[1] Whether a trade union that was absorption or established by a merger may take over a litigation procedure to which the trade union was a party before the merger (affirmative), and the requirements for establishing a public official trade union newly established by a merger

[2] Whether a member of a public official labor union is limited to a person who maintains his/her status as a public official pursuant to Article 2 of the State Public Officials Act (affirmative in principle)

[3] The case holding that in a case where the former Korean Public Officials' Union filed a revocation lawsuit against a corrective order issued by the local labor union, and thereafter the former Korean Public Officials' Union, the Korean Democratic Public Officials' Union, and the new Korean Public Officials' Union newly established following the merger of the former Korean Public Officials' Union, the application for the resumption of the lawsuit should be dismissed on the ground that the former Korean Public Officials' Union cannot be deemed to have been merged into a new

[1] In the event a trade union is dissolved following a merger, the property relationship of the extinguished trade union and the status of the principal agent of the collective agreement concluded by the trade union is succeeded to the labor union or the newly established trade union. As such, a trade union incorporated by the merger may take over the legal proceedings of the trade union prior to the merger (Article 234 of the Civil Procedure Act). However, a trade union newly established by the merger of a trade union shall also complete the requirements of a trade union (actual requirements) under Article 2 subparag. 4 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Act”) and the report of establishment under Article 10 of the Trade Union and Labor Relations Adjustment Act (commercial requirements), and if the newly established trade union fails to meet such requirements, the effect of the merger of a trade union may not occur if the newly established trade union fails to meet such requirements. This legal doctrine also applies to a trade union as a public official under the former Act on the Establishment and Operation, etc. of Public Officials’ Trade Unions (amended by Act No. 10133, Mar. 17, 2010).

[2] Except as otherwise provided by Article 6(3) of the former Act on the Establishment, Operation, etc. of Public Officials’ Unions (amended by Act No. 10133, Mar. 17, 2010), it is reasonable to interpret that the qualification of a member of a public official trade union is limited to a person who maintains the qualification of a public official under Article 2(b) of the State Public Officials Act.

[3] The case holding that in a case where a new Korean Public Officials' Union newly established following a merger of the former Korean Public Officials' Unions, the Korean Democratic Public Officials' Unions, and the Korean Public Officials' Unions' Unions' newly established following the merger of the former Korean Public Officials' Unions' Unions, the new Korean Public Officials' Unions' Unions' request for taking-over of the lawsuit, the new Korean Public Officials' Unions' Union shall dismiss the lawsuit on the ground that the former Public Officials' Unions' Unions' excluding the former Public Officials' Unions' Union Act (amended by Act No. 1013, Mar. 17, 2010; hereinafter "Public Officials' Unions' Union Act") shall be subject to taking-over of the "public officials engaged in general affairs of other public officials" under Article 6 (2) 1 of the Act on the Establishment and Operation of Public Officials' Unions, and thus, it cannot be deemed a legitimate public official trade union, and since the Minister of Employment and Labor fails to accept a report on the establishment of a labor union following the merger and merger of labor unions, it shall not be deemed a new public official trade union.

[1] Article 234 of the Civil Procedure Act; Articles 2 subparag. 4 and 10 of the Trade Union and Labor Relations Adjustment Act; Article 17(2) of the former Act on the Establishment, Operation, etc. of Public Officials’ Trade Unions / [2] Article 2 of the State Public Officials Act; Article 2 of the Local Public Officials Act; Article 2 of the former Act on the Establishment, Operation, etc. of Public Officials’ Unions (Amended by Act No. 10133, Mar. 17, 2010); Article 6(3) of the former Act on the Establishment, Operation, etc. of Trade Unions of Public Officials / [3] Article 234 of the Civil Procedure Act; Articles 2 subparag. 4 and 10 of the Trade Union and Labor Relations Adjustment Act; Article 2 of the State Public Officials Act; Article 2 of the Local Public Officials Act; Article 6(2)1 of the former Act on the Establishment, Operation, etc. of Trade Unions of Public Officials (Amended by Act No. 1013, Mar. 17, 2010)

Korean Public Officials Workers' Union

National Public Officials Trade Union (Law Firm Hayn, Attorneys Maju-cheon, Counsel for defendant-appellant)

The Minister of Employment and Labor (Law Firm Cheong, Attorney Choi Jung-young, Counsel for the defendant-appellant)

Seoul Pedestrian District Court Decision 2009Guhap42106 Decided October 7, 2010

June 29, 2011

1. Revocation of the first instance judgment.

2. The request for succession filed by the plaintiff applicant is dismissed.

3. The case shall be remanded to the Seoul Administrative Court.

4. Of the total cost of the lawsuit, the part arising between the Plaintiff’s applicant for taking over the lawsuit and the Defendant is borne by the Plaintiff applicant.

