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현행 형법상 "위력"에 의한 업무방해죄의 문제점 및 개선방안
The Controversy over the "Offense of Obstructing Operations" and its Solutions
주승희 ( Seung Hee Ju )
안암법학 vol. 34 175-205(31pages)
UCI I410-ECN-0102-2012-360-001825172

According to article 314 of the Korean Criminal Code, a person who obstructs others` operation by such means as circulating false information, trickery, or coercion is punished by imprisonment of less than 5 years or by a fine less than 15,000,000 won. This can be divided into ``obstructing operations by trickery`` and ``obstructing operations by coercion``. And as regards to the latter, the Korean Constitutional Court, in 1998 and 2010, held that it is not against the Void for Vagueness Doctrine. Nonetheless, the offense of obstructing operations has been abused as the means to oppressing and infringing the rights of collective labor actions. In the same vein, the International Labor Organization has repeatedly advised the Korean government to amend the article 314. It is apparent that the requirements of the offense, such as the term ``operations,`` are too broad in its definition. Moreover, the Court defines such offense as ``offense provoking general danger,`` which consequently enlarges the spectrum of activities governed by the article 314. The Court`s interpretation of article 314 accompanied by the people`s growing consciousness of constitutional rights will subsequently result in including activities that were formerly excluded from the requirements of article 314 (such as activities of students and housewives) as the subject governed by the article. This will only result in more oppression on people`s right of action. It is necessary to annul article 314, in order to overcome the problems innate in the article itself. If not, the requirements of the offense must be clarified and made stricter. The ways to do so are as follows. First, we can adopt the social responsibility theory as a reason for excluding certain conducts from the requirements of the article 314. For instance, labor disputes such as strikes can be treated as justifiable or excusable and therefore not regulated by the article 314. Second, governmental operations must be excluded from the domain of the term ``operations``so that any conduct obstructing governmental operations can be punished by the relevant article, which already exists in the Criminal Code (article 136, 137). Third, the offense of obstructing operations must be understood as an offense provoking specific danger rather than general danger. The conducts that obstruct the operations of others, therefore, should be punished only if specific risk of danger was caused by such conduct.

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