쟁의행위의 형사면책법리에 관한 해석론- 노동조합 및 노동관계조정법 제4조와 형법 제20조의 관계를 중심으로 -

Abstract

In historical background, the Constitution allows industrial action to exemption from criminal responsibility but the Labor[Trade] Union Act and the Criminal Code allows industrial action to criminal responsibility. And such an attitude is a strong influence on the Constitutional Court and the Supreme Court’s decision. So, it means that industrial action violating the Labor[Trade] Union Act lose its justification and comes under Section 1 Article 314 of the Criminal Code. But it doesn’t matter whether industrial action is criminal responsibility or not, because it is just as the right of collective action according to the Constitution. Of course, it’s criminal act to violence, threat, destruction etc. occurred in the process of industrial action. But the Constitutional Court and the Supreme Court’s decision did not separate industrial action and criminal act, but it integrated. These decisions converted industrial action into criminal act. In Korea, it is not more an assertion of the right to collective action. The Constitutional Court also decided on 2010 that industrial action violating the Labor[Trade] Union Act comes under Section 1 Article 314 of the Criminal Code. So, The Supreme Court brought forward the same opinion on 2011. The Court judged to refuse a supply of labor as a group by forcible concept and predictability. But under Section 1 Article 33 of the Constitution and Section 6 Article 2 of the Labor[Trade] Union Act, industrial action have excluded the possibility that there can be criminalize. In this case, Article 4 of the Labor[Trade] Union Act has to interpret in Labor Law relationships. Because Labor Law provides guidelines on how to punish violators of offense.