(영문) 서울행정법원 2014.4.24. 선고 2013구합25931 판결

A. The Plaintiff was a trade union organized by the former National Public Officials’ Union, the National Democratic Public Officials’ Union, and the Court Public Officials’ Union through a merger resolution, and submitted a trade union establishment report to the Defendant on May 27, 2013.

B. On August 2, 2013, the Defendant rendered a disposition to return the establishment report of the said trade union to the Plaintiff for the following reasons (hereinafter “instant disposition”).

As a result of the review of Article 7(2) of the amended Rules submitted by the Plaintiff, the main text provides that “if a partner is unfairly dismissed or is dissatisfied with the validity of dismissal, the member's qualification shall be maintained in accordance with the relevant Acts and subordinate statutes,” but the proviso states that "Provided, That the interpretation of specific eligibility as a member shall be governed by Article 27(2)7 of the Code, so that it can be a ground for recognizing a person who is not allowed by the Central Execution Commission to join the union (in accordance with Article 27(2)7 of the Code) as a member. Therefore, Article 7(2) of the Code can be deemed to allow a person who is not allowed to join the union, and therefore, Article 6(3) and Article 17(2) of the Act on the Establishment and Operation of Public Officials' Unions (hereinafter referred to as the "Public Officials' Labor Unions Act") and Article 2(4)4(d) and Article 12(3) of the Trade Union and Labor Relations Adjustment Act (hereinafter referred to as the "Labor Union Act").

[Ground of recognition] without any dispute, Gap evidence 1, Gap evidence 2-1, and Gap evidence 8, the purport of the whole pleadings and arguments

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

1) Non-existence of grounds for disposition

A) Even if a central enforcement commission is granted the authority to interpret the rules, it can only interpret it as a partner pursuant to the relevant laws and regulations, and if it grants it as a member beyond the relevant laws and regulations, it is in itself a violation of the rules. Therefore, it cannot be deemed that the proviso of Article 7(2) of the Plaintiff’s amended rules recognizes the authority to grant a member qualification to a person who is not recognized by relevant laws and regulations.

B) Even if there is no proviso to Article 7(2) of the amended Rules, the right to interpret the main sentence of Article 7(2) of the same Act exists in the Central Executive Committee pursuant to Article 27(2)7 of the same Rules. Thus, although there is no proviso to Article 7(2) of the same Act, the Plaintiff’s report of establishment of a trade union cannot be a ground for rejecting the Plaintiff’

2) A deviation from or abuse of discretionary power

The plaintiff's central executive committee did not make any decision on the scope of the dismissed's membership, but the defendant's rejection of the report on the establishment of a trade union by stating "the committee of the plaintiff's central executive committee will include the dismissed's membership in the scope of the dismissed's membership" constitutes a deviation and abuse

3) Violation of the principle of trust protection.

In the process of working-level consultation and opinion formation with the Plaintiff and the Ministry of Employment and Labor, the director in charge and the director in charge of the Ministry of Employment and Labor expressed the public opinion that the applicant will accept the establishment report upon amending the main sentence of Article 7(2) of the Plaintiff’s bylaws to “a person in charge of dismissal shall maintain his/her membership in accordance with the relevant Acts and subordinate statutes.” Since the Plaintiff, reliance on this, convened a conference at the risk of internal objection, and revised the bylaws in accordance with the terms and conditions agreed with the Defendant, the Defendant’s rejection of the establishment report of the labor union in question is contrary to the principle

B. Relevant provisions

It is as shown in the attached Form.

1) On May 27, 2013, the Plaintiff submitted a trade union establishment report to the Defendant on May 27, 2013 and the main contents of the attached rules are as stated in the “former Regulations before the amendment of the Plaintiff.”

2) On May 30, 2013, the Defendant demanded the Plaintiff to supplement the matters indicated in the following table by the deadline of June 24, 2013.

A person shall be appointed.

