According to the unconstitutionality of the provisions of the former Act, the Constitutional Court's ruling of inconsistency with the Constitution as to the provisions of the former Act, and the grounds for provisional application, the Constitutional Court's order to continue to apply the provisions of the former Act to a certain time even after confirming the unconstitutionality of the provisions of the former Act, is due to the necessity to continue to establish teachers' union unions for elementary and secondary school teachers based on the provisions of the former Act, and the reason for respect for the scope of guaranteeing the right to organize for university professors is not a simple decision of unconstitutionality, but a decision of inconsistency with the Constitution as to the provision of the former Act is not a ground for maintaining the status beyond the scope of the right to organize or legislative formation. Thus, the above decision of inconsistency with the Constitution cannot be seen as a ground for establishing teachers' union unions' union unions' union members' union members' union members' union members' union members' union members' union members' union members' union members' union members' union members' union members' union members, and it cannot be viewed as an unlawful decision of inconsistency with the Constitution as to the above provision.

July 9, 2020

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

A. The Plaintiff is a national trade union whose members are teachers working for schools under the Higher Education Act.

B. On April 20, 2015, the Plaintiff submitted a trade union establishment report to the Defendant (hereinafter “instant report”).

C. On April 23, 2015, Article 5 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) provides that an employee may freely organize a trade union or join it, but a public official and a teacher shall be separately prescribed by other Acts. Article 2 of the Act on the Establishment, Operation, etc. of Teachers’ Unions (hereinafter “Trade Union Act”) limits the scope of subscription to teachers’ labor union as a teacher under Article 19(1) of the Elementary and Secondary Education Act. However, the Plaintiff’s report on the establishment of labor union submitted by the Plaintiff is subject to the organization of teachers under the Higher Education Act where the establishment of labor union is not allowed under the current Labor Union and Labor Relations Adjustment Act (hereinafter “instant disposition”).

D. The Plaintiff, who is dissatisfied with the instant disposition, filed the instant lawsuit seeking revocation of the instant disposition in the court, and filed an application for adjudication on the unconstitutionality of statutes with respect to the proviso to Article 5 of the Trade Union Act and Article 2 of the Teachers’ Labor Union Act during the proceeding of the lawsuit, and the said court filed a motion for adjudication on the unconstitutionality of statutes on December 30, 2015.

E. The Constitutional Court en banc Decision 2015Hun-Ga38 Decided August 30, 2018 limited the object of adjudication to Article 2 (1) of the former Act on the Establishment, Operation, etc. of Teachers’ Unions (amended by Act No. 17430, Jun. 9, 2020; hereinafter “former Act”) and Article 2 (2) of the former Act violates the principle of excessive prohibition, thereby infringing the right to organize of university professors who are not public educational officials and not public educational officials at all recognize the right to organize of university professors who are not public educational officials, thereby violating the Constitution beyond the scope of the legislative formation right. (1) In a case where a mere decision of unconstitutionality as to Article 19 (1) of the former Act loses its validity, the Constitutional Court made it difficult to reasonably determine the legislative scope of the amendment of the former Act to ensure the autonomy and autonomy of teachers until the establishment of teachers’ union members in office became grounds for the establishment of teachers’ union members in accordance with Article 19 (2) of the Elementary and Secondary Education Act.

F. Article 2 of the Act on the Trade Union of Teachers amended by Act No. 17430, Jun. 9, 2020 included “A teacher under Article 14(2) and (4) of the Higher Education Act (excluding instructors)” in the scope of subscription to teachers’ labor union. The Addenda to the Act on the Trade Union of Teachers (amended by Act No. 17430, Jun. 9, 2020) provides that “this Act shall enter into force on the date of its promulgation,” but does not provide any provision regarding retroactive application.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 3, purport of whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the parties' assertion

1) Plaintiff

The instant disposition is unlawful as being based on Article 2 of the former Teachers’ Labor Union Act, which is unconstitutional.

2) Defendant

According to the legal principle of teacher status, the Defendant cannot issue a certificate of establishment report of a trade union without clear and specific legal basis. In around 2015, the Plaintiff’s report of this case was not permitted to establish a trade union for university faculty members, and even if the application of the former Act is suspended due to the inconsistency with the Constitution of the Republic of Korea, there was no legal basis to allow university faculty members to establish a trade union. Thus, the instant disposition rejecting the report of this case is lawful.

B. Determination

1) Even if a provisional decision of inconsistency with the Constitution was rendered against a non-permanent provision but the amendment was made without the unconstitutional amendment, and the amendment became null and void due to the absence of the improvement legislation, its effect is limited to only in the future, and there is no reason to treat the provision differently (see Supreme Court Decision 2012Do7455, Oct. 11, 2012). Meanwhile, in a case where the amendment was made without the amendment of the unconstitutionality of the non-permanent provision even though the decision of inconsistency with the Constitution was rendered, but the amendment was made without the amendment of the unconstitutionality, it is necessary to prevent any legal gap between the time when the decision of inconsistency with the Constitution and the time when the legal provision becomes null and void, and such legal provision becomes null and void retroactively. If a provisional decision of inconsistency with the Constitution with the Constitution becomes null and void even if a provisional decision of inconsistency with the Constitution with the Constitution becomes final and void, if the legal provision becomes null and void, the provision becomes null and void retroactively (see Supreme Court Decision 2014Da13014.).

2) According to the unconstitutionality of the provisions of the former Act, the Constitutional Court’s ruling of inconsistency with the Constitution as to the provisions of the former Act, the grounds for provisional application, etc., even though the Constitutional Court confirmed the unconstitutionality of the provisions of the former Act, it is necessary to continue to apply the provisions of the former Act to a certain time despite the fact that the Constitutional Court has confirmed the unconstitutionality of the provisions of the former Act. The reason for respect of the right to organize as to the scope of the right to organize as to the university faculty members is related to the need to make a decision of inconsistency with the Constitution as to the provision of the former Act, instead of making a decision of unconstitutionality as to the scope of the right to organize as to the university faculty members, the reason for respect of the right to organize as to the scope of the right to organize as to the university

In the instant case, the Constitutional Court’s ruling of inconsistency with the Constitution does not extend to the effect that the part ordering the continuance of the provision of the former Act is the basis for establishing a teacher labor union for the existing elementary and secondary school teachers, and further, it is reasonable to deem that it is not a ground for prohibiting the establishment of a teacher labor union for university faculty members (see, e.g., Supreme Court Decisions 2016Du47697, Jul. 11, 2018; 2018Du49154, Jan. 30, 2020).

3) In light of the aforementioned legal principles, since the part not including university faculty members in the provision of the former Act on the Establishment of Teachers’ Labor Unions was retroactively invalidated due to the time when the decision of inconsistency with the Constitution was rendered, the former provision on the instant case, which is the case that became subject to the decision of inconsistency with the Constitution, cannot be applied as it is. Therefore, the Defendant’s disposition that rejected the instant report on the premise that the former provision on the law is applied, is unlawful

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

[Separate] Relevant Acts and subordinate statutes: omitted

Judges Kim Jae-sung (Presiding Judge)