[2] In a case where there is a benefit to seek confirmation of a previous legal relationship

[3] The case holding that Eul has legal interest in seeking confirmation of invalidity of the atmospheric measure, in a case where Eul was automatically dismissed on the ground that Eul was not assigned to a position upon the expiration of the waiting period after being subject to the waiting measure and was automatically dismissed after being listed in the "air" as a kind of disciplinary action under the provisions on the reward and disciplinary action of Gap corporation

[4] In a case where various grades of disciplinary action can be taken against the same disciplinary cause in the rules of employment, the limitation of discretion on the choice of disciplinary action by the person having authority over disciplinary action

The term “retirement” under Article 23 of the Labor Standards Act refers to the termination of all labor contract relations falling under the second two above regardless of the name or procedure that is actually unfavorable in the actual workplace. Even if an employer sets the occurrence of a cause as a reason for ipso facto dismissal or disciplinary action, and the employer unilaterally terminates a labor relationship regardless of the employee’s will, by nature, regardless of the employer’s intention, is subject to restrictions as stipulated in the Labor Standards Act. In this case, an employee may file a lawsuit seeking confirmation of invalidity of a ipso facto retirement disposition against the employer on the ground that there is no justifiable

[2] A lawsuit for confirmation is permitted to eliminate risks or apprehensions in relation to the current rights or legal status. However, if past legal relations affect the current rights or legal status, and it is recognized that obtaining a judgment on confirmation of legal relations is valid and appropriate means to eliminate risks or apprehensions in relation to the present rights or legal status, there is benefit in confirmation.

[3] The case holding that, in a case where Gap corporation's reward regulations lists "a type of disciplinary action" as a kind of disciplinary action, and automatically dismiss Gap corporation for not less than six months after being assigned to a position even after being subject to a waiting measure, and sought confirmation of invalidity of a waiting measure on the ground that Eul was not assigned to a position at the expiration of the waiting period, the automatic dismissal disposition constitutes a dismissal that terminates the labor contract relationship with Eul corporation's unilateral intent against Eul company's worker Eul, and that Eul suffered disadvantages in personnel affairs and wages, such as restrictions on promotion and promotion during the waiting period, and wages were reduced during the waiting period, even if Eul was dismissed as a result of the automatic dismissal after the waiting measure, as there were legal disputes over the validity of the dismissal, Eul's automatic dismissal disposition is based on the non-assignment of assignment for six months after the waiting measure, and thus, Eul's automatic dismissal disposition has a direct influence on the automatic dismissal disposition, and thus, Eul's right to seek confirmation of invalidity or uncertainty of a waiting measure as well as its legal status as an automatic dismissal disposition can still be confirmed.

[4] In a case where the rules of employment or the standing punishment provides that various types of disciplinary actions may be taken against the same cause while setting the grounds for disciplinary action, the choice of a certain kind of disciplinary action belongs to the discretion of the authorized person having authority over disciplinary action. Such discretion is not arbitrary and convenient discretion of the authorized person having authority over disciplinary action, but should be balanced with the grounds for disciplinary action. As such, if it is recognized that a disciplinary action has abused the discretion that has been taken against the authorized person having authority over the disciplinary action

1. Whether interest in confirmation is recognized (Ground of appeal No. 1)

A. The grounds for termination of an employment contract may be divided into retirement, dismissal, or automatic termination. Retirement is to obtain the employee’s consent or consent, and dismissal is to be made by the employee’s unilateral intent against the employee’s will, and automatic termination is to automatically terminate the employment contract regardless of the employee’s or employer’s intent.

The term “retirement” under Article 23 of the Labor Standards Act refers to the termination of all labor contract relations falling under the second two above regardless of the name or procedure that is actually unfavorable at the actual workplace. Even if an employer sets the occurrence of a cause as a reason for ipso facto dismissal or disciplinary action, and the employer unilaterally terminates the labor relationship regardless of the employee’s will, by nature, regardless of whether it is ordinary dismissal or disciplinary action, is subject to restrictions as stipulated in the Labor Standards Act. In this case, an employee may file a lawsuit seeking nullification of an ipso facto dismissal against the employer on the ground that the employer has no justifiable reason as stipulated in Article 23 of the Labor Standards Act (see Supreme Court Decision 92Da54210, Oct. 26, 1993,

Meanwhile, a lawsuit for confirmation is permitted to eliminate risks or apprehensions with respect to the current rights or legal status. However, in cases where the past legal relations affect the current rights or legal status, and it is recognized that obtaining a judgment on confirmation of the legal relations is valid and appropriate means to eliminate risks or apprehensions with respect to the current rights or legal status (see, e.g., Supreme Court Decision 2010Da36407, Oct. 14, 2010).

