Meanwhile, the commencement of a lock-out itself is justifiable in light of the specific circumstances, such as workers’ industrial action, but where an employer continues to conduct a lock-out after a certain point, while maintaining the lock-out and going beyond the defensive purpose of workers’ industrial action and has been changed to the nature of an aggressive lock-out with the aim of weakeninging the trade union’s organization actively beyond the defensive purpose for the industrial action by workers, legitimacy of the subsequent lock-out is lost, and accordingly, the employer cannot be exempt from the duty of paying wages during that period.

1. Legal principles on the legitimacy of commencement and maintenance of lock-out and the duty to pay wages

A lock-out by an employer under Article 46 of the Trade Union and Labor Relations Adjustment Act may be acknowledged as a legitimate industrial action by an employer only if there is considerable nature as a means of defense against an industrial action by workers, in light of the specific circumstances, such as the negotiating attitude and process between the employer and workers, the purpose and method of industrial action by workers, and the degree of shock that the employer receives. In cases where a lock-out falls under a preemptive or aggressive lock-out with the aim to actively weaken the trade union’s organizational ability beyond the defensive purpose of the industrial action by the trade union, its legitimacy cannot be recognized. Where the lock-out is not deemed a legitimate industrial action, the employer cannot be exempted from the duty of paying wages to the workers during the lock-out period (see Supreme Court Decisions 98Da3431, May 26, 200; 2003Du1097, Jun. 13, 2003, etc.).

Meanwhile, the commencement of a lock-out itself can be deemed justifiable in light of the specific circumstances, such as workers’ industrial action. However, in cases where the lock-out continues while maintaining a lock-out, even though workers’ intention to discontinue industrial action after a certain point, and expressed their genuine desire to return to work, and the nature of an aggressive lock-out with the aim of weakeninging the trade union’s organization actively beyond the defensive purpose of the industrial action by workers, it should be deemed that legitimacy of the subsequent lock-out is lost, and accordingly, the employer cannot be exempt from the duty of paying wages during that period.

2. Regarding ground of appeal No. 1

Upon citing the judgment of the court of first instance, the lower court determined that the Defendant’s act of industrial action on February 10, 2010, which was conducted by the Korean Metal Workers’ Union and its branch (hereinafter “the Korea Metal Workers’ Union Branch”) obstructed the Defendant’s delivery business, night work, and refusing overtime work on February 5, 2010, which was decided to conduct industrial action at the general meeting of its members on February 5, 2010, which was carried out from February 9, 2010 to February 12, 2010 after refusing overtime work on the same day, which was obstructed the Defendant’s supply of parts to the finished company due to industrial action, and that the Defendant’s act of industrial action was prohibited on February 10, 2010 also requested to suspend industrial action and labor-management consultation on February 10, 2010, which was conducted by its members, and that the Defendant continued to engage in industrial action within 300,013.

In light of the above legal principles and records, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, there were no errors of exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or of misapprehending

3. Regarding ground of appeal No. 2

A. In citing the judgment of the court of first instance, even though Leseo Man-do Branch requested the Defendant to withdraw the lock-out during the lock-out period, the lower court determined that, even if Leseo Man-do Branch was unable to comply with the Defendant’s business and attempted to enter the company in an assembly or demonstration from February 19, 2010 to the Defendant factory door, and continued criminal acts while attempting to interfere with the Defendant’s business; and that Leseo Man-do Branch was unable to withdraw the industrial action as the Defendant’s genuine industrial action upon the completion of the lock-out from March 25, 2010 to April 27, 2010, it is difficult to view that the industrial action was ordered to return the lock-out to the extent that the industrial action was ordered to return to the Plaintiff’s credit and business at the close of the place of business or from March 25, 2010 to April 27, 2010. In so doing, it is difficult to view that the Defendant’s genuine industrial action was ordered to return to the Defendant’s 20-out.