3) On June 2013, the Plaintiff requested the Defendant to extend the time limit for supplementation on July 22, 2013, and the Defendant notified the Plaintiff of the approval of the request for extension of the said time limit on June 25, 2013. (4) On July 20, 2013, the Plaintiff held a temporary national assembly on July 20, 2013 and made a resolution on each of the following special agenda items: (a) the amendment of Articles 7(2) and 11 of the Plaintiff’s Covenant was made on the first agenda; and (b) the amendment was made on each of the following special agenda items: (c) the amendment was made on the second agenda; and (d) the amendment was referred to as the “Rules of the Plaintiff’s Rules”).

Article 7 (Additional Part) and Article 7 (Qualification of Union Members) and (2) of the Code on Terms and Conditions shall maintain the qualification of union members in accordance with the relevant Acts and subordinate statutes if a union member is unfairly dismissed, or is dissatisfied with the validity of dismissal: Provided, That the interpretation of specific eligibility of union members shall be in accordance with Article 27(2)7 of the Code.Article 11 (Guarantee of Status and Property of Union Members, etc.) shall relieve the parties and their families about property damage and guarantee the status of union members pursuant to Article 7(2) of the Code, if a union member suffers property damage on the ground that he/she acts in the union or complies with the matters resolved by the decision-making body of the union. However, the object, procedure and method shall be determined by the Regulation.However, the special resolution on terms and conditions shall be adopted in the front place of the de facto de facto de facto de facto de facto de facto depression. However, even if any carbon pressure exists, it shall be resolved to guarantee and end the status of the de facto de facto de facto de facto de facto.

5) The Plaintiff distributed meeting data to the representatives in the above temporary conference, and the main contents of Q&A related to the establishment report and amendment of the rules among the meeting data are as follows.

3. Whether Q3. Amendment of the Code is a waiver of the principle and not a dismissed person? It starts on the premise that the argument of the same person opposing the report of establishment through the amendment of the present Code is "not to exclude the dismissed person." However, this is not true. The core of the working-level consultation proposal relating to Article 7(2) of the Code is to determine within the organization the problem of the dismissal person's qualification. We have maintained the basis to ensure the dismissal person's membership qualification through the interpretation of the house in which the dismissal person's membership can be guaranteed through the retention of the proviso clause in the negotiation process. However, we would deny the basic trust of the organization and the members. Despite this fact, we can not change the model of the dismissal person and to assume the guarantee of the status of the members and the responsibility for economic issues. Even if the report of establishment is made, it is not necessary to obtain opinions with sufficient time? There has been some concerns about the change in the process of the plenary session's establishment report, but it has not been discussed in the past.

6) With respect to the amendment of the above Code, the Plaintiff’s interview with the media “The Government prevented the Government from making an unfair demand through the strike and negotiation with the labor union. There are divisions that deem the amendment of the Code to be effective, and the executive body determined that it is not so.”

7) On July 20, 2013, the Plaintiff issued a personnel order to dismiss a member from the Plaintiff’s position indicated as the Plaintiff’s 10 public official dismissed or dismissed as indicated in the following table:

A person shall be appointed.

8) On July 22, 2013, the Plaintiff notified the Defendant of the amendment under Articles 7(2) and 11 of the Plaintiff’s Rules.

[Ground of recognition] without any dispute, Gap evidence 2-2, Gap evidence 3-1 through 3, Gap evidence 4-1, 2, Gap evidence 5-1, 2, 4, Eul evidence 5-1 through 3, Eul evidence 5-1 through 10, and the purport of whole pleadings and arguments

D. Determination

(i) the existence of the reasons for the measure

A) Reasons for rejecting the Defendant’s report of establishment of trade union

(1) According to Articles 10(1), 12(1), and 12(3)1 of the Trade Union and Labor Relations Adjustment 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 from the 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 subparag. 4 of the same Act, the report of establishment must

The purpose of the Trade Union and Labor Relations Adjustment Act is to protect and foster trade unions so that trade unions can continue to exist as autonomous and democratic organizations through the efficient maintenance and management of administrative agencies regarding the organization system of a trade union.

