[1] Whether a trade union is allowed to procedurally limit the exercise of the power to conclude a collective agreement by the rules, etc. (affirmative in principle)

[2] Whether the representative of a trade union bears the duty of due care as a good manager according to the delegation relation to individual union members (negative)

[1] Articles 16(1)3 and 29(1) of the Trade Union and Labor Relations Adjustment Act / [2] Article 681 of the Civil Act; Articles 16(1)3 and 29(1) of the Trade Union and Labor Relations Adjustment Act

It is as shown in the attached list of plaintiffs.

Defendant (Law Firm Lee & Lee, Attorneys Cho In-ok et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na28150 decided January 8, 2010

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

According to Article 29(1) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”), the representative of a trade union, on behalf of the trade union or its members, has the authority to negotiate and conclude a collective agreement with an employer or an employers’ association on behalf of the trade union or its members, and the total and comprehensive restriction of such representative’s authority to conclude a collective agreement is contrary to Article 29(1) of the Trade Union Act (see, e.g., Supreme Court en banc Decision 91Nu1257, Apr.

However, in light of the fact that a collective agreement has a normative effect to directly decide on the working conditions and other criteria for the treatment of each member of a trade union, the actual subject of the collective agreement is an employee, and therefore, collective agreement is the basic request for collective bargaining to be concluded based on the intent of the trade union formed by the members participating in the collective agreement. Article 16(1)3 of the Trade Union Act provides that matters concerning collective agreement shall be determined as a resolution of the general meeting and the representative of the trade union may prepare a proposal for bargaining through the general meeting before the commencement of collective bargaining or collect the total amount of union members continuously in the course of collective bargaining, etc., restricting the exercise of the power to sign collective agreements by such trade union to procedurally reflect the intent of the union members and to exercise the power to sign collective agreements, not to completely and comprehensively limit the power to sign collective agreements.

However, even if the actual subject of a collective agreement is an employee, and the representative of a trade union is obligated to reflect the intent of the union members in concluding a collective agreement, the representative of a trade union is merely obligated to perform its duties in accordance with the delegation of the trade union and to perform its duties as a good manager for the trade union as an agency representing the trade union, and cannot be deemed to bear the duty of due care as a good manager for the individual union members

Nevertheless, on the premise that the representative of a trade union bears the duty of due care as a good manager for individual members, the lower court recognized the Defendant as liable for damages due to the Defendant’s breach of the duty of due care as a good manager on the ground that the Defendant concluded the instant collective agreement with more unfavorable terms and conditions than the previous ones without undergoing internal procedures as stipulated in the instant agreement, thereby causing mental distress to the Plaintiffs who are union members. In so determining, the lower court erred by misapprehending the legal doctrine on the relationship between the representative of a trade union and individual union members, thereby adversely affecting the conclusion of the judgment. The allegation contained

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Lee In-bok (Presiding Justice)