Plaintiff (Law Firm Hanl, Attorneys Kim Jong-sik et al., Counsel for plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Cheongju Forestry Cooperatives (Law Firm Cheong Pung, Attorneys Oi-sop et al., Counsel for the plaintiff-appellant)

June 21, 2005

Seoul Administrative Court Decision 2003Guhap38310 decided June 15, 2004

1. The defendant's appeal is dismissed.

2. Of the costs of appeal, the part resulting from the intervention shall be borne by the Intervenor joining the Defendant, and the remainder shall be borne by the Defendant.

1. Purport of claim

The decision made by the National Labor Relations Commission on November 14, 2003 between the Plaintiff and the Defendant’s Intervenor on November 14, 2003 was revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. The reasoning for the court’s explanation concerning this case is that the court’s reasoning is more insufficient to reverse the fact-finding of the first instance court even after examining each of the statements in Eul evidence Nos. 13, 14, and 15. On the other hand, the court added the fact-finding following the 6th judgment of the first instance court, and added the same facts as the reasoning for the judgment of the first instance except for the second instance court’s determination not more than 15th judgment as follows. Thus, it is cited as it is in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

A. Additional parts

“㈓ 산림조합중앙회의 조합직원인사교류(전보)지침에 조합직원의 조합간 인사교류의 기준으로 ‘5년 이상 장기근속자를 우선 교류하되 조합육성에 탁월한 공적이 있고 조합운영에 필요한 자는 제외하고, 연고지 배치를 원칙으로 하되 능력배양이 요구되는 직원에 대하여는 그러하지 않을 수 있고, 3년 이내의 근무자에 대하여나 사업당면 시기에는 이러한 인사교류를 지양한다’고 되어 있으며, 그 발령일자도 가급적 매년도 초일에 하도록 규정되어 있다.”

B. Parts of the mix

Do Governor Judgment

㈎ 전적(전적)은 원칙적으로 근로자의 동의를 얻어야 효력이 생기는 것이나, 다만 그 구성이나 활동 등에 있어서 어느 정도 밀접한 관련성을 갖고 사회적 또는 경제적 활동을 하는 일단의 법인체 사이의 전적에 있어서 그 법인체들 내에서 근로자의 동의를 얻지 아니하고 다른 법인체로 근로자를 전적시키는 관행이 있어서 그와 같은 관행이 그 법인체들 내에서 일반적으로 근로관계를 규율하는 규범적 사실로 명확하게 승인되거나 그 구성원이 일반적으로 아무런 이의를 제기하지 아니한 채 당연한 것으로 받아들여 사실상의 제도로 확립되어 있어 근로계약의 내용을 이루는 것으로 인정되는 경우처럼 특별한 사정이 있는 경우에는 근로자의 구체적인 동의를 얻지 아니하더라도 근로자를 다른 법인체로 유효하게 전적시킬 수 있다 할 것이다( 대법원 1996. 12. 23. 선고 95다29970 판결 등 참조).

In this case, the following circumstances revealed by the above facts, i.e., (i) the Plaintiff has been engaged in only work for the Intervenor’s credit business of the Intervenor, and the National Forestry Cooperatives Federation thought that personnel exchange between its members will continue to work as an intervenor’s employee without expectation. (ii) The Plaintiff was dismissed from the Intervenor’s association as a result of the audit by the National Forestry Cooperatives Federation, but was not assigned to a particular position in the court in favor of the Intervenor in the action to nullify the dismissal of the Plaintiff, but the Plaintiff was given a full-time order of this case. The Plaintiff’s full-time task of this case was changed from the credit business to the extension of 15 minutes to 3 hours each day, and the number of its employees could not be seen as being affected by the Plaintiff’s increase in transportation expenses. (iii) Even if the Intervenor did not have any understanding or understanding of the Plaintiff, it is impossible to view that the Intervenor’s employees were assigned to a labor union’s new personnel exchange practice in the previous labor union without any changes in personnel management guidelines.

㈏ 이 사건 전적명령이 인사권의 남용에 해당하는지 여부

Inasmuch as the transfer of occupation or the transfer of occupation belongs to the authority of the employer who is the personnel management authority, as a matter of principle, a considerable discretion should be recognized within the scope necessary for business. However, it is not allowed if there are special circumstances such as violation of the Labor Standards Act, etc., and whether the transfer of occupation falls within the scope of legitimate personnel rights should be determined based on the necessity of the transfer order and whether it has gone through the procedure required under the good faith principle in the course of the transfer order, such as comparison and comparison with the worker's living disadvantage, consultation with the worker himself, etc. (see Supreme Court Decision 97Da36316, Dec. 12, 1997, etc.).

In addition, the business necessity is not based on the subjective judgment of the employer, but on whether it contributes to the rational operation of the company, such as the promotion of the work efficiency caused by the proper placement of the labor force, the ability development of workers and the enhancement of the desire to work. The physical and time elements, etc. shall be considered in the worker's living disadvantage. The violation of the good faith principle is an important element of the employer's effort and its degree, the method of placement conversion, the equity with other workers, etc. In addition, the business necessity and disadvantage of the worker, and the violation of the good faith principle shall be comprehensively determined in accordance with the relative social norms according to the content and degree of the work.

According to the above facts, even if the intervenor union had three or more executives who can be established in the articles of association and the established rules upon the plaintiff's reinstatement due to the confirmation of nullity of dismissal as seen earlier, it cannot be seen that the intervenor union had three or more guidance directors (one of them is two or more guidance directors who are responsible for credit affairs) upon the non-party union's transfer of the plaintiff to the non-party union instead of leading the non-party union to the non-party union, and the change of the non-party road management, which is the guidance director (the plaintiff's transfer of one of them to the non-party union), and there is no improvement in the management or organization of the intervenor. On the other hand, it cannot be seen that the plaintiff's transfer of credit affairs and the defendant's transfer of credit affairs to the intervenor union, regardless of whether the plaintiff's transfer of credit affairs to the non-party union was made, and that the plaintiff union could not be deemed to have any other legitimate measure such as the plaintiff's transfer of credit affairs or the non-party union's transfer of credit affairs due to the reasons for which the plaintiff's transfer of credit affairs.

2. If so, the judgment of the first instance is just and the defendant's appeal is dismissed. It is so decided as per Disposition.

Judges Kim Jin-jin (Presiding Judge)