1. Justification for Industrial Action

A labor union may take industrial action as the means of gaining a strong position at the bargaining table, and shall be exempt from any civil or criminal liability if it is taken in a legitimate manner. The requirements for legitimacy of an industrial action are: it shall be taken by a legitimate labor union; its purpose shall be to maintain or improve working conditions of the employees and promote their social and economic status; and it shall follow the procedures stipulated in law.


An employee can be exempt from penalties only when the industrial actions are legal. Legal requirements for such exemption from penalties shall be the following: Firstly, the subject shall be the person who is subject to collective bargaining. Secondly, the purpose of the action must be to cultivate negotiations between labor and management in order to improve working conditions. Thirdly, industrial actions must be taken only when the employer rejects collective bargaining requests to resolve employee demands for improved working conditions. In these cases, as preceding conditions, the labor union shall engage in a pro-and-con voting process and report the occurrence of any industrial action unless there is a special reason not to do so. And fourthly, the ways and methods shall be in harmony with the employer’s property rights and shall not involve any violent behavior. Supreme Court ruling on May 24, 1991 91Do324



(1) Substantial requirements

1) Justification of subjects
The parties engaged in industrial action shall be the parties to collective bargaining. Thus, a legitimate labor union shall represent the employee side. Industrial actions are legitimate only when they are taken by the labor union as a whole. That is, if some union members begin an industrial action, regardless of the position of the union, such industrial action will not be regarded as legitimate. A branch or chapter of a labor union is a lower organization of a labor union and therefore, branch or chapter cannot serve as a counterpart to management in collective bargaining or agreement, or industrial action within the range of authorities commissioned to them by the labor union rules.

① Those engaged in industrial actions shall be those persons who are capable of conducting collective bargaining and signing collective bargaining agreements. Supreme Court ruling on Jun. 25, 1999, 99Da8377.

② Industrial actions are legal only when they are authorized by an established labor union in accordance with the regulations of the Trade Union Act. However, industrial actions are not legal if they are conducted by a group of employees not yet established as a labor union. Industrial actions are designed to accomplish their claims concerning working conditions by executing collective bargaining agreements. Industrial actions by persons not subject to collective bargaining (e.g., a temporary body for industrial actions) cannot be engaged in order to provide assistance in the settlement of industrial disputes. Accordingly, it is necessary to prevent any irresponsible industrial actions by such groups. Supreme Court ruling on Jun. 25, 1999, 99Da8377.


③ Strikes conducted by a small group of labor union members without the labor union’s approval or against the majority of union members, which is designated a ‘wildcat strike,’ will not be considered legal because the strike was taken by persons not subject to collective bargaining (e.g., a temporary body for industrial actions). Supreme Court ruling on Apr. 22, 1997, 95Do748.


④ An individual employee or a temporary body for industrial actions cannot be a party to the collective agreement. An industrial action is a last resort on which a union can rely in order to ensure favorable working conditions in negotiating a collective agreement. Accordingly, an industrial action is permitted only when it is aimed at a matter that is subject to collective bargaining and is taken by a party to collective bargaining and agreement. Constitution Court ruling on Jan. 15, 1990, 89HeonGa103.


⑤ It is not justifiable for some union members to begin an industrial action without the approval of the union or against its instructions. At least under the labor laws currently in force, an industrial action is justifiable and its participants immune to criminal liability only when the action is taken by a labor union that is entitled to conduct collective bargaining or reach a collective agreement. If some union members begin an industrial action without the approval of the union or against its instructions, the action is neither justifiable nor immune to criminal liabilities. Supreme Court ruling on Oct. 12, 1995, 95Do1016.


2) Justification of purpose
Industrial actions are behaviors through which the parties involved in the labor relationship intend to accomplish their means (Article 2, subparagraph 6, of the Trade Union Act), concerning employment conditions such as wages, working hours, welfare, dismissal, and other issues (Article 2, subparagraph 5, of the same Act). In general, political strikes or sympathy strikes are not legitimate.

① The purpose of industrial actions shall be to cultivate autonomous negotiations between labor and management to improve working conditions. That is, the labor union’s demand shall be a matter pertaining to a collective agreement that it expects to accomplish through the industrial actions. Supreme Court ruling on Jun. 25,1999, 99Da8377.


