(영문) 서울행정법원 2014.3.27. 선고 2013구합611 판결

A. The Plaintiff passed the Certified Public Labor Attorney Qualification Examination in around 2001, and entered the labor law firm B (hereinafter “B”) on August 10, 2009, and completed the registration of the labor affairs consultant to the Defendant on August 20, 2009.

B. On September 24, 2012, Han Han-gu reported that “In examining the internal documents from the members of the National Assembly Environment Labor Relations Commission and the members of the Han Han-gu Labor Relations Commission, B, who obtained Han-gu newspapers, provided consultation to distort 14 trade unions for seven years by means of the violation of the Trade Union Act (in the labor union activity intervention) in order to stabilize labor-management relations.”

C. On October 16, 2012, the Defendant held the Certified Public Labor Attorney Disciplinary Committee against the Plaintiff (hereinafter “the instant disciplinary action committee”), and the head of the Ministry of Employment and Labor’s labor policy office D, the head of the Ministry of Government Legislation, Social and Cultural Legislation, E, the Ministry of Employment and Labor’s labor improvement policy officer F, the Ministry of Employment and Labor’s labor cooperation policy officer G, attorneys-at-law, and the vice-chairperson of the Korea Certified Public Labor Attorney Association.

D. The instant disciplinary committee decided to revoke the registration of the Plaintiff due to the grounds for disciplinary action as follows, and the Defendant notified the Plaintiff on October 17, 2012 (hereinafter “instant disposition”).

The plaintiff is a certified public labor attorney who has worked in the position of former affairs in B and who provides consulting (six times from April 28, 201 to January 13, 2012) to support the establishment of a friendly secondary trade union with a view to supporting the establishment of the two trade unions (hereinafter referred to as "recognity"), and (2) Eths Korea Co., Ltd. (hereinafter referred to as "Eths") to support the conversion into a company-level trade union through a structural change in the metal trade union conference (two times from April 20, 2010 to May 4, 2010), and (3) to provide consulting for the conversion into a company-level trade union in violation of Article 28 of the Act on Labor Relations Adjustment and Labor Relations Adjustment and Labor Relations Adjustment and Labor Relations Adjustment and Labor Relations Adjustment and Labor Relations Adjustment and Labor Relations Adjustment and Labor Relations Adjustment and Labor Relations Adjustment and Labor Relations Adjustment Act (hereinafter referred to as "Co. 4, 2010).

In order to submit related contracts and meeting materials, this is a violation of prohibited acts under Article 13 of the Certified Public Labor Attorney Act and orders to submit data under Article 18 (1) of the Certified Public Labor Attorney Act.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 2-1, Eul evidence 33, the purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

(1) procedural defect

(A) According to Article 20-5(1) of the Enforcement Decree of the Certified Public Labor Attorney Disciplinary Committee Act, the Certified Public Labor Attorney Disciplinary Committee shall be composed of seven members, including one president. However, the Disciplinary Committee of this case was composed of six members, excluding "one person designated by the chairperson of the National Labor Relations Commission from among Grade 3 public officials of the National Labor Relations Commission or public officials belonging to the Senior Civil Service Corps who belong to the Senior Civil Service Corps."

(B) According to Article 21(1)3 of the Administrative Procedures Act with respect to the prior notice of the disposition, where an administrative agency imposes a duty on the party or imposes a disposition that restricts his rights and interests, it shall notify the Plaintiff of the details of the disposition in advance. However, the Defendant did not notify the Plaintiff of the fact that it is a disciplinary action under Article 20 of the Certified Public Labor Attorney Act with the notice

The Defendant violated the duty to present the reason for the disposition stipulated in Article 23(1) of the Administrative Procedures Act, since the Defendant did not present the reason for recognition and determination of the disciplinary charge while rendering the instant disposition to the Plaintiff.

(D) The instant disciplinary committee did not examine the Plaintiff as to the facts charged with the core disciplinary action, and did not give the Plaintiff the opportunity to make a substantial explanation due to the failure of the Plaintiff’s explanation and explanation.

(E) According to Article 20(1) of the Administrative Procedures Act in violation of the duty to establish and publicly announce the disposition standards, administrative agencies shall determine and publicly announce the necessary disposition standards to the extent possible in light of the nature of the dispositions concerned. The defendant has publicly announced the disposition standards for the disciplinary action of certified public labor attorneys in advance and accordingly did not determine the type of disciplinary action against the plaintiff.

