[1] The case holding that although a company is not liable for damages due to an illegal industrial action against a considerable number of executives of a trade union which led illegal industrial action and a trade union itself, it shall not be deemed that the company abused its power even if the company maintains the claim for damages against the union members who did not arrange the employment relationship by filing a lawsuit

[2] The scope of liability for damages caused by an illegal industrial action, which is borne by an individual executive officer of a trade union who led illegal industrial action

[3] The case where a general worker who simply suspended his labor by the labor union, etc. is liable to compensate for damages caused by an illegal industrial action

[1] The case holding that although a company is not liable for damages due to an illegal industrial action against a considerable number of executives of a trade union which led illegal industrial action and a trade union itself, it shall not be deemed that the right of action has been abused even if the company maintains the claim for damages only for those union members who did not arrange the employment relationship by filing

[2] The scope of compensation to be paid by an individual executive officer of a trade union, such as planning, instructing, and guiding a trade union or an illegal industrial action which is attributable to an illegal industrial action, is all damages in proximate causal relation with the illegal industrial action. Since the individual liability for damages by the executive officer of a trade union and the liability for damages by the trade union itself are in a quasi-joint and several liability relationship, the executive officer of a trade union is liable to compensate all damages caused by illegal industrial action. However, in cases where the employer is deemed to have provided a cause for illegal industrial action, such as failing to fulfill the duty of loyalty with the trade union or destroying the existing agreement with the trade union, etc., the employer’s negligence

[3] The mere fact that a member simply suspended his/her labor in accordance with the direction of a trade union, etc. at the time of an illegal industrial action, shall not be held liable for joint tort with a trade union or union executives. However, in order to prevent any risk or loss, etc. that may occur when suspending his/her labor in relation to the contents of labor and the peculiarity of the process, matters to be observed when he/she suspends his/her labor in order to prevent such danger or loss, etc., and if the worker’s damage was caused or expanded by suspending his/her labor without complying therewith, he/she shall be held liable for compensation for

[1] Article 1(2) of the Civil Procedure Act / [2] Articles 35(1), 393, 396, and 763 of the Civil Act; Article 3 of the Trade Union and Labor Relations Adjustment Act / [3] Articles 393, 750, 760, and 763 of the Civil Act; Article 3 of the Trade Union and Labor Relations Adjustment Act

Taeyang Industrial Co., Ltd. and one other (Law Firm International Law, Attorneys Kim Tae-tae et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Attorney Choi Yong-soo, Counsel for the defendant-appellant)

Defendant 3 and 11 others

Busan High Court Decision 2004Na10558 delivered on April 20, 2005

Of the lower judgment against the Plaintiffs against Defendant 3, 4, 5, 6, and 9, the part of the lower judgment seeking each payment of KRW 25,00,000 and KRW 5,00,000 to the Plaintiff Taedong Industrial Co., Ltd., and the part of the case is reversed, and the case is remanded to Busan High Court. The appeals by Defendants 1 and 2 and the appeals by Defendants 7, 8, 10, 11, 12, 13, and 14 by the Plaintiffs are all dismissed. The costs of appeal between the Plaintiffs and the Defendants 7, 8, 10, 11, 12, 13, and 14 are assessed against the Plaintiffs, and between the Plaintiffs, Defendant 1, and Defendant 2 are assessed against the Defendants.

The grounds of appeal are examined.

1. Determination on Defendant 1 and 2’s grounds of appeal

A. As to the ground of appeal No. 1 (No. 1)

The plaintiffs filed a claim for damages against a considerable number of representatives, including the chairman and vice-chairman of the single trade union of the plaintiffs (hereinafter referred to as the "labor union of this case") and withdrawn the claim. The labor union of this case did not file a claim for damages against the plaintiffs, and only the defendants of this case who did not organize the employment relationship by filing a lawsuit seeking nullification of layoff against the plaintiffs, cannot be deemed as a case where the plaintiffs abused the right of lawsuit.

The judgment below to the same purport is just, and it is not erroneous in the misapprehension of legal principle as alleged in the ground of appeal by the above Defendants.

B. As to the ground of appeal No. 2 (whether there is a factual error)

Examining the reasoning of the judgment below in light of the records, it is justifiable for the court below to recognize that the court below decided to change the full-time strike hours from 12:00 on June 12, 2001 to the enforcement from 12:00 on June 12, 2001, and that from around 12:00 on the same day, representatives and executive-level employees from around 12:00 on the same day, the members who had engaged in normal production and had engaged in normal production to stop the operation of the factory, and there is no illegality of misconception of facts due to the violation of the rules of evidence, as alleged in the grounds of appeal by the above Defendants.

