(영문) 대전고등법원 2015.9.10. 선고 2015누11408 판결

A. On February 25, 2013, executives of the Committee (non-governmental organizations organized for the development of Section C, such as securing additional safety of joint owners of Section B and early completion of construction) establish the Plaintiff, who is a regional unit trade union, and was issued a certificate of report on the establishment of a trade union from the D market on February 26, 2013. As of April 4, 2013, the number of the Plaintiff’s members is 20.

B. On April 4, 2013, the Plaintiff issued a new application for a labor supply business under Article 33 of the Employment Security Act (hereinafter “instant application”) to the Defendant: 450 persons per month, 5,400 persons per year, 7 companies to be supplied: E, F, G, H, I, J, K, and C: C Port.

C. On May 27, 2013, the Defendant rendered a disposition rejecting the instant application by applying Article 33 of the Employment Security Act (hereinafter “instant disposition”) against the Plaintiff on the grounds as follows.

① In the case of paragraph (3), it may be deemed that there are factors to increase the number of workers due to the increase in the volume of water operated, the extension of wharfs, etc. However, the increase in the number of supply personnel does not necessarily mean that the new permit for the supply business is complete. ② The Plaintiff’s executive officers, etc. cannot be deemed to be capable of professionally conducting the terminal-related business under the B Committee. ③ In the case of some wharfs including the supply companies, it is impossible to deem that the supply of workers is complete with the completion of the reorganization of the port manpower supply system, and even in the case of other wharfs, it is determined that there is a high possibility for a large number of

D. The Plaintiff filed an administrative appeal against the instant disposition on July 1, 2013, but was dismissed on February 18, 2014. 【Grounds for Recognition】 In the absence of dispute, the Plaintiff’s entries in subparagraphs 1 through 3, 1 and 6, and the purport of the entire pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The nature of the instant disposition: The new permission for domestic labor supply business is a binding act that must be granted upon meeting the requirements for permission under the law, or a binding discretionary act that must be granted a license in principle. The Plaintiff satisfies all the requirements for permission for domestic labor supply business, such as the scope of business of a trade union, the status of the supply and demand of human resources by occupation by region and the maintenance of employment stability by region.

2) Non-existence of the grounds for disposition

Although the Defendant cannot be deemed as having been able to carry out the business related to wharfs professionally, this does not constitute the requirements for permission stipulated in Article 33 of the Employment Security Act. Even if this is considered as the requirements for permission, the Plaintiff satisfies the requirements for permission, since it has expertise in C

(iii) the deviation and abuse of discretionary authority;

설령 국내 근로자공급사업 신규허가처분이 재량행위라고 하더라도, 원고는 국내 근로자공급사업의 허가요건을 충족하여 국내 근로자공급사업 허가를 받을 수 있는 노동조합에 해당하는 점, 제3차 항만기본계획 등에 따라 D 지역 항만시설 등이 계속하여 증가될 예정에 있고, 원고의 사업구역과 기존 노동조합의 사업구역이 중복되더라도 그로 인하여 기존 노동조합의 조합원들에게 미치는 경제적 영향은 미미하여 이 사건 신청이 허가된다고 하더라도 C항에 대한 항만인력 공급의 과잉이 초래되지는 않는 점, 이 사건 신청이 허가될 경우 항만인력을 공급하는 노동조합 사이의 경쟁체제가 이루어짐에 따라 기존 노동조합이 행한 기존의 폐습, 폐단이 줄어들 수 있는 점, 노동조합 및 노동관계조정법(이하 '노동조합법'이라 한다)의 복수노조 교섭창구의 단일화 절차 규정에 따라 노동조합 사이의 갈등이나 물리적 충돌을 해소할 수 있는 점 등에 비추어 볼 떄, 이 사건 처분은 피고가 달성하려고 하는 공익적 목적에 비하여 원고의 사익을 과도하게 제한함으로써 형평의 원칙, 비례의 원칙 등에 위반하여 재량권을 일탈·남용한 위법이 있다.

4) Therefore, the instant disposition should be revoked in an unlawful manner.

B. Relevant statutes

It is as shown in the attached Form.

1) According to the third basic harbor plan publicly notified by the Ministry of Land, Transport and Maritime Affairs (No. 2011-402), harbor facilities, etc. will continue to increase in the area under the plan to take full charge of the water movement of D steel scrap in the area under the plan to be developed or being constructed in the area D by 2020 as follows:

A person shall be appointed.

2) The water capacity in Section C is continuously increasing from 2006 to 2011 as listed below, and the water capacity will continue to increase for 2020 years due to E’s construction of a AA steel station, the extension of wharfs, etc.

A person shall be appointed.

3) From 2006 to 2011, the entry into and departure from ships using D harbor facilities continues to increase as follows:

A person shall be appointed.

4) As the wharfs in D regions increase, the loading and unloading capacity in Section C from 2006 to 2011 continues to increase as follows.

A person shall be appointed.

5) Members of the Port Transport Union, which had engaged in labor supply business in CY, are increasing every year, including 17 years (9.8%) in 2010, 29 (15.3%) in 2011, 15 (6.8%) in 2012, and 5 March 2013 (2.1%) in 2013.

6) On January 6, 2015, the AC sub-office was newly established at the D Si’s request on the grounds of the volume of water operated and the increase in the entry into and departure from the port of entry into and departure from the port of the C Port.

7) Among D regional ports, VB(I, J, and K) made commercialization on September 1, 2007 by the "Special Act on Assistance to the Reorganization of Harbor Manpower Supply Systems" (hereinafter referred to as the "Special Act on Harbor Support") and has employed workers in each loading and unloading company, and Wboo(E), X2(F, G, and H have supplied workers.

