The defendant shall pay to the plaintiff 1.8 billion won with 5% interest per annum from September 22, 2006 to March 20, 2009 and 20% interest per annum from the next day to the day of full payment.

2. All remaining appeals by the plaintiff and the defendant are dismissed.

3. One-half of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The monetary payment portion under paragraph (1) may be provisionally executed.

The defendant shall pay to the plaintiff 15 billion won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff falling under the order of additional payment shall be revoked. The defendant shall pay to the plaintiff the amount of KRW 5 billion and the amount calculated by 20% per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment.

Defendant: The part against Defendant in the judgment of the first instance court shall be revoked, and the Plaintiff’s claim corresponding to the above revocation shall be dismissed.

The following facts are either disputed between the parties or acknowledged by Gap evidence 2 to 8 (including each number; hereinafter the same shall apply), Gap evidence 10, 11, Gap evidence 20 to 24, Eul evidence 1 to 8, Eul evidence 10 to 12, Eul evidence 23, and Eul evidence 23.

A. Status of the parties

On August 24, 1961, the defendant is a small industry unit trade union of a national scale established by the organization of workers engaged in the nationwide railroad industry. The plaintiff is a special corporation established by the Korea Railroad Corporation Act, which carries out a term industry related to the national railroad across the country. On January 1, 2005, the defendant was converted from the Korea Railroad Corporation, a telegraph, in accordance with the Framework Act on Railroad Industry Development and the Korea Railroad Corporation Act.

B. Progress prior to the instant strike

(1) The Plaintiff’s general railroad office and the Defendant entered into a regular organization agreement with the term of validity on April 20, 2003 until April 19, 2005, and the Plaintiff and the Defendant entered into a special organization agreement on December 3, 2004, and specified the term of validity from January 1, 2005 to December 31, 2006 (Article 2 of the Addenda).

(2) On March 17, 2005, the Defendant requested the Plaintiff to negotiate an organization to conclude a regular collective agreement in 2005 (Article 121 of the Addenda to the Convention). From August 12, 2005 to August 13, 2005, the Defendant held temporary delegates from August 12, 2005 to April 13 of the same year and confirmed the proposal of a regular collective agreement, and conducted collective bargaining to conclude a collective agreement over 43 occasions, including the Plaintiff from August 31, 2005 to November 4, 2005 and the 6th and working negotiation 37th, respectively. The Defendant’s core requirements at the time were ① suspending railway commercialization and strengthening the public nature, ② improving labor disputes and labor conditions at the five-day week, ③ establishing the original and democratic labor-management relationship, ④ compensating for disadvantages to the public officials, ⑤ introducing profits-oriented competition, and the removal of regular workers, etc.

(3) On November 8, 2005, the Defendant formed a Central Dispute Mediation Committee and applied for mediation of a labor dispute to the National Labor Relations Commission on the 10th of the same month (hereinafter “China Labor Relations Commission”), and there were 290 agenda items that are not the agreement between the members and the Defendant on the above written application for mediation. Accordingly, the Central Labor Relations Commission constituted a Special Mediation Committee and tried to narrow the difference of opinions and draw up the agreement through the Coordination Committee several times, but did not create a mediation proposal. Since there are many matters that overlap with the Special Organization Convention, matters regarding personnel and management rights, and matters outside the authority of the employer, etc., which are difficult to come up with each other, it was confirmed that there are strong arguments and opinions among the parties.

(4) The Defendant, from November 16, 2005 to the 18th day of the same month, carried out the pro-con voting on the union member's industrial action, and passed a resolution on the implementation of the industrial action with the consent of 70.24% of the registered union members.

(5) On November 25, 2005, the Special Coordination Committee rendered a decision that it is difficult to make a proposal due to the wide difference of the position between the labor and management, and that it terminates mediation without submitting a proposal of mediation (2005 Coordination8) based on the mutual trust and cooperation between the parties. The reason for the decision was that it is reasonable that it will negotiate in good faith after the formation of compromise and concession. However, on the same day, the Special Coordination Committee submitted to the Special Coordination Committee a letter of commitment that "the labor and management promised to negotiate in good faith the regular collective bargaining in 2005 without the strike until December 16, 2005 in order to resolve the autonomous bargaining." On the same day, the Special Coordination Committee deferred the submission of a letter of commitment that "in respect of the defendant's voluntary bargaining, the defendant's prior referral to arbitration is deferred, and if it is substantially possible that the defendant will take part in the industrial action without complying with the future commitment, it shall refer the relevant business place to arbitration".

(6) On November 25, 2005, the chairman of the Central Labor Relations Commission, upon request of a public interest member to present his opinion that conditional arbitration is reasonable, presented the opinion to the original and the Defendant, and made a decision to withhold the submission to arbitration to the effect that “The special arbitration committee recommendation and the opinion of the public interest members are likely to have a high percentage of union members, and to have a huge impediment in the transportation of passengers and cargo in the event of a railroad dispute, etc., and thus, the submission to arbitration is reserved until December 16, 2005,” and notified the original and the Defendant of this decision, and clearly stated that it will be immediately referred to arbitration in the event the Defendant would not observe the promise and would have a significant possibility of being involved in an industrial action.

