직장점거에 의한 쟁의행위의 허용 범위와 형사책임

초록

Workers are able to strike in the facilities which they are working based on their constitutional right to collective action. The Korean supreme court recognizes the legitimacy of the sit-down strike only for partial and co-existential workplace occupation, saying “Full and exclusive workplace occupation is not allowed because it results in the confusion of business by excluding the employer’s management and control for the facilities.” However, court case law is not only a theory presented to recognize the legitimacy of the sit-down strike in a strick way when strike other than a place of business is prohibited under the old law, but also does not offer objective criteria to distinguish ‘partial and co-existential workplace occupation’ and ‘full and exclusive workplace occupation’. It does not conform to the regulations concerning workplace occupation under the Korean Trade Union and Labor Relations Adjustment Act(‘the Trade Union Act’). Therefore, even if the regulations on workplace occupation under the Trade Union Act are not the most reasonable and effective, interpretations should be developed to establish the justifiable scope of workplace occupation based on the Trade Union Act unless the provisions related to workplace occupation are considered as unconstitutional. Thus, it is not allowed in principle to occupy production and major facilities to guarantee the employer's freedom of operation or facility management right, but the right to collective action of striking workers takes precedence in subordinate facilities, so it should be interpreted as legitimate to occupy subordinate facilities fully and exclusively unless there are special circumstances such as serious damage to the exchange value of subordinate facilities. In cases where workplace occupation actually takes place after entering a strike, criminal responsibility for obstruction of business or trespassing of facilities is problematic. Such prosecutions by prosecutors can in themselves lead to excessive criminal punishment for the sit-down strike, given that the penalty clauses of the Trade Union Act should be applied first and there is no need for general criminal law to intervene. In this case, the court may actively induce the prosecutor to change the indictment, but if the prosecutor fails to comply, the court may acquit the prosecutor on the grounds that obstruction of business and other crimes are absorbed into the violation of the Trade Union Act and not established separately. In conclusion, excessive punishment for sit-down strike should be restrained.

키워드