(영문) 서울고등법원 2014.12.19. 선고 2014누7185 판결

2. On December 3, 2010, the Defendant revoked a trade union resolution and a corrective order against the Plaintiff. 3. The total costs of the lawsuit are borne by the Defendant.

Purport of claim and appeal

The same shall apply to the order.

Reasons

1. Basic facts

A. Article 15 of the former Rules of the Union (amended by April 28, 2010; hereinafter referred to as the "Rules of this case") provides that "this union shall have the following organizations", and Article 23 provides that "matters to be resolved by a representative meeting shall be as follows:" "laws, matters concerning the enactment and amendment of regulations (Article 1), matters concerning the establishment of a federation organization, joining or withdrawal from the association (Article 5)", and Article 95 provides that "any proposed amendment of the Code shall be announced by the chairperson for a period of not less than seven days," and Article 95 provides that "any amendment of the Code shall be announced by the chairperson for a period of not less than 2/3 of the incumbent representatives present at the meeting and shall be approved by a majority of the representatives present at the meeting within 20 days from the date publicly announced:

B. The Plaintiff’s chairperson B proposed 10 items of the proposed amendment of the rules, such as the establishment of, joining, or withdrawing from, a group, which is stipulated as the resolution of the representatives’ meeting pursuant to Article 23 subparag. 5 of the rules of this case, as the matter of the Plaintiff’s 9th Congress held on March 4, 2010, as the result of the 99 Congress held on March 4, 2010, regarding the establishment of a group, joining, or withdrawing from, the 10 items of the draft amendment of the rules, was rejected. The 33 incumbent representatives, such as the representative C, etc. of the Plaintiff’s representative, submitted to the Plaintiff a written request for holding a conference for the purpose of the meeting “matters concerning the withdrawal of the group” to the Plaintiff, but B did not comply with the said request.

D. On April 19, 2010, the Plaintiff publicly announced that an urgent general meeting should be held, where the “matters concerning the amendment of the Regulations (including the establishment, joining, or withdrawal of a union organization)” is an agenda item, etc.

E. From April 27, 2010 to April 28, 2010, the Plaintiff held the above emergency general meeting and passed a resolution with the consent of 80.18% of the union members on the agenda for which the “matters concerning the amendment of the Code” and the “matters concerning the establishment, accession, or withdrawal of the union organizations” are modified as the matters to be resolved at the general meeting pursuant to Article 23 subparag. 1 and 5 of the Rules of this case (hereinafter “the agenda of the instant general meeting”).

F. On June 8, 2010, three representatives, C, etc. of the Plaintiff’s Congress filed an application for a corrective order with the Defendant on the ground that the instant resolution of the general assembly violated Article 23 subparag. 1, 5, and Article 96 of the instant bylaws. Accordingly, the Defendant issued a corrective order with the purport that “the instant resolution of the general assembly was issued by the Seoul Regional Labor Relations Commission on September 17, 2010, and December 3, 2010, since the instant resolution of the general assembly was procedural defect in violation of Articles 23 and 96 of the instant bylaws, the general assembly resolution of this case was issued by January 5, 201 (hereinafter “instant corrective order”).

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 to 4, the purport of the whole pleadings

2. Whether the corrective order of this case is lawful

A. The plaintiff's assertion

The corrective order of this case shall be revoked illegally for the following reasons.

1) Even though Article 16(1)1 and 6 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) provides that a representative meeting shall pass a resolution on the amendment of the bylaws, “matters concerning the establishment, admission, or withdrawal of a union organization,” it does not mean that the general meeting does not exclude the voting rights of the general meeting as to the above matters, since the enactment and amendment of the bylaws, as the highest decision-making body of the union, is consistent with the democracy, is to make a decision through the general meeting. Since Article 16 of the Rules of this case provides that the general meeting shall be the highest decision-making body of the plaintiff, it is obviously contrary to the purport of Article 16 of the Rules of this case to interpret that the general meeting cannot pass a resolution on the matters stipulated as the resolution of the representatives meeting under the Rules of this case.

2) According to Article 17 subparagraph 6 of the Code of this case, "other important matters" shall be determined as the resolution of the general meeting, and "matters concerning the modification of the Code," and "matters concerning the establishment, admission, or withdrawal of the associations of the Union" shall be deemed as corresponding thereto.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. As to whether the resolution passed by the Congress can be replaced by the resolution of the Congress

1) Relevant legal principles

Article 16 (1) of the Trade Union Act provides that "matters falling under any of the following subparagraphs shall be subject to a resolution of the general meeting" in subparagraph 1 of Article 16 (1) provides that "matters concerning the enactment and amendment of the Code" in subparagraph 2, "matters concerning the election and dismissal of executives" in subparagraph 3, "matters concerning collective agreements" in subparagraph 4, "matters concerning the establishment, management or disposition of funds" in subparagraph 5, "matters concerning the establishment, establishment, or withdrawal of a union organization" in subparagraph 6, "matters concerning the merger, division or dissolution of a union" in subparagraph 7, "matters concerning the change of organization" in subparagraph 8, "matters concerning the change of organization" in subparagraph 9, and "other matters concerning the change of organization" in subparagraph 2 shall be decided with the attendance of a majority of the incumbent members and with the consent of a majority of the members present at the general meeting: Provided, That the matters concerning the enactment and amendment of the Code, dismissal of executives, merger, dissolution, and structural change must be approved by a majority of the members present at the general meeting."

Under the above provisions of the Trade Union Act, in a case where a trade union has a board of representatives in lieu of the general meeting and has an explicit distinction between the matters to be resolved at the general meeting and the matters to be resolved by the board of representatives, it violates the rules to immediately make a resolution on the matters determined by the general meeting as the matters to be resolved

However, in light of the fact that the authority to enact and amend the rules as a resolution of a general meeting (Article 16(1)1 of the Trade Union Act is the fundamental and fundamental authority of the general meeting composed of all the union members, and that the board of representatives is established only by the rules (Article 17(1) of the Trade Union Act) and the existence and authority of the board of representatives are derived from the resolution of the general meeting on the rules of the general meeting, it cannot be deemed that the authority to amend the rules of the general meeting is extinguished even in cases where the general meeting determines "matters concerning the amendment of the rules in substitution for the general meeting through the resolution of the general meeting through the enactment and amendment of the rules," even in cases where the general meeting prescribes "matters concerning the amendment of the rules of the general meeting as the resolution of the board of representatives," and the general meeting is still able to make a resolution on "matters concerning the account" with the attendance of a majority

2) Based on the legal principles of Paragraph 1 above, even if the rules of this case separates the matters to be resolved at the general meeting and the matters to be resolved at the representatives meeting such as "matters to revise the regulations" and "matters to establish, join, or withdraw from the general meeting, with a representation meeting substituted by the general meeting, separate from the general meeting, it cannot be deemed that the power of the general meeting to amend the rules of this case has been extinguished, and the general meeting still can pass a resolution on the matters to amend the rules of this case with the attendance of a majority of the incumbent members and the consent of two thirds or more of the present members, so the resolution of the general meeting of this case cannot be deemed to violate subparagraphs 1, 5, and 96 of Article 23 of the rules of this case.

D. Therefore, without having to further examine the remainder of the Plaintiff’s assertion, the instant corrective order, which was issued under the premise that the overall resolution of the instant association cannot be permitted against the rules of the instant case, ought to be revoked in itself as unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, and it is so decided as per Disposition by the assent of all participating Justices on the revocation of the plaintiff's appeal and the disposition