(7) On December 16, 2005, the Defendant again submitted to the Defendant a letter of commitment that “the total strike is reserved by the end of January 2006 and, if there is any change in schedule, the Defendant promised to notify it not later than two days prior to the end of January 2006.” On the same day, the mid-term Labor Relations Commission notified the original and the Defendant that “the Defendant shall extend the decision of deferment of submission to arbitration by the end of January 2006 on the condition that it would not take industrial action by respecting the submission of the letter of reservation to the total strike.”

(8) On January 31, 2006, Central Labor Relations Commission rejected a request from the injured party to submit a written undertaking to the same effect as that of the injured party, but the Defendant cannot make another promise to refrain from engaging in the strike. However, on January 31, 2006, the Labor Relations Commission confirmed that the autonomous bargaining between the original and the Defendant is underway, and notified the original and the Defendant of the fact that the submission of a written undertaking to refrain from engaging in the strike. However, on January 31, 2006, the Labor Relations Commission confirmed the progress of the autonomous bargaining between the original and the Defendant, and notified the original and the Defendant of the fact that “The submission of a referral to arbitration is extended in respect of the recommendation for

(9) On February 7, 2006, the Defendant set the total strike schedule at the Central Dispute Mediation Committee on March 1, 2006, and continued collective bargaining with the Plaintiff on March 1, 2006, but the negotiations on February 28, 2006 were displayed.

(10) On February 28, 2006, the chairman of the Central Labor Relations Commission decided to refer to arbitration on the following: (a) on February 28, 2006: (b) “The Labor Relations Commission continued the autonomous bargaining between labor unions, but did not find any final agreed point on the issues; (c) while the labor union publicly notifies the general strike, it is anticipated that the general strike may seriously endanger the daily lives of the general public and may substantially impede the national economy, and (d) on February 28, 2006, it would make a decision to refer to arbitration on February 21, 2006; and (b) served a written

C. Commencement of the instant strike

On March 1, 2006, the defendant ordered members of the 01:00 on March 1, 2006 to withdraw the commercialization of railroads, to reinstate all the dismissed workers, to reinstate them, to fill the job site manpower, to recruit new businesses, and to take part in the general strike, such as the elimination of discrimination against non-regular workers (in opposition to the non-regular bill).

Accordingly, on March 1, 2006, the president of the Plaintiff issued an order to return to work at the designated work time to those who left the work place, those who interfered with the work of those who left the work site, those who destroyed the facilities, and those who did not work at the designated work time, etc., and notified the members of the Plaintiff to take measures to release from position if they do not comply therewith. However, the Defendant ordered the members to continue the strike on March 1, 2006 through 4 of the same month, and then withdrawn the strike on the same day after ordering them to continue the strike on March 1, 2006 through 5 of the strike order on April of the same month. Accordingly, from March 1, 2006 to April 17:00 of the same month, a large number of members refused to return to work without going to work at the work site, which led to enormous disruptions in the Plaintiff’s high-speed (KTX), Saemaulhoho, and passenger transportation of cargo, etc.

D. Progress after the strike of this case

(1) On March 3, 2006, upon the failure of the agreement between the plaintiff and the defendant on the selection of arbitration committee members, the Labor-Management Council appointed three arbitration committee members from among the public interest members, and constituted an arbitration committee.

(2) On March 6, 2006, the Arbitration Commission held the first arbitration meeting, but the defendant submitted only relevant data and did not attend the second arbitration meeting held on the 15:00 of the same month, and the defendant did not attend the second arbitration meeting and present his opinion in accordance with Article 66(2) of the Trade Union and Labor Relations Adjustment Act. The Arbitration Commission held labor-management working-level negotiations on March 10, 2006, but did not have any discussion about the future direction of negotiations and any access to opinions on the issues.

(3) On March 15, 2006, China Labor Relations Commission issued an arbitration award (2006 Arbitration1) and the negotiation on the remaining issues not included in the arbitration award on April 1 of the same year was conducted, and the defendant, in the future, made efforts to normalize business and made mutual efforts to minimize disciplinary action and civil and criminal responsibility related to the strike by the plaintiff.

E. Relevant provisions

(1) Main provisions of the Trade Union and Labor Relations Adjustment Act (amended by Act No. 8158 of Dec. 30, 2006; hereinafter “Labor Act”)

Article 3 (Restriction on Claim for Damages) When an employer has suffered damages due to collective bargaining or industrial action under this Act, he shall not claim damages against a trade union or workers.

Article 54 (Period of Mediation)

(1) Mediation shall be completed within ten days in case of a general business, or within fifteen days in case of a public-service business, after a request for mediation as referred to in Article 53 is made.

(2) The period of mediation as referred to in paragraph (1) may be extended by up to ten days in case of a general business, or up to fifteen days in case of a public-service business, by an agreement between the parties concerned.

Article 60 (Preparation of Mediation Proposal)

(1) The mediation committee or the single mediator may prepare a mediation proposal, present it to the parties concerned, recommend them to accept it and simultaneously publicly announce it with the reasons, and may, if necessary, request the cooperation of the press or broadcasting companies to report it, etc.

(2) The mediation committee or the single mediator shall, when it deems that there is no possibility for the mediation to be conducted any more by the parties concerned to refuse the acceptance, decide the termination of the mediation and notify both parties concerned thereof

Article 62 (Commencement of Arbitration) The Labor Relations Commission shall conduct arbitration in cases falling under any of the following subparagraphs:

1. When both of the parties concerned have requested an arbitration;

2. When one of the parties concerned requests arbitration in accordance with the collective agreement;

3. Where the chairman of the Labor Relations Commission has decided to refer the essential public business pursuant to Article 71 (2) to arbitration upon the recommendation of the Special Arbitration Commission;

Article 63 (Prohibition of Industrial Actions during Period of Arbitration) When a labor dispute is referred to arbitration, an industrial action shall not be conducted for fifteen days from the date thereof.

