2. The costs of appeal shall be borne by the Defendant.

On April 18, 2012, the Defendant confirmed that the waiting measure against the Plaintiff is invalid.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

The reasoning for this Court’s explanation is that Article 420(1) of the Civil Procedure Act is the same as Article 420(1) of the reasoning of the judgment of the first instance, except for the first instance court’s explanation on October 19, 2012, i.e., “as of October 18, 2012,” i.e., “as of October 18, 2012,” i.e., “as of October 19, 2012,” and adding “as of October 19, 2012,” respectively.

2. The defendant's main defense

A. The Defendant asserted that the instant lawsuit seeking confirmation of invalidity of the instant disciplinary action does not dispute the validity of the dismissal, and is unlawful as there is no benefit of protection of rights, since it was automatically dismissed on October 19, 2012 by Article 63 of the Defendant’s History and Article 13 subparag. 6 of the Reward Disciplinary Rule.

B. On the other hand, according to Article 13 subparagraph 6 of the Defendant’s Disciplinary Rule on Rewards, where a member is not assigned to a position even after six months have passed since the Defendant’s waiting disposition was taken place, the Plaintiff’s automatic dismissal is acknowledged as follows: (a) in full view of the purport of the entire pleadings in Article 48, the Plaintiff’s automatic dismissal from the Defendant at 0:00 am on October 19, 2012, because he was unable to be assigned to a position upon the expiration of the waiting disposition period under Article 13 subparagraph 6 of the Defendant’s Disciplinary Rule on Rewards; and (b) the Defendant was notified by the Defendant that he would terminate the employment relationship with the Plaintiff on October 19, 2012.

Therefore, the above automatic discharge naturally occurred as an effect on the fact that the atmosphere continues to exist for a certain period if the atmosphere exists for a certain period, and as it does not exist an independent legal act such as automatic discharge, the effect of the automatic discharge naturally did not occur if the atmosphere removal becomes null and void.

Therefore, inasmuch as the Defendant’s continued refusal of the Plaintiff’s provision of labor on the ground of automatic dismissal based on the instant disciplinary action, there is a legal interest in seeking confirmation of invalidity of the instant disciplinary action, which serves as the basis of automatic dismissal, in order to obtain confirmation that labor relations continue between the Defendant and the Defendant, and there is no need to seek confirmation of invalidity of the instant disciplinary action separately (see Supreme Court Decision 89Meu3943, Oct. 27, 1989).

Therefore, this part of the defendant's argument is without merit.

3. The plaintiff's assertion on the merits

(a) procedural defects;

1) In order to punish the Plaintiff for the following reasons, a resolution of a disciplinary committee consisting of six members recommended respectively by the Defendant and the labor union pursuant to Article 52 of the collective agreement. The instant disciplinary action was decided by the disciplinary committee consisting of nine members of the company disciplinary committee pursuant to Article 16 of the Rules on the Disciplinary Action against the Defendant’s Rewards, which is procedural defect.

A) According to Article 52 of the Defendant’s collective agreement, a disciplinary committee shall be composed of the number of labor-management union members. However, Article 16 of the Defendant’s Disciplinary Regulations provides that nine disciplinary members of the company shall be composed of nine members of the company, which is more unfavorable to workers than Article 52 of the collective agreement. Therefore, Article 16 of the Defendant’s Disciplinary Regulations is null and void in violation of Article 33 of the Trade Union and Labor Relations Adjustment Act,

B) As the Defendant has a branch of the Korean Press Workers’ Union in Busan, and a majority of the same kind of workers (a reporter) who are employed at all times in the above trade union is admitted to the above trade union, Article 52 of the collective agreement should be applied to the Plaintiff, who is another same kind of worker in Busan daily Labor Relations Adjustment Act, as a matter of course, pursuant to

C) The Defendant has been subject to disciplinary action in accordance with Article 52 of the collective agreement even when taking disciplinary action against non-members. As such, there was an implied agreement or labor practice that applies Article 52 of the collective agreement to non-members.

2) In full view of the provisions of Article 23, 26, and 27 regarding the independence of editing rights stipulated in the collective agreement, the Defendant, as in the instant case, should immediately refer to the disciplinary committee when he exercises editing rights in a certain direction, not immediately refer to the disciplinary committee, but only to the disciplinary procedure when a trade union demands a new candidate’s recommendation to the trade union pursuant to Article 27 subparag. 3 of the collective agreement, and the trade union rejects such recommendation, etc.

(b) substantial defects;

Even if certain grounds for disciplinary action are acknowledged against the Plaintiff, the instant disciplinary action against the Plaintiff is invalid since it abused the discretionary power of disciplinary action.

