[1] Requirements for an industrial action to constitute a tort during the prohibition period of an industrial action in an essential public-service area

[2] Whether an ex officio arbitration system violates the Constitution

[3] The case holding that where a Korean Railroad Workers' Union interferes with passenger transport and cargo transport by using its members through an illegal industrial action after the National Labor Relations Commission's decision to refer the case to arbitration, a trade union is liable to compensate for damages caused by such act to the Korean Railroad Corporation

[4] The scope of business losses suffered by an employer and a passenger and cargo transport service provider due to an illegal industrial action by a trade union and its calculation method

[5] The case holding that the responsibility of a trade union is limited to 60% of the business losses of railroad construction caused by illegal strike, in full view of all the circumstances such as collective bargaining process and situation in railroad strike, character of railroad service, purpose of the ex officio arbitration system, party's efforts to minimize damages caused by strike, and progress after strike

[1] In order to establish a tort due to an industrial action during the period of prohibition of an industrial action in an essential public-service area, the special mediation committee, which is lawfully constituted, should have decided to recommend a referral to arbitration to the National Labor Relations Commission by deeming that mediation is unlikely, and should have decided to refer the case to arbitration by the chairperson of the National Labor Relations Commission after hearing the opinion of public interest members. In other words, the decision to refer the case to arbitration should have been lawful, and if the organization of the special mediation committee, which is the preceding procedure, and the decision to recommend a referral to arbitration, are illegal in violation of the relevant statutes, the decision to refer the case to arbitration based on the defective procedure should also be deemed unlawful.

[2] Unlike emergency adjustment, which is an ex officio compulsory adjustment system, the ex officio arbitration system is a precautionary measure against industrial actions, but it is intended to prevent significant threat to the daily life or the national economy of the public who might be caused by the suspension or abolition of the strike in essential public works through arbitration by the Labor Relations Commission in advance. The legislative purpose of the arbitration is justifiable. The method of restricting fundamental rights under the former Trade Union and Labor Relations Adjustment Act (amended by Act No. 8150 of Dec. 30, 2006) is appropriate, and the degree of restriction of fundamental rights is minimum, and the balance between the public interest to be protected and the private interest to be restricted is maintained, so it does not violate the principle of excessive prohibition under the Constitution. Furthermore, discrimination against the workers of essential public works in light of the impact of the suspension or abolition, etc. of essential public works on the daily life of the public or the national economy, is not contrary to the equality right with reasonable grounds.

[3] The case holding that the Korean Railroad Trade Union's act of interfering with passenger transportation and cargo transportation by mobilization of its members after the decision to refer the case to arbitration by the National Labor Relations Commission is an illegal industrial action, and the trade union has a duty to compensate for the damages caused by the act of railroad construction

[4] The business losses suffered by an employer, a passenger and cargo transport service provider due to an illegal industrial action by a trade union are the profit of a day, which has a proximate causal relation with the strike. The amount of compensation must be calculated by deducting the reduced cost of personnel, fuel, and other necessary expenses from the transportation income loss and the alternative input cost.

[5] The case holding that the responsibility of a trade union is limited to 60% of the business losses of railroad construction caused by illegal strike, in full view of all the circumstances such as collective bargaining process and situation in railroad strike, character of railroad work, purpose of the ex officio arbitration system, efforts by the parties to minimize damages caused by strike, and progress after strike

[1] Articles 63 and 75 of the former Trade Union and Labor Relations Adjustment Act (amended by Act No. 8150 of Dec. 30, 2006); Article 750 of the Civil Act / [2] Articles 63 and 75 of the former Trade Union and Labor Relations Adjustment Act (amended by Act No. 8150 of Dec. 30, 2006); Articles 11(1) and 37(2) of the Constitution / [3] Article 750 of the Civil Act / [4] Articles 393, 396, 750, and 763 of the Civil Act / [5] Articles 393, 396, 750, and 763 of the Civil Act

[2] Constitutional Court Decision 2001Hun-Ga31 decided May 15, 2003 (Hun-Gong81, 22)

Korea Railroad Corporation (Law Firm Rate, Attorneys Shin Jae-jin et al., Counsel for the defendant-appellant)

National Railroad Workers' Union (Attorney Song Young-young, Counsel for defendant-appellant)

August 24, 2007

1. The defendant shall pay to the plaintiff 5.174,201,34 won with 5.5% interest per annum from September 22, 2006 to October 26, 2007, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by each person;

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 14,649,00,000 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment.

1. Facts of recognition;

The following facts may be acknowledged either in dispute between the parties or in accordance with Gap evidence 2 through 6 (including each number; hereinafter the same shall apply), Gap evidence 10 through 11, Gap evidence 20 through 24, Eul evidence 1 through 8, Eul evidence 10 through 12, and Eul evidence 10 through 12.

A. Status of the parties

On August 24, 1961, the defendant is a small industry unit trade union of the national scale established with the organization of workers engaged in the nationwide railroad industry. The plaintiff is a special corporation established under the Korea Railroad Corporation Act, which carries out a term industry related to the national railroad across the country. On January 1, 2005, the defendant was converted from the Korea Railroad Corporation, which is a telegraph pursuant to the Framework Act on Railroad Industry Development and the Korea Railroad Corporation Act.

