2015 High Court Decision 1648 Violation of the Labor Union and Labor Relations Adjustment Act

1. A;

Housing Young-nam Cancer Group

Gwangju Nam-gu in its original domicile

2. B trade union;

Seoul Westernmun-gu at its location

Representative

Is-in-crime (prosecutions) and Dong-in (Trial)

Law Firm

August 12, 2016

Defendants shall be punished by fine of KRW 3,00,000.

When Defendant A fails to pay the above fine, the above Defendant shall be confined in a workhouse for a period calculated by converting KRW 100,000 into one day.

To order the Defendants to pay an amount equivalent to the above fines.

Facts of crime

From January 1, 2011 to December 31, 2012, Defendant A, as the chairperson of the B trade union, is the representative responsible for all the administrative affairs of the union. Defendant B trade union is a trade union of the teachers established on July 1, 1999, which completed the registration of incorporation on July 7, 199, based on the Act on the Establishment, Operation, etc. of the Union of Teachers.

1. On September 3, 2012, Defendant A Seoul Regional Labor Relations Commission provides that, notwithstanding the provisions of Article 6(1) of the Regulations, a member who was unfairly dismissed shall be eligible to be a member of the National Labor Relations Commission (including a nationwide kindergarten, elementary, middle, and high school teacher; however, a person who works for an employer shall not be a member of the National Kindergarten; hereinafter the same shall apply), Defendant A Seoul Regional Labor Relations Commission shall maintain the membership of the union. Article 5(2) of the Addenda to the B Trade Union Regulations (wholly amended on June 27, 199, No. 14, No. 199) of the Regulations provides that the member shall not apply for remedy for unfair labor practices, or shall be eligible to be a member of the union including a teacher who contests the illegality of dismissal, which is in violation of Article 82(1) of the Trade Union and Labor Relations Adjustment Act.

Accordingly, the Minister of Employment and Labor, in accordance with the resolution of the said Seoul Regional Labor Relations Commission, ordered the Defendant to correct it until October 18, 2012, because Article 5(2) of the Addenda to the Rules of the B Trade Union (amended by Presidential Decree No. 14, Jun. 27, 1999) violated the Act.

Nevertheless, on October 12, 2012, the Defendant filed an application with the Minister of Employment and Labor for the extension of the period for implementing the corrective order by March 15, 2013. However, in light of the Supreme Court’s final decision on October 18, 2012 on “the Minister of Employment and Labor” ( January 12, 2012), which held a national Congress (hereinafter referred to as the “National Congress”), but did not correct it, the extension of the period for correction is not possible, since it is deemed that there is no justifiable reason for the extension.” Even if the Defendant received a notice, the Defendant did not correct it by October 18, 2012, which is the implementation period.

As a result, the Defendant violated the labor union rules corrective order of administrative agencies.

2. Defendant B trade union;

The defendant A, the representative of the defendant, violated A's order to correct the labor union rules of administrative agencies as stated in the above paragraph (1).

Summary of Evidence

1. Examination protocol of suspect by the special judicial police officer against Defendant A;

1. Order of the union bylaws, request for extension of the period of execution of the union bylaws, notification of absence of extension due to the order of correction of the union regulations, measures following non-compliance with the order of correction of the union regulations, application of the union rules, B

1. Article applicable to criminal facts;

(a) Defendant A: Article 93 Subparag. 2 and Article 21(1) of the Trade Union and Labor Relations Adjustment Act;

(b) Defendant B Trade Union: Articles 94, 93 subparag. 2, and 21(1) of the Trade Union and Labor Relations Adjustment Act;

1. Detention in a workhouse;

Defendant A: Articles 70 and 69(2) of the former Criminal Act (Amended by Act No. 12575, Apr. 14, 2014);

1. Order of provisional payment;

Judgment on the assertion of Defendants and defense counsel under Article 334(1) of the Criminal Procedure Act

1. Article 2 of the Act on the Establishment, Operation, etc. of Teachers' Unions (hereinafter "the Act on the Establishment, Operation, etc. of Teachers' Unions") excludes the application of special rules to teachers. In the case of "workers" under the main sentence of subparagraph 4 (d) of Article 2 of the Act on the Establishment, Operation, etc. of Trade Unions and Labor Relations Adjustment (hereinafter "Labor Relations Adjustment Act") of the Act on the Establishment, Operation, etc. of Teachers' Unions, the issue of whether a "worker" is an employee of a trade union under the main sentence of subparagraph 4 (d) of Article 2 of the Trade Union and Labor Relations Adjustment Act shall be based on whether the worker is employed by the relevant company in the case of a trade union by industry, region, or occupation, which does not require a certain employer's subordinate relationship, it is reasonable to interpret that the first employer is not actually employed in the case of a primary trade union, such as an industrial, regional, and occupational trade union, but it is possible to establish a trade union under the Act on the Establishment, Operation, etc. of Teachers' Unions members of the Labor Relations Commission.