② Industrial actions shall be undertaken to cultivate autonomous negotiations between labor and management. Industrial actions are actions designed to accomplish a party's claims when there is disagreement between two parties with respect to working conditions and the claims of parties described here shall include any matters pertaining to individual and collective labor relations. They shall not only include claims described in the collective agreement or labor agreement but will include claims for the establishment of additional rules and/or amendments to those agreements. Accordingly, they shall include all claims with respect to the determination of conditions of employment such as wages, working hours, welfare, dismissal, and other issues, but shall not be limited to wages or improving and maintaining workers’ economic status. Supreme Court ruling on Mar. 25, 1994, 93Da30342.


③ If an industrial action is taken for several reasons, some of which are unjustified, the main purpose of the industrial action shall be examined in order to determine whether the action is justified or not. If it is estimated that the labor union would not risk taking industrial action if the unfair demand was absent from its purposes, the entire industrial action cannot be justified. Supreme Court ruling on Jan. 21, 1992, 91Nu5204.

④ As long as the reason for the industrial action is not justifiable, even though the labor union has engaged in the prescribed mediation process required by the Trade Union Act before the industrial action commenced and/or there have been no legal violations in the ways and methods of the action, the action cannot be considered justifiable actions. Supreme Court ruling on Apr. 24, 2001, 99Do4893.


⑤ It is not justifiable to begin industrial action in protest of dismissals (massive lay-offs) for managerial reasons or integration or abolition of business departments as part of a restructuring process. A decision to dismiss employees for managerial reasons or remove or reduce business departments for restructuring purposes is exclusively up to the employer and, in principle, such decisions are not subject to collective bargaining. Unless the employer intends to carry out the restructuring process for an unfair reason (other than urgent business purposes, etc.), no industrial action taken by the union to protest the restructuring is justifiable, even though the action is aimed at improving working conditions and the status of the employees. Supreme Court ruling on Feb. 26, 2002, 99Do5380.


⑥ When an industrial action is taken to protest dismissal for managerial reasons, such action cannot be justified. A certain industrial action was begun to block a restructuring process, including massive lay-offs to be done for economic reasons. This was a clear infringement on the employer's prerogatives in business management. There was no evidence that the restructuring was being carried out for unjustifiable reasons. Given this, the industrial action was not justifiable. Supreme Court ruling on Feb. 11, 2003, 2000Do4169.


⑦ It is not justifiable to begin industrial action in order to get compensation for something, even when the compensation is not one of the issues subject to collective bargaining. In a certain case, a business transfer was the result of the employer's decision to change the structure of the business. In addition, as the proceeds from the transfer did not come from business activities, the decisions on use of the proceeds may not be negotiated at a bargaining table. Nevertheless, the union, under the leadership of some union officials, demanded compensation and resorted to industrial actions with a view to having its demand met. When all things were considered, the industrial actions were not justifiable. Supreme Court ruling on May 8, 2001, 99Do4659.

3) Justification of methods

According to Article 4 of the Trade Union Act, a labor union's collective bargaining or other collective activities are admitted as industrial actions that are exempt from criminal liability, but it also regulates that “acts of violence or destruction shall not be construed as justifiable for any reason.” Article 42 of the Act also states that “industrial actions shall not be conducted with violence or destruction.”

Any industrial action which suspends, closes, or hampers normal functioning of safety facilities (emergency rooms and intensive care units of hospitals, gas explosion prevention facilities, etc.) shall be deemed illegitimate. Therefore, a labor union shall ensure that a minimal number of employees required for normal functioning of those safety facilities are at work, even while the union is in the course of industrial action.

① Industrial actions shall be to partially or totally prevent the provision of labor services by negative methods to damage the employer's business. Industrial actions shall be implemented fairly through a principle of faith and sincerity, be in harmony with the employer’s property rights regarding the corporate facilities, and shall not be accompanied by violence or destruction. Supreme Court ruling on Jun. 25, 1999, 99Da8377.


② In a certain case, the plaintiff held a labor union meeting during working hours without the employer’s approval and conducted union activities using a high performance megaphone inside company facilities. He led the labor union to collectively refuse to provide labor services, which was characteristic of an industrial action, without appropriate procedures such as holding a union assembly or engaging in an adjustment process for labor disputes. He blocked the entrance gate, which disturbed the company’s normal operations. Furthermore, he used force to occupy the president’s office for a considerable period of time and, in this process, used violence toward managerial employees. He humiliated the company’s labor managers and distributed printed handouts containing defamatory untruths them. Even though the plaintiff insisted that the purpose of the union activities was to ensure the health and safety of the union members, such types of union activities cannot be seen as justifiable union activities or industrial actions and so they were considered illegal. Seoul District Court ruling on Aug. 11, 2005, 2005Guhap9392.

③ When a dismissed employee occupies a building of the company he once worked for, such action is not justifiable.

