In a case where a union member who has no voting right in the election for the chief of the division of a trade union participated in the voting for the unpaid union members, the case holding that even if excluding the unpaid union members, he/she participated in the voting for the union members exceeding the majority of the union members at the time of election, and that even if he/she deducts the votes from the number of votes obtained by the elected members, it is obvious that the winner still obtained the votes exceeding the majority of the total voters, and therefore the participation of the union members unpaid

In a case where a union member who has no voting right in an election for the head of the division of a trade union participated in the voting, the case holding that even if the unpaid union members are excluded, the voting was held by all union members exceeding the majority of union members at the time of the election, and even if the number of votes is deducted from the number of votes held by the elected members, it is obvious that the elected member still obtained more than a majority of the total voters, and therefore the participation by the unpaid union members does not constitute grounds for invalidation of the election.

Article 16(1)2 and (2) and Article 22 of the Trade Union and Labor Relations Adjustment Act

Applicant (Attorney Job Offer, Counsel for defendant-appellant)

The Daegu Regional Headquarters of the National Taxi Industry Workers' Union (Ynam Law Firm, Attorneys White-il et al., Counsel for the plaintiff-appellant)

Daegu District Court Order 2005Kahap617 dated September 19, 2005

1. The decision of the first instance shall be revoked;

2. On March 22, 2005, the applicant shall temporarily determine the status of the elected person of the election for the head of the chapter of the respondent as of March 22, 2005 by the time when the principal claim for nullification of the disposition of a trade union

3. The respondent shall not interfere with the applicant's performance of the functions of the headquarters of the respondent.

4. Costs of the petition and appeal shall be borne by the respondent;

The same shall apply to the order.

1. Basic facts

According to the records and the results of the examination by this court, the following facts are substantiated.

A. Status, etc. of the parties

(1) The National taxi industry trade union (hereinafter referred to as the “house”) is a nationwide unit trade union established with workers engaged in nationwide taxi transport business and related industries. For the smooth performance of operations and efficient activities of unions, each City/Do headquarters and its affiliated organizations have branches in each workplace and its affiliated organizations, and regulates the organization and operation of the association’s regulations and its affiliated organization.

(2) The respondent is the branch of the Jeon-gu regional headquarters of the Jeon-gu regional headquarters organized for the workers of the company A, which is in Daegu (detailed address omitted), and did not report the establishment of a trade union separately. The respondent regulates its organization and operation in accordance with the rules of Jeon-gu and its umbrella operating rules. Meanwhile, the applicant is the member of the headquarters of the respondent.

(b) Conducting the election for the chapter chief;

(1) On March 16, 2005, the respondent publicly announced the holding of an extraordinary general meeting for the election of the head of a new branch according to the expiration of the term of office of the non-applicant 1, who had the head of the sub-committee, and the election commission of the respondent (hereinafter “the election commission”) also announced the election commission of the head of the division as to the election day, registration of the candidate

(2) The applicant and the non-applicant 1 and the chief of the division were registered as candidates, and the result of the election of the chief of the division at the extraordinary general meeting on 22:00 of the same month, the applicant who received 48 votes was elected, and the election chief publicly announced the applicant as the winner on the same day.

(c) Holding a resolution on invalidation of an election or reelection;

(1) On the 25th of the same month, Nonparty 1 submitted a written objection on the grounds that many union members unpaid union expenses participated in the election of this case, and the election commission decided to invalidate the election of this case and conduct a re-election on May 6, 2005 pursuant to the “written order to handle the objection,” which held that the unpaid union expenses should decide the invalidation of the election of this case and hold a re-election.

(2) On the 17th day of the same month, the election of the chief commissioner was publicly announced, and only 21 persons other than the applicant were registered as candidates on the 27th day of the same month. As a result, the election of the chief commissioner by the vote of the chief commissioner on the 27th day of the same month, the applicant non-applicant 2 was elected with the consent of more than a majority of voters, and is currently performing

(d) the relevant provisions;

(1) Trade unions and Labor Relations Adjustment Act (hereinafter “Labor Relations Adjustment Act”).

