파업과 부작위에 의한 위력업무방해죄 - 대법원 2011.3.17. 선고 2007도482 전원합의체 판결을 중심으로 - (Labor Strike and Omission Crime of Interference with Business)

서지정보

· 발행기관 : 한국비교형사법학회
· 수록지 정보 : 비교형사법연구 / 13권 / 2호 / 337 ~ 364페이지
· 저자명 : 윤종행

초록

According to article 314(Interference with Business) of the Korean Criminal Code, a person who interferes with another person's business by circulating false facts or through fraudulent means, or by the threat of force shall be punished. Korean constitutional court ruled that this article is constitutional in the viewpoint of the constitutional principle of clearness in 1998.
Recently in 2011, Korean supreme court ruled that illegal labor strike could be interpreted as the threat of force in some specific situations and punished under this article. It is a little change from it's old decision in the sense that illegal labor strike may be punished exceptionally not usually. It is desirable to interpret and apply this article carefully and restrictively with regard to labor strike since labor dispute should be ruled by the principle of labor law not by criminal law.
However, there are several flaws in this Korean supreme court's decision. Most of all, labor strike, collective refusal of labor without battery or intimidation should be regarded as a form of omission and the requirements of omission crime should be examined scrupulously. Mens rea, expectability about the serious financial damage, and the correspondence requirement regarding the element of "threat of force" are the essential requirements for the labor strike to be the crime of "interference with business." Modification of this article would be the conclusive answer to avoid excessive punishment with regard to the issue of labor strike and criminal regulation.

영어초록

According to article 314(Interference with Business) of the Korean Criminal Code, a person who interferes with another person's business by circulating false facts or through fraudulent means, or by the threat of force shall be punished. Korean constitutional court ruled that this article is constitutional in the viewpoint of the constitutional principle of clearness in 1998.
Recently in 2011, Korean supreme court ruled that illegal labor strike could be interpreted as the threat of force in some specific situations and punished under this article. It is a little change from it's old decision in the sense that illegal labor strike may be punished exceptionally not usually. It is desirable to interpret and apply this article carefully and restrictively with regard to labor strike since labor dispute should be ruled by the principle of labor law not by criminal law.
However, there are several flaws in this Korean supreme court's decision. Most of all, labor strike, collective refusal of labor without battery or intimidation should be regarded as a form of omission and the requirements of omission crime should be examined scrupulously. Mens rea, expectability about the serious financial damage, and the correspondence requirement regarding the element of "threat of force" are the essential requirements for the labor strike to be the crime of "interference with business." Modification of this article would be the conclusive answer to avoid excessive punishment with regard to the issue of labor strike and criminal regulation.

참고자료

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