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영어

Injunctions on labor disputes can generally be categorized into two types: (1) injunctions for the purpose of prohibiting the overall labor dispute, and (2) injunctions with the purpose of regulating a specific aspect of the labor dispute. Injunctions for prohibiting the overall labor dispute is and injunction that prevents all aspects of the labor dispute in question if the labor dispute caused by the labor union is illegal or lacks justifiability status. For instance, should the labor union go on strike in direct violation of the duty of peace, or go on a strike for purely political purposes, the court would rule as such: “The debtor shall not act upon the labor dispute notified to creditor as of the date of the labor dispute resolution made on September 10, 2015” or “The debtor shall not act upon any labor dispute resolved by the labor dispute resolution as of September 10, 2015.” In some cases, this type of injunction may be accepted by the courts. However, acknowledging such type of injunction may encroach upon the Constitutional rights of organization and collective action, which in turn makes the court inadequate institution to rule on such matter of grand scale when an injunction demands for a quick decision, and is vulnerable to abuse by the employer. Therefore, even if the decision of whether the labor dispute in question is justifiable is relatively straightforward and the employer has responded with due care, the injunction for prohibiting the overall dispute shall only be made available under special circumstances whereby the fundamental Constitutional rights of organization and collective action is not infringed upon. It is preferred that the courts deliberate on the matter and induce the party to amend the claim for injunction to one of regulating a specific aspect of the labor dispute, or accept an injunction only on the condition of limiting the prohibition to the necessary extent by the court’s own right as in accordance with Article 305(1) of the Civil Enforcement Act of Korea. The lower courts have steered towards this type of ruling in the recent past. Meanwhile, the object to the supplementary indirect enforcement ruling to the injunction for prohibition of labor dispute should be the representative or other executive council members, not the labor union itself. Specifically, in the event of a breach in the duty of peace, the injunction for the prohibition of the overall labor dispute may be accepted as precedent by the courts show. Nonetheless, requesting for a prohibition on a specified illegal action is the preferable way, and we should note that even if there is a collective agreement in effect, in practice, the validity of the duty of peace is quite vague and there are a number of instances that can be considered an exception to the duty of peace clause. The injunction for the prohibition of the overall labor dispute can also be called for in the event the collective bargaining fails or the resolution lacks appropriate labor union members vote. Surely, such decisions should be deliberated with caution. In my opinion, such comprehensive injunction should not be accepted in the event of a breach in the duty of peace, and in the event of a breach of the mandatory arbitration clause, the decision should be made with consideration to the specific circumstances along with the principle of last resort and principle of proportionality. In the event the laborers act upon a labor dispute because the employer rejected collective bargaining for the reason of authentication voting, precedents have allowed for an injunction to be placed, nonetheless the fact that an authentication voting is invalid, there is room for doubt about the court’s rulings. In the event of violating the scope of member restriction, in consideration of the public interest and the specialty of the work of public servants and teachers, regulation regarding their labor dispute does carry weight, and therefore if public servants or teachers act upon a labor dispute in direct violation of the current rule on the prohibition of labor disputes, a comprehensive injunction will be placed for lack of justifiability. In the event the labor dispute violates the prohibition of violence clause, a comprehensive injunction would be accepted in rule, while if the labor dispute only infringes on the prohibition of safety protection facility clause that would not be the case.