[1] Whether fundamental right provisions under the Constitution have effect on a private legal relationship between individuals (affirmative)

[2] Contents of freedom of occupation guaranteed under Article 15 of the Constitution

[3] Whether freedom of decision-making on corporate management guaranteed under Article 15 of the Constitution should be harmoniously adjusted in a manner that recognizes the dignity of workers as human beings (affirmative)

[4] The method to resolve the conflict between the freedom of business such as the freedom of decision-making on corporate management and the general freedom of action enjoyed by workers surrounding the establishment of the "working conditions"

[5] In a case where Gap corporation engaged in domestic and foreign air transportation business temporarily suspended its flight service on the ground that Eul violated Article 5 (1) 2 of the Rules of Employment stipulating that "the employee's work uniforms and appearance regulations" and "the above flight suspension constitutes an unfair personnel disposition; Eul applied for remedy to the Labor Relations Commission; the National Labor Relations Commission decided that the above flight suspension constitutes an unfair personnel disposition; and Gap requested Gap company to revoke the review decision against the chairman of the National Labor Relations Commission, the case holding that the above rules of employment established by Gap corporation based on freedom of business operation under the Constitution infringed Eul's right to freedom of action under the Constitution, and thus, the above rules of employment are invalid in accordance with Article 96 (1) of the Labor Standards Act, Article 103 of the Civil Act, etc.

[1] The fundamental rights under the Constitution are primarily a defensive right to protect an individual’s free sphere from a violation of the public authority, but on the other hand, embodys the objective value order, which is the basic determination of the Constitution, and affect it in all legal areas including judicial (judicial). As such, private legal relations among private persons should also be governed in compliance with the provisions on fundamental rights under the Constitution. However, except for exceptional cases directly applicable to private legal relations by nature, the fundamental rights provisions form contents of Articles 2 and 103 of the Civil Act, which provide for relevant legal norms or the general principles of private law, and indirectly affect private legal relations by serving as the standard of interpretation.

[2] Article 15 of the Constitution provides that “All citizens shall enjoy freedom to choose an occupation,” guarantees freedom to choose an occupation. The freedom guaranteed by this provision includes freedom to engage in the chosen occupation and, in principle, freedom to decide freely on the content and form of activities. In addition, Articles 15(1), 23(1), and 119(1) of the Constitution of the Republic of Korea in terms of corporate activities, all companies have the right to freely operate and decide on their selected businesses or businesses, and are guaranteed by the Constitution.

[3] Article 10 of the Constitution provides, “All citizens shall have dignity and value as human beings and have the right to pursue happiness.” The right to freedom of action derived from the right to pursue happiness includes freedom to act or not, and the protection area includes matters concerning an individual’s way of living and hobby. Accordingly, Article 32(3) of the Constitution provides that the standard of “working conditions” shall be determined by the Act so as to guarantee human dignity, and Article 33(1) recognizes the three labor rights to improve workers’ working conditions. These provisions are naturally premised on the fact that the freedom of decision-making on business management is not unlimited, but should be adjusted harmoniously in the direction of recognizing human dignity in relation to employees who are the subjects of other fundamental rights. Article 119(2) of the Constitution provides that the State may regulate and coordinate economic activities in order to ensure economic democratization through harmony between economic entities.

[4] In a case where the freedom of business, such as the freedom of decision-making on the management of a company, and the right to freedom of action, which workers enjoy, conflict over the “working conditions” surrounding the establishment of a “working conditions,” the following should be resolved by balancing interests, taking into account the circumstances in a specific case into account, and interpreting the provisions of the statutes and regulations regarding the determination of the final validity of the working conditions, taking into account the limitation on the exercise of the two fundamental rights determined as a result thereof, shall be interpreted and applied.

[5] In a case where Gap corporation engaged in domestic and foreign air transportation business temporarily suspends its flight business on the ground that it violated Article 5 (1) 2 of the "Rules on the Uniforms and Uniforms of Officers and Employees", which is the rules of employment stipulating that Gap corporation shall not grow a target salt, and the National Labor Relations Commission made an application for remedy to Eul's Labor Relations Commission that the suspension of flight constitutes an unfair personnel disposition, and the National Labor Relations Commission decided that the suspension of flight constitutes an unfair disposition, and Gap company sought revocation of the review decision against the chairperson of the National Labor Relations Commission, the case holding that the above rules of employment does not have any negative rights to protect Gap's employees' freedom of business operation and right to freedom of action for restricting Gap's appearance and clothes for the purpose of raising the employees' awareness of liability and establishment of discipline, and thus, the above rules of employment cannot be seen as being unreasonable in light of the general freedom of action and freedom of action against two fundamental rights, and thus, it is hard to readily conclude that Gap company's general freedom of action beyond the scope of general freedom of action and equality of employees's.