B. Progress prior to the instant strike

(1) The Plaintiff’s general railroad office and the Defendant entered into a regular organization agreement with the term of validity on April 20, 2003 until April 19, 2005, and the Plaintiff and the Defendant entered into a special organization agreement on December 3, 2004, and specified the term of validity from January 1, 2005 to December 31, 2006 (Article 2 of the Addenda).

(2) On March 17, 2005, the Defendant requested the Plaintiff to conduct collective bargaining for the purpose of concluding a regular collective agreement in 2005 (Article 121 of the Addenda to the Convention). From August 12 to November 13, 2005, the Defendant held temporary delegates from August 12, 2005 to determine the proposal of a regular collective agreement, and conducted collective bargaining for the purpose of concluding a collective agreement over 43 times in total, including 6th of this negotiation and 37th of working negotiations, from August 31, 2005 to November 4, 2005.

(3) On November 10, 2005, the defendant formed a central dispute resolution committee and submitted an application for mediation of a labor dispute to the National Labor Relations Commission on November 10, 2005, and the National Labor Relations Commission established a special mediation committee (the chairperson 0,000, the member hump, and the Kim Jong-si), and the National Labor Relations Commission tried to narrow different opinions and draw up an agreement through the mediation committee several times, but it did not create a mediation plan, because there are many matters that are overlapping with the special organization agreement, matters concerning personnel and management rights, and matters outside the employer's authority, etc.

(4) The Defendant, from November 16, 2005 to the 18th day of the same month, carried out the pro-con voting on the union member's industrial action, and passed a resolution on the implementation of the industrial action with the consent of 70.24% of the registered union members.

(5) On November 25, 2005, the Special Coordination Committee concluded that it is difficult to present a proposal due to the wide difference of position between labor and management, and that it is not helpful to present a proposal of mediation to reach an agreement between the parties, and concluded mediation without presenting a proposal of mediation, and concluded that it is reasonable to negotiate in good faith after the mutual trust and cooperation between labor and management. However, on the same day, the Special Coordination Committee submitted to the Special Coordination Committee a letter of commitment stating that “The Defendant shall faithfully negotiate the periodical collective bargaining in 2005 without strike until December 16, 2005 in order to resolve the collective bargaining by the labor and management.” The Special Coordination Committee suspended submission to arbitration by respecting the Defendant’s voluntary bargaining intention to the National Labor Relations Commission, and that if the Defendant is highly likely to lead to industrial action without complying with the promise, it shall refer the relevant place of business to arbitration.

(6) On November 25, 2005, the chairman of the National Labor Relations Commission requested the public interest members to present their opinions that the conditional arbitration is reasonable, and presented them to the plaintiff and the defendant. The chairman of the National Labor Relations Commission made a decision to suspend the submission of arbitration to the effect that "the special arbitration committee's recommendation and the opinion of the public interest members are expected to have a high ratio of the union members, and to have a substantial impediment in the transportation of passengers and cargo in the event of a railroad dispute, etc., upon the implementation of the agreement by the defendant, the referral to arbitration shall be reserved until December 16, 2005." The chairman notified the plaintiff and the defendant of this decision, and notified the plaintiff and the defendant of this fact that it will be immediately referred to the arbitration in the event the defendant

(7) On December 16, 2005, the defendant again submitted to the National Labor Relations Commission a letter of commitment that "the total strike reservation key by the end of January 2006 and, if there is any change in the schedule, the National Labor Relations Commission promises to notify it not later than two days prior to the end of January 2006." On the same day, the National Labor Relations Commission notified the plaintiff and the defendant that "the decision of withholding referral to arbitration shall be extended by the end of January 2006 on the condition that "the defendant again submitted the letter of reservation to the total strike, respect the submission of the letter of reservation to the general strike and does not take industrial action."

(8) On January 31, 2006, the National Labor Relations Commission notified the original and the Defendant of the fact that “The current labor-management autonomous bargaining is underway, thus extending the reservation of the referral to arbitration and, if there is a remarkable possibility that the industrial action will be taken place in the future, i.e., referral to arbitration.”

(9) On February 7, 2006, the Defendant set the total strike schedule at the Central Dispute Mediation Committee on March 1, 2006, and continued collective bargaining with the Plaintiff on March 1, 2006, but the negotiations on February 28, 2006 were displayed.

(10) On February 28, 2006, the chairperson of the National Labor Relations Commission decided to refer the arbitration to the effect that “the labor union continues to hold a voluntary bargaining between labor unions, but did not find any final agreed point on the issues,” and that “the labor union in the railroad has given notice of the general strike, but it is anticipated that it may substantially endanger the daily lives of the general public and substantially impede the national economy at the time of the strike, and thus, would make a decision to refer the case to arbitration at 21:00 on February 28, 2006,” and sent a written decision to both the plaintiff and the defendant.

C. Commencement of the instant strike

On March 1, 2006, the defendant ordered members of the 01:00 on March 1, 2006 to withdraw the commercialization of railroads, to reinstate all the dismissed workers, to reinstate them, to fill the job site manpower, to recruit new businesses, and to take part in the general strike, such as the elimination of discrimination against non-regular workers (in opposition to the non-regular bill).

