Plaintiff (Law Firm Hanl, Attorneys Kim Jong-sik et al., Counsel for plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Cheongju Forestry Cooperatives (Law Firm Cheong Pung, Attorney Oi-op et al., Counsel for defendant-appellant)

4, 2004

1. The decision made by the National Labor Relations Commission on November 14, 2003 by the review application case between the Plaintiff and the Defendant’s Intervenor on November 14, 2003 is revoked.

2. Of the costs of lawsuit, the part pertaining to the participation by the Defendant shall be borne by the Intervenor, and the remainder shall be borne by the Defendant.

The same shall apply to the order.

1. Details of the decision on retrial;

The following facts are either disputed between the parties, or acknowledged by Gap evidence 1-2, Gap evidence 2-1, 2-2, and 3 in full view of the whole purport of the pleadings.

A. On July 18, 1994, the Plaintiff was transferred to the Simsan-Gun Forestry Cooperatives on April 17, 2003 (hereinafter “Simsan-gun Forestry Cooperatives”) (hereinafter “Simsan-gun”) while entering the Defendant’s Intervenor who runs the forestry-related service business and the general financial business, etc. (hereinafter “Simsan-gun”).

B. The Plaintiff filed an unfair remedy with the Chungcheong Regional Labor Relations Commission on July 3, 2003, and the said Regional Labor Relations Commission deemed that the transition was unfair without the Plaintiff’s consent, and issued an order for the revocation of the transition disposition and the reinstatement from office. However, in the case of a review for which the Intervenor’s union filed an objection, the National Labor Relations Commission did not necessarily require the Plaintiff’s consent on November 14, 2003 when the personnel exchange between the unions was conducted on the ground that the Plaintiff could not be deemed to have any disadvantage significantly beyond the level of ordinary attendance, and that the Plaintiff could not be deemed to have suffered from the increase in the time of departure or withdrawal from office, the order for remedy issued by the Chungcheong Regional Labor Relations Commission was revoked, and the said Regional Labor Relations Commission did not recognize the transfer of this case as unfair.

2. Whether the decision on the retrial of this case is lawful

A. Summary of the plaintiff's assertion

(1) The intervenor union and the non-party union are a district association with a separate legal personality, and thus, for the transfer of the above two unions, the consent of the parties must be obtained, and the transfer of this case was made without the consent of the plaintiff, and the decision of the reexamination of this case to be valid is unlawful by misapprehending the legal principles of the transfer of a separate business establishment.

The credit affairs and guidance affairs of the intervenor union or the non-party union are different from each other, and the plaintiff has been in charge of credit affairs since it was peculiar for the purpose of conducting credit affairs, and the plaintiff has been in charge of only the credit affairs since it was returned to the plaintiff in favor of the judgment rendered null and void dismissal, and the intervenor union had the plaintiff take charge of the duty of guidance affairs through the previous register of this case, and the decision made by the re-adjudication of this case, which judged that the plaintiff did not constitute an unjust prior representation, notwithstanding the abuse of personnel rights as a retaliation against the plaintiff, should be revoked illegally.

B. Relevant statutes and personnel regulations

Attached Form "Related Acts and subordinate statutes, etc." shall be as follows.

C. Determination

(i)Recognitions

The following facts can be acknowledged according to the evidence and evidence Nos. 3, 4, 6, 8, 10, 10, 10-1 through 6, 3-1 through 4, 6 through 10, and 10 of 3-1, 6 through 10 of 1, and 12 of 12, and the witness's testimony, which are neither disputed between the parties nor under dispute between the parties, and the statement of 12 of 12 alone are insufficient to reverse it.

㈎ 원고는 1994. 7. 18. 참가인 조합에서 개시하게 될 상호금융업무를 처리하기 위하여 금융과장으로 특별채용되어 상호금융업무를 담당하기 시작하였고, 1995. 8. 11.부터 1996. 5. 30.까지 사이에 형식상 지도과장이라는 직책을 부여받은 적이 있으나 이는 당시 참가인 조합이 상호신용업무를 개시하기 전이라 금융과장의 보직은 문제가 있다는 산림조합중앙회의 지적에 따라 원고에게 지도과장의 직책을 부여한 것일 뿐 원고는 지도과장의 직책에 있을 때에도 계속하여 정책자금관리업무 등 신용사업 관련 업무를 담당하였다.