1. Purport of claim

The part of the corrective order concerning the collective agreement in Ansan-si, Gyeonggi-do, which was issued on July 16, 2009, among the corrective order concerning the collective agreement of Ansan-do, [Attached Form] among the corrective order concerning the collective agreement of the Daegu-gu, Daegu-do, which was issued on July 24, 2009, and the part of the attached Form 2 among the corrective order concerning the collective agreement of the Daegu-do, Daegu-do, which was issued on July 24, 2009, and [Attached Form] among the corrective order concerning the collective agreement of the Seoul-do, and the part of the attached Table 4 among

2. Purport of appeal

Of the judgment of the first instance, the part concerning the corrective order concerning the collective agreement of Jeonnam-do shall be revoked, and the defendant shall revoke the part concerning the corrective order concerning the collective agreement of Jeonnam-do on July 24, 2009 (attached Form 3).

1. Details of disposition;

A. On November 8, 2007, the Plaintiff’s National Public Officials’ Union (hereinafter “former Public Officials’ Union”) is a public official trade union, the establishment of which was reported pursuant to the former Act on the Establishment, Operation, etc. of Public Officials’ Unions (amended by Act No. 10133, Mar. 17, 2010; hereinafter “Public Officials’ Union Act”).

B. On December 2008, the branch of the Gyeonggi-gu Gyeonggi-si Headquarters under the former Major Labor-Management entered into a collective agreement, including the provisions set forth in the table of the head of the Ansan-si and the head of the Daegu-do regional headquarters around September 2008; the head of the Gun to be achieved on September 2008; the head of the Gun to be established on December 2008; and the head of the Jeonan-si regional headquarters in the Jeonan-si branch in the Jeonan-si, the Jeonan-si branch in the Jeonyang-si, the Jeonyang-si branch in the Jeonyang-si, the Jeonan

(c) Corrective order;

1) The Gyeonggi Regional Labor Relations Commission requested the Defendant to examine the illegality of a collective agreement, and decided that part of the collective agreement (attached Form 1), including the provisions in the list of names of collective agreements, was unlawful. Accordingly, the Defendant issued a corrective order under Article 31(3) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Relations Adjustment Act”) to the major labor union on July 16, 2009.

2) The Gyeongbuk Regional Labor Relations Commission requested the Defendant to examine the illegality of a collective agreement, and decided that part of the collective agreement (attached Form 2) including the provisions listed in the 2 List was unlawful. Accordingly, the Defendant issued a corrective order under Article 31(3) of the Trade Union and Labor Relations Adjustment Act against the major labor union on July 24, 2009 [attached Form 2] on the ground that the reasons in the 2 List column were stated.

3) The Jeonnam Regional Labor Relations Commission requested the Defendant to examine the illegality of a collective agreement, and decided that part of the collective agreement (attached Form 3) including the provisions in the list of names in the collective agreement was unlawful. Accordingly, the Defendant issued a corrective order under Article 31(3) of the Trade Union and Labor Relations Adjustment Act against the former major labor union on July 24, 2009 [attached Form 3] on the ground that the reasons in the column of reasons for the corrective order

4) The former North Regional Labor Relations Commission requested the Defendant to examine the illegality of a collective agreement, and decided that part of the collective agreement (attached Form 4), including the provisions in the list of the 4 List, was unlawful. Accordingly, the Defendant issued a corrective order under Article 31(3) of the Trade Union and Labor Relations Adjustment Act against the former major labor union on July 30, 2009 [attached Form 4] on the ground that the reasons in the column for the corrective order in the

D. On December 1, 2009, the former major labor union submitted a report of dissolution to the Defendant on December 1, 2009, when it was established by the National Democratic Public Officials Labor Union and the National Public Officials Labor Union, and the former major labor union was dissolved. On December 24, 2009, the Korean Public Officials Labor Union (hereinafter “New Labor Union”) which is the Plaintiff’s litigant’s litigant’s litigant’s Claimant’s Claimant’s Claimant’s Appellant’s Claimant’s Appellant’s Appellant’s Appellant’s Appellant’s Appellant’s Appellant’s Appellant’s Appellant’s Appellant’s Appellant’s Appellant’s Appellant’s

E. On February 25, 2010, a new major labor union submitted a new labor union establishment report to the Defendant, but the Defendant rejected the labor union establishment report on March 3, 2010 on the following grounds.