[1] Articles 10 and 15 of the Constitution of the Republic of Korea; Articles 2 and 103 of the Civil Act / [2] Article 15 of the Constitution of the Republic of Korea / [3] Articles 10, 15, 32 (3), 33 (1), and 119 (2) of the Constitution of the Republic of Korea / [4] Articles 10 and 15 of the Constitution of the Republic of Korea / [5] Articles 10 and 15 of the Constitution of the Republic of Korea; Article 96 (1) of the Labor Standards Act; Article 103 of the Civil Act

[1] [4] Supreme Court en banc Decision 2008Da38288 Decided April 22, 2010 (Gong2010Sang, 897) / [2] Supreme Court Decision 92Nu1728 Decided March 8, 1994 (Gong194Sang, 1195) Supreme Court Decision 2003Do687 Decided November 13, 2003 (Gong2003Ha, 2397) / [3] Constitutional Court en banc Decision 201Hun-Ma659 Decided April 24, 2014 (Hun-Ga211, 830)

Asian or Air Co., Ltd. (Attorneys Kim Won-won et al., Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

The Intervenor joining the Defendant (Law Firm Woo, Attorneys Choi Du-pon et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2016Nu50206 decided February 8, 2017

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff, including the part resulting from supplementary participation.

The grounds of appeal are examined.

1. Method of determining whether fundamental rights are infringed upon in the conflict of fundamental rights;

A. The fundamental rights under the Constitution are primarily a defensive right to protect an individual’s free sphere from a violation of the public authority, but on the other hand, embodying an objective value order, which is a basic determination of the Constitution, and its impact on all legal areas including judicial (judicial). As such, private legal relations among private persons should also be governed in compliance with the provisions on fundamental rights under the Constitution. However, except for exceptional cases directly applicable to private legal relations by nature, the fundamental rights provisions form contents of Articles 2 and 103 of the Civil Act, which provide for relevant legal norms or the general principles under the private law, and indirectly affect private legal relations by serving as the criteria for interpretation thereof (see Supreme Court en banc Decision 2008Da38288, Apr. 22, 2010).

B. Article 15 of the Constitution provides that “All citizens shall enjoy freedom to choose an occupation,” guarantees freedom to choose an occupation. The freedom guaranteed under this provision includes freedom to engage in the chosen occupation and, in principle, freedom to freely determine the content and form of occupation (see Supreme Court Decision 92Nu1728, Mar. 8, 1994). In addition, in light of the purport of Articles 15(1), 23(1), and 119(1) of the Constitution from the perspective of corporate activities, all companies are entitled to freely manage and decide on their own business or operations, and are guaranteed by the Constitution (see Supreme Court Decision 2003Do687, Nov. 13, 2003).

Meanwhile, Article 10 of the Constitution provides, “All citizens shall have dignity and value as human beings and have the right to pursue happiness.” The right to freedom of action derived from the right to pursue happiness includes all acts or not to act, and the protection area includes matters concerning an individual’s way of living and hobbies (see, e.g., Constitutional Court en banc Decision 2011Hun-Ma659, Apr. 24, 2014). Accordingly, Article 32(3) of the Constitution provides that “the standards of working conditions shall be determined by Act to guarantee human dignity,” and Article 33(1) recognizes three labor rights to improve workers’ working conditions. These provisions are not unlimited freedom of decision-making on business management, but on the premise that the right to freedom of action derived from the right to pursue happiness should be adjusted in a way that recognizes the dignity of workers, who are other fundamental rights related to such decision-making, should also be combined to the effect that the State regulates economic democratization and coordination through economic democratization.

C. As can be seen, in a case where the freedom of business, such as the freedom of decision-making on the management of a company, and the right to freedom of action, which workers enjoy, conflict over the establishment of the “working conditions,” in mind of the constitutional relationship between the working conditions and the guarantee of human dignity, it is necessary to resolve the conflict through a balancing of interests, taking into account the circumstances in a specific case into account, and an interpretation seeking an actual harmony between fundamental rights. As a result, considering the limitation on the exercise of two fundamental rights determined, the statutory provisions regarding the determination of the final validity of working conditions should be interpreted and applied (see, e.g., Supreme Court en banc Decision 2008Da3

2. Whether the instant flight suspension measure against the Intervenor joining the Defendant is unlawful

A. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) The Plaintiff is a company established on February 17, 1988 and engaged in domestic and overseas air transportation business, etc., and the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) joined the Plaintiff company on July 1, 1997 and engaged in flight duty.

(2) Article 5 of the Rules of Employment of Officers and Employees provides that “the appearance of an officer and employee shall be decent and clean.” In the case of a male employee under paragraph (1) 2, Article 5 of the Rules of Employment provides that “An employee shall maintain clean condition at all times and shall not take a beard: Provided, That in the case of a foreigner in whose case a mustache is generalized, a mustache shall be permitted to the extent that does not cause a sense of aversion to others” (hereinafter “instant provision”).

(3) Meanwhile, on September 2014, the Intervenor had served as captain A320. On September 12, 2014, the Plaintiff’s team leader of the safety management team A320, to which the Intervenor belongs, instructed the Intervenor on September 12, 2014, that “the Intervenor raised the sprinke because it violates the instant provision,” but the Intervenor continued to comply with the said order on the grounds that the said provision unfairly discriminates against the Intervenor and foreign employees and infringes on the Intervenor’s freedom.

