2019Guhap79961 Revocation of a corrective order of trade union resolution

A trade union

Law Firm Han-ro, Counsel for defendant-appellant

[Defendant-Appellee]

The Head of the Seoul Regional Employment and Labor Office Seoul Gangnam District Office

1. B

2. C.

Defendant Intervenor’s Intervenor’s Intervenor Law Firm

Attorney Lee Jong-hoon

May 15, 2020

June 26, 2020

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit are assessed against the Plaintiff, including the part resulting from the supplementary participation.

The Defendant’s corrective order of rules and resolution disposition issued to the Plaintiff on August 26, 2019 shall be revoked.

1. Details of the corrective order;

A. Status of the parties and the Plaintiff’s election result of the 9th chairman

1) The Plaintiff is a national company-level trade union for employees working in D, and the number of members is approximately 2,50, and the number of representatives is approximately 112.

2) On February 11, 2019, the Plaintiff publicly announced the election of the 9th chairperson on February 11, 2019, and conducted the 9th election by online voting method from March 11, 2019 to March 20, 2019. The Plaintiff announced the Intervenor joining the Defendant as the elected person (hereinafter referred to as “participating”) as the elected person, and the Intervenor C as the elected person as the elected person by the secretary general. After conducting the election of executive officers on March 21, 2019, the Plaintiff’s 2019, 3, and 25 at the board of representatives, the 2019, 3, and 3 years from May 1, 2019 to April 30, 202.

(b) Resolution of non-Confidence and non-Confidence voting for the elected persons against the intervenors;

1) On April 15, 2019, on April 15, 2019, prior to the commencement of the terms of office of the intervenors, 40 representatives of the Plaintiff demanded to convene an extraordinary meeting of the board of representatives consisting of non-Confidence agenda items for the intervenors. Accordingly, on April 15, 2019, the Plaintiff announced to hold temporary meetings of the board of representatives on April 22, 2019, with "cases of non-Confidence for the 9th elected (the chairperson and the secretary general)" as an agenda item.

2) On April 22, 2019, the 18-4th interim council of delegates held on April 22, 2019 passed a non-Confidence agenda item for the intervenors (at least 78 persons, 75 persons, hereinafter referred to as “instant non-Confidence resolution”), and decided to proceed with the entire members’ voting on the non-Confidence agenda item.

3) On April 23, 2019, the Plaintiff publicly announced that he/she will proceed with the electronic voting of all union members from April 24, 2019 to April 28, 2019 with respect to the 'non-Confidence agenda for the 'non-Confidence' of the 9th elected (the chairperson, the secretary general). In the electronic voting that is in progress during the voting period, the Plaintiff publicly announced the result of the non-Confidence voting on April 29, 2019. The Plaintiff announced the result of the resolution of the Labor Relations Commission and the Defendant's corrective order.

1) On May 7, 2019, the intervenors asserted that the resolution of non-Confidence in this case is unfair, and filed an application with the Defendant for corrective order of violation of the rules of the trade union. The Defendant requested the Seoul Regional Labor Relations Commission to make a resolution of corrective order on May 23, 2019.

2) On July 22, 2019, the Seoul Regional Labor Relations Commission passed a resolution of non-Confidence on April 22, 2019 with respect to the participants on April 22, 2019, and passed a resolution of non-Confidence on April 24, 2019 to April 29, 2019 and announced the non-Confidence on April 29, 2019 to the effect that the Plaintiff violated Article 17(1)2, 36, and 64 of the Rules of the Plaintiff. The Defendant ordered the Plaintiff on August 26, 2019 to implement the corrective order by September 26, 2019 (hereinafter “instant corrective order”).

D. Progress of dispute concerning the non-Confidence resolution of this case

On May 16, 2019, the Intervenor filed a lawsuit against the Plaintiff seeking the invalidity of the non-Confidence resolution of this case and the confirmation of the status of the chairperson. On January 30, 2020, the court of first instance affirmed that the non-Confidence resolution of this case is null and void, and rendered a judgment to confirm that the Intervenor B is the chairperson of the Plaintiff (Seoul Central District Court 2019Gahap532095). The Plaintiff appealed and continues the appellate trial.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 3, 5 through 14, 16, Eul evidence 1 through 4, and the purport of the whole pleadings

2. The plaintiff's assertion

The instant corrective order should be revoked as it is unlawful on the ground that there are procedural and substantive defects as follows.

