(영문) 서울행정법원 2014.7.24. 선고 2014구합7756 판결

1. On November 7, 2013, the Defendant’s disposition of suspending practicing certified public labor attorneys for one year and six months against the Plaintiff shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

3. The disposition stated in paragraph 1 shall cease to be effective until the judgment of the appellate court of this case is rendered.

Purport of claim

It is as stated in paragraph (1) of this Article.

Reasons

1. Details of the disposition;

A. On November 2, 2000, the Plaintiff received a certified labor affairs consultant’s license from the Defendant. The Plaintiff established “B” engaging in labor consulting, etc. on October 1, 2002, and registered the commencement of certified labor affairs consultant’s duties on October 2, 2002.

B. On November 5, 2013, the Defendant held the Certified Public Labor Attorney Disciplinary Committee against the Plaintiff (hereinafter referred to as the “Disciplinary Committee”). The Minister of Employment and Labor, the members of the Ministry of Employment and Labor D, the Seoul Regional Employment and Labor Office E, the Vice-Chairperson of F Organizations G, Law Firm HI, and the Ministry of Government Legislation (However, as the Chairperson of the instant Disciplinary Committee did not attend the instant Disciplinary Committee, the Ministry of Government Legislation Justice conducted the instant Disciplinary Committee by entrusting the Chairperson of the Ministry of Government Legislation). The instant Disciplinary Committee did not include “the person appointed by the Chairperson of the National Labor Relations Commission from among Grade III public officials of Grade III of the National Labor Relations Commission or public officials in general service belonging to the Senior Civil Service.” In the instant Disciplinary Committee, on November 7, 2013, the Defendant decided to punish the Plaintiff, and the Defendant notified the Plaintiff of this (hereinafter referred to as “instant disposition”).

From June 3, 2011 to June 15, 2011, the Plaintiff conducted a personnel labor management diagnosis (in the field of labor) against 5 affiliated companies of the K Group for the management of labor union (the title of the document refers to a report on projects for the assessment of labor union response for future win-win management) on June 21, 201, and suggested a strategy, etc. to fundamentally block the establishment of a trade union in the form of a report on the diagnosis in the field of labor-management relations (the title of the document refers to a "report on projects for the assessment of labor union response for future win-win management"), and recommended that the L diagnosis result that includes multiple contents of unfair labor practice be shared and distributed to other affiliated companies, and provided guidance, consultation, and other similar actions in violation of the law, such as explaining the results of the diagnosis at each workplace held in the management strategy office of the K Group, which violates the Act on Certified Public Labor Attorney (hereinafter referred to as the "Certified Public Labor Attorney Act") and the Act.

applicable to Article 20 of the Act.

D. On December 4, 2013, the Plaintiff filed an application with the Central Administrative Appeals Commission for adjudication on the instant disposition, but was dismissed on April 1, 2014.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 7, Eul evidence 3, the purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(i) procedural defects;

A) According to Article 20-5 (1) of the Enforcement Decree of the Certified Public Labor Attorney Act (hereinafter referred to as the "Enforcement Decree"), the Certified Public Labor Attorney Disciplinary Committee (hereinafter referred to as the "Disciplinary Committee") shall be composed of seven members including one chairperson. However, the Disciplinary Committee of this case did not include "one person designated by the chairperson of the National Labor Relations Commission from among public officials of Grade III of the National Labor Relations Commission or public officials in general service belonging to the Senior Civil Service."

B) According to Article 21(1)3 of the Administrative Procedures Act with respect to the prior notice of a disposition, where an administrative agency imposes an obligation on the party or imposes a disposition that restricts his rights and interests, it shall notify the Plaintiff of the details of the disposition in advance. However, the Defendant did not notify the Plaintiff of only the “Disciplinary Action pursuant to Article 20 of the Act” and did not notify the Plaintiff of

C) Regarding the presentation of the reasons for the disposition

Since the Defendant did not present at all the grounds for the determination while rendering the instant disposition to the Plaintiff, the Defendant violated the duty to present reasons for the disposition under Article 23(1) of the Administrative Procedures Act.

D) Violation of the duty to establish and publicly announce a disposition standard

According to Article 20 (1) of the Administrative Procedures Act, the administrative agency shall determine and publicly announce the necessary disposition standards to the extent possible in consideration of the nature of the disposition concerned. The defendant did not publicly announce the disposition standards for disciplinary action against a certified public labor attorney in advance.

