(영문) 대전고등법원 2014.4.24.선고 2012나6378 판결

The defendant shall pay to the plaintiffs the corresponding amount in attached Form 2's "amount of discount" with 6% interest per annum from September 11, 2011 to April 24, 2014, and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiffs' remaining appeals are dismissed.

3. The total costs of the lawsuit shall be borne as follows:

A. The part arising between the plaintiffs 1 through 29 and the defendant is 60% of them, and the remaining part is borne by the defendant Eul.

B. The part arising between the plaintiff 30 to 47 and the defendant shall be borne by the defendant.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

Purport of claim and appeal

Of the judgment of the first instance, the part against the plaintiffs corresponding to the money ordered to be paid under the judgment of the court shall be revoked. The defendant shall pay to the plaintiffs the corresponding money stated in the separate sheet No. 2 "amount of Claim" as well as 6% per annum from September 11, 2011 to the date of delivery of a copy of the application for purport and modification of the cause of the claim in this case, and 20% per annum from the next day to the date of full payment (the plaintiff reduced the claim in the trial).

Reasons

1. Facts constituting the basis of the case

(a) Relationship between parties, etc.;

1) The Defendant Company is a corporation established for the purpose of manufacturing and selling all kinds of internal combustion engines parts. The Defendant Company is a corporation established for the purpose of manufacturing and selling all kinds of internal combustion engines parts. The Defendant Company’s 1 through 29 is an employee working in the Agsan Factory of the Defendant Company (hereinafter “Agsan Factory”), and the rest of the Plaintiffs are employees working in the Youngdong Factory of the Defendant Company (hereinafter “Ugdong Factory”).

2) The Plaintiffs have joined the Korea Metal Trade Union U.S. Mountainous Districts Association (hereinafter referred to as the “AMM”) or the Young-dong Branch of an identical associated company (hereinafter referred to as the “YY-dong Branch”), which is an industrial trade union, and have joined the said two branches by combining them (hereinafter referred to as the “Plaintiffs’ union”).

B. Special negotiations between the plaintiffs' union and the defendant company

1) The Plaintiffs’ unions and the Defendant Company agreed on January 13, 2010 according to the 2009 'Written Agreement on the Improvement of Subdivision Wages and Work-Based Systems'. The said agreement includes the content that, in consideration of economic situation and all the conditions, the aforementioned agreement aims at the introduction of the weekly continuous 2 teaching system on January 1, 201.

2) On December 23, 2010, the Plaintiffs’ Trade Union demanded the Defendant Company to negotiate with a special organization based on the aforementioned agreement. Accordingly, the Plaintiffs’ Trade Union and the Defendant Company continued to hold special negotiations regarding “the introduction of a two-way system per week” over 11 times from January 18, 201 to May 4, 2011. However, the special negotiations between the two labor unions and the Defendant Company were eventually displayed.

3) On May 3, 2011, the Plaintiffs’ Trade Union applied for mediation of a labor dispute to the Chungcheong Regional Labor Relations Commission. On May 13, 2011, the said commission decided to suspend the mediation without presenting a mediation proposal on the ground of a significant difference in the position between the union and the company.

C. Industrial action by the plaintiffs' union and lock-out by the defendant company

1) On May 17, 201, from 22:00 to 10:30 on May 18, 201, 201, the Plaintiffs’ labor union held a pro-con voting for industrial action against its members. From the pro-con voting, the labor union decided industrial action with the consent of about 539 members of the labor union of the Defendant company, including 27 employees working at the Daegu Factory and Southern Factory, 566 employees of the Defendant company, and with the consent of about 78.2% among 422 members of the labor union. The Plaintiffs’ labor union conducted a pro-con business from 13:30 to 15:30 on the same day, and continued the labor union by up to 17:30 on the same day on the grounds that the employees in charge of the management of the Defendant company engaged in the production of parts.

2) The Defendant Company reported 18:00 on the same day a lock-out of an Asan Factory to an administrative agency having jurisdiction over 18:00 on the same day, and carried out a lock-out to Asan Factory from 20:00 on the same day, and, from May 23, 201, carried out a lock-out to the Youngdong Head of Youngdong dong, as well as Asan Factory and Youngdong Factory (hereinafter referred to as “the lock-out” in this case). After that, the Defendant Company continued to manufacture automobile engine parts by inserting the lock-out to the productive employee who did not join the Plaintiffs’ Trade Union.

3) On July 22, 2011, 269 members of the Plaintiffs’ Trade Union, who were not returned to the Defendant Company, filed an application with the Defendant Company for a provisional disposition suspending the lock-out with the Daejeon District Court Branch of the Daejeon District Court for the provisional disposition suspending the lock-out (Seoul District Court Decision 201Kahap131). In the instant case, the conciliation including the following (hereinafter “instant conciliation”) was established on August 16, 201 after the three-time examination dates from August 5, 201 to August 12, 201 have run from August 16, 201.

Section 5

1. The debtor (defendant company) is all creditors (applicant for a provisional disposition) by August 31, 2011;

return to the work of the Board.

3. The obligees are obligees regardless of the order of their return to their business;

payment of wages for the first time shall be made in the same manner as the first person returning to work.

4. Each of the above matters shall be as follows, individually, by at least 20 persons among creditors:

Preparation of a written oath and delivery to the debtor until August 18, 2011

subject to subsection (1) of this section.

Contents: 1) I will not commit any tort in the future.

2) I will endeavour to harmonize with the existing return and management positions.