4. Judgment on the merits

A. Determination on the Plaintiff’s assertion of procedural defect

1) We examine the first argument.

A) Comprehensively taking account of the overall purport of the arguments as to the statement in Gap evidence 7, according to Article 52 (Composition of Disciplinary Committee) of the collective agreement (hereinafter referred to as "the collective agreement with the defendant and the Korean Press Workers' Union") concluded between the defendant and the Busan District Branch of the Korea Press Workers' Union (hereinafter referred to as "the defendant union"), the disciplinary committee shall be comprised of three members recommended respectively by the defendant and the defendant union, and the chairperson shall be separately appointed (Article 52). On the other hand, according to Article 16 of the Rules on Disciplinary Action against the defendant's Rewards, the disciplinary committee shall be composed of three members recommended by the defendant and the defendant union (Article 52). On the other hand, according to Article 16 of the Rules on Disciplinary Action against the defendant's Rewards, the disciplinary committee shall be composed of the executive officers and the director, and the chairperson and the secretary shall be appointed by the president, so the above

B) First, we examine whether Article 16 of the Defendant’s Disciplinary Rule on Rewards is invalid in violation of Article 33 of the Trade Union and Labor Relations Adjustment Act.

According to Article 33 of the Trade Union and Labor Relations Adjustment Act, the part of the rules of employment or labor contract that violates the working conditions and other criteria for the treatment of workers as prescribed in the collective agreement shall be null and void, and the part which is not prescribed in the labor contract or null and void under the said provisions shall be based on the standards

However, Article 6 subparag. 1 of the Defendant’s collective agreement excludes employees in charge of management (persons with at least the head of a department) from the scope of its members, and there is no dispute between the parties that the Plaintiff is at least the head of a department and is not eligible for membership. Therefore, the Defendant’s collective agreement does not apply to the Plaintiff. As such, the Plaintiff’s provision on the disciplinary action against the Defendant cannot be deemed null and void as it is more unfavorable than

C) Next, in accordance with Article 35 of the Trade Union and Labor Relations Adjustment Act, we examine whether Article 52 of the Defendant collective agreement is naturally applicable to the Plaintiff.

Article 35 of the Trade Union and Labor Relations Adjustment Act provides that when one-half or more of the workers of the same kind who are ordinarily employed in a business or workplace are subject to a collective agreement, the said collective agreement shall apply to other workers of the same kind who are employed in the same business or workplace concerned. However, the term “identical workers of the same kind subject to the collective agreement” refers to those who are expected to be subject to the said agreement pursuant to the provisions of the said collective agreement, and on the other hand, those who are not qualified as a union member pursuant to the provisions of the collective agreement, etc. cannot be said to be expected to be subject to the application of the collective agreement, and therefore are the same workers of the same kind with the general binding force of the collective agreement (see Supreme Court Decisions 2001Da63599, Feb. 12, 2004; 2004Do1108

Inasmuch as the Plaintiff’s absence of membership is the same as above, the Plaintiff cannot be said to be expected to apply the collective agreement, and thus cannot be said to be another employee of the same kind having the general binding force of the Defendant’s collective agreement. Therefore, Article 52 of the Defendant’s collective agreement does not apply to the Plaintiff.

D) Lastly, this paper examines whether there was an implied agreement or labor practice applying Article 52 of the Defendant’s collective agreement to non-members.

It is insufficient to find that there was such an implied agreement or labor practice solely with the statements in Gap evidence 37 and 39 (including each number), the testimony by Non-Party 1 of the witness of the first instance trial, and some testimony by Non-Party 2 of the witness of the first instance trial. There is no evidence to find otherwise.

E) Therefore, the provision on the first-class disciplinary action of the rules of employment applies to the Plaintiff as the Defendant’s employee. Accordingly, this part of the Plaintiff’s assertion that the instant disciplinary action was procedural defect due to Article 16 of the Rules on the Disciplinary Action on Rewards is without merit.

2) We examine the second argument.

As stated in attached Articles 23, 26, and 27 of the Defendant’s collective agreement, the Defendant’s collective agreement declares that the editing staff shall respect the editing rights, and determines the appointment and term of office of the editing staff, and it is recognized that the Defendant requires the Defendant to recommend a candidate for a new editing director to the Defendant’s union side where the editing director is unable to perform his/her normal duties. However, the foregoing provision alone does not necessarily require the Defendant, who is the appointing authority of the editing director, to recommend a candidate for a new editing director-general on the part of the Defendant cooperative, prior to the disciplinary action against the editing director-general, and there is no other evidence to acknowledge this. Accordingly, the Plaintiff’s assertion on this part is without merit.

