[1] Whether the Minister of Employment and Labor may examine whether a person who is not eligible to join a trade union under Article 6 of the Act on the Establishment and Operation of Public Officials' Unions is admitted as a member when determining whether to accept a report on the establishment of a trade union as a public official (affirmative) and the method of examination

[2] Whether “worker” under Article 2 subparag. 4(d) of the Trade Union and Labor Relations Adjustment Act is limited to a person who maintains his/her qualification as a public official under Article 2 subparag. 2(b) of the State Public Officials Act (affirmative)

[3] Matters to be considered in determining whether a case falls under Article 2 subparagraph 4 (d) of the Trade Union and Labor Relations Adjustment Act

[4] In a case where the Minister of Employment and Labor rejected a report on the establishment of a trade union by a merger of the former National Public Officials' Union, the National Democratic Public Officials' Union, and the National Public Officials' Union, on the ground that a dismissed person who is not qualified as a member of the public official's trade union is admitted, the case holding

[1] Article 33(2) of the Constitution, the proviso to Article 5 of the Trade Union and Labor Relations Adjustment Act, and Article 17(2) of the Act on the Establishment, Operation, etc. of Public Officials’ Unions shall be construed as a special law under the Trade Union and Labor Relations Adjustment Act. In particular, Article 6 of the Act on the Establishment, Operation, etc. of Public Officials’ Unions, which provides for the scope of joining a trade union, may examine whether a person who violates the provisions of Article 6 of the Act on the Establishment, Operation, etc. of Public Officials’ Unions, is admitted as a member when determining whether to accept a report on the establishment of a trade union to which a public official is a member. Furthermore, the method of review is not provided for in the Act and subordinate statutes, and it shall be determined as a reasonable decision by an appropriate method expected to be generally accepted by the Minister of Employment and Labor.

[2] The provisions of Articles 1, 2, and 6 of the Act on the Establishment, Operation, etc. of Public Officials' Unions and Article 2 subparagraph 4 (d) of the Act on the Establishment, Operation, etc. of Trade Unions shall be interpreted reasonably in light of the legal status as to the establishment, operation, etc. of public officials' unions under Article 33(2) of the Constitution and the Special Act on the Establishment, Operation, etc. of Trade Unions and Labor Relations Adjustment Act, which provide that "the workers who are public officials shall have the right to organize only the persons determined by the Act." In relation to the public officials' trade union, the "worker" under Article 2 subparagraph 4 (d) of the Trade Union and Labor Relations Adjustment Act shall be construed to be limited to the persons who

[3] The purport of Article 2 subparag. 4 (d) of the Trade Union and Labor Relations Adjustment Act stipulating that “an employee who permits any person other than an employee to join shall not be deemed a trade union.” The purpose of Article 2 subparag. 4 (d) of the Trade Union and Labor Relations Adjustment Act is to protect the core value of a trade union, autonomy or subject, and in that it harms the autonomy and subjectness of a trade union, a person other than an employee formally joins a trade union, or is the same as an employee of a trade union although he/she does not actually join a trade union. Therefore, when determining whether a person falls under Article 2 subparag. 4 (d) of the Trade Union and Labor Relations Adjustment Act, it should be taken into account not only whether a person other than

[4] In a case where the Minister of Employment and Labor rejected a report on the establishment of a labor union by a merger of the former Korean Public Officials' Union, the Korean Democratic Public Officials' Union, and the court public officials' labor union on the ground that a dismissed person who is not qualified as a member of the labor union is admitted, the case holding that the above disposition of rejection by the Minister of Employment and Labor is lawful on the ground that it falls under Article 2 subparagraph 4 (d) of the Trade Union and Labor, on the ground that there is no defect in the method of examining the report of establishment of a labor union by the Minister of Employment and Labor and Labor, and that the dismissed person

[1] Article 2 subparag. 4 (d) and Article 5 of the Trade Union and Labor Relations Adjustment Act, Articles 6 and 17 of the Act on the Establishment and Operation of Public Officials' Unions, Article 3 (2) of the Constitution / [2] Article 2 subparag. 4 (d) of the Act on the Establishment, Operation, etc. of Trade Unions, Articles 1, 2, and 6 of the Act on the Establishment, Operation, etc. of Public Officials' Unions / [3] Article 2 subparag. 4 (d) of the Trade Union and Labor Relations Adjustment Act / [4] Article 2 subparag. 4 (d) of the Trade Union and Labor Relations Adjustment Act

[1] Supreme Court Decision 76Nu189 delivered on December 11, 1979 (Gong1980, 12545) / [2] Supreme Court Decision 2001Du8568 delivered on February 27, 2004 (Gong2004Sang, 557)

National Public Officials Trade Union (Law Firm citizen, Attorneys Jeon Young-young, Counsel for defendant-appellant)

The Minister of Employment and Labor (Law Firm Barun, Attorneys Han-soo et al., Counsel for the defendant-appellant)

June 23, 2010

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's disposition of reflection on the establishment of a trade union to the plaintiff on March 3, 2010 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a public official trade union organized by a merger of the former National Public Officials’ Union, the National Democratic Public Officials’ Union, and the Court Public Officials’ Union, and reported the establishment of a trade union to the Defendant on February 25, 2010.

