위법한 직장폐쇄에 대한 업무방해죄 적용법리 검토

A person who interferes with the business of another by the method of bycirculating false facts or through fraudulent means or by the threat of force,shall be punished by imprisonment for not more than five years or by a finenot exceeding fifteen million won(Article 314 of Criminal Act). The crime ofinterference with business specified in article 314 of Criminal Act is appliedto the illegal strike widely. On the other hand, the crime of interference withbusiness is hardly ever applied to the illegal lock-out. There are littlediscussion or studies about it. The illegal lock-out is done by a collective refusal to receive a laborservice which is deemed to be a threat of force specified in Article 314 ofthe Criminal Act. It can be regarded as an action to interrupt a labor-unionactivity and worker’s business. Thus, the crime of interference with business can be applied to the illegal lock-out. Both of a refusal to offer a laborservice by a strike and a refusal to receive a labor service by a lock-out arecorresponded with the 'threat of force' on the crime of interference withBusiness. If the crime of interference with business can be applied to the refusal tooffer a labor service by the strike, it should be applied to the refusal toreceive a labor service equally. In the case of the illegal strike, the relevanceof elements of a crime can be broken by the collective action which isensured by Constitution. In the case of the illegal Lock-out, the relevance ofelements of a crime cannot be broken because it is not the rights ensured byConstitution. Therefore the relevance of elements of a crime can be brokenat the step of the elements of a crime in the case of the illegal strike, whileit can be broken at the step of the illegality in the case of the illegallock-out.