B. However, it is difficult to accept the above determination by the court below for the following reasons.

First of all, according to the reasoning of the lower judgment, the first instance court, and evidence duly admitted by the lower court, ① on February 22, 2010 after the commencement of the lock-out, 2010, she requested the Defendant to conduct collective bargaining on February 24, 2010 when she expressed his/her intent to return to the work of the entire members. ② on March 2, 2010, she asked her members to be informed of the fact that she would not have been allowed to have access to the industrial action on March 2, 2010, and that she would not have access to the industrial action, and that she would not have access to the industrial action upon the request of the Defendant on March 8, 2010, and that she would not have access to the industrial action upon the request of her members, and that she would not have access to the industrial action upon the request of her members. ③ On March 9, 2010, she would not have access to the industrial action.

Meanwhile, according to the records, from March 2, 2010 to March 6, 2010, members of the local association committed an unlawful act, such as assault, obstruction of business, etc., while holding an assembly of a lock-out in front of the Defendant’s factory, and from March 5, 2010 to March 9, 2010, many members of the business establishments affiliated with the National Metal-Mon-Mon branch jointly and severally attempted a strike and assembly. However, even then, there is no evidence that members of the local association continued an active strike, such as holding an unlawful demonstration, and even from March 25, 2010, the local association distributed printed articles that slanders the Defendant against its citizens from around March 25, 2010 to around March 6, 2010. However, there is no room to deem that the Plaintiffs had already asserted that the instant act was not against the Defendant, such as distribution of printed articles, etc.

Furthermore, according to the records, the Defendant continued to maintain the instant lock-out measures through individual contacts until March 2010; around 300 members were selected from around April 2010; and held a general meeting for structural change of a trade union on two occasions on May 19, 2010 and June 7, 2010. The Defendant entered into a contract with creative consulting with the labor law firm to provide advice on the labor law firm and pay remuneration; from around March 2010, the Defendant received several documents called “industrial action strategic case” from the above labor law firm; the Defendant, while maintaining a lock-out to build a cooperative labor-management relationship, intended to reduce the number of union members to withdraw from the union members; and the Nonparty, etc., led some union members, such as the Nonparty, etc., to hold a general meeting for structural change; and the Defendant intentionally participated in the formation of a company-level and structural change by including the aforementioned structural change in the company-level plan and its structural change.

Examining the above facts and circumstances in light of the legal principles as seen earlier, the lock-out of this case continued for a long period of 98 days from February 16, 2010 to May 24, 2010. From the time when a considerable number of union members were returned on or around March 2010, it is highly probable to deem that the lock-out of this case was a preemptive and aggressive lock-out with the purpose of promoting the balance of negotiating power with the branch, namely, for the Defendant’s purpose of promoting the balance of negotiating power with the branch, which goes beyond the defensive purpose of the industrial action of the branch, and that is, for the purpose of undermining the power of the branch.

C. If so, the lower court should have deliberated more specifically on the following: (a) the time when it can be seen as having expressed the Defendant’s genuine intention to return to work on the part of the Defendant; or (b) the time when the commission of the unlawful act or hostile act against the Defendant, etc. was completed; (c) the process, purpose, and specific method of the Defendant’s selective promotion of the members’ return to work; (d) the actual purpose and background of the Defendant’s selective implementation of a resolution for a structural change by the subdivision; (e) whether the Defendant was involved in the resolution; and (e) other circumstances that may presume the change in the relationship between the branch and the Defendant; (b) the Defendant’s maintenance of the instant lock-out measures even after March 2010, beyond the defensive purpose of the industrial action by the subdivision and constitutes a preemptive lock-out, or an aggressive lock-out with the aim to weaken the organization of the branch; and (e) whether the Defendant constitutes the Defendant’s obligation to pay the wages after the completion of the lock-out.

Nevertheless, without doing so, the lower court recognized legitimacy during the whole lock-out period solely on the grounds stated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the legitimacy of lock-out, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. Conclusion

The lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)