[2] The effect of the parties' failure to raise an objection on the decision to refer the case to arbitration ex officio on the defect, which designated public interest members excluded by the parties to the special mediation committee under Article 72 of the former Trade Union and Labor Relations Adjustment Act

[2] Even if there is a defect in designating public interest members excluded by the parties to the special mediation committee under Article 72 of the former Trade Union and Labor Relations Adjustment Act (amended by Act No. 8158 of Dec. 30, 2006), if the party did not raise an objection before the party participated in the mediation procedure and the recommendation decision is made, the defect in the process of the decision to refer ex officio to arbitration may not be deemed to have seriously infringed the fairness of the procedure.

The former Trade Union and Labor Relations Adjustment Act (amended by Act No. 8158, Dec. 30, 2006; hereinafter “Labor Relations Adjustment Act”) provides an ex officio arbitration system with respect to essential public-service businesses. Article 63 of the Trade Union and Labor Relations Adjustment Act provides that a labor dispute shall not be conducted for fifteen days from the date it is referred to arbitration. Article 91 Subparag. 1 provides that a person who violates the provision shall be punished by imprisonment with labor for not more than one year or by a fine not exceeding ten million won (hereinafter “instant penal provision”).

Meanwhile, conciliation and arbitration procedures under the Trade Union and Labor Relations Adjustment Act are basically a dispute settlement procedure by a quasi-judicial agency, and the provisions related to exclusion and challenge under the former Labor Relations Commission Act (amended by Act No. 8296, Jan. 26, 2007; hereinafter the same) are applied, and the special conciliation committee taking exclusive charge of conciliation of labor disputes in public services (hereinafter referred to as "special conciliation committee") shall be composed of members representing the public interest, and the special conciliation committee shall be composed of members representing the public interest, and the party shall guarantee the party's exclusion right (Article 72 (3) of the Trade Union and Labor Relations Adjustment Act) shall be established to secure the fairness of the composition. It is necessary to ensure that the Trade Union and Labor Relations Adjustment Act grants the party's exclusion right to the public interest members on both sides of the Trade Union and Labor Relations Adjustment Committee in relation to the composition of the special conciliation committee to ensure the fairness and effectiveness of conciliation procedures. Thus, it shall not be deemed that the committee's request for deliberation and determination of the special conciliation committee's 20.

However, the procedure to exclude the public interest members upon the request of the parties concerned is solely against the party's subjective intent, and it is difficult to expect objective fairness, such as the interests of the public interest members who applied for exclusion. Therefore, it cannot be concluded that the fairness of mediation is damaged or not expected because the public interest members who applied for exclusion are designated as special mediators. In light of the fact that the special adjustment should terminate the mediation procedure within the short-term statutory period, and that the stability of the mediation procedure in labor disputes is demanded high, even if the parties concerned have designated the public interest members excluded in the composition of the special adjustment, if the parties did not raise an objection before the recommendation decision is made, the defect in the decision-making process of the ex officio submission to arbitration can not be deemed to have been significantly infringed on the fairness of the procedure.

According to the court below's decision, on June 28, 2004, the labor dispute mediation application of this case was defective, the chairman of the Labor Relations Commission notified the two parties of the submission of the list of four members excluding public interest members in sequential order in order to constitute special mediation pursuant to Article 48 of the Labor Relations Commission's rules, which was in force at the time of the mediation, and the two parties of the same month 30, respectively. The first order of the Exclusion Protection Group submitted by the Trade Union and Labor Relations Commission was the non-indicted. The first order of the Exclusion Protection Group was the non-indicted. The chairman of the Central Labor Relations Commission appointed the above non-indicted as well as the second two public interest members who were not excluded from both parties and appointed the above non-indicted to constitute three special mediation members. On July 2, 2004, the first order of the Trade Union and Labor Relations Commission (the chairman was the non-indicted in this case) was presented to the non-indicted in this case, but the chairman of the Trade Union and Labor Relations Commission knew the decision of this case 1 of this case.

According to the above legal principles, as long as the Trade Union and Labor Relations Adjustment did not raise an objection before the decision of recommendation is made while participating in the procedure of special conciliation, it cannot be deemed that there is a defect to the extent that the fairness of the decision of submission to arbitration is significantly infringed. Thus, it is reasonable to ask the defendant for the criminal liability pursuant to the penal provisions of this case. Although the grounds for appeal differ, the court below is justified in the conclusion that the decision of the court of first instance which found the defendant guilty as to this part of the facts charged was maintained. Thus, this part of the grounds for appeal is rejected.

2. Ex officio determination

Article 3(2) of the Punishment of Violences, etc. Act, Article 3(1) of the same Act applies to the crime of this case in which the court below maintained the judgment of the court of first instance against the defendant's night collective confinement during the crime of this case. However, the above Act was amended and enforced by Act No. 7891 on March 24, 2006, which was after the judgment of the court below was rendered. The amended Act was enacted by Act No. 7891 on March 24, 2006. Article 3(2) of the previous Act provides that the former Act shall be punished by imprisonment of not less than three years for a limited term of not less than one year, and since this provision provides that the former Act shall be punished by imprisonment for a limited term of not less than three years, since the act does not constitute a crime due to the change of law or the punishment is minor, each of the above provisions and the remaining criminal facts shall be sentenced to concurrent crimes under the former part of Article 37 of the Criminal Act. Thus, the judgment of the court below shall not be reversed.

3. Conclusion

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 on the bench.

Justices Ahn Dai-hee (Presiding Justice)