Whether “worker” as referred to in subparagraphs 1 and 4(d) of Article 2 of the Trade Union and Labor Relations Adjustment Act includes a temporary unemployment or a person seeking to find a job (affirmative with qualification), and whether the proviso of Article 2 subparag. 4(d) of the same Act applies exclusively to cases where the dismissal of a member of a trade union by a company is denied (affirmative)

Subparagraph 1 and 4 (d) of Article 2 of the Trade Union and Labor Relations Adjustment Act

[Plaintiff-Appellant] Plaintiff 2001Du8568 delivered on February 27, 2004 (Gong2004Sang, 557)

Youth Oil14 (Law Firm Self-Training, Attorneys Jeong Byung-chul et al., Counsel for the defendant-appellant)

Seoul Special Metropolitan City Mayor (Law Firm Chungcheong, Attorneys Hho-ho et al., Counsel for the plaintiff-appellant)

Minister of Employment and Labor

Seoul High Court Decision 2012Nu8450 decided November 16, 2012

All appeals are dismissed. The costs of appeal are assessed against the Defendant’s Intervenor, and the remainder are assessed against the Defendant.

The grounds of appeal are examined.

1. As to the Defendant’s fourth ground of appeal

Article 26 of the Administrative Litigation Act, which provides for ex officio investigation of evidence and ex officio detection, provides for partial exceptions to the principle of party and the principle of pleading, based on the special nature of the administrative litigation, the court may ex officio examine and determine the “matters recorded on the record” and based on such examination (see, e.g., Supreme Court Decision 2010Du21310, Jan. 13, 201).

The allegation in this part of the grounds of appeal is with the purport that the lower judgment which did not dismiss the lawsuit ex officio, is unlawful, even though there is no legal interest to seek the cancellation of the disposition rejecting the report of this case, as the report on establishment of the Seoul Youth Union, which was substantially the same organization as the Plaintiff, was completed.

However, in light of the above legal principles and the records, in this case where the data that could find that the establishment report was completed as an organization substantially the same as the Plaintiff was not submitted, the court below did not err by omitting judgment as to the interest in the lawsuit even if the court below did not find ex officio the circumstances as alleged by the Defendant.

2. As to the Defendant’s remaining grounds of appeal and the Defendant’s Intervenor’s grounds of appeal

The term “worker” referred to in Article 2 subparag. 1 and subparag. 4(d) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) refers to the scope of “worker” in the main sentence of Article 2 subparag. 1 and Article 2 subparag. 4(d) of the Trade Union and Labor Relations Adjustment Act, as long as there is a need to guarantee the three labor rights even those who are employed by a specific employer and are in a temporary unemployment situation or who are seeking to find jobs, and the proviso of Article 2 subparag. 4(d) of the Trade Union Act shall be limited to the case where a trade union is dismissed by a member of a company-level trade union, not an industrial, occupational, and regional trade union that does not assume a subordinate relationship with a certain employer, but

In the same purport, the court below is just in holding that the defendant's disposition that rejected the plaintiff's report on establishment of a trade union is unlawful on the ground that one of the union members of the plaintiff, a regional trade union, is a job seeker and is not an employee under the Trade Union Act. There is no error of law such as the concept or scope of recognition, misunderstanding of legal principles as to the organization of a trade union, etc. under the Trade Union Act, exercise of right to ask for name, incomplete hearing, omission of judgment, or interpretation of unconstitutional law. The Supreme Court

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the Defendant, and the remainder is assessed against the Defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)