Where the representative of a trade union fails to comply with a request for temporary convocation of meetings of union members or representatives, whether the provisions of the trade union rules granting authority to a person who has obtained at least a certain number of support from among the union members or representatives that have requested the convocation violates Article 26 (4) of the Trade Union Act

Article 26 (4) of the Trade Union Act provides that, if the representative of a trade union fails to perform the duty to convene a special meeting as provided for in paragraph (2) of the same Article, an administrative agency shall be deemed to actively intervene in the position of a guardian and grant the authority to convene a meeting without a request from a trade union member, etc. In such a case, it cannot be interpreted to the effect that an administrative agency grants exclusive authority to convene a meeting only to an administrative agency in such a case. Thus, if the representative of a trade union fails to comply with a request for convening a meeting, the provisions of the trade union regulations that grant the authority to convene a meeting from among union members or representatives who requested the convocation shall not violate paragraph (4) of the same Article.

Article 26 of the Trade Union Act

Kim Nam-nam

Hyundai Heavy Industries Co., Ltd. and one other

1. The respondent shall not interfere with the applicant’s performance of duties as the vice-chairperson of the Hyundai Heavy Industries Trade Union.

2. The applicant's remaining requests are dismissed.

The respondent shall not interfere with the applicant's performance of duties as the chairperson and vice-chairperson of the Hyundai Heavy Industries Trade Union.

1. Basic facts

If the evidence of category 2 through 11, the evidence of category 13 through 19, the evidence of category 2, 3, the evidence of category 21 through 23, the evidence of category 24-1 through 14, the evidence of category 5, the evidence of No. 11-4 through 9, the lawsuit of category 12-1 through 12-18, the statement of category 16 through 21, the evidence of category 16 through 21, and the statement of Park Byung-ok (except for the part which is not believed after the statement of Park Byung-ok for reference), are combined with the whole purport of examination, there is no other evidence that prove the following facts, and part of the statement of category 3 Park Byung-ok, which is contrary thereto, are trusted, and there is no other evidence that prove otherwise.

(1) Both the applicant and the respondent are members of a trade union (hereinafter referred to as a trade union only as follows) established in Hyundai Heavy Industries Co., Ltd. (hereinafter referred to as the respondent's Hyundai Heavy Industries).

(2) Non-Appellant 2 was elected as the Respondent 6th 1. From January 1, 192 to take charge of the above Respondent 1, 192. The Respondent 2nd 1st son 2nd 7th son 1st son 1st son 2nd 1st son 2nd 1st son 2nd 1st son 2nd 1992, and the Respondent 1st son 2nd 9th son 1st son 2nd 1st son 1st son 1st son 2nd 9th 1st son 9th son 1st son, the Respondent 1st son 1st son 1st son, the Respondent 2nd 1st son 9th son, the Respondent 1st son 1st son, the Respondent 1st son 1st son 9th son 2nd 1st son 19th son.

(3) On November 11, 1992, a union passed a resolution on the agenda that approves the respondent's friendly crime as a proxy for the chairperson of the union with the consent of 85 with the consent of 85 representatives among 134 representatives present at the meeting by holding a provisional board of representatives and holding a secret secret vote. The above respondent publicly announced the execution of the four special election for the vice-chairpersons and the seven representative elections in the election that was held on February 25, 1993, the 182 representatives were elected at the election that was held on March 12, 1993, and all 4 persons including the applicant elected in the shipbuilding division were elected as new vice-chairpersons in the above four sectors.

(4) On March 17, 1993, the respondent promised to convene a meeting of the Steering Committee for the normalization and early preference of the union as the chairperson acting as a proxy. At the meeting of the representatives of the union held on March 17, 1993 under the initiative of the applicant who had a question about the intent to practice, 123 representatives agreed to require the above respondent to convene an extraordinary meeting to deliberate on the agenda of the special election for the chairperson, the chief vice-chairperson, and the secretary general. Next, other white records than the above representatives delegated by the above representatives delivered the request for convening a meeting to the above respondent, but the above respondent did not have to convene a general meeting or the board of representatives, and the respondent did not go through marriage on March 21, 21 of that year, and he responded to the above respondent after completing the leave period until March 28, 2007.