㈏ 그러던 중 원고가 1998년 12월경 참가인 조합의 상호금융예탁금의 여유자금을 가지고 대우증권 전환사채를 청약·인수하고, 이를 다시 주식으로 전환하여 보유하는 과정에서 대우증권의 주식가격의 하락으로 인하여 참가인 조합은 2001년 10월경 약 8억 7,000만 원 상당의 평가손실 및 약 2억 7,000만 원 상당의 이자손실을 입게 되는 상황이 발생하였다.

㈐ 이에 참가인 조합은 2002. 3. 8. 원고가 자금운용을 잘못한 과실로 참가인 조합에게 위와 같은 손실이 발생하도록 하였다는 점을 이유로 해임하였으나, 원고는 이에 불복하여 참가인 조합을 상대로 하여 청주지방법원에 해임무효확인소송( 청주지방법원 2002가합1298 )을 제기하였다. 그리고 위 법원은 2003. 1. 24. 원고에게 자금운용에 있어 과실이 인정된다고 보기 어렵고, 주식을 적절한 시기에 처분하지 않은 잘못이 있다 하여도 해임이라는 징계양정은 지나치게 무겁다는 이유로 위 해임이 무효임을 확인하는 판결을 선고하였으며, 위 판결은 같은 해 2. 21. 확정되었다.

㈑ 그러자 참가인 조합은 2003. 3. 10. 원고에게 대한 복직발령은 하였으나 별다른 보직을 부여하지 않고 있던 중 소외 조합과의 협의를 거쳐 같은 해 4. 15.경 산림조합중앙회 충북지회에 원고에 대한 이동배치를 요청하여 소외 조합은 2003. 4. 17. 원고에 대하여 소외 조합 목재집하장 지도상무 대리라는 직책을 부여하고, 참가인 조합은 그 다음날 원고를 면직처리하는 방법으로 이 사건 전적이 이루어지게 되었다.

In addition, the non-party in charge of guidance, who worked for the same rank as the plaintiff (class 1) in the non-party partnership, was exchanged and placed as the intervenor partnership according to the plaintiff's former domicile, and had the intervenor union work for the management guidance. Accordingly, the intervenor union, together with one person in charge of guidance, who is not the plaintiff, and one other person in charge of guidance, who is not the plaintiff, has been working for the non-party union, and the plaintiff has been working for about 30 minutes to about 3 hours per day.

On the other hand, according to the articles of incorporation of the Intervenor Union and Article 68 of the Rules on the Number of and Standards for Executive Officers of the Union, two credit directors and guidance directors are appointed as executive officers. In general, credit directors take charge of credit business (financial business such as credit and receipt), and guidance directors take charge of affairs other than credit business.

㈒ 산림조합중앙회는 참가인 조합이나 소외 조합을 비롯하여 전국에 144개 회원조합을 두고 있고, 각 회원조합은 별도의 법인으로 설립되어 운영되고 있는데, 산림조합중앙회장은 회원조합의 지도·감독에 필요한 규정 또는 지침 등을 제정하고, 이러한 규정 등은 각 회원조합도 준용하거나 이를 따르고 있어 보수나 인사 등 근로조건에 관한 규정이 동일하게 적용되고 있다.

In addition, the exchange of personnel between each member cooperative is conducted by entering into a new labor contract with the member cooperative, but all of the career experience in the member cooperative previously employed pursuant to Article 5 (2) of the Personnel Management Regulations stipulating that such transfer of occupation is equivalent to transfer of occupation and transfer of occupation, and in the absence of special circumstances such as disciplinary action, regular pay shall be made every year. In addition, retirement pay shall be transferred to a new cooperative, and the number of years of service at the time of retirement shall be calculated by adding up the number of years of service at the time of retirement. In addition, the member cooperative, including the participant cooperative, did not request the employees' consent separately at the time of personnel exchange between the member cooperatives, and most workers have no objection

On the other hand, according to the rules on appointment screening for the participant association's employees, the participant association's appointment screening process provides that forestry practice, accounting practice (I), forestry association and forest related Acts and subordinate statutes and the paper are essential subjects for guidance affairs, accounting practice for credit affairs, mutual financial practice and thesis as essential subjects, and mutual financial practice and thesis are selected among forest related Acts and subordinate statutes (Article 8 (5)). If a person appointed as guidance officer intends to be appointed as credit secretary, he/she shall be selected as a type of accounting practice (II) and mutual financial practice (Article 10 (3). As such, if a person appointed as guidance secretary is to be appointed as credit secretary, then he/she shall be selected as a type of accounting practice (II). As such, if a guidance director is in charge of credit affairs by acquiring the qualification without credit standing, then he/she shall be in charge of credit guidance affairs by acquiring the qualification without credit standing.