(a) the existence of procedural defects

The Defendant issued the instant corrective order to the Plaintiff, and the Seoul Regional Labor Relations Commission passed a resolution. The Defendant did not give prior notice in addition to sending official notices, and did not provide any opportunity to present opinions. Therefore, the instant corrective order is procedural defect in violation of Article 21 of the Administrative Procedures Act.

B. The existence of substantive defects

① Based on the provisions of Article 17(1)2 and 18 and Article 36 of the Code, the Plaintiff passed a resolution of the board of representatives substituted by the general meeting and the non-Confidence resolution for the elected intervenors through the vote of the union members. As such, there exists a provision on the basis of the non-Confidence resolution in this case in the rules of the Plaintiff

② Since the Plaintiff has a board of representatives substituted for a general meeting, the board of representatives held on April 22, 2019 falls under the general meeting. A separate convocation public notice is not required for the voting of union members, which was held on April 15, 2019 and enforced on April 28, 2019, from April 24, 2019 to April 28, 2019. Article 64 of the Plaintiff’s rules provides for the resolution on impeachment for executive officers, and Article 64 does not require the grounds for non-Confidence to violate the rules, unlike impeachment. Thus, the instant non-Confidence resolution did not violate Article 64 of the rules.

3. Determination on the defense prior to the merits

A. The intervenor's assertion

1) Since the resolution of non-Confidence in this case is null and void, the plaintiff's legitimate representative is unlawful, but the lawsuit of this case filed by the chief vice-chairperson E by referring to the representative is unlawful.

2) On April 6, 2020, the Intervenor B is performing the duties of the Chairman after acquiring the authority of the Chief Vice-Chairperson E to perform his duties. As such, the implementation of the instant corrective order has already been completed. The instant lawsuit seeking revocation of the corrective order completed, and is unlawful as there is no legal interest.

B. Relevant provisions

It is as shown in the attached Form.

C. Determination as to the assertion related to the representative authority of E on behalf of the Chairperson

1) The instant lawsuit brought by the agent E on behalf of the Plaintiff is valid with the resolution of non-Confidence on behalf of the Intervenor B, and the agent E is based on the premise that the agent is a legitimate representative of the Plaintiff.

However, if the non-Confidence resolution of this case is not effective and it is not legally authorized to represent the plaintiff to E, the lawsuit of this case filed in the name of E is inappropriate because it does not meet the requirements for the lawsuit.

2) Whether the validity of the non-Confidence resolution of this case is recognized

A) Whether the elected person constitutes a non-Confidence resolution

Article 11 (5) of the Rules of the plaintiff provides that "members shall have the non-Confidence rights for officers directly elected," and Article 17 (1) 2 and 18 provides that "matters concerning the non-Confidence of executives" and "other important matters" as the function of the general meeting (board of Representatives). Article 36 (2) of the Rules of the plaintiff provides that "matters concerning the non-Confidence of executives" shall be prescribed as a special resolution that requires the attendance of a majority of the incumbent members and the consent of two-thirds or more of the members present.

Since the rules of a trade union are independent rules concerning the operation of the trade union, it is desirable to respect the interpretation of the trade union to the maximum extent possible, unless the provisions of related Acts and subordinate statutes or the language and text of the rules clearly deviate from. As above, the plaintiff's rules stipulate the non-Confidence of the officers as the function of the general meeting (board of representatives), and there is no provision that limits the scope of "executive" after the beginning of their terms of office. Rather, Article 11 subparagraph 5 of the rules merely assumes that "the direct election of the union members with respect to the executive" is the premise of "the direct election of the union members" as to the executive officers, and the executive officers before the beginning of their terms of office can be deemed to include the subject of non-Confidence. Even if the scope of the elected officer does not include the scope of the elected officer, the matters concerning the non-Confidence of the elected officer corresponding to non-Confidence of the executive officers can

Therefore, the Intervenor, who is the elected officer, may also be subject to non-Confidence pursuant to Article 17(1)2 or 18 of the Rules of the Plaintiff. Thus, the Plaintiff’s resolution of non-Confidence cannot be deemed to have violated Article 17(1)2 of the Rules of the Plaintiff.