4) The Defendant Company paid wages to Plaintiff’s union members, including the Plaintiffs, who were not returned to the Defendant Company until then, from August 22, 2011. The Plaintiffs’ union members returned to the Defendant Company by August 31, 2011.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 7, 14, 15, 67, Eul evidence Nos. 1, Eul evidence Nos. 4 through 6, Eul evidence Nos. 12, 43, and 44 (including branch numbers; hereinafter the same shall apply)

2. The parties' assertion

A. Summary of the plaintiffs' assertion

Since the Defendant Company’s commencement and maintenance of the lock-out in this case is not justifiable on the following grounds, the Plaintiffs were unable to provide labor due to the reasons attributable to the Defendant Company. Accordingly, the Defendant Company is obliged to pay the Plaintiffs the corresponding amount of money in the [Attachment 2] Claim Form, which is the wages not paid during the period of illegal and unfair lock-out in accordance with Article 538(1) of the Civil Act, and its delay damages.

【Violation of the Commencement of Lock-out】

1. The Defendant Company did not participate in negotiations with good faith.

② Although there was no fact that the Plaintiffs’ Trade Union used violence or occupied production facilities, the Defendant Company carried out a lock-out immediately after the Plaintiffs’ Trade Union’ trade union’s resolution to conduct a partial strike for 30 minutes immediately.

③ Defendant Company’s shooting following the Plaintiffs’ industrial action is not significant.

④ From the beginning, the Defendant Company carried out the instant lock-out in accordance with the plan prepared to destroy the Plaintiffs’ Trade Union.

【Violation of the Maintenance of Lock-out】

① The lock-out in this case did not meet the requirements of opposing the defense of industrial action as it was terminated by expressing the intent of the Plaintiffs’ Trade Union to return to their work.

② The conflict between the Plaintiffs’ unions and the Defendant’s company regarding the “second-speed comparison system” was resolved.

③ After the lock-out of this case, there was no act of violence by the Plaintiffs’ union, and the Defendant Company obtained the method of considerable suppression by the decision of provisional disposition by the court below.

1. Although the lock-out of this case was completely restored to the previous level, the Defendant Company maintained the lock-out for a long time for a limited period to induce the withdrawal of the Plaintiffs’ union members.

B. Summary of the defendant company's assertion

1) Although the Defendant Company faithfully participated in special negotiations with the Plaintiffs’ union, it could cause serious damages to the Defendant Company by significantly decreasing the output of the parts of the Defendant Company by engaging in illegal industrial actions over a long period of time, and thus, it commenced the closure of the instant workplace.

After that, the Defendant Company maintained the lock-out in order to oppose illegal acts such as illegal occupancy of factories and violence committed by the Plaintiffs’ union and to verify the authenticity of the intention to return to work.

Therefore, since the commencement and maintenance of the lock-out in this case is justifiable, the defendant company is not obliged to pay the plaintiffs wages during the period of direct closure.

2) An industrial action under the Plaintiffs’ Trade Union is an illegal industrial action lacking legitimacy for the purpose of the industrial action, and constitutes an act of interference with business under the Criminal Act. The Defendant Company conducted a lock-out and maintained a lock-out as a self-measures to keep the Plaintiffs’ union members unable to access the site as a consequence of the event is imminent due to the illegal industrial action under the Plaintiffs’ Trade Union’ trade union’s stock listing due to the said illegal industrial action, as seen above, and the replacement work force by the management office employees. Such measures by the Defendant Company constitute self-defense, and thus, the Defendant Company is not obliged to pay the Plaintiffs wages during a lock-out period

3. Determination

A. Basic legal principles on the legitimacy of a lock-out

An industrial action by a trade union refers to a strike conducted for the purpose of accomplishing his/her claim by developing the state of dispute arising from a disagreement on the terms and conditions of employment in favor of himself/herself, and thus hindering the normal operation of his/her business. As such, even if a dispute occurred by demanding a somewhat unreasonable wage increase to the employer, and as a result of a trade union's industrial action, even if the normal performance of business of the employer was hindered as a result of the trade union's industrial action, the industrial action by the labor

On the other hand, the Constitution and the Labor Relations Act have provisions that actively guarantee the right of workers to dispute, while there is no explicit provision on the right of workers to dispute. This is to promote and secure labor-management ties, etc. by removing workers who are in the position that is not bound to be remarkably unfavorable in relation to employers since the means of exercising pressure are considerably restricted by the general civil law. Thus, in general, it is not necessary to recognize the right of dispute between employers and employers as a type of industrial action in the chapter of individual labor disputes, but in case where the balance of power between employers and employers is broken and the employer is considerably disadvantaged, it would be consistent with the principle of equity to recognize the right of dispute as a means of counter-defense and defense to restrain the pressure and restore the balance of power, and our law also stipulates that the right of dispute as a type of industrial action is defined as a type of employer's trade union or labor union's labor union's labor union's labor union's labor union's labor union.

However, in order for a lock-out by an employer to be evaluated as a legitimate industrial action in a specific labor dispute, it shall be limited to the case where it is deemed reasonable as a means of defense and defense against an industrial action by the employer in light of equity in light of the specific circumstances as to the bargaining attitude and progress between labor and management, the mode of the industrial action by the worker, and the degree of shooting that the employer receives. Only when the lock-out is evaluated as a legitimate industrial action, the employer shall be exempted from the obligation to pay wages to the workers during the lock-out period (see Supreme Court Decision 98Da3431 delivered on May 26, 200, etc.).

B. Whether the lock-out of this case is lawful

1) Facts acknowledged by the court of this case

A) Until the lock-out of this case, the industrial action by the plaintiffs' union and response of the defendant company

(1) On March 25, 201, the Plaintiffs’ unions and the Defendant Company proceeded with 6th special negotiations at the Asan Factory seminar room of the Defendant Company. In such special negotiations, the Plaintiffs’ unions first discussed the change of work type and the introduction of the monthly salary system, and argued that the problems related to the production due to the introduction of the daytime 2 comparison system will last be discussed. Accordingly, the Defendant Company asserted that it is difficult for the Defendant Company to discuss the two comparisons with the daytime 10:30 on March 25, 201 without due consideration for securing the production volume. Accordingly, the A mountainous District Association failed to reach an agreement. In order to accomplish the assertion that the “the introduction of the two comparisons and monthly salary system” was the introduction of the two associates and monthly salary systems on March 25, 2011, it ordered its members to suspend production at the time of non-existence and to withdraw from the labor union at the time of non-compliance with the members of the Youngdong Branch.

