2012Du6063 Revocation of a corrective order

A trade union

The Head of Seoul Regional Employment and Labor Office Seoul Southern Site

Seoul High Court Decision 2011Nu31828 Decided February 9, 2012

August 26, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. A. Article 16(1) of the Trade Union and Labor Relations Adjustment Act (hereinafter referred to as the "Trade Union and Labor Relations Adjustment Act") provides that "the following matters shall be subject to a resolution by a general meeting"; subparagraph 1 provides that "matters concerning the enactment and amendment of the Code"; subparagraph 2 provides that "matters concerning the election and dismissal of officers"; subparagraph 3 provides that "matters concerning collective agreements"; subparagraph 4 provides "matters concerning the establishment, management or settlement of accounts of funds"; subparagraph 5 provides that "matters concerning the establishment, operation or withdrawal of a collective organization"; subparagraph 6 provides that "matters concerning the establishment, merger, division or dissolution of a collective organization"; subparagraph 7 provides that "matters concerning the alteration of the organizational form"; subparagraph 8 provides that "matters concerning the alteration of the organization form"; subparagraph 9 provides that "any matters concerning the enactment and amendment of the Code, the merger, dissolution, dissolution of executives, and the consent of a majority of the members present at a general meeting; and that "the attendance and dismissal of a majority of the members present at a general meeting" shall be substituted by the bylaws.

B. In a case where a trade union establishes a board of representatives instead of the general meeting under the above Trade Union and Labor Relations Adjustment Act, and clearly separates the matters to be resolved at the general meeting from the matters to be resolved by the board of representatives, barring any special circumstance, making a resolution immediately on the matters determined by the board of representatives as the matters to be resolved by the

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 and Labor Relations Adjustment Act) is the fundamental and fundamental authority of the general meeting composed of all union members, and the council of delegates is established only by the rules (Article 17 (1) of the Trade Union and Labor Relations Adjustment Act) and the existence and authority of the council of delegates are derived from the resolution of the rules of the general meeting, it cannot be said that the general meeting has the authority to amend the rules of the general meeting 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 of the board of delegates, even in cases where the general meeting determines "matters concerning the amendment of the rules" as a resolution of the board of delegates, and the general meeting can still pass a resolution "matters concerning the amendment of the regulations with the attendance of a majority of all union members and with the consent

2. According to the reasoning of the first instance judgment as cited by the lower court and the evidence duly admitted by the lower court, Article 15 of the Plaintiff’s union bylaws (amended by April 28, 2010; hereinafter referred to as the “Rules of this case”) provides that “this association shall have the following organizations,” and Article 23 provides that “the resolutions of the Congress shall be as follows: (i) the matters concerning the establishment and amendment of the rules, regulations (subparagraph 1); (ii) the matters concerning the establishment of the Union, joining or withdrawing from the Assembly (subparagraph 5); and (iii) the proposed rules should be announced by the chairperson for a period of not less than 7 days; (iv) the amendment of the rules of this case shall be 2/3 or more of the members present at the 20th general meeting with the consent of the majority of the members present at the 20th general meeting; and (iv) the amendment of the rules of this case shall be made within 18% of the members present at the 20th general meeting with the consent of 20% or more of the members present.”

3. Examining the above facts in light of the legal principles as seen earlier, although the instant rules clearly separate the matters to be resolved at the general meeting and the matters to be resolved at the representatives meeting, such as that the matters concerning the amendment of the regulations and the matters concerning the establishment, accession, or withdrawal of a representative meeting, separate from the general meeting, are subject to the resolution of the representative meeting, the authority to amend the instant rules cannot be deemed extinguished, and the general meeting still can decide matters concerning the amendment of the instant rules with the attendance of a majority of the incumbent members and the consent of a majority of the present members or more than 2/3 of the present members, so the instant rules cannot be deemed as violating Article 23 subparagraphs 1, 5, and 96 of the instant regulations.

Nevertheless, the lower court determined that the Defendant’s corrective order was lawful on the premise that the instant general assembly resolution was not permissible against the instant regulations. In so doing, it erred by misapprehending the legal doctrine on the status of the general assembly of trade unions and the board of representatives, thereby adversely affecting the conclusion of the judgment.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young

Justices Lee In-bok

Chief Justice Park Jong-young

Justices Kim Jae-han