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(영문) 대법원 1994. 8. 23. 선고 94다7553 판결

[직위해제등무효확인][공1994.10.1.(977),2503]

Main Issues

(a) Validity of a removal from position based on the resolution of the personnel committee composed in violation of the regulations on operation of regional medical insurance associations;

(b) Whether defects in the procedures for deliberation of the personnel committee of the regional medical insurance association are corrected in the course of examination of the committee for examination of the medical insurance association;

Summary of Judgment

A. Article 12(5) of the Regulations on the Management of Local Medical and Insurance Associations provides that a member who has an interest in the matters to be deliberated upon by the personnel committee cannot participate in the meeting, and this is a mandatory provision. Thus, the personnel committee which attended and decided the specific act of misconduct of the person subject to disciplinary action as the chairperson is a serious error in its composition. Thus, removal from office based on the resolution of the personnel committee is null and void

B. Although regional medical insurance associations and medical insurance associations are different from their members, deliberation by regional medical insurance associations personnel committee and committee for review by the medical insurance associations and committee for review by the committee for sub-committee of the medical insurance association are one of the entire procedures, and examination by the committee for examination by the committee for sub-committee of the medical insurance association can be seen as the procedure for review by the committee for personnel committee of the regional medical insurance associations. Thus, if a person subject to disciplinary action is dissatisfied with removal and filed a request for examination by the committee for examination by the committee for examination of the committee for committee of the medical insurance associations, the above procedure for examination should be one of the procedures of the regional medical insurance associations and the legitimacy of the procedure should be determined as to the whole procedure

[Reference Provisions]

Article 27(1) of the Labor Standards Act, Article 25 of the Medical Insurance Act, Article 13-2 of the Enforcement Decree of the Medical Insurance Act, Article 12(5) of the Regulations on Operation of Regional Medical Insurance Associations, Article 27 of the former Medical Insurance Act

Reference Cases

B. Supreme Court Decision 91Da36129 delivered on September 22, 1992 (Gong1992, 2954), 93Da29358 delivered on October 26, 1993 (Gong1993Ha, 3182), and 93Da17690 delivered on November 9, 1993 (Gong194, 69)

Plaintiff-Appellee

[Judgment of the court below]

Defendant-Appellant

Strengthening Military Medical Insurance Association

Judgment of the lower court

Seoul High Court Decision 92Na70542 delivered on December 9, 1993

Text

The appeal is dismissed. The costs of appeal are assessed against the defendant.

Reasons

The grounds of appeal (to the extent of supplement in case of supplemental appellate brief not timely filed) are examined as follows.

1. Article 12(5) of the Operational Rules of the Regional Medical Insurance Association (hereinafter “Operation Rules”) provides that a member who has an interest in the matters to be deliberated upon by the personnel committee may not attend the meeting, and this provision is a mandatory provision. Meanwhile, the defendant cited a person who lacks the ability to perform his/her duties, whose work performance is poor, or whose work performance is very unfaithful, or whose work attitude is very unfaithful, as the specific content is the Nonparty’s abusive theory against the Nonparty, its attitude, non-Confidence, and ambiguous statement. Thus, it is obvious that the non-party is a specific victim caused by the Plaintiff’s act and is an interested person in the matters to be deliberated upon by the personnel committee which deliberated on the removal from his/her position. Accordingly, the above personnel committee which attended the meeting as the chairman of the personnel committee and deliberated and decided on the removal from his/her position was seriously erroneous in its composition, and thus, the defendant’s dismissal from his/her position on October 5, 191 based on the resolution of the personnel committee is null and void.

2. If the plaintiff's petition for review was made against the above disciplinary action, the procedure for review of the above disciplinary action is to be determined wholly with one of the original disciplinary measures. If the above disciplinary measures were to be taken against the plaintiff's representative director, the violation of the procedure is to be cured (see Supreme Court Decision 80Da1769 delivered on June 9, 198; Supreme Court Decision 91Da36123 delivered on September 26, 192; Supreme Court Decision 93Da1769 delivered on October 26, 193; Supreme Court Decision 93Da17690 delivered on November 26, 1993). The above legal principle is to ensure that the committee's employees' request for review of the above disciplinary measures against the defendant's small medical insurance association's non-permanent directors and the employees' request for review of the above disciplinary measures to be taken by the above small medical insurance association's 2nd executive officers and the employees' request for review of the above disciplinary measures to be taken against the defendant's employees.

Therefore, the court below's decision that the defect caused by the breach of procedure could not be cured even after the review procedure was conducted by the original review committee is erroneous in the misapprehension of legal principles on the remedy of the defect caused by the breach of procedure in the process of removal from position.

3. However, we affirm the judgment of the court below that each reason for removal from position against the plaintiff is that it is difficult to see that the work performance, which is the reason for removal from position under the management regulations of the defendant association, is poor or that the work attitude is extremely unfaithful. Thus, the above removal from position is null and void and ex officio dismissal disposition based on it is also null and void. Thus, the above illegality of the court below's decision that accepted the plaintiff's claim cannot affect the conclusion of the judgment that accepted the plaintiff's claim. Ultimately, there is no reason to

4. The defendant filed an appeal as to the part ordering the payment of wages, but the defendant did not state any grounds for appeal as to this part and did not state it in the petition of appeal.

5. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)

심급 사건
-서울고등법원 1993.12.9.선고 92나70542
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