(영문) 서울고등법원 2015.8.20. 선고 2014누49981 판결

The judgment of the first instance is revoked. The defendant's disposition to return a trade union establishment report against the plaintiff on August 2, 2013 shall be revoked.

Reasons

1. The background of the basic facts and dispositions;

A. The Plaintiff’s establishment history

1) On September 23, 2009, the former Korean Government Officials' Union, a telegraphic body of the Plaintiff, established a "National Government Officials' Union" by a resolution for a merger with the National Democratic Public Officials' Union and the Court Officials' Union, and thereafter, on November 28, 2009, the name of the Plaintiff was changed from the board of representatives to the Plaintiff.

2) On December 1, 2009, the former Korean Public Officials’ Union submitted a trade union dissolution report to the Defendant, and the Plaintiff submitted a trade union establishment report to the Defendant on the same day.

(b) Reporting on establishment and return of a trade union;

1) On December 1, 2009, the Plaintiff submitted a trade union establishment report to the Defendant. On December 4, 2009, the Defendant: (a) pursuant to Article 2 of the Addenda to the Rules, the Plaintiff succeeded to the status of the members of the former Korean Public Officials’ Union; (b) demanded supplementation on the ground that the Plaintiff joined the position of the members of the former Korean Public Officials’ Union; and (c) the Plaintiff did not comply with the said demand for supplementation; (d) the Defendant returned the Plaintiff’s trade union establishment report on December 1, 2009 pursuant to the Act on the Establishment and Operation of Public Officials’ Labor Unions (hereinafter “Public Officials’ Labor Union Act”) and the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”).

2) On February 25, 2010, the Plaintiff filed a new report on the establishment of a trade union with the Defendant. On March 3, 2010, the Defendant included 82 employees who were members of the former Public Officials’ Union, and eight of the representatives of the organizations affiliated with the Plaintiff is prohibited from joining the trade union pursuant to Article 6 (2) 1 of the Public Officials’ Labor Union Act and Article 3 subparagraph 1 (b) of the Enforcement Decree of the same Act, and is a public official who mainly engages in the duties of directing, supervising, or supervising other public officials within the department (hereinafter referred to as “all employees”), and the Plaintiff’s report on the establishment of the trade union was also joined by a considerable number of general managers on February 25, 2010. The Plaintiff filed a lawsuit against the Defendant seeking revocation of the disposition on the establishment of the said trade union, but the Seoul Administrative Court (No. 2010Gu1276) dismissed the Plaintiff’s appeal on July 21, 2010.

3) On March 26, 2012, the Plaintiff filed a new report on the establishment of a trade union with the Defendant. On March 29, 2012, the Defendant explained to the Plaintiff as to whether a person was admitted to a trade union member and demanded the Plaintiff to supplement the rules recognizing the qualification of the dismissed employee, but the Plaintiff did not comply with the said request for supplement. Accordingly, the Defendant rejected the Plaintiff’s report on the establishment of a trade union on March 26, 2012.

1) On May 27, 2013, the Plaintiff filed a new trade union establishment report to the Defendant. On May 30, 2013, the Defendant demanded the Plaintiff to supplement the following details by the deadline on June 24, 2013.

A person shall be appointed.

2) On June 21, 2013, the Plaintiff requested the Defendant to extend the above supplement period to July 22, 2013, and the Defendant approved the Plaintiff’s request for the extension of the due date on June 25, 2013.

3) On July 20, 2013, the Plaintiff held a temporary national assembly and resolved on the agenda of the amendment of Articles 7(2) and 11 of the Plaintiff’s Covenant, and the previous and subsequent regulations are as listed below (hereinafter referred to as “the previous and subsequent regulations”).

A person shall be appointed.

4) On the other hand, on July 20, 2013, the Plaintiff issued an order of personnel management to dismiss a member from a position as indicated in the column of “former Department (position)”, a public official who is dismissed, removed, or dismissed (hereinafter referred to as “public official on dismissal”) (hereinafter referred to as “public official on dismissal”).

