철도파업에 대한 손해배상판결과 파업권 ― 서울고등법원 2009. 3. 20. 선고, 2007나122775 판결의 평석 ―

Civil sanctions against trade unions should be proportionate to the fault committed and in conformity with the principles of freedom of association prescribed in the Constitution. Especially tortious liabilities of trade unions that infringed provisions of legislations restricting or prohibiting the right to strike should not be out of proportion to the ends pursued or lead to excess. Imposing tortious liabilities on the violations of strike prohibitions is possible only when these violations are considered to infringe the rights or benefits of the employers which can be protected by law. Peaceful strikes which are legitimate exercise of the right by workers should not lead to civil liabilities. In principle, the damages suffered by the employers that might be caused due to the collective cessation of works are not to be compensated. Peaceful strikes which result just in cessation of works are different from other industrial actions entailing physical force and should not be evaluated equally in tortious liabilities. The decision of Seoul High Court that ordered a trade union to pay about seven billion won as a compensation for damages to an employer is not in conformity with the principles of freedom of association.