2) Material defect

Around May 201, the Plaintiff entered into a contract with K Group on the submission of a report on the management of labor affairs with K Group, but did not enter into a consultation or advisory contract. The Plaintiff did not establish a trade union for the five affiliated companies of K Group at the time of the Plaintiff’s diagnosis on the management of labor affairs and did not engage in the process of establishing a trade union. The Plaintiff did not engage in guidance, consultation, etc. on the management of labor affairs, and thus, the instant disposition taken by the Defendant on the premise thereof is unlawful.

B. Relevant statutes

Article 2 (Scope of Duties) (1) Certified Public Labor Attorney Act shall perform the following duties:

1. Reporting, filing a report, requesting a statement (including filing an objection, requesting a trial and requesting a trial) with the relevant agency in accordance with labor-related Acts and subordinate statutes, acting as an agent or agent for relief of rights;

2. Preparation and confirmation of all documents under labor-related Acts and subordinate statutes;

3. Consultation and guidance on labor-related Acts and subordinate statutes and labor management;

5. Private mediation or arbitration as provided for in Article 52 of the Trade Union and Labor Relations Adjustment Act (i) A practicing labor affairs consultant shall always maintain his/her dignity and perform his/her duties fairly with good faith and sincerity, and where he/she is unable to perform his/her duties fairly, he/she shall not perform duties provided for in Article 2;

Article 13 (Prohibited Acts) No practicing labor attorney and his/her business assistant shall perform any of the following acts:

(1) The Certified Public Labor Attorney Disciplinary Committee shall be established in the Ministry of Employment and Labor to deliberate and decide on disciplinary action against certified public labor attorneys.

(2) The organization and operation of the Certified Public Labor Attorney Disciplinary Committee and other necessary matters shall be prescribed by Presidential Decree.

Article 20-5 (Composition of Disciplinary Committee) of the Enforcement Decree of the Certified Public Labor Attorney Act

(1) The Certified Public Labor Attorney Disciplinary Committee (hereinafter referred to as the "Disciplinary Committee") under Article 20-2 (2) of the Act shall be comprised of seven members, including one chairperson.

(2) The chairperson of the Disciplinary Committee (hereinafter referred to as "chairperson of the Disciplinary Committee") shall be appointed by the Minister of Employment and Labor from among public officials in general service belonging to the Senior Civil Service in the Ministry of Employment and Labor, and other members

1. Each one person nominated by the head of each agency from among Grade III public officials of the Ministry of Government Legislation and the National Labor Relations Commission or public officials in general service belonging to the Senior Civil Service

2. Two persons appointed by the Minister of Justice from among Grade III public officials of the Ministry of Employment and Labor or public officials in general service belonging to the Senior Civil Service, two persons appointed by the Minister of Employment and Labor, and one lawyer;

4. One person appointed by the Minister of Employment and Labor from among certified public labor attorneys recommended by the head of the Certified Public Labor Attorney Association.

(2) Where the chairperson of the disciplinary committee is unable to perform his duties due to unavoidable reasons, a member designated in advance by the chairperson of the disciplinary committee shall act on behalf of the chairperson. Meetings of the disciplinary committee under Article 20-9 shall be resolved with the attendance

C. We examine the legitimacy of the composition of the instant disciplinary committee.

1) Whether there exists any defect in the composition of the instant disciplinary committee

According to Article 20-2 (1) and (2) of the Act, the Certified Public Labor Attorney Disciplinary Committee shall be established in the Ministry of Employment and Labor in order to deliberate and resolve on disciplinary action against certified public labor attorneys, and the organization and operation of the Disciplinary Committee and other necessary matters

According to Article 20-5 (1) and (2) of the Enforcement Decree enacted upon delegation above, the Disciplinary Committee shall be composed of seven members including a chairperson. The chairperson of the Disciplinary Committee shall be appointed by the Minister of Employment and Labor from among the public officials in general service belonging to the Senior Civil Service Corps of the Ministry of Government Legislation, and the members shall be comprised of ① one person designated by the Minister of Government Legislation from among the public officials of Grade III in general service belonging to the Ministry of Government Legislation or public officials in general service belonging to the Senior Civil Service; ② one person designated by the chairperson of the National Labor Relations Commission from among the public officials of Grade III in general service belonging to the National Labor Relations Commission or the Senior Civil Service Corps; ③ two persons designated by the Minister of Employment and Labor from among public officials of Grade III in general service belonging to the Ministry of Employment and Labor or public officials in general service belonging

