Open Decision Ledger · Labour & industrial accidents
Union strike ballot procedure and loss of legitimacy
Supreme Court, Oct. 15, 2020, 2019Du40345 (judgment)
Case name: 부당징계구제재심판정취소
Official text on the National Law Information Center
Question
Does a strike breach of the procedure in Article 41(1) of the Trade Union and Labour Relations Adjustment Act, requiring a decision by majority approval in a direct, secret and anonymous ballot of members, deprive the strike of its legitimacy, and does holding that ballot without first going through the conciliation procedure of the Labour Relations Commission under Article 45 alone do so?
Holding
In principle yes to the first question, and no to the second. Article 41(1) exists to promote the union's independent and democratic operation and to make the union deliberate carefully before opening a strike, so a strike that breaches the ballot procedure loses its legitimacy unless objective circumstances made the procedure impossible to follow. But the ballot having been held without first going through the conciliation procedure of Article 45 does not by itself deprive the strike of legitimacy, because Article 45 aims to offer a chance to settle the dispute in advance rather than to prohibit the strike itself.
Summary of the holding, verbatim
위의 절차를 위반한 쟁의행위는 그 절차를 따를 수 없는 객관적인 사정이 인정되지 않는 한 정당성이 상실된다. 하지만 쟁의행위에 대한 조합원 찬반투표가 노동조합법 제45조가 정한 노동위원회의 조정절차를 거치지 않고 실시되었다는 사정만으로는 그 쟁의행위의 정당성이 상실된다고 보기 어렵다.
Unofficial English translation
A dispute action that violates the above procedure loses its justification unless objective circumstances under which that procedure cannot be followed are recognized. However, it is difficult to regard the fact that the vote of union members on the dispute action was conducted without going through the mediation procedure of the Labor Commission prescribed in Article 45 of the Trade Union and Labor Relations Adjustment Act, standing alone, as causing the dispute action to lose its justification.
Disposition
Dismissed Stated in the decision
상고를 기각한다. 상고비용은 보조참가로 인한 부분을 포함하여 원고가 부담한다.
Unofficial English translation
The appeal is dismissed. The plaintiff shall bear the costs of the final appeal, including those arising from the auxiliary intervention.
Form of the test
Elements stated Stated in the decision
위의 절차를 위반한 쟁의행위는 그 절차를 따를 수 없는 객관적인 사정이 인정되지 않는 한 정당성이 상실된다
Unofficial English translation
A dispute action that violates the above procedure loses its justification unless objective circumstances under which that procedure cannot be followed are recognized
Factors
- 노동조합의 자주적이고 민주적인 운영을 도모함과 아울러
- 쟁의행위에 참가한 근로자들이 사후에 쟁의행위의 정당성 유무와 관련하여 어떠한 불이익을 당하지 않도록 그 개시에 관한 조합의사의 결정에 보다 신중을 기하기 위하여 마련된 규정이므로
- 그 절차를 따를 수 없는 객관적인 사정이 인정되지 않는 한
- 쟁의행위에 대한 조합원 찬반투표가 노동조합법 제45조가 정한 노동위원회의 조정절차를 거치지 않고 실시되었다는 사정만으로는
Unofficial English translation
• In order to promote the autonomous and democratic operation of the trade union and, at the same time,
• as it is a provision enacted so that greater prudence may be exercised in the determination of the union's will regarding the commencement of a dispute action, in order that the employees who participated in the dispute action may not subsequently suffer any disadvantage in relation to whether the dispute action was justified,
• unless objective circumstances under which that procedure cannot be followed are recognized,
• it is difficult to regard the fact that the vote of union members on the dispute action was conducted without going through the mediation procedure of the Labor Commission prescribed in Article 45 of the Trade Union and Labor Relations Adjustment Act, standing alone,
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2001. 10. 25. 선고 99도4837 전원합의체 판결(공2001하, 2624)
Unofficial English translation
Supreme Court en banc Judgment 99Do4837 pronounced October 25, 2001 (Gong 2001 Ha, 2624)
Decisions referred to
대법원 2001. 10. 25. 선고 99도4837 전원합의체 판결(공2001하, 2624)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
What objective circumstances make the ballot procedure impossible to follow, so that a strike which breached it keeps its legitimacy?
A later decision specifying the objective circumstances that excuse the ballot procedure, or an amendment to Article 41(1) or Article 45 of the Trade Union and Labour Relations Adjustment Act fixing when a member ballot must be held, would require this entry to be read again.
Cross-family AI independent reading & axis check
8 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on all 8 axes.
Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul High Court, in its judgment of 10 April 2019 (2017Nu71958), held that the 2013 wage negotiation was plainly one of the main purposes of the second strike and that there were circumstances from which current issues such as the withdrawal of discipline, damages claims and attachment orders against members of the Railway Workers' Union, transfers and opposition to single-person crewing could be seen as included among the strike's purposes, but that it was not established that the second strike would not have occurred even without them, so the legitimacy of the strike's purpose could not be denied. Taking the whole process from the union's wage proposal to the ballot and the strike into account, it found that a member ballot on the second strike had been held. It held in the same vein that the ballot having been held after the labour dispute arose but before the Central Labour Relations Commission's conciliation procedure ended did not alone make the second strike unlawful. It also held that some of the disciplinary reasons given to the participants were not justified, and that the dismissal of participant 17 was a punishment out of proportion to the misconduct.
Supreme Court standard: The Supreme Court found no error. Reading the appellate reasons against the record, it held that the court below had not misunderstood the law on the legitimacy of a strike's purpose, on strike procedure or on the procedural legitimacy of a strike, and had not misread the law on the disciplinary reasons and the degree of punishment or exceeded the bounds of discretionary evaluation. It added that the Supreme Court decision the plaintiff relied on concerned a ballot held in a state that had not reached a labour dispute, so it was not apt for this case, and dismissed the appeal with costs on the plaintiff.
Distinguishing conditions
- A strike in which objective circumstances showed that the ballot procedure could not be followed, since the loss of legitimacy stops at that point.
- A ballot held in a state that had not yet reached a labour dispute, since the Supreme Court decision the plaintiff relied on was held to concern that situation and not this case.
- A union whose timing of the member ballot is restricted by law, since the Court reasoned that the union decides the timing autonomously unless the law fixes it.
Record verification notes
Set the union's vote record against the elements of Article 41(1) first: a direct, secret and anonymous ballot of members giving majority approval, and any objective circumstance said to have made that impossible. Then fix the date of the ballot against the point at which the labour dispute arose and the conciliation procedure ran, since the Court refused to treat the sequence as decisive but did distinguish a ballot held before any dispute. Keep the disciplinary questions apart: each stated reason and the proportion of the sanction are examined on their own facts.
From the official text
Points at issue
조합원의 직접·비밀·무기명투표에 의한 과반수의 찬성결정이라는 절차를 거치도록 한 노동조합 및 노동관계조정법 제41조 제1항의 절차를 위반한 쟁의행위는 정당성이 상실되는지 여부(원칙적 적극) 및 쟁의행위에 대한 조합원 찬반투표가 같은 법 제45조에서 정한 노동위원회의 조정절차를 거치지 않고 실시되었다는 사정만으로 쟁의행위의 정당성이 상실되는지 여부(소극)
Unofficial English translation
Whether a dispute action that violates the procedure prescribed in Article 41 (1) of the Trade Union and Labor Relations Adjustment Act, which requires a decision by a majority vote of the union members taken by direct, secret, and anonymous ballot, loses its justification (in principle, affirmative), and whether the fact that the vote of union members on the dispute action was conducted without going through the mediation procedure of the Labor Commission prescribed in Article 45 of the same Act, standing alone, causes the dispute action to lose its justification (negative)
Summary of the holding
노동조합이 쟁의행위를 할 때에 조합원의 직접·비밀·무기명투표에 의한 과반수의 찬성결정이라는 절차를 거치도록 한 노동조합 및 노동관계조정법(이하 ‘노동조합법’이라 한다) 제41조 제1항은 노동조합의 자주적이고 민주적인 운영을 도모함과 아울러 쟁의행위에 참가한 근로자들이 사후에 쟁의행위의 정당성 유무와 관련하여 어떠한 불이익을 당하지 않도록 그 개시에 관한 조합의사의 결정에 보다 신중을 기하기 위하여 마련된 규정이므로 위의 절차를 위반한 쟁의행위는 그 절차를 따를 수 없는 객관적인 사정이 인정되지 않는 한 정당성이 상실된다. 하지만 쟁의행위에 대한 조합원 찬반투표가 노동조합법 제45조가 정한 노동위원회의 조정절차를 거치지 않고 실시되었다는 사정만으로는 그 쟁의행위의 정당성이 상실된다고 보기 어렵다.
Order
상고를 기각한다. 상고비용은 보조참가로 인한 부분을 포함하여 원고가 부담한다.
Unofficial English translation
The appeal is dismissed. The plaintiff shall bear the costs of the final appeal, including those arising from the auxiliary intervention.
Provisions referred to
노동조합 및 노동관계조정법 제41조 제1항, 제45조
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