(2) Members of the Young-dong Branch refused to take part in the weekends group on March 26, 201, following the resolution of the extension of the Asia-dong Branch(PPP).

(3) The inspection and members of the Plaintiffs’ labor union refused to provide labor from March 28, 201 to 12:30.

(4) On April 13, 201, members of the Plaintiffs’ labor union refused to provide labor by producing the national flag for one hour during the business hours for each department.

(5) The Plaintiffs’ union members refused to provide labor when manufacturing banners from April 19, 201 to April 13:30, 201.

(6) On April 26, 2011, the Plaintiffs’ Trade Union rejected the provision of labor by means of refusal of seeing the pension and computer input in accordance with the public notice No. 1 of the fight Guidelines.

(7) The extended portion of the Plaintiffs’ labor union set aside from April 29, 201 to 17:30 on April 29, 201.

(8) Members of the Plaintiffs’ Trade Union refused to engage in the work of special work at night on May 1, 201. Accordingly, the employees engaged in the work of production from 08:30 to 09:20 on May 2, 2011, which were the executives of the Plaintiffs’ Trade Union and Labor were suspended and dismissed due to the interference of Plaintiff ○○○, ○○○, and OOOO, which were the executives of the Plaintiffs’ Trade Union and Labor Relations.

(9) The members of the Plaintiffs’ Trade Union set aside collectively in accordance with the public notice of 1st May 3, 201, 201, pursuant to the Notice No. 2, 201. As the employees of the Defendant Company engaged in the production work, the executives of the Plaintiffs’ Trade Union interfered with this production 1 and 2, and the CTB equipment and raping process were not suspended.

(10) On May 4, 201, the Plaintiffs’ labor union made an assembly from 09:00 to 14:00 to provide labor in accordance with the public notice of the strike Directive 3 on May 4, 201.

(11) On May 6, 201, the Plaintiffs’ labor union continued to search for each section in accordance with the public notice of the Guidelines for the fight against Party 3, 201.

(12) On May 9, 201, the Plaintiffs’ labor union engaged in labor from 08:30 to 12:30 on the same day in accordance with the public notice of the strike guidelines No. 4.

(13) On May 16, 201, the Plaintiffs’ labor union rendered services from 09:30 to 10:20 on May 16, 201, the refusal to provide labor from 11:20 to 14:30 on the same day, and the refusal to provide labor from 22:30 on the same day.

(14) On May 17, 201, the Plaintiffs’ Trade Union provided services of outflow, early withdrawal, and training without permission by each department of each department.

(15) The Plaintiffs’ labor union conducted a strike from May 18, 201 to 15:30 on to 15:30 on May 18, 201, according to the resolution of its members, and continued the strike from 15:30 to 17:30 on the same day on the grounds that the management employees of the Defendant company continued to produce parts.

(16) On May 12, 2011, and May 16, 2011, Defendant Company requested cooperation from each of the Plaintiffs’ unions to prevent the decline in production and the occurrence of an industrial action. On May 13, 2011, Defendant Company requested the postponement of the Afembging conference at the Afemban City Council, which was scheduled as of May 14, 201, after the stable likelihood of production.

B) The impact of the plaintiffs' industrial action on the defendant company

(a)a factory;

(A) The quantity of production of a major component from April 201 to August 2011 of an Asan Factory shall be as follows:

A person shall be appointed.

(B) On May 17, 201, some of the following items were in short of inventory due to the reduction in the above production quantity made by the Defendant Company.

Date of provisional use

A person shall be appointed.

(C) After the lock-out of this case, the Defendant Company focused on the production manpower on the stoning producer with a main point in recovering the production quantity of the stoning.

(D) The Defendant Company supplied Hyundai Motor Co., Ltd. (hereinafter referred to as “Modern Motor”), etc. with parts necessary for the production of completion cars, and in particular, skining is exclusively supplied by the Defendant Company. The Defendant Company agreed between Hyundai Motor, etc. and Hyundai Motor, etc. that the Defendant Company would compensate for damages caused by the failure to normally supply such parts.

(E) On August 11, 2011, Hyundai Motor, etc. filed a claim with the Defendant Company for the aggregate of KRW 10,748,715,94 (60.40 billion / 100 billion / 47.100 billion / 97.10 billion / 1000 / 3000 / 47.100 / 3000 / 47.100

(2) Young-dong factory

(A) The production volume of the main components from April 201 to August 201 of the Youngdong Factory shall be as follows:

A person shall be appointed.

(B) At the time of the instant lock-out, the Youngdong factory had no distance and was in inventory. In order to conduct the instant lock-out, most employees engaged in the management of the Youngdong factory, who were in charge of the instant lock-out, carried out the production work in the Youngdong factory for a quantity of two months, as an Amsan factory. There is no concern or concern about the situation of a partnership in the Youngdong factory before and after the closure of the office for the Youngdong factory. The Youngdong factory’s head of the Youngdong factory carried out a lock-out in the Youngdong factory on the grounds that it is likely to occupy the members of the Plaintiffs’ Trade Group on the ground that the lock-out might be occupied due to the fact that the lock-out for the Youngdong factory’s head of the Youngdong factory might take place.

[Reasons for Recognition] Facts without dispute, Gap evidence 69, Eul evidence 5 to 11, Eul evidence 43, Eul evidence 44, Eul evidence 49 to 52, Eul's partial testimony of a trial witness, and the purport of the whole pleadings

2) Determination

We examine these facts in light of the legal principles as seen earlier.

