파업과 업무방해죄 ― 한국에서 단결 금지 법리의 정립 과정 ―

Though the Constitution states that workers shall have the right of collective action, workers have not exercised their fundamental right in fact. This contradictory situation has been caused by the case law. Since 1990, the Supreme Court has applied the section 314 of the Criminal Act(obstruction of business) and the conspiracy legal theory to employees who just collectively refuse to work, for the purpose controlling union activities. Since then, Employers and government have controlled workers' collective action according to the case law. Another control method for industrial relations was established in 2001. The Supreme Court judged that any strike against employer's decision on restructuring was not legal. With this, trade unions has not been able to strike opposing employer's decision on restructuring. Since then, the bargaining power of trade unions in restructuring process has weakened rapidly. The above court decisions are against the Constitution. Thus, the case law should be reversed. Furthermore, in the terms of above, it is advisable to delete the terms of “threat of force” in the section 314 of the Criminal Act or to make it appear that this provision not be applied to non-violent collective action or strike.