In a case where Company A refused to conduct collective bargaining with the labor union comprised of workers of Company B, etc. belonging to Company B, and Company B, etc. occupied part of Company A’s factory, and completely suspended Company A’s factory operation, the case holding that the said industrial action constitutes an unjustifiable industrial action and constitutes a tort.

In a case where Company A refused to conduct collective bargaining with the labor union comprised of workers of Company B, etc. who belong to Company B, and Company B et al. occupied part of Company A’s factory, and subsequently completely suspended Company B’s operation, the case holding that the aforementioned industrial action constitutes a tort as an industrial action without legitimacy, in light of the following: (a) even if the members of Company C et al. were not directly labor contract with Company A as workers of Company A; and (b) part of the employees of Company C et al. were confirmed as temporary agency workers of Company A through the court’s decision, it does not affect the above judgment’s validity to the members of the Company C et al.; and (c) the above members cannot be the principal agent of collective bargaining with Company A; and (d) the said union members were forced to occupy Company A’s factory by force to completely stop its production company’s operation, and thus, it constitutes a tort without justification (However, it is limited to 50% of liability for damages, such as

Article 3 of the Trade Union and Labor Relations Adjustment Act; Article 750 of the Civil Act

Hyundai Automobile Co., Ltd. (Law Firm Gyeong, Attorneys Yang-hee et al., Counsel for the defendant-appellant)

Defendant 1 and 28 others (Defendant 1, 2, 4 through 16, 18, 20 through 29)

August 29, 2013

1. Defendants 3, 4, 5, 7, 8, 11, 21, 24, 25, 26, and 29 shall jointly and severally pay to the Plaintiff the amount of KRW 2,00,000,000 per annum from April 8, 201 to October 10, 2013, and 20% per annum from October 11, 201 to the date of full payment.

2. The plaintiff's claims against the defendant 1, 2, 6, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 27, and 28 are all dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendants 3, 4, 5, 7, 8, 11, 21, 24, 25, 26, and 29 shall be borne by the Plaintiff, and the part arising between the Plaintiff and the Defendants 1, 2, 6, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 27, and 28 shall be borne by the Plaintiff.

4. Paragraph 1 can be provisionally executed.

The order of Paragraph 1 and the defendant 1, 2, 6, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 27, and 28 shall pay to the plaintiff 2,00,000,000 won and the above money together with the defendants listed in Paragraph 1 of this Article with the amount calculated by the rate of 5% per annum from the day following the date of the final delivery of the copy of the complaint of this case until the day of the final payment, and 20% per annum from the next day to the day of the full payment.

1. Basic facts

The following facts are not disputed between the parties, or may be recognized by adding up the whole purport of the pleadings to each entry in Gap, 19, and 20 evidence (including each number in case of a separate number):

A. The Hyundai Motor Vehicle Irregular Branch (hereinafter “MMMM”) affiliated with the National Federation of the Korean Democratic Trade Union (hereinafter “National Federation of Labor Unions”) (hereinafter “MMMM”) is a trade union consisting of workers belonging to the Plaintiff’s employees belonging to the affiliated companies of the Ulsan Factory, and it has been consistently demanded against the Plaintiff Company to convert all employees belonging to the intra-company subcontractor labor union into regular employees.

B. In the meantime, Supreme Court Decision 2008Du4367 Decided July 22, 2010 (hereinafter “the instant Supreme Court Decision”) was rendered on the grounds that the Plaintiff received illegal dispatch and used Defendant 27 for at least two years in relation to the lawsuit seeking revocation of the application for unfair dismissal against Defendant 27 of the employee affiliated with the intra-company labor union, and thus, the Plaintiff is deemed directly employed by the Plaintiff pursuant to the relevant Act (hereinafter “instant Supreme Court Decision”). Accordingly, the intra-company labor union increased wages including KRW 90,982, a superior organization from October 6, 2010 to November 2, 201, the Plaintiff demanded a special bargaining to the effect that all the employees employed by the intra-company labor union should be converted into full-time employees, and the unpaid wages should be converted into full-time employees based on the date of employment of the worker affiliated with the intra-company labor union and paid them at the same time as regular bargaining.

