Provisional relief from Revocation Litigation for National Labor Relations Commission decision on review
Authors:   Korean Administrative Law Association, Jung Sun-kyun 
Published: April 2024

Whether it is an individual labor relationship or a collective labor-management relationship, these disputes have a civil legal nature, so they naturally fall under the realm of civil procedures. However, the Labor Relations Commission was established to provide quick and simple rights relief, and since the decisions of the Labor Relations Commission were in the nature of disposition, ultimately, lawsuits filed through the Labor Relations Commission fell under the Administrative Suit. Accordingly, Revocation Litigation for the National Labor Relations Commission's decision on review is formally an administrative suit that contests the illegality of the Labor Relations Commission's decision, and the Administrative Litigation Act is applied. However, in reality, it has a very unique structure in which labor law is applied in that it deals with legal disputes between workers (or trade unions) and employers.
Meanwhile, under the current law, there is no system that guarantees the legal status of the plaintiff not only at the Labor Relations Commission stage but also at the Administrative Suit stage. Accordingly, cases where Provisiona relief is possible when filed through a civil procedure become impossible when filed through an Administrative Suit, making the legal status of workers unstable. Additionally, it is very difficult to meet the requirements for Suspension of Execution, which is Provisiona relief under the Administrative Litigation Act, and even if the requirements are met, there is usually no benefit in applying for Suspension of Execution for disposition of refusal. And with regard to provisional disposition, the Supreme Court does not allow provisional disposition in Revocation Litigation on the grounds that there is no provision for provisional disposition in the Administrative Litigation Act. Therefore, if a worker who has been unfairly dismissed by an employer disputes the validity of the dismissal with an Administrative Suit or files a lawsuit to confirm employee status, he or she can apply for provisional disposition. However, the reality is that if you go through the Labor Relations Commission and file a Revocation Litigation for the National Labor Relations Commission's decision on review with the Administrative Suit, you cannot apply for any Provisiona relief.
Our Constitution recognizes the people's right to seek trial as one of their fundamental rights. This means that appropriate rights relief must be provided through trial to citizens whose rights have been violated, and that appropriate rights relief is provided means that the conclusion desired by the plaintiff must be reached at the desired ‘time.’ Therefore, even if an Administrative Suit is filed against an employer's unfair dismissal or unfair labor practice, Provisiona relief should be granted just as in the case of filing a Civil Procedure. Specifically, a worker or employer can apply for Suspension of Execution in Revocation Litigation for the National Labor Relations Commission's decision on review. Regarding Provisional Disposition, unfair dismissal relief Revocation Litigation can use Provisional Disposition for payment of wages, Provisional Disposition for preservation of worker status, Provisional Disposition for prohibition of work interference, Provisional Disposition for suspension of effect for disadvantageous disposition, etc. In unfair labor practice relief Revocation Litigation, it is possible to use provisional disposition for collective bargaining compliance, provisional disposition for exclusion of interference with violation of right to organize, and provisional disposition for workplace lockout.