2020Na2012385 Requests for the Confirmation of Trade Union Representative Status, etc.

A

Law Firm LLC et al.

[Defendant-Appellant]

B Trade Union

Law Firm Han-ro, Counsel for defendant-appellant

[Defendant-Appellee]

Seoul Central District Court Decision 2019Da532095 Decided January 30, 2020

October 16, 2020

November 20, 2020

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

On April 22, 2019, the defendant confirmed that the non-Confidence resolution on the elected representative of the representative conference against the plaintiff is null and void. The plaintiff confirms that he/she is the defendant's chairperson.

2. Purport of appeal

The judgment of the first instance is revoked, and all of the plaintiff's claims are dismissed.

1. Basic facts

The court's reasoning for this part is as follows: (a) "one auditor" of the third-third-party 3 of the judgment of the court of first instance shall be deemed "two auditors"; (b) "39 persons" of the fifth-party 5 shall be deemed "40 persons"; (c) shall be deemed "40 persons"; and (c) below the fifth-party 5 shall be deemed "the grounds for recognition" shall be as stated in the corresponding part of the judgment of the court of first instance, except for the addition "each description of evidence Nos. 2 through 9 and 26" to "the grounds for recognition" as stated in the main sentence of Article 420 of the Civil Procedure Act. Thus, they shall be cited as it

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

2. Judgment on the defendant's main defense

A. The parties' assertion

The defendant asserts that since the defendant opened a temporary conference on May 21, 2019 and passed a resolution to dismiss the plaintiff with the consent of 95% of the participants, the plaintiff is no longer a member of the defendant, and this case is no longer a member of the plaintiff. The plaintiff asserts that the above disciplinary resolution is null and void.

B. Determination

1) Comprehensively taking account of the overall purport of the arguments in the statements in Eul evidence Nos. 10, 11, 16, and 18, the defendant held a temporary representative meeting on May 21, 2019 immediately after the plaintiff filed the lawsuit in this case, and the plaintiff criticizes the amendment of the bylaws around April 2019 by the board of representatives, criticizes the plaintiff's board of representatives, and does not participate in the representative meeting, demands the Seoul Regional Employment and Labor Agency, which is an external institution, to take corrective measures against the non-Confidence of the elected person in this case, or to intervene of the HN, which is a superior organization, without recognizing the non-Confidence resolution on April 22, 2019, and demands the suspension of the holding of a temporary representative meeting on April 22, 2019. It refers to the fact that the G chief vice-chairperson and thought different parts cannot be recommended as the full-time officer of a trade union, and it can be acknowledged that the resolution of disciplinary action against the plaintiff was made on the ground of Articles 60 and 61.

2) However, the Defendant’s act or statement of the Plaintiff, which is going against the grounds for disciplinary action, is nothing more than a legitimate exercise of authority or an expression of opinion as a member or elected person, and even according to the Defendant’s assertion itself, it cannot be deemed that the Plaintiff’s act violated the duty of union members as prescribed in Article 12 of the Defendant’s rules, or constitutes grounds for disciplinary action as prescribed in Article 60 (see, e.g., the above evidence and the overall purport of the arguments in respect of evidence No. 16 and evidence No. 18, Jul. 22, 2019, the Seoul Regional Labor Relations Commission decided to the effect that the Defendant’s non-Confidence resolution on July 22, 2019 violated the rules. Accordingly, the Defendant’s resolution on the non-Confidence resolution on the elected person’s grounds for disciplinary action is invalid under the premise that the Defendant’s non-Confidence resolution on July 21, 2019 cannot be deemed invalid under the law.

3. Judgment on the merits

A. Judgment on the plaintiff's assertion

1) The plaintiff's assertion

The non-Confidence resolution for the elected person in this case is a statement that the plaintiff, etc., who was the officer status at the time, shall be the non-Confidence resolution for the elected person in this case. However, the defendant's rules only provide for the non-Confidence and impeachment of the "executive officer", and do not provide for the non-Confidence for the "appointed person who has not been appointed as an executive officer", and the plaintiff did not commit any act of violating the rules that could not be held as an executive officer, and the plaintiff did not commit any act of violating the rules.