Accordingly, on March 1, 2006, the president of the Plaintiff issued an order to return to work for a person who deserts the place of work, a person who has obstructed the work for a person who has left the place of work, a facility, and a person who has failed to work at the designated time of work, etc., and notified the union members to take an urgent measure of removal from position when he does not comply with the order. However, the Defendant ordered the union members to move to the place of work on March 1, 2006 through subparagraph 4 of the same month and continue the strike through subparagraph 5 of the strike order on March 1, 2006. Accordingly, from March 1, 2006 to April 14:00 of the same month, a number of union members refused to return to work without going to work at the place of work until the declaration of withdrawal of the strike, which led to enormous disruptions in the Plaintiff’s KTX-X-X and passenger transportation and freight transportation, such as the Plaintiff’s KTX-X, Saemaul iron, and electric iron.

D. Progress after the strike of this case

(1) On March 3, 2006, the National Labor Relations Commission constituted an arbitration committee by designating three arbitration committee members (the chairperson0,000 members, the knife of the members, and the Kim Jong-si) from among the public interest members.

(2) On March 6, 2006, the Arbitration Commission held the first arbitration meeting, but the defendant submitted only relevant data and did not attend the second arbitration meeting held on the 15:00 of the same month, and the defendant did not attend the second arbitration meeting and required only workers' members to present their opinions in accordance with Article 66(2) of the Trade Union and Labor Relations Adjustment Act. The Arbitration Commission held labor-management working-level negotiations on March 10, 2006, but did not have access to the issues at issue.

(3) On March 15, 2006, the National Labor Relations Commission drafted an arbitration award (2006 Arbitration1) and conducted negotiations on the remaining issues that were not included in the arbitration award on April 1 of the same year, and the defendant, in the future, made efforts to normalize its business and made efforts to minimize the disciplinary action and civil and criminal responsibility related to the strike by the plaintiff.

E. Main provisions of the former Trade Union and Labor Relations Adjustment Act (amended by Act No. 8150, Dec. 30, 2006; hereinafter “Trade Union and Labor Relations Adjustment Act”)

Article 3 (Restriction on Claim for Damages) When an employer has suffered damages due to collective bargaining or industrial action under this Act, he shall not claim damages against a trade union or workers.

Article 54 (Period of Mediation)

(1) Mediation shall be completed within ten days in case of a general business, or within fifteen days in case of a public-service business, after a request for mediation as referred to in Article 53 is made.

(2) The period of mediation as referred to in paragraph (1) may be extended by up to ten days in case of a general business, or up to fifteen days in case of a public-service business, by an agreement between the parties concerned.

Article 60 (Preparation of Mediation Proposal)

(1) The mediation committee or the single mediator may prepare a mediation proposal, present it to the parties concerned, recommend them to accept it and simultaneously publicly announce it with the reasons therefor, and may, if necessary, request the cooperation of the press or broadcasting companies to report it, etc.

(2) The mediation committee or the single mediator shall, if deemed that there is no possibility for the mediation to be conducted any more by the parties concerned to refuse the mediation, decide on the termination of the mediation and notify both parties concerned thereof.

Article 62 (Commencement of Arbitration) The Labor Relations Commission shall conduct arbitration in cases falling under any of the following subparagraphs:

1. When both of the parties concerned have requested an arbitration;

2. When one of the parties concerned requests arbitration in accordance with the collective agreement;

3. Where the chairman of the Labor Relations Commission has decided to refer the essential public business pursuant to Article 71 (2) to arbitration upon the recommendation of the Special Arbitration Commission;

Article 63 (Prohibition of Industrial Actions during Period of Arbitration) When a labor dispute is referred to arbitration, an industrial action shall not be conducted for fifteen days from the date thereof.

Article 68 (Finality Award)

(1) An arbitration award shall be made in writing with the effective date specified therein.

(2) If there is any disagreement between the parties concerned with respect to the interpretation or performance method of an arbitration award under paragraph (1), the interpretation of the arbitration committee concerned shall be in accordance with the interpretation of the arbitration award, and the interpretation shall have the same effect as that

Article 69 (Finality of Arbitration Award, etc.)

(2) If the parties concerned consider that an arbitration award rendered by the National Labor Relations Commission or a decision on review made pursuant to the provisions of paragraph (1) is erroneous or unjust, they may institute an administrative litigation within 15 days from the date of receipt of the arbitration award or the decision on review, notwithstanding the provisions of Article 20 of the Administrative Litigation Act.

Article 70 (Effect of Arbitration Award, etc.)

(1) The content of an arbitration award under Article 68 (1) shall have the same effect as that of a collective agreement.

(2) No arbitration award or decision on review by the Labor Relations Commission shall suspend its effect upon an application for review or an administrative litigation filed with the National Labor Relations Commission pursuant to Article 69 (1) and (2).

Article 71 (Scope, etc. of Public Works Projects)

(1) The term "public works" in this Act means the following projects which are closely related to the daily life of the public or have a substantial impact on the national economy:

1. Passenger transport business and air transport business for regular routes;

2. Waterworks business, electricity business, gas business, petroleum refining business, and petroleum supply business;

3. Public sanitation business and medical treatment business;

4. Banking and mint businesses;

5. Broadcasting and communications businesses.

(2) The term "essential public-service businesses" in this Act means the following public-service businesses referred to in paragraph (1) whose suspension or discontinuation may seriously endanger daily life of the general public or the national economy, and whose replacement is not easy:

1. Railroad business, urban railroad business and air transport business;

2. Not more than the omission;

Article 74 (Recommendation of Referral to Arbitration)

(1) Where the Special Arbitration Committee deems that mediation is not likely to take place in essential public-service businesses, it may recommend that the Labor Relations Commission concerned refer the case to arbitration by decision.