Article 22 (Rights and Duties of Members) The members of a trade union shall have equal rights and duties to participate in all matters of the trade union: Provided, That a trade union may, under its bylaws, restrict the rights of those members who fail to pay union dues.

(2) Transitional Rules

(1) For the purpose of smooth execution of operations and efficient activities, the following organizations shall be established under this Association:

2. A local branch shall be established in each business establishment unit: Provided, That not more than 20 local branches may be operated in an integrated manner;

(2) The establishment, division, merger, dissolution, etc. of an organization under this association shall be governed by a resolution of all levels of resolution bodies stipulated in the regulations and regulations, and matters concerning its organization and operation shall be governed by separate regulations.

(3) Decree on the operation of a pre-house-affiliated organization

[Composition] Article 7 (2) The division shall be comprised of workers employed in each workplace, who fall under Article 7 of the rules of the association.

[Institution] Article 9 (3) A branch shall have the following institutions:

1. A general meeting or a meeting of delegates;

2. Operating Committee:

Article 16 [Composition] (1) A general meeting shall be comprised of its members as the highest resolution organ of the branch.

(2) A conference for representatives shall be comprised of the representatives elected according to the allocation standards set by the conference for representatives or operating committees, and the term of office shall be by the day preceding the third general meeting of shareholders in every three years: Provided, That a special election shall be held in cases of vacancies of at least 1/3.

Article 19 [Composition] (3) The operating committee of a local branch shall be comprised of not more than 20 members elected by the chairperson, the vice chairperson, the office chief and the general meeting.

Article 21 [Functions] (2) The steering committee of a local branch shall deliberate and resolve on the following matters:

1. Matters concerning the acceptance by general meetings and the execution of resolutions;

2. Matters concerning the resolution and execution of instructions of the superior organization;

3. Matters regarding the allotment of representatives;

4. Matters concerning guidance for new members;

5. Matters concerning the election of members of labor-management consultation and labor-management consultation;

6. Matters concerning the composition and approval of the Committee, including the election commission;

7. Matters concerning the settlement of grievances for members;

8. Matters concerning adjustment of approval for the use of reserve funds and the amount of execution for each item of expenditure budget;

9. Matters concerning disciplinary action against members and their lottery tickets;

10. Matters relating to the selection of a representative and vice-representative acting for the public announcement of all kinds of representatives;

11. Other necessary matters.

Article 25 [Attachment] (3) The branch shall have the following officers:

1. One chairperson of the branch office;

2. A small vice-chairperson of the branch;

3. A few auditors;

Article 27 [Election of Officers] (1) An election of executives shall be as follows:

2. The officers of the branch shall be elected at the general meeting by direct, secret, and anonymous voting of the members: Provided, That the election of the officers may be elected at the general meeting which determines the period only by voting;

Article 30 [collective bargaining] (2) When it is deemed necessary, the head of the headquarters for adjustment may delegate his/her right of negotiation to the representative of the branch or sub-branch: Provided, That the head of the headquarters shall notify the fact of delegation to the employer or employers' association under Article 29 (3) of the Trade Union and Labor Relations Adjustment Act.

(4) Transition Election Management Regulations

Article 8 (Composition) The cooperatives and subordinate organizations of each level shall establish an Election Commission (hereinafter referred to as the "Election Commission") comprised of three to five members to execute fair election management affairs as follows:

4. In the case of a branch, the local election commission.

Article 9 (Commissioning and Term of Office of Good Offices Members) (1) The chairperson, the head of the headquarters, the head of the branch, and the chairperson of the sub-branch (hereinafter referred to as the "representative") shall commission the members in charge of election affairs and the executive secretary to be in charge of election affairs from among the members

(2) The chairperson of each ship officer shall be elected from among committee members of each ship officer.

