[Plaintiff, Appellant] Korean Federation of Livestock Cooperatives Labor Union, Korea Poultry Farming Livestock Cooperative Branch (Attorneys of the law firm Nanum, Boo Jong-sik and 2 others, representing)
[Defendant, Appellee] Korea Poultry Farming Agricultural Cooperative Labor Union (Attorneys of the law firm Gyeongyeon, Do Jin-seok and 2 others, representing)
[Judgment Below] Seoul Northern District Court Decision 2013Na20296 rendered on January 10, 2014
[Order]
The judgment below is reversed, and the case is remanded to the Seoul Northern District Court.
[Reasoning] The grounds of appeal (including the reference materials and petition submitted after the deadline for submission of the grounds of appeal, to the extent they supplement the grounds of appeal) are examined as follows.
1. Article 16(1)(8) and (2) of the Trade Union and Labor Relations Adjustment Act (노동조합 및 노동관계조정법, hereinafter the “Trade Union Act”) permits a labor union, while it has been established and continues to exist, to change its organizational form at a general meeting with the attendance of a majority of the registered union members and the consent of at least two-thirds of the members present. Although this provision applies to labor unions established under the Trade Union Act, even a lower-level organization of an industry-wide labor union, such as a branch, chapter, or subdivision (hereinafter a “branch, etc.”), may, through a resolution of its general meeting, change its affiliation and convert into an independent enterprise-level labor union, if the branch, etc. has the independent capacity to conduct collective bargaining and conclude collective agreements and thus has substance equivalent to an enterprise-level labor union, or, even if it does not, if it is recognized as having independence as an association similar to an enterprise-level labor union and thus may be regarded as an unincorporated association (see Supreme Court en banc Decision 2012Da96120 rendered on February 19, 2016).
The reason the Trade Union Act permits such a change in the organizational form of a labor union as described above is to allow the organizational form to be changed without going through the procedures of dissolution, liquidation, and establishment of a new labor union, thereby enabling the legal relationships surrounding the labor union, such as existing property rights and obligations or the effect of collective agreements, to be maintained and succeeded to as they are by the labor union in its new organizational form (see Supreme Court Decision 2015Du1151 rendered on December 29, 2016). However, if a branch, etc. of an industry-wide labor union does not possess substance equivalent to an enterprise-level labor union, nor the substance of an unincorporated association as an organization of workers similar to an enterprise-level labor union, and thus cannot change its organizational form, but is nevertheless permitted, through a resolution, to withdraw from the industry-wide labor union and comprehensively transfer all of its existing property, including union dues, to a newly established enterprise-level labor union, this could result in the same outcome as a branch, etc., which cannot be the subject of a change in organizational form, effectively changing its organizational form through an indirect method, thereby undermining the purpose of the organizational form change system. Therefore, even if such a branch, etc. of an industry-wide labor union adopts a resolution to change its organizational form into an enterprise-level labor union through a general meeting or the like, and on that premise also adopts a resolution to comprehensively transfer all of its existing property, including union dues, to the new enterprise-level labor union, such a resolution must be held to be without effect not only as a resolution to change the organizational form but also as a resolution to transfer the property.
2. A. According to the reasoning of the judgment below and the record, the following facts may be known.
(1) The Plaintiff, as a branch of the Korean Federation of Agricultural and Livestock Cooperatives Labor Union (hereinafter the “Federation of Livestock Cooperatives Labor Union”), which is an industry-wide labor union, has as its organizational scope the employees of the Korea Poultry Farming Agricultural Cooperative.
(2) At the Plaintiff’s general meeting held on August 26, 2011, with 51 out of 60 attending union members voting in favor, the general meeting adopted the resolution at issue in this case (hereinafter the “instant general meeting resolution”), the content of which was to withdraw from the Federation of Livestock Cooperatives Labor Union, to change the Plaintiff’s organizational form to the Defendant, an enterprise-level labor union, and to have the Defendant succeed to the Plaintiff’s existing rights, including union dues.
(3) After the instant general meeting resolution, the non-party who was then the Defendant’s representative changed the name of the account holder for some of the accounts at issue in this case, which had been opened in the Plaintiff’s name, to the Defendant, and terminated and withdrew funds from some of the accounts.