(2) The recommendation referred to in paragraph (1) shall be made prior to the expiration of the mediation period referred to in Article 54.

Article 75 (Decision as to Referring to Arbitration)

The chairman of the Labor Relations Commission shall, upon receiving the recommendation as prescribed in Article 74 (1), determine, in consultation with the opinion of public interest members, whether or not to refer the relevant case to arbitration.

F. Main provisions of the Labor Relations Commission Rules (hereinafter “Rules”)

(6) A special mediation committee shall present a mediation plan for essential public-service businesses under Article 71 (2) of the Trade Union and Labor Relations Adjustment Act not later than the expiration of the mediation period under Article 54 of the Trade Union and Labor Relations Adjustment Act: Provided, That the same shall not apply to cases where any inevitable reason exists.

(7) Where a party refuses to accept a proposal for mediation or fails to present a proposal for mediation by the date and time designated by the relevant mediation committee after the special mediation committee has presented a proposal for mediation under paragraph (6), or fails to present a proposal for mediation due to unavoidable circumstances, the special mediation committee shall, without delay, determine whether to recommend to refer the case to arbitration. In such cases, the recommendation to refer

Article 49 (Referral to Arbitration) (1) The chairman shall, upon the recommendation of a referral to arbitration under Article 48 (7), hear without delay the opinion of one or more public interest members in charge of conciliation (including standing members). In this case, the public interest members in charge of conciliation shall be those who are not the special conciliation members concerned.

(2) A public interest member in charge of conciliation in receipt of a request to present opinions under paragraph (2) shall present his/her opinion without delay (attached Form 14).

G. On December 3, 2006, by striking ex officio arbitration provisions, including Article 62 subparag. 3, 74, and 75 of the Trade Union and Labor Relations Commission Act (Act No. 8158 of Dec. 3, 2006), the essential business system shall be abolished. The introduction of the essential business system (the essential business is to seriously endanger the safety of the public life, health, or body or the daily life of the public due to the suspension or discontinuation of the essential business among the essential business, and the labor-related parties shall enter into an agreement with the parties setting the minimum level of maintenance and operation necessary for the legitimate maintenance and operation of the business during the period of industrial action. If the parties fail to enter into the agreement, the Labor Relations Commission shall, upon their application, take into account the characteristics, contents, etc. of the essential business for each business or each place of business, and notify the employer of the appointment of workers during the period of industrial action pursuant to the agreement on essential business or the decision of the Labor Relations Commission on the essential business system).

2. Summary of the parties' arguments

A. The plaintiff's assertion

The defendant's strike of this case is not justified, and procedural legitimacy is not recognized as a strike after the decision to refer the case to arbitration under the Trade Union and Labor Relations Adjustment Act. Thus, the defendant must compensate the plaintiff for the plaintiff's damages caused by the strike of this case.

B. The defendant's argument

(1) The ex officio arbitration system for essential public works is an arbitration system by the discretion of the Labor Relations Commission, which is an administrative agency. Since it infringes on the essential part of fundamental labor rights, such as the right to collective action, collective bargaining, etc. of workers by prohibiting all types of industrial actions for 15 days after the decision to refer to arbitration, and it violates Article 11(1) of the Constitution, which provides for the principle of equality, by giving discriminatory treatment to workers engaged in essential public works at the general workplace without reasonable grounds, the decision to refer to arbitration of this case is unlawful.

(2) The instant decision to refer to arbitration is unlawful, without any inevitable reason, based on the recommendation to suspend the referral to arbitration or the recommendation to suspend the submission to arbitration after the termination of mediation, in violation of the limitation period of 15 days for the mediation period, without any legal basis. In addition, the Labor Relations Commission’s decision to suspend the submission to arbitration on January 31, 2006, when the chairman of the Labor Relations Commission made a decision to suspend the submission to arbitration based on the Defendant’s written undertaking and negotiated the Defendant’s written undertaking to suspend the submission to arbitration on January 31, 2006, when the chairman of the Labor Relations Commission made a negotiation on January 31, 206, when it did not have the Defendant’s additional promise to withhold the submission to arbitration, and the instant decision to refer to arbitration, which remains four hours after the date of the commencement of the strike on February 28, 206, is unlawful as it substantially deviates from and abused its discretionary power.

Therefore, the strike of this case, which was conducted after the decision to refer the case to arbitration, does not violate the prohibition of industrial action at the time of ex officio referral to arbitration under Article 63 of the Trade Union and Labor Relations Adjustment Act, and is legitimate

3. Whether liability for damages has arisen;

A. General theory

In order to establish a tort due to an industrial action during the period of prohibition of industrial action in the essential public-service area, the special mediation committee, which is lawfully constituted, shall decide to recommend the National Labor Relations Commission to refer the case to arbitration, and according to this decision, the chairman of the National Labor Relations Commission shall have decided to refer the case to arbitration after hearing the opinion of the public interest members. In other words, the decision to refer the case to arbitration should be legitimate, and if the decision to refer the case to arbitration is illegal in violation of the relevant laws and regulations, the decision to refer the case to arbitration based on the defective procedure should also be deemed unlawful.

