[1] Whether a person in need of guaranteeing three labor rights may be included, including where a worker is temporarily unemployed or is seeking to find a job, as defined in Article 2 subparag. 1 and subparag. 4(d) of the Trade Union and Labor Relations Adjustment Act (affirmative)

[2] Whether the proviso of Article 2 subparagraph 4 (d) of the Trade Union and Labor Relations Adjustment Act, which is exceptionally interpreted as an employee when a dismissed person files an application for remedy, is limited to cases where the dismissal of a member of a company-level trade union is denied (affirmative)

[1] Article 2 subparagraph 1, subparagraph 4 (d) of the Trade Union and Labor Relations Adjustment Act / [2] Article 2 subparagraph 4 (d) of the Trade Union and Labor Relations Adjustment Act

[1] [2] Supreme Court Decision 2001Du8568 Decided February 27, 2004 (Gong2004Sang, 557) Supreme Court Decision 2012Du28247 Decided January 29, 2015 / [1] Supreme Court en banc Decision 2007Du4995 Decided June 25, 2015 (Gong2015Ha, 1080)

Defendant

Prosecutor

Law Firm Inn, Attorneys Kim Jong-Un et al.

Incheon District Court Decision 2014No230 decided May 23, 2014

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Workers as referred to in subparagraphs 1 and 4 (d) of Article 2 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) may include not only those who are employed by a specific employer and are practically employed, but also those who need to guarantee three labor rights, including temporary unemployment or job seeking (see, e.g., Supreme Court Decisions 2001Du8568, Feb. 27, 2004; 2007Du4995, Jun. 25, 2015).

In addition, the proviso of Article 2 subparag. 4 (d) of the Trade Union Act, which is exceptionally interpreted as an employee when a dismissed person files an application for remedy, shall be deemed to be limited to cases where a member of a company-level trade union is dismissed and its employee is denied, rather than an industrial, occupational, and regional trade union that is not premised on a subordinate relationship with a certain employer (see, e.g., Supreme Court Decisions 2001Du8568, Feb. 27, 2004; 2012Du28247, Jan. 29, 2015).

2. On the grounds indicated in its reasoning, the lower court determined that: (a) although the instant trade union, which reported the establishment of its establishment as a primary company trade union, which is not a company-level trade union, permits a person dismissed under its bylaws or a person with unemployment status to join a union member, it does not violate Article 2 subparag. 4 (d) of the Trade Union Act; (b) it does not constitute a ground for notification of foreign trade union pursuant to Article 9(2) of the Enforcement Decree of the Trade Union Act (hereinafter “Enforcement Decree of the instant case”) and Article 12(3)1 of the Trade Union Act; and (b) the fact that the instant trade union is subject to organization of other local workers after the beginning of the Incheon region does not constitute a ground for notification of foreign trade union pursuant to the Enforcement Decree of the instant case; (c) as such, notification of foreign trade union pursuant to the aforementioned other premise is unlawful; and therefore, (b) concluded that the instant trade union cannot be deemed an “trade union established pursuant to the Trade Union Act” despite the notification of foreign trade union, and did not accept the prosecutor’s grounds for appeal.

3. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on workers prescribed in the Trade Union Act, trade unions established under the Trade Union Act, and notification of foreign trade unions, or by failing to exhaust all necessary deliberations, as otherwise alleged in the grounds of appeal.

The Supreme Court precedents cited in the grounds of appeal are different from this case, and thus are inappropriate to be invoked in this case.

4. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)