As above, considering the purport that the Trade Union and Labor Relations Adjustment Act requires an administrative agency to examine whether an establishment report falls under any item of Article 2 subparag. 4 of the same Act with respect to an organization which reported the establishment, an administrative agency may actually examine whether the pertinent organization falls under any item of Article 2 subparag. 4 of the Trade Union and Labor Relations Adjustment Act, by preventing any unestablishment of a trade union that fails to meet the actual requirements as a trade union, and thereby guaranteeing the workers’ autonomous and democratic right to organize: Provided, That if an administrative agency recognizes a broad authority to examine, the administrative agency may examine whether the establishment report falls under any item of Article 2 subparag. 4 of the Trade Union and Labor Relations Adjustment Act; however, the Trade Union and Labor Relations Adjustment Act provides only a report and bylaws with documents to be submitted at the time of the report (Article 10(1)); and the administrative agency provides that an administrative agency shall issue a certificate of report within three days from the time of receipt of the report (Article 12(1)) except for cases where there are grounds for supplement or rejection.

Meanwhile, the main sentence of Article 2 subparagraph 4 (d) of the Trade Union and Labor Relations Adjustment Act provides that the membership of a person who is not a worker shall not be deemed a trade union. In such cases, "worker" is applied to a public official's trade union pursuant to Article 17 (2) of the Public Officials' Trade Union and Labor Relations Adjustment Act, and Article 6 (3) of the Public Officials' Labor Union and Labor Relations Adjustment Act provides that the public official is dismissed, dismissed, or dismissed, and makes an application for remedy for unfair labor practices to the Labor Relations Commission, the status of the union member

Comprehensively taking account of the above provisions, “worker” under Article 2 subparag. 4 (d) of the Trade Union and Labor Relations Adjustment Act is, in principle, limited to “a person who maintains his/her qualification as a public official,” and a public official dismissed, removed, or removed from office (hereinafter referred to as “dissolved public official”) shall be deemed to fall under “a person who is not a worker” except where the Labor Relations Commission makes an application for remedy against unfair labor practices to the Labor Relations Commission and made a decision on review by the National Labor Relations Commission (see Supreme Court Decision 2011Du6998, Apr. 10, 201

(2) Therefore, if the proviso of Article 7(2) of the amended Rules, which the Defendant’s examination, is interpreted as a provision recognizing the right to grant membership to the Plaintiff’s central executive commission (a) “a person who is not a worker” as stipulated in the main sentence of Article 2 subparag. 4(d) of the Trade Union and Labor Relations Adjustment Act, or to a person who does not fall under the case before the Labor Relations Commission rendered a review and decision by the National Labor Relations Commission upon receiving an application for remedy for unfair labor practices among the dismissed public officials, the Plaintiff constitutes the main sentence of Article 2 subparag. 4(d) of the Trade Union and Labor Relations Adjustment Act, and thus, the instant disposition falls under the main sentence of Article 2 subparag. 4(d) of the Trade Union and Labor Relations Adjustment Act and Article 17(2) of the Trade Union and Labor

B) Interpretation of the proviso of Article 7(2) of the amended Code

In full view of the following facts, the proviso of Article 7(2) of the Revised Code is interpreted as a provision that acknowledges the authority to grant membership qualification to a person who does not fall under the case prior to a decision made by the Central Eastern Committee by applying an application for remedy against unfair labor practices from among public officials belonging to the Board of Execution to the Labor Relations Commission among public officials belonging to the Plaintiff.

(1) The literary, systematic, and comprehensive interpretation of the amended rules

(A) The main text of Article 7(2) of the Revised Code provides that "where a member is unfairly dismissed or contested with the validity of dismissal, the member's qualification shall be maintained in accordance with the relevant laws and regulations, the member's qualification shall be maintained in accordance with the relevant laws and regulations, that is, where a member's qualification is maintained before the Labor Relations Commission makes a decision on review by applying for remedy for unfair labor practices to the Labor Relations Commission, that is, where the member's qualification shall be maintained in the case of dismissal before the dismissal by the National Labor Relations Commission. In addition, Article 8(5) of the Revised Code does not provide that "where a member is disqualified, the member's qualification shall be maintained in the case of dismissal by the dismissed public official."