B. Whether the decision to refer the case to arbitration is unlawful

(1) Whether the ex officio arbitration system is unconstitutional or not

Unlike the emergency adjustment, the ex officio arbitration system is a precautionary measure, unlike the emergency adjustment system, which is the ex-post compulsory adjustment system, but the legislative purpose is to ensure the maintenance of daily lives of the public and the preservation of the national economy by preventing significant threats to the suspension or abolition of the business due to the extreme conflict between the parties and employers in essential public-service businesses, through arbitration of the Labor Relations Commission in advance, through arbitration of the Labor Relations Commission. The method of restricting fundamental rights under the Trade Union and Labor Relations Adjustment Act is just, and the method of restricting fundamental rights is appropriate, as well as minimizing the degree of restriction of fundamental rights, and maintaining balance between the public interest to be protected and the private interest to be restricted. Furthermore, discrimination against the workers of essential public-service businesses is not contrary to the principle of excessive prohibition under the Constitution, in light of the influence of the suspension or abolition, etc. of essential public-service businesses on the daily lives or the national economy, and thus it does not violate equality rights due to reasonable grounds (see Constitutional Court Order 201Hun-Ga31, May 15, 2003).

Therefore, the ex officio arbitration system is not contrary to the Constitution, and it cannot be said that the decision to refer to arbitration of this case is illegal.

(2) Whether the decision to refer to arbitration in this case is null and void or illegal since it violates the Trade Union and Labor Relations Adjustment Act or renders a de facto punishment of such provision

(A) Whether the failure to present a proposal by the Special Arbitration Commission is illegal

According to the above facts, even though the Special Coordination Committee attempted to mediate through several prior coordination meetings, it has been 209 or 209, including the issues asserted by the plaintiff and the defendant, such as the matters overlapping with the contents of the Special Agreement as of December 3, 2004, matters concerning personnel and management rights, and matters concerning user rights, etc., and it is judged that the mediation proposal cannot be presented due to a significant difference between the parties, and that it is not helpful for autonomous agreement between the parties, and that mediation is terminated without presenting the mediation proposal. This is the case where there is any inevitable reason provided for in the proviso of Article 47(6) of the Rules.

Therefore, the special conciliation committee's failure to present a conciliation proposal cannot be deemed unlawful, and the decision to refer the case to arbitration cannot be deemed unlawful.

(B) Whether the decision to recommend conditional referral to arbitration by the Special Arbitration Commission violates the time limit set forth in Article 74(2) of the Trade Union and Labor Relations Adjustment Act

In addition to the decision of termination of mediation made on November 25, 2005, the decision of conditional arbitration recommendation made by the special mediation committee is made within 15 days from November 10, 2005 on which the defendant's application for mediation was filed pursuant to Articles 74 (2) and 54 (1) of the Trade Union and Labor Relations Adjustment Act, and it does not violate the provisions. Furthermore, it may make a decision of conditional arbitration recommendation separately from the decision of termination of mediation. Thus, it cannot be said that the decision of termination of mediation is made under the condition that the special mediation committee has no authority to process the application for mediation as a result of termination of the application for mediation.

(C) Whether the decision of conditional referral to arbitration is unlawful

Article 74(1) of the Trade Union and Labor Relations Adjustment Commission only stipulates that the recommendation of referral to arbitration may be decided by the Labor Relations Commission, but does not stipulate the kind, contents, etc. of the decision of referral to arbitration. However, even in the recommendation of referral to arbitration, the mediation of interests in collective labor disputes should be fully considered in the way of dispute resolution that the labor-management autonomously resolves (see Articles 47, 52, etc. of the Trade Union and Labor Relations Adjustment Act). Therefore, if it is deemed that there is no possibility of mediation to be established in essential public business, it is reasonable to view that it may conditional or conditionally adjust the time of referral to arbitration or change the requirements or time of referral to arbitration after adjusting the time of referral to arbitration.

Therefore, the decision of conditional referral to arbitration by the Special Arbitration Commission is lawful, and the decision of conditional referral to arbitration of this case cannot be deemed unlawful.

(D) Whether the instant decision to refer to arbitration was not subject to the recommendation decision of the Special Arbitration Commission and the procedure for hearing opinions on other public interest members

The decision to refer to arbitration of this case is not made without delay after the special arbitration committee's recommendation and hearing of other public interest members, but made three months thereafter. However, as seen earlier, the special arbitration committee recommended conditional referral of arbitration to the effect that "if it is possible for the trade union to withhold the preferential referral of arbitration and not to comply with the promise but to deal with industrial action, it is possible for the trade union to refer the relevant workplace to arbitration." The defendant also presented the opinion of conditional referral of arbitration with the same content as the public interest members, and presented the opinion that it will entirely comply with the contents of the recommendation. The above conditional referral of arbitration and presentation of opinion are suspended by giving priority to the autonomous dispute resolution of the labor union. However, it is possible for the special arbitration committee to resolve labor disputes by giving time and clear contents of the autonomous collective bargaining for the period of deferment explicitly or implicitly agreed between the labor and the management, but if there is a significant possibility to lead to industrial action, it is expected that the pertinent workplace should be referred to arbitration, and thus, the special arbitration decision and the recommendation procedure of this case were proposed to be referred to arbitration.

(E) Whether the decision to withhold the submission of the case to arbitration on January 31, 2005 and the decision to refer the case to arbitration is unlawful

Considering the purport of the Trade Union and Labor Relations Adjustment Act with the top priority of private mediation in the mediation of labor disputes and the function of the ex officio arbitration system, it is necessary to operate exceptional and complementaryly in the resolution of disputes between labor and management. Therefore, it is reasonable to allow voluntary negotiations between labor and management to take place after the time of the decision to refer to arbitration in cases where there is a certain extent of room for dispute resolution by the autonomous bargaining between labor and management. Unless there are special circumstances such as where the decision to withhold the referral to arbitration is used only as a means to restrict industrial actions themselves absolutely and substantially, the decision to withhold the referral to arbitration is allowed.

