Scope of the Prohibition on Collective Action at Major Defense Industry Enterprises and the Principle of Strict Interpretation of Penal Statutes

1. 01Question

   Does a worker of an in-house subcontractor at a major defense industry enterprise who staged a total of 32 strikes also violate the prohibition on collective action?

2. 02Holding

   The Supreme Court premised its holding on the fact that Article 33 (1) and (3) of the Constitution guarantee the three fundamental rights of workers while permitting the right to collective action of those engaged in a major defense industry enterprise to be restricted by Act. It found that Article 41 (2) of the Trade Union and Labor Relations Adjustment Act prohibits collective action by persons engaged in designated enterprises, among them those engaged in the supply of electric power and water and in the works enumerated in the Presidential Decree, and that Article 88 punishes such conduct with a heavy penalty. It held that, in light of the principle of minimal restriction and the principle of proportionality under Article 37 (2) of the Constitution, and the principle of strict interpretation of penal statutes, the scope of employees whose collective action is prohibited must be construed strictly and restrictively. It held that an employee belonging to a subcontractor that has not been designated cannot be regarded as being engaged in a designated enterprise merely by working at the same place and providing labor for the production of defense material.

   Summary of the holding, verbatim

   [1] 헌법 제33조 제1항은 근로자의 근로3권인 단결권, 단체교섭권과 단체행동권을 헌법상 보장된 기본적 권리로 명시하고, 같은 조 제3항에서 법률이 정하는 바에 따라 주요방위산업체에 종사하는 근로자의 단체행동권을 제한하거나 인정하지 않을 수 있다고 규정하고 있다

   Unofficial English translation

   [1] Article 33 (1) of the Constitution expressly sets forth the employee's three labor rights, namely, the right to organize, the right to collective bargaining, and the right to collective action, as fundamental rights guaranteed by the Constitution, and paragraph (3) of the same Article provides that the right to collective action of employees working for major defense industry contractors may be restricted or not recognized in accordance with the provisions of the Act

3. 03Disposition

   Dismissed Stated in the decision

   상고를 기각한다.

   Unofficial English translation

   The appeal is dismissed.

4. 04Form of the test

   Elements stated Stated in the decision

   [1] 헌법 제33조 제1항은 근로자의 근로3권인 단결권, 단체교섭권과 단체행동권을 헌법상 보장된 기본적 권리로 명시하고, 같은 조 제3항에서 법률이 정하는 바에 따라 주요방위산업체에 종사하는 근로자의 단체행동권을

   Unofficial English translation

   [1] Article 33 (1) of the Constitution expressly sets forth the employee's three labor rights, namely, the right to organize, the right to collective bargaining, and the right to collective action, as fundamental rights guaranteed by the Constitution, and paragraph (3) of the same Article provides that the right to collective action of employees working for major defense industry contractors

5. 05Factors

   • 노동조합법 제41조 제2항에 의하여 쟁의행위가 금지됨으로써 기본권이 중대하게 제한되는 근로자의 범위는 엄격하게 제한적으로 해석하여야 한다.
   • 주요방위산업체로 지정된 회사가 사업의 일부를 사내하도급 방식으로 다른 업체에 맡겨 방산물자를 생산하는 경우에 하수급업체에 소속된 근로자는 노동조합법 제41조 제2항이 쟁의행위를 금지하는 ‘주요방위산업체에 종사하는 근로자’에 해당한다고 볼 수 없다.

   Unofficial English translation

   • The scope of employees whose fundamental rights are seriously restricted by being prohibited from exercising the right to collective action under Article 41 (2) of the Trade Union and Labor Relations Adjustment Act must be interpreted strictly and restrictively.

   • Where a company designated as a major defense industry contractor entrusts part of its business to another company in the form of in-house subcontracting to produce defense articles, employees belonging to the subcontractor cannot be regarded as 'employees working for major defense industry contractors' whose exercise of the right to collective action is prohibited by Article 41 (2) of the Trade Union and Labor Relations Adjustment Act.

6. 06Relation to precedent

   States a new standard Stated in the decision

   [1] 헌법 제33조 제1항은 근로자의 근로3권인 단결권, 단체교섭권과 단체행동권을 헌법상 보장된 기본적 권리로 명시하고, 같은 조 제3항에서 법률이 정하는 바에 따라 주요방위산업체에 종사하는 근로자의 단체행동권을 제한하거나 인정하지 않을 수 있다고 규정하고 있다

   Unofficial English translation

   [1] Article 33 (1) of the Constitution expressly sets forth the employee's three labor rights, namely, the right to organize, the right to collective bargaining, and the right to collective action, as fundamental rights guaranteed by the Constitution, and paragraph (3) of the same Article provides that the right to collective action of employees working for major defense industry contractors may be restricted or not recognized in accordance with the provisions of the Act

   Decisions referred to

   해당 본문 참조

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   If defense materials are produced at the same place as a designated enterprise, does everyone thereby fall within the scope of the prohibition on collective action?

   The scope of the prohibition will need to be re-examined if the subject of designation and its scope are defined differently, or if the works enumerated in the Presidential Decree are changed.

Read 2026-10-15 · Cross-read 2026-10-16. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.

Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.