C. As to the third ground for appeal (whether the ground for appeal was not examined)

The scope of compensation for an individual who is responsible for an illegal industrial action, such as planning, instructing, and guiding a trade union or an illegal industrial action which is attributable to it, is all damages in proximate causal relation with the illegal industrial action. Since the individual liability for damages by the executives of such trade union and the liability for damages by the executives of such trade union themselves are in a joint and several liability relationship with the non-joint and several liability relationship, the executives of such trade union are liable to compensate for all damages caused by the illegal industrial action. However, if the employer fails to fulfill the duty of loyalty with the trade union or if there are circumstances to deem that the employer provided the cause of the illegal industrial action, such as destroying the existing agreement with the trade union

The court below stated that it is not proper to limit the scope of executive officers' liability to compensate for illegal industrial actions to the extent that it is not secured by the responsible property of a trade union or inappropriate to repay it to the responsible property of a trade union among damages caused by illegal industrial actions. However, in light of the above legal principles, it is not necessary to examine the responsible property of a trade union in limiting the liability of executive officers of a trade union to compensate for damages caused by illegal industrial actions. Thus, the above Defendants' ground of appeal that the court below erred by failing to exhaust a full deliberation on the

2. Judgment on the plaintiffs' grounds of appeal

A. Article 3 of the Trade Union and Labor Relations Adjustment Act provides that "an employer shall not claim compensation against a trade union or worker in case of damages caused by collective bargaining or industrial action under this Act." It imposes restrictions on the employer's claim for damages. In this context, damages exempt from civil liability for damages should be clear that the damages caused by legitimate industrial action are limited to damages, and an industrial action without legitimacy may constitute a tort and claim compensation against the employer (see Supreme Court Decision 93Da32828, 32835 delivered on March 25, 1994). However, in the case of ordinary union members who are not the union members led by planning, instructing, guiding, etc. illegal industrial action, collective nature and workers' right to organize which is realized only through specific collective action of the union members should be guaranteed as constitutional rights, and it may be difficult to demand determination of legitimacy of an industrial action to the general union members by simply refusing to provide daily labor or labor union members' instruction even if it is doubtful that the industrial action is legitimate, it is difficult to expect the general union members' liability to continue to engage in the industrial action.

However, in order to prevent any danger or loss that may arise in the course of suspending a worker's labor with respect to the content of the labor and the peculiarity of the work process, there are matters to be observed when suspending the worker's labor, and if the worker's labor without complying with it causes or expands the loss due to suspending the worker's labor, the worker is liable to compensate for the loss in proximate causal relation even if the worker is a general member.

B. However, according to the records, most of the plaintiffs' factories producing raw materials by reactioning them among petroleum materials is conducted at high temperature of at least 250 degrees east. Thus, in order to suspend the process, it shall be reduced to wear raw materials, and temperature and pressure shall be reduced if raw materials are dissatisfy, and lastly, Defendant 3 shall follow standard behavior procedures to stop the whole process after washing machinery, but Defendant 4 and 5 shall be in work during the spex 2 team, while radioactive work, Defendant 6 and 9 shall be in duty, without permission of the head of each department, and the defendants shall not be held liable to compensate for damages caused by the above unlawful acts of the Defendants by breaking the legal principles as to the above illegal acts of the Defendants’ participation in the industrial action without permission, and the court below shall, in principle, dismiss the Defendants’ participation in the industrial action without permission of the head of each department, on the premise that the Defendants’ participation in the industrial action would not cause damages to the members of the above organization.

C. Meanwhile, examining the industrial action of Defendants 7, 10, 11, 12, 13, and 14, which are acknowledged by the reasoning of the judgment below and the record, according to the above legal principles, it is not deemed that the said Defendants contributed to the occurrence or expansion of damages, which are the cause of the instant claim, by simply suspending labor according to the instruction of the labor union, etc., and by neglecting the duty to comply with the order of the labor union, etc.

Therefore, the part of the court below's explanation on the liability for damages of ordinary union members participating in an illegal industrial action is not appropriate. However, the court below's decision that denied the above defendants' liability for damages is just in its conclusion, and there is no error of law by misunderstanding facts or misunderstanding of legal principles

3. Conclusion

Ultimately, the appeals by Defendants 1 and 2 and the appeals by Defendants 7, 8, 10, 11, 12, 13, and 14 of the Plaintiffs are all dismissed as they are without merit. The appeals by the Plaintiffs against Defendants 3, 4, 5, 6, and 9 are with merit, and the appeals by the Plaintiffs against Defendants 3, 4, 5, 6, and 9 of the lower judgment against the Plaintiffs, which are within the scope of the final appeal, are KRW 25,00,000, and KRW 5,000,000 to the Plaintiff Taedong Industrial Co., Ltd., Ltd., and are 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.

Justices Park Ill-sook (Presiding Justice)