(4) Accordingly, the Plaintiff temporarily suspended the Intervenor’s flight service from September 12, 2014 to September 2014 (hereinafter “instant flight suspension”). After that, the Intervenor’s amnesty and expressed his intent to return to the flight service, the Plaintiff returned the Intervenor again from the 11th day of the same month following the observation period of the ground service before the flight duty from October 8, 2014 to the 10th day of the same month.

(5) On December 9, 2014, the Intervenor filed an application for remedy with the Seoul Regional Labor Relations Commission by asserting that the instant flight suspension constitutes unfair personnel disposition, but was dismissed, the Intervenor filed an application for review with the National Labor Relations Commission on March 6, 2015. On May 14, 2015, the National Labor Relations Commission revoked the said initial inquiry court on the ground that “the instant provision may be controversial as to the validity of the instant flight suspension, and there is no business necessity or reasonable reason, and there is a great disadvantage on the part of the Intervenor,” and rendered a decision to recognize that the instant flight suspension was an unfair disposition.

B. Examining the above facts and the following circumstances acknowledged by the record in light of the legal principles as seen earlier, the instant provision, which was enacted by the Plaintiff based on the freedom of business operation under the Constitution, infringes on the Intervenor’s right to freedom of action under the Constitution, is null and void in accordance with Article 96(1) of the Labor Standards Act and Article 103

(1) The Plaintiff is a fraud operating air transport business, etc., and the Plaintiff may limit the appearance and clothes, etc. of its employees through the rules of employment to a reasonable extent, as necessary, depending on the need, such as enhancing the customer confidence and satisfaction with the airline, raising the employee’s awareness of responsibility, and establishing the work discipline. This is because the right to freedom of action is not unlimited. However, such rules of employment has the limitation that it may not infringe on the fundamental rights of workers or be in violation of superior laws, including the

(2) Meanwhile, the instant provision limits the Intervenor’s right to freedom of action by completely prohibiting the employees, including the Intervenor, from growing a mustache, other than some foreign employees from growing a mustache. This restriction leads to the conflict between the Plaintiff’s freedom of business and the Intervenor’s right to freedom of action.

(3) The instant provision entirely prohibits all employees belonging to the Plaintiff, except for the exception of the Plaintiff’s freedom of business and the Intervenor’s right to freedom of action, without balancing or harmonious adjustment, from growing a mustache, except for some foreigners’ growing a mustache. In such a case, uniformly restricting the employees’ right to freedom of action beyond the scope of necessity and rationality related to the freedom of business operation is problematic in terms of balancing of fundamental rights and coordination of fundamental rights.

(4) In light of today’s changes in social perception of the diversity of personal appearance, it is difficult to readily conclude that the employee belonging to the Plaintiff has caused negative perceptions and impacts on the customer, solely on the ground that he/she was infected. Rather, if the relevant employee renders salt clean and decent in line with his/her appearance and nature of work to the extent that it does not rash other people, it may have a positive impact on the customer’s trust or satisfaction. Even after examining the record of this case, there is no reasonable ground to deem that the employee’s awareness of responsibility or customer confidence was increased as a result of preventing the employee from raising salt in accordance with the instant provision. Accordingly, it cannot be readily concluded that the relevant employee does not in itself interfere with the freedom of business at any time.

(5) Furthermore, the Intervenor is serving as a captain responsible for the operation of an aircraft, and it cannot be deemed that the captain’s duty is included as a matter of course in the provision of services directly to the passengers on board the aircraft within the scope of his/her duty. An alternative selected by the Intervenor to protect his/her general right of freedom of action does not have any choice other than that of the Plaintiff Company. Nevertheless, it is not reasonable to force the Intervenor to refrain from raising the infection in a uniform and complete manner, and thus, it can be deemed that the Intervenor’s general right of freedom of action is excessively restricted.

(6) The Plaintiff asserts to the effect that it is necessary to completely prohibit the aircraft captain’s infection for the safety of air navigation, but it is difficult to find any reasonable grounds and grounds to support such assertion. Rather, the Plaintiff has partially allowed foreign employees, including the aircraft captain, to grow beards, and other airlines do not completely prohibit flight crew members from raising beards. Furthermore, the Plaintiff’s amendment of the rules of employment does not seem to be impossible or difficult to reasonably limit the appearance, clothes, etc., including the form of beards, in detail and individually, considering the characteristics and needs of individual duties by amending the rules of employment.

(7) Therefore, the instant provision excessively limits the Intervenor’s right to freedom of action beyond the bounds of the Plaintiff’s freedom of business, thereby infringing on the employee’s right to freedom of action, including the Intervenor.

C. In the same purport, the lower court determined that the instant provision was unlawful, based on the premise that the Intervenor violated the Intervenor’s right to freedom of action and thus null and void as it violates Article 96(1) of the Labor Standards Act, and that the instant flight suspension, which was based on the premise that the Intervenor did not comply with the instant provision, which is unconstitutional and unlawful. Such determination by the lower court is based on the legal doctrine as seen earlier. In so doing, it did not err by misapprehending

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)