[1] Requirements for an employer’s lock-out to be recognized as a legitimate industrial action under Article 46 of the Trade Union and Labor Relations Adjustment Act, and in a case where a lock-out constitutes an aggressive lock-out beyond the defensive purpose of the trade union’s industrial action, whether legitimacy can be recognized (negative)

[2] In a case where the grounds of appeal in the supplemental appellate brief, which was not timely filed, supplements the matters stated in the grounds of appeal within the period, or includes a new assertion that is not ex officio, whether the grounds of appeal may be deemed legitimate grounds of appeal (negative)

[3] In a case where, even if a lock-out is legitimate, an employer continues to maintain a lock-out, even if the workers were to discontinue the industrial action and actually return to their work, and the nature of the lock-out has been changed to an aggressive lock-out beyond the defensive purpose of the workers’ industrial action, whether the legitimacy of the subsequent lock-out is lost (affirmative), and whether the employer may be exempted from the obligation to pay the wages during the lock-out period (negative)

[1] Article 46 of the Trade Union and Labor Relations Adjustment Act / [2] Articles 423 and 431 of the Civil Procedure Act / [3] Article 46 of the Trade Union and Labor Relations Adjustment Act

[1] [3] Supreme Court Decision 2012Da85335 Decided May 24, 2016 (Gong2016Ha, 825) (Gong2016Ha, 825) Supreme Court Decision 2013Da101425 Decided April 7, 2017 (Gong2017Sang, 940) / [1] Supreme Court Decision 98Da3431 Decided May 26, 200 (Gong200Ha, 1493), Supreme Court Decision 2003Du1097 Decided June 13, 2003 (Gong203Ha, 1540) / [2] Supreme Court Decision 93Da3943 (Gong193, 1706Ha, 1706) decided May 14, 1993;

See Attached List of Plaintiffs (Attorney Kim Sang-hoon et al., Counsel for the plaintiff-appellant)

Yusung Enterprise Co., Ltd. (Attorney Han-il et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2014Na3779 decided October 15, 2015

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the grounds of appeal on the legitimacy of commencing a lock-out for the Youngdong Factory

A. A lock-out by an employer under Article 46 of the Trade Union and Labor Relations Adjustment Act can be acknowledged as a legitimate industrial action only if there is reasonable nature as a means to defend an industrial action by workers, in light of the specific circumstances, such as the degree of bargaining and the process of negotiations between the employer and workers, the purpose and method of the industrial action by workers, and the degree of shooting that the employer receives. The legitimacy of a lock-out cannot be recognized in cases where the industrial action by the trade union constitutes an aggressive lock-out beyond the defensive purpose of the industrial action. In cases where the lock-out is not deemed as a legitimate industrial action, the employer cannot be exempted from the duty to pay wages to workers during the lock-out period (see, e.g., Supreme Court Decisions 98Da3431, May 26, 2000; 2003Du1097, Jun. 13, 2003).

B. After finding the facts as above, the court below found that the Youngdong Branch participated in an industrial action that lost legitimacy as in the Asia-dong Branch, and continued industrial action in more aggravated behavior since May 18, 201 when the industrial action was decided, and there were circumstances that it would be predicted that the Defendant company would interfere with the continuation of operation by mobilization of employees in the Youngdong Factory as well as Asan Factory. However, although the lock-out for Youngdong Factory was commenced on the ground that it might lead to the concerns that the Youngdong Factory would occupy union members, it is difficult to view it as an aggressive nature because the lock-out for the reason that the lock-out for the Youngdong Factory would lead to the concerns that the Plaintiffs would occupy union members. From May 18, 2011 to May 23, 2011, the members of the Youngdong Factory Branch participated in the Youngdong Factory and stayed in the Youngdong Factory, and that it would be difficult to view that it would be difficult for the Plaintiffs to pay wages to the members of the company during the lock-out period.

C. In light of the aforementioned legal principles and records, the judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on methods of determining the legitimacy of commencement of a lock-out, interpretation of intent, requirements for legitimacy of a lock-out, criteria for determining the reasonableness of a means of defense, prior lock-out, effect of a lock-out, occurrence of wage payment obligations arising from a lock-out,

D. The Defendant’s legal representative asserts to the effect that, in the supplemental appellate brief for the Defendant’s March 28, 2018, six of the Plaintiffs belonging to the Dong Factory were returned to work before August 21, 2011 and received benefits from the date of return from the Defendant. Thus, the Defendant’s legal representative again claimed the instant wage constitutes a double claim, the lower court erred in seeking explanation or failing to exhaust all necessary deliberations.

However, without any assertion made by the court below, any assertion that is newly made in the court of final appeal cannot be a legitimate ground for appeal against the judgment of the court below (see Supreme Court Decision 2001Da63575 delivered on January 25, 2002). The court of final appeal may investigate and determine only to the extent of appeal filed in the grounds for final appeal. Thus, the grounds for final appeal stated in the supplemental appellate brief not timely filed may not be a legitimate ground for final appeal in the case where the supplementary appellate brief filed after the deadline for final appeal contains any supplementary or new assertion that is not an ex officio examination (see Supreme Court Decision 93Da3943 delivered on May 14, 1993).

According to the records, the defendant did not present his argument that some of the plaintiffs belonging to the Youngdong Factory had already paid wages to the court below, and did not present his opinion at all in the appellate brief submitted within a legitimate period, and further, it did not seem to be an ex officio investigation, so it cannot be determined as a legitimate ground for appeal. The defendant's argument to the same effect as to some of the plaintiffs belonging to the Asidong Factory cannot be accepted on the same ground.

2. As to the grounds of appeal on the legitimacy of maintaining a lock-out for an Asan Factory

A. In light of the specific circumstances, including the act of industrial action by workers, where, even if a lock-out itself is legitimate, the employer continues to maintain a lock-out after a certain point, even if the workers were to discontinue the industrial action and actually return to their work, and thus, the nature of the lock-out is deteriorated to aggressively out of defensive purposes against the industrial action by workers, the legitimacy of the subsequent lock-out is lost, and the employer cannot be exempt from the obligation to pay the wages during the lock-out period (see Supreme Court Decision 2012Da85335, May 24, 2016).

B. After finding the circumstances as stated in its holding, it is reasonable to view that the expression of intent to return to work for the second time, expressed by the Plaintiffs’ Trade Union as of July 12, 201, was able to avoid genuine labor offer. On July 12, 2011, the act of violation or hostile act committed by the Plaintiffs’ Trade Union is considerably frequent, and the Plaintiffs’ Trade Union’ union’s ability to stop industrial action and make a decision to return to work is considerably weak, while the Defendant Company started to find stability gradually and to take superior advantage of power. Accordingly, it is reasonable to deem that the Defendant Company continued to maintain a lock-out factory for the second time around that time, on the grounds that there is sufficient reason to view that the balance of power between labor and management due to the industrial action conducted by the Plaintiffs’ Trade Union was broken and that the employer was resolved considerably unfavorable pressure, and that it constitutes justifiable for the Defendant Company 2 to be paid from 101 to 201 to 201 to 201 to 201.

C. Examining the above legal principles in light of the records, we affirm the judgment of the court below as just. Contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on the legitimacy of maintaining a lock-out, the factor of determining capacity balance,

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Kwon Soon-il (Presiding Justice)