Article 68 (Finality Award)

(1) An arbitration award shall be made in writing with the effective date specified.

(2) If there is any disagreement between the parties concerned with respect to the interpretation or performance method of an arbitration award under paragraph (1), the interpretation of the arbitration committee concerned shall be in accordance with the interpretation of the arbitration award, and the interpretation shall have the same effect as that

Article 69 (Finality of Arbitration Award, etc.)

(2) Where the parties concerned consider that an arbitration award rendered by the Central Labor-Management Act or a decision on review made pursuant to the provisions of paragraph (1) is erroneous or unjust, they may institute an administrative litigation within 15 days from the date of receipt of the arbitration award or the decision on review, notwithstanding the provisions of Article 20 of the Administrative Litigation Act.

Article 70 (Effect of Arbitration Award, etc.)

(1) The content of an arbitration award under Article 68 (1) shall have the same effect as that of a collective agreement.

(2) The effect of an arbitration award or decision on review by a Labor Relations Commission shall not be suspended according to an application for review or an administrative litigation filed on the mid-term union pursuant to the provisions of Article 69 (1) and (2).

Article 71 (Scope, etc. of Public Works Projects)

(1) The term "public works" in this Act means any of the following projects which are closely related to the daily life of the general public or have a substantial impact on the national economy:

1. Passenger transport business and air transport business for regular routes;

2. Waterworks business, electricity business, gas business, petroleum refining business, and petroleum supply business;

3. Public sanitation business and medical treatment business;

4. Banking and mint businesses;

5. Broadcasting and communications businesses.

(2) For the purpose of this Act, the term "essential public-service businesses" means the following public-service businesses referred to in paragraph (1) whose suspension or discontinuation may seriously endanger daily life of the general public or the national economy, and whose replacement is not easy:

1. Railroad business, urban railroad business and air transport business;

2. Not more than the omission;

Article 74 (Recommendation of Referral to Arbitration)

(1) Where the Special Arbitration Committee deems that mediation is not likely to take place in essential public-service businesses, it may recommend that the Labor Relations Commission concerned refer the case to arbitration by decision.

(2) The recommendation referred to in paragraph (1) shall be made prior to the expiration of the mediation period referred to in Article 54.

Article 75 (Decision as to Referring to Arbitration)

The chairman of the Labor Relations Commission shall, upon receiving the recommendation as prescribed in Article 74 (1), determine, in consultation with the opinion of public interest members, whether or not to refer the relevant case to arbitration.

(2) Main provisions of the Labor Relations Commission Rules (hereinafter “Rules”)

Article 48 (Special Arbitration)

(6) A special mediation committee shall present a mediation plan for essential public-service businesses referred to in Article 71 (2) of the Trade Union and Labor Relations Act not later than the expiration of the mediation period referred to in Article 54 of the Trade Union and Labor Relations Act: Provided, That this shall not apply where any inevitable reason

(7) A special mediation committee shall, where a party refuses to accept it, or fails to present a mediation proposal due to unavoidable circumstances, after it has presented a mediation proposal under paragraph (6), make a decision on whether to recommend to refer the case to arbitration without delay. In this case, the recommendation to refer it to arbitration shall be made in attached Form 13.

Article 49 (Transfer to Arbitration)

(1) The chairman shall, upon receipt of a recommendation to refer to arbitration under Article 48 (7), hear without delay the opinion of one or more public interest members in charge of conciliation (including standing members). In this case, the public interest members in charge of conciliation shall be those who are not the special conciliation members concerned.

(2) A public interest member in charge of conciliation in receipt of a request for presenting his opinion under paragraph (2) shall present his opinion without delay in attached Form 14.

F. Termination of an ex officio arbitration system

Article 62 subparag. 3, 74, and 75 of the Trade Union and Labor Relations Commission Act (amended by Act No. 8158, Dec. 30, 2006; Act No. 8158) was repealed by the ex officio arbitration system. The introduction of the essential business system (the essential business is to significantly endanger the safety of the lives, health, or body of the public or the daily life of the public due to the suspension or discontinuance of the essential business among the essential business, and to which the parties to the labor relations determined the minimum level of maintenance and operation, duties, and required number of workers necessary for the legitimate maintenance and operation of the business during the period of the industrial action shall be entered into in writing. If the parties fail to enter into the agreement, the Labor Relations Commission shall, upon application, take into account the characteristics, contents, etc. of the essential business of the business or place of business. In addition, the Labor Relations Commission shall select and notify workers during the period of industrial action pursuant to the agreement on essential business or the determination of the Labor Relations Commission regarding the essential business.

2. Occurrence of liability for damages;

A. Summary of the parties' assertion

(1) Summary of the Plaintiff’s assertion

The defendant's strike of this case is not justified, and procedural legitimacy is not recognized as a strike after the decision to refer the case to arbitration ex officio under the Labor Union Act. Thus, the defendant must compensate the plaintiff for the plaintiff's damages caused by the strike of this case.

