부작위로서의 위력과 업무방해

Abstract

On March 1st of 2006, the members of the national railway union went on a strike for 85 hours. Regarding this matter, the Supreme Court said that this falls under a group denial of service provision which critically interrupts the business management by having a strike at a time the employer cannot possibly predict thereby impairing or limiting the business related judgements made by the employer. Accordingly, this case was considered to be a business obstruction.obstruction is established only if the force is used as a means of accomplishing the purpose. The force is defined as the use of assault or threat where the aforementioned strike is an offence only if it is considered to have used the force. On the other hand, a strike is an act in which the laborers stop providing the service as a group and the question that needs to be asked is whether this is a commission or an omission.Supreme Court considered the strike as commission because they saw it as forcing the employer in order to fulfill their goal by refusing to provide service. At this point, a few ideas were reviewed to find a reasonable standard for distinguishing between commission and omission. Among those ideas, the energy-input theory seemed most reasonable. According to this idea, denial of service provision is an act in which the energy-input required for labor is stopped and because there is no more energy-input, the act is then considered as an omission. In this regards, the precedent which considered the strike as commission is not reasonable. even if the denial of service provision is an omission, if it is acknowledged as an assault or threat, it can still be considered as a business obstruction. Assault by omission can be acknowledged based the commissive duty which removes the physical influence from the body of an employer. However, assault by omission cannot be acknowledged in this case because the employer was not physically assaulted.fact that the union told the employer that they are going to stop providing the labor service if their demands are not met can be considered as a threat. However, in order for threat to be acknowledged, the demands should contain illegality. However, there was no illegality in the demands given by the railway union and the denial of service provision itself is neither illegal nor subject to criminal punishment. the major opinion about the precedent which sees the act of denial of service provision by strike as a commission and business obstruction does not seem reasonable. Where the opposing opinion which criticizes the major opinion and sees the strike as an omission that does not possess the forcibility required for acknowledging the business obstruction seems rather reasonable.