Article 10 (Functions) The functions of the Good Offices shall be as follows:

5. Preparation of the electoral register;

12. Confirmation and announcement of the results of ballot counting;

13. Confirmation of elected persons;

14. Handling an objection against the elected person and making a decision on the invalidation of an election;

Article 13 (Convocation and Operation of Meetings) (2) A majority of the committee members shall be held with attendance of a majority, and a decision shall be made with the consent of a majority of the committee members present: Provided, That when the numbers of votes of approval and disapproval are the numbers of votes,

Article 14 (Voting Right) (4) Members shall have the right to elect local officers, officers and representatives.

(5) Notwithstanding the provisions of paragraphs (1), (2), (3), and (4) of the preceding Article, any of the following persons shall have no voting right:

1. A person who has not paid union expenses or has not paid union expenses within the period of joining the union within the preceding three years;

Article 16 (Preparation and Inspection of Electoral Register) (3) The election commission of the local branch shall receive a list of the members who have the voting rights from the local branch before the election day and prepare the electoral register.

(4) A vessel election commission shall determine the electoral register within three days before the election day.

Article 17 (Objection and Decision) (1) Any elector may file an objection on the frontline by presenting evidence, where any omission or error exists in the electoral register or where an ineligible elector is registered.

Article 26 (Restriction on Contributions by Candidates) Any candidate and election campaign worker shall not make any contribution during the election campaign period.

Article 27 (Prohibited Matters) Any candidate and election campaign worker shall not commit any of the following acts in connection with the election during the election campaign period:

1. Obstructing an employer or a member from exercising his/her rights by receiving support, other than an employer, or by violence, intimidation, kidnapping, etc.;

2. An act of offering entertainment against candidacys beyond an ordinary sense, or money or goods, or an ordinary sense;

3. Receiving signatures or seals of representatives or members for an election campaign;

4. Obstructing other election affairs determined by the election commission.

Article 33 (Classification of Invalidity Votes) Any of the following voters shall be null and void:

1. Where no ○ mark is put in any column;

2. Where it is impossible to distinguish a column from which the ○ mark is put;

3. Those indicated in the name of ○○ mark, physical form, and seal;

4. Other things which are difficult to recognize as valid.

Article 34 (Decision on Elected Persons) (1) The following person shall be decided as the elected person:

1. Officers shall be decided as the elected person, who has obtained a majority votes and a majority of the voters; and

Article 35 (Raising and Handling Objections) (1) Any candidate or elector who has an objection to the result of an election may file an objection in writing with him/her along with evidential documents on the election campaign, within three days after the election ends.

(2) The captain shall, upon receiving an objection under the preceding paragraph, examine and decide such objection, and notify the appellant in writing within seven days.

(3) A decision on the invalidation of an election or election following an objection shall be made with the consent of at least 2/3 of all incumbent members.

In addition to an objection, when the election commission violates Articles 26 and 27 of the same Regulation during the election period or obvious evidence of an illegal election is found, a resolution on the invalidation of an election, invalidation of an election or warning disposition as provided in paragraph (3) of the preceding Article may be made during the election period.

Article 37 (Re-election) (1) Where the election commission of executives becomes final and conclusive, or the invalidation of election is determined and notified, with respect to the election of executives, a cooperative or its umbrella organization shall make a public announcement for the re-election within seven days.

2. Determination on this safety defense

A. The respondent is merely a subordinate organization or an affiliate organization of his former home, and it is difficult to recognize its independent organization. Thus, the respondent asserts that the application of this case against the respondent with no party ability is unlawful.

Even if a trade union is a subordinate organization of an industrial unit trade union, it shall be deemed as an unincorporated association if it acts as an independent organization with independent rules and executive organs (see Supreme Court Decision 96Nu14937 delivered on July 24, 1998, Supreme Court Decision 2000Do4299 delivered on February 23, 2001, etc.). As seen above, the respondent is an affiliated organization of the former unit trade union of an industrial unit trade union and is organized for the workers of the company A, and its organization and operation are regulated by its umbrella regulations. Since the regulations on the operation of the affiliated organization stipulate specifically about the members and location of the division, its branch, its business contents, decision-making body, its executive body, its execution body, and its collective bargaining rights (entrusted by delegation), the respondent's division can be deemed as its independent rules (see Supreme Court Decision 2006Da2568 delivered on March 24, 2006), and the general assembly operation committee's resolution body and its execution body are not legitimate.