(B) If the proviso of Article 7(2) of the Revised Code, contrary to the Plaintiff’s assertion, is merely a half of the authority to interpret the rules and various regulations of the Central Execution Commission as stipulated in Article 27(2)7 of the Revised Code, the authority of the Central Execution Commission, which applies to the interpretation of all the rules and regulations, does not have any reason to separately provide for the proviso of Article 7(2) of

(C) Comprehensively taking account of such provisions, the main text of Article 7(2) of the Revised Code provides that among discharged public officials, a person who maintains his/her membership pursuant to the relevant laws and regulations shall be recognized as a member's qualification, and the proviso of the Revised Code provides that a discharged public official shall be subject to the relevant laws and regulations.

It is interpreted that there is room to grant membership qualification to a person who does not maintain the membership qualification by the plaintiff's central enforcement committee's interpretation (the expression is referred to as "construction", but its substance seems to be "decision").

(2) The intent to amend the rules expressed in the Plaintiff’s behavior

① On July 20, 2013, the part of the special resolution adopted by the temporary National Assembly on July 20, 2013, stating that “The Plaintiff shall guarantee the status of the dismissed party even if there is any carbon pressure, and be responsible for the end of the resolution” shall start with the premise that “The argument of the Dong branch opposing the report on establishment through the amendment of the present regulations shall not exclude the dismissed party” among the conference materials distributed by the Plaintiff to representatives at the above temporary National Assembly. However, this is not true. The core of the working-level consultation in relation to Article 7(2) of the Regulations is within the organization of the dismissed party’s qualification problem.

We have the honor that we will maintain the basis to guarantee the dismissal's membership through the authoritative interpretation of the House of Representatives through the retention of the proviso clause in the negotiation process. We will also maintain the proviso to Article 7 (2) of the Plaintiff's Regulations in the process of amending the rules in order to consider the following as the basis for allowing the dismissal's membership to be granted by the interpretation of the Central Execution Committee of the Plaintiff's Central Executive Committee: "The core of the discussions is the dismissal's membership and it is not different from all other times. The association has consistently revealed that the dismissal's membership status does not change."

C) Sub-determination

Due to the proviso to Article 7(2) of the amended Code, the Plaintiff falls under the main sentence of Article 2 subparag. 4 (d) of the Trade Union and Labor Relations Adjustment Act, and there are grounds for disposition

2) Whether the discretion is deviates or abused

According to Article 12 (1) and (3) of the Trade Union and Labor Relations Adjustment Act, where a public official trade union falls under any of the subparagraphs of Article 12 (3) of the Trade Union and Labor Relations Adjustment Act, the defendant shall return the establishment report, and where it does not fall under any of the above subparagraphs, the defendant shall accept the establishment report and deliver the certificate of report. Thus, the defendant's disposition of rejection of the establishment report of the trade union is a binding act, and the plaintiff falls under Article 12 (3) 1 of the Trade Union and Labor Relations Adjustment Act as seen earlier.

3) Whether the principles of trust protection are violated

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, the administrative agency should name the public opinion that is the object of trust to an individual, second, the administrative agency should have no reason attributable to the individual when the statement of opinion is justifiable and trusted. Third, the administrative agency should have conducted any act corresponding thereto. Fourth, the administrative agency should make a disposition contrary to the above statement of opinion against the above statement of opinion, thereby infringing on the interests of the individual who trusted the above statement of opinion. Lastly, when taking an administrative disposition in accordance with the above statement of opinion, it should not be likely to seriously undermine the public interest or legitimate interests of a third party (see Supreme Court Decision 2004Du46, Jun. 9, 2006).

B) There is no evidence to acknowledge the fact that the director in charge and the director in charge of the Ministry of Employment and Labor ordered the Plaintiff to accept the establishment report only when the Plaintiff amends the main text of Article 7(2) of the Plaintiff’s rules to “a person in charge of dismissal shall maintain the qualification of the association members in accordance with the relevant laws and regulations.” Thus, the Plaintiff’s allegation in this part is without merit, without

4) Sub-committee

The plaintiff's assertion is without merit, and the disposition of this case is legitimate.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.