Case on Violation of the Remedial Order of the Labor Relations Commission

[7-1 KCCR 307, 92Hun-Ka14, March 23, 1995]

A. Background of the Case

In this case, the Constitutional Court struck down the Labor Union Act that prescribes criminal punishment for the violation of an order of remedy by the Labor Relations Commission that has not been finalized.

Article 42 Section 1 of the Labor Union Act (amended by Act No. 3350 on December 31, 1980) provides that the Labor Relations Commission shall issue an order of remedy to the employer when it makes a finding of an unfair labor practice. Article 46 punishes the violators of the order of remedy by imprisonment for not more than two years or by a fine not exceeding 30 million won.

The petitioner received an order of remedy by the Labor Relations Commission, but had it annulled on appeal. However, he was prosecuted summarily on charges of violating the Labor Standards Act and the Labor Union Act and fined by the Jeju District Court on a summary trial. He appealed to a full trial and requested constitutional review of the part of Article 46 of the Labor Union Act that says, "when the order of relief remedy to Article 42 is violated (hereinafter referred to as the “Remedy Violation Penalty Provision”)." The Jeju District Court accepted the challenge and referred the issue for constitutional review.

B. Summary of the Decision

The Constitutional Court held that the Remedy Violation Penalty Provision violated due process of law and the rule against excessive restriction, and thus violated the Constitution.

An order of remedy is issued by the Labor Relations Commission to the employer when it makes a finding of an unfair labor practice. Such orders may include a considerable number of those that are unlawful or unfair. There may be orders of remedy yet to be finalized and can be nullified for being unlawful or unfair, or those that actually have been nullified on appeal or judicial review for being illegal or unfair. Even if orders of remedy involve basic labor rights related to workers’ right to livelihood, punishing the employer for failing to swiftly carry out the abovementioned orders as a means to compel performance or impose a

restriction is unreasonable and unjust in light of the nature of criminal punishment as a supplementary measure or the last resort to obtain administrative compliance. Criminal punishment for violation of an order of remedy by the Labor Relations Commission before the administrative order is validated in court is a rare legislation. Moreover, there is no legislative precedence in the world where the same statutory criminal penalty is to proceed as if the order was validated when it, in fact, had been annulled on appeal for being illegal or unfair.

Given this, the Remedy Violation Penalty Provision violates due process of law and the rule against excessive restriction.

C. Aftermath of the Case

Some characterized the Court’s decision as being blind to the reality of labor relations and permissive of illegal practices by employers, given the fact that many employers have evaded the Labor Relations Commission's orders simply by disobeying them or by paying small fines (The Hankyoreh, March 25, 1995).

The National Assembly enacted by Act No. 5310 the Trade Union and Labor Relations Adjustment Act on March 13, 1997, and added Article 85 Section 5, which reads as follows: "When an employer has instituted an administrative suit pursuant to Section 2, the competent court may, by its decision at the request of the National Labor Relations Commission, order the employer to perform all or part of the order of remedy made by the National Labor Relations Commission until the judgment of the court is rendered, and may also, at the request of any of the parties concerned or ex officio, revoke such decision." Furthermore, Article 95 was added to provide that, "A person who violates an order issued by the court as referred to in Article 85 Section 5 shall be punished by a fine for negligence not exceeding five million won (where the order is a performance order, to a fine for negligence equivalent to the amount calculated by multiplying a rate of not more than 500,000 won by the number of the days during which the order has not been complied with)." By involving the judiciary in obtaining compliance to orders of remedy, these provisions made legislative improvement in line with due process of law, and also replaced criminal punishment with the administrative penalty of a fine.