B. In other words, the respondent argues that the application of this case against the respondent is unlawful, since the Respondent decided the invalidation of the election of this case, it did not object to the Respondent, and therefore, the Respondent's defense is not only a juristic person but also an unincorporated association or foundation, but also a trade union's organization, not a juristic person, since the election commission of the trade union itself has no autonomy as an organization (see Supreme Court Decision 91Da37683 delivered on May 12, 192). Thus, the Respondent's defense against the Respondent that erroneously designated the counterpart to the application of this case is without merit.

3. Determination as to the existence of a preserved right

A. The parties' assertion

(1) The applicant: (a) the applicant made a resolution on the number of union members who paid the union dues at least once; (b) the applicant agreed to the number of union members; and (c) the non-applicant members did not have any objection; and in particular, the non-applicant 1, who was the head of the headquarters of the respondent, knew that the union expenses of the non-applicant 3 were unpaid and was commissioned as the union members, so it is inappropriate for the respondent to dispute the right to vote of union members at the latest; and (d) under Articles 2 and 12 of the collective agreement and wage agreement, the company should deduct the union expenses in lump sum from the union wages, so it is improper to restrict the right to vote for the reason that the company should deduct the union expenses in lump sum; and (d) even if the applicant's votes were deducted from the applicant's votes, the applicant did not have any influence on the election result of the non-applicant 1; and therefore, (e) the non-applicant 1, who was the head of the union members, did not grant the opportunity to vote at least 2051.1.

(2) As to this, the respondent argues that the instant election in which non-voting union members participated on behalf of the non-voting union members is invalid in violation of Article 22 of the Trade Union and Labor Relations Adjustment Act and Article 14(5) of the Election Management Regulations, and that the subsequent resolution to invalidate the election and the subsequent re-election are all lawful. Thus, the respondent asserts that the applicant is no longer in the status of the elected party.

B. Facts of recognition

[Recognition-based grounds] The descriptions and the purport of the whole examination of evidence Nos. 3-2, 3, 5, 14, 16, 19, 20, 21, 23, 1, 25-1, 2, and 26

(1) Nonparty 1, who had the president of the branch of the respondent, commissioned Nonparty 3,4,53 as the chief executive officer, and Nonparty 3, at the time, expressed the unpaid amount of its union expenses to Nonparty 1, the applicant Nonparty 1 did not have any problem, and the applicant Nonparty 1 did not need to perform the duties of the chief executive officer.

(2) In the election management commission, the electoral registry was decided to grant the electoral right to vote on one occasion, and accordingly, the electoral registry was prepared with 79 members, excluding 81 members who were later employed and did not pay the partnership fees, and the electoral registry was announced on March 16, 2005. The electoral registry was finalized as they were, on the ground that there was no objection by the applicant, non-applicant 1, and other members.

(3) Of 79 members listed in the electoral registry, 73 members were present at the special meeting, 72 of them participated in the vote, the applicant received 48 votes and 100 votes respectively, and the remaining one vote was invalid. Among the voters above, 19 members of the partnership were included in 3 other than the applicant who is the chairman of the election commission, 2 other than the applicant who is the chairman of the election commission, and 6 other than the applicant who is the chairman of the election commission, and 7 of the election commission were listed on the electoral registry, but did not participate in the election of this case.

