쟁의행위의 작위성에 관한 연구

Abstract

After the Constitutional Court ruled that the simple refusal to labor service is not illegal in 1998 and 2010, the Supreme Court change the opinion that ‘of course’ simple refusal to labor service conform to Art. 314, clause 1 of the Criminal Code in 2011. And Supreme Court ruled that the simple collective refusal to labor service judged to be a commission must meet the requirements for lighting-act and damage to interpret a force of Art. 314, clause 1. But the simple collective refusal to labor service is an omission realistically and the omission is not interpret as a force. Because the labor union have no guarantee personal status and obligation duty of untrue ommission in relation to the Forcible Obstruction of Business. Therefore the Supreme Court should be aware that the simple collective refusal to labor service can be take a form of commission or omission in relation to restrictions of the Labor Union Act. Because the Labor Union Act is enacted that the labor union, for example,should follow the conciliation-prepositive principle under Art. 45, clause 2 of the Labor Union Act. These regulations have been enacted in the form of commission. So the labor union that illegally failed to follow a procedure shall be sentenced to a maximum of 1 years in prison or 10 million won in fines. But in this situation, the Supreme Court mentioned that a strike action in violation of that regulatory procedure is a commissive crime as force and the labor union is be punished for violation of the Criminal Act not the Labor Union Act. When interpreted in this way, the judicial precedent of Supreme Court is contradictory with Art. 12, clause 1 and Art. 33, clause 1 of the Constitution. The strike action is guaranteed by Art. 2 of the Labor Union Act which define the strike as acts disrupting employer business, and by Art. 4 of the Labor Union Act which justifiable act squirm out of the criminal responsibility. So the simple refusal to labor service is legal in principle. Of course illegal strike action in relation to the Labor Union Act will be punished by penalty provisions. This would assure right of collective action for the employees, and property right and freedom of business activity for the employer.