1) The former major labor union was admitted by 82 dismissed workers who are not qualified as a member of the public official labor union, but they are included as a member of the new major labor union.

2) It was confirmed that eight of the representatives of the affiliates of the new major labor union is prohibited from joining the labor union pursuant to Article 6(2)1 of the Act on the Establishment, Operation, etc. of Public Officials’ Labor Unions and Article 3(1)(b) of the Enforcement Decree of the Act on the Establishment, Operation, etc. of Public Officials’ Labor Unions (hereinafter “Enforcement Decree of the Public Officials’ Labor Union Act”), and that the representative is a public official who primarily engages in the duties of other public officials within the department (hereinafter “general manager”), and that a considerable number of general managers are included in the members of the new major labor union.

F. Although a new major labor union filed a lawsuit with the Seoul Administrative Court against the defendant seeking revocation of a disposition to report the establishment of the labor union on March 3, 2010, the claim was dismissed (Seoul Administrative Court Decision 2010Guhap11276, Jul. 23, 2010). The appeal was dismissed, but the appeal was dismissed (Seoul High Court Decision 2010Nu25239, Feb. 16, 201). The appeal is pending in the Supreme Court (Supreme Court Decision 2011Du6998, Feb. 16, 201).

[Reasons for Recognition: Evidence No. 15-1 to 4, Evidence No. 16-1 to 4, Evidence No. 17-1 to 4, Evidence No. 18-1 to 4, Evidence No. 28 through 34, Evidence No. 4 and Evidence No. 5, and the purport of the whole pleadings]

2. Judgment on the plaintiff's application for taking over the lawsuit

A. The plaintiff's successor's assertion

The applicant for taking over the plaintiff's lawsuit asserts that the applicant for taking over the plaintiff's lawsuit naturally succeeds to the plaintiff's legal status and applies for taking over the plaintiff's lawsuit since the former major elderly person's application for taking over the lawsuit was established by a merger resolution of the former major labor union, the Korean Democratic Public Officials' Union and the

B. Legal principles

Two or more trade unions shall be dissolved and terminated without liquidation procedures in accordance with certain procedures, and the continuation or establishment of one trade union as a single trade union shall be referred to as a merger of trade unions, and Article 28 (1) 2 of the Trade Union and Labor Relations Adjustment Act provides that the merger or division of a trade union shall be one of the grounds for dissolution of a trade union when the trade union becomes extinct.

If a trade union is dissolved by a merger, the property relationship of the trade union to be extinguished by the merger and the status of the principal agent of the collective agreement concluded by the trade union is succeeded to the absorption trade union or the newly established trade union. As such, the trade union that was incorporated by the merger may take over the litigation procedures that the trade union was a party (Article 234 of

However, a trade union to be established following the merger of a trade union is also a trade union under Article 2 subparag. 4 of the Trade Union and Labor Relations Adjustment Act and a report on establishment pursuant to Article 10 of the Trade Union and Labor Relations Adjustment Act (a type requirement), and if the newly established trade union fails to meet such requirements, the merger effect of the trade union may not occur. The same legal doctrine applies to a public official trade union under the Public Official Trade Union and Labor Relations Adjustment Act (Article 17(2)).

C. Whether a dismissed person is included

Since the defendant rejected the establishment report of a trade union by deeming that the dismissed person and the general manager of the affairs are included in the labor union which is the applicant for taking over the plaintiff's lawsuit as its members, it first examines whether the dismissed person is included in the plaintiff

1) The main text of Article 2 of the Act on the Assistance to Public Officials’ Unions stipulates that “public officials” refer to public officials stipulated in Article 2 of the State Public Officials Act and Article 2 of the Local Public Officials Act, and Article 6 stipulates that public officials, including public officials of Grade VI or below, shall be organized as public officials’ labor unions, except where public officials dismissed, dismissed, or dismissed and requested the Labor Relations Commission to remedy unfair labor practices pursuant to Article 82(1) of the Trade Union and Labor Relations Adjustment Act (Article 82(3)).

Therefore, it is reasonable to interpret that the qualification of members of the public official labor union is limited to those who maintain the public official qualification under Article 2 of the State Public Officials Act and Article 2 of the Local Public Officials Act except as provided in Article 6 (3) of the Public Officials' Labor Unions Act.

2) In full view of the facts that there is no dispute between the parties, the following facts are recognized in each entry in the evidence Nos. 4, 5, and 14, and the entire purport of the pleading.

