[Defendant] Defendant
[Appellant] Defendant and Prosecutor
[Defense Counsel] Attorney Moon Jae-in and 1 other
[Original Judgment] Busan High Court Decision 90No785, decided November 22, 1990
[Order]
The guilty portion of the original judgment concerning the Defendant and the not-guilty portion concerning the offense of interference with business are reversed, and this portion of the case is remanded to the Busan High Court.
The remainder of the Prosecutor's appeal is dismissed.
[Reasoning]
1. As to the Defendant's first ground of appeal.
(1) According to the reasoning of the judgment below, the court below held that an "industrial action" as prescribed in Article 3 of the Labor Dispute Adjustment Act (노동쟁의조정법) refers to an act performed by a party to a labor relationship for the purpose of achieving its demands, which impedes the normal operation of business, and that, unlike in the case of a "labor dispute" under Article 2 of the same Act, such "demands" are not limited to matters concerning working conditions. Accordingly, the court below held that where workers, acting with united intent, impede the normal operation of business for the purpose of obtaining a more favorable judgment for fellow workers who are on trial, this constitutes an industrial action, and that the provisions of Chapter 2 of the Labor Dispute Adjustment Act concerning restrictions and prohibitions on industrial action apply to such industrial action. Upon considering the evidence cited, the court below found the following facts: the Defendant, who was elected chairperson in the election of the 5th executive leadership of the labor union of Non-Indicted Company 1 (hereinafter "Non-Indicted Company 1") around January 19, 1990, conspired with Non-Indicted Person 2, senior vice-chairperson of the said labor union, and others, and from around 15:00 to 17:00 on February 6, 1990, held and presided over an extraordinary delegates' meeting attended by 151 delegates of the said labor union in the conference room on the 5th floor of the new building of Non-Indicted Company 1. At that meeting, in light of the facts that (i) at the appellate closing trial of Non-Indicted Person 3 and four others held at the Busan High Court around the 5th of the same month, the sentences requested by the prosecutor for Non-Indicted Persons 4 and 5 were increased compared to those requested at the first instance; (ii) Non-Indicted Company 1 refused to approve the inauguration and outgoing ceremony of the 4th and 5th labor union chairpersons scheduled to be held at 13:00 on the 10th of the same month, on the ground that it fell during working hours; and (iii) the labor union demanded that 47 persons be recognized as full-time union officials, whereas the company sought to recognize only 21 as such, the Defendant, using these matters as a pretext and with the purpose of exercising physical force to achieve the labor union's demands and to gain the upper hand in the forthcoming wage negotiations, resolved on a course of action consisting of: first, having all members leave work early at around 10:00 on February 7, 1990 and assemble at the Non-Indicted Company 1 general athletic field by around 10:30 the same day to hold a rally; and second, having all members apply for monthly paid leave on the 8th of the same month and assemble in front of the main gate of the Busan High Court by around 08:30 that day. The Defendant then had this course of action published in the labor union's bulletin "Democratic Voyage Express" (민주항해속보), No. 164, dated February 7, and had it distributed to the workers of Non-Indicted Company 1 by about 50 senior executive committee members of the labor union at the main gate of Non-Indicted Company 1 and other places from around 07:00 to 08:00 on the same day. Pursuant to this course of action, on the same day (February 7) around 10:00, approximately 10,000 workers were caused to collectively stop working and assemble at the said athletic field to attend the so-called report meeting on the resolutions of the delegates' meeting, after which all of them left work around 12:00; and from around 08:00 to 10:00 the same day, approximately 12,000 workers were caused to collectively submit applications for monthly leave, and on the following day, February 8, they did not report to work but instead assembled in front of the main gate of the Busan High Court, thereby impeding the normal operation of Non-Indicted Company 1's business. The court below found that this constituted engaging in industrial action without obtaining the approval of a majority of union members through direct, secret, and unsigned ballot, and accordingly applied and punished the act under Article 47 and Article 12(1) of the Labor Dispute Adjustment Act and Article 30 of the Criminal Act (형법).
(2) However, an "industrial action" prescribed in Article 3 of the Labor Dispute Adjustment Act is an act performed by a party to an industrial dispute for the purpose of achieving its "demands," and such "demands" should be understood to mean demands between the parties to a labor relationship concerning working conditions such as wages, working hours, welfare, dismissal, and other matters of treatment as prescribed in Article 2 of the same Act. Accordingly, industrial action that does not have as its principal purpose the maintenance or improvement of such working conditions does not constitute an "industrial action" subject to regulation under the Labor Dispute Adjustment Act.
Among the evidence adopted by the court below, the interrogation record of the Defendant taken by the prosecutor (including the "Rally for the Release of Detained Workers" cited in the interrogation and attached at pages 9 through 18 of the investigation record) and the contents of the "Democratic Voyage Express" attached to the case record show that, at the extraordinary delegates' meeting of February 6, 1990 as found by the court below, matters such as the sentence recommendations for the detained workers, the number of full-time union officials, and the inauguration/outgoing ceremony of the union chairperson were discussed; however, it is recognized that the industrial actions found by the court below—namely, the collective early leave, absence from work through monthly leave applications, and rallies—were carried out mainly for the purpose of protesting the fact that the appellate sentence recommendations for the detained workers were higher than those at the first instance, and of demanding their release. In light of this, the Defendant's conduct as found by the court below cannot be regarded as industrial action whose principal purpose was the maintenance or improvement of working conditions, and thus does not fall within the scope of "industrial action" to which the Labor Dispute Adjustment Act applies.
