Ⅱ. Protections for Justifiable Industrial Actions

1. Immunity from civil and criminal claims from justifiable industrial action

When an employer has suffered damages due to collective bargaining or industrial action under this Act, he/she shall not claim damages against the labor union or workers. Article 20 of the Criminal Act states that actions, which by law, etc., do not violate other regulations shall not be punished(Article 3 and 4 of the Trade Union Act).
Although an industrial action, as it usually leads to impediment of the business, seems likely to constitute several offenses under the law, participants are immune to civil or criminal liability as long as the action can be justified.

2. Restriction on employer’s hiring others or replacing striking employees

An employer shall not hire or bring in any person not related to the relevant business as a substitute during the period of industrial action in order to continue work which has been interrupted by the industrial action. Moreover, the employer may not contract out or subcontract the work discontinued by an industrial action while the industrial action is in process.
However, the employer of an essential public service is allowed to replace striking employees with external employees who have no relation with the business, or to outsource or subcontract the work, so long as the external employees account for 50% or fewer of the strikers. Since replacement work is available only during the period of industrial actions, the employer may not use replacement work on a permanent basis because of the strike.

3. Restriction on detention of workers

With the exception of a criminal caught in the act, workers shall not be detained for any violation of this Act during the period of industrial action.

Ⅲ. Civil or Criminal Claims for Illegal Industrial Actions

1. Civil claims

Acts(which result in damage to the company) excluded from liability for civil compensation according to Article 3 of the Trade Union Act, are restricted to justifiable industrial actions. For unjustifiable industrial action that consists of illegal acts resulting in damage to the employer, that employer can demand compensation for such damage from the labor union and the employees concerned.

(1) Claims for default

When employees refuse to work on account of industrial actions, such as an illegal strike, etc. claims for default can be filed for violation of duty to work.
In cases where the debtor cannot carry out repayment of the debt, the creditor can claim compensation for damage. However, in cases where the debtor unintentionally(and not due to negligence) does not carry out repayment, the creditor cannot claim compensation.

(2) Claims for illegal acts

For picketing by force or obstruction of business by occupying working place, etc., claims for illegal acts of violence or obstruction of business can be filed.
“Anyone who harms another person by an illegal act, intentionally or by negligence, shall be responsible for the damage and resulting compensation.

2. Criminal claims

Criminal claims on account of industrial actions are not justifiable actions under the Labor Union Act, but are distinguished under the Criminal Act.

The criminal claims most often filed in relation to labor disputes or industrial actions are as follow:

(1) Crimes against a person
“Anyone who damages another person’s body shall be imprisoned up to seven years, suspended for his/her civil rights up to 10 years, or fined up to 10 million won.”

(2) Crimes of violence
“Anyone who does violence to another person’s body shall be imprisoned up to two years, fined up to 5 million won, or punished by detention or a fine.

(3) Obstruction of implementation of rights by violence
“Anyone who obstructs another person’s implementation of rights by violence or intimidation or forces another person to do something which is not compulsory for the other person to do shall be imprisoned up to five years.”
(4) Obstruction of business

“Anyone who obstructs another person’s business by the method detailed in Article 313(damage of trust) or by force, shall be imprisoned up to five years or fined up to 15 million won.

(5) Breaking-and-entering or crimes of special breaking-and-entering
“Breaking-and-entering: Anyone who breaks and enters another person’s house, premise, ship or airplane, or room occupied by another person shall be imprisoned up to three years or fined up to five million won.
“Special breaking-and-entering: Anyone who breaks and enters another person’s house, premise, ship or airplane, or room occupied by another person in a group or by collective intimidation or by carrying dangerous goods shall be imprisoned up to five years.”

(6) Destruction of property
“Anyone who harms utility by damaging or concealing another person’s property, documents or special recordings, such as electronic recordings, etc., shall be imprisoned up to three years or fined up to 7 million won.”

3. Responsibility for disciplinary action

The employer shall take disciplinary measures to maintain company order as a result of employees violating the labor contract, the rules of employment, or other management rules. Details of disciplinary punishment are stipulated in the rules of employment with respect to the degree of punishment, dismissal being the strongest and a warning being the weakest.



If an employee engages in unjustified industrial actions, his/her behavior is subject to disciplinary dismissal under the collective agreement or rules of employment such as severe misbehavior or intentional disobedience of a justifiable order176)




4. Related judicial rulings

(1) Calculation of damges for business discontinuance resulting from an unlawful industrial action

1) From the viewpoint of jurisprudence, an employer may demand compensation for damages suffered in terms of the loss of product sales income that would have been earned if the business had not been discontinued by the industrial action, and for the loss of fixed costs(e.g., rents, taxes, utilities, depreciation expenses, insurance premiums, etc.) that he/she had to pay while the business was interrupted.

2) The scope of compensation that a labor union and the employees involved would be responsible for shall be all damages with considerable causal relationship to illegal industrial actions. The damages suffered by an employer engaged in delivering medical services due to illegal industrial actions by a labor union and employees shall consist of revenue whose loss has a considerable causal relationship to those illegal industrial actions. This lost revenue shall be calculated by considering the related revenue during the same period of the previous year, or by considering the related revenue during the previous month, and then deducting all related profit costs from the calculated lost revenue.

(2) Agreement on immunity to liability

If an employer has agreed not to hold the strike participants responsible for damage done during the strike, the agreement covers not only the acts done during the strike but also the acts done to prepare for or induce the strike.

(3) Should union executives play a leading role in an illegal industrial action by planning the industrial action and instructing or guiding the participants, it is possible to hold individual officials responsible for the illegal action.

Given that union executives did what they did on behalf of the union, the union is liable to pay damages to the employer for losses caused by the illegal industrial action. In addition, the union executives are responsible, as individuals, for the leading role they played in planning, instructing and guiding.


Ⅳ. Prohibition against Demand for Payment of Wages during Periods of Industrial Action

When an employee participates in an industrial action and does not provide work for a period of time, his/her employer is not obligated to pay wages to the employee for the time he/she did not work. A labor union may not initiate an industrial action in order to demand and secure payment of wages for a period of industrial action(Article 44 of the Trade Union Act). The Supreme Court has ruled, in conjunction with the principle of no work, no payment, that the employee’s right to a wage request, which is equivalent to a right of work provision, does not occur during a period of industrial actions.



h he/she did not provide work because he/she participated in an industrial action.
During a period of industrial action, a participating employee has his/her obligation to provide work under the contract of employment suspended, and his/her right to wage, which is given in return for the obligation to provide work, is also suspended for the period, unless otherwise prescribed in the collective agreement, the rules of employment or another agreement between the employer and employees.182)