A) As to an Asan Factory:

1) The Defendant Company carried out special negotiations over 11 times with respect to the introduction of the Plaintiffs’ labor union and the weekly 2 bridge system. In that special negotiations, the Plaintiffs’ labor union asserted that the Si-funded wage system should be converted into a monthly wage system and implement it as soon as possible per week. However, the Defendant Company asserted that the agreement should be prior to the agreement on securing the amount of production following the reduction of working hours. The Defendant Company did not engage in the special negotiation with good faith, rather than in the special negotiation with good faith, it seems that there was a significant difference in the position that the concession between the two is not easy, and that the special negotiation was not carried out, and that the agreement was not reached.

2) The provision that an industrial action shall go through a separate and democratic decision by direct, secret, and unsigned ballot of its members in carrying out the industrial action shall not only promote the autonomous and democratic operation of the trade union, but also provide for more careful attention to the decision of the association regarding the commencement of the industrial action so that the participating workers do not suffer any disadvantage in relation to the legitimacy of the industrial action after the fact. Thus, an industrial action violating the above procedure shall lose legitimacy (see Supreme Court en banc Decision 99Do4837, Oct. 25, 2001, which held that an industrial action against which no pro-con voting procedure is taken by the labor union members cannot be deemed a justifiable act under the Criminal Act, unless there are objective circumstances that prevent the industrial action from being taken place. It is reasonable to view that the Plaintiffs’ labor dispute is not subject to the aforementioned decision 90Da9797, supra, with the intention of asserting that the industrial action constituted an industrial action of labor union members for a prolonged period of time, refusal to negotiate for a certain period of time, and obstruction to the production of the management.

3) From March 18, 2011, the Plaintiffs’ union continued to engage in industrial actions by repeatedly refusing to engage in remaining business and special services, collective early retirement, and refusing to input data, etc. From around May 18, 2011, the instant lock-out took place. The Plaintiffs’ union continued to engage in industrial actions by increasing the frequency of industrial actions and the duration of industrial action after the lock-out took place. On May 18, 2011, the Plaintiffs’ union resolved to engage in industrial actions at a tension rate by casting pro and pro and pro and pro and pro-con voting on industrial actions against all the members of the Defendant company. The adoption of the two major comparison system, the main purpose of which is the industrial action, does not seem to be easily resolved in a short period in light of the progress of the negotiations. The Plaintiffs’ union continued to engage in industrial actions for a period of time after the Defendant company’s management office’s extension of the production hours in the form of its management office employees, etc. In light of such circumstances, the Plaintiffs’ union continued to engage in industrial actions.

4) The Defendant Company was liable to pay a large amount of damages due to an increase in quantity caused by the failure to supply stoning to Hyundai Motor Vehicles, etc. in normal terms. At the time of the lock-out of this case due to a long-term industrial action under the Plaintiffs’ union, the amount of stoning production and inventory of the Defendant Company was significantly reduced. If the Plaintiffs’ union continues a dispute in a more aggravated form than before after May 18, 201 where it continued a dispute after the resolution of the industrial action, and during that period, prevents the Defendant Company from carrying out the production business by mobilization of the management staff, it was highly probable that the stoning situation is realistic and that the Defendant Company would not prevent the Defendant Company from gaining profits therefrom, and thus, the Defendant Company bears a large amount of damages liability increased depending on the quantity associated with the goods.

5) In full view of these circumstances, it is reasonable to view that the Defendant Company’s commencement of the instant lock-out as a means of defense and defense against the Defendant Company’s industrial action and defense against the Defendant Company’s employees to interfere with the Defendant Company’s industrial action and production activities during the lock-out period, is reasonable in view of the following: (a) comprehensively taking account of the fact that it appears that the basic wage would have been paid upon receiving the Defendant Company’s labor union’s partial strike and attitude; and (b) it would have been able to lead to a serious shock for a long time; and (c) it is reasonable to deem that it is reasonable to deem that the Defendant Company’s commencement of the lock-out as a means of defense and defense against the Defendant Company’s industrial action and defense against the Defendant Company’s employees.

6) Meanwhile, the evidence submitted by the Plaintiffs alone is difficult to recognize the fact that the Defendant Company commenced the instant lock-out with the intent to destroy the Plaintiffs’ union as alleged by the Plaintiffs. Furthermore, as long as deeming that the commencement of lock-out is reasonable as a means of defense and defense against the Plaintiffs’ union industrial action, it is difficult to deem the closure of the instant workplace to be justifiable solely on the ground that the Defendant Company has received self-written questions from the creative consulting of the labor law firm prior to the commencement of the instant break-out, such as legal review of various pending issues, or that the content of the advice should include the consideration and preparation of direct closure as a means of defense against the Plaintiffs’ union.

B) As to the Youngdong Factory

(1) Even in the case of Youngdong Factory, the circumstances of the above-mentioned 1 to 3 recognized for Asidong Factory are recognized as Ma.

However, as seen earlier, a lock-out for the Youngdong factory is merely commenced on the ground that the lock-out for the Youngdong factory is likely to occupy the Plaintiffs’ union members. Moreover, there is no evidence to acknowledge that such risk is apparent or that there is no obvious damage to the Defendant and the Defendant’s union members. At the time of the lock-out in this case, the Youngdong factory has a long distance and there was no time for inventory. In addition, most employees in the management of the Youngdong Factory, which took place the lock-out in this case, carried out the production in the Youngdong Factory, rather than the Youngdong Factory. Moreover, there is no concern or concern that the lock-out for the Youngdong Factory would take place in the Youngdong Factory before and after the lock-out for the Youngdong Factory. In light of these circumstances, there is no evidence to support that there is considerable damage to the Defendant Company as a result of the lock-out. In light of these circumstances, it is difficult to deem otherwise as the means of defense against the Plaintiff’s industrial action against the Youngdong Factory.