(2) substantial defect

(A) Absence of grounds for disciplinary action

1) The conference data created in B on the implementation of advice in violation of Article 81 subparagraph 4 of the Trade Union and Labor Relations Adjustment Act is an internal reference material, not an internal reference material for the company subject to advice, and the plaintiff has given advice to him/her by referring to the above conference data, but the above conference data is inappropriate or inappropriate and does not utilize the above conference data and provided advice, counseling, and explanation only with legitimate contents. Thus, there was no fact that the plaintiff has provided advice in violation of Article 81 subparagraph 4 of the Trade Union and Labor Relations Adjustment Act

2) As to the violation of supervisory orders such as submission of materials under Article 18(1) of the Certified Public Labor Attorney Act

Since the plaintiff faithfully complied with the defendant's request for submitting materials, there was no violation of supervisory orders, such as submitting materials under Article 18 (1) of the Certified Public Labor Attorney Act.

(B) A deviation from or abuse of discretion in a disciplinary action

① Unlike the representative J, the Plaintiff did not have participated in the consultation on K Hospital and AB-affiliated investment securities, and performed advisory duties as an assistant to J even in providing advice on flexibility. ② On September 24, 2012, the Plaintiff did not have the right to instruct the Defendant’s audit site and not to submit materials to B, or not to instruct his/her employees. ③ A person whose registration was revoked due to a disciplinary action against a certified public labor attorney for 14 years from 200 to 2013 was the only one of the Plaintiff and the J. In full view of the following, the instant disposition was an abuse of discretionary power.

B. Determination

We examine the legitimacy of the formation of the disciplinary committee of this case.

(1) According to Article 20-2(1) and (2) of the Certified Public Labor Attorney Act, the Certified Public Labor Attorney Disciplinary Committee shall be established in the Ministry of Employment and Labor in order to deliberate and resolve on disciplinary action against certified public labor attorneys. The organization and operation of the Certified Public Labor Attorney Disciplinary Committee and other necessary matters shall be prescribed

According to Article 20-5 (1) and (2) of the Enforcement Decree of the Certified Public Labor Attorney Act (hereinafter referred to as the "Disciplinary Committee") enacted upon the above delegation, the Committee shall be comprised of seven members, including a chairperson. The chairperson of the Disciplinary Committee shall be appointed by the Minister of Employment and Labor from among public officials in general service belonging to the Senior Civil Service in the Ministry of Government Legislation, and the committee members shall be comprised of ① one person designated by the Minister of Government Legislation from among public officials of Grade III in general service belonging to the Senior Civil Service in the Ministry of Government Legislation or public officials in general service belonging to the Senior Civil Service; ② one person designated by the chairperson of the National Labor Relations Commission from among public officials of Grade III in the Ministry of Government Legislation or public officials in general service belonging to the Senior Civil Service; ③ two persons designated by the Minister of Employment and Labor from among public officials of

However, according to the above facts, six members of the disciplinary committee of this case including the chairperson, and one person appointed by the chairperson of the National Labor Relations Commission from among Grade III public officials of the National Labor Relations Commission or public officials in general service belonging to the Senior Civil Service.

Therefore, there is a defect in the composition of the disciplinary committee of this case.

(2) Judgment on the defendant's assertion

(A) At that time, the defendant asserts that the National Labor Relations Commission did not have "class 3 public officials or public officials in general service belonging to the Senior Civil Service," and that there was no person who can be designated as members of the Disciplinary Committee, so this case's disposition cannot be deemed unlawful due to such defects

According to Article 27 (1) and (2) of the former Ordinance of the Ministry of Employment and Labor and its affiliated agencies (amended by Presidential Decree No. 24959, Dec. 11, 2013; hereinafter referred to as the "former Enforcement Decree of the Organization"), one secretary general shall be assigned to the secretariat of the National Labor Relations Commission, one secretary general and one director general in charge of planning, and one director general in charge of conciliation, and the director general in charge of conciliation and adjudication shall be appointed from among public officials of Grade III or IV, and the director general in charge of conciliation and adjudication shall be appointed from among public officials in general service belonging to the Senior Civil Service. According to Article 40 of the former Enforcement Decree of the Organization of the Organization, four positions of director general shall

According to Article 18(1) through (3) of the former Enforcement Rule of the Organization of the Ministry of Employment and Labor and its affiliated agencies (amended by Ordinance of the Ministry of Employment and Labor No. 75, Jan. 25, 2013; hereinafter referred to as the "former Enforcement Rule of the Organization"), the Director General of the National Labor Relations Commission shall be appointed from among Grade-II, Grade-II, Grade-II, Grade-II, Grade-II, and Grade-II, and legal support to the National Labor Relations Commission, and each division shall be appointed from among Grade-II, Grade-II, Grade-II, or technical officials, and the Director General of the Legal Support Division from among Grade-V, Grade-V, Grade-V, or administrative officials. According to Article 25(1) of the former Enforcement Rule of the Organization of the Ministry of Employment and Labor, Article 40 of the former Enforcement Decree of the Organization means an auditor, international cooperation officer, Grade-V, and the Director General of