As seen above, on November 25, 2005, the Special Arbitration Committee submitted a letter of commitment from 2005 to 16 December 2005 that it would sincerely respond to negotiations without strike, and decided to submit a letter of commitment up to January 31, 2006, the chairman of the National Labor Relations Commission first issued a decision to suspend referral of arbitration two times with priority to resolve disputes arising from the autonomous bargaining between the labor and management, and the Defendant expressed that it is impossible for the Labor Relations Commission to do so for the first time on January 31, 2006 without any further agreement to refrain from the labor and management. However, considering the fact that the labor and management continues to negotiate at the time of 20 months, and that there is no specific strike schedule, it is difficult for the Defendant to finally conclude that it would substantially help the Plaintiff and the Labor Relations Commission to submit such a letter of commitment to arbitration in light of the fact that it is difficult for the Labor Relations Commission to resolve disputes through the labor and management autonomy.

(F) Ultimately, the decision to refer to arbitration of this case cannot be deemed unlawful because it violates the provisions of the law or renders de facto the purport of the provision.

C. Sub-committee

Therefore, the decision to refer to arbitration and notification made by the National Labor Relations Commission on February 28, 2006 pursuant to Article 62 subparag. 3 of the Trade Union and Labor Relations Adjustment Act is lawful. As such, the defendant's industrial action is prohibited for 15 days from March 1, 2006 to March 24:00 from March 15, 2006 pursuant to Article 63 of the Trade Union and Labor Relations Adjustment Act. Nevertheless, in violation of the above, the defendant's act of remarkably impeding the daily life of the people by mobilization of its members after the decision to refer to arbitration and thereby obstructing the plaintiff's passenger transportation and freight transportation by seriously impeding the daily life of the people, is illegal industrial action, and the defendant is liable to compensate the plaintiff for damages caused by such act.

4. Scope of damages.

(a) Loss in operating profits;

(1) Method of calculation

The business loss suffered by an employer who performs passenger and cargo transport services due to the illegal industrial action by a trade union is a lost profit, and there is a proximate causal relation with the strike of this case, and the method of calculation should be calculated by deducting transportation revenue loss from personnel expenses, fuel expenses, and other necessary expenses.

(2) A transportation revenue deficit.

(A) Calculation of the damage period

In full view of the purport of the argument in Gap evidence No. 16, the strike of this case was withdrawn on March 4, 2006, and KTX and wide-area electric wires were withdrawn on March 4, 2006, and it was recognized that the operation rate of passenger transport was 60.6% on March 5, 2006 and the operation rate of cargo was 40% on March 6, 2006, and the normal operation rate was 47.1% from March 1, 2006 to April of the same month, and the normal operation rate was 5th following the withdrawal.

The defendant asserts that the return rate of work on the day following the date of the withdrawal of the strike is low because the plaintiff's illegal removal from position against the participants during the strike period, and thus, it cannot be put into work even after the strike is returned, it should be added to the damage period for calculating the lost profit.

Comprehensively taking account of the overall purport of arguments in Eul evidence Nos. 15 through 17, it is recognized that the plaintiff was released from position during the period from March 1, 2006 to March 26, 2006 with respect to the number of union members 387 workers who did not comply with the direction of return to work, and the number of union members 1,857 with respect to the number of union members 387 union members who led the strike from among workers who did not comply with the direction of return to work, the plaintiff was subject to a disposition of removal from position during the period from March 1, 206 to March 26, 2006. In the case of simple strike participants by preparing the guidelines for return to position on March 9, 206, the plaintiff taken measures to return to work as of the 10th of the same month, at the time of the defendant's total

In light of the above facts, it is reasonable to view that the operation rate of a regular train and a cargo train on March 5, 2006 is lower not due to the nature of the strike in this case itself or the railroad business, but due to the Plaintiff’s dismissal of a large number of union members participating in the strike in this case from their position so that they can not return to the previous business even after the withdrawal of the strike, and it is reasonable to calculate the damages from the strike in this case on the basis of the period from March 1, 2006 to April of the same month (in the case of a pre-transmission, even if there is any circumstance that reduces users than the expected users despite the full normal operation on March 5, 206, the loss incurred therefrom shall not be calculated as the loss from the strike in this case).

(b) Passenger Transport Sector

Comprehensively taking account of the purport of the argument in Gap evidence No. 15, the plaintiff acquired a total of KRW 7.532 billion for railroad operation during the strike period of this case (from March 1, 2006 to March 4, 2006) + KRW 1.69 billion for two days + KRW 1.69 billion for three days + KRW 1.925 billion for four days + KRW 2.24 billion for four days). The plaintiff acquired a transportation profit during the same period of the previous year (from March 1, 2005 to KRW 3.6 billion for five billion for five billion for five billion for five hundred and five billion for five billion for five billion for five years for five hundred and five billion for five hundred and five years for five hundred and five years for five billion for five hundred and five years for five billion for five hundred and five years for five billion for five hundred and five for five hundred for five years for five hundred for five hundred and five for five hundred for five billion for five years for one for five hundred and half for one for five years for five.