A person shall be appointed.

5) On July 22, 2013, the Plaintiff notified the Defendant of the fact that Articles 7(2) and 11 of the Code were amended, and that 10 public officials dismissed or removed from office were dismissed from office on the ground of the Defendant’s request for supplementation.

6) However, on August 2, 2013, the Defendant rendered a disposition to return the Plaintiff’s establishment report to the Plaintiff on May 27, 2013 (hereinafter “instant disposition”) for the following reasons.

1. He submitted in 2013, 5, and 27, and submitted a report on establishment of a trade union on July 22, 2013.2. The results of review of Article 7(2) of the amended Rules submitted by the Plaintiff, which provides that “If a member is unfairly dismissed or contests the validity of dismissal, he/she shall maintain his/her membership in accordance with the relevant Acts and subordinate statutes,” but the proviso provides that “Provided, That the interpretation of the eligibility of a member shall be governed by Article 27(2)7 of the Regulations,” which states that “The Central Executive Commission may be the basis for recognizing a person who is not allowed to become a member of a trade union (or a person who is dismissed).” 3. Accordingly, Article 7(2) of the Regulations permits a person who is not allowed to join the Trade Union and Operation of Public Officials, and thus, the report on establishment submitted by the Plaintiff pursuant to Article 6(3), Article 17(2) of the Act on the Establishment and Operation of the Trade Union and Labor Relations Adjustment Act, Article 4(3) of the Plaintiff.

[Ground of recognition] The fact that there is no dispute, Gap's 2 through 5, 8, Eul's 1 through 4, and 10, and the purport of the whole pleadings

2. Relevant provisions;

The provisions of the attached Table shall be as specified in the attached Table.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

The instant disposition is unlawful because there is no ground for disposition due to the following reasons.

A) The Plaintiff has the character of an industrial and occupational trade union (hereinafter referred to as a “original business unit trade union”) which is not a company-level trade union. Since the primary business unit trade union does not require a subordinate relationship to a certain employer, it should be interpreted that “public officials” or “workers” under Article 2 of the Public Officials’ Labor Union Act, which is applicable to the labor union under Articles 2 and 17(2) of the same Act, are included in “persons who have qualifications as public officials and are seeking to work or have been dismissed.”

Therefore, even if the primary company unit trade union falls under the form under the proviso of Article 2 subparag. 4 of the Trade Union Act, the defendant can reject the report of establishment of a trade union only if it can be assessed that a public official who is de facto dismissed has joined the trade union and has impaired the independence of the trade union. However, the defendant did not examine whether the plaintiff's independence has been damaged due to the joining of a dismissed public official, but only after the amendment of this case, the defendant issued the disposition in this case on the ground that a dismissed

B) Even if public officials or employees are not included in “public officials” or “workers” under Article 2 of the Public Officials’ Labor Union Act and Article 2 of the Trade Union Act, in full view of the following circumstances, it is reasonable to interpret Article 7(2) of the Regulations after the amendment of the instant case as a provision granting membership only to those who are qualified for membership pursuant to the relevant statutes. However, the Defendant issued the instant disposition on the erroneous premise that the proviso to Article 7(2) of the Regulations after the amendment of the instant case grants the central enforcement committee the authority to grant membership to those who are dismissed from office without qualification pursuant to the relevant statutes.

(1) After the amendment of this case, the authority of the Central Execution Commission under the proviso of Article 7(2) of the Regulations is merely an interpretation authority of the specific eligibility of a cooperative member. Even if a central office administration committee granted the authority to interpret the regulations, if it can only interpret it as a cooperative member pursuant to the relevant statutes, and it does not exceed the relevant statutes, it itself constitutes a violation of the regulations. Accordingly, it is objectively clear that Article 7 of the Regulations, after the amendment of this case, grants a cooperative member qualification only to a person who is qualified as a cooperative member pursuant

(2) In light of the following: (a) the Plaintiff agreed to amend the Act prior to the amendment by the Act after consultation with the public officials in charge of employment and Labor several times; (b) Article 8(2) of the Act on Labor Cooperatives for the Executive Officers, approved by the Defendant, provides the same content as Article 7(2) of the Act after the amendment of the Act; and (c) the purpose and circumstance of the amendment of the Act, etc., it cannot be interpreted as a ground provision that allows public officials dismissed under the proviso to Article 7(2) of the Act after the amendment of the Act as a partner qualification.

