[Defendant] Defendant 1 and 6 others
[Appellant] Defendants
[Defense Counsel] Law Firm Yeoneun, Attorney Kwon Doo-seop and 2 others
[Lower Court Judgment] Seoul Western District Court Decision 2016No1700, decided June 8, 2017
[Order]
The judgment of the court below is reversed, and the case is remanded to the Seoul Western District Court.
[Reasoning]
The grounds of appeal (including the supplementary brief on grounds of appeal submitted after the expiration of the period for submitting the grounds of appeal, to the extent it supplements the grounds of appeal) are examined.
1. Relevant legal principles
Article 32(1) of the Criminal Act (형법) provides, "A person who aids and abets another's crime shall be punished as an accessory." Aiding and abetting refers to an act of support that, with knowledge of the principal offender's specific preparation for or commission of the offense, makes the commission of the act possible, facilitates it, or makes it easier, or an act that strengthens or increases the infringement of legal interests by the principal offender before the principal offender's criminal act is completed, and which is closely related to the principal offender's realization of the crime. Since the offense of aiding and abetting is established as dependent upon the principal offense, there must be a causal relationship between the act of aiding and abetting and the principal offender's realization of the crime. For the offense 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 a real contribution to the principal offender's realization of the crime, such as by causing the principal offender to realize a specific danger or by increasing the opportunity for the criminal result to occur. Where a person has merely assisted an act that is not closely related to the principal offender's realization of the crime, the offense of aiding and abetting is not established.
Where an industrial action (collective labor action) constitutes the crime of obstruction of business, if a third party facilitates the implementation of the industrial action while knowing of such circumstances, the offense of aiding and abetting obstruction of business may be established. However, in order to substantively guarantee the three labor rights (노동3권) provided for in Article 33(1) of the Constitution, it is necessary to ensure that workers or labor unions can broadly receive assistance from third parties when exercising their three labor rights; furthermore, since third parties who assist workers or labor unions also have the freedom of expression under Article 21 of the Constitution and the general freedom of action inherent in Article 10 of the Constitution, when determining whether an act of assistance in relation to an unlawful industrial action constitutes aiding and abetting obstruction of business, the scope of establishment of the offense of aiding and abetting obstruction of business must be carefully determined so as not to chill the aforementioned fundamental rights guaranteed by the Constitution (see Supreme Court en banc Decision 2017Do19025, decided September 9, 2021; Supreme Court Decision 2015Do12632, decided September 16, 2021, etc.).
2. Summary of the facts charged
The Defendants are the head of the ○○ Regional Headquarters and other officials of the ○○ Regional Headquarters of the Korean Railway Workers' Union (hereinafter "the Railway Union") (Defendant 7 is a former head of the Seoul Rolling Stock Branch).
Non-indicted 1 and Non-indicted 2, who are members of the Railway Union, on the pretext of opposing the rotational transfer (순환전보) that Korea Railroad Corporation had decided to implement, climbed up, from around 06:20 on April 9, 2014, to a waiting area partway up a lighting tower approximately 15 meters in height installed at the Seoul Rolling Stock Depot, set up a two-person tent, hung a banner reading "Not even one person will be sent away. Withdraw the forced transfer," and occupied the site, thereby causing Korea Railroad Corporation, for the sake of their safety, to cut off the power to the lighting tower from around 08:35 on the same day until around 13:00 on May 2, 2014, rendering the lighting tower unable to be used for its intrinsic function of providing illumination during that period, and thereby obstructing Korea Railroad Corporation's nighttime shunting (marshalling) operations by force.
In order to support the above sit-in protest by Non-indicted 1 and Non-indicted 2, the Defendants set up a tent at the foot of the lighting tower, held a solidarity rally (hereinafter "the rally in this case"), provided food, books, and other items needed by Non-indicted 1 and Non-indicted 2, or climbed the lighting tower to comfort them, thereby facilitating the commission of the obstruction-of-business offense by Non-indicted 1 and Non-indicted 2, and thereby aiding and abetting them.
3. Determination on the grounds of appeal
A. Examining the following circumstances ascertainable from the record in light of the legal principles set forth above, it is difficult to recognize a causal relationship between the Defendants' acts and the realization of the offense of obstruction of business by the principal offenders, Non-indicted 1 and Non-indicted 2, and thus the Defendants' acts cannot be deemed to constitute the offense of aiding and abetting obstruction of business.
1) The Railway Union was preparing for a struggle opposing Korea Railroad Corporation's rotational transfer policy, but it appears that Non-indicted 1 and Non-indicted 2 occupied the lighting tower independently of the Railway Union's prior plan, and it does not appear that the Defendants were involved in their initiation of the occupation.
2) The Defendants' act of setting up the tent and holding the rally in this case was fundamentally carried out as part of labor union activities aimed at expressing opposition to the company's rotational transfer policy and seeking its withdrawal. Even if there were some statements at the rally in this case supporting the occupation of the lighting tower, in light of their content and context, such statements cannot be said to have departed from the protected areas of freedom of expression, general freedom of action, or the right to organize, and it is difficult to view them as having made a real contribution to the realization of the crime by Non-indicted 1 and Non-indicted 2 through the occupation of the lighting tower.
3) Considering the content of the items provided by the Defendants to Non-indicted 1 and Non-indicted 2, the frequency, timing, and circumstances of the provision, and the characteristics of the place of occupation, it cannot be denied that the Defendants' provision of food and other items was an act required for the survival and safety of Non-indicted 1 and Non-indicted 2, who were isolated for a long period in a narrow space installed high above the ground with no other means of receiving food; it appears that it was for this reason that the company, too, permitted the delivery of items each time after confirming their contents. Moreover, there is sufficient room to view Defendant 4's act of climbing the lighting tower on the first night of the occupation to meet Non-indicted 1 and Non-indicted 2 as having been carried out for the purpose of confirming their well-being.
4) Taking the foregoing circumstances together, even if the Defendants' acts, viewed as a whole, had some aspect of assisting the occupation of the lighting tower, it is difficult to conclude that they constitute an act of support for, or an act strengthening or increasing the infringement of legal interests arising from, the principal offenders' crime of obstructing nighttime shunting operations by rendering the lighting tower unable to be used for its intrinsic function—that is, an act closely related to the principal offenders' realization of the crime. Therefore, the Defendants' acts cannot be deemed to have a causal relationship with the act of obstruction of business sufficient to establish the offense of aiding and abetting.
B. Nevertheless, the court below, contrary to the foregoing, found the Defendants guilty of all the facts charged regarding aiding and abetting obstruction of business for the reasons stated in its judgment alone. The judgment of the court below thus contains an error affecting the judgment by misunderstanding the legal principles concerning the establishment of the offense of aiding and abetting obstruction of business, and the Defendants' grounds of appeal are therefore well-founded.
4. Conclusion
Accordingly, the judgment of the court below is reversed, and the case is remanded to the court below for further hearing and determination, this judgment being rendered by the unanimous opinion of the participating Justices, as set forth in the Order.
Justice Park Jeong-hwa (Presiding Justice), Justice Noh Tae-ak, Justice Oh Kyung-mi (Justice in charge)