(2) Summary of the defendant's assertion

㈎ 필수공익사업에 대한 직권중재제도는 헌법상 과잉금지의 원칙에 위반하여 근로자의 단체행동권 등 노동 기본권의 본질적 부분을 침해하고 있을 뿐만 아니라 필수공익사업장에 종사하는 근로자를 일반사업장의 근로자와 합리적인 이유 없이 차별대우함으로써 평등 원칙에도 위배되므로, 이 사건 중재회부결정은 위법하다.

㈏ 이 사건 중재회부결정은 특별조정위원회의 위법한 업무 처리 즉, 부득이한 사유 없이 조정안을 제시하지 않고 나아가 아무런 법적 근거 없이 조정기간 15일의 제한 시기를 위반하여 조정 종료 결정 이후에 위법하게 조건부 중재회부 또는 중재회부 보류 권고결정을 내린 데에 터잡은 것이므로 위법하다. 또한 중노위 위원장이 피고의 확약서를 근거로 중재회부 보류결정을 해오면서 확약서의 교섭시한인 2006. 1. 31.에 이르러 피고의 추가적인 파업유보 확약이 없었음에도 자의로 기간의 정함도 없이 다시 중재회부 보류결정을 하고, 2006. 2. 28.경 파업예정시각을 4시간 남겨두고서 이 사건 중재회부결정을 한 것은 특별조정위원회의 결정에 의한 권고, 다른 공익위원의 의견 청취 요건을 사실상 형해화시킨 것으로서 그 재량권을 현저히 일탈·남용한 것이므로 위법하다.

Therefore, the strike of this case, which was conducted after the decision to refer the case to arbitration, does not violate the prohibition provisions of industrial action at the time of ex officio referral to arbitration under Article 63 of the Trade Union and Labor Relations Act.

㈐ 반성적 고려에서 직권중재제도가 폐지되었으므로 이 사건 파업의 가벌성이나 위법성이 상실되었고, 따라서 원고는 그로 인한 손해의 배상을 청구할 수 없다.

B. Determination

(1) General theory on the occurrence of liability for damages

In order to establish a tort due to an industrial action during the period of prohibition of industrial action in the essential public-service area, the special mediation committee, which is lawfully constituted, shall decide to recommend the referral of the referral to arbitration to the middle-aged union by recognizing that the mediation is not likely to be constituted, and according to this decision, the chairman of the middle-aged union shall have decided to refer the case to arbitration after hearing the public interest members. In other words, the decision to refer the case to arbitration should have been lawful, and if the decision to refer the case to arbitration is illegal in violation of the related laws and regulations, the decision to refer the special mediation committee which is the preceding procedure and the decision to recommend the referral to arbitration by the committee is also illegal.

(2) Whether the instant decision to refer to arbitration is unlawful

㈎ 직권중재제도가 위헌인지 여부

The legislative purpose of the ex officio arbitration system is to maintain the daily lives of the public and preserve the national economy by allowing the resolution of disputes through arbitration of the Labor Relations Commission instead of agreement between labor and management instead of agreement between labor and management. The legislative purpose is justifiable, and the method of restricting fundamental rights provided for in the Trade Union and Labor Relations Act is appropriate, and the degree of restriction on fundamental rights is minimum, and the balance between the public interest to be protected and the private interest to be restricted is maintained. In addition, the period during which industrial action is prohibited shall not go against the principle of excessive prohibition under the Constitution, since it may go into the industrial action at any time, even though it is 15 days, if the arbitration award is not made within that period, it does not go against the right of collective action itself, and the period may not be deemed unreasonable, and the arbitration system is also established, such as that it may go through the procedure of appeal against arbitration award, so it cannot be deemed that there is no violation of the fundamental part of the right of collective action of workers, such as the right of collective action of the public.

Therefore, the ex officio arbitration system does not violate the Constitution and the decision to refer the case to arbitration is not contrary to the Constitution.

㈏ 이 사건 중재회부결정이 위법한지 여부

1) Whether the failure to present a draft mediation by the Special Arbitration Commission is illegal

As seen earlier, the Special Coordination Committee attempted to mediate through several prior coordination meetings. However, the issues asserted by the original and the Defendant include matters that overlap with the contents of the Special Agreement on December 3, 2004, matters concerning personnel and management rights, employer authority, and other matters, and concluded mediation without submitting a mediation proposal, considering that it is impossible to present a mediation proposal due to a significant difference between the parties, and that it is not helpful to autonomously reach an agreement between the parties. This is determined to fall under the proviso to Article 48(6) of the Rules, and “a special coordination committee is unable to present a mediation proposal”. Accordingly, it is lawful that the Special Coordination Committee failed to present a mediation proposal is lawful.

2) Whether the decision to recommend conditional referral to arbitration violates the time limit

The decision of the special mediation committee to recommend a conditional referral of arbitration, separate from the decision of the termination of mediation made on November 25, 2005, is made within 15 days from November 10, 2005, which is the date the defendant applied for mediation pursuant to Articles 74(2) and 54(1) of the Trade Union and Labor Relations Act, and thus, it does not violate the provision of the above restriction. In addition, the special mediation committee may make a decision to recommend a conditional referral of arbitration separately from the decision of the termination of mediation. Thus, the defendant's assertion that the above recommendation decision was made under the condition that the special mediation committee does not have the authority to process the application for mediation as a result of the termination of the application for mediation, is unlawful.

