory name omitted) plant, resulting in approximately 900 members occupying the above production line (hereinafter "the instant production line occupation"). At around 7:00 a.m. on November 16, 2010, the Non-regular Workers' Branch held a struggle countermeasures committee meeting and made a decision to the effect of "continuing the occupation of Non-party Company's (factory name omitted) plant," and accordingly occupied Non-party Company's (factory name omitted) plant for 25 days until around December 9, 2010, suspending operation of the production line at the (factory name omitted) plant and rendering automobile assembly impossible, thereby causing Non-party Company property damage amounting to approximately KRW 254.4 billion.
In the course of the instant production line occupation, Defendant 2, who was the Director of the Unorganized Non-regular Workers Bureau of the Metal Workers' Union, performed the following roles: ① he participated in rallies held in front of the main gate of Non-party Company (hereinafter "the instant rallies") on or around November 15, 17, 20, 21, and 30, 2010, and December 3 and 5, 2010, thereby supporting the sit-in protest at the instant production line occupation (hereinafter "participation in the instant rallies"); ② on November 17, 2010, he entered the site of the sit-in protest at the instant production line occupation and encouraged the Non-regular Workers' Branch members participating in the sit-in protest (hereinafter "encouragement at the instant protest site"); and ③ around November 2010, he delivered an official document from the Metal Workers' Union to the Non-regular Workers' Branch, among other activities (hereinafter "delivery of the instant official document").
Thereby, Defendant 2, while knowing that the Non-regular Workers' Branch and its approximately 900 members obstructed Non-party Company's automobile production business, etc. by force through the occupation of Non-party Company's (factory name omitted) plant, etc. for 25 days from around November 15, 2010 to around December 9, 2010, facilitated and thereby aided and abetted the offense of the Non-regular Workers' Branch members through the aforementioned methods.
C. Determination on the Grounds for Appeal
1) Regarding the Act of Encouragement at the Instant Protest Site
Examining the matter in light of the legal principles set forth above and the evidence lawfully admitted, Defendant 2's act of encouragement at the instant protest site was carried out directly at the site of the instant production line occupation, where the unlawful act of obstruction of business was ongoing at the time. In light of Defendant 2's status and influence within the labor union at the time and the specific content of his statements at the site, this act had a close relationship with the principal offenders' realization of the crime, and constitutes an act that further maintained and reinforced the offense being actually carried out by the principal offenders. Therefore, this cannot be regarded as an act of assistance to an industrial action or as a legitimate ordinary union activity of an industry-wide labor union. Accordingly, there is no error in the judgment below, such as a misunderstanding of the relevant legal principles, in recognizing Defendant 2's above act as aiding and abetting obstruction of business.
2) Regarding the Act of Participation in the Instant Rallies and Delivery of the Instant Official Document
However, examining the following circumstances ascertainable from the record in light of the legal principles set forth above, it appears difficult to conclude that Defendant 2's act of participation in the instant rallies and delivery of the instant official document constitutes aiding and abetting obstruction of business.
A) The instant rallies were held in front of the main gate of Non-party Company to support the objective of the Non-regular Workers' Branch's industrial action, namely, the conversion of non-regular workers to regular employment and the direct employment of subcontracted workers. Even if Defendant 2, by serving as master of ceremonies or holding a press conference at the instant rallies, exerted a certain degree of influence on the union members occupying the production line within Non-party Company's (factory name omitted) plant, this is merely an indirect and incidental result arising in the process of supporting the very objective of the industrial action.
B) Furthermore, the act of delivering the instant official document also constitutes an ordinary activity as the Director of the Unorganized Non-regular Workers Bureau within the Metal Workers' Union, an industry-wide labor union. In light of the circumstances surrounding the drafting of the official document and its content, it is difficult to view that Defendant 2, through the delivery of the document, directly encouraged or supported the instant production line occupation itself.
C) Considering the above circumstances together with the circumstances surrounding the Non-regular Workers' Branch's occupation of the instant production line, the manner of the act, and the course of its progress, even if Defendant 2's act of participation in the instant rallies and delivery of the instant official document, viewed comprehensively in relation to the Non-regular Workers' Branch's industrial action including the collective refusal to provide labor, had an aspect of providing partial assistance thereto, it is difficult to conclude that it had a close relationship with the realization of the crime through the instant production line occupation, which constitutes the principal offenders' act of execution of obstruction of business. Therefore, Defendant 2's above acts of assistance cannot be deemed to have a causal relationship with the act of obstruction of business to the extent sufficient to recognize the establishment of the crime of aiding and abetting.
3) Nevertheless, the court below, contrary to the foregoing, found all of the charges of aiding and abetting obstruction of business against Defendant 2 guilty solely for the reasons stated in its judgment. This judgment below contains an error of misunderstanding the legal principles concerning the establishment of the crime of aiding and abetting obstruction of business, etc., which affected the judgment. The grounds for appeal on this point are well-founded within the scope of the above recognition.
D. Scope of Reversal
For the reasons stated above, the part of the judgment below concerning Defendant 2's aiding and abetting obstruction of business through the act of participation in the instant rallies and delivery of the instant official document must be reversed. Since this part is reversed, the primary charge of obstruction of business and the remaining guilty part, for which a single sentence was imposed on the ground that it is in a concurrent crime relationship under the first clause of Article 37 of the Criminal Act (형법) with this part, must also be reversed. Accordingly, the entire part of the judgment below concerning Defendant 2 must be reversed.
3. Conclusion
Therefore, the part of the judgment below concerning Defendant 2 is reversed, and this part of the case is remanded to the court below for further hearing and determination, and the appeal by Defendant 1 is dismissed. This judgment is rendered as stated in the Order by the unanimous opinion of the Justices participating in the decision.
Justice Ahn Cheol-sang (Presiding Justice), Kim Jae-hyung, Noh Jeong-hee, Lee Heung-gu (Justice in Charge)