(5) On March 22, 1993, the above 123 representatives opened a meeting again, and nominated the above white papers as the person entitled to convene an extraordinary board of representatives, and the above white papers as an agenda item for the organization of an election commission for the replacement of the chairman’s duties on behalf of the chairman and the special election of officers such as the chairman, etc. on March 26, 1993, publicly announced that the above white papers should be convened as of March 31 of that year.

(6) The extraordinary board of representatives convened pursuant to the above schedule stated that 139 members of the total number of 182 members of the board of representatives were present, and the above white book argued that "the union is unable to act normally after the resignation of the chairman, and the respondent is able to abuse its authority or pass a non-Confidence proposal against the above respondent by failing to carry out a special election by the chairman, etc." The representatives presented a non-Confidence proposal against the above respondent. Some delegates proposed that the above resolution should be carried out by a secret secret vote, but a resolution was made to choose the former among the methods of voting by a secret vote (this resolution was made by a multiple vote). As a result, the non-Confidence resolution was adopted with 1285 and 11 votes.

(7) Next, the delegates heard the statement from the vice-chairpersons that they already agreed to leave the applicant as a candidate for the chairman’s acting as the chairman. They entered the voting by the method of hand voting and passed the above agenda with the consent of 129 representatives again until then.

2. Judgment on the argument of the claimant and the respondent

The following is to judge the claims of the claimant and the respondent in the order of time following the fact under paragraph (1) above for convenience.

A. The nature and validity of the resolution to act for the chairperson on behalf of the respondent at the extraordinary council of delegates on November 11, 1992

The Claimant asserts that the resolution of approval against the Respondents in the above provisional council is null and void. Therefore, first, I examine the contents of the rules of the association recognized by the No. 1 and No. 12 of the A. 12 of the lawsuit (hereinafter referred to as the "laws of the association").

According to the bylaws, a cooperative has a general meeting as an organization for meeting, a board of representatives, a steering committee, etc. (Articles 111 and 12(2)), one head of the partnership, one head of the associate cooperative, six head of the associate cooperative by sector, and one head of the secretariat, etc. (Article 23). (However, since the practice of the cooperative refers to the head of the association as the chairperson, and the head of the associate cooperative as the vice-chairperson, this decision shall also be expressed as the "chairperson, etc." as mentioned above, unless each provision of the bylaws is transferred as it is, for the convenience of convenience). Matters concerning the election of officers and non-Confidence, appointment of the chief executive officer and non-Confidence, appointment of the chief executive officer, and other important matters (Article 15 subparag. 2, 13, and 14), and the head of the council shall be removed from the general meeting without any separate provision of Article 15 subparag. 2, 14, and all matters to be resolved within the scope of 19 of the regulations and the general meeting.

1. The term of officers shall be two years from the date of election, and they may be reappointed: Provided, That the term of officers appointed shall be the remaining term of his predecessor;

2. The president of a cooperative shall act as the president of the senior vice-cooperative for his/her duties during the remaining term of office, and the president of the senior vice-cooperative shall act as the president of the cooperative on his/her behalf: Provided, That this shall not apply in cases of

3. Where the president of a cooperative is non-Confidence and has remaining term of office less than six months, his/her successor shall not be elected and the president of a sub-cooperative who has passed a resolution of the Steering Committee shall act for the remaining term of office: Provided, That where his/her term of office has expired for not less than six months, he

In light of the above Article 25 concerning the term of office of officers, and the language and text of the above Article 25, and the structure of other regulations and the above union has been bound by the problems related to collective action since its establishment in 1987 several times, and the executive officers including the chairperson and the chief vice-chairperson have failed to properly take their term of office. This premises that a special election should be held to elect a new executive if an executive officer, other than the chairperson or the chief vice-chairperson, dies, loses membership, resigns, is non-Confidence, or is objectively unable to perform his duties as an executive officer, and if an executive officer, other objectively, arises, the special election should be held to elect a new executive officer, taking into consideration the importance of his position. On the other hand, a special election shall be held only when the remaining term of office is kept for 6 months or more (the "public notice" as referred to in the Regulations. Generally, unlike the situation of vacancy or vacancy caused by death, deprivation of qualification, non-Confidence, etc., the chief vice-chairperson is de facto impossible to perform his duties by taking account of his position as a special election.

