(영문) 서울고등법원 2011.12.7. 선고 2011누12520 판결

A. On June 25, 2010, the corrective order issued by the Defendant on the part of Article 11(3) and Article 60(5) of the attached collective agreement concluded on December 28, 2006 by the Superintendent of the Provincial Office of Education of the Plaintiff, the Korean Teachers’ Union, and the Superintendent of the Provincial Office of Education of Jeollabuk-do regarding “school teachers’ organizations”, “Article 10(1) of the attached collective agreement signed on January 31, 2007,” among the attached collective agreement signed on January 31, 207, is revoked.

B. The remaining claims of the plaintiff are dismissed.

3. Of the total litigation costs, 2/3 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim and appeal

1. Purport of claim

The corrective order issued by the Defendant to the Plaintiff on June 25, 2010 regarding the attached collective agreement shall be revoked.

2. Purport of appeal

The part against the plaintiff among the judgment of the court of first instance is revoked. The defendant's corrective order issued to the plaintiff on June 25, 2010 with regard to Article 11 (3) and the latter part of Article 60 (5) among the collective agreements entered into by the plaintiff, the Korean Teachers' Union, and the Superintendent of the Office of Education of Jeollabuk-do on December 28, 2006 shall be revoked.

Defendant: The part against the Defendant among the judgment of the first instance court is revoked, and the Plaintiff’s claim as to the revocation is dismissed.

Reasons

1. cite the judgment of the first instance;

The reasoning for the use of the instant case is as follows: “1. Disposition process; 2. Determination of the main defense of this case; 3. Whether each of the instant corrective orders is legitimate; (b) Plaintiff’s assertion; (c) purport of Article 81 subparag. 4 of the Trade Union Act (see, e.g., Supreme Court Decision 2.1); and (b) purport of Article 81 subparag. 4 of the Trade Union Act (from the second 6th to the fifth st st st st th th th th th th th th th th th th th th th th th th th th); and

As follows, from the second half to the third second half is as follows. On June 25, 2010, the Defendant issued a corrective order to correct the part related to the results of each collective agreement to the Plaintiff by no later than August 23, 2010 pursuant to Article 14(1) of the Act on the Establishment and Operation of Teachers’ Unions and Article 31(3) of the Trade Union Act on the ground that each collective agreement violates Article 81(4) of the Trade Union Act.

Then, “If the Plaintiff’s representative fails to comply with the corrective order by August 23, 2010 prescribed in the part on the collective agreement of Jeju Branch among the instant corrective order, the Plaintiff’s representative and the Plaintiff still are likely to be subject to criminal punishment even if the collective agreement of Jeju Branch was terminated on December 21, 2010.”

○ The following shall be added to the fifth below the fourth:

The plaintiff asserts that the act of unfair labor under Article 81 Item 4 of the Trade Union Act does not constitute an act of unfair labor since it does not constitute an act of unfair labor since it does not constitute an act of unfair labor, if it is formally supported by an employer, but is caused by a union's active demand or a strike. The collective agreement of this case asserts that the act of unfair labor under Article 81 subparagraph 4 of the

Article 31 of the Trade Union Act provides that an administrative agency may issue a corrective order, and Article 81 subparagraph 4 of the same Act prohibits an employer from subsidizing the operating expenses of a trade union. Thus, if the collective agreement contains any provision that the employer assists the operating expenses of a trade union, the part of the collective agreement shall be subject to a corrective order. The above argument is without merit (Supreme Court Decision 90Nu6392 Decided May 28, 191 cited by the Plaintiff). However, if the payment of wages from the full-time officer or the employee of the trade union formally falls under one of the unfair labor practices, it shall not be deemed that the establishment of the unfair labor practice is not formal, but it does not constitute an unfair labor practice unless the existence of the unfair labor practice is clearly different from that of the union. In particular, if the payment of wages is obtained as a result of the aggressive demand or the strike of the union, it shall not be deemed that there is little risk that the union's independence would be impeded due to the payment of wages, and thus, it does not constitute an unfair labor practice.

2. A new part.

2) The "Special Act for the Promotion of Utilization of Closed School Property" (hereinafter the "Special Act for the Promotion of Utilization of Closed School Property"), which provides for the utilization of closed school property which has been repealed by Article 11(3) of the collective agreement of the former North Korean branch (hereinafter the "Special Act for the Promotion of Utilization of Closed School Property"), may lend or sell closed school property to a person who intends to utilize the closed school property as educational facilities, cultural facilities, etc. under a negotiated contract for the purpose and period of use thereof (Article 5(1)), and the lending rate, lending period, lease period, etc. shall be prescribed by Presidential Decree (Article 5(2)), and where an organization or private person intends to use closed school property as educational facilities, etc. for the purpose of use of closed school property, such procedures shall be prescribed by Presidential Decree (Article 5(3) and (4)). The Enforcement Decree of the same Act provides that the annual lending rate for rent, etc. shall be lower than 10/1000,000 of the appraised price of closed school property for the relevant City/Do.