(C) The transportation sector of electric utility;

① The amount of loss caused by the instant strike from March 1, 2006 to April 4, 2006 due to the reduction of the electric utility is reasonable by comparing the profit at normal home operations with the actual profit during the instant strike period. However, it is reasonable for customers to take into account the amount of indirect damage, such as a deviation.

In addition, in the case of the electric rail transport sector, it is reasonable to calculate the amount of loss on the basis of the performance of each day of the same period of the previous year, since the electric rail users have a significant difference in the number of users according to external factors, such as openings and vacations, as well as the number of users according to the number of days required for the previous year.

② According to the evidence evidence No. 16, the fact that the actual profit in the transport sector of the electric scrap metal during the period of the instant strike is the sum of KRW 4,013,976,555 per day ( KRW 743,973,922 per day + KRW 1,172,415,753 per day + + KRW 3,098,427,091 + KRW 99,159,789,789 per day).

(3) According to health care and evidence No. 16 with respect to profits at normal home, profits from the transport sector of the previous iron transport sector of January 2006 shall be 34.5 billion won, 209, 486 won, and February of the same year shall be 33.74,609,249 won, January of the preceding year, 33.65,312,180 won, February of the same year shall be 30.86,084,610 won, March of the same year, 2006 transportation profits from March 3, 2006 shall be 39.6 billion won, 4.6 billion won, 3.6 billion won, 4.6 billion won, 3.6 billion won, 4.6 billion won, 19.6 billion won, 3.6 billion won, 19.6 billion won, 4.6 billion won, 205 billion won, 3.6 billion won, 19.6 billion won, 1.6 billion won, 1.6.6 billion won,

According to the above facts, if the strike in this case did not exist, such increase rate of profit (the rate of increase in the number of users) shall be determined to have continued in March 2006. Therefore, it is reasonable to regard the normal profit if there was no strike as 5,237,419,171 won calculated by adding the above increase rate (106.426%) to 5,573,975,726 won per day of the same period of the previous year.

④ Therefore, the sales loss incurred from the instant strike in the steel transport sector is KRW 1,559,99,171 (the estimated normal profit of KRW 5,573,975,726 - the actual profit of KRW 4,013,976,555).

(D) Freight carriage sector

1. In the case of freight carriage, since the number of trains and the profits from transportation are not large on a daily basis except on weekends and holidays, it shall be calculated on the basis of the average value of the number of trains and the profits from transportation on a daily basis (the average value on a daily basis for the month immediately preceding the strike of this case) in the event that no strike has occurred.

② Comprehensively taking account of the purport of the arguments in Gap evidence 17, with respect to cargo transport, the total number of ordinary trains is 1,425 (3.59 p.m. from the demand to the Triday + 348 p.m.), the total of KRW 3.565 billion (679 billion a.m. + KRW 1.07 billion a.m. on the demand to the Triday + KRW 1.126 billion a.m. + KRW 460 million a.m. total of KRW 400,000 a.m. total of KRW 400,000 a.m. on the Triday + KRW 400,000 a.m. total of KRW 1.6 billion a.m. to the 4.m. on the 4.m. of March 1, 2006 + KRW 300,000 a.m. total of KRW 400,000 a.m. 28.m.

③ According to the above facts, in the case of cargo transport, the amount of damages is KRW 2.56 billion ( KRW 3.566 billion - KRW 1.00 billion - KRW 1.02 billion), and in the case of small cargo transport, the amount of damages is KRW 118 billion. Therefore, when combined with cargo and fire extinguishing, the total amount of damages is KRW 2.681 billion.

(e) Sub-committee

Therefore, the Plaintiff’s transportation revenue loss due to the instant strike is 12.3 billion won in total (8.16 billion won + 1.59,99,171 won + 2.6 billion won + 2.68 billion won).

(3) The cost of alternative input (the cost of input for the normal operation of the railroad).

In full view of the purport of the arguments in Gap evidence Nos. 15 and 18 through 19, the plaintiff paid excessive work allowances from February 28, 2006 to March 6, 2006 by allowing the employees who did not participate in the strike to work in order to normalize the railroad operation during the period of the strike of this case, and the employees who did not participate in the strike to work in order to properly operate the train as railroad operation personnel by providing them with retirement workers, military personnel, internal employees, and other human resources who did not participate in the strike. The amount is recognized as a total of 1.91,50,50 won. This is sufficiently anticipated as necessary expenses to prevent the situation of the full suspension of the railroad operation from a public interest point of view, so the above expenses also constitute losses in proximate causal relation with the strike of this case.

(iv)the deducted amount of personnel expenses reduced.

(a)the amount of reduced personnel costs;

According to Gap evidence No. 13, the plaintiff's wage reduction amounting to the portion equivalent to the wages that the plaintiff had not paid to the members participating in the strike during the period of the strike in this case, and the wage reduction amounting to the unauthorized workers shall be 2.597 billion won [2,949 won x 86,000 won x 2 days for ordinary workers x 1.68 billion won for shift workers [5,130 million won for reduction of absence (5,130 x 86,000 won x 33 days for shift workers)] - 250 million won for work on February 28, 200 (4,853 x 15,000 won x 50 million won) x 36.4 million won for shift workers] x 1.68 billion won for shift workers.

