Whether a person who does not make a request for remedy against unfair labor practices is qualified as a party in the proceeding of review or administrative litigation.

In full view of the purport of the provisions of Articles 40(1) and 43(1)(2) of the Trade Union Act, a person whose rights have been infringed due to an employer’s unfair labor practice may file an application for reexamination, or institute an administrative litigation, if the other party has transferred the same procedure even though he did not directly file an application for remedy or review.

Articles 40(1), 43(1), and 43(2) of the Trade Union Act

Plaintiff

The Chairman of the National Labor Relations Commission

Seoul High Court Decision 82Gu558 delivered on July 13, 1983

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

We examine the grounds of appeal.

1. As to ground of appeal No. 1

A request for remedy against unfair labor practices under Article 40(1) of the Trade Union Act may be made independently by workers or trade unions whose rights are infringed by unfair labor practices, and Article 43(1) and (2) of the same Act provides that the parties concerned who are dissatisfied with an order for remedy or dismissal decision by the Regional Labor Relations Commission or by the Special Labor Relations Commission or by the Central Labor Relations Commission may institute a retrial or administrative litigation, respectively. Thus, even though the parties concerned fail to make a request for remedy or review, if the other parties concerned have any objection to such procedure, they may apply for review or institute an administrative litigation. In other words, since a person whose rights are infringed by unfair labor practices is the workers and the trade union concerned, not only the workers and the person entitled to apply for remedy against unfair labor practices under Article 40(1) of the same Act as a trade union, but also the person entitled to apply for remedy against unfair labor practices under Article 43(1) and (2) of the same Act and the person entitled to file a request for review may not have the opportunity to institute an administrative litigation before being subject to the level of administrative litigation.

In light of the above, the plaintiff filed the administrative litigation of this case against the defendant's decision to cancel the above remedy order issued by the Seoul Regional Labor Relations Commission and dismiss the remedy order upon the defendant's request for reexamination against the above remedy order by the representative council of sericultural apartment occupants of the Seoul Regional Labor Relations Commission, which the plaintiff belongs to the Seoul Central Labor Relations Commission, by making the dismissal of the sericultural apartment council council's representative council's dismissal against the plaintiff of the plaintiff of this case as an unfair labor practice. Thus, the plaintiff failed to follow the above procedure as provided by the Trade Union Act, and therefore the plaintiff is not qualified as a party (i.e., the purport that only the above National Union member apartment trade union, which takes the first instance trial procedure, is qualified as the plaintiff) is not an independent opinion, and there is no reason to discuss the appeal.

2. As to the second ground for appeal:

The purpose of the debate is that the determination of unfair labor practices should be based on whether there is the value of remedy by comparing the rights and interests of workers and the labor union with the public interest. In light of the records, the court below's decision that the locked apartment council dismissed the plaintiff as an unfair labor practice is justifiable, and the decision of the court below that the locked apartment council dismissed the plaintiff as an unfair labor practice is not erroneous in the interpretation of Article 39 (1) of the Trade Union Act. Thus, there is no reason for the argument.

3. Therefore, the appeal shall be dismissed, and the costs of the appeal shall be assessed against the losing party and it is so decided as per Disposition by the assent of all participating judges.

Justices Lee Il-young (Presiding Justice)