(3) The proviso to Article 7(2) of the Regulations after the instant amendment is a provision that existed before the Plaintiff’s amendment in addition to “in accordance with the relevant statutes” following consultation with the Ministry of Employment and Labor on July 20, 2013. The purport of the proviso is to deny membership qualification according to the policy decision of the association even where the Plaintiff’s membership is maintained in accordance with the main sentence of the proviso.

2) Violation of Article 12(2) of the Trade Union Act

As long as the Defendant finally demanded the Plaintiff to supplement the establishment report of a trade union pursuant to Article 12(2) of the Trade Union Act and Article 9(1)1 of the Enforcement Decree of the same Act, and the Plaintiff completed supplementation according to the above demand for supplementation, the Defendant should accept the establishment report of the Plaintiff’s trade union. The Defendant made the instant disposition even after the Plaintiff completed supplementation upon the Defendant’s request for supplementation, which is unlawful in violation of Article

3) Absence of substantial examination authority

Although there was no objective reason to return the Plaintiff’s letter of reply to the establishment of the Plaintiff’s trade union at the time of the amendment on July 22, 2013, which was completed by the Defendant’s request for supplement, the Defendant, after the amendment of the instant case, examined Article 7(2) of the Regulations in substance, and issued the instant disposition on the ground that the said provision constitutes Article 2 subparag. 4 (d) of the Trade Union Act. The instant disposition was unlawful since the Defendant was found to have no authority

4) Violation of the principle of trust protection.

The director in charge of the Ministry of Employment and Labor and the director in charge and the director in charge of the division of the Ministry of Employment and Labor in the process of seeking opinions over several times in accordance with the relevant Acts and subordinate statutes.

The amendment expressed a public opinion to accept the establishment report, and the plaintiff convened a representative conference at the risk of internal opposition, and revised the rules as agreed with the defendant. Therefore, the defendant's following amendment of Article 7 (2) of the rules violates the principle of trust protection.

(v) the deviation and abuse of discretionary authority;

Although the plaintiff's central executive committee did not make any decision on the scope of membership of a dismissed public official, the defendant's central executive committee of the plaintiff's 's central executive committee will include a dismissed public official in the scope of its members.' The disposition of this case is a deviation from and abuse of discretion.

B. Determination

1) Determination as to the non-existence of the grounds for disposition

A) Whether it is possible to return the trade union establishment report

(1) According to Articles 10(1) and 12(1) and 12(3)1 of the Trade Union Act, a person who wishes to establish a trade union shall submit a report of establishment to an administrative agency along with the bylaws. An administrative agency shall issue a certificate of report within three days of receipt of the report, except where there is any ground for supplement or rejection. However, if the trade union which reported establishment meets the passive requirements of the trade union under each item of Article 2(4) of the same Act, the report of establishment must be returned.

Meanwhile, according to the main sentence of subparagraph 4 (d) of Article 2 of the Trade Union Act, if a person who is not a worker is allowed to join as a "person who is not a worker", the above provision is applied to a public official's trade union pursuant to Article 17 (2) of the Public Officials' Labor Union Act, and in this case, the "worker" shall be deemed to be a "public official", and Article 6 (3) of the Public Officials' Labor Union Act shall not lose the status of a union member until the National Labor Relations Commission makes a decision on review of the National Labor Relations Commission. In full view of the above provisions, the "worker" under subparagraph 4 (d) of Article 2 of the Trade Union Act in relation to a public official's trade union shall be limited to a "person who maintains the status of a public official" in principle, and a public official dismissed or dismissed shall be deemed to be a "person who is not a worker" except before the National Labor Relations Commission makes a decision on the application for unfair labor practice to the Labor Relations Commission. On the other hand, since it is recognized to allow a person who is not a worker to join, an administrative agency shall dismiss.

