(b) Whether there is a violation of Article 22 of the Trade Union Act, which requires that the number of union members be qualified as an officer of a trade union be recommended by more than a certain number of union members for a certain

C. Purport of the proviso of Article 3 subparag. 4 of the Trade Union Act, and whether a worker loses the status of a trade union member in a case where the worker is dismissed and applied for remedy for unfair labor practices within a reasonable time (negative)

D. Whether the chairman of the labor union election management committee has taken the measure that the employee under paragraph (c) above refuses to register as the chairman of the labor union on the ground that he is not qualified as a union member

B. In a case where the number of union members recommended by the number of union members who are eligible to become an officer under the rules and limited to those who have passed a certain period from the time when union members became union members, if the number of union members to be recommended does not reach the degree that it could undermine the rights of minority union members in light of the total number of union members, and if the required period does not exceed the reasonable period recognized as necessary for performing the duties as an officer of an employer and a trade union by ascertaining the actual situation of the union, the trade union can be determined by the rules according to its independent decision, and it cannot be deemed as a significant infringement on the equality of union members’ eligibility for election. Therefore, it is reasonable to deem that

C. The proviso of Article 3 subparag. 4 of the Trade Union Act provides that "no person who contests the validity of dismissal shall be construed as a person other than an employee." The purport of this provision is to prevent an employer from establishing or continuing to exist a trade union by dismissing an employee without justifiable cause, not only to prevent the employee from dismissing the employee, but also to prevent the employee from losing his status as a member of the trade union in light of the purport of the above legal provision, in a case where the dismissed employee makes a request for remedy for unfair labor practice to the Labor Relations Commission within a reasonable period of time from the dismissal, or files a lawsuit seeking nullification of dismissal with the court, and contests the validity of the dismissal, the dismissal is also intended to guarantee the status by deeming the employee's status or the status as a member of the trade union, regardless of the dismissal. Therefore, even if the employee was dismissed from the company, if the employee had asserted the validity of the dismissal by filing a request for remedy with

(d) If the chairman of the Labor Union Election Commission refuses to register as the chairman of the Labor Union on the ground that the worker in paragraph (c) above is not qualified as a trade union member, it is in violation of the proviso of Article 3 subparag. 4 of the Trade Union Act and Article 22 of the same Act prescribing equal rights and obligations

The case is remanded to Seoul High Court.

A. The defendant union held 16 representatives including the plaintiff among 18 representatives on April 28, 1989, and held 18 representatives' meetings, Article 29 of the Code which provides that the chairperson of the defendant union shall be elected at the representatives' meeting, and the "election of the chairperson" shall be the direct election of all union members, with the consent of 30 or more union members, and the resolution of amendment shall be made with the consent of all union members, and on October 14, 1989, 13 representatives including the plaintiff shall be present at the 18 representatives, with the exception of 5 representatives retired or resigned from the 18 representatives, hold a meeting, and the method of election of the chairperson shall be revised as a direct election system, followed by the explanation of the amended regulations on the direct election system, and as a result, an amendment shall be made with the consent of 30 or more committee members and with the consent of 1 year or more of all committee members and with the consent of 10 or more of the above amendment.

B. On February 6, 1990, the election commission of the defendant union publicly announced the election of the chairperson of the defendant union on February 6, 1990, and completed the candidate registration on August 20, 200, the election by the defendant union members by a direct secret secret ballot but there is no majority of the vote, and the non-party 1 was elected as the chairperson of the defendant union on February 22, 200 after again voting.

C. On December 10, 1987, the Plaintiff entered the Defendant Incorporated Incorporated Co., Ltd., the employer, and worked after joining the Defendant’s association. On October 22, 1989, the Plaintiff was dismissed from the above Nonparty Company. However, on November 7, 1989, the Plaintiff filed an application for remedy for unfair labor practice with the Seoul Regional Labor Relations Commission. On February 6, 1990, in order to run for the chairman’s election as of February 6, 1990, the Plaintiff requested the issuance of documents necessary for the registration of candidate with the election commission within 3 days from the election commission upon submitting an application for registration of candidate and a letter of recommendation, etc., which is a prescribed form. However, upon questioning with the Ministry of Labor, Nonparty 2, the chairman of the Defendant Cooperative’s election management, who was the head of the Labor Relations Commission, rejected the Plaintiff’s application for reexamination (the Plaintiff was served with the Seoul Regional Labor Relations Commission’s order for remedy on February 9, 1990).

2. The plaintiff's ground of appeal No. 1

The judgment of the court below as to the point that the theory points out (the point that the court below decided to amend the rules under the premise that the rules are to be elected in the direct election of the chairperson with the consent of all the representatives present at the meeting of the representatives of the defendant union held before the election of the chairperson of the defendant union was held) shall be justified in light of the evidence relations as stated by the court below, and it shall not be deemed that there was an error of law that erroneously recognized the fact that the decision of evidence was completed as to the process, such as the theory of the lawsuit, as stated in the court below (However, the date of holding the above resolution shall be 10.10,000 as pointed out by the court below, although the representative held before the election of the chairperson of the defendant union was held before the election of the chairperson of the defendant union, so long as the court below has decided to amend the rules on the election method of the chairperson because the representative's election was held before the election of the chairperson of the defendant union was held, it shall not affect the judgment).

