1. 'Case where a strike was found to not meet the “might” requirement

In this case, the defendants were the head officials of the labor union who went on illegal strike for 107 days by colluding with approximately 700 labor union members regarding matters they claimed had infringed on their rights to human resource affairs and management, and they were indicted for interfering with business relations and for causing damage to the company. The Daegu District Court held that the strike did not occur at a time that was unexpected by the company and therefore the strike failed to meet the “might” (wi-ryok in Korean) requirement for the crime of tortious interference with business relations in consideration of the following facts: (a) before the labor union commenced a partial strike, it had already been in sharp conflict with the company for approximately three months and had started negotiations with the company; (b) after the labor union declared the negotiations had failed, it commenced a partial strike through a voting process involving all the members and ongoing mediation process with the company, and then went on overall strike; (c) the company closed down the office as a countermeasure against the strike; and (d) the company continued its business by recruiting new employees for the purpose of resuming its business which was temporarily suspended due to the strike.  The prosecutor appealed this lower court decision to the Supreme Court, but the Supreme Court dismissed the appeal (Supreme Court decision, case no. 2012Do3305 rendered on June 14, 2012).  

  1. Change in the Supreme Court’s view regarding the requisite elements for a strike to meet the “might” requirement

In the past, on the premise that it is against the law for employees to refuse to work as a group which causes damage and interferes with the normal business of the employer, the Supreme Court has held that such act constitutes tortious interference with business relations to the extent that such act is deemed to be illegal and not in compliance with the laws on labor relationships as recognized under the Criminal Code. The Supreme Court, however, held in its en banc decision issued on March 17, 2012 that in order to meet the “might” requirement for tortious interference with business relations, considering all the circumstantial facts, the following elements must be met: (a) first, a strike suddenly occurred at a time unexpected by the employer; and (b) second, a strike caused enormous chaos or substantial damage to the operation of the employer’s business (en banc decision by the Supreme Court, case no. 2007Do482 rendered on March 17, 2011). The Supreme Court applied a narrow interpretation of the meaning of “might” stating that since employees are entitled to fundamental rights, such as the right to organize, the right to bargain collectively and the right to collective action, a strike cannot always be deemed to constitute tortious interference with business relations.

Since the 2011 decision, the Supreme Court issued a decision which provides standards for application of the second element described above. In this case, the defendant was indicted for interfering with business relations by colluding with its labor union members by going on a general strike at places of business throughout the country for the main purpose of objecting to the import of U.S. beef and demanding re-negotiation of such matter.  The Court held such actions obstructed employer’s businesses in violation of the law (Supreme Court decision, case no. 2010Do7733 rendered on October 27, 2011). However, there has been no precedent providing standards for determining when an abrupt strike occurs with respect to the first element described above.

In summary, the Supreme Court decision issued  in June 2012 is meaningful since it was the first case that provided a standard for application of the first element with respect to whether a strike suddenly occurred at a time unexpected by the employer.)