(2) As seen earlier, Defendant Company has asserted that the lock-out constitutes self-defense, but is not acceptable for the following reasons.

Article 761(1) of the Civil Act provides that “A person who has inevitably inflicted damage on another person in order to defend himself/herself or a third party’s interests with respect to other person’s tort shall not be liable for compensation.” In the case of a political party, the principle of supplement to defense is not necessarily applicable, but is a reasonable act that does not violate social ethics, as long as it is necessary for defense (see, e.g., Supreme Court Decision 91Da19913, Sept. 10, 1991).

However, considering the aforementioned facts in full view of the fact-finding in mind that the lock-out against the Youngdong Factory does not meet the requirements for legitimate industrial action, it is difficult to view that the lock-out against the Youngdong Factory was an inevitable act to defend its own interests or a third party’s interests, and there is no other evidence to acknowledge it otherwise.

1) Facts acknowledged by the court of this case

A) On May 18, 201, 201, following the commencement of a lock-out with respect to an Agsan factory, 200 members of the Agina District Association occupied the Agin factory out of the factory by threatening the employees of the Aginag factory who were working in the production licensee, as long as it was unable to resist in a way that the non-members and daily security guards of the Defendant company were pushed out of the Agin factory on May 18, 201, following the commencement of a lock-out with respect to the Agin factory. 200 members of the Young-dong District Association occupied the Aginag factory together with the Aginginag District Association on May 19, 201.

B) In order to conceal the body of the Plaintiff during the above occupation, Yisung, which is a daily security guard employee employed by the Defendant company, opened the Plaintiff’s union members to find out the said vehicle and Yaeng in a knife in a knife knife knife knife knife in a knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife.

C) By May 24, 2011, the Plaintiffs’ Trade Union prevented the employees of the Defendant Company, who did not belong to the Defendant Company, from entering for the management and the continuous production of the Asan Factory, and demanded the immediate implementation of the Asan Factory and the withdrawal of lock-out during the day-to-day tasks, thereby hindering the production of the Defendant Company.

D) On May 24, 2011, the occupation of the plant of the Plaintiffs’ Trade Union was resolved by taking public authority.

E) On May 27, 2011, the Plaintiffs’ union members were trying to re-enter the Asan Factory, and there was violence between the daily guards of the Defendant Company to prevent this from entering the Asan Factory. Since then, the police soldier’s ability to prevent the Asan Factory was in conflict with the police again, and there was a number of injuries in the process.

바 ) 원고들 노조는 2011. 5. 30.부터 2011. 6. 3.까지 피고 회사에게 노동조합 사무실 출입의 허용을 요구하였다. 이에 대하여 피고 회사는 대전지방법원 천안지원에 업무방 해 금지가처분(대전지방법원 천안지원 2011카합79호)을 신청하였다. 위 법원은 2011. 6. 9. 앞서 본 직장점거와 폭력사태 및 아산공장의 건물배치 등을 고려할 때 또 다른 물리적 충돌이 발생할 가능성이 있다는 이유로 아산지회 및 원고 , ▲▲▲, ◎◎ ◎ , ☆☆☆, ★★★, VVV, ▼▼▼, ◁◁◁, ◀◀◀, B , ▷▷▷, ▶▶▶에 대하여, 피고 회사가 노조사무실 대체장소를 제공하는 조건으로 아산공장에 출입하여서는 안 된다는 취지의 결정( 이하 '1차 가처분 결정'이라 한다 )을 하였다.

사 ) 원고들 노조 소속 조합원들은 2011. 5. 말경부터 2011. 7. 9.경까지 피고 회사에 복귀한 일부 조합원들 및 피고 회사의 관리직 직원들에게 '다음은 당신들 차렙니다', '노조탈퇴와 그에 대한 각오는 하소'와 같은 내용 등으로 보복을 암시하는 욕설, 협박 문자메시지를 보내고, 실명을 기재하여 '유성기업 애완견들의 명복을 빕니다'라는 플래 카드를 게시하기도 하였다.

H) On June 7, 2011, the Plaintiffs’ Trade Union reviewed the expulsions on the grounds that the members called a general meeting of members and returned to work were 'half workers' behavior.

I) On June 14, 201, the Plaintiffs’ Trade Union opened a press conference in front of the Asan Factory’s door. The Plaintiffs’ Trade Union held a press conference in that press conference to accept and withdraw a lock-out in a lump and immediate manner on the old union. ② The company’s person in charge of the operation of the car table by mobilization of the service-propon-propon-propon-propon-propon-propon-propon-propon-propon-propon-propon-propon-propon-propon-propon-propon-propon-propon-propon-propon-propon-propon-propon-propon-propon-propon-propon-prop.

(j) On the same day, 396 members of the Plaintiffs’ Trade Union, including the Plaintiffs, notified the Defendant that they will return to their work en bloc at around 14:20 of the same day.

(k) At around 15:50 on the same day, the Plaintiffs’ Trade Union continued industrial actions, such as blocking regular access to waste transport vehicles, delivery vehicles, and gas delivery vehicles, by moving the door door of an Asan Factory.