B. Determination of substantive defects

1) Determination on grounds of disciplinary action

A) Determination as to Article 2(2) of the Disciplinary Grounds Act (violation of the duty to obey orders by the superior officer, rejection of legitimate business instructions by the superior officer, and non-performance without justifiable grounds)

In other words, the editor of a newspaper refers to a person responsible for editing a newspaper or publishing an online newspaper (Article 2 subparagraph 8 of the Act on the Promotion of Newspapers, Etc.), the name of the representative director of the defendant is indicated on the ground of Busan daily newspaper, the freedom of speech and press, which are fundamental rights under the Constitution, is also recognized as a juristic person like newspaper company. Article 3 (3) of the Act on the Freedom of Newspapers, etc. and Guarantee of Their Functions (wholly amended by Act No. 7369 of Jan. 27, 2005) of the Constitutional Court provides that the newspaper enterpriser shall guarantee the editor's autonomous editing under the conditions as prescribed by the same Act (Article 4 (2) of the current Act on the Promotion of Newspapers, etc.). However, it is reasonable to determine that the newspaper enterpriser should guarantee the editor's autonomous editing of the newspaper, etc., and that this provision is a violation of Article 25 (2) of the same Act or 50 (205) of the same Act, which provides that the newspaper publisher or editor's exclusive right of editing.

However, according to the facts found in paragraph (1) and each evidence, ① Nonparty 3, the representative director of the Defendant, at the time of November 19, 201, ordered the Plaintiff to cut off or postpone the instant article, but the Plaintiff refused to do so. Nonparty 3 again demanded that the Plaintiff change the title of the article into “a conflict with the right to appoint the president of the labor union.” In addition, the Plaintiff refused to do so. ② Ultimately, Nonparty 3 demanded that the article be inserted as the first article after deducting the company’s position, but instead, on November 21, 201, the “accident” column of the newspaper as of November 21, 201, but the Plaintiff refused to publish the said article; ③ Defendant appointed a new representative director and the executive officer on January 19, 2012; and the Plaintiff did not publish the personnel order issued by Nonparty 4 in the Busan National Assembly and the representative director on January 20, 2012 to December 4, 2012.

Thus, the above act of the plaintiff constitutes an act of violating Article 53 subparag. 4 (the duty to obey the Commercial Code) of the Rules, and constitutes a disciplinary cause under Article 14(1)11 (the time when the company refuses legitimate business instruction or fails to perform without justifiable grounds) of the Rules, since it constitutes a refusal of legitimate business instruction of the defendant representative director with final authority concerning editing or failure to perform his/her duties without justifiable grounds.

B) Determination as to the remainder of the grounds for disciplinary action (No. 1, 3, 4, and 5)

The reasoning for the court’s explanation on this part is as follows: (a) Nos. 27-3 of the judgment of the court of first instance was changed to the judgment on the assertion that “the plaintiff failed to comply with the decision of the Press Arbitration Commission and received the decision of indirect compulsory payment from the court; and (b) Nos. 27-17-19 of the 27th, the plaintiff made a counterargument report pursuant to the above decision only on May 4, 2012, immediately after the court rendered the decision of indirect compulsory payment. Thus, the plaintiff constitutes a ground for disciplinary action under Article 14(1)2 (violation of official duties) of the Defendant’s Regulation on Disciplinary Punishment on Rewards for the Compilation since the plaintiff constitutes a violation of the Plaintiff’s duties as the Director General of the Compilation Bureau.In addition to the alteration, the reasoning for the judgment of the first instance is identical to 5-A, c, e, and e

C) Sub-determination

If so, among the disciplinary grounds of the instant disciplinary action against the Plaintiff, the Plaintiff’s mistake related to publication, ② the refusal by the publisher at the time of production in the newspaper as of November 18, 201, the refusal of the publisher’s request for publication of personnel order on November 21, 201, and mistake related to the refusal of publication of personnel order on January 19, 201, ③ groundization, violation of the issuer’s right to make a decision on publication of accident, omission of the publisher, and failure of the Press Arbitration Commission to make a decision on indirect compulsory payment, are recognized as justifiable grounds for disciplinary action.