Therefore, among public officials belonging to the National Labor Relations Commission, those belonging to Grade III public officials or public officials belonging to the Senior Civil Service who can fall under the category of "public officials of Grade III or public officials belonging to the Senior Civil Service" are the head of planning and general affairs division, the chief of the conciliation inquiry division,

However, according to the purport of the whole pleadings, the general secretary of the National Labor Relations Commission, the chief of the conciliation division, the representative decision-making division, the chief of the bargaining decision-making division, the chief of the adjudication division, and the chief of the adjudication division, all of which were public officials of Grade IV in general service, and the chief of the conciliation

Therefore, at the time of the formation of the disciplinary committee of this case, there is no public official of Grade III or public official in general service belonging to the Senior Civil Service.

However, such circumstance is merely an internal circumstance of the National Labor Relations Commission or the Ministry of Employment and Labor, and therefore, it cannot be deemed legitimate to form a disciplinary committee of not more than seven members in violation of Article 20-5(1) of the Enforcement Decree of the Certified Labor Affairs Consultant Act. In this case, even if the defendant does not fall under ① a new appointment or internal promotion of the National Labor Relations Commission, until a public official of Grade III or a public official in general service belonging to the Senior Civil Service is in existence, or ② a public official of Grade III or a public official in general service belonging to the Senior Civil Service, who is appointed by the chairperson of the National Labor Relations Commission, is not a public official of Grade III or a public official in general service belonging to the Senior Civil Service, the defendant should have constituted the disciplinary committee of the plaintiff as a member (see Supreme Court Decision 94Da1928, Feb. 10, 195).

Therefore, the disciplinary committee of this case is unlawful. ① One person nominated by the Minister of Employment and Labor (a) from among the public officials in general service belonging to the Senior Civil Service Corps in the Ministry of Employment and Labor; (b) one person nominated by the Minister of Government Legislation from among the public officials in Grade III of the Ministry of Government Legislation or public officials in general service belonging to the Senior Civil Service; (c) one person nominated by the chairperson of the National Labor Relations Commission from among the public officials in Grade III of the Ministry of Employment and Labor or public officials in general service belonging to the Senior Civil Service; (d) two persons nominated by the Minister of Employment and Labor from among the public officials in Grade III of the Ministry of Employment and Labor or public officials in general service belonging to the Senior Civil Service; (e) one person nominated by the Minister of Employment and Labor from among the public officials in Grade III of the Ministry of Employment and Labor or public officials in general service belonging to the Senior Civil Service; and (f) seven persons nominated by the head of the Ministry of Employment and Labor from among the public officials in general service who are appointed by the head of the Council of Certified Public Labor and Labor Relations Commission.

Therefore, this part of the defendant's argument is without merit.

(B) According to Article 20-9 of the Enforcement Decree of the Certified Labor Affairs Consultant Act, the defendant asserts that the disciplinary committee's meetings are resolved with the attendance of a majority of the incumbent members and with the consent of a majority of the members present. The disciplinary committee of this case decided to revoke the registration of the plaintiff due to the full attendance of six members. Thus, even if a public official belonging to the National Labor Relations Commission was present

However, as in the instant case, if a disciplinary committee was constituted with one of the members excluded, and the disciplinary committee was held without the attendance of the member, the resolution of the disciplinary committee shall be deemed unlawful, even if there was no influence on the result of the disciplinary resolution, such as the attendance of the member and the dissenting vote (see Supreme Court Decision 2008Da3534, May 15, 2008).

Therefore, the defendant's above assertion is without merit.

(C) The defendant asserts that since the plaintiff did not raise any objection until the disposition of this case was made after deliberation by the disciplinary committee of this case, the defect in the composition of the disciplinary committee was cured.

However, insofar as it is not deemed that the Plaintiff would not raise any objection despite being aware of the defect in the procedure, the Plaintiff may assert the defect in the procedure in a lawsuit disputing the validity of disciplinary action (see Supreme Court Decision 2007Du5059, Nov. 13, 2008). Therefore, the Defendant’s assertion is without merit.

(3) Sub-decisions

Since the disciplinary committee of this case is unlawful in its composition, the disposition of this case conducted according to the resolution of the disciplinary committee of this case is also unlawful. Accordingly, the disposition of this case must be revoked without further review on the remaining issues.

3. Conclusion

If so, the plaintiff's claim is justified and accepted.