위력업무방해죄의 ‘위력’ 개념에 대한 해석론- 대법원 2011.3.17. 선고 2007도482 전원합의체 판결을 중심으로 -

Abstract

Constitutional court decided in 2010 that strike is justifiable in principle, but ‘unjustifiable’ strike beyond internal limits commits under 1st Section of Article 314 of the Criminal Code(exceptional illegality). So it is important to analysis the concept of ‘forcible’. In general the Supreme Court judged the concept of ‘forcible’ in the 1st Section of Article 314 of the Criminal Code by the ‘pressure by violence’(a) or ‘pressure by social and economical and political status’ and ‘pressure by authority’(b). It judged particularly the strike to violate the Labor[Trade] Union Act by (b) and applied the 1st Section of Article 314 of the Criminal Code. But it had no comment why the violations could be interpreted by the ‘forcible’ concept in the Obstruction of Business. The ‘forcible’ concept (b) finally used to be criminalize the strike. But the strike is guaranteed by the 1st Section of Article 33 to Korean Constitution, which contains the labor’s rights to strike. This meant a strike guaranteed by the right of collective action excluded the possibility that there can be criminally liable for that. Therefore, the Supreme Court should not materialize a policy of criminal law that would be criminalize to the strike—unless the strike consists of (a).