부당노동행위 판단 시 위력업무방해죄 적용의 정당성 및 위력개념의 타당성

The subject decision (the Seoul Central District Court Decision 2019Gohap25 delivered on Dec.13, 2019) applies the crime of interference with business by threat of force to unfair labor practice even though there is a punishment provision(Art.90) of the Trade Union and Labor Relations Adjustment Act(hereinafter “TULRA”). And as a basis for its validity, it presents a reference decision (the Supreme Court Decision 2007do482 delivered on March 17, 2011). That is, the subject decision and the reference decision are understood as the same argument structure. This article pointed out the error of the court's judgment that the subject decision and the reference decision were the same argument structure, and reviewed the validity of the concept of 'threat of force' in the crime of interference with business. The results are summarized as follows. First, It can be said that the error in the argument process of the subject decision resulted from the failure to judge that industrial action is different from unfair labor practice in the legal system in relation to the Crime of interference with business. In cases that the industrial action lacks its practical justification (Article 37 (1) of the “TULRA”), there is a justification for applying Article 314 of the criminal law. Because there is no direct punishment provision in the TULRA, it is also due to the nature of industrial action that inherently and inevitably entail the impediment to work (Paragraph 6 of Article 2 of the same Act). At this time, criminal immunity as a fair industrial action is separate from the application of penalties according to the violation of restriction articles on industrial action under the same Act. On the other hand, the system of unfair labor practices directly has the provision of punishment (Article 90 of the same Act) for violations of the prohibition of unfair labor practices (Article 81 of the same Act). So there is a difference in that the legitimacy is required to exclude the special law, TULRA and intervene in the criminal law, unlike industrial action. Second, the reference decision presented the decisive criteria for the concept of 'threat of force' of interference with business, such as 'lightness' and 'significant confusion or loss in business', this can be evaluated positively in that it has clarified the appearance of the unclear elements for the formation of a crime. On the other hand, the subject decision returned the concept of 'threat of force' and the judgment criteria to the general theory, as opposed to the reference decision. Furthermore, each disciplinary action in this case was considered to be a threat of force. The Supreme Court, however, judges the right to discipline as a employer's own right to establish and maintain corporate order. In other words, the employer's disciplinary right cannot be defined as threat of force. If punishable by other laws, this argument cannot be justified without any further explanation as to whether it is necessary to punish it by applying the criminal law, as well as not at all helpful in presenting the inherent concept of threat of force in the crime of interference with business. Therefore, it can be said that the subject decision based on the reference decision did not have logical consistency and lacked the justification for applying the crime of interference with business to unfair labor practice in the process of argumentation.