업무방해와 파업방해(Ⅱ) - 대법원 2011. 3. 17. 선고 2007도482 전원합의체 판결의 법치국가적 문제점

Abstract

The Supreme Court (17 March 2011, 2007do482) have revised the former opinion of the punishability of the collective refusal to work, but still hold the view: if a strike were “committed abruptly at a time unpredictable to the employer causing serious confusion or material damage”, then strikers would be charged with the “obstruction of business” under article 314 (1) of criminal code. In this paper we try to show that this revised opinion of the Supreme Court is still unconstitutional and anticonstitutional. A strike can only exercise force over the employer if it has already disrupted a business operation. Therefore a strike can not be an exercise of force which shall disrupt a business operation. The assertion, a strike is criminal, is based on a slurring of the two constituent elements of the criminal obstruction of business, scilicet the exercise of force and the interference with business operation. This violates the principle rule of clarity. The Supreme Court’s view is also anticonstitutional due to the lack of consideration that the article 33 (1) of constitution guarantees the free choice of mediums of industrial action and that material damages to the employer is a criminal irrelevant risk.