2) Determination as to whether the chairperson or the elected chief executive officer is non-Confidence

Article 17 (1) (ii) of the Defendant’s Code provides for matters concerning the non-Confidence of officers as one of the functions of the general meeting. Article 37 lists the duties of the officer. The term “non-Confidence of the officer” refers to the withdrawal of the officer under the premise that the other party was newly appointed to grant his authority and responsibility to the officer. Thus, the term of office may commence and the term of office of the officer is not yet open to the non-Confidence, but it is natural to view that the term “candidate who is not authorized and responsible to the officer” is not subject to the non-Confidence unless there are special provisions. Furthermore, the non-Confidence of the elected officer such as the chairman or the secretary general may be followed by the result of the election before the commencement of the term of office (the result must be carried out). The Defendant’s Code only provides for the non-Confidence of the officer’s functions as the general meeting, and it is reasonable to interpret the provisions concerning the non-Confidence of the chairman’s general meeting as being subject to the non-Confidence resolution or its resolution for the non-Confidence of the officer.

3) Determination on the essential elements of non-Confidence grounds

The plaintiff asserts that the resolution of the non-Confidence of the elected person in this case is null and void, since it did not engage in any conduct violating the rules that could be subject to the non-Confidence. However, since the non-Confidence of an executive officer of an organization refers to the withdrawal of the trust of an executive officer and deprivation of his/her status, it is general that there is no special restriction on the ground. The defendant's rules do not have any provision on the grounds of non-Confidence, and there is no ground to regard the ground as being limited to the illegal or the above rules. Therefore, the plaintiff's assertion that there

4) Determination on whether there is any defect in the non-Confidence procedure

As seen earlier, the elected officers, such as the chairperson or the secretary general, are not subject to the resolution of non-Confidence. However, if it can be interpreted that the "candidate" of the defendant's union under the defendant's rules is subject to the resolution of non-Confidence as well as the "executive", the decision of non-Confidence of the elected persons in this case shall be examined as to whether the

Article 17 (1) (ii) of the defendant's rules, together with "election and resignation of officers", lists the functions of the general meeting as one of the functions of the "non-Confidence of executives". Article 17 (2) of the rules provides that "any other important matters concerning the election of the chairperson" (proviso 2 of Article 17 (2) and "other important matters" (proviso 3 of the same paragraph) shall be resolved by the whole members of the general meeting at the same time." (Article 22 also provides that "the function of the board of representatives shall be the same as that of the general meeting except for those matters to be dealt with by the resolution of the general meeting and the whole members." However, the "non-Confidence of the chairperson and the secretary general" has the same importance as the "election of the chairperson and the secretary general", so it shall be deemed that the "other important matters" under the proviso 3 of Article 17 (2) of the rules are "any other important matters", so it shall necessarily go through a "resolution of the entire members".

In this regard, the plaintiff asserts that the proviso of Article 17(2) of the Code stipulates that the meeting place, date, time, and purpose of the meeting shall be subject to a special resolution (Article 36(2) of the Code), at least seven days before the meeting is held in accordance with Article 18 of the Code.

However, the proviso of Article 17 (2) of the Rules of the defendant does not require a "resolution by the general meeting" but requires a "resolution by the whole union members". Article 17 (2) of the Code does not necessarily require a "resolution by the general meeting as an assembly convened at a specified date, time, and place." Article 17 (2) proviso (ii) of the Code also lists the "matters concerning the election of the chairperson from among the functions of the general meeting" as a matter that must undergo a "resolution by the whole union members." Article 39 (1) of the Code does not seem to have been convened by the general meeting convened to specify the date, time, and place of the election, including the election by the 9th chairman. Since the plaintiff does not seem to have been convened by the general meeting, the "election of the executive members" can be substituted by a "electronic (online) vote or vote by mail, which is not a general meeting by the general meeting." Thus, it is reasonable to accept the defendant's argument that the election of the chairperson under the rules of the defendant is not a Confidence by the general meeting.

However, with respect to "non-Confidence" of an officer listed as one of the functions of a general meeting under Article 17 (1), Article 17 (2) provides that the main sentence of Article 17 (2) provides that "no-Confidence of an officer may substitute the general meeting with the board of representatives, on the other hand," while the proviso to Article 17 (2) provides that many members of the defendant's association can work for more than 2,50 persons, so it is very difficult to hold the general meeting as an assembly because the place of work is scattered across the country, and even if it is not efficient, a request for a democratic and procedural justification that requires a sufficient debate and deliberation to confirm the total number of all members of the association who have gone through sufficient discussion and deliberation, should be considered as the result of a request for a meeting to meet the requirements of the general meeting in accordance with the proviso to Article 17 (2) of the Code, and therefore, it is not reasonable to stipulate that "no-Confidence of the whole members of the association should undergo a democratic resolution in accordance with the overall general meeting's resolution and resolution procedures."