(l) The Plaintiffs’ 300 members of the Trade Union and Labor Relations Committee were 20 to 22, 201,000 members of the company, on the ground that they were to work in front of the ASEAN’s official door from June 16, 201 to June 22, 2011, and they were to work in turn before the ASEAN’s official door, demanding Defendant Company to withdraw lock-out and return to work collectively by all members of the Plaintiffs’ Trade Union and Labor Relations Committee, thereby hindering Defendant Company’s entry by the means of demanding Defendant Company to leave the lock-out and return to work collectively. They interfere with half of the parts produced in the ASEAN factory

(m) At around 07:03 on June 22, 201, 201, 100 members of the Plaintiffs’ Trade Union and Trade Union used the Plaintiff’s union members for the purpose of taking out automobile engine parts, and used the Plaintiff’s union members to assault light employees using pipes and wooden mons, etc., and attempted to enter the Asan plant, and used the Plaintiff’s union members to assault the Plaintiff’s union members to take out the automobile engine parts on the road.

n) After that, 300 members of the Plaintiffs’ Trade Union and 800 members of the New Machinery Branch from 20:30 to 22:00 of the Democratic Labor-Management Building Building Association, which were affiliated with the New Machinery Branch, attempted to pass ahead of the Agsan Factory on the roads in front of the Agsan Factory on the roads in which the Agsan Factory entered the Agsan Factory, and requested police officers to pass right ahead of the Agsan Factory for reasons of a collision of power in the relevant day. During that process, the 108 police officers and 10 members of the Agins and 10 members of the Agins were killed and wounded. Accordingly, the Hanam Police Agency expressed its opinion that the Plaintiffs’ Trade Union members around the Agsan Factory expressed their intention to block an illegal assembly, and around that time, the police police officers were dispatched to the Agsan Factory from time to time to time.

거 ) 피고 회사의 관리직 직원 100여 명과 원고들 노조의 복귀 조합원 80여 명은 2011. 6. 30 . 아산공장에서 조업 중이었는데, 원고들 노조의 출입저지행위 등으로 인하 여 식자재 및 음용수 반입에 어려움을 겪고 있었다. 대전지방법원 천안지원은 피고 회 사가 신청한 업무방해 금지가처분(대전지방법원 천안지원 2011카합104호) 사건에서 2011. 6. 30. 위와 같은 사정 및 2011. 6. 22. 의 폭력사태 등을 이유로 아산지회 및 원 고 , ▲▲▲, ◎◎◎, ☆☆☆, ★★★, VVV, ▼▼▼, ◁◁◁, ◀◀◀, BBB, ▷▷▷, ▶▶▶에 대하여, 아산공장의 시설물파손 및 피고 회사 직원들에 대한 폭력행 사와 명예훼손 행위, 피고 회사의 제품 및 원자재 반입과 출하 등을 저지하여서는 안 된다는 취지의 결정(이하 '2차 가처분 결정'이라 한다)을 하였다.

D) From July 1, 2011 to July 20, 201 of the same year, the Korean Metal Trade Union sent a public notice to the effect that “the trade union does not engage in any hostile act against you and does not think of any retaliation and requires all union members to return en bloc.” As the company continues to engage in illegal acts under the Plaintiffs’ Trade Union, the Defendant company sent a public notice to the effect that “the Plaintiffs’ Trade Union continues to hold consultations after confirmation of genuine intent for consultation between labor and management by suspending hostile acts against the Defendant company and illegal acts.” In response, the Defendant company did not comply with the request for negotiations by sending a public notice to the effect that “the Plaintiffs’ Trade Union continues to hold consultations after confirmation of genuine intention for consultation between labor and management.”

(q) From July 1, 2011 to July 14, 2011, Defendant Company proceeded with an individual interview procedure to verify the intent to return to work against the members of the Plaintiffs’ union who did not return to work until then, including the Plaintiffs, on three occasions. Accordingly, the Plaintiffs’ union expressed that the Plaintiffs’ union members were able to hear the members’ return to work, and that they were not able to comply with the individual interview.

(r) From July 1, 2011, the number of persons returning from among the members of the Plaintiffs’ labor union from July 15, 201 to July 15, 201, immediately after the completion of the individual amnesty procedure, shall be as follows:

A person shall be appointed.

(s) On July 12, 2011, the Plaintiffs’ Trade Union sent a notice of returning to work (the second notice) to the Defendant. The notice is that “I constantly proceed with an individual interview against union members even if you refuse collective bargaining required by the trade union for unclear reasons. This is recognized as not a trade union which is a party to the bargaining, and it is shown for the purpose of suppressing or dividing the activities of the trade union. In order to resolve the present situation as soon as possible through reasonable dialogue and negotiation between the labor and management, the above shall be suspended. The trade union has already decided to return to the site by holding a general meeting of union members on June 13, 201, and openly express it through the press conference. The highest decision-making body of the trade union has the mandate to decide on the legal status of a general meeting. It does not include the fact that you refuse this decision as a subjective standard that it cannot be expressed as an objective mark.”

(t) On July 22, 2011, 269 members of the Plaintiffs’ Trade Union, who were not returned to the Defendant Company, applied for provisional disposition of suspending the validity of a lock-out against the Defendant Company, and the instant conciliation was concluded on August 16, 201 in that case.

(u) On August 19, 201, the Plaintiffs’ Trade Union held a reply to the effect that, before the settlement of the instant case, “Defendant Company is pending in a disciplinary procedure and a claim for damages, and that, for the abolition of late labor, the strike has not yet been completed, and that it may not stop.”

[인정 근거] 다툼 없는 사실, 갑 제20호증, 갑 제24 내지 33호증, 갑 제44호증, 갑 제 198호증, 을 제13 내지 21호증, 을 제43, 44호증의 기재들, 제1심의 원고 ◈◈◈ 본인신 문결과, 변론 전체의 취지

2) Determination.

We examine these facts in light of the legal principles as seen earlier.

A) Whether it is reasonable for the Defendant Company to maintain the closure of work place even after June 14, 2000, which expressed that the Plaintiffs’ Trade Union and Labor Relations Adjustment expressed one-lane of work.