However, as seen in Article 1. 1. (2) of the above, while the former chairperson of the union resigns from office and succeeds to his position, other vice-chairpersons also resign from office or become non-Confidence and only two vice-chairpersons including applicants remain. In such a case, there is no specific provision on the standards for determining who succeeds to the position of the president or chairperson, and there is no custom established in the union (Article 1 of the Addenda of the Code provides that "matters not prescribed by this rule shall conform to ordinary practices" (Article 1 of the above Code). The issuance of the power of attorney is different from the contents of the regulations, and it is not meaningful, and it is also interpreted that the election district of the above vice-chairperson fails to be referred to as "ordinary practice", and further, if the election district of the vice-chairperson succeeds to the position of the chairperson representing the whole of the union members, it is sufficient to make the chairperson succeed to the position of the chairperson without delay in accordance with the above regulations, the remaining matters of the council's appointment by proxy of the chairperson shall be referred to as "the appointment by proxy of the chairperson."

Therefore, as seen in Article 1.1 (2) (3) above, the contents of a resolution passed by an extraordinary council of delegates to act for the chairperson on November 11, 1992 cannot be deemed unlawful because the contents of the resolution passed by the extraordinary council of delegates to act for the above respondent violate the regulations of the association or are unlawful for other reasons. In addition, even if there are some procedural errors such as the meeting of delegates to act for the chairperson is not convened by the person who has the authority to convene the council under the rules (the procedure for convening the council is as follows; hereinafter the same shall apply). According to the above explanatory documents, any organization or association member within the association did not raise an objection to the validity of the provisional resolution passed by the above respondent on March 31, 1993. In light of the above Article 1.1 (3) (4) (5) above, the above respondent's appointment of a new chairperson to act for the chairperson as an agent of the association as well as the chairperson's appointment of the representative and the vice-chairperson, and it is not legitimate for 13 representatives of the above association.

The above argument of the applicant is without merit.

(b) Validity of an act of selecting applicants as vice-chairpersons by a special election; and

The respondent argues that it is unlawful to elect the applicant as the vice-chairperson by a special election, although there was no ground provision that the regulations of the association, which had been enforced at the time of the election of the vice-chairperson by the special election, should be a special election if the vice-chairperson resigns, and there was a provision that Article 25 of the regulations should be partially amended, even if the vice-chairperson resigns at the time of resignation of the vice-chairperson, it is not applicable retroactively to the above special election, which is a previous matter.

In light of the above facts, the proviso of Article 25 of the above Code provides that "the same shall not apply to cases where the head of a cooperative, the head of a cooperative, or the head of an affiliated association, or the head of an affiliated association, and the head of a affiliated association, and the head of a affiliated association, and the head of a affiliated association, shall not be required to elect a new chairperson because he/she abused his/her authority to convene a general meeting and it is difficult for the representative to comply with the request of a non-Confidence resolution." However, the proviso of Article 25 of the above Code provides that "the same shall not apply to cases where the head of a cooperative, the head of an affiliated association, or the head of an affiliated association, or the head of an affiliated association, resigns his/her resignation." However, since the above amendment does not provide any provision on the retroactive effect of the amended provision, the new provision on the execution of a special election at the time of resignation cannot have effect on matters already occurred before the amendment. However, the chairperson or the chief vice-chairperson of the affiliated association, who is not a new special election.

Therefore, the respondent's above assertion is without merit, and the applicant is elected as the vice-chairperson of the above shipbuilding sector through legitimate procedures.

C. Whether the procedure for convening an extraordinary council on March 31, 1993 is legitimate

According to the rules, a general meeting and a council of delegates shall be convened by publicly announcing the date, time, place, and agenda items by the chairperson at least five days prior to the convocation (Article 13), and an extraordinary general meeting or an extraordinary council of delegates may be convened at least 1/3 of the members or delegates, or when the chairperson deems it necessary (Article 14(1)1, 2, and 3). However, if the chairperson fails to convene a meeting within seven days after he/she is requested to convene a meeting by members or delegates, a person who has been supported by at least 2/3 of the members or delegates who have been requested to convene a meeting shall convene a meeting within 15 days after the person with the authority to convene the meeting (Article 14(2)).

