[1] Where a new collective agreement, etc. on the grounds and procedures of dismissal is concluded or prepared or the consent of an individual worker is not obtained despite the invalidation of the collective agreement, the legal relationship between the employer

[2] Whether the defect in the disciplinary procedure is cured if the defect was corrected in the retrial process (affirmative)

[1] Article 32 of the Trade Union and Labor Relations Adjustment Act, Article 94 of the Labor Standards Act / [2] Article 23 of the Labor Standards Act

[1] Supreme Court Decision 98Da13747 delivered on June 9, 200 (Gong2000Ha, 1588) Supreme Court Decision 2007Da51758 Delivered on December 27, 2007 (Gong2008Sang, 137) / [2] Supreme Court Decision 93Da29358 Delivered on October 26, 1993 (Gong193Ha, 3182) Supreme Court Decision 2003Du8210 Delivered on November 25, 2005

Plaintiff 1 and 3 others (Law Firm citizens, Attorneys Kim Dong-soo et al., Counsel for the plaintiff-appellant)

Defendant School Foundation (Law Firm Sejong, Attorneys Seo Sung-sung et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2007Na116763 decided August 22, 2008

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The court below held that Article 111 of the collective agreement in 2004 (hereinafter “former collective agreement”) signed between the defendant and the ○○ University branch of the Korean Union (hereinafter “○○○ University branch”) provides that “no member shall take any and all personnel measures, such as disciplinary action or transfer of department, against union members during the dispute period, shall be taken to ensure the union’s collective action rights by preventing a trade union from hindering its activities due to personnel measures, such as disciplinary action, etc. against union members participating in the dispute during the dispute period. Thus, if an industrial action is legitimate in its purpose, and procedurally commenced by complying with all the regulations of the Trade Union and Labor Relations Adjustment Act, if the dispute is duly commenced, the dispute may not be held during the dispute period, even if the ground for disciplinary action occurred in the course of the dispute, and therefore, it is the same as holding a resolution of the above disciplinary committee on the grounds that the defendant violated Article 111 of the former collective agreement during the period of full-time or partial dissolution of union members during which the dispute started, and holding a resolution of disciplinary action against the plaintiffs on October 10.

In light of the evidence duly admitted by the court below, the above judgment of the court below is just and acceptable, and there is no violation of the rules of evidence or misapprehension of the legal principles on the interpretation of a collective agreement.

2. Even if a collective agreement is invalidated, the part concerning wages, retirement allowances, hours of work, and other individual labor conditions shall be the content of the worker's labor contract to which the collective agreement was applied, and as long as the new collective agreement or rules of employment to modify the collective agreement or rules of employment are concluded, prepared, or obtained consent from individual workers, it still remains effective and shall regulate the employer and workers. The part concerning the grounds for dismissal and the procedures for dismissal under the collective agreement shall also be applied as it is (see Supreme Court Decisions 98Da13747, Jun. 9, 200; 2007Da51758, Dec. 27, 2007). In light of the above legal principles, even if Article 111 of the former collective agreement is related to individual labor conditions, the former collective agreement still remains effective until the conclusion of the collective agreement in 207 (hereinafter referred to as "new collective agreement"). The judgment of the court below is justified and there is no error in the misapprehension of legal principles as to the validity of the collective agreement between the plaintiffs and the defendant.

3. The court below held that even though ○○ Branch refused to select disciplinary committee members recommended by the head of the branch office at the time of holding the disciplinary committee against the plaintiffs, and the disciplinary committee members on the side of the trade union did not participate in the disciplinary committee, as seen above, it did not constitute a violation of Article 111 of the former collective agreement to hold the disciplinary committee for disciplinary action against the plaintiffs during the dispute period. Thus, the court below held that the circumstance that ○○ Branch did not select disciplinary committee members and did not participate in the disciplinary committee while opposing the disciplinary committee at the time of the resolution, it is difficult for the defendant to consider that ○○ Branch has abused or renounced the disciplinary committee's authority even though the defendant did not faithfully and faithfully endeavor to act, the above decision of the court below is just, and it did not err by misapprehending the legal principles on the composition of the disciplinary committee or the abuse or renunciation of the right to consent.

4. The court below held on February 28, 2007, which was held at the request of the plaintiffs, that the disciplinary review committee established the disciplinary action against the plaintiffs, but the initial disciplinary committee against the plaintiffs was a serious defect in violation of Article 111 of the former collective agreement and falling short of the quorum due to the non-compliance of disciplinary committee members of the trade union, and that the disciplinary review committee also decided that the disciplinary review committee's resolution of the above disciplinary review committee cannot be deemed to have cured the initial defect.

However, the procedure of a disciplinary action is a kind of disciplinary procedure with the original disciplinary procedure, and its legitimacy should be determined in whole. Thus, even if there is a defect in the original procedure of a disciplinary action, the defect in the procedure is cured if it is supplemented during the retrial procedure (see Supreme Court Decisions 93Da29358, Oct. 26, 1993; 2003Du8210, Nov. 25, 2005, etc.). Further, even according to the reasoning of the judgment of the court below, it cannot be deemed that the industrial action was actually terminated at the time of the commencement of the Disciplinary Review Committee at the request of the plaintiffs, so it cannot be deemed that there is such a defect as to the violation of Article 111 of the former collective agreement in holding the Disciplinary Review Committee. Meanwhile, the above disciplinary action committee cannot be deemed to have been corrected by the misapprehension of the legal principles as to the disciplinary action, which is a majority of the members present at the Council and the Review Committee, which is a new collective agreement.

However, the court below acknowledged the fact that the collective agreement between the defendant and ○○ Branch entered into on January 22, 2007 includes an agreement on exemption from liability to the effect that a school does not additionally punish an incident in connection with a strike, and held that even if a disciplinary dismissal and determination at the Disciplinary Review Committee are deemed a new disciplinary action against the plaintiffs, it is invalid as it goes against the agreement on exemption from liability under the new collective agreement. The purport of the agreement is to say, although there is no little degree of deficiency in expressions, the decision of the Disciplinary Review Committee on the plaintiffs cannot be imposed any further regarding a strike situation after the above exemption agreement, and this is the same even if it was made in the form of a resolution at the Disciplinary Review Committee, it is obvious that the resolution of the Disciplinary Review Committee on the plaintiffs, which was made against this, is null and void. In light of the reasoning of the judgment below and the evidence duly adopted by the court below, the above decision of the court below is justified, and there is no error in the misapprehension of the legal principles as to the validity of the agreement, as a result of the judgment.

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

Justices Park Ill-sook (Presiding Justice)