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초록

영어

The Ssangyong Engineering & Construction Case whereby it was ruled that the ratification voting for the general meeting was null and void not only violates the autonomy and democracy of the labor union that the law fundamentally protects, but also needs to be reviewed thoroughly starting even before the law was amended. Even if the current Article 29(1) of the Trade Union and Labor Adjustments Act authorizes the representative to make collective agreements, If we take into consideration the fact that legal principles for collective associations in the Constitution, the Civil Act, the Commercial Act strive for democratic values, that the Criminal Act does not expressly prohibit the ratification voting for the general meeting, and numerous other illustrations from other countries, it is unjust to conclude that the ratification voting for the general meeting is null and void. Nonetheless, any collective agreements in violation of the ratification voting of the general meeting or any other valid, internal procedures, shall be null and void in consideration of the importance of labor union democracy, the legal principles associated with representative actions that lack procedural legitimacy, the importance of procedural legitimacy for labor and company's relationship. Recently, a significant ruling was made on the subject of ratification voting for the general meeting. The Hankook Baljun case, although follows the earlier precedent, proposed a possibility to limit the representative's authority to make collective agreements in order to realize labor union democracy substantially. From the perspective of substantial labor union democracy, this case also provides for the turning point for creating a modern legal principle for the ratification voting of the general meeting, and a starting point at that as well. Under the Taxi Corporation Labor Union case, they reiterated the legal principles of the Hankook Baljun case, and as to any actions taken under by the quasi-representative who made collective agreements without being elected through a valid procedure, the case was clear that individual labor union member could not claim for damages for violating its fiduciary duty. But on a similar case, K Labor Union case, the court allows for individual labor union members could claim compensation against the labor union and the representative on the grounds of being denied their right to participate and laid the groundwork for civil relief for members of the labor union. However, even so the court ruled that the collective agreement already signed by the unlawful representative was still valid, this judgment is unjust in consideration of labor union democracy, violation of the autonomy and democracy of the labor union, procedural legitimacy and the importance of reviewing the procedure of the collective agreements, unsatisfactory civil relief with unrealistic compensation, the possibility of no legal benefit because of the joint and several legal principle, the low probability of enforcement on the labor union representative, etc. The acts of the quasi-representative who has been bought off can be very dangerous to both the labor union and its members. Although previous cases were unable to control the unjust actions of the quasi-representatives by stating that the ratification voting for general meeting was null and void, the more recent cases show a glimpse of the possibility of controlling these quasi-representatives by expressly recognizing the validity of procedural legitimacy. One can say that this is overcoming the old tradition and welcoming the rebirth of the ratification voting for general meeting in new meaning. Nevertheless, the legal benefits of the relief are not that great. Therefore, in order to prevent the company from trying to buy the representative, control the representative and protect labor union democracy, we need to be able to hold the representative accountable through compensation and criminal indictment. If such a change is not possible for now, than the compensation given to the members should be at least adjusted to meet the current standards.

목차

Ⅰ. 서언
 Ⅱ. 인준투표제 일반
 Ⅲ. 최근 판결의 경향과 흐름
 Ⅳ. 법적 검토
 Ⅴ. 결어
 참고문헌
 

키워드

인준투표 노동조합 노동조합 대표자 단체교섭 단체협약 단체협약체결권 총회 Ratification Voting Labor Union Representative of the Labor Union Collective Bargaining Collective Agreement Right to Make a Collective Agreement General Meeting

저자

• 김태현 [ Kim, Tae-Hyun | 변호사, 법학박사 ]

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