(2) On the ground that the provision of the proviso of Article 7(2) of the Code after the amendment of this case can be interpreted as a ground provision allowing a person who is not a worker to join the labor union, the defendant issued the disposition of this case which rejected the plaintiff's report of establishment of the labor union on May 27, 2013 is recognized as above. As examined below, inasmuch as the proviso of Article 7(2) of the Code after the amendment of this case is interpreted as a provision recognizing the right to grant qualification to a person who is not a worker before the Labor Relations Commission's review decision by applying a remedy for unfair labor practices to the Central Execution Commission, i.e., a person who is not a worker, among sea public officials, before the Labor Relations Commission's review decision is made, the defendant did not separately examine whether the autonomy of the plaintiff was damaged due to the amendment of Article 7(2) proviso of the Code after the amendment of this case, and thus, the disposition of this case is unlawful. Therefore, the plaintiff's assertion in this part of this case is without merit.

B) Interpretation of the proviso of Article 7(2) of the Code after the amendment of the instant case

(1) Comprehensively taking account of the following circumstances acknowledged by the aforementioned evidence and the purport of the entire argument, the proviso of Article 7(2) of the Regulations after the amendment of the instant case shall be construed as a provision recognizing the authority to grant membership qualification to a public official belonging to the National Labor Relations Commission, who does not fall under the case prior to the review and decision by the National Labor Relations Commission, upon filing an application for remedy for unfair labor practice with the National Labor Relations Commission among the public officials belonging

(A) Considering the respective provisions of the Code after the amendment of this case in a systematic and comprehensive manner as follows, the main text of Article 7(2) of the Code after the amendment of this case provides that the qualification of a member shall be recognized for a public official who maintains the qualification of a member pursuant to the relevant Acts and subordinate statutes among the public officials dismissed, and the proviso of Article 7(2) provides that among the public officials dismissed, a person who does not maintain the qualification of a member pursuant to the relevant Acts and subordinate statutes may be qualified as a member by the plaintiff's central execution committee's decision (the proviso of Article 7(2) of the Code after the amendment of this case referred to as "an interpretation of the qualification of a member" but it appears to be the same as "a decision on the qualification of a member" after the amendment

① After the amendment of this case, the main text of Article 7(2) of the Code provides that "if a member is unfairly dismissed or contested with the validity of dismissal, the member's qualification shall be maintained in accordance with the relevant Acts and subordinate statutes," and the proviso of Article 7(2) of the Code provides that "the interpretation of a member's qualification shall be governed by Article 27(2)7 of the Code," so the main text and proviso of Article 7(2) of the Code after the amendment of this case shall be in a relationship with the principles and exceptions, and it constitutes an exception that "the member's qualification shall be maintained in accordance with the relevant Acts and subordinate statutes," and it constitutes an exception that exceeds or is contrary to such principles. However, even if a public official is dismissed, dismissed, or dismissed, the above principle is limited to cases where the member's qualification is maintained. Therefore, it is reasonable to interpret the proviso of Article 7(2) of the Code after the amendment of this case as an exception to dismissal of a public official dismissed without the maintenance of the member's qualification.

② Article 8(5) of the Regulations after the amendment of the instant case provides that when a person retires, when expelled, or when expelled from a cooperative, the time when the person withdraws from the cooperative is disqualified through the procedures prescribed in D, and does not provide that "when dismissal, removal, or dismissal is made," the grounds for disqualification.

③ Article 27(2)7 of the Regulations after the amendment of the instant case provides that the Central Execution Committee shall have the authority to interpret the Plaintiff’s rules and various regulations. As alleged by the Plaintiff, if the proviso to Article 7(2) of the Regulations after the amendment of the instant case is merely a provision that has the authority to interpret the rules and various regulations of the Central Execution Committee under Article 27(2)7 of the Regulations, the authority of the Central Execution Committee, which applies to the interpretation of all rules and regulations, shall not be separately provided for in the proviso to Article 7(2) of the Regulations.