2) Determination as to whether a disciplinary discretion has been abused

A) Legal nature of the instant disciplinary action

The instant disciplinary action, which is a waiting disposition, was taken for the purpose of the Defendant’s disciplinary action against the Plaintiff’s misconduct in accordance with Article 63 (Rules on Rewards and Disciplinary Action) and Article 13 (Types of Disciplinary Action) of the Regulations on the Disciplinary Action on Rewards. Of the kind of disciplinary action (the kind of reprimand, salary reduction, bonus reduction, demotion, demotion, suspension from office, atmosphere, and dismissal) determined by the Defendant, the dismissal belongs to one of the following severe disciplinary actions.

In this respect, it is different from the standby order, which means the cancellation of a position which is a provisional measure (if a worker lacks the ability to perform his/her duties, or his/her work performance or attitude is poor, disciplinary proceedings against a worker are pending in a criminal case, etc., to prevent the worker from engaging temporarily in his/her duties due to his/her failure to assign his/her position temporarily in order to prevent anticipated occupational disorder if he/she continues to perform his/her duties in the future).

However, according to Article 13 subparag. 6 of the Defendant’s Act on the Disciplinary Action on Rewards, if a worker fails to be assigned to a position within six months after he/she was waiting to be assigned to the position, he/she shall be automatically dismissed. Accordingly, the Defendant’s atmosphere observation of the automatic dismissal is close to the employment contract based on the employer’s unilateral intent against the employee’s will and is close to the actual dismissal. Therefore, the legality of the instant disciplinary action ought to be determined based on dismissal

B) Determination

Comprehensively taking account of the following circumstances acknowledged by the evidence and the purport of the entire pleadings under Paragraph (1), the instant disciplinary action constitutes an abuse of discretionary power by the person having authority over disciplinary action.

(1) Of the grounds for disciplinary action in this case, the most important thing is that the Plaintiff refused the Plaintiff’s demand for the publisher related to the instant article at the time of production of the newspaper on November 18, 201, and thereafter exercised the authority over editing by making a report 25 times in total from February 10, 201, including the Plaintiff’s exercise of unfair influence on the management of the Defendant and the editing of the Busan FIC. Other reasons are derived or relatively minor errors. First, the Plaintiff’s disciplinary action against the Plaintiff’s unjust exercise of authority over editing is examined as to whether the instant disciplinary action is appropriate.

(2) (a) As seen earlier, the right of editing ultimately belongs to the publisher, and the freedom of speech and publication guaranteed by the Constitution is also guaranteed to the same corporation as the newspaper company.

① However, the freedom of speech and press is indispensable for a democratic system. It is because it is the foundation of all democratic society and can freely express its ideas and opinions. If open space is not secured for the free exchange of ideas, democratic politics cannot be expected. Therefore, democracy is able to escape only when diverse ideas and opinions within society are delivered to the Gu council without free exchange, and free criticism and discussions are active. Furthermore, the freedom of speech and press functions as the most effective and direct means to ensure that human beings can freely express and think in their lives, and communicate with others (see, e.g., the Constitution of the Republic of Korea, referring to the Constitution of the Republic of Korea, 196). In addition, if the freedom of speech and press is not guaranteed, it is no longer necessary for the defendant to declare that there are new conditions for editing and online newspapers, such as the 6th anniversary of the Constitution of the Republic of Korea (see, e.g., the Constitution of the Republic of Korea, 2009).

In full view of this, the right of editing held by the publisher of the newspaper company has an inherent limitation that should be exercised in a way that does not impair the freedom of speech within the newspaper company, in a way that does not infringe on the freedom of speech, contrary to the decision-making by companies based on profit-making and efficiency even though the newspaper company takes the form of a stock company.

(B) However, comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 41 through 47 and the overall purport of the pleadings, there were many cases where the defendant's publisher and editors specifically instructed and intervene in the contents of individual articles at the time, and the contents of the instructions were also biased in the collective agreement that respect the editing rights of the editing production and should be exercised properly for the people's right to know and social justice as they are biased toward a specific political party. Thus, it seems that the plaintiff, the director general of the editing bureau, as the plaintiff, was aware of the purport of the collective agreement that the editing production rights should be respected and should be exercised properly for the people's right to know and social justice. Thus, the plaintiff, the director general of the editing bureau, as the plaintiff of the non-party Nos. 3 responded to the direction related to the article

(C) The issue related to the Fixed-Term Scholarship Association is not an agenda newly created or emerged on the side of the plaintiff or the defendant's labor union, but a long time has been long ago. At the time of publication of the article of this case, the candidate, who was the president before the Fixed-Term Scholarship Association, was interested in all media as a key holder. It is difficult to deem that there was an intention to put the employer into the old part or to impair the defendant's reputation by reporting in-depth matters related to the Fixed-Term Scholarship Association in the editing countries including the plaintiff.