(1) (A) The occupation of workplace or workplace facilities is a form of an active industrial action, and the scope of the occupation is part of workplace or workplace facilities, and it is a bottled occupation that does not exclude the employer’s access or control. However, unlike this, the act that prevents a person other than a union member from entering the workplace or workplace facilities or prevents the employer from participating in the workplace or workplace facilities, or prevents the employer from controlling the employer’s control, thereby causing suspension or confusion, is deemed to exceed the bounds of legitimacy (see, e.g., Supreme Court Decision 2007Do5204, Dec. 28, 2007). Accordingly, it is reasonable for the Plaintiffs’ Trade Union to prevent a person other than a union member from entering the workplace or from exercising the control over the management of the Defendant’s workplace after the closure of the Asan factory, or to prevent the use of violence in the process of exercising the control over the work by the Defendant’s side.

(B) Even after the occupation of an Agsan factory beyond the bounds of legitimacy has been eliminated by the government authority, the Plaintiffs’ labor union attempted to enter the Agsan factory in order to re-agress the Agsan factory and caused large and small violence incidents between the daily security guards of the Defendant company and the daily security guards of the Defendant company.

(C) In light of these circumstances, the Plaintiffs’ demand for permission to enter trade union offices to the Defendant Company from May 30, 201 to June 3, 2011 was sufficiently doubtful as part of the means for the Defendant’s trade union moving back the Asan Factory. In the case of a disposition prohibiting interference with business requested by the Defendant Company regarding the above demand, the court supported the circumstance that the Defendant Company rendered the first provisional disposition that prohibits the Plaintiff Company from entering the Asan Factory on the condition that it would provide a substitute place for the Trade Union employees, on the ground that there is a possibility of other physical conflict in light of the situation of the workplace location and violence and building placement of the Asan Factory as seen earlier as seen earlier, and on the ground that there is a possibility of other physical conflict, the Defendant Company’s first provisional disposition that prohibits Plaintiff Company from entering the Asan Factory, a member of the Trade Union, from entering the said workplace.

(2) In light of these circumstances, since the plaintiffs' attitude, strike, and production obstruction, which caused the lock-out, are the strike that goes to work at the workplace, it is difficult to deem that the reason for the break-out ceases to exist solely on the ground that the parties unilaterally expressed their intention to return to work without confirming the intention of withdrawal itself, even though the plaintiffs' union notified the defendant company of his intention to return to work en bloc on June 14, 201, it is determined that there was a sufficient reason to judge whether the plaintiffs' union member's genuine intent to return to work is true. Therefore, it is difficult to deem that the defendant company maintained the lock-out of this case as it was justifiable, notwithstanding the circumstances that the plaintiffs union member was notified of the plaintiffs' intent to return to work as above (see, e.g., Supreme Court Decision 2005Do6284, Jun. 28, 2005).

(3) The Plaintiffs’ labor union attempted to occupy an Asan Factory using physical force on the day on which the Plaintiffs’ labor union expressed their intention to return to work. On June 22, 201, the Plaintiffs’ labor union tried to take advantage of physical force, such as punishment of large-scale demonstrations and causing serious violent incidents by collision with the police, etc. on June 30, 201, and the frequency and form of industrial actions conducted until the second provisional disposition was rendered on June 30, 201, and the serious violent aspects, etc. as clearly shown therein are strongly supported.

B) Whether it is reasonable for the Defendant Company to maintain the closure of the workplace even after July 12, 2000, which expressed that the Plaintiffs’ unions return to work two-lanes.

(1) (A) On June 22, 201, the Plaintiffs’ labor union (hereinafter “Defendant 1”) tried to enter an Asan Factory by using physical force before the 10th of the Asan Factory. From 201 to 7th of the 10th of the 1st of the 1st of the 1st of the 1st of the 2nd of the 2nd of the 1st of the 1st of the 2nd of the 1st of the 1st of the 2nd of the 1st of the 1st of the 2nd of the 1st of the 2nd of the 1st of the 1st of the 1st of the 2nd of the 1st of the 1st of the 2nd of the 1st of the 1st of the 2nd of the 1st of the 1st of the 2nd of the 1st of the 1st of the 2nd of the 1st of the 2nd of the 1st of the 2nd of the 1st of the 1st of the 1st of the 7th of the 1st of the 2nd.

It is supported to the purport that the plaintiffs' union did not exercise physical power any longer after the decision of the second provisional disposition was made on June 30, 201, and that the Korean Metal Trade Union, to which the plaintiffs' union belongs, sent a letter to the effect that "the trade union does not take a hostile action against the defendant company and does not think of any retaliation against the defendant company until July 20, 201 of the same year from July 1, 2011 and requires all members to return en bloc."

(B) From July 1, 2011 to March 3, 2011, Defendant Company followed individual procedures to confirm the intent to return to work against the members of the Plaintiffs’ Trade Union who did not return to work, including the Plaintiffs, etc., and the number of the members who returned to work in the process reaches a considerable degree as above.

The Plaintiffs’ Trade Union and Labor Relations Commission (hereinafter “Defendant Company”) took part in the work related to the individual face-to-face procedure implemented by the Defendant Company’s company, sent out the desire to take retaliation to its members by July 9, 201, and directed its members of the company to stop complying with the individual face-to-face procedure implemented by the Defendant Company and end to stop back. However, from the perspective of the Plaintiffs’ Trade Union and Labor Relations Act, even if its members decided to return to work upon termination of the industrial action and return to work, selective return to work according to the Defendant Company’s company’s will to cause the organizational power and pain, and thus, cannot be considered as such measures of the Defendant Company. In addition, it is unreasonable for the Defendant Company to conclude that the Defendant Company requested workers to return to work in order to confirm their intent to return to work and individually meet with its employees, and that the Plaintiffs Company continued to have been in the same position as that of the Defendant Company’s labor force in light of the circumstances that the Defendant Company’s labor force and labor force were still in existence.