The respondent asserts that the above provision of the Code is null and void as it violates the provisions of Article 26 of the Trade Union Act, and therefore, the respondent did not comply with the request for convening a board of representatives due to marriage ceremony, etc., but did not intentionally evade or neglect the convocation. However, the above provisional council of March 31, 1993, which was convened based only on the above provision of the Code, asserts that there was a serious defect in the procedure of convening a board of representatives.

Article 26 (1) of the Trade Union Act provides that a representative of a trade union may convene an extraordinary general meeting or an extraordinary council of delegates, and Article 26 (2) of the Trade Union Act provides that a representative of a trade union shall convene a meeting without delay when requested to convene a meeting by presenting the matters to be referred to a meeting by at least 1/3 of the union members or delegates, and in other cases, "the administrative agency may convene a meeting by designating a person to convene a meeting with the approval of the Labor Relations Commission where the representative of a trade union intentionally avoided or neglects the convocation of a meeting under paragraph (2)" and Paragraph (3) of the same Article provides that "if the trade union has no person authorized to convene a general meeting or council of delegates, at least 1/3 of union members or delegates present the matters to be referred to the meeting and request an administrative agency to nominate a person authorized to convene a general meeting or council of delegates".

However, in light of the above provision, if there is no representative who is the person with the original authority to convene a general meeting or a council of delegates, or if there is a request from an administrative agency to convene a general meeting or a council of delegates due to any reason for which the representative is unable to perform his/her duties, it shall be interpreted that the administrative agency can accept such request from the guardianship and designate the person with the authority to convene a general meeting. It shall not be interpreted to prohibit the trade union from convening a general meeting by designating the person with the authority to convene a general meeting, etc. according to the procedure prescribed by the bylaws when there is no representative. Furthermore, there is no room for its initial application from the case where there is an agent for the chairman who has a legitimate authority to represent the above union other than the above applicant for a resolution, as in

Then, in light of the language and text of Paragraph 3 above, unlike Paragraph 4, it is not expected that the representative of a trade union has requested the convocation of a general meeting. In light of the above Paragraph 2, if the representative of a trade union fails to perform his/her duty under Paragraph 2, it shall be deemed that the representative of a trade union actively intervene in the guardianship location without a trade union member's request from an administrative agency (However, in light of the public authority's involvement in the exercise of authority, it shall be limited to the procedure for obtaining approval from the Labor Relations Commission, which is a specialized institution, in consideration of the fact that the public authority has not been requested by the union member, etc.), and it shall be deemed that the representative of a trade union and its members have the authority to convene a meeting (it shall not be referred to as "right to convene a general meeting" as described in Paragraph 4) so that the situation in which the representative of a trade union continues to solve the situation in which the representative of a trade union and its members may convene a general meeting, and it shall not be interpreted that only an administrative agency has exclusive authority to convene it.

Therefore, Article 14 of the above Code provides that when representatives meet the requirements, they may autonomously nominate a convocation authority and convene an extraordinary board of representatives is without reason to be contrary to the provisions of the Trade Union Act, and rather, Article 1 of the Trade Union Act is justifiable in light of the ideology of protection of the autonomous right to organize of trade unions as provided by Article 1 of the Trade Union Act.

On the other hand, even though 123 of the representatives of the above union at least 1/3 of 123 of the representatives of the above union demanded a temporary meeting of the Respondent on March 17, 1993 to convene a meeting of the Respondent, the above Respondent does not convene it within 7 days, and the above White Record designated as a convening authority was convened as of March 31, 1993. As seen in Article 1. (4) (5) of the above, the above White Code is valid. Thus, as long as the above provision of the above Code is valid, the above Extraordinary meeting is convened by meeting the convening requirements, and it is legitimate that the above Respondent cannot respond to the above request due to marriage and leave during the above period, even if there was any circumstance that the above Respondent could not respond to the above request due to the above Respondent

The respondent's above assertion is without merit.