Consequently, the judgment below contains an error of law affecting the judgment due to a misunderstanding of the legal principles concerning industrial action, and since this ground of appeal is well-founded, the guilty portion of the judgment below concerning the Defendant cannot but be reversed, without need to examine the Defendant's remaining grounds of appeal.
2. As to the Prosecutor's grounds of appeal.
(1) According to the reasoning of the judgment below, with respect to the portion of the charges alleging that the Defendant, in conspiracy with Non-Indicted Person 2 and others, in accordance with the course of action resolved at the aforementioned labor union delegates' meeting as found by the court below, caused workers belonging to the said labor union to collectively leave work early or apply for monthly leave, thereby, through the force of numbers, impeding the normal business operations of Non-Indicted Company 1 for 18 hours—from around 10:00 to 18:00 on February 7, 1989 [sic, 1990] and from around 08:00 to 18:00 on the following day—the court below held as follows: the offense of interference with business (업무방해죄) is established by spreading false information or by other fraudulent means damaging a person's credit, or by force impeding another's business; and "force" here means, in light of the offender's standing, number of persons, and surrounding circumstances, force on the part of the offender sufficient to suppress the victim's free will. In light of the facts found, even if, in accordance with the resolution of the delegates' meeting of the labor union to which the Defendant belonged, the workers of Non-Indicted Company 1 did not report to work during their scheduled working hours and instead attended the trial as spectators, thereby causing disruption to Non-Indicted Company 1's operations, there is no room to view this as the workers having been prevented from performing their duties against their will as a result of fraudulent means or force by the Defendant; rather, it appears that the workers, sympathizing with the resolution of the labor union delegates' meeting, voluntarily left work early or submitted monthly leave applications and attended the trial as spectators. There is also no material whatsoever showing that, in the course of attending the trial, the workers exercised force through numbers so as to obstruct the work of other workers or company staff who wished to work rather than attend the trial. Accordingly, even though the workers' failure to work during working hours and their attendance at the trial, pursuant to the resolution of the labor union delegates' meeting led by the Defendant, caused disruption to Non-Indicted Company 1's operations, the offense of interference with business cannot be found to have been established with respect to the Defendant's conduct as described above; therefore, this portion of the charges either does not constitute a crime or lacks proof of the criminal facts.
(2) However, where a large number of workers, for a purpose other than an industrial action purpose such as the maintenance or improvement of working conditions, communicate with one another and, acting collectively, refuse to provide labor by simultaneously leaving work early or being absent from work en masse, thereby impeding the normal operation of the company's business, this should be regarded as interference with business by force of numbers.
According to the charges, the Defendant, as chairperson of the labor union, in accordance with the resolution of the labor union delegates' meeting, distributed the "Democratic Voyage Express," which published a course of action directing workers to leave work early en masse and hold a rally on February 7, 1990, and to apply for monthly leave en masse and assemble in front of the main gate of the Busan High Court on the 8th of the same month, and thereby caused a large number of workers who sympathized with this to leave work early or be absent from work. Unless the purpose of such collective action was to achieve demands concerning working conditions or other labor relations matters, thereby constituting industrial action under the Labor Dispute Adjustment Act, the Defendant, as one who caused the conspiracy and execution of interference with business by the force of collective action, cannot be relieved of criminal liability therefor; and the Defendant does not bear liability for the offense of interference with business only where, as stated by the court below, the Defendant exercised fraudulent means or force upon the workers to cause them to engage in collective action.
Although the use of monthly paid leave under the Labor Standards Act (근로기준법) is left to the free will of the worker, and, unlike annual paid leave, the employer has no authority even to change the timing thereof, nevertheless, where, absent any legitimate industrial action purpose, a large number of workers collectively and simultaneously apply for monthly paid leave and are absent from work en masse solely as a means of interfering with business, thereby impeding the normal operation of the company's business, this cannot but be found to constitute the offense of interference with business.
The court below should have examined these points further in determining whether the offense of interference with business was established; however, without doing so, it rendered its judgment as described above, thereby committing an error of law affecting the judgment due to a misunderstanding of the legal principles governing the offense of interference with business and a failure to exhaust necessary deliberation. This ground of appeal is well-founded.
(3) The remaining grounds of appeal argue that the court below violated the rules of evidence and erred in its fact-finding with respect to the portion of the judgment acquitting the Defendant, on the ground that there was no evidence to establish the Defendant's conspiracy, regarding the charge of violation of the Labor Dispute Adjustment Act arising from industrial action conducted outside the workplace and the charge of violation of the Assembly and Demonstration Act (집회및시위에관한법률). However, upon examining the evidence relied upon and rejected by the court below as reflected in the record, the judgment of the court below is acceptable, and there is no error as alleged in the argument. Accordingly, this ground of appeal is without merit.
3. Therefore, accepting the Defendant's appeal and part of the Prosecutor's appeal, the guilty portion of the judgment below concerning the Defendant and the not-guilty portion concerning the offense of interference with business are reversed and remanded, and the remainder of the Prosecutor's appeal is dismissed. This judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Justice Kim Sang-won (Presiding Justice), Lee Hoi-chang, Bae Seok, Kim Ju-han