[Ground of recognition] The fact that there is no dispute, Gap's 3 through 5, Eul's 4, 5, 10, 13, and 17, and the purport of the whole pleadings

D. Determination as to the assertion that the instant disposition constitutes a binding act or a binding discretionary act

According to Article 2-2 subparag. 7, Article 33(1), (2), and (3) subparag. 1, and Article 44 of the Employment Security Act, and Article 37 subparag. 4 of the Enforcement Decree of the Employment Security Act, a person who intends to engage in a labor supply business to another person; a person who intends to engage in a labor supply business shall obtain permission under a supply contract; a person who intends to engage in a domestic labor supply business may obtain permission for the term of validity only for a labor union under the Trade Union Act; and a person who intends to continue to engage in a labor supply business after the term of validity expires shall obtain permission for extension. According to Article 33(1) and (4) of the Employment Security Act and Article 33(1) of the Enforcement Decree of the Employment Security Act, a person who intends to engage in a labor supply business shall file an application for permission stating the plan for the supply of workers, the number of suppliers, etc. among the permitted matters, and the head of an employment security office may grant permission for a domestic labor supply business in comprehensive consideration of the scope of a labor union, the relevant region, employment demand and employment stability.

According to the above provisions, where an application for permission for domestic labor supply business fails to meet the requirements for permission for labor supply business, such as the scope of labor union’s business, the status of human resources supply by region and occupation, the maintenance of employment stability, etc., the administrative agency may refuse to grant permission for labor supply business for this reason. In such a case, the prohibited requirements for permission for labor supply business are prescribed as indefinite concepts, and ultimately

Therefore, given that domestic labor supply business permission for the instant application constitutes a discretionary act, the Plaintiff’s assertion on the premise that the permission for labor supply business is a binding act or a binding discretionary act is without merit.

E. Determination as to the lack of expertise in wharf-related work

1) The fact that the Plaintiff was issued a certificate of establishment report of a regional unit trade union from the D market on February 2, 2013 is as seen earlier.

2) Since the Plaintiff is a trade union established to supply workers engaged in port business and wharf-related business, it is unreasonable to require the Plaintiff to provide expertise in wharf-related business and field work experience in addition to the ability to supply labor business.

3) Furthermore, there is no evidence to acknowledge that it is difficult for the Plaintiff to be able to professionally conduct the wharf-related business.

4) Therefore, this part of the grounds for the disposition is not recognized.

F. Determination on the assertion of deviation or abuse of discretionary authority

In full view of the following circumstances recognized by the purport of the entire facts and arguments as seen earlier, the instant disposition is an error of law that excessively limits the Plaintiff’s private interest rather than the public interest the Defendant intends to protect, and thus deviates from and abused discretionary power. Therefore, the Plaintiff’s assertion on this part is with merit.

1) The volume of the water referred to in Section C continues to increase from 2006 to 2011, and the number of workers is expected to increase as port facilities, such as wharfs, are to be additionally developed in the D area. Such increase in the number of workers is one of the most important factors for the permission for workers’ supply business.

2) The Defendant asserts that this case’s application may result in impeding the stability of employment relations and smooth discharge of loading and unloading work due to conflict and conflict between labor unions to secure business operations due to the overlapping scope of business when permission for multiple kinds of domestic workers is granted. However, the purpose of the Employment Security Act is to promote the employment security of workers and contribute to balanced development of the national economy by providing all workers with an opportunity to find a job at which they can develop and display their own ability, and by supporting the smooth supply of and demand for necessary labor force in each industry (Article 1). The purpose of the Employment Security Act is to prevent a third party from infringing upon the interests of workers, such as taking profit-making by participating in the employment of workers or taking out wages, etc. (see, e.g., Supreme Court Decision 94Do1779, Oct. 21, 1994). However, the Defendant decided to extend the term of validity of the Plaintiff’s labor supply business to the extent that the Plaintiff’s right to exclusive supply of and demand for the pertinent permitted area is unreasonable, and thus, to improve the Plaintiff’s order of supply of labor supply and demand within three years.

In addition, from 2010 to March 2013, the YY trade union newly recruited 66 members from 2010 to 2013, allowing the recruitment of human resources of the YY trade union and prohibiting the plaintiff's new entry and recruitment of human resources violates the principle of equity.

3) In addition, (1) The Special Act on Port and Support provides a port manpower supply system to port and transport business entities, etc. with the principle that a port and transport business entity, etc. directly employs port and transport union members in the manner of supplying port and transport business entities, etc.; (4) the Government grants subsidies for expenses incurred by the reorganization; and (2) the permission for a labor supply business may lose its effect to the extent of the reorganization; (3) the change of the supply system under the Special Act on Port and Support may cause a decline in competitiveness by reducing the carbon strength of the operation of port manpower; (3) the legislative intent of the Special Act is to be respected; (4) the Plaintiff and the existing port and transport business entity may prevent any side effects, etc. caused by the system of exclusive and exclusive supply of workers; and (4) the Plaintiff and the existing port and transport business entity may not be deemed to be subject to the suspension of the exclusive supply of cargo supply system in light of the fact that there are no physical confusion between the Plaintiff and the existing port and transport business entity, such as the suspension of the supply of cargo supply system and the supply system.

4) In addition, the working conditions of workers cannot be necessarily lowered on the ground that the instant application is permitted, and in the event that the instant application is permitted, it would rather prevent infringement on the rights and interests of workers due to the monopoly of the existing supplier’s labor supply.

5) There is no evidence to acknowledge that the Plaintiff is incapable of professionally conducting the wharf-related business.

G. Sub-committee

Therefore, the instant disposition should be revoked as it is illegal because it was conducted by deviating from and abusing discretion without legitimate grounds for disposition.

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 which has different conclusions is unfair, so it shall be revoked, and it shall be decided as per Disposition with the cancellation of the disposition of this case