조합원의 단체교섭ㆍ단체협약 체결과정에 참여할 수 있는 권리를 침해한 노동조합 대표자의 책임 ― 대법원 2018. 7. 26. 선고 2016다205908 판결 ―

The representative of the trade union is entitled to collective bargaining with the business owner on behalf of the trade union and to enter into collective agreements. The majority of trade unions require representatives to enter into collective bargaining and collective agreements on the basis of opinions formed by members through the general assembly of members prior to entering into collective agreements. This is based on the right to unite of the workers and to participate in the union of members as stipulated in the Constitutional Act and Trade Union Act. If the representative of the trade union disregarded the members’ rights in violation of the union regulations and concluded a collective agreement arbitrarily, it infringed upon the members’ right to participate in the trade union. Without special circumstances, the conduct of a trade union representative that infringes on members’ right to participate, is a tort. Therefore, trade union and representatives are jointly responsible for compensating for non-property damages of members. In this case, subject to my review, the court recognized mental damages for infringement of the rights of union members to participate in the general assembly by signing a labor-management agreement without the participation of the members in violation of the union regulations. However, the court rejected compensation for property damage caused by members due to the labor-management agreement, citing no adequate causation. In European tort law, the members’ loss of this case is called the “pure economic loss” which is not generally recoverable. Our Supreme Court, which is unfamiliar with the concept of pure economic loss, has also denied compensation, saying it is an “indirect and economic loss.” However, pure economic loss does not always mean that it cannot be compensated. The former British highest court, House of Lords has recognized that the victim is liable for damages caused by a breach of duty to a third party of a lawyer who does not have a direct obligation to the victim. Our court should not replace the reason for the ruling with the empty theory of “adequate causation” and the “ideology of fairness” and should determine whether the defendant is liable in accordance with the existence of the duty of care, the scope of protection and the defendant's breach of duty. Furthermore, if the representatives of the trade unions arbitrarily enters into a labor-management agreement as in the case, thereby infringing upon the rights of the members, causing property damage to the members, and causing huge social losses, we must be able to invalidate this arrangement.