(b)The amount of reduced fuel costs;

According to Gap evidence Nos. 15 and Gap evidence Nos. 29 during the strike period of the instant strike, it can be acknowledged that total of KRW 1.47,842,986 per day (electric power + transit costs) + KRW 257,986 per day + KRW 257,986 per day + KRW 302,252,00 per day + KRW 329,284,00 per day + KRW 329,284,00 per day) during the strike period of the instant strike, the average operating cost of the train was KRW 956,090,000 per day on average of January 4, 2006, KRW 3.86,75,360,000 per day on April 3, 2000, KRW 276,7017,3608,846,3008,8000 per day on average of the train operation cost of the instant strike.

According to Gap evidence No. 30, a total of KRW 277,262,456 (total distance 1,164,342 km of electric metal operated for four days during the strike period x 3.52 kwh x 1 kwh 67.65 per unit price of electricity) can be acknowledged that the use fee of ordinary power was 58,626,222 won (2,471,890 x 2.52 x 3.65 x 67.65) during the strike period of this case. Accordingly, during the strike period of this case, the total operating fee of the previous car was reduced by KRW 31,363,76 (58,626,227,2727,26265).

(c) Deduction of depreciation costs

The defendant asserts that as of December 31, 2006, the depreciation costs of the year 1, 2006 were KRW 2,378 billion, 42,459,371, which occurred from the engine vehicles, vehicles, and machinery equipment owned by the plaintiff, and the depreciation costs of the year 2,378 billion,42,459,371, while the strike period of this case was used less than the amount reduced in operation, 1.563,895,622 won (651,623,176 x 6/10 x 4 x 4) corresponding to the period should also be deducted.

According to the evidence evidence No. 26 of this case, depreciation costs are acknowledged. However, according to the flow of time, the physical and economic value of fixed assets is gradually decreased. A. In order to calculate profits and losses for the accurate period of time, it refers to an accounting procedure that separates the part of the acquisition cost of fixed assets with the cost reduction and the part of the cost reduction and the part of the cost to provide future profits and losses. The depreciation costs refer to the part of the cost disposal in the above accounting process. Since depreciation costs are only treated as costs only in the accounting process and do not actually use money, it cannot be deemed that the plaintiff's assets are actually consumed. Since the depreciation is naturally arising from the passage of time, it cannot be deemed that the reduction of vehicle, etc. takes place only through operation without the passage of time. However, it cannot be deemed that the degree of decrease in operation is ordinarily more than that of operation at the time, and it cannot be seen that there is no difference in the physical profit from the loss reduction in the above operation period. In light of the above evidence, it cannot be seen that the plaintiff's physical profit from the loss reduction in the above.

(d) Miscellaneouss;

Although the defendant asserts that the expenses of the office operation expenses (electric, water, etc.) reduced due to the absence of the union members participating in the strike of this case should be deducted from the amount of loss, it is reasonable to view that the office operation expenses normally have been paid almost fixed without connection with the absence of part of the union members, and there is no ground to deem that the expenses have been reduced due to the absence of part of the union members. In addition, the defendant asserts that the amount of wages reduced due to the disciplinary action against the part of the union members participating in the strike of this case should be deducted. However, although it is indirectly related to the strike of this case, it is based on the plaintiff's disciplinary action separately, and a considerable number of members were relieved due to the objection of the person subject to the disciplinary action of this case, it is not the nature to be deducted from

(5) Sub-committee

Ultimately, the Plaintiff’s damages from the strike of this case is KRW 8.623,68,891 [12.36,99,171 + KRW 1.961,50,500 + KRW 2.97,000,00 KRW 2.76,517,014 – KRW 311,363,766]; and

B. Limitation on liability for fair and reasonable allocation of damages

The following circumstances: (a) the Defendant’s current operation of the instant collective bargaining agreement is clearly aware of various circumstances and issues that are not easy to reach an agreement during several months for the conclusion of the instant collective bargaining agreement; and (b) the Defendant’s current operation of the instant collective bargaining agreement is bound to choose the means of ex officio referral to arbitration and strike to achieve one’s own assertion; (c) thereby, the Plaintiff’s efforts and concession of both parties through flexible negotiations are not enough to resolve issues; (d) the mere fact that the Plaintiff’s current operation of the instant collective bargaining agreement does not lead to the conclusion of the instant collective bargaining agreement, but rather to the extent that the Plaintiff’s daily life and non-economic losses may considerably arise in the process of the instant collective bargaining or the instant collective bargaining agreement; (e) the Defendant’s operation of the instant collective bargaining agreement, which would seriously affect the public’s daily life and non-economic losses; (e) the Defendant’s operation of the instant collective bargaining agreement and the need to ex officio resolution of the risks of the instant collective bargaining agreement, including labor disputes, to the extent of ex officio or non-economic action.

C. Sub-committee

According to the above facts, the part to be borne by the Defendant out of the Plaintiff’s damages KRW 8.623,668,891 is KRW 5.174,201,334, which is 60% of the above amount.

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff damages for delay at the rate of 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment, which is the day following the delivery of a copy of complaint to the plaintiff from September 22, 2006, which is the day after September 22, 2006, which is the day when the defendant delivered a copy of complaint to the plaintiff, and from October 26, 2007, which is deemed reasonable to dispute about the existence and scope of the obligation. Thus, the plaintiff's claim is justified within the above recognition scope, and the remainder is dismissed as it is so decided as per Disposition.

Judges Kim Jae-in (Presiding Judge)