A dismissed employee, along with 570 other striking employees, stormed into the main building of the company he had worked for and, in doing so, forcefully pushed away about 400 employees who were trying to stop the striking employees from coming into the building. It does not seem that such an act of occupation was legitimate. Furthermore, the building occupation prevented about 600 employees from engaging in their work, which is not an unavoidable result of the strike. All considered, the dismissed employee committed the offenses of unlawful entry and obstruction of business. Supreme Court ruling on Jun. 12, 1990, 90Do672.


4) Justification of time
Industrial actions are designed to make one party yield to the other's demands. Thus, if such demands are included in the contents of the existing collective agreement, it is not justifiable to make demands during the effective period of that agreement. If the labor union, while the collective agreement is still in effect, attempts industrial actions by obstructing the normal operation of business, this violates the duty to maintain peace and shall not be justifiable unless the employer willingly accepts the union's demand to negotiate at that time.

The peace obligation is inherent in the collective agreement, whether or not it is explicitly included in that agreement. Under the peace obligation, neither party to the collective agreement may demand revision or repeal of the existing provisions in that agreement, or insertion of new provisions, while the agreement remains effective. Considering that the peace obligation is to ensure stability in the labor relationship and maintain the effectiveness of the collective agreement, any industrial actions which a union engages in to invalidate a collective agreement without providing a justifiable reason constitute a violation of the peace obligation and cannot be justified. Supreme Court ruling on Sep. 1, 1992, 92Nu7733.


(2) Procedural requirements

Industrial actions are legal only if they are in accordance with the time requirements and procedures under the law. However, the purpose of the time requirements and procedures for industrial action are to provide opportunities to avoid industrial actions by allowing preventive measures to be taken by the parties, to predict when industrial actions will be taken, and to allow them to take place. Supreme Court ruling on Dec. 8, 1992, 92Do1645.


Industrial actions must start after the employer refuses the labor union’s attempts at reaching a collective agreement on substantial demands related to improving working conditions or when the employer rejects such demands during collective bargaining. As long as there are no special cases, industrial actions shall follow the appropriate procedures in accordance with the Trade Union Act: decision-making process by workers’ secret and unsigned vote Article 41 (1)
, preceding adjustment procedures Article 45 (2), Article 54, and Article 63
, and reporting of the occurrence of an industrial action Article 45 (1)
. Supreme Court ruling on Jun. 25, 1999, 99Da8377.


1) Voting by union members
Before the labor union conducts industrial action, it shall undertake a democratic decision-making process within the union. Thus, the labor union shall not conduct industrial actions unless decided on by a majority of union members by direct, secret, and unsigned ballot. Article 41 ① of the Trade Union Act


The legal provision requiring that an industrial action shall be brought to a vote by the union membership is intended to promote independent and democratic operation of the union and to ensure that the union is prudent enough in making any decision that might bring disadvantages to the union members involved. No industrial action that was taken without the requirement of voting being fulfilled can be justified, unless it is objectively established that there was an unavoidable reason to omit the required procedure. Supreme Court ruling on Oct. 25, 2001, 99Do4837 en banc.


2) Adjustment of labor disputes Reference “Chapter 17 Labor Relations Commission” for more information.

Adjustment of labor disputes refers to a process intended to help resolve disagreements between the parties to collective bargaining. Mediation means that a mediator, who is a third party, gives a proposal to solve the labor dispute, which the parties to the labor dispute concerned shall review. However, the parties are not bound to accept the proposal. Arbitration means that an arbitrator, who is also a third party, gives a proposal to solve the labor dispute, which the parties to the dispute concerned shall accept to reach an agreement.

① Mediation
Upon initiating a labor dispute, one party to the dispute shall notify the other party of it in writing. No industrial action shall be permitted without completing adjustment procedures of mediation. This shall not apply in cases where adjustment procedures are not completed within an established period of time, or where arbitration is not made within an established period of time.

According to Article 54 of the Trade Union Act, mediation shall be completed within ten days for general businesses, or within fifteen days for public services, after a request for mediation. The period of mediation may be extended up to no more than ten days for general businesses, and no more than fifteen days for public services.

The mediation committee within the competent Labor Relations Commission shall mediate the labor dispute brought before it. The mediation committee is made up of three commissioners of the Commission: one representing the employer, one the labor force, and one the public interest. The mediation committee or the single mediator shall hear the opinions of both parties to the labor dispute and make fact-finding investigations to map out a mediator's proposal, and shall recommend that both parties to accept it.