① Of the public officials belonging to the former major labor-management, Nonparty 1 is the chief of the organization, Nonparty 2 is the chief of the planning office, Nonparty 3 is the chief of the negotiation office, Nonparty 4 is the unification chairperson, and Nonparty 5 is the chairman of the strike for restitution of victims. They are the members who are the applicants for taking over the Plaintiff’s lawsuit (According to Article 40 of the Regulations enacted by the applicants for taking over the Plaintiff’s lawsuit, the chairperson may employ full-time employees to perform their duties, but it is difficult to view them as full-time employees

② Article 5(1) of the Act provides that “the provision on the relief of victims, which was enacted on March 31, 2010 by the Plaintiff applicant for taking part in a lawsuit, provides that if a member is dismissed or dismissed due to dismissal or sentence of punishment due to the implementation of the matters resolved by the decision-making body of the association, and the official guidelines of the organization of the association, the relevant member shall be deemed victims (Article 3); the victim shall be faithfully engaged in the activities of the association (Article 5(1)); the victim shall be determined by the chairperson in consideration of his/her own intent (Article 5(2)).

3) According to the above facts, the non-party 1, 2, 3, 4, and 5, who is a dismissed public official, are the members of the Plaintiff’s application for taking over the Plaintiff’s lawsuit, and they have considerable status and authority within the scope of the Plaintiff’s application for taking over the Plaintiff’s lawsuit. Moreover, in the “Relief Regulation for Victims” enacted on March 31, 2010 by the Plaintiff applicant for taking over the Plaintiff’s lawsuit, the public official has a basis for carrying out certain activities of the association. The Plaintiff applicant for taking over the lawsuit also includes a person who does not fall under the scope of the membership stipulated under the Public Officials’ Labor Union Act,

(d) Whether the general manager is included;

Next, we examine whether the plaintiff's successor for taking over the lawsuit includes the general manager.

1) Article 6(2)1 of the Public Officials’ Labor Union Act provides that a public official who exercises the right to direct and supervise other public officials or is in charge of general affairs of other public officials may not join a trade union. Article 3(1) of the Enforcement Decree of the Public Officials’ Labor Union Act provides that a public official who exercises the right to direct and supervise other public officials or is in charge of general affairs of other public officials who are prohibited from joining a trade union pursuant to Article 6(2) and (4) of the Public Officials’ Labor Union Act provides that a public official who is in charge of exercising the right to direct and supervise other public officials or is in charge of general affairs of other public officials; and a public official who is subject to the authority to direct and supervise other public officials in accordance with statutes, municipal ordinances or rules and is in charge of managing the relevant public official’s service (including a representative; (a) item (b)); and

2) In full view of the facts in dispute between the parties, the following facts are recognized, taking into account the entries in Eul-4 through 14 (including each number), and the purport of the entire pleadings:

① Nonparty 6 shall be the head of the Dong-si branch office in Ansan-si, the applicant for the Plaintiff’s lawsuit, and Nonparty 6 shall be the tax-grade 6 public official. Nonparty 6 shall belong to the Ansan-dong Viewing Department and preside over the coordination and meeting as the general manager of the affairs of the Eup/Myeon/Dong-si in charge of the assignment affairs, and the public officials under the same Article shall exercise the authority to direct and supervise the affairs of the public officials under his/her control, such as the annual leave and the business trip.

② Nonparty 7 is a public official of Grade VI in administration as the head of the Ansan-si branch office, the Plaintiff’s application for the continuation of the lawsuit. Nonparty 7 is a person in charge of the construction of Ansan-si and geographic information, includes the establishment of a comprehensive geographic information plan, and the establishment of a geographic information system, and takes overall charge of the maintenance and management of a utility tunnel and survey sign, and exercises a specific authority to direct and supervise the employees under his/her control, such as annual leave and business trip, with respect to the employees under his/her control.

③ Nonparty 8 is the head of the branch office of the Jung-Gun Office of the Plaintiff who is the applicant for the suspension of the Plaintiff’s lawsuit. Nonparty 8 takes charge of the affairs related to agricultural sales promotion in the agricultural policy of the Jung-Gun Office, and the department in charge of affairs related to the affairs related to interim approval of the work status, such as annual and business trips, etc.

