(영문) 서울고등법원 2014.12.24. 선고 2014누44047 판결

A. On July 4, 2013, the part regarding the person who was appointed to an association among the measures taken by the Defendant to correct the rules issued by the Plaintiff is revoked.

B. The plaintiff's remaining claims are dismissed.

2. Of the total litigation costs, 80% is borne by the Plaintiff. The remainder 20% is borne by the Defendant, respectively.

Purport of claim and appeal

1. Purport of claim

On July 4, 2013, the defendant revoked the disposition of the rules, corrective order, issued against the plaintiff on July 4, 2013.

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Details of the disposition;

Paragraph (1) shall apply to the reasoning for this part of the judgment of the court of first instance.

In accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, this shall be cited as it is.

A. Summary of the plaintiff's assertion

In the case of an industrial trade union at the first national level such as the Plaintiff, unlike the company-level trade union, it does not require a subordinate relationship to a certain employer as a result of the qualification of workers who form a trade union. Therefore, the phrase "persons who are appointed to an dismissed, unemployed, retired, and a union related to the transportation industry" can both become a member of the Plaintiff, and the disposition of this case was unlawful on a different premise.

B. Determination

(1) Relevant legal principles

A trade union refers to an organization, the principal agent of which is to maintain and improve the working conditions and to promote the improvement of workers’ economic and social status (the main sentence of Article 2 subparag. 4 of the Trade Union and Labor Relations Adjustment Act). The main sentence of Article 2 subparag. 4 (d) of the Trade Union and Labor Relations Adjustment Act provides that a trade union shall not be deemed a trade union if a person, other than an employee, is allowed to join the trade union. Accordingly, in order to become a legitimate trade union, a trade union should allow only workers to join the trade union. On the contrary, if a trade union permits a person, other than an employee, it shall be subject to a corrective order pursuant to Article 21(

On the other hand, Article 14 of the Labor Standards Act, which was established for the purpose of regulating individual labor-management relations, provides that "a person who provides work for the purpose of wages in a business or workplace regardless of the type of occupation," while Article 2 subparagraph 1 of the Labor Standards Act, which was established for the purpose of regulating collective labor-management relations, provides that "a person who lives on wages, wages, or other income equivalent thereto, regardless of the type of occupation." In addition, unlike a company-level trade union with a certain employer's subordinate relationship as a partner qualification, in the case of a primary-company trade union such as an industrial trade union and a regional trade union, etc., a certain employer's subordinate relationship with a certain employer does not meet the qualification requirements for union members. In full view of these circumstances, it is reasonable to view that not only those who are actually employed by a specific employer, but also those who need to guarantee labor rights provided for in Article 33 (1) of the Constitution, such as those who temporarily have employment or work ability, or those who are seeking to find jobs, including those who need to be applied (see, Supreme Court Decision 20014Du14.284.

(2) Under the instant agreement, with respect to the part of “disqualifieds and unemployed - retireds - reserve workers related to the transportation industry” under the instant agreement, the concept is broad. As a result, there is sufficient room to include not only those who can be included in workers as stipulated in the main sentence of Article 2 subparag. 1 and subparag. 4 (d) of the Trade Union and Labor Relations Adjustment Act, but also those who cannot be regarded as workers due to lack of labor intent or labor ability (e.g., those who are employed in the transportation industry, are dismissed, unemployed, or retired, but have no intention to be re-employed). On the other hand, there is no provision restricting the scope of “unemployeds, unemployed, or reserve workers related to the transportation industry” in the instant agreement.

Therefore, by clarifying that only workers provided for in Article 2 subparag. 1 and subparag. 4(d) of the Trade Union and Labor Relations Adjustment Act can join the plaintiff, the defendant can take corrective measures to ensure that the plaintiff satisfies the legitimate requirements as a trade union by way of more embodying or delaying the part of the dismissed, the unemployed, the retired, or the prospective worker related to the transportation industry under the instant provision. The plaintiff's assertion in this part is without merit.

(3) Of the instant agreement, “a person who is appointed to a cooperative” refers to an employee employed by the Plaintiff. However, allowing the Plaintiff’s employee to become a member of the Plaintiff is against the essence of the trade union pursuing the maintenance and improvement of working conditions through the autonomous and collective formation of workers, and the legitimacy of the agreement is doubtful as alleged by the Defendant.

However, in an appeal litigation seeking the revocation of an administrative disposition, a disposition agency may add or alter other grounds only to the extent that the grounds for the initial disposition are recognized as identical to the basic factual relations. The existence of the identity of the basic factual relations is determined based on whether the grounds for disposition are identical in basic social facts in terms of a basic point of view by citing specific facts prior to the legal evaluation of the grounds for disposition. Therefore, the existence of the existence of an additional or modified grounds is not identical to the original grounds for disposition on the ground that the relevant party had already existed at the time of the disposition or had been aware of such facts (see, e.g., Supreme Court Decision 2009Du19021, Nov.

As the court of first instance cited earlier, the Defendant, while rendering the instant disposition, allowed a person, other than a worker who lives on wages, pays, or any other income equivalent thereto, to join a trade union, thereby violating Article 2 subparag. 1 of the Trade Union and Labor Relations Adjustment Act. However, unlike the above grounds for disposition, it is clear that the Plaintiff’s employees constitute “worker” as stipulated in the main sentence of Article 2 subparag. 1 and subparag. 4 (d) of the Trade Union and Labor Relations Adjustment Act.

Therefore, it is unlawful for the defendant to issue a corrective order to the part of "person who is appointed to the union" among the regulations of this case only for the reasons for the above disposition. The plaintiff's assertion pointing this out is with merit

3. Conclusion

The plaintiff's claim is reasonable within the scope of seeking the revocation of the part of the disposition of this case against "the person who is appointed to the union", and the remainder of the claim shall be dismissed on the grounds that there are no grounds. The remainder except for the part against "the person who is appointed to the union" among the judgment of the court of first instance is unfair on the contrary. Therefore, the judgment of the court of first instance changed the part concerning "the person who is appointed to the union" among the disposition of this case,