2. As to the assertion that Article 2 of the Teachers' Unions Act does not restrict or prohibit the membership of the teachers' union, Article 5 of the Addenda (Article 5 of the Addenda (Article 5 of the Addenda of June 27, 1999; hereinafter referred to as the "Supplementary Rule 5") of the Rules is not subject to the corrective order of this case, it constitutes "worker" under Article 33 (1) of the Constitution and Article 2 subparagraph 1 of the Trade Union Act.

However, Article 31 of the Constitution provides that "the status of a teacher, which includes remuneration and working conditions of a teacher, shall be determined by the Act in order to guarantee more effectively the basic right to receive education for citizens prescribed in Article 31 (1) of the Constitution." Thus, Article 31 (6) of the Constitution provides that "the person who is related to the status of a teacher may form an association similar to a general trade union with respect to a teacher in preference to Article 33 (1) of the Constitution regarding the basic right to work, and the legislators shall be entitled to organize the association with the same type as the general trade union, but the right to organize a collective action and the right to collective bargaining with the purpose of improving working conditions shall be permitted in a different manner, but the exercise of the right to organize a collective action and the right to collective bargaining shall be prohibited in full or in a metropolitan or non-regional manner, and special regulations shall be permitted in relation to the qualifications of a member of a teacher union, unlike the general rules on the qualifications of a teacher union under Article 31 (1) of the Constitution."

3. As to the assertion that Defendant A is not the subject of the amendment of Article 5 of the Addenda, Article 93 subparag. 2 of the Trade Union and Labor Relations Adjustment Act is punished. According to the evidence duly adopted and examined by this court, Defendant A violated the corrective order of this case. Thus, the argument that the above Defendant A is not the subject of a criminal act is not acceptable, since the above Defendant was not the subject of the amendment of the statute. (In order to amend the Code including Article 5 of the Addenda, Defendant A must go through a resolution of the National Assembly of Representatives, so it is argued to the purport that Defendant A is dismissed from responsibility because there is no possibility of expectation of lawful act, but there is no evidence to acknowledge that Defendant A attempted or endeavored to convene the National Assembly to amend Article 5 of the Addenda in accordance with the corrective order of this case.

4. As to the assertion that Article 93 subparag. 2, Article 21(1), and Article 94 of the Trade Union and Labor Relations Adjustment Act are unconstitutional, this part of the legal provision provides (1) an act of violating a corrective order under the premise that an administrative agency issues a corrective order by specifying the specific part of the rules of a trade union specifically, on the premise that the pertinent administrative agency issues a specific person a corrective order, as an element of a crime, and thus, it cannot be said that the act of violating the corrective order is unclear or punished is too comprehensive and broad. (2) It is recognized that the act of violating the rules of a trade union, which is subject to punishment, is legitimate because it is necessary to remove unlawful contents of the rules of the trade union promptly and clearly, and it cannot be concluded that the means such as an administrative fine or a charge for compelling compliance, etc. alone, are sufficient to achieve the legislative purpose of the above provision, which is prompt and reliable correction of the contents of the rules of the trade union. Moreover, it is difficult to deem that the legislators imposed a fine not exceeding five million won by means of punishment to ensure the effectiveness of the implementation of the corrective order.

In addition, although the above Act does not impose a corrective order or criminal punishment on the company's articles of incorporation, this part of the Act does not violate the essential contents of the three labor rights or violates the principle of equality solely on the ground that the provision of the Act imposes a corrective order or criminal punishment on the non-performance.

Therefore, we cannot accept this part of the Defendants’ assertion that this part of the legal provision violates Article 11(1) of the Constitution (the right to equality), Articles 12 and 13 (the principle of no punishment without the law), Article 33(1) (the right to work 3), and Article 37(2) (the principle of no punishment without the law).

Judges Song Jae-ju