B) Whether it is necessary to publicly announce the convening of the meeting and hold the meeting

(1) Article 17(2) of the Rules of the plaintiff states that "a union may have a board of representatives substituted for a general meeting," but "matters concerning the election of the chairperson" and "other important matters" shall be decided by all the members. Article 22 stipulates that "the board of representatives shall have the same function as the general meeting, except for those matters to be dealt with by the resolution of the general meeting and all the members." In addition, Article 36(2) of the Rules of the plaintiff provides that "matters concerning the non-Confidence of the executives" shall be decided by the special resolution that requires the attendance of the majority of the members and the consent of two-thirds or more of the members present at the general meeting, and Article 39(1) and (3) provides that "the election and dismissal of the officers shall be decided by a direct, secret, and secret vote of the members at the general meeting."

In full view of the above provisions of the plaintiff's rules, the non-Confidence of officers (in particular, the chairperson) constitutes a matter equivalent to the election of the chairperson and other important matters, and provides that the general meeting shall take the vote of members and satisfy the special resolution requirements with respect to the dismissal of officers or non-Confidence. Thus, the non-Confidence of officers in the plaintiff's rules can be deemed to be determined not by the resolution of the board of representatives but by the general meeting and all members.

(2) Article 18 subparag. 1 of the Rules of the Plaintiff provides that “The convening and public notice of a meeting shall be given at least seven days prior to the date of the meeting.” In light of the facts acknowledged earlier, the public notice of convening an extraordinary meeting of the board of representatives on April 15, 2019 shall not be deemed to constitute a public notice of convening a general meeting because it does not include the fact that the voting of non-Confidence was conducted and the date and time thereof was not included. In addition, the public notice of non-Confidence voting on April 23, 2019 does not constitute a public notice of convening a general meeting, and since it was made one day prior to the date of voting, Article 18 subparag. 1 of the Rules of the Plaintiff seriously violates the purport that the public notice of non-Confidence voting should be made seven days prior to the date and time of deliberation on the agenda of the members.

(3) Therefore, the non-Confidence voting made in violation of the resolution of this case, the convocation announcement procedure, and the non-Confidence notice made on April 29, 2019 violates Article 17(2), Article 18 subparag. 1, and Article 36 subparag. 2 of the Rules of the Plaintiff.

C) Whether an impeachment is necessary for a non-Confidence resolution

Article 64 subparagraph 1 of the Rules of the plaintiff provides that "an impeachment may be made at the general meeting if an executive officer violates the rules." However, this is separate from "non-Confidence of an executive officer" as provided by the rules of the plaintiff, and it appears that the procedures for impeachment on the ground of a violation of the rules by an executive officer under Article 11 subparagraph 13 of the Trade Union and Labor Relations Adjustment Act are prescribed. Therefore, regardless of whether or not the participant violates the rules, the plaintiff may proceed to the proceedings for non-Confidence resolution, not impeachment. Therefore, the resolution of non-Confidence, non-Confidence voting and non-Confidence notice in this case cannot be deemed to have violated Article 64 of the Rules of the plaintiff.

D) Sub-determination

Therefore, the Resolution of No-Confidence in this case, the Resolution of No-Confidence in effect from April 24, 2019 to April 28, 2019, and the Notice of No-Confidence in April 29, 2019 are null and void in violation of Article 17(2), Article 18 subparag. 1, and Article 36 subparag. 2 of the Rules of the Plaintiff.

3) Sub-committee

As seen above, this case’s non-Confidence resolution against the intervenor B is null and void, and thus, the chief vice-chairperson E’s vicarious performance of duties is not recognized under the premise of the chairperson’s intention.

The instant lawsuit filed by the Plaintiff’s proxy as the Plaintiff’s representative is unlawful because it was filed by a person without the power of representation. The Intervenor’s defense on the merits is with merit.

4. Conclusion

Since the lawsuit of this case is unlawful, it is decided to dismiss it and it is so decided as per Disposition.

The presiding judge shall make a private exchange

Judges Park Nam-jin

Judges Lee Gyeong-soo

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.