(B) On May 27, 2013, the Plaintiff submitted a trade union establishment report to the Defendant and had several interviews with the public officials of the Ministry of Employment and Labor to supplement the report. Furthermore, there is no evidence to acknowledge that the Plaintiff agreed to accept the Plaintiff’s trade union establishment report only after the amendment to Article 7(2) of the Rules after the amendment of this case. In addition, Article 8(2) of the Regulations on Administrative Officers’ Union only provides that “where a member is unfairly dismissed and is dissatisfied with the validity of dismissal, he/she shall maintain his/her membership until the National Labor Relations Commission makes a decision on review.” Since no proviso exists, the content and structure of the provision differs from Article 7(2) of the Act after the amendment of this case. Meanwhile, when the Plaintiff first submitted a trade union establishment report to the Defendant on December 1, 2009, the proviso to Article 7(2) of the Regulations, attached to the Plaintiff, was difficult to request the Defendant to interpret the proviso to Article 7(2) of the Regulations within the same scope as the Central Committee’s statutory interpretation and enforcement.

(C) After the amendment of this case, the Plaintiff asserts that the proviso of Article 7(2) of the Code provides for narrow recognition of membership qualifications than the scope provided for in the relevant Acts and subordinate statutes, i.e., a public official belonging to the Labor Relations Commission, who filed an application for remedy for unfair labor practices with the Labor Relations Commission, and is deprived of membership qualifications in certain cases. However, the following circumstances acknowledged by the aforementioned facts and evidence, i.e., the special resolution adopted by the temporary Nation’s Congress on July 20, 2013, stating that “Korea shall make a resolution to ensure the status of all those posts including economic problems even if any pressure exists in the future, and to ensure the status of the public official belonging to the National Labor Relations Commission.” However, it is the premise that the Plaintiff would not be subject to the Central Labor Relations Commission’s request for remedy from dismissal in the process of the amendment of the Code, which means that it will not be subject to any change in the position of the public official belonging to the National Labor Relations Commission.”

The plaintiff's above assertion is without merit.

(2) Ultimately, the proviso to Article 7(2) of the Regulations after the amendment of the instant case is a provision allowing a person who is not an employee to join a trade union pursuant to Article 17(2) of the Public Officials’ Labor Union Act and Article 2 subparag. 4(d) of the Trade Union Act. Accordingly, the instant disposition under Article 12(3) of the Trade Union Act exists. Accordingly, the Plaintiff’s assertion on this part is without merit.

2) Determination on the assertion of violation of Article 12(2) of the Trade Union Act

A) Article 12(2) of the Trade Union Act provides, “Where a report of establishment or an agreement of establishment needs to be supplemented due to an omission, etc. in matters to be entered, the administrative agency shall demand supplementation within a fixed period not exceeding 20 days under the conditions as prescribed by the Presidential Decree. In this case, a certificate of report shall be issued within three days upon receipt of the amended report of establishment or agreement.” Article 12(3) of the Trade Union Act provides, “where a trade union to be established falls under any of the following subparagraphs, the administrative agency shall return the report of establishment:

B) On May 27, 2013, the Plaintiff submitted a trade union establishment report to the Defendant on May 27, 2013, and the Defendant demanded the Plaintiff on May 30, 2013 to supplement Article 7(2) of the Rules recognizing that the Plaintiff is a member of the organization affiliated with the Navy. The Plaintiff on July 22, 2013, and Article 7 of the Rules before the amendment of the instant case, to the Defendant on July 2

The main text of paragraph (2) is to add only the expression "in accordance with the relevant Acts and subordinate statutes", and the proviso provides a notice under Article 7 (2) of the Regulations after the amendment of the instant case that remains intact as it is acknowledged as above. As long as the proviso to Article 7 (2) of the Regulations after the amendment of the instant case is interpreted as a provision allowing a person who is not a public official (public official) to join a trade union, the Plaintiff cannot be deemed to have implemented the Defendant's demand for supplementation on May 30, 2013.