C. However, the Plaintiff rejected the demand for such negotiations to the effect that the employees belonging to the intra-company subcontractor cannot become the parties to the negotiations because they are not in a labor contract with the Plaintiff. On November 5, 2010, the intra-company subcontractor labor union applied for mediation through the metal labor union through the National Labor Relations Commission, held a temporary representative meeting on November 8, 2010, and formed a dispute mediation committee to be in charge of industrial action. On November 12, 2010, the intra-company labor union held a general meeting of union members and passed an industrial action at a rate of 1,690, 1,290, and 76.34% of the number of union members voting for industrial action. However, the National Labor Relations Commission decided to the effect that the Plaintiff and the employer labor union applied for mediation to the effect that it does not meet the requirements of the labor union under the Act on Labor Relations Adjustment and Labor Relations Adjustment and applied for mediation in the name of the Plaintiff as the party to the labor union.

D. Meanwhile, the Plaintiff’s same-sex company, among its intra-company subcontractor, closed its business as of November 14, 2010 and the hearing company agreed to succeed to the intra-company subcontract business and employment relationship. However, workers belonging to same-sex company, who were employed by same-sex company, were required to directly employ and change their employees when refusing to change their positions to the hearing company. Of that, on November 15, 2010, the number of 40 workers employed by the intra-company subcontractor labor union members at the company was 05:30 on November 15, 2010, the Plaintiff’s company located in Ulsan-gu, Ulsan Industrial Complex (hereinafter omitted) entered the factory more than the factory fence at the company located in Ulsan-gu, Seoul Metropolitan City (hereinafter omitted). The Plaintiff’s employees mobilized the labor union members at the factory, and arrested the labor union members at the 10-company labor union members at the 10-company labor union in the 10-company labor union in the 10-company labor union.

E. Defendant 3, 4, 5, 7, 8, 11, 21, 24, 25, 26, and 29 moved in collusion with other partners of the intra-company subcontractor’s labor union. On November 15, 2010, around 14:00, Defendant 3, 4, 5, 7, 8, 11, 21, 24, 25, 26, and 29 moved in the number of members of the intra-company subcontractor’s 1 factory belonging to the inter-company subcontractor’s 1 factory. Around November 15, 2010, 200 members of the inter-company 2 factory were 90.

Around December 9, 2010, the number of members in the last 249 association, etc., occupied the Ulsan Factory from November 15, 2010 to December 9, 2010, and stopped the operation of the production called one factory for 25 days (hereinafter “instant industrial action”).

F. In the process of the foregoing 1 factory’s “Defendant 3” from November 17, 2010 to November 23, 2010; Defendant 4 from November 15, 2010 to November 25, 2010; Defendant 5 from November 15, 2010 to December 9, 2010; Defendant 7 from October 17, 2010 to December 9, 2010; and Defendant 8 from October 20, 201 to December 10, 205, from October 25, 201, to December 10, 2015; and Defendant 11 from November 5, 2010 to December 10, 201, to October 21, 2015, respectively.

2. The parties' assertion

A. The plaintiff company

The Defendants actively participated in the instant industrial action and suspended the Plaintiff Company’s production of the Ulsan Factory. The instant industrial action is an unfair industrial action that did not meet the requirements as a legitimate industrial action in terms of the principal agent, objective, and method. During the hours when the Plaintiff’s operation was suspended due to the Defendants’ unfair industrial action, the Plaintiff Company was liable to compensate the Plaintiff Company for damages of KRW 37,130,082,52,528 during the period when the Plaintiff’s operation was suspended due to the said unfair industrial action. The Plaintiff Company was jointly and severally liable to compensate for the damages of KRW 122,60,000,000 for the producer’s loss, KRW 123,00,000 for equipment loss, and other damages, KRW 122,605,370 for equipment loss, and KRW 80,69,068 for repair cost of the Ulsan Factory 1.

