[Plaintiff, Respondent] Plaintiff's Litigation Attorney Kim Seung-seok
[Defendant, Appellant] Jeju Do Port Transport Workers' Union of the Korean Federation of Port Transport Workers' Unions (전국항운노동조합연맹제주도항운노동조합), Litigation Attorney Hyun Young-du
[Lower Court Judgment] Jeju District Court, June 18, 1992, Case No. 91Na773
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Defendant.
[Reasoning]
The grounds of appeal are examined.
1. As to Ground No. 1
The remedy through administrative litigation asserted by the Defendant refers to the procedure whereby, pursuant to Article 27-3 of the Labor Standards Act (근로기준법) and Articles 40 through 43 of the Trade Union Act (노동조합법), a worker who has suffered an unfair labor practice files an application for remedy with the Regional Labor Relations Commission, and if dissatisfied with its determination, sequentially files an application for reexamination with the National Labor Relations Commission, and a party dissatisfied with the reexamination ruling of the National Labor Relations Commission then institutes administrative litigation. This procedure is limited solely to remedies for unfair labor practices committed by an employer against a worker, and does not refer to a remedy procedure for disciplinary action against a union member by a labor union, which is not an employer, as in the present case.
Therefore, the Plaintiff's filing of this suit as a civil action for confirmation was lawful, and there is no error of misapprehension of the legal principles concerning the court's adjudicative jurisdiction as argued in the grounds of appeal. This ground of appeal is without merit.
2. As to Ground No. 2
Where a union member who has been disciplined by expulsion from the union receives retirement pay, etc. from the union without raising any reservation of objection or condition, it is generally reasonable to view that the member thereby acknowledged the disciplinary action as valid, absent special circumstances. However, even in such a case, if there exist objective circumstances indicating that the member was contesting the disciplinary action without acknowledging its validity, or if there are other circumstances suggesting the contrary—such as receiving the payment under circumstances where there was a reasonable basis for doing so apart from acknowledging validity—then it should not be uniformly concluded that the validity of the expulsion disciplinary action was acknowledged merely because the retirement pay, etc. was received without an explicit reservation of objection (see Supreme Court Decision 90Nu4952, delivered January 25, 1991; Supreme Court Decision 91Da2663, delivered May 14, 1991; Supreme Court Decision 92Da1728, delivered April 14, 1992).
As lawfully found by the court below, after the Plaintiff was subjected to the disciplinary action of expulsion by the Defendant union on July 26, 1989, the Plaintiff applied to the Defendant union's Union Members' Retirement Reserve Fund Management Committee for retirement reserve funds on August 26 of the same year, and received the retirement reserve funds from the said Committee on August 30 of the same year; the Plaintiff also applied for retirement rice allowance to the △△ Association of the ○○ Liaison Office under the Defendant union on August 28 of the same year, and received the retirement rice allowance on August 30 of the same year, and on the same day also received back the construction fund from the ○○ Liaison Office. However, after receiving this disciplinary action, the Plaintiff objected thereto and filed an application for reexamination of the disciplinary action with the Defendant union on July 29 of the same year, thereby contesting it; when that application was rejected on August 23 of the same year, the Plaintiff received the retirement reserve funds, etc. at issue in this case for the purpose of covering living expenses; and on September 5 of the same year, the Plaintiff retained the late non-party attorney to file the instant lawsuit, but the said attorney delayed doing so due to personal circumstances including illness, ultimately filing the instant suit on October 13 of the same year. In light of all these circumstances at the time the Plaintiff received the retirement reserve funds, etc. and up until the filing of the instant suit thereafter, it cannot be said that the Plaintiff, at the time of receiving the retirement pay, acknowledged the said disciplinary action as valid and thereby abandoned the intention to contest its validity.
The judgment of the court below, being to the same effect, is justified and acceptable, and there is no error of misapprehension of the legal principles concerning the principle of good faith as argued in the grounds of appeal. This ground of appeal is without merit.
3. Accordingly, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Presiding Justice Choi Jae-ho
Justice Yoon Kwan
Justice Kim Ju-han (Presiding Judge for the Report)
Justice Kim Yong-jun