3) Whether the decision to recommend conditional referral to arbitration itself is illegal

Article 74(1) of the Trade Union and Labor Relations Commission Act only stipulates that a special mediation committee may make a decision on a referral to arbitration to the Labor Relations Commission, but does not limit the type, contents, etc. of the recommendation decision. In light of the attitude of the relevant laws and regulations that respect the resolution of labor-related disputes through the autonomous mediation of labor-management relations (see, e.g., Articles 47 and 52 of the Trade Union and Labor Relations Act) in light of the power of the recommendation to refer to arbitration, if it is helpful for the autonomous dispute resolution of labor-management, it also includes a conditional referral to arbitration or a recommendation to adjust the timing of referral to arbitration. Accordingly, the decision to recommend a conditional referral to arbitration of this case is not unlawful.

Although the defendant argues that he would not recommend the referral of the instant conditional arbitration, in light of the language and text of the said recommendation recommendation (Evidence No. 11), it is deemed that this is not a non-recommended decision, but a recommendation of referral to arbitration is merely an attachment of a certain condition, and thus, the above argument cannot be accepted).

4) Whether the instant decision to refer to arbitration has not gone through the recommendation decision of the Special Arbitration Commission or the procedures for hearing opinions on public interest members

Although the decision to refer to arbitration of this case was made not without delay after the consultation of public interest members different from the special recommendation decision of the mediation committee, but after three months thereafter, the special mediation committee submitted a letter of commitment to faithfully negotiate with the defendant without any strike, and as seen above, the special mediation committee decided to grant conditional recommendation to refer the relevant workplace to arbitration in cases where it is possible for the defendant to withhold the referral to arbitration and to lead to industrial action without complying with the promise, and where it is highly possible for the defendant to go through industrial action, it would be possible to refer the relevant workplace to arbitration, and the public interest members also suggested the opinion of conditional referral to arbitration. However, such conditional recommendation and submission of opinion are deferred by giving priority to the autonomous dispute resolution of the labor-management, but it is possible to resolve labor disputes and to refer the relevant workplace to arbitration in cases where it is possible to go through industrial action on behalf of the labor-management, and it is also anticipated that the special mediation committee's recommendation and submission of opinion will be different from the recommendation decision of this case.

5) Whether the decision to withhold the submission of the case to arbitration on January 31, 2005 and the decision to refer the case to arbitration was deviates from and abused discretion

Considering the purport of the Trade Union and Labor Relations Act-related regulations with the top priority of private mediation in the mediation of labor disputes and the function of the ex officio arbitration system, the decision to refer to arbitration which leads to the suspension of voluntary bargaining between labor and management needs to be operated in exceptional and complementary ways in resolving disputes between labor and management. Therefore, it is reasonable to allow voluntary negotiations between labor and management to take place after the time of the decision to refer to arbitration in cases where there is some room for dispute settlement between labor and management. Unless there are special circumstances, such as where the decision is postponed is used only as a means of absolute and substantial restriction of industrial action itself, the decision to withhold the submission to

However, the following circumstances, i.e., ① the Special Arbitration Committee submitted its promise to faithfully respond to negotiations from the Defendant on November 25, 2005 without any strike until December 16, 2005, and the Defendant again submitted its letter of undertaking to submit to arbitration until January 31, 2006, the Labor-Management Commission Chairperson decided to withhold arbitration over two times by giving priority to resolve disputes by the labor-management's autonomous bargaining. ② the Defendant’s commitment to refrain from labor-management for the first time on January 31, 2006 to the 20th anniversary of the fact that it continued negotiations between the labor-management and the 20th day of the 20th day of the 20th day of the 20th day of the 20th day of the 1st day of the 20th day of the 20th day of the 20th day of the 20th day of the 20th day of the 20th day of the 20th day of the 20th day of the 20th day of the 26th day of the 3th day of the 206th day of the arbitration.

In addition, in light of the specific circumstances leading to the decision to refer the case to arbitration as seen earlier, only the fact that the said decision was made three months after the conditional recommendation of the Special Arbitration Committee, shall not be deemed to have been deprived of or abused the discretionary power, on the sole basis of the fact that the said decision was made after the conditional recommendation of the Special Arbitration Committee.

6) Sub-decisions

Ultimately, the decision to refer the case to arbitration is valid and lawful.

(3) The illegality of the strike of this case and the occurrence of damages liability

As seen earlier, the decision to refer the instant case to arbitration is lawful, so the Defendant’s industrial action is prohibited for 15 days thereafter pursuant to Article 63 of the Labor Union Act. However, as the Defendant violated this and substantially obstructed the daily lives of the people and interfered with the Plaintiff’s transportation of passengers and freight, the said strike is unlawful. Accordingly, the Defendant is obliged to compensate the Plaintiff for damages incurred therefrom.

On the other hand, even if the ex officio arbitration system was abolished through the amendment of the Trade Union and Labor Relations Act in light of reflective considerations, it is merely extinguished, and since the above violation of the Trade Union and Labor Relations Act is not legitimate retrospectively, the defendant is still liable for civil damages against the illegal strike. Therefore, there is no reason to challenge this.

3. Scope of liability for damages

(a) Loss in operating profits;

(1) Method of calculation

The business losses suffered by an employer who performs passenger and cargo transport services due to an illegal industrial action by a trade union are losses in proximate causal relation with the above illegal industrial action, which can be calculated by deducting the personnel expenses, fuel expenses, and other necessary expenses reduced from the transportation income loss and the alternative input expenses (see Supreme Court Decision 2004Da12240, Oct. 27, 2006, etc.).