B. The Defendants

Notwithstanding the Supreme Court decision in this case, the Defendants’ act of dispute resolution in order to accomplish a request for negotiation in accordance with the refusal of collective bargaining with the intra-company subcontractor labor union to which the Defendants belong is not a tort. Even if such act is an unfair industrial action, all the Defendants are not an act that constitutes a tort, and there is no proof that the damages suffered by the Plaintiff Company due to the industrial action in this case were not proven, so the Defendants are not liable to compensate the Plaintiff Company for damages. Even if the Defendants committed a tort, the Defendants are limited to liability depending

3. Determination

(a) Occurrence of liability for damages;

(1) Whether a tort is committed

(A) Article 3 of the Trade Union and Labor Relations Adjustment Act provides that “An employer shall not claim compensation against a trade union or worker in cases where a trade union or worker has suffered damages due to collective bargaining or industrial action under this Act,” and imposes restrictions on the employer’s claim for compensation. However, damages exempt from civil liability for compensation in this context should be clear that the damages arising from a legitimate industrial action are limited to the damages arising from a legitimate industrial action. An industrial action without justification may constitute a tort and claim compensation against the trade union or worker. However, in order to be deemed a legitimate industrial action, the subject of collective bargaining shall be the subject of collective bargaining, and its purpose shall be to maintain and improve working conditions in relation to collective bargaining, and its timing and procedures shall be justified in accordance with the provisions of the Act and subordinate statutes, and the method and form thereof shall be within the reasonable scope that does not entail sociality, such as acts of violence or destruction (see Supreme Court Decision 209Da29366, Mar. 24, 2011).

(B) The following facts and circumstances can be acknowledged in full view of the above facts and the purport of the entire argument that return to the instant case and the instant industrial action constituted tort as an act of industrial action without justification, in light of the legal principles as seen earlier.

First, members of the intra-company subcontractor labor union are workers belonging to the subcontractor in the Ulsan Factory of the plaintiff company and are not directly related to the labor contract with the plaintiff, and even if some of the workers belonging to the intra-company subcontractor were confirmed as temporary agency workers employed by the plaintiff company through the court's decision, the above decision does not affect the members of the intra-company subcontractor labor union. Thus, the members of the branch of this case cannot be the subject of collective bargaining with the plaintiff company.

Secondly, even if members of the intra-company subcontractor's labor union can be the subject of collective bargaining against the Plaintiff company, the act of stopping the Plaintiff company's production company's production company completely by abusing the Plaintiff company's one factory by force in the method and attitudes of industrial action constitutes anti-social act beyond the extent that it is acceptable under the social norms to interfere with other's free decision-making or to exercise violence contrary to the basic principles of law and order. Considering the above circumstances in light of the above legal principles, the industrial action in this case constitutes a tort as an unjustifiable industrial action.

(2) Scope of the tortfeasor

(A) In full view of the aforementioned facts and the respective descriptions and images of Gap evidence Nos. 1, 2, 9, 16, 18, 19, and 20 (including all of the several numbers), the defendant 3, 4, 5, 7, 8, 11, 21, 24, 25, 26, 29 (hereinafter "the defendants who participated in the act of interference with business") may be found to have participated directly in the instant industrial action in collusion with the defendants around November 15, 2010 to December 9, 2010.

Further, in addition to the above facts acknowledged, ① if several persons inflict damages on another person as a joint tort, the teacher or the assistant is jointly liable for the damages, ② the establishment of a joint tort between the joint tortfeasor and the joint tortfeasor is not required to have common intent or common recognition, and there is an objective common sense related to each of such acts (see Supreme Court Decision 2010Da28390, Aug. 17, 2012). ③ In the event of an illegal industrial action, it is difficult to view that the general partner simply suspended labor under the direction of the trade union, etc. at the time of an illegal industrial action as being liable for joint tort together with the union’s division. However, in full view of the fact that the above Defendants actively occupied the Plaintiff company’s factory and attempted to completely stop its production and to expand the Plaintiff’s damages, the above Defendants, as the joint tortfeasor, are obligated to compensate the Plaintiff company for the damages caused by the tort.