In conclusion, we cannot accept the judgment of the court below on the premise that the recognition of facts belonging to the exclusive authority of the court below is criticized or that the facts recognized by the court below are inconsistent with the facts.

3. Determination on the ground of appeal No. 2

If the facts are duly determined by the court below, if all the registered representatives of the defendant union present at the meeting of the representatives of the defendant union and passed a resolution to amend the rules on the premise that the chairperson of the defendant union will be elected with the consent of all the representatives, as pointed out in the theory of the lawsuit, even if there is a procedural defect in the process that the defendant union held a representative meeting without publicly announcing the amendment of the rules in advance as the matters to be referred to the meeting, the resolution of the representative meeting cannot be deemed null and void. Thus, the judgment of the court below to the same purport is just, and there is no error of law by misapprehending the legal principles of Article 27 of the Trade Union Act, such as the theory of the lawsuit.

4. Determination on the ground of appeal No. 3

In a case where a trade union limits the number of union members who are recommended by the number of union members more than a certain number of union members and who are recommended by the number of union members when the union members became union members, the number of union members to be recommended does not reach an extent that would undermine the rights of minority union members in light of the total number of union members. If the required period does not go beyond a reasonable period deemed necessary for performing the duties as an officer of a trade union by ascertaining the actual situation of an employer and a trade union, the trade union can be determined by the rules according to its independent decision, and it does not constitute a significant violation of the equality of union members’ eligibility for election. Thus, it is reasonable to deem that such

Therefore, the court below's decision is just in holding that the amended Code, which limits the number of members who are less than 10 percent of the total number of members (310 members) and the number of members who are not less than 30 years of work experience, cannot be deemed to violate Article 22 of the Trade Union Act, and there is no error of law by misunderstanding the legal principles like the theory of lawsuit in the judgment below. Thus, there is no reason to see the above.

5. Determination on the ground of appeal No. 4

A. The court below held that the chairperson of the defendant union's election management refusal to issue documents necessary for the registration of candidate to the plaintiff constitutes the refusal of the plaintiff's candidate registration in substance in light of the grounds for rejection, but the proviso of Article 3 subparagraph 4 of the Trade Union Act is a provision to prevent the employer from establishing or continuing a trade union. Thus, once the dismissed plaintiff asserts the validity of dismissal and the plaintiff maintains the status of the defendant union member, it is not obvious that the plaintiff maintains the status of the defendant union member. In addition, as long as the chairperson of the defendant union's union's election management refusal to issue documents after questioning the Ministry of Labor with the competent authority that the plaintiff cannot be viewed as the defendant union member, the rejection of the above documents cannot be deemed as illegal even if the defendant union rejected the plaintiff's candidate registration, and thus, rejected the plaintiff's assertion that the election of the chairperson of the defendant union is invalid

B. However, the proviso of Article 3 subparag. 4 of the Trade Union Act provides that "no person who contests the validity of dismissal shall be construed as a person other than a worker," and the purport of this provision is to prevent an employer from establishing or continuing a trade union by dismissing a worker without a justifiable reason, as determined by the court below, but it does not merely aim at preventing the employer from applying for remedy for unfair labor practice to the Labor Relations Commission within a reasonable period of time from the dismissal, or disputing the validity of the dismissal by filing a lawsuit seeking nullification of the dismissal with the court, it is also intended to guarantee the status by deeming the dismissed worker as holding the status or status as a trade union member regardless of the dismissal (see Supreme Court en banc Decision 89Do1579 delivered on Nov. 27, 190). Thus, even if the plaintiff was dismissed from the above non-party company, if the plaintiff asserted the validity of the dismissal after filing an application for remedy for unfair labor practice with the Seoul Regional Labor Relations Commission within a reasonable period of time as determined by the court below, it cannot be deemed that the plaintiff is dismissed as the above defendant union member.

In addition, if the plaintiff was qualified as the chairperson of the defendant union, even though the chairperson of the defendant union refused to deliver a candidate-registered document to the plaintiff according to the answer that the plaintiff cannot be viewed as the defendant's member as the result of questioning with the chairperson of the defendant union, as decided by the court below, the issue of whether the chairperson of the defendant union's election management can be exempted from liability for tort arising therefrom shall be set aside separately from whether the chairperson of the defendant union's election management can be exempted from liability for the plaintiff's candidate. However, the rejection of the plaintiff's candidate registration by the chairperson of the defendant union by the chairperson of the election management committee violates the proviso of Article

C. Nevertheless, the court below rejected the plaintiff's assertion that the election of the chairperson of the defendant union held by illegally deprived of the plaintiff's eligibility for election for the above reasons. Thus, the court below did not err in the misapprehension of legal principles as to the proviso of Article 3 subparagraph 4 and Article 22 of the Trade Union Act, and it is obvious that such illegality has affected the judgment, and therefore, there is a reason to point this out.

6. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-ho (Presiding Justice)