(a) Whether a disciplinary action, which did not undergo prior agreement as provided for in the collective agreement, is valid if the company and the union are in dispute status;

(b) The case holding that the judgment of the court below which recognized that the union abused the right to refuse the agreement on the ground that disciplinary action members of the union abuse the right to refuse the agreement where the company did not give written notice or advance agreement as provided in the collective agreement on the grounds that it did not recognize the legality of the union's Article;

A. If the collective agreement of a company provides that the personnel management of the employee union shall be agreed with the union union, a disciplinary action without such agreement shall be deemed null and void in principle. However, if there are special circumstances, such as the employee or the union voluntarily renounced such agreement, it shall not be deemed that the disciplinary action taken in violation of the above collective agreement is taken, and there is no ground to view the effect of the disciplinary action differently depending on whether the company and the trade union are in the peace state or whether it is in the dispute state.

B. The case holding that the judgment of the court below which recognized that a trade union abused the right to refuse to reach an agreement under the above provision of prior agreement without a reasonable reason, on special circumstances where a trade union abused the right to refuse to reach an agreement under the above provision of prior agreement without a prior agreement, because the failure to reach an prior agreement under the collective agreement was due to the company's refusal, and it cannot be deemed that the worker or the trade union voluntarily renounced the procedure of such prior agreement, although the disciplinary committee members of the trade union did not voluntarily attend the procedure (the trade union did not receive a legitimate written notice, and the same number of members of the disciplinary committee did not constitute the procedure of prior agreement with the trade union).

(a)Article 27(1) of the Labor Standards Act, Article 36 of the Trade Union Act, Article 187 of the Civil Procedure Act;

(a) Supreme Court Decision 94Da24596 delivered on January 24, 1995 (Gong1995Sang, 1125). Supreme Court Decision 92Da32074 delivered on December 8, 1992 (Gong1993Sang, 435) 93Da5017 delivered on September 13, 1994 (Gong194Ha, 2627)

Kim-tae et al., Counsel for the defendant-appellant-appellee

Daelim Industrial Co., Ltd., Counsel for the defendant-appellant

Busan High Court Decision 93Na838 delivered on September 1, 1994

The judgment below is reversed, and the case is remanded to Busan High Court.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below ruled that the above defendant company's dismissal of executive officers and executive members of the labor union shall be agreed upon in advance with the labor union (Article 46 (2)), and that the company shall give three members or members of the labor union to whom deliberation was made, and that the company shall notify in writing the union's personal information, date and place of the disciplinary committee (Article 48) by not later than 2 days before the commencement of the disciplinary committee. The defendant shall decide to hold the disciplinary committee of the plaintiff on March 14 and 90 of the same year on February 28, 192 on the ground that the above company's dismissal of the executive officers and executive members of the labor union would not have been made until 9 days prior to the above dismissal of the labor union. On the other hand, the court below decided that the plaintiff company's dismissal of the above executive members and executive members of the labor union would not have been made 9 days prior to the above dismissal of the labor union. The defendant shall also be notified to the plaintiff 1 and the above executive members of the labor union on March 10.

In addition, the lower court added the purport that the validity of dismissal should be determined by comprehensively taking into account the following factors: (a) the provisions of the prior agreement stipulated in the above collective agreement stipulate “pacific state”; (b) if the company and trade union are absent from the whole “state of dispute” as in this case, the prior agreement cannot be required as a valid requirement for disciplinary action; and (c) in such a case, the degree of responsibility for the omission of the above dispute status, the degree of existence of each party’s serious effort to resolve the dispute; (d) the existence of the company’s demand for securing the management right of the company; and (e) the worker

If the collective agreement provides that the personnel affairs of the union shall be agreed upon with the union, in principle, a disciplinary action which has not gone through such agreement shall be deemed null and void. However, if there are special circumstances, such as the employee or the union voluntarily renounced the procedure for such agreement, it shall not be deemed that such disciplinary action (see Supreme Court Decision 92Da32074 delivered on December 8, 192), and there is no basis to regard the disciplinary action taken in violation of the above collective agreement as effective depending on whether the company and the trade union are in a peace state or in a dispute state, and there is no reason to regard it differently at the time of the disciplinary action against the company and the trade union at the time of the disciplinary action in violation of the above collective agreement. Thus, the court below erred by misapprehending the legal principles as to the validity of the provision of the "prior agreement" under the collective agreement.

In addition, according to the facts established by the court below, the defendant did not recognize the legality of a trade union and did not make a written notification or a prior agreement as stipulated in the collective agreement. Accordingly, the defendant's failure to make a prior agreement as stipulated in the collective agreement is due to the defendant's refusal, and it cannot be seen that the worker or the trade union voluntarily renounced the procedure for such agreement, but the court below acknowledged that the trade union abused the right to refuse to reach agreement under the above prior agreement provisions without reasonable grounds, rather than that the trade union abused the right to refuse to reach agreement without a reasonable ground, since there is no legitimate written notification (the trade union did not receive a written notification, and the same number of members of the disciplinary committee did not constitute the procedure for prior agreement with the trade union). Thus, the court below erred in the violation of the rules of evidence or the inconsistent reasoning as to special circumstances for which the prior agreement

Thus, the defendant was subject to a disciplinary action without seeking a prior agreement with the labor union. This is a serious violation of procedure and thus the above disciplinary action was null and void, which affected the conclusion of the judgment. Therefore, it is reasonable to point this out.

Therefore, the judgment of the court below is reversed without examining the remaining grounds of appeal, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)