The purport of the proviso of Article 3 subparagraph 4 of the former Trade Union Act and whether the status of a trade union member is lost in case where a worker is dismissed and is dissatisfied with the validity of the dismissal by filing a lawsuit to nullify the dismissal within a reasonable period of time (negative)

The purpose of the proviso of Article 3 subparag. 4 of the former Trade Union Act (repealed by Act No. 5244 of Dec. 31, 1996) is to prevent an employer from preventing the establishment or continuation of a trade union by dismissing an employee without justifiable cause. In a case where an dismissed employee makes a request for remedy for unfair labor practice to the Labor Relations Commission within a reasonable period from the time of dismissal, or files a lawsuit seeking confirmation of invalidity of dismissal with the court, and contests the validity of the dismissal, it is intended to guarantee the status of the dismissed employee by deeming the dismissed employee as holding the status or a member of the trade union, regardless of the dismissal. Thus, even if an employee was dismissed from the company, if the employee is dissatisfied with the validity of the dismissal by filing a lawsuit seeking confirmation of invalidity of the dismissal within a reasonable period of time, it shall not be deemed that the employee loses his status as a member of the trade

Article 3 subparag. 4 of the former Trade Union Act (repealed by Act No. 5244 of Dec. 31, 1996)

Supreme Court Decision 91Do326 delivered on November 8, 1991 (Gong1992, 152) Supreme Court Decision 91Da14413 delivered on March 31, 1992 (Gong1992, 1397), Supreme Court Decision 93Da26496 delivered on September 30, 1994 (Gong194Ha, 2820)

Plaintiff 1 and one other (Attorney Lee Jae-won, Counsel for the plaintiff-appellant)

Korea Post Trade Union (Attorney Park Jong-won, Counsel for defendant-appellant)

Seoul High Court Decision 96Na31866 delivered on October 29, 1996

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

The purpose of the proviso of Article 3 subparagraph 4 of the Trade Union Act is to ensure the status of an employee, regardless of the dismissal, in a case where the dismissed employee makes an application for remedy for unfair labor practices to the Labor Relations Commission within a reasonable period of time from the dismissal, or claims the validity of the dismissal by filing a lawsuit seeking nullification of the dismissal with the Labor Relations Commission, rather than to prevent the employer from preventing the establishment or continuation of a trade union by dismissing the employee without any justifiable reason.

Therefore, even if a worker was dismissed from a company, if the worker is dissatisfied with the validity of dismissal by filing a lawsuit seeking confirmation of invalidity of dismissal with a court within a reasonable period of time, it cannot be deemed that the worker loses its status as a trade union member in light of the purport of the above provision of law (see, e.g., Supreme Court Decisions 91Da14413, Mar. 31, 1992; 93Da26496, Sept. 30, 1994).

According to the reasoning of the judgment below, the court below held that, based on evidence, the defendant is a trade union consisting of employees of Grade III or below of the non-party Korea Venture Co., Ltd. (hereinafter "non-party Co."), the plaintiffs were members of the defendant Co., Ltd., and they were subject to disciplinary action against the non-party Co., Ltd. on November 26, 1994. The plaintiffs filed a lawsuit to nullify dismissal of the non-party Co., Ltd. on March 23, 1995 and filed a lawsuit to nullify dismissal as Seoul District Court 95Gahap25478 on March 23, 1995, and the plaintiffs filed a request for registration on the register of representatives of the defendant Co., Ltd. with a postal money order around March 20, 195. However, in light of Article 7 of the rules of the defendant Co., Ltd., Ltd., which stated that "the defendant Co., Ltd. was automatically subscribed with the employment contract at the same time, and withdrawal at the same time, the plaintiffs's qualifications were not legitimate.

Therefore, the appeal is dismissed and all 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.

Justices Jeong Jong-ho (Presiding Justice)