Rather, the fact that the defendant company's individual interview procedure against the union members belonging to the plaintiffs' labor union is being followed due to the above individual interview procedure, or that the individual interview procedure without any more active resistance against the plaintiffs' labor union and the number of the union members returning to that procedure is considerable, shows that the organizational power and the strike power of the plaintiffs' labor union are rapidly weakened to a considerable degree.

(C) It is recognized that the difference in position is not narrow even after the lock-out between the plaintiffs' union and the defendant company with respect to the introduction of the weekly-speed 2 bridge system which caused the plaintiffs' industrial action. Moreover, it is also recognized that the plaintiffs' union members expressed their intent to continue the industrial action against the defendant company for the purpose of introducing the weekly-speed 2 bridge system even after they had returned to work according to the instant conciliation even after they had returned to work.

However, the Plaintiffs’ union is an organization organized to exercise the right to organize, collective bargaining, and collective action rights in order to maintain and improve working conditions as a trade union. Therefore, it is reasonable to deny the existence basis of the Plaintiffs’ union union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor union’s labor

Meanwhile, in light of the aforementioned circumstances, if the Defendant Company fails to maintain the lock-out of this case, it is difficult to deem that there was a serious event between the members and the management staff who returned first to their work and the non-members, and that there was no possibility of considerable damage to the Defendant Company, even if there was no possibility of considerable damage to the Defendant Company.

(D) In full view of these circumstances, around July 12, 201, when the Plaintiffs’ union expressed the Defendant’s intent to return to work again, the Plaintiffs’ union’ union’s act or hostile act was clearly frequent, and the Plaintiffs’ union’ union’ union’s act or hostile power and power has considerably deteriorated and led to the suspension of dispute and the decision to return to work. On the other hand, it is determined that the Defendant company started to take advantage of its ability to find stability gradually. Accordingly, it is sufficient to view that around that late, the conflict of power between the labor and the labor due to the union’s act of labor and the employer’s act of labor and the situation in which the employer would suffer from an unfavorable pressure. Accordingly, it is difficult to deem that the Defendant Company continued to conduct a lock-out on the ground that the Plaintiff’s act or tort continues to exist and the genuine intent for consultation between the labor and the labor union continues to be verified on the ground that it constitutes an aggressive purpose against the Plaintiffs’ union’s act of labor and the defense against the Plaintiff’s industrial action cannot be acknowledged.

(2) Meanwhile, considering the aforementioned facts in full view of the fact-finding that the Defendant Company maintained the instant lock-out even after July 12, 201, in mind that it constitutes aggressive lock-out, it is difficult to view that the Defendant Company’s maintenance of the lock-out after July 12, 201 constitutes an inevitable act to defend its own or a third party’s interests, and that it does not constitute a reasonable act that does not contravene the ethics within the extent necessary for defense, and there is no other evidence to acknowledge otherwise.

D. Calculation of the amount of wages to be paid to the plaintiffs during an improper lock-out period

1) When an employer’s unfair dismissal disposition is null and void or cancelled, the status of the employee who intends to be damaged has been continued, and the employee’s failure to provide labor between them is attributable to the employer, and thus, the employee is entitled to claim full payment of the wages that the employee may receive in the event that the employee continued to provide labor under Article 538(1) of the Civil Act. In such a context, wages for which the employee may claim payment refers to wages prescribed in Article 2 of the Labor Standards Act. As such, if the employee continues to and regularly pays to the employee and is paid in compensation for his/her work, all of them shall be included in the name of the employee, regardless of their titles, if the employer is obligated to pay in accordance with collective agreements, rules of employment, wage rules, employment contracts, labor contracts, labor practices, etc. (see, e.g., Supreme Court Decision 2011Da20034, Feb. 9, 2012). Such legal doctrine applies likewise to the case where the employee fails to provide labor due to the offset of his/her workplace.

2) As seen earlier, a lock-out for a Youngdong factory is without legitimacy from the commencement itself, and a lock-out for an Asidong factory loses legitimacy from July 12, 201.

3) The amount of the Plaintiffs’ wages paid during the 3 months immediately preceding the lock-out is as indicated in [Attachment 2]’s daily average wage table for the said period. (In the absence of dispute), the Plaintiffs’ wages paid during the said 3 months period is as indicated in

4) There is no sufficient proof by both parties on the fact that the plaintiffs would have received more or less wages than the above daily average wage, and on the basis of the above daily average wage amount, the amount of wages that the plaintiffs would have received during the lock-out period is indicated in the column of "the discount amount" in attached Table 2 when calculating the wages that the plaintiffs could receive during the lock-out period.

E. Intermediate conclusion

Therefore, the defendant company is obligated to pay damages for delay at the rate of 6% per annum under the Commercial Act from September 11, 2011 to April 24, 2014 and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment (where the debtor contests the existence of performance obligation and the above crime, the argument is accepted in the first instance court even if it is rejected at the appellate court, and in such cases, the interest rate under Article 3 (1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings cannot be applied until the appellate court is declared pursuant to Article 3 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc.).

4. Conclusion

Thus, the plaintiffs' claims shall be accepted within the scope of the above-mentioned grounds, and the claim for money shall be dismissed as there is no ground.

Since the judgment of the court of first instance is unfair with a different conclusion, the part of the judgment of the court of first instance against the plaintiffs falling under the above part of the judgment of the court of first instance shall be revoked, order the defendant company to pay the above amount, and the remaining appeal by the plaintiffs shall be dismissed. It is so decided as per Disposition

Judges

(Presiding Judge)

New Eastern Constitution

Isi-Name

Note tin

1) The unit is an opening/day with the average daily value of the month in question; hereinafter the same shall apply in this Schedule as a unit of production.

2) Units are opening/monthss; hereinafter in this Schedule the units of production are equal.

3) The number of persons to be returned together with the Asansan Factory and the Youngdong Factory. In this Schedule the same shall apply.