[1] Whether the three labor rights are limited to public officials if a non-public official actually performs public duties

[2] Whether the employee's three labor rights of the executive officer's office are limited (negative)

[1] Articles 33 and 37(2) of the Constitution of the Republic of Korea; Article 66(1) of the State Public Officials Act / [2] Articles 33 and 37(2) of the Constitution of the Republic of Korea; Article 66(1) of the State Public Officials Act; Article 8 of the Execution Officer Act; Articles 3, 20, 21, 22, and 25 of the Enforcement Rule

National Public Service Trade Union and one other (Law Firm New Day, Attorneys Regular Ho-ho et al., Counsel for the plaintiff-appellant)

Ulsan District Court Enforcement Office

Busan High Court Order 2008Ra291 dated November 5, 2008

The order of the court below is reversed, and the case is remanded to Busan High Court.

The grounds of reappeal are examined.

1. Article 8 of the Enforcement Officers Act provides that the office of enforcement officers may employ clerical staff members for the purpose of assisting the work of enforcement officers, and the matters concerning the number of such clerical staff members, their qualification standards, their performance duties, etc. shall be delegated to the Supreme Court Regulations. Accordingly, the Enforcement Rules provide for the qualification standards, procedures for employment, remuneration, employment period, etc. of clerical staff members in Articles 3, 20, 21, 22, and 25, and provide for the matters concerning service such as the office hours and vacations shall correspond to the court officials unless they are contrary to the nature of service.

According to the above provisions, the office worker belonging to the execution officer office shall not be a public official as a general worker, but shall be determined by the enforcement officer rules due to the public nature of the work performed by him, and shall be treated as equivalent to the court official in service.

2. Meanwhile, Article 33 of the Constitution provides that “A worker who is a public official shall have the right to organize, collective bargaining, and collective action only to those who are determined by the Act,” thereby reserving the scope of public officials whose three labor rights are guaranteed by the Act. Accordingly, Article 66(1) of the State Public Officials Act provides that “no public official shall engage in any collective action for any labor campaign or activities other than public services, except for those who are actually engaged in labor.” Although Article 33 of the Constitution limits the three labor rights for other public officials than those who are actually engaged in labor, the right to organize and collective bargaining within the scope permitted by the Act on the Establishment, Operation, etc. of Public Officials’ Labor Unions, which came into force from January 28, 2006, with respect to public officials belonging to certain classes and duties, the right to organize and collective bargaining shall be acknowledged within

In this context, a public official whose three labor rights are restricted refers to a person who is appointed under the basis of laws and ordinances and is engaged in public service in accordance with the State Public Officials Act and the Local Public Officials Act. Thus, even if a person who does not have such status is actually engaged in public service, the three labor rights are not restricted under Article 66(1) of the State Public Officials Act immediately, and the three labor rights are limited in accordance with Article 37(2) of the Constitution, which provides for the restriction of the three labor rights, such as the application of the provisions concerning the service of public officials to individual laws to restrict fundamental rights.

However, in the case of a clerical staff belonging to an execution officer office, the Supreme Court Regulations only stipulate that the matters concerning the service of the executive officer shall correspond to the public officials of the court, and there is no provision that the enforcement officer law and other Acts shall apply mutatis mutandis to the clerical staff or restrict their three labor rights. Article 8 of the Enforcement Officer Act delegates matters concerning the number, qualification standards, performance duties, etc. of the clerical staff to the Supreme Court. However, it is merely a delegation of the practical matters related to the employment of the clerical staff, and it does not constitute delegation of the matters concerning the restriction of fundamental rights of the clerical staff.

As such, unless there is a provision that limits the three labor rights of the employees belonging to the enforcement officer office, the three labor rights are limited by applying or applying Article 66(1) of the State Public Officials Act mutatis mutandis to these employees.

3. The court below maintained the decision of the court of first instance that approved the decision of provisional disposition of this case on the premise that it is possible to limit the three labor rights under Article 66(1) of the State Public Officials Act with respect to the clerical staff belonging to the execution officer office. In so determining, the court below erred by misapprehending the legal principles on the three labor rights of the clerical staff belonging to the execution officer office, thereby affecting the conclusion of the judgment.

On the other hand, the court below shall point out that it is necessary to examine and determine whether there is a benefit to maintain the application for provisional disposition of this case because there is a person who has joined the National Public Service Trade Union among the administrative staff belonging to the creditor.

4. Therefore, the order 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 Min Il-young (Presiding Justice)