(2) A transportation revenue deficit.

㈎ 손해 기간의 산정

1) Parties’ assertion

The Plaintiff asserted that the Plaintiff should compensate the Plaintiff for the damages from March 1, 2006 when the instant strike commenced to the 5th day of the same month, and the Defendant asserted that the Defendant is liable only for the damages from the 4th day of the same month until the date when the strike ends.

(ii) the steel transport sector;

Comprehensively taking account of the overall purport of arguments in Gap evidence 16, 17, and evidence 35-1 through 7, the strike of this case was withdrawn on March 4, 2006 (def. 14:00) and the metropolitan electric power plant was withdrawn on March 4, 2006, and it was 2,827 times from March 1, 2006 to February 4, 2006 (total 6,029 times) and recovered on March 5, 2006 from 10:5 p.m. on March 6, 206, when the annual electric power plant was withdrawn on May 2006 to 3.5 p.m. on May 26, 2006, it was recognized that there was a full withdrawal rate of 100% from 20 p.m. on May 206 to 3, 206, respectively.

If so, the rate of use of metropolitan electric power plant on March 5, 2006 falls, and thus, it can be deemed that the Plaintiff’s income reduced or decreased is included in the damages with proximate causal relation with the strike of this case. Thus, the Defendant is obligated to compensate not only for the strike of this case but also for the damages to the metropolitan electric power plant suffered by the Plaintiff on March 5, 2006.

(iii) passenger transport and cargo transport sector;

In full view of the statements in Gap evidence 16, Gap evidence 35-3, 8, 9, and 36 evidence, general trains and freight train companies returned to the P.O. on March 4, 2006 when the strike of this case was withdrawn. Since all members returning to the railroad due to the characteristics of the railroad operations were not immediately invested in the work, the regular trains and freight train operation rate was less than 60.6 weeks following the date of withdrawal, and the rate was less than 40%. On March 6, 2006, the cargo transport operation rate was 40%. On the other hand, the high-speed railroads (KTX companies) companies were normalized on March 6, 2006. On March 5, 2006, the high-speed railroads were operated on March 5, 2006, but their withdrawal rate was not sufficiently known. On the other hand, it was acknowledged that the above rate was less than 30% compared to the empirical rule.

Thus, barring any special circumstance, the operation rate of ordinary trains and freight trains on March 5, 2006 falls short of their operation rate and the usage rate of high-speed railroads fall short of their operation rate, thereby reducing the Plaintiff’s income falls under the damage in proximate causal relation with the strike of this case. Accordingly, the Defendant is liable to compensate the Plaintiff for the damages incurred by the Plaintiff from March 1, 2006 to May of the same month.

On the other hand, the defendant asserts that the operation rate of ordinary trains and freight trains on the following day of the withdrawal of the strike is not due to the strike of this case, but because the plaintiff could not return to the previous work even after the withdrawal of the strike by removing a large number of members participating in the strike of this case. Thus, the damage caused by the decline in the operation rate of the train on March 5, 2006 is not related to the strike of this case.

Comprehensively taking account of the purport of each statement in Eul evidence Nos. 15 through 17, the plaintiff issued a disposition of removal from position as to 387 workers who led the strike among workers who failed to comply with the direction of their return to work, between March 1, 2006 and March 1, 2006 to 26 of the same month. Meanwhile, it is recognized that the rate of railroad operation after the end of the strike in 2003 was 96.9%. However, considering the following circumstances, the plaintiff's removal from position by March 5, 2006 can not be seen as completely restricting the plaintiff's removal from position by 25,510 members, even if the plaintiff's removal from position was included in majority, the plaintiff's removal from position cannot be viewed as 96% of the total removal from position by 25,510 members of the train, and the plaintiff's removal from position by 30% of the total removal from position can not be viewed as 96% of the plaintiff's work.

㈏ 전철운송 부문의 운수수입 결손금

The amount of loss caused by the instant strike from March 1, 2006 to May 5, 2006 due to the reduction of the electric utility is reasonable by comparing the profit from the normal operation home with the profit from the actual operation during the instant strike period, but considering the amount of indirect damage, such as the deviation of the customer. In addition, in the case of the electric utility sector, it is reasonable to calculate the amount of loss on the basis of the amount of loss on the basis of the daily performance of the same period for the previous year, since the users of the electric utility have shown a significant difference between the users according to the external factors, such as opening schools and vacations, and the number of employees according to the usage pattern.

First, we examine the earnings from the normal operation of home. According to the Gap evidence No. 16, the average of approximately 106.426% of the previous month compared to the previous month in January and February 2006, while the earnings from March 2006, which belongs to the period of the strike of this case, were 95.639% compared to the previous month in March 1, 2006, and the period from March 1, 2006 to March 5 (1) from March 1, 2006) and the period from March 1, 2006 to March 1, 2006 to March 6.6% of the previous year 206 x 36% of the earnings from the previous year (3.6% of the above earnings from March 1, 2005) x 6.6% of the above earnings from March 6, 206 (206.6% of the previous year).

Meanwhile, according to the statement in Gap evidence No. 16, the actual income in the electric transport sector from March 1, 2006 to May 5 of the same month is 4,850,056,669 won in total.

