쟁의행위와 위력업무방해죄의 관계 —이론과 판례—

In Korea, Supreme court has ruled that labor union’s industrial action punished by obstruction of work under Art 314 of the Criminal code from 1990. Constitutional court decided that ‘justifiable’ industrial action has no criminal responsibility within the bounds of the constitution and labor law, but ‘unjustifiable’ industrial action beyond internal limit commits under Art 314 of the criminal Code in 1998(general illegality). Constitutional court decided again in 2010 that industrial action is justifiable in principle, but ‘unjustifiable’ industrial action beyond internal limit commits under Art 314 of the criminal Code(exceptional illegality). So I came to the conclusion as follows. Basically, It is illegal to strike unless labor union’s industrial action comes under Art 20 of the criminal Code. This has caused theoretical and practical problems as follows. Theoretical problem: ‘Problems of interpretation on Art 4 of labor relations law’ by the unseparation of labor law’s illegality and criminal law’s illegality. Practical problem: ‘Turning civil liability into criminal liability’ by refusal service to employer is treated with obstruction of work. It was caused by equate industrial action’s concept(Art 2) with requirements of obstruction of work and by turn labor law’s regulations into obstruction of work’s components. However industrial action’s concept is one of the applicative range of labor law’s regulations. And industrial action is not applicable to obstruction of work, even though its against the labor law. Because the two things cannot be equated. To solve this problem, it is necessary to separate labor law’s illegality from criminal illegality. For example, it is not violate obstruction of work, even though labor union refuse service to employer. Because passive refusal service to employer is protected by constitution and labor law. But industrial action involving violence or the threat of violence is will be punished by assault and so on. Punishing union’s industrial action undermines labors three primary rights. But as was stated above, to punish industrial action has become common knowledge. It is show that criminal law has no respect on the right to labor guaranteed by the constitution. Therefore, we need to figure out how to fix these problems. First, mutual respect between constitution and criminal law must be formed. Second, as special law, labor and criminal law (Arbeitsstrafrecht) must be applied in order to guarantee the basic legal rights of labor. Of course, management rights also should be concerned.