(B) Meanwhile, the above Defendants asserted that they are liable for damages only for the actual participation in the industrial action of this case without any public offering, and that they are liable for damages. Thus, the above facts and circumstances are as follows: ① the industrial action of this case can be acknowledged by comprehensively considering the overall purport of arguments in Gap evidence No. 20-2; ① if the plaintiff company cannot enter the company's employees belonging to the same-sex company into one factory in the Ulsan Industrial Complex of the above company, around November 15, 2010, the plaintiff company's employees belonging to the same-sex company, and it is reasonable to support the above company's industrial action of this case's industrial action of this case's industrial action of this case's industrial action of this case's industrial action of this case's industrial action of this case's industrial action of this case's industrial action of this case's industrial action of this case's industrial action of this case's industrial action of this case's industrial action of this case's association members and three members of the above company's industrial action of this case's industrial action of this case's industrial action of this case's industrial action of this case'.

(C) However, it is not sufficient to recognize that the evidence revealed prior to the above facts alone, as follows, Defendant 1, 2, 6, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 27, and 28 conspired the instant industrial action beyond the mere degree of the participation in the industrial action, or participated in the tort by the Defendants involved in the act of obstruction of business, such as directly participating in the industrial action of this case, and there is no other evidence to prove otherwise, the Plaintiff Company’s claim for damages against the said Defendants is without merit.

(b) Scope of damages;

(1) Applicable legal principles

The scope of compensation for damages caused by an illegal industrial action is all damages arising from proximate causal relation with the illegal industrial action (see Supreme Court Decision 93Da32828, 32835 delivered on March 25, 1994). The damages suffered by an enterprise due to its failure to conduct operation due to the illegal absence of operation in a manufacturing enterprise shall be the damages arising from the sales of the product that could have been produced due to the suspension of operation, and the damages arising from the fixed expenditure regardless of the suspension of operation (such as rent, tax and public charges, depreciation costs, insurance premium, etc.) regardless of whether the sales of the product could not have been obtained due to the suspension of operation, and the damages arising from the suspension of operation (see Supreme Court Decision 93Da32828, 32835 delivered on March 25, 1994). However, it shall be proved that the sales price of the product could not have been manufactured due to the illegal absence of operation, and there is no possibility that the product would have been sold within 130 percent of the total sales of the product at issue.

(2) As to the high-maintenance damage

(A) Comprehensively taking account of the purport of the entire arguments in evidence Nos. 3, 13, and 14, the industrial action in this case occurred from November 15, 2010 to December 06, 2010 when the operation of the Plaintiff Company 1 factory was interrupted for 336 hours, and the repair cost spent in 2010 at the Plaintiff Company 1 factory was 438,110,62,600 won (this is the total number of 438,60 hours used in 2010 at the Plaintiff Company’s Ulsan Factory 1 factory 1 factory 20, 2010, 2000 to the Plaintiff Company’s total 1 factory 20,000 won and 5 hours used in calculating the operating hours at the Plaintiff Company 1 factory 1 factory 20,000 to the Plaintiff Company 5 hours used in calculating the operating hours at the Plaintiff Company’s total 10,000 hours used in accordance with the Plaintiff Company’s total 3 hours used.

In addition to the above facts, in light of the legal principles as to damages, barring special circumstances, such as the fact that the automobile sales price of the Plaintiff’s automobile produced in the Ulsan Factory 1 factory falls short of the manufacturing cost, or that the pertinent product is not properly sold, the damages equivalent to the fixed amount of damages paid by the Plaintiff for the tort committed by the Defendants (referring to the Defendants participating in obstruction of business; hereinafter the same shall apply) are 37,130,082,528 won (=438,110,62,600 won (fixed amount of 2010), 3,964,58 hours (the running hours in 2010), 336 hours (the running hours in 2010) x 3,964,58 hours (the running hours in 2010), and less than won).