B. According to the reasoning of the lower judgment and the record, the following facts are revealed.

(1) On April 18, 2012, the Defendant held a disciplinary committee and took a waiting measure against the Plaintiff based on the grounds for disciplinary action, such as the written judgment below (hereinafter “instant waiting measure”).

(2) Article 13 subparag. 6 of the Defendant’s Disciplinary Rule on Rewards provides that the Defendant’s member shall be automatically discharged if he/she was not assigned to a position even six months after he/she was placed in the atmosphere due to the type of disciplinary action, and that the amount of wages during the waiting period shall be reduced (one month: 10% of the basic salary, 2 months: 80% of the basic salary, and 3 through six months: 50% of the basic salary). In addition, Articles 28 and 30 of the Defendant’s death rules provide that the period of regular promotion and special promotion shall be postponed only once in the case of a member under a waiting measure, and the promotion shall be postponed if one year has not passed since the waiting measure became final and conclusive.

(3) On October 17, 2012, the Defendant issued a notice to the Plaintiff that “The Defendant shall automatically dismiss the Plaintiff from office on October 19, 2012, following the expiration of the waiting period under Article 13 subparag. 6 of the Defendant’s Rules on the Disciplinary Action on Rewards, and automatically dismiss the Plaintiff from office on October 19, 2012. The Defendant notified the Plaintiff that “the termination of the labor relationship with the Plaintiff between October 19, 2012 and October 19, 2012” (hereinafter “instant automatic dismissal disposition”). Accordingly, the Plaintiff was automatically dismissed on October 19, 2012 (hereinafter “instant automatic dismissal”).

C. Examining these facts in light of the aforementioned legal principles, the instant automatic dismissal disposition constitutes dismissal that terminates an employment contract according to the unilateral intent of the Defendant, the employer, against the Plaintiff’s intent, who is an employee, against an independent disposition separate from the instant atmosphere disposition, which is a disciplinary action. Nevertheless, the lower court premised on the premise that the instant automatic dismissal disposition is an effect on the fact that the atmosphere continues to exist for a certain period, and it does not naturally arise, and thus, does not constitute an independent legal act, such as automatic dismissal, and accordingly, erred in

However, due to the instant waiting disposition, the Plaintiff suffered disadvantages in personnel affairs and wages, such as the reduction of wages, due to restrictions on promotion and promotion during the period of the instant waiting disposition. Even if the Plaintiff was dismissed pursuant to the instant automatic dismissal disposition after the instant waiting disposition, there was no legal dispute over the validity of the dismissal, and thus, the pertinent automatic dismissal disposition has not yet become final and conclusive. Furthermore, the instant automatic dismissal disposition on the ground of non-assignment of assignment for six months after the instant waiting disposition. As such, the instant automatic dismissal disposition on the ground of whether it is legitimate or not it directly affects the instant automatic dismissal disposition. Accordingly, the Plaintiff still suffers from such disadvantages, separate from the instant automatic dismissal disposition, ought to be deemed to be able to eliminate risks or apprehensions relating to his current rights or legal status.

Ultimately, the lower court’s determination that there was a legal interest in seeking confirmation of invalidity of the instant waiting measure is justifiable. In so determining, the lower court did not err by misapprehending the legal doctrine on the nature of the instant automatic dismissal measure and the interest in confirmation, contrary to what is alleged in the grounds of appeal.

2. Whether disciplinary discretion is abused (Ground of appeal No. 2)

A. According to the rules of employment or the standing penalty provisions, if a number of disciplinary actions are determined as possible for the same reason while setting the grounds for disciplinary action, the choice of a certain disciplinary measure is within the discretion of the authorized person having authority over disciplinary action. Such discretion is not arbitrary and convenient but appropriate balance between the grounds for disciplinary action and the disciplinary measure. Therefore, if it is recognized that a disciplinary measure has been abused by social norms as it considerably lacks validity and thus, it is unlawful (see, e.g., Supreme Court Decision 2014Da76434, Jul. 9, 2015).

B. The lower court determined that the instant waiting disposition was illegal as it constitutes an abuse of discretionary power upon the person having authority to take disciplinary action.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court’s reasoning is partially inappropriate, but its conclusion is acceptable. In so determining, the lower court did not err by misapprehending the legal doctrine on the nature of the instant waiting disposition and the standards for determining its invalidation, contrary to what is alleged in the grounds of appeal.

3. Conclusion

The Defendant’s appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Chang-suk (Presiding Justice)