(D) In relation to the publication of the instant article, the Plaintiff reported the instant article to the Defendant’s foreign photographs at the executive conference and the executive conference, and seems to have made efforts in order to respect the publisher’s editing rights in relation to the publication of the instant article, such as going through consultation with Nonparty 3. In addition, the publication of the instant article and the subsequent series of articles related to the fixed number scholarship association are not the result of the Plaintiff’s decision, but the production of the compilation bureau.

(B) In full view of the statement of No. 23-1 and the purport of the entire pleadings by Non-Party 2, the Defendant published the newspaper after undergoing the meeting in the order of the production conference, the executive council and the executive council. However, the mail that was distributed for the production conference of the editing bureau held before the executive committee is missing with the contents related to the instant news articles. However, in full view of the purport of the entire pleadings in light of the statement of No. 22, the record of the evidence No. 22 was reported to the executive committee and the executive committee of the executive director who participated in the meeting after the production conference of the editing bureau.

(E) Therefore, the conflict between the Plaintiff and the issuer during the publication of a series of articles related to the publication of the instant article and the Fixed Number Scholarship Foundation may be deemed to have occurred from a different point of view as to freedom of speech, and the Defendant’s disciplinary action equivalent to dismissal on the ground of the Plaintiff’s unfair exercise of editing rights seems to be an excessive response.

(3) In the event that there is an urgent conflict between the editing state and the publisher’s opinion on the editing direction on the agenda of social interest as in the instant case, the Defendant constitutes a Fair Report Committee as provided by Article 26 of the Defendant’s collective agreement, and the officer in charge attends the meeting (Article 26(2)1 provides that the officer in charge may attend the meeting of the Fair Report Committee) and discuss it, or resolve the conflict by demanding a new recommendation of the candidate for the chief executive officer to the Defendant’s labor union pursuant to Article 27(3) of the Defendant’s collective agreement. It is difficult to view that the Defendant was making such efforts due to the witness Nonparty 2’s testimony alone.

(4) Other grounds for disciplinary action in relation to the instant disciplinary action are as follows.

(A) In relation to the Plaintiff’s mistake that the Plaintiff refused the issuer’s demand for publication of an accident on November 21, 2011, the draft of the accident prepared by the Defendant on the day was arrived at 09:50 too late in light of the schedule of publication of the newspaper on the day, and it was difficult for the Plaintiff to carry the draft in the newspaper on the day because the draft was too large, and the amount of the draft was too large (the testimony of Nonparty 2 as stated in the evidence 11-1 and 2, and part of Nonparty 2 as the witness at the trial).

(B) In addition, in relation to the Plaintiff’s refusal of the Press Arbitration Commission’s decision to make a counterargument report, the Defendant did not actually pay the indirect compulsory performance money by inserting a counterargument report on May 4, 2012 after the Plaintiff received the court’s decision of indirect compulsory performance.

(C) Other errors in publication are merely minor errors.

(D) Even if the Plaintiff’s wrong disciplinary action is more minor than the instant disciplinary action against the Plaintiff, the Plaintiff may take the place as a result of sexual reflection, and the Plaintiff and the Defendant may make efforts to improve the business environment of the local press company, which is becoming more worse than that of the instant disciplinary action.

(5) The Defendant asserted that the Plaintiff did not assign a position to the Plaintiff as it did not go against the waiting disposition and goes to work, etc. after the instant disciplinary action. However, in full view of Nonparty 2’s testimony of Nonparty 2, the Defendant’s position on the part of the witness at the trial, which was seen in the process of the instant lawsuit, was the Defendant’s withdrawal of the instant disciplinary action if the Plaintiff promised to refrain from reporting to the Fixed Number Scholarship Association, or the Plaintiff resigned from the office of editing prior to the term of office, and was assigned to another position. However, it was difficult for the Plaintiff, who was living in a life, to accept the Plaintiff’s good faith due to concerns that the Plaintiff may act in the direction of plucking or plucking the fair report of the editing State. Therefore, it is difficult to conclude that the Plaintiff did not neglect a dispositive measure without any condition. The same applies even if the Plaintiff’s appearance of the Plaintiff’s evidence No. 22, No. 25-1, and 25-1, and images

(6) The Plaintiff had worked for the Defendant company for a period of 20 years since 1988 without being subject to any disciplinary action.

5. Conclusion

Therefore, since the disciplinary action in this case is null and void, the plaintiff's claim in this case is accepted with merit, and the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed as it is without merit.

[Attachment]

Judges Lee Jong-sung (Presiding Judge)