Shed Judgment

㈎ 이 사건 전적에 원고의 동의가 필요한지 여부

In principle, the transfer of a worker takes effect with the consent of the worker. However, in a case where the transfer of a group of juristic persons engaged in social or economic activities with close relation to the composition and activities, etc., the transfer of the worker into another juristic person within the body of the juristic person without the consent of the worker, and such practice is clearly approved within the juristic person as a normative fact which regulates the labor relations, or its members are accepted as a matter of course without any objection, and it is naturally accepted as a matter of course and established as a labor contract. In special circumstances such as where it is acknowledged that the contents of the labor contract are reached, the transfer of the worker can be made effective as another juristic person without the specific consent of the worker (see Supreme Court Decision 95Da29970 delivered on December 23, 196, etc.).

In this case, the National Forestry Cooperatives Act and its affiliated associations are separate entities. On the other hand, the National Forestry Cooperatives Act and its affiliated associations are all incorporated based on the Forestry Cooperatives Act. The National Federation established with local associations and specialized associations as its members for the purpose of improving their common interests and promoting sound development (Articles 89(1), 87, and 117 of the Forestry Cooperatives Act). The National Federation provides for guidance for members' organization and management, education and training for members and employees, and information provision for the achievement of the above purpose (Article 108 of the Forestry Cooperatives Act). The National Federation provides that the National Federation shall appoint and dismiss the members of the National Federation upon the resolution of the board of directors (Article 5(1) of the Labor Cooperatives Act), the National Federation or its affiliated associations shall have no existing employees for the purpose of providing consultation about the change of their former employees' personnel management and placement, and the National Federation's employees shall not be deemed to have agreed on the change of their employment management and placement's existing employees' employment regulations (Article 5(2)3 of the National Federation's personnel management and placement Regulations).

㈏ 이 사건 전적이 인사권의 남용에 해당하는지 여부

Inasmuch as the transfer of occupation or the transfer of occupation belongs to the authority of the employer who is the personnel management authority, as a matter of principle, a considerable discretion should be recognized within the scope necessary for business. However, it is not allowed if there are special circumstances such as violation of the Labor Standards Act, etc., and whether the transfer of occupation falls within the scope of legitimate personnel rights should be determined based on the necessity of the transfer order and whether it has gone through the procedure required under the good faith principle in the course of the transfer order, such as comparison and comparison with the worker's living disadvantage, consultation with the worker himself, etc. (see Supreme Court Decision 97Da36316, Dec. 12, 1997, etc.).

In addition, the business necessity is not based on the subjective judgment of the employer, but on whether it contributes to the rational operation of the company, such as the promotion of the work efficiency caused by the proper placement of the labor force, the ability development of workers and the enhancement of the desire to work. The physical and time elements, etc. shall be considered in the worker's living disadvantage. The violation of the good faith principle is an important element of the employer's effort and its degree, the method of placement conversion, the equity with other workers, etc. In addition, the business necessity and disadvantage of the worker, and the violation of the good faith principle shall be comprehensively determined in accordance with the relative social norms according to the content and degree of the work.

According to the above facts, even if the Intervenor union had more than two executives who can be established in the Intervenor union by determining the articles of association and the established rules due to the reinstatement of the Plaintiff’s original status in accordance with the final judgment on invalidity of dismissal as seen earlier, it does not seem that the Intervenor union’s instruction and supervision of the Intervenor union (one of them is two persons who are in charge of the duty of credit standing) overlap with those of the Intervenor union as a result of the Nonparty union’s instruction and placement of the Nonparty, which is the non-party union, instead of transferring the Plaintiff to the non-party union. In addition, the Intervenor union’s instruction and supervision of the Intervenor union is not deemed to have been improved in its management or organization. On the other hand, even if the Intervenor did not have any disadvantage to the Plaintiff, the Plaintiff’s instruction and supervision of the Intervenor union should be determined in advance on the ground that it did not take any other reasonable measure as to the Plaintiff’s credit standing officer’s pre-determination or the need to take any other measure as to the instant case’s personnel instruction and supervision.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the decision of the retrial of this case is reasonable, and it is so decided as per Disposition by the assent of all participating Justices.

Judges Chuncheon (Presiding Judge)