④ Nonparty 9 is the head of the Seocheon-gun Office branch office, the Plaintiff’s filing of a motion to resume the lawsuit, and Nonparty 9 is a public official of Grade VI in the administration. Nonparty 9 is a person in charge of duties in the residents’ living support office of Ycheon-gun, the intermediary manager, and has overall control over 16 affairs, including the formulation and implementation of social welfare service plans, the discovery of

⑤ On January 21, 2010, Nonparty 10 is a public official of Grade VI in administration, who resigns the office of the head of the Jincheon-gun Office Branch Office for the Plaintiff’s application to resume the Plaintiff’s lawsuit. Nonparty 10, as a public sewerage facility of the Jincheon-gun Office for Water and Wastewater Works, shall promote the formulation of a master plan for sewerage maintenance, construction design, examination, inspection, purification of contaminated rivers, maintenance of sewerage facilities, and management of sewerage facilities, and shall exercise the authority to direct and supervise the interim approval and performance of duties related to the work status,

6. Nonparty 11 is the head of the Daegu-gu Office of Education of the Daegu-gu Office of Education, which is the applicant for taking over the Plaintiff’s lawsuit. Nonparty 11 takes overall charge of the affairs of the administrative office as the head of the Daegu-dong Elementary School, which is the head of the administrative office of the Daegu-dong Elementary School, and is in charge of the affairs of the expenditure officer, such as contracts, remuneration, and expenses, and exercises the authority of interim approval and supervision of the affairs

7. Nonparty 12 shall be an administrative public official of Grade VI belonging to the Yangcheon-gu Office for Request for Takeover of Plaintiff Litigation. Nonparty 12 shall exercise overall control over the automobile maintenance business, automobile management business, automobile management business, automobile management business, automobile management business, and automobile management business, and manage and supervise the duties of the special project police officer.

8) Nonparty 13 shall be a public official of Grade VI in the administration of the Goi-gu Office of Goi-gun, Goi-gu, Seoul, the application for taking part in the Plaintiff’s lawsuit. Nonparty 13 shall be responsible for the management and supervision of the employee as the

3) According to the above facts, Nonparty 6, etc., who is a member of the Plaintiff’s application for taking over the Plaintiff’s lawsuit, is in the position of a general manager based on the division of duties, etc. The Plaintiff’s application for taking over the Plaintiff’s lawsuit is subject to a public official who is in charge of overall affairs of other public officials as prescribed in Article 6(2)1 of the Public Officials’ Union Act, and it cannot be deemed as a legitimate public official labor union under the Public Officials’ Union Act.

E. Whether a request for resumption of a lawsuit is legitimate

The applicant for succession of the Plaintiff’s lawsuit cannot be deemed a legitimate public official labor union under the Public Officials’ Labor Union Act, and the Defendant did not receive a report on the establishment of a labor union due to the merger and merger of a labor union, and thus, did not meet the requirements for establishment of a public official labor union (see Supreme Court Decision 93Do855 delivered on June 28, 196).

Therefore, it cannot be deemed that the plaintiff was merged with a trade union which is an applicant for taking over the lawsuit of the plaintiff, and on this premise, the application for taking over the lawsuit filed by the applicant for taking over the lawsuit should be dismissed [Article 12(4) of the Trade Union Act provides that even if the trade union is deemed to have been established at the time of receipt of the report of establishment at the time of receiving the report of establishment as the plaintiff's applicant for taking over the lawsuit against the defendant (Article 12(4) of the Trade Union Act provides that the report of establishment shall be deemed to have been made at the time when the report of establishment is received), and in light of the stability of the litigation procedures, from the time the lawsuit becomes final and conclusive, the plaintiff's applicant for taking over the status of the plaintiff, and the report of establishment of the trade

3. Conclusion

The request for taking over a lawsuit filed by the plaintiff applicant for taking over a lawsuit shall be dismissed on the grounds that it is without merit, and the plaintiff's claim shall be

Unlike this conclusion, the first instance judgment rendered a judgment dismissing the Plaintiff’s claim against the Defendant on the premise that the Plaintiff’s request for resumption of lawsuit filed by the Plaintiff’s requester for resumption of lawsuit was lawful, and did not determine the Plaintiff’s claim against the Defendant.

Therefore, the first instance judgment is revoked, and the case is remanded to the Seoul Administrative Court by analogy applying Article 418 of the Civil Procedure Act by analogy (see Supreme Court Decision 2000Da21802, Oct. 25, 2002).

The plaintiff's applicant for taking over a lawsuit is dismissed, and the costs incurred between the plaintiff's applicant for taking over a lawsuit and the defendant shall be borne by the plaintiff applicant for taking over a lawsuit.

[Attachment 1] List 1: omitted

[Attachment 2] List 2: omitted

[Attachment 3] List 3: omitted

[Attachment 4] List 4: omitted

Justices Kim Jong-ho (Presiding Justice)