B. On March 3, 2010, the Defendant rejected the report on establishment of a trade union as stated in the preceding paragraph (hereinafter “instant return disposition”), and the reasons are as follows.

1) The former Korean Public Officials’ Union was admitted by 82 dismissed persons who are not qualified as a member of the public officials’ union. However, it is determined that such persons were included in the Plaintiff’s member.

2) From among the representatives of the Plaintiff’s affiliates, it is confirmed that eight persons among the representatives of the organizations are public officials engaged mainly in the duties of directing, supervising, or controlling the performance of duties of other public officials within a department prohibited from joining a trade union pursuant to Article 6(2)1 of the Act on the Establishment and Operation of Public Officials’ Labor Unions (hereinafter “Public Officials’ Labor Unions Act”) and Article 3 subparag. 1(b) of the Enforcement Decree of the same Act (hereinafter “general managers”), and a considerable number of general managers are included in the Plaintiff’s members.

[Ground for recognition] Unsatisfy, Gap evidence 1 and 2

2. Whether the return disposition of this case is legitimate

A. The plaintiff's assertion

1) In light of the purport of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”), which adopts the reporting principle as to the right to organize and the right to organize of workers guaranteed by the Constitution, the Defendant should conduct a formal examination on the report of establishment of a trade union only based on the report and bylaws, and should not conduct a substantive examination.

2) According to the Plaintiff’s bylaws, since the dismissed person asserted by the Defendant is not a member of the Plaintiff, the dismissed person is not a member of the Plaintiff, but is in the position of victim under the bylaws, and there is no full-time member of the labor union, and only the Plaintiff’s president has authority to conduct his duties to fill

3) From among Grade 6 public officials, only a person whose main duties are to assist or assist employers is a general manager, and there is no evidence that there is eight general managers as claimed by the Defendant.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

1) Whether there is a defect in examining the defendant's report on establishment of a trade union

Pursuant to Article 10 (1) of the Trade Union and Labor Relations Adjustment Act, when a trade union is to be established, an administrative agency which has received a report of establishment pursuant to Article 12 (1) of the Trade Union and Labor Relations Adjustment Act shall submit a report stating the matters under each subparagraph of the same Article to the competent administrative agency along with the rules. An administrative agency which has received the report of establishment pursuant to Article 12 (1) of the same Act shall issue a certificate of report except for the cases under paragraphs (2) and (3) of the same Article. An administrative agency which has received the report of establishment pursuant to Article 12 (3) of the same Act shall return the report of establishment if a trade union falls under any of the items of subparagraph 4 of Article 2 of the same Act. In this case, the administrative agency which received the report of establishment shall recognize whether the trade union in question falls under any of the items of subparagraph 4 of Article 2 of the same Act, and since there is no provision of the procedure of recognition, an administrative agency shall determine whether it falls under the case by an appropriate method that can be expected to the relevant administrative agency (Supreme.

In addition, if Article 33(2) of the Constitution of the Republic of Korea, proviso of Article 5 of the Trade Union and Labor Relations Adjustment Act, and Article 17(2) of the Public Officials' Labor Union Act are interpreted systematically, the Public Officials' Labor Union Act is a special law under the Trade Union and Labor Relations Adjustment Act. In particular, Article 6 of the Public Officials' Labor Union and Labor Relations Adjustment Act, which stipulates the scope of joining the public officials' labor union, is a special provision under Article 2 subparag. 4(d) of the Trade Union and Labor Relations Adjustment Act, and therefore, in determining whether to accept the report of establishment of a trade union whose members are public officials, the defendant may examine whether a person who violates Article 6 of the Public Officials' Labor Union and Labor Relations Adjustment Act is admitted as a member. Furthermore, as to the method of examination,

According to the health department, Gap evidence 2, Eul evidence 2, and Eul evidence 8 as to this case, the defendant examined the plaintiff's trade union establishment report of the defendant, the defendant can recognize the fact that the defendant made the return of this case based on the information about the dismissed worker who had already known prior to the return disposition of this case and the information about the general manager of the work who was investigated prior to the return disposition of this case. In rendering the disposition, the administrative agency's use of the information collected by it to determine whether it falls under legal requirements is illegal, unless there are special circumstances, such as the collection method of the information is illegal, and therefore it is an appropriate method that can be expected to the administrative agency concerned generally, and such disposition is accepted or rejected, and there is no reason to deem otherwise.