(4) On May 6, 2005, the former Chairman sent the Chairperson to the Chairperson for Handling the Objection, the former Chairman decided the invalidation of the instant election and ordered the re-election to be held, on the following grounds: (a) an advance election campaign among the details of the objection, whether a third party is involved, the portion of the receipt of money and valuables is insufficient to determine whether there is a lack of evidence, and there is a difference in the related parties’ arguments; and (b) the portion in which many unpaid union members participated in the voting may have a serious impact on the organization and

(5) On May 11, 2005, when deliberating on the invalidation of the instant election, the first election commission decided to follow the opinion of the first election chairman without giving the applicant a notification or statement of opinion and an opportunity to vindicate it, and did not notify the applicant of the result of the deliberation, the first election commission rejected the applicant’s signature and seal on the minutes on the ground that there was no fact that the first election commission was held on the same day.

(c) Markets:

(1) Grounds for participation in partnership's vote and invalidation of election

The first instance court held that the election of this case in which many unpaid union members participated in the voting is invalid, and first, it first examines whether the unpaid union members participated in the election of this case constitutes the ground for invalidation of election.

According to Article 22 of the Trade Union and Labor Relations Adjustment Act and Article 14 (5) of the Election Management Regulations, it is clear that a union member who has not paid union dues normally has no voting right. However, as seen earlier, the electoral register was prepared through discussions on unpaid union dues at the top of the election management commission, and confirmed whether each candidate and union member raise any objection, and the chairman and union member performed their duties as it was not problematic. The participation in the voting in this case by the unpaid union members is completely different from all illegal election acts prescribed in Articles 26 and 27 of the Election Management Regulations in light of the circumstances, and even if the illegal act was involved in the election process, it shall not be easily reversed the election result confirmed by the majority of the union members (see Supreme Court Order 2000Ma1029, Jul. 6, 200).

(2) Whether or not an election had influenced the result

(A) According to Article 22 of the Trade Union and Labor Relations Adjustment Act and Article 34(1)1 of the Election Management Regulations, in order to be elected as a representative of a trade union at a general meeting, a majority of union members present at the general meeting to carry out voting, and a majority of the total number of union members shall not be a majority of the total number of valid voting (see Supreme Court Order 95Ma645, Aug. 29, 1995). This means that a majority opinion shall be determined based on the number of all union members who participated in the election, including the voting for making a decision at the general meeting in accordance with the principle of majority, so that the decision at the general meeting can be made in accordance with the principle of majority, but unlike the union members whose voting is invalidated by mistake, a union member who has no voting right is not entitled to participate in the decision of the majority opinion of the union from

(B) According to the above facts, even if 19 members who participated in the voting as union members are excluded from the election of this case, 53 union members (72 - 19 union members) participated in the election of this case at the time of the election of this case and exceeded a majority of 81 union members who held office at the time of the election of this case. Even if it is assumed that the above 19 union members held all votings to the applicant, the applicant exceeds a majority of 53 union members who obtained 29 voting (48 - 19 voting) and eventually, it is obvious that the participation by union members in the voting of this case does not have any influence on the result of the election of this case.

(3) Sub-decisions

Therefore, the resolution for invalidation of the election of the chief executive officer on the ground of the unpaid voting participation of the union members is invalid without any need to further examine the remaining arguments of the applicant, and the applicant has the status as the chief executive officer of the respondent. Therefore, the right to be preserved in this case has a prima facie proof.

4. Determination on the necessity of preservation

While an applicant acknowledges whether a decision to invalidate the election of the elected party in the lawsuit on the merits is legitimate, the respondent shall elect the non-applicant 2 to the head of the branch through re-election, and the non-applicant 2 acts as the head of the branch from the expiration date of the non-applicant 1 to the head of the non-applicant 2, and denies the applicant's performance of duties as the head of the branch of the branch, so even if the applicant won the lawsuit on the merits, it shall be deemed that the applicant may incur irrecoverable damages until the judgment of winning the lawsuit on the merits becomes final and conclusive, and therefore the application

5. Conclusion

Therefore, the application for provisional disposition of this case is well-founded with sufficient vindication of the right to be preserved and the necessity of preservation, and thus, it is so decided as per Disposition by cancelling the decision of the first instance court different from this conclusion and accepting the application for provisional disposition of this case.

Judges Kim Chang-tae (Presiding Judge)