(B) Meanwhile, the Defendants asserted that the average operating rate should be taken into account in calculating the operating hours for the discontinuance period due to various circumstances, such as equipment repair (it can be understood to the effect that the causal link with the instant industrial action by the Defendants is denied for the suspension period exceeding the period in which the average operating rate is considered). Thus, as long as the result of the suspension of the Plaintiff Company’s pertinent Ler due to the instant industrial action by the Defendants was practically achieved, the possibility of mechanical breakdown, etc., which is merely a household causal relationship (it may not occur during the suspension period, and such possibility may only be considered only to the extent of the limitation period as well as all the circumstances revealed in the oral proceedings, and it is difficult to deem that such possibility affects the existing causal relationship. In light of the above, the Defendants’ aforementioned assertion is without merit.

(3) As to production materials, equipment and other losses, and repair costs of a factory

According to Gap evidence No. 4, the defendants' act of dispute in this case can be acknowledged that the plaintiff's act of dispute in this case causes total damages of 295,960,180 won, including 50,354,810 won, equipment loss of 123,00,000 won, and other losses of 122,605,370 won.

However, it is not sufficient to recognize that some of the statements in Gap evidence 5 alone caused damages to one factory repair cost of 80,669,068, and there is no other evidence to acknowledge this. Therefore, this part of the plaintiff company's assertion is without merit.

C. Limitation on liability for damages

(1) In a damages case involving tort, the ratio of liability of a tortfeasor may be limited by comprehensively taking into account the background, progress, and all other circumstances (see Supreme Court Decision 2010Da93790, Nov. 29, 2012).

In the case of this case, if the status of a temporary agency worker who is employed as the plaintiff's employee was confirmed through the court's ruling, the company's employees who worked in a similar situation may be confirmed through the court's ruling. However, rather than seeking a dialogue to solve the problem, the plaintiff company consistently rejected the request for collective bargaining in the intra-company subcontractor's labor union and deepens conflicts between the plaintiff company and the intra-company subcontractor's labor union. ② The damages suffered by the plaintiff due to the industrial action in this case are caused by the production facilities of the plaintiff's factory in large scale. Further, considering all the circumstances such as the fact that the plaintiff's production facilities are included in pure high repair as well as the cost of change, it is appropriate to limit the defendants' liability to 50% of the damages suffered by the plaintiff due to the industrial action in this case to the fair and reasonable share of damages.

(2) Partial claims and limitation of liability

When determining the scope of damages, the amount of damages can be limited in light of the ideology of the damage compensation system, which is fair sharing of damages, and when limiting the amount of damages in cases where a plaintiff claims part of the amount of damages, the amount of damages calculated by applying the grounds for mitigation of liability or the limitation of liability in the total amount of damages does not exceed a partial claim, and when exceeding a partial claim, the amount of damages should be deemed as the ordinary intent of the parties concerned (see, e.g., Supreme Court Decisions 75Da819, Jun. 22, 1976; 2006Da5550, Dec. 11, 2008).

The amount of damages calculated by applying the limitation of liability ratio to the instant case is KRW 18,713,021,354 (=37,426,042,708 won (=37,130,082,528 won +295,960,180 won) x 50%). The amount is obvious in calculating that the amount exceeds KRW 2,00,000,000,000, which is part of the Plaintiff Company’s claim amount.

D. Sub-committee

Therefore, the Defendants are jointly and severally liable to pay the Plaintiff Company the damages amounting to KRW 2,00,000,000 and the damages for delay calculated at each rate of 5% per annum from April 8, 2011 (Defendant 2, 27) to October 10, 2013, which is the date of the final delivery of the copy of the complaint of this case sought by the Plaintiff Company, to the date of the final delivery of the copy of the complaint of this case, and from October 11, 2013 to the date of the final payment.

4. Conclusion

Therefore, the plaintiff company's claim against the defendant 3, 4, 5, 7, 8, 11, 21, 24, 25, 26, and 29 against the defendant of the plaintiff company is justified, and the remaining claims against the defendants are dismissed as it is without merit. It is so decided as per Disposition.

Judges Sung-sung (Presiding Judge)