If the mediator's proposal is accepted by both parties, it shall have the same effect as a collective agreement. If the mediator's proposal is not accepted by both parties, the mediation committee shall notify the parties that the mediation procedure is ended. Then, arbitration shall commence if the parties have agreed on that. If there is no such agreement, the parties may take industrial action.

② Arbitration
Industrial action shall not be implemented for fifteen days from the date when a labor dispute is referred to arbitration.
i) When both parties concerned request arbitration; or
ii) When either party requests arbitration in accordance with the provisions of the collective agreement;

An arbitrator, who is also a third party, gives a proposal to solve the labor dispute, which the parties to the dispute concerned shall accept to reach an agreement. Arbitration is carried out by the arbitration committee within the Labor Relations Commission. A finalized arbitration award shall have the same effect as a collective agreement.

3) Suspension of industrial actions during emergency adjustment
The Minister of Employment and Labor may decide to conduct an emergency adjustment of any industrial action, in cases that are related to public services or are likely to impair the national economy or endanger the welfare of the general public owing to the vast extent and unique characteristics of its effects. If the Minister of Employment and Labor decides to conduct an emergency adjustment, he shall first hear the opinion of the chairman of the National Labor Relations Commission.

When the decision to conduct an emergency adjustment is publicly announced, the parties concerned shall immediately suspend any industrial action, and no industrial action shall resume until thirty days have passed from the announcement date of the decision.

2. Protection for Justifiable Industrial Actions

(1) Exemption from civil and criminal claims due to justifiable industrial action

When an employer has suffered damages due to collective bargaining or industrial action under this Act, he/she shall not claim damages against the labor union or workers. Article 20 of the Criminal Act states that actions, which by law, etc., do not violate other regulations shall not be punished (Article 3 and 4 of the Trade Union Act).

Although an industrial action, as it usually leads to impediment of the business, seems likely to constitute several offenses under the law, participants are immune to civil or criminal liability as long as the action can be justified. Constitutional Court ruling on Jul. 16, 1998, 97Heonba23.


(2) Restriction on employer’s hiring or replacing striking employees Further details are provided on the next page, “5”.

An employer shall not hire or bring in any person not related to the relevant business as a substitute during the period of industrial action in order to continue work which has been interrupted by the industrial action. Moreover, the employer may not contract out or subcontract the work discontinued by an industrial action while the industrial action is in process. Article 43 of the Trade Union Act


However, the employer of an essential public service is allowed to replace striking employees with external employees who have no relation with the business, or to outsource or subcontract the work, so long as the external employees account for 50% or fewer of the strikers. Since replacement work is available only during the period of industrial actions, the employer may not use replacement work on a permanent basis because of the strike.

(3) Restriction on detention of workers

With the exception of a criminal caught in the act, workers shall not be detained for any violation of this Act during the period of industrial action. Article 39 of the Trade Union Act


3. Civil or Criminal Claims for Illegal Industrial Actions

(1) Civil claims

Acts (which result in damage to the company) excluded from liability for civil compensation according to Article 3 of the Trade Union Act, are restricted to justifiable industrial actions. For unjustifiable industrial action that consists of illegal acts resulting in damage to the employer, that employer can demand compensation for such damage from the labor union and the employees concerned. Supreme Court ruling of Mar. 25, 1994, 93da32828, 32835 【Compensation for Damages】


1) Claims for default
When employees refuse to work on account of industrial actions, such as an illegal strike, etc. claims for default can be filed for violation of duty to work. Article 390 of the Civil Law (Claims for default)


“In cases where the debtor cannot carry out repayment of the debt, the creditor can claim compensation for damage. However, in cases where the debtor unintentionally (and not due to negligence) does not carry out repayment, the creditor cannot claim compensation.”

2) Claims for illegal acts
For picketing by force or obstruction of business by occupying working place, etc., claims for illegal acts of violence or obstruction of business can be filed. Article 750 of the Civil Law: Claims for illegal acts


"Anyone who harms another person by an illegal act, intentionally or by negligence, shall be responsible for the damage and resulting compensation.“

(2) Criminal claims
Criminal claims on account of industrial actions are not justifiable actions under the Labor Union Act, but are distinguished under the Criminal Act.

The criminal claims most often filed in relation to labor disputes or industrial actions are as follow:

① Crimes against a person Article 257 of the Criminal Law

"Anyone who damages another person's body shall be imprisoned up to seven years, suspended for his/her civil rights up to 10 years, or fined up to 10 million won."