Therefore, this part of the Plaintiff’s assertion is without merit on the premise that the Plaintiff fulfilled all the Defendant’s supplementary demands.

3) Determination as to the non-existence of a substantive examination authority

A) According to Articles 10(1), 12(1), and 12(3)1 of the Trade Union Act, a person who intends to establish a trade union shall submit a report of establishment to an administrative agency along with the bylaws. An administrative agency shall issue a certificate of report within three days from the receipt of the report, except where there is any ground for supplement or rejection. However, if a trade union which reported establishment meets the passive requirements of a trade union under each item of Article 2 subparag. 4 of the same Act, the return of the report must be made. As seen earlier, an administrative agency can examine whether a trade union falls under any of the items of Article 2 subparag. 4 of the Trade Union Act based on the report of establishment submitted and the content of the bylaws (see Supreme Court Decision 2011Du6998, Apr. 10, 2014).

B) On July 22, 2013, the defendant decided that the provision of the proviso of Article 7(2) of the Union Act, based on the content of Article 7(2) of the Union Act, after the amendment of this case, the plaintiff notified the defendant on July 22, 2013, constitutes Article 2 subparag. 4(d) of the Union Act, and thus, the plaintiff rejected the plaintiff's report of establishment of a trade union on May 27, 2013. As above, the defendant issued a disposition of this case on the basis of the contents of Article 7(2) of the Union Act only after the amendment of this case, and did not take any measure of this case after making a substantial examination of the report of establishment and other matters than the contents of the union. In addition, the defendant cannot be deemed to have any limitation on examining the contents of the rules that the plaintiff must submit to

4) The assertion on violation of the principle of trust protection.

A) In general in administrative legal relations, in order to apply the principle of the protection of trust to an act of an administrative agency, first, an administrative agency should name a public opinion that is the subject of trust to an individual, second, there is no reason attributable to the individual with respect to the trust of the individual, third, the individual should have trusted and trusted that the name of the opinion of the administrative agency, third, the administrative agency should have conducted any act corresponding thereto. Fourth, the administrative agency's disposition contrary to the above opinion's name should result in infringing on the individual's interest in trust, and last, when taking an administrative disposition in accordance with the above opinion's name, it should not be likely to seriously undermine the public interest or legitimate interests of a third party (see Supreme Court Decision 2006Du46, Jun. 9, 200).

B) According to the evidence mentioned above and evidence No. 6-1, the plaintiff submitted a trade union establishment report to the defendant on May 27, 2013, and conducted several interviews with the employees of the Ministry of Employment and Labor to supplement the establishment report. The defendant decided on July 25, 2013 whether to issue a certificate of completion of report to the reporters of a press company on July 25, 2013. The defendant sent to the plaintiff a letter stating "the main time for reporting after distributing the report data after distributing the report data." However, the above facts are acknowledged to have not enough evidence to acknowledge that the director of the division of the Ministry of Employment and Labor and the chief of the competent bureau and the director of the competent bureau accepted the establishment report only by amending Article 7 (2) of the plaintiff's rules to "a person has maintained the qualification of union members pursuant to relevant statutes." Therefore, there is no need to determine the remainder of this part of the plaintiff's assertion in this part without any reason.

5) The assertion on deviation and abuse of discretionary power

According to Article 12(1) and (3) of the Trade Union Act, where a trade union falls under any of the subparagraphs of Article 12(3) of the Trade Union Act, the defendant must return the establishment report if the trade union falls under any of the subparagraphs of Article 12(3) of the Trade Union Act, and deliver a certificate of report after accepting the establishment report if it does not fall under any of the above subparagraphs. Thus, the defendant's disposition of rejection of the report of establishment of the trade union is a binding act, and the plaintiff falls under Article 12(3)1

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.