The provision of the above collective agreement merely appears to mean that the Do Office of Education permits the use of closed school property in accordance with the procedures prescribed by the Act on the Promotion of Utilization of Abandoned School Property, etc., and does not provide for the use of closed school property free of charge, and it does not mean that the Do Office of Education pays rent to a trade union or bears rent in lieu of a trade union, so it does not provide

Of the instant corrective order, the part of Article 11(3) of the collective agreement of the former North Korean Branch shall be deemed to violate Article 81(4) of the Trade Union Act and the part of the corrective order shall be revoked as unlawful.

2) Article 60(5) of the collective agreement of the Jeonbuk Branch.

A) In light of the following points, the part that provides administrative and financial support to the autonomous training activities conducted by a trade union under the above collective agreement is an act supporting the operating expenses of a trade union, in violation of Article 81 subparag. 4 of the Trade Union Act. Voluntary training activities of a trade union constitute trade union activities and thus does not constitute a provision of welfare funds recognized in terms of the promotion of the welfare of an individual employee. It does not constitute an exception under the proviso to Article 81 subparag. 4 of the Trade Union Act. The instant corrective order is justifiable

(1) Voluntary training conducted by a trade union is conducted as part of education for union members according to voluntary will of the trade union and its members, and expenses therefor are included in the activities of a trade union.

② According to the regulations on training of teachers, etc., the training of teachers is divided into the job training for building abilities necessary for performing duties and the qualification training for acquiring a certain qualification for teachers (Article 6(1)), and the actual expenses necessary for training for trainees (Article 8) are limited to the above job training and qualification training administered by the State or local governments, and no provision exists to subsidize the training expenses, regardless of which teachers have received separate training expenses (the Plaintiff asserts that the former North Korean branch was designated as a designated training institution under Article 5 of the Regulations on the Training of Teachers, etc., and that the former North Korean branch was paid the expenses required for training from local governments. However, this is also a case where the training is provided as job training or qualification training, and there is no administrative and financial support for autonomous training activities conducted by trade unions)

B) However, inasmuch as there is no evidence to view that a trade union is allowing the union members to participate in autonomous training programs conducted by a teachers' organization as one of its union activities, the part that the agreement that the teachers' organization provides administrative and financial support for autonomous training activities does not constitute an act of assisting the union operation expenses. This part of the corrective

3) Article 11(4) of the collective agreement of the Jeonbuk Branch and Article 10(1) of the collective agreement of the Jeju Branch.

A) According to the proviso of Article 81 subparag. 4 of the Trade Union Act, a trade union may receive a minimum amount of office from an employer. This provision is an exception to the provision on prohibition of assistance in operating expenses of a trade union, which is established to allow minimum security guards as it performs the function of representing employees in Korea.

B) “Support of incidental expenses to the facilities necessary for cooperative activities” as stipulated in Article 11(4) of the collective agreement of the former North Korean Branch cannot be said to be identical to the provision of a trade union office at a minimum size as the meaning that covers the physical, spatial and spatial facilities necessary for trade union activities and the cost necessary for maintaining and managing the spatial facilities.

C) Of Article 10(1) of the collective agreement of the Jeju Branch, the part of 'full school rent' is an exception to the prohibition of security guards from providing security guards with an office rent corresponding thereto instead of 'minimum trade union office of the size permitted under the proviso of Article 81(4) of the Trade Union Act (including incidental facilities expenses)' (i.e., "minimum size" is stipulated to provide assistance within the scope of the budget. However, the 'minimum size' is not limited to the goods ordinarily kept in the office and it is interpreted that the purchase cost of the goods ordinarily necessary for union activities is not included in the minimum size of the trade union office. Moreover, the 'minimum size' is not the exception to the above provision, since the permission to provide the office of the trade union office in the process of securing the space of the trade union office, the 'minimum size' does not constitute an exception to the above provision.

D) Of Article 10(1) of the collective agreement of the Jeju Branch, the part on the rent for the office of the Jeju Branch constitutes the proviso to Article 81 subparag. 4 of the Trade Union Act, and thus, the instant corrective order regarding this part is unlawful. However, since Article 11(4) of the collective agreement of the Jeonbuk Branch and Article 10(1) of the collective agreement of the Jeju Branch, the remainder of the collective agreement of Article 11(1) of the Jeonbuk Branch violates Article 81 subparag. 4 of the Trade Union

3. Conclusion

The instant corrective order is revoked regarding the part of the collective agreement between the former North Korean Branch in Articles 11(3) and 60(5), and the part of the rent of the office of the Jeju Branch in Article 10(1) of the collective agreement between the Jeju Branch and Jeju Branch. The Plaintiff’s claim shall be accepted within the scope of the above recognition, and the remainder of the claim shall be dismissed for lack of good cause. The appeal shall be partially accepted by both parties, and the judgment of the first instance shall be modified as above.