업무방해죄의 해석과 쟁의행위 중 파업과의 관계

Our case are positive on application of crime of interference on business to laborers'strike. Meanwhile, the mainstream scholars including labor law jurists are critical thereon. However, prudence is required when judging on socially meaningful acts based on Criminal Act. In this regard, this paper shed new light to the relationship between strike and crime of interference on business, by defining components of crime of interference on business and behavior analysis on collective refusal on providing labor. This paper firstly confirms the characteristics of crime of interference on business pursuant to Criminal Act Article 314 and establishes the power concept as type of behavior, and then reviews whether strike as collective refusal on providing labor falls into components constituting crime of interference on business pursuant to Criminal Act Article 314. Regarding this, whether strike interferes business and whether strike has power were the key points. 「Trade Union and Labor Relations Adjustment Act (hereafter referred to as Trade Union Act)」affirmed that strikes do interfere with other's business, and case affirmed such power in strike. However, traditional cases found out that strike fundamentally and inevitably has the power of crime of interference on business. Recent cases understand that strike has power only when employer's free intention of continuing business is assessed as susceptible to be suppressed or fallen into confusion due to strike. Additionally, this study reviewed whether there is any limitation in the Consti-tutional Law or Trade Union Act in applying crime of interference on business to strikes. There are critics arguing that if strike as refusal to provide labor criminally is penalized, then the result is coercion of labor and hence in violation of prohibition on compulsory labor pursuant to the Constitutional Law. However, regarding strike pursuant to Trade Union Act, the issue is not whether labor contract is simply violated but whether social agreement for mutual prosperity between employer and laborers is violated. Therefore, it is confirmed that penalty on refusal of providing labor is not a violation of Constitutional Law. And through interpretation of Trade Union Act Article 4 and 39, this paper reviewed the point that the Act does not limit application crime of interference on business pursuant to Criminal Act. However, though strike is nonfeasance whereby workers refuse to provide labor,our case understood strike as active feasance. This is due to misunderstanding on interpretation of power concept, and based on the premise that strike is nonfeasance, this paper argues that when applying crime of interference on business to strike, judgment is required on laborers' guarantee obligation and equivalency with feasance. Especially, non feasance is more strict in requirement for establishment of crime compared with feasance. It is very meaningful to judge refusal to provide labor as non-feasance in that the court becomes prudent in application of crime of interference on business for the ideal modern employer-labor relation of mutual prosperity between user-employees.