D. The validity of a non-Confidence resolution for the respondent's Respondent at the temporary council of delegates on March 31, 1993

The respondent argues that the respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Confidence's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Confidence's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Confidence's

Article 15 of the Regulations of the Union provides that matters concerning non-Confidence of officers shall be resolved at a general meeting or a council of delegates (Article 15(2)). However, the resolution on such matters shall be made with the attendance of a majority of the incumbent members and the consent of at least 2/3 of the number of those present (Article 21(3)). On the other hand, Article 55 provides that an officer may present a non-Confidence proposal at a council of delegates, and that when a resolution is made with the attendance of a majority of incumbent members and with the consent of at least 2/3 of those present, the chairperson shall hold a general meeting of the elected members and hold a non-Confidence vote within 10 days (Article 15). However, if the above provisions of Article 55 stipulate that "the election of the National Assembly members belonging to the National Assembly" and the person in charge of the above voting shall be construed as only the rest of the members except for the chairperson, and it shall not be justified if the general meeting of the National Assembly requires a resolution of the chairperson's non-Confidence and its authority within the National Assembly.

However, it shall be deemed that the board of representatives, which approves the vice-chairperson as a proxy, has the nature corresponding to the election of officers within the substantially limited scope of the resolution of the board of representatives. On the other hand, even if the term of office prescribed by the rules is guaranteed, as long as it can be subject to a resolution of non-Confidence in accordance with the procedures prescribed by the rules, it shall be natural that the act of the chairman shall be subject to dismissal in any way and procedure, in which case the reason for the dismissal of the vice-chairperson arises.

Furthermore, the procedure of dismissal, such as non-Confidence, on behalf of the chairman, shall be considered as a procedure of dismissal of the chairman. A general vice-chairperson, who is not the chief vice-chairperson, may exercise the same authority as the chairman by a resolution of the board of representatives. If the chairman acts as the proxy, this would not only have the character of an emergency response taken in order to prevent the vacancy of the chairman in an emergency situation where the chairman and the chief vice-chairperson are in the position of the chairman, but also have the representative nature of the association as the representative of the association. It is not obtained through a direct election of all the members who are ordinary procedures, such as the chairman and the chief vice-chairperson, but rather obtained by an indirect method such as the associate of the board of representatives of the representative, the procedure of dismissal, such as non-Confidence, on behalf of the chairman, should not be the same as that of ordinary non-Confidence with respect to the chairman. In this case, the non-Confidence should not necessarily have the reason for the withdrawal or cancellation of the meeting with the consent of a majority of all the union members, and it should not necessarily be justified in the above resolution of the general meeting.

Therefore, with respect to the validity, etc. of the resolution of the board of representatives of March 31, 1993, which passed a non-Confidence on the respondent's friendly crime, the above Respondent's resolution was passed by 128 with the consent of 139 members from among 182 registered representatives by the above Respondent's voting method. Thus, the above Respondent's resolution is valid, and even without going through a separate procedure such as a resolution of the general meeting or a voting in which all the members participate, the above Respondent's position was lost.

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

In addition, the respondent asserts that the above non-Confidence resolution is null and void because there was no such procedure at the temporary meeting of the board of representatives as of March 31, 1993, and the above provision does not stipulate that the non-Confidence resolution for an officer should be given an opportunity to vindicate the officer in light of the nature of the labor union organization or the contents of the above provision. In light of the nature of the non-Confidence resolution for an officer, the non-Confidence resolution for an officer is decided by other methods, and then it is not a procedure to take disciplinary action against the officer, but a procedure to withdraw the trust granted to the officer by election, and deprive the officer of his position, and thus, it does not necessarily have the nature of the procedure to give an opportunity to defend himself/herself. Thus, the above argument is without merit.