Therefore, inasmuch as there is no evidence to acknowledge that the Defendant used illegal means in collecting information, which serves as the basis for the instant disposition, the Defendant’s disposition of the instant return cannot be said to have any defect in the method of examining the trade union establishment report on the ground that the Defendant was based on the information identified by the Defendant other than the application and bylaws submitted by the Plaintiff

2) Whether a dismissed person is the Plaintiff’s member

Article 2 subparag. 4 (d) of the Trade Union and Labor Relations Adjustment Act includes not only a person employed by a specific employer and actually employed, but also a person who is temporarily unemployed or who is seeking to work, as long as it is necessary to guarantee three labor rights (see Supreme Court Decision 2001Du8568, Feb. 27, 2004). However, Article 2 of the Trade Union and Labor Relations Adjustment Act provides that the legislative purpose of guaranteeing one’s basic labor rights shall be to ensure one’s labor rights under Article 1, and the main text of Article 2 of the same Act provides that the term “public official” means a public official under Article 2 of the State Public Officials Act and Article 2 of the Local Public Officials Act, and Article 6 of the same Act provides that “The term “the term “public official” means a public official under Article 2 of the State Public Officials Act and Article 2 of the Local Public Officials Act, who are public officials under Article 6(1) of the Trade Union and Labor Relations Adjustment Act, including public officials of Grade 6 and Article 2(3) of the same Act shall not be reasonably restricted to the scope of establishment of the Act.

In addition, the purport of Article 2 subparag. 4 (d) of the Trade Union and Labor Relations Adjustment Act that provides that “an employee who permits any person other than an employee to join shall not be deemed a trade union.” The purpose of Article 2 subparag. 4 (d) of the Trade Union and Labor Relations Adjustment Act is to protect the core value of a trade union, autonomy or subject, which is the core value of a trade union. Since a person who is not an employee has formally joined a trade union or does not actually join a trade union but is the same as a member of a trade union, it should be considered not only whether a person other than an employee has formally joined a trade union, but also whether a person who is not an employee is actually a member of a trade union.”

In light of the above legal principles, among the 82 retired workers who were enrolled in the National Public Officials' Union, Nonparty 1, 2, 3, 4, 5, and 6 respectively, the fact that they are placed in the main positions of the Plaintiff's representative, the head of organization, the head of planning office, the head of the negotiating office, the chairman of the unification committee, and the chairman of the labor union for the restoration to the original state of victims does not dispute between the parties. In addition, according to the evidence No. 3, the chairman of the permanent and special committee and the head of the secretariat are members of the standing executive committee and the president of the secretariat have authority to deliberate on the matters to be delegated or submitted by the standing executive committee. The standing executive committee becomes the chairman of the central committee, the central committee, the central committee, the central committee, and the central committee, and the committee members of the secretariat, who are not members of the National Assembly and the committee, are not members of the committee, and are not members of the committee or members of the committee, and are not members of the committee.

Therefore, since the plaintiff is a public official trade union that permits non-workers to join, the return of this case on this ground is legitimate.

3) Intermediate conclusion

Since there is no defect in the method of examining the defendant's report on the establishment of the trade union of this case, and the dismissal of the worker as the plaintiff's major position constitutes Article 2 subparagraph 4 (d) of the Trade Union Act, the defendant's disposition on the return of this case is legitimate (the defendant must return the report on the establishment of the trade union where there is a reason falling under any of the items of Article 2 subparagraph 4 of the Trade Union and Labor Relations Adjustment Act pursuant to Article 12 (3) 1 of the Trade Union and Labor Relations Adjustment Act. Thus, even if the plaintiff's assertion on the part of the general manager is justified, the return disposition of this case is not unlawful: Provided, That in addition, considering the plaintiff's argument on the part of the general manager, Gap evidence 1, Eul evidence 16 through 23 in full view of the purport of oral argument as to the whole, Article 6 (2) and (4) of the Trade Union and Labor Relations Adjustment Act, Article 3 subparagraph 1 of the Enforcement Decree of the same Act that part of the general manager prohibited from joining the plaintiff's union of this case.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judge Ori (Presiding Judge) Kim Young-sik