However, comprehensively taking account of the evidence adopted earlier, a public notice was given that a non-Confidence voting for the plaintiff et al. was held on April 23, 2019 upon the request of 40 representatives of the defendant on April 22, 2019, following the decision of the temporary representative meeting held on April 23, 2019. According to the public notice, the non-Confidence voting for the plaintiff et al. was held on April 24, 2019 through electronic voting method. The public notice on the non-Confidence voting for the plaintiff et al. on April 23, 2019 is made in the public notice of the above 'B Trade Union 9 (the chairperson, the secretary general)' (the non-Confidence voting)' and the public notice on the non-Confidence voting for the plaintiff et al. on April 23, 2019 should be deemed to have been made only the simple information on the procedures, such as voting methods, voting qualifications, etc., and there is no specific justification for the public notice of the plaintiff et al.

On April 22, 2019, the defendant opened a temporary meeting for representatives and made a non-Confidence resolution for the elected persons in this case, and held a pro-con voting for all members from April 24 to 28, 2019. To this end, the provisional meeting was announced on April 15, 2019, which is seven days before the date, so that there is no significant procedural defect. However, on April 15, 2019, the public notice of convening the temporary meeting for representatives is limited to representatives, and is not limited to all members, and the public notice of convening the temporary meeting for representatives cannot be replaced by the public notice of convening the temporary meeting for representatives. Furthermore, the public notice of convening the temporary meeting for representatives cannot be deemed to have been provided with an opportunity for debate and deliberation for all members. As seen earlier, the defendant's assertion that the public notice for all members was given only on April 23, 2019, which is one day before the commencement of voting.

5) Sub-committee

Therefore, the non-Confidence resolution of the elected person in this case is limited to the elected person, not to the non-Confidence officer who is entitled to the non-Confidence, and there is no ground under the rules, and even if not, there is a serious procedural defect, so it is null and void, and the plaintiff is in the defendant's position, and there is a benefit to seek confirmation

B. Judgment on the Defendant’s assertion on amendment of the statute

1) The defendant's assertion

Around September 4, 2019, the Defendant amended the Code to confirm that the resolution of the non-Confidence of the elected person in this case is valid, and thus, the resolution of the non-Confidence of the elected person in this case should be recognized.

2) Determination

According to the statement in Eul evidence No. 26, the defendant's non-Confidence resolution of the elected person in this case is retroactively effective in the Addenda to the Code which was amended by the defendant on September 4, 2019 while the lawsuit in this case was pending, and thereby, the plaintiff et al. lost his status as the chairperson or the secretary general, and the name of the defendant is deemed to be disqualified.

However, the validity of the non-Confidence resolution or expulsion resolution of the elected person in this case is only the subject matter of judicial judgment of the court, and it is not a matter that can be finally decided by the defendant's rules or binding upon the court (Article 17 (1) 1 of the rules). Furthermore, the amendment of the rules of the defendant belongs to the function of the general meeting or the board of representatives (Articles 38 (1) 3, 23, and 19 (1) of the rules), and the convocation of the general meeting and the board of representatives belongs to the authority of the chairperson (Article 38 (1) 3, 23, and 19 (1) of the rules). There is no evidence to prove that the plaintiff, who is the defendant's chairperson, convened the general meeting or the board of representatives for the amendment of the rules on September 4, 2019, and at that time, there is no evidence to prove that the plaintiff could not perform his duties due to inevitable reasons such as death or disease. Furthermore, it seems that the defendant's amendment of the rules on non-Confidence should be valid as well.

Therefore, the defendant's assertion based on the premise that the amendment of the Code made around September 4, 2019 is valid is not acceptable (this case seems to be a case in which the representatives, who do not support the chairperson and the plaintiff elected by the secretary general, etc. through the election of all the union members, proceed with the non-Confidence procedure through the representatives conference without any reason, without holding a representative conference during the litigation of this case disputing the validity of the resolution of the non-Confidence procedure, and tried to make a decision on the matters to be decided by the court through the amendment of the Code which does not meet any requirement).

4. Conclusion

Therefore, the plaintiff's claim shall be accepted in its entirety as it is reasonable. Since the judgment of the court of first instance is just, the defendant's appeal against this is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge and judges shall be appointed;

Judges Cho Jong-hee

Judge Yang Chang-hoon

1) The phrase “rest” described in the Defendant’s rules appears to be a clerical error.