② Crimes of violence Article 260 of the Civil Law

"Anyone who does violence to another person's body shall be imprisoned up to two years, fined up to 5 million won, or punished by detention or a fine.“

③ Obstruction of implementation of rights by violence Article 324 of the Civil Law

"Anyone who obstructs another person's implementation of rights by violence or intimidation or forces another person to do something which is not mandatory to the another person shall be imprisoned up to five years."

④ Obstruction of business Article 314 of the Civil Law

"Anyone who obstructs another person’s business by the method detailed in Article 313 (damage of trust) or by force, shall be imprisoned up to five years or fined up to 15 million won.“

⑤ Breaking-and-entering Article 319 of the Civil Law
or crimes of special breaking-and-entering Article 320 of the Civil Law

"Breaking-and-entering: Anyone who breaks and enters another person's house, premise, ship or airplane, or room occupied by another person shall be imprisoned up to three years or fined up to five million won.“

"Special breaking-and-entering: Anyone who breaks and enters another persons' the above article by a group or by collective intimidation or by carrying dangerous goods shall be imprisoned up to five years."

⑥ Destruction of property Article 366 of the Civil Law

"Anyone who harms utility by damaging or concealing another person’s property, documents or special recordings, such as electronic recordings, etc., shall be imprisoned up to three years or fined up to 7 million won."

(3) Responsibility for disciplinary punishment

The employer shall take disciplinary measures to maintain company order as a result of employees violating the labor contract, the rules of employment, or other management rules. Details of disciplinary punishment are stipulated in the rules of employment with respect to the degree of punishment, dismissal being the strongest and a warning being the weakest.


If an employee engages in unjustified industrial actions, his/her behavior is subject to disciplinary dismissal under the collective agreement or rules of employment such as “severe misbehavior or intentional disobedience of a justifiable order”. Supreme Court 91da4137


(4) Related judicial rulings

1) Calculation of damages for business discontinuance resulting from an unlawful industrial action

① From the viewpoint of jurisprudence, an employer may demand compensation for damages suffered in terms of the loss of product sales income that would have been earned if the business had not been discontinued by the industrial action, and for the loss of fixed costs (e.g., rents, taxes, utilities, depreciation expenses, insurance premiums, etc.) that he/she had to pay while the business was interrupted. Supreme Court ruling on Dec. 10, 1993, 93Da24735.


② The scope of compensation that a labor union and the employees involved would be responsible for shall be all damages with considerable causal relationship to illegal industrial actions. The damages suffered by an employer engaged in delivering medical services due to illegal industrial actions by a labor union and employees shall consist of revenue whose loss has a considerable causal relationship to those illegal industrial actions. This lost revenue shall be calculated by considering the related revenue during the same period of the previous year, or by considering the related revenue during the previous month, and then deducting all related profit costs from the calculated lost revenue. Supreme Court ruling of Mar. 25, 1994, 93da32828, 32835 【Compensation for damages】


2) Agreement on immunity to liability
If an employer has agreed not to hold the strike participants responsible for damage done during the strike, the agreement covers not only the acts done during the strike but also the acts done to prepare for or induce the strike. Supreme Court ruling on Jan. 28, 1994, 93Da49284


3) Should union executives play a leading role in an illegal industrial action by planning the industrial action and instructing or guiding the participants, it is possible to hold individual officials responsible for the illegal action.

Given that union executives did what they did on behalf of the union, the union is liable to pay damages to the employer for losses caused by the illegal industrial action. In addition, the union executives are responsible, as individuals, for the leading role they played in planning, instructing and guiding. Supreme Court ruling on Mar. 25, 1994, 93Da32828.


4. Prohibition of Demand for Payment of Wages during Periods of Industrial Action

When an employee participates in an industrial action and does not provide work for a period of time, his/her employer is not obligated to pay wages to the employee for the time he/she did not work. A labor union may not initiate an industrial action in order to demand and secure payment of wages for a period of industrial action (Article 44 of the Trade Union Act). The Supreme Court has ruled Supreme Court ruling on Dec. 21, 1995, 94Da26721,
, in conjunction with the principle of “no work, no payment,” that “the employee's right to a wage request, which is equivalent to a right of work provision, does not occur during a period of industrial actions.”


An employee cannot demand wages for the period of industrial action during which he/she did not provide work because he/she participated in an industrial action.
During a period of industrial action, a participating employee has his/her obligation to provide work under the contract of employment suspended, and his/her right to wage, which is given in return for the obligation to provide work, is also suspended for the period, unless otherwise prescribed in the collective agreement, the rules of employment or another agreement between the employer and employees. Supreme Court ruling on Oct. 25, 1996, 96Da5346.