If so, the deficit amount of transportation revenue resulting from the instant strike in the steel transport sector is KRW 1,709,01,614 (i.e., normal estimated revenue amounting to KRW 6,59,058,283 - Actual profit amounting to KRW 4,850,056,669).

㈐ 여객운송 부문의 운수수입 결손금

In full view of the purport of the argument in Gap evidence No. 15, the plaintiff acquired a total of 10.663 billion won for the operation of a railroad (including high-speed railroads) from March 1, 2006 to the 5th of the same month, the plaintiff's transportation income during the same period of the previous year (from March 1, 2005 to March 5, 2005) is KRW 20.84 billion, and the profits from the transportation of railroad passengers are increased by little in comparison with the same period of time.

Although the increase and decrease in railroad transportation revenue by year, month, and day, depending on specific circumstances, in this case, at least 20.84 billion won, which is the plaintiff's transportation revenue accrued during the same period in the previous year, shall be deemed as 10.14 billion won, which is the amount calculated by deducting 10.63 billion won, which is the transportation revenue actually accrued during the above strike period (i.e., 20., 4 billion won-10.63 million won) (i.e., a similar period of time in the previous year, or the transportation revenue loss calculated in accordance with various criteria reflecting the transportation trends during the previous strike or the results before or after the strike in this case).

㈑ 화물운송 부문의 운수수입 결손금

In the case of cargo transport sector, since the number of trains and the profits from transportation are not large on a ordinary day except weekends and holidays, the number of ordinary trains and the profits from transportation should be calculated on the basis of the average value per day for the month immediately preceding the strike in this case.

In full view of the purport of the argument in Gap evidence Nos. 17, first of all, in transport of cargo except fire extinguishings, it is acknowledged that the total number of operating trains from Pyeongtaek (on a demand-day to Sundays 5 days) is 1,713, the total number of transport profits is 4,000,000,000 won, and the total number of operating trains from March 1, 2006 to May of the same month is 424, the total number of transport profits is 1,286,000,000,000 won, and in the next case of transport of small freight, the total number of operating trains is 70,000,000 won, and the total number of transport profits is 12,40,000,000 won, and it is recognized that there is no transport profits due to the absence of any one-way operation from March 1, 206 to May of the same month.

Thus, in the case of carriage of cargo, the amount of damages is 2.73 billion won (4 billion won - 1.286 billion won) - in the case of carriage of small cargo, the amount of damages is 12.4 billion won, and the total sum of cargo and fire extinguishings is 2.5 billion won (=2.73 billion won + 12.4 million won + 124 million won).

㈒ 소결론

Ultimately, the Plaintiff’s transportation revenue loss from the strike of this case (i.e., KRW 14.75,001,614) (i.e., KRW 1.79,001,614 + KRW 101,000 + KRW 285,00,000).

(c) Expenses incurred in substitution (emergency work overtime allowances and expenses incurred in the entry of substitute personnel).

Comprehensively taking account of the purport of the arguments in Gap evidence Nos. 15, 18, and Gap evidence Nos. 31 through 34, the plaintiff paid excess work allowances pursuant to the relevant provisions from February 28, 2006 to March 6, 2006, which is the emergency work period, by having the employees who did not participate in the strike take emergency duty to normalize the railroad operation during the period of the strike, and the employees who did not participate in the strike paid the excess work allowances from February 28, 2006 to March 1, 2006 to the fifth of the same month, making it difficult for them to properly operate the railroad due to the difficulties of the employees who did not participate in the strike. The above excess work allowances are 1.96 billion won in total, and 8.3 billion won in total, and expenses necessary for the operation of the railroad. (The plaintiff's assertion that this is acknowledged as follows.)

A total of these expenses is KRW 2.79 billion (i.e., excess service allowance of KRW 1.961 billion + alternative service allowance of KRW 832 million). It can be sufficiently anticipated that the Plaintiff spent in order to prevent the situation that the full suspension of the railroad operation from the standpoint of public interest. As such, the above expenses are losses in proximate causal relation with the strike of this case.

On the other hand, the defendant asserts that the plaintiff's additional payment of personnel expenses as above to internal employees should not be included in the amount of damages in this case, since the plaintiff's additional payment of personnel expenses is paid to them through the early work. However, as in the rules of the enforcement of the plaintiff's personnel regulations, it is only possible to order a certain position for temporary increase in work volume or inevitable personnel management, and it is difficult to apply it in case of emergency situation by a large number of members of the whole members of the union as in this case, and it is not possible to request the plaintiff to apply it. Accordingly, the defendant's above assertion on the premise that the plaintiff's application of the above provision of the above provision is not acceptable.

(4) Items subject to deduction

㈎ 절감된 인건비

According to Gap evidence No. 13, it can be acknowledged that the amount equivalent to the wages that the plaintiff did not pay to the unauthorized absence from work among the union members participating in the strike during the period of the strike in this case, applying the principle of no-work-free wages, is 2.597 billion won.

㈏ 절감된 열차 운행비 및 전철 전력사용료

According to the evidence evidence Nos. 29 and 30, the Plaintiff recognized the fact that the Plaintiff’s total expenses of KRW 2.93,802,00,00 from March 1, 2006 to the 5th of the same month and the electric power fee of KRW 3.11,363,766, in aggregate from March 1, 2006 to the 4th of the same month. Accordingly, the Plaintiff’s cost of train operation, etc. saved by the Plaintiff due to the instant strike, is the total expenses of KRW 3.25,165,766 (= KRW 2.93,802,00 + KRW 311,363,766).

