단순한 집단적 노무제공거부행위와 위력에 의한 업무방해죄 - 헌재 2010. 4. 29. 2009헌바168 결정;헌재 1998.7.16, 97 헌바 23 결정을 중심으로 -

초록

This paper provides a critical analysis and a review on appropriateness of the Constitutional Court Decisions to impose the crimes of interference with business by threat of force on the simple collective refusal to labor service (industrial action) cases. Particularly, the Constitutional Court’s decision in April 2010, somewhat differed from the previous decisions made in 1998 and 2005. The decision of the Constitutional Court, which dealt with the imposing of crimes of interference with business to overall industrial actions, held a differed opinion by stressing not to restrict excessively of the areas protected under the right of collective action. In such regard, this paper reviews the implication of the decision with focus to the issues of its surrounding legal principles of imposing punishment to the simple collective refusals to labor services (industrial actions). In particular, it is evident that the simple refusal to labor service would fail to construct the requirement of the crimes of interference with business, “at least” not by qualifying the concept of threat by force, even at the situation where the legitimacy of the aim was denied at later stage. Further, since the worker’s legal status does not correspond to the guarantor to secure the labor service, and thus the obligation to provide the labor does not exist, the simple refusal to labor service does not construct the requirement of crimes of interference with business. Therefore only the default on a monetary debt of civil case remains. A personal opinion is, even with for the industrial actions lack justifications,not to impose the penal regulation of interference of business unless the manner of action violates with threat of force the freedom of decision-making right. However with the industrial actions that those abuse the legitimacy of the aim, if is required to balance the legal interest of both parties, a realistic approach may be to prepare and apply a “minimal range” of the penal regulation which should be based on “The Trade Union And Labor Relation Adjustment Act”.

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