[1] Requirements for employer’s refusal of collective bargaining to constitute a tort

[2] The case holding that a trade union's refusal of collective bargaining with the pertinent trade union does not constitute a tort, but it constitutes a tort against the pertinent trade union even after the above provisional disposition was issued to the effect that the employer's refusal of collective bargaining with the pertinent trade union before receiving a provisional disposition that "shall not refuse collective bargaining with the trade union"

[1] Where an employer’s refusal of collective bargaining is deemed to be unacceptable under the sound social norms or ordinary social norms in light of the cause, purpose, process, mode of conduct, results therefrom, etc., such refusal of collective bargaining is deemed to be an unfair labor practice, and thus satisfying the requirements for tort. If an employer refused collective bargaining with a trade union without justifiable cause and refuses collective bargaining with a trade union in violation of an executory decision or a provisional disposition, which states that the employer shall not refuse collective bargaining with the trade union, but the employer would not refuse collective bargaining with the trade union, the refusal of collective bargaining constitutes an unlawful act that is not permissible under the sound social norms or ordinary social norms, and thus, constitutes a tort against the trade union.

[2] The case holding that a trade union's refusal of collective bargaining with the pertinent trade union does not constitute a tort before an employer receives a provisional disposition that "shall not refuse collective bargaining with the trade union," but it constitutes a tort against the pertinent trade union where an employer refuses collective bargaining with the pertinent trade union after such provisional disposition was issued

[1] Article 750 of the Civil Act; Article 33 of the Constitution; Articles 29 and 30 of the Trade Union and Labor Relations Adjustment Act / [2] Article 750 of the Civil Act; Article 33 of the Constitution; Articles 29 and 30 of the Trade Union and Labor Relations Adjustment Act; Article 300 (2) of the Civil Execution Act

Plaintiff (Law Firm Busan, Attorneys Jeong Jae-sung et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm International, Attorneys Kim Jin-young et al., Counsel for the defendant-appellant)

Busan High Court Decision 2003Na8886 delivered on January 14, 2004

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

We examine the grounds of appeal.

Although an employer’s refusal of collective bargaining with a trade union without justifiable cause is deemed to be an illegal act and thus satisfying the requirements for tort, if such refusal of collective bargaining is deemed to have reached an extent that is not acceptable in light of the cause, purpose, process, mode of conduct, and the result therefrom, etc., such refusal of collective bargaining is deemed to constitute an unfair labor act that infringes on the right to collective bargaining and thereby satisfying the requirements for tort. If an employer refused collective bargaining with a trade union without justifiable cause and refuses collective bargaining with a trade union in violation of an executory decision or a provisional disposition, which states that it shall not refuse collective bargaining with a trade union and shall not refuse collective bargaining with a trade union, but the refusal of collective bargaining constitutes an unlawful act that is not acceptable in light of sound social norms or social norms, and thus, such refusal of collective bargaining constitutes a tort against a trade union.

However, according to the facts acknowledged by the court below, the plaintiff's refusal of collective bargaining with the plaintiff in violation of the above provisional disposition order is not an act of refusing collective bargaining without justifiable grounds, and it seems that the defendant had the right to collective bargaining against the defendant since it does not constitute multiple trade unions prohibited from establishment under Article 5 (1) of the Addenda of the former Trade Union and Labor Relations Adjustment Act (amended by Act No. 6456 of March 28, 2001), and the defendant, on February 11, 200, after receiving a provisional disposition order order stating that "It does not constitute multiple trade unions prohibited from establishment, so the defendant shall not refuse collective bargaining with the plaintiff on the ground of the simplification of collective bargaining windows." Thus, the defendant's refusal of collective bargaining against the above provisional disposition order after the above provisional disposition order constitutes an unlawful act of refusing collective bargaining with the plaintiff and the defendant's refusal of collective bargaining since it cannot be viewed as an act of infringing the plaintiff's right to collective bargaining with sound social norms or social norms, and it constitutes multiple trade unions' associations prohibited from establishment.

Therefore, although the defendant's refusal of collective bargaining with the plaintiff after the above provisional disposition constitutes a tort against the plaintiff, the court below held that the defendant's refusal of collective bargaining with the plaintiff before the above provisional disposition was not an unlawful act in the purport that not only the refusal of collective bargaining with the plaintiff prior to the above provisional disposition but also the refusal of collective bargaining with the plaintiff after the above provisional disposition cannot be seen as an act that led to the degree that sound social norms and social norms are not acceptable. Thus, the court below erred by misapprehending the legal principles as to the elements for establishing a tort in relation to the refusal of collective bargaining

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)