B. The court below determined that, even if the Plaintiff, being a branch of an industry-wide labor union, did not have the authority to change its organizational form, the instant general meeting resolution was nonetheless effective as a resolution to comprehensively transfer the Plaintiff’s property. As grounds therefor, the court below cited, among other things, the fact that, although the Plaintiff did not independently have the authority to change its organizational form from a branch of an industry-wide labor union to an enterprise-level labor union, in a situation where there was realistically no possibility that the industry-wide labor union would adopt a resolution concerning a change in the Plaintiff’s organizational form, there was a need to allow the Plaintiff to establish a new enterprise-level labor union through a resolution of its members and to transfer its property thereto.
3. However, the determination of the court below is difficult to accept as it stands, for the following reasons.
A. The court below determined that the Plaintiff, being a branch of an industry-wide labor union, did not have the authority to change its organizational form, but such determination cannot be maintained following the Supreme Court en banc Decision 2012Da96120 rendered on February 19, 2016, discussed above.
In light of the circumstances and content of the instant general meeting resolution, since the instant general meeting resolution has as its content the change of the organizational form of the Plaintiff, a lower-level organization of an industry-wide labor union, into the Defendant, an enterprise-level labor union, and, incidental thereto, the comprehensive succession by the Defendant to the Plaintiff’s existing rights, including union dues, the main subject matter of the resolution must be regarded as being the change of the Plaintiff’s organizational form into an enterprise-level labor union. If the Plaintiff had the independent capacity to conduct collective bargaining and conclude collective agreements and thus had substance equivalent to an enterprise-level labor union, or could be regarded as an unincorporated association as an organization of workers similar to an enterprise-level labor union, then there is room to view the instant general meeting resolution as effective as a resolution to change the organizational form.
Therefore, the court below should first have examined, in light of the circumstances of the Plaintiff’s establishment, the content of its articles of association or bylaws, the actual state of its management and operation, and the specific content of its activities, whether the Plaintiff could be the subject of a change in organizational form, and thereby determined whether the instant general meeting resolution was effective as a resolution to change the organizational form.
B. Nor can the part of the court below’s determination that, even if the instant general meeting resolution was without effect as a resolution to change the organizational form, it was nonetheless effective as a resolution to comprehensively transfer the Plaintiff’s property, be deemed reasonable. This is because, if the Plaintiff does not have substance equivalent to an enterprise-level labor union and also does not possess the substance of an unincorporated association as an organization of workers similar to an enterprise-level labor union, such that it cannot be converted into an enterprise-level labor union, then the instant general meeting resolution must be held to be without effect not only as a resolution to change the organizational form but also as a resolution to comprehensively transfer the Plaintiff’s property.
C. Meanwhile, the court below premised its judgment on the assumption that the Defendant was established through the Plaintiff’s general meeting resolution of August 23, 2011. However, according to the reasoning of the judgment below, the non-party, who was the Plaintiff’s branch chief, intending to change the Plaintiff’s organizational form into an enterprise-level labor union, gave public notice on August 11, 2011 convening a general meeting for August 23, 2011, with the change of organizational form, among other matters, as an agenda item, and then, on August 19, 2011, again gave public notice convening a general meeting for August 26, 2011, with the change of organizational form, among other matters, as an agenda item, and at the general meeting held on August 26, 2011, with 51 out of 60 attending union members voting in favor, adopted the instant general meeting resolution, including the change of the Plaintiff’s organizational form into the Defendant. The Defendant also asserts that it gave public notice on August 11, 2011 for a general meeting to be held on August 23, 2011, but postponed the general meeting to August 26, 2011 and again gave public notice on August 19, 2011.
Considering these circumstances, there is substantial room to view that the Defendant came into existence not based on an establishment resolution at the general meeting of August 23, 2011, but based on the organizational form change resolution at the general meeting of August 26, 2011. Therefore, the court below should closely examine whether the general meeting of August 23, 2011 was actually held and the specific content of any resolution adopted at that time, and, if there was an establishment resolution on August 23, 2011, the circumstances under which the Plaintiff’s union members came to adopt, immediately thereafter on August 26, at another general meeting, an organizational form change resolution contradictory to the establishment resolution, and the true intent of the union members at that time, the time when the union members withdrew from the Plaintiff, and the time when the Defendant’s bylaws were enacted or its representative and other officers were elected, and thereby clarify the basis and timing of the Defendant’s establishment.
4. As set forth above, the judgment below erred by misapprehending the legal principles concerning the change of organizational form, among other matters, of a lower-level organization of an industry-wide labor union, and thereby failing to conduct the necessary examination.
Without rendering a determination on the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for further examination and determination, this Justices being unanimous in reaching the decision set forth in the Order.
Justice Kim Chang-seok (Presiding Justice), Cho Hee-dae, Kim Jae-hyeong (Justice in charge), Min Yu-sook