In other words, Hyundai Heavy Industries asserts that, even if the above non-Confidence resolution has been effective, since the remaining term of office of the chairman acting for the chairman was over six months at the time when the above non-Confidence resolution was adopted, the respondent continues to perform the affairs as the former chairman acting for the chairman in accordance with the legal principles as to delegation of the Civil Code until the chairman is elected by the election of all union members pursuant to the proviso of Article 25 (3) of the Code, and the above respondent still holds the position as the chairman acting for the chairman. However, as long as the rules of the union provide for the composition, etc. of the officer acting for the chairman, the nature of appointment of the labor union cannot be viewed as delegation under the Civil Code, and as seen above, as long as the rules of the union stipulate the rules of the union as to the organization of the officer acting for the chairman, the issue of whether to continue to hold the position should be decided by reasonable interpretation

E. The validity of a resolution to accept an applicant at an extraordinary board of representatives on March 31, 1993 as the chairman acting on behalf of the chairman

The Claimant asserts that he has a position as a proxy of the chairman since the above provisional council resolution is legitimate, and the Respondent asserts that the above resolution was invalid because it was made by means of a hand voting, not a secret voting method.

In this case, there is no specific provision in the union rules concerning the procedure to accept the vice-chairperson as proxy, and it is deemed that the resolution of the council is subject to the resolution of the council pursuant to Article 15 (2) of the union rules. However, there is no specific provision regarding the method of resolution in this case, it shall be deemed that there is no specific provision regarding the method of resolution in accordance with Article 20 of the union rules stipulating the general principles on the resolution of the meeting and the consent of a majority

On the other hand, Article 29 of the Code provides that the election of officers shall be made by a secret vote. In addition, in light of the fact that Articles 19(3) and 20(4) of the Trade Union Act provide that the fairness in the election of officers is ensured by declaring the principle of secret voting in respect of the election, unlike the dismissal of officers, unlike the dismissal of officers, a resolution on the election of officers shall be made by a secret vote.

Therefore, in light of the above, the above resolution of the applicant is legitimate, and even though the above resolution was adopted with the consent of all representatives present at the meeting of 129 persons among 182 registered representatives, it was adopted with the consent of all representatives present at the meeting, but it was done with the consent of the above 1. (7). Therefore, the above approval resolution of the applicant against the applicant is invalid because there is a serious defect in the procedure.

The above assertion by the applicant is without merit, and the applicant cannot act as a legitimate chairperson of the union.

In conclusion, the above white book is in a state where there is no legitimate representative. However, as seen above, the above white book is obtained the authority to convene a temporary meeting by designating the respondent friendly from the representatives requesting the convocation of an extraordinary meeting at the time when the respondent holds a position of acting as the chairperson. Within 15 days as stipulated in Article 14(2) of the Code, the temporary council convened a temporary meeting of March 31, 1993, but the above temporary council convened a temporary meeting of March 31, 1993, one of the matters referred to above, is replaced for the chairperson acting as the former representative, i.e., the withdrawal of the admission to the new acting representative and the new acting representative's resolution on the new acting representative, and it was impossible for the latter to establish a new resolution on the above matters in an objective manner (for example, it may be possible to consider the resignation of all the above two vice-chairpersons). The authority to convene a new meeting of the above general meeting can only be held within the scope of the above provisional meeting, unless there is a new resolution on the above matters to be no need to convene a new resolution.

F. Determination on the necessity of preservation

The applicant was elected as the vice-chairperson of the shipbuilding division of the above union after due process as set out in the above Section B above. On the other hand, when combining the statements in No. 8, No. 9, No. 6 of the lawsuit, and No. 1 through No. 3 of No. 6 of the lawsuit, the respondent requested that the respondent be recognized as a full-time partner of the union with the vice-chairperson on March 13, 1993, the respondent Hyundai Heavy Industries requested that the respondent be recognized as a full-time partner of the union on March 22, 1993. The respondent sent a reply that the above special election becomes effective and the applicant cannot be recognized as a full-time vice-chairperson on March 22, 1993. The respondent also did not recognize the applicant as a legitimate vice-chairperson of the shipbuilding division on the ground that the special election was illegal until now. Therefore, this part of the applicant's application is clearly explained as to the necessity of the preservation.

3. Conclusion

Therefore, the applicant's application of this case is only reasonable to the extent that the applicant seeks to prevent interference with the execution of his duties as the vice-chairperson of the shipbuilding division of the above union, and it is accepted without having the collateral, but the remaining part seeking to prohibit interference with the execution of duties as a proxy of the chairperson's duty is dismissed because there is no vindication as to the preserved right.

Judge Jeong Jin-jin (Presiding Judge)