㈐ 감가상각비

The Defendant asserts that, as of December 31, 2006, the depreciation costs of 1 year 2,3788 billion won as of December 31, 2006 from the Plaintiff’s engine vehicles, vehicles, and machinery equipment were KRW 2,378 billion,42,459,371. As of December 31, 2006, 1.563,895,622 won during the instant strike period (i.e., 651,623,176 x 6/10 x 4) should also be deducted.

According to the statement in Gap evidence No. 26, depreciation costs are acknowledged in the plaintiff's balance sheet. However, the physical and economic value gradually decreased depending on the flow of time, and A remains in the part of the acquisition cost of fixed assets so that it can provide future profits. The depreciation costs refer to the account process that separates the part of the acquisition cost of fixed assets so that it can provide future profits. The depreciation costs refer to the part of the cost cost handled at a certain rate in the above account book in the accounting process. Therefore, since depreciation costs are only treated as costs in the accounting process, but are not actually disbursed, it cannot be deemed that the plaintiff's assets are actually consumed in proportion to the above depreciation costs. Further, the depreciation of vehicles, etc. is naturally occurring after the passage of time, and it cannot be deemed that such reduction takes place only through operation without the occurrence of operation. Although the decrease in operation is ordinarily higher than that of operation at the time, it cannot be seen that there is no difference in this part of the above balance sheet. Therefore, the plaintiff's physical loss reduction cannot be seen as being acceptable.

㈑ 기타

The Defendant asserts that the operating expenses (electric, water, etc.) of the office reduced due to absence from office of the union members participating in the instant strike should also be deducted from the amount of loss. However, since the operating expenses of the office normally appear to be almost fixed expenses regardless of absence from part of the union members, the above assertion cannot be accepted unless it is proved that the expenses were reduced due to absence from office of some union members.

In addition, the defendant asserts that the amount of wage reduction due to the disciplinary action against the part of the union members participating in the strike should also be deducted. However, since it is indirectly related to the strike in this case, it is done by the plaintiff's disciplinary action separate from the strike in this case, and there have been considerable relief due to the objection of the person subject to the disciplinary action, it shall not be deducted from the amount of the plaintiff's business loss due to the strike in this case.

(5) Sub-committee

Ultimately, the Plaintiff’s damages from the strike of this case can be said to be KRW 11.65,835,848 (traffic revenue loss KRW 14.75,01,614 + alternative input cost of KRW 2.73,00,000 + Labor cost of KRW 2.97,000,000 for reduced train operation cost of KRW 2.57,000,000 for reduced train operation cost of KRW 3.255,165,766).

B. Limitation on liability for fair and reasonable allocation of damages

6) The Plaintiff’s position and status to the instant strike, the process of negotiations by the Plaintiff and the Defendant, the degree of efforts by both parties to minimize damages caused by the strike, the purport of the instant arbitration system and the extent of restrictions on collective action rights arising therefrom, the circumstances that the instant arbitration system was abolished, and other circumstances that were present in the pleadings. In particular, the following circumstances, i.e., ① the Plaintiff and the Defendant knew that there were various circumstances and issues that are not easy to reach an agreement during the process of collective bargaining for several months to conclude the instant regular collective agreement, and the Defendant has no choice of the means of ex officio referral and strike to accomplish their respective arguments. Accordingly, it was clearly predicted that the Plaintiff would not have reached an agreement on the instant collective agreement to prevent the Plaintiff’s serious inconvenience and negative consequences on the people and the national economy, and that the Defendant would not have been able to reach an agreement on the instant collective agreement to the extent that it would not have been able to reach an ex officio and ex officio resolution on the instant industrial action, as well as to the extent that it would not have been ever ever ever been concluded.

C. Sub-committee

Thus, among the damages of the Plaintiff 11.65,835,848 won, the part to be borne by the Defendant is 697,501,508 won (i.e., 11.65,835,848 won x 0.6 won).

4. Conclusion

As to the plaintiff, 6.97,501,508 won for damages from the strike of this case and 5.174,201,334 won as cited in the judgment of the court of first instance, the defendant, from September 22, 2006 following the delivery day of a copy of the complaint of this case to October 26, 2007, 5% per annum, and 20% per annum from the next day to the day of full payment, to the day of full payment, 1.87,501,508 won for damages from the strike of this case, and from September 22, 2006 to the date of delivery of a copy of the complaint of this case, it is reasonable for the defendant to dispute about the existence or scope of the obligation to pay damages from September 22, 2006 to the date of full payment. Accordingly, the defendant's claim for damages from the next day to March 25, 2009, which is reasonable for the plaintiff to pay the above legal reasons.

However, part of the part against the plaintiff in the judgment of the court of first instance is unfair based on its conclusion. As such, the part of the plaintiff's appeal which partially accepted the plaintiff's appeal and revoked the conclusion different as above, and order the payment of the above money additionally recognized in the court of first instance against the defendant. Since the remaining part of the judgment of the court of first instance is legitimate, the remaining appeal by the plaintiff and the defendant's appeal are dismissed

Judges Kim Sang-chul (Presiding Judge) and Kim Sung-chul

1) This mar is the average numerical value, including up to 100 per cent of the high-speed rail (KTX) operation rate.