However, six members of the disciplinary committee of this case including the chairperson, and one person designated by the chairperson of the National Labor Relations Commission from among the public officials of Grade III of the National Labor Relations Commission or public officials in general service belonging to the Senior Civil Service, among the members under the above provisions, are not included. Thus, the disciplinary committee of this case is defective in its composition.

2) Judgment on the defendant's assertion

A) At the time of holding the instant disciplinary committee, the Defendant asserts that the instant disposition cannot be deemed unlawful due to such defects, since there was no “public officials of Grade III or public officials in general service belonging to the Senior Civil Service” in the National Labor Relations Commission, and there was no person who may be designated as members of the disciplinary committee.

The defendant's assertion is merely an internal circumstance of the National Labor Relations Commission or the Ministry of Employment and Labor, and thus, it cannot be deemed legitimate to form a disciplinary committee of not more than seven members in violation of Article 20-5 (1) of the Enforcement Decree. In this case, the defendant should have constituted the disciplinary committee against the plaintiff by appointing one of the following persons as a member of the National Labor Relations Commission (see Supreme Court Decision 94Da19228, Feb. 10, 195). The defendant should have been appointed by the chairperson of the National Labor Relations Commission as a member of the planning general secretary, the chief of the conciliation trial, the chief of the conciliation division, the chief of the bargaining decision-making division, the chief of the negotiating decision-making division, the chief of the adjudication division, and the chief of the adjudication division, one of those who are in the next class or a senior public official in general service belonging to the Senior Civil Service.

Therefore, the disciplinary committee of this case is unlawful in its composition, and ① the disciplinary committee shall be composed of seven members in total under Article 20-5 (1) and (2) of the Enforcement Decree, considering the importance of disciplinary action against a certified public labor attorney, it appears that the legislative intent of the disciplinary committee is to take fair and reasonable disciplinary action by organizing the disciplinary committee with members representing respective ministries and agencies and offices related to the affairs of a certified public labor attorney. ② According to Article 2 (1) of the Act, the scope of the duties of a certified public labor attorney is to act on behalf of, or on behalf of, reporting, filing a statement of application (including filing an objection, request for examination, and request for trial) and remedy of rights to the relevant agencies in accordance with the labor-related Acts and subordinate statutes. Accordingly, it is one of the main duties of a certified public labor attorney to act on behalf of the Labor Relations Commission for the Labor Relations Commission or to act on behalf of the Labor Relations Commission to request unfair dismissal or unfair labor practices. Therefore, it is reasonable to view that the above illegality of the disciplinary committee becomes an independent ground for the disposition of this case

B) According to Article 20-9 of the Enforcement Decree, the Defendant asserts that the disciplinary committee’s resolution was not infringed on the fairness of the disciplinary committee’s resolution, taking account of the following: (a) the instant disciplinary committee’s resolution on the instant disposition against the Plaintiff by unanimous attendance of five members present; and (b) the Plaintiff appeared in the instant disciplinary committee and sufficiently explained.

However, as in the instant case, even if a disciplinary committee was constituted in the state where one of the members was excluded and the disciplinary committee was held without the attendance of the member, the resolution of the disciplinary committee was unlawful (see Supreme Court Decision 2008Da3534, May 15, 2008).

Therefore, the defendant's above assertion is without merit.

3) Sub-decisions

Since the disciplinary committee of this case is unlawful in its composition, according to the resolution of the disciplinary committee of this case.

The instant disposition was unlawful without further review of the remainder of the disposition.

3. According to the data revealed in the records of this case, the validity suspension of the instant disposition is suspended ex officio until the judgment of the appellate court of this case is rendered, since it is recognized that there is an urgent need to prevent irrecoverable damage caused to the Plaintiff due to the execution of the instant disposition, and there is no other data that can be deemed to be a case where the validity suspension is likely

4. Conclusion

Therefore, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.