Bupyeong-gu Incheon Bupyeong-gu 374 - 8, 4 floors

Representative Director**

Law Firm Jinsu et al.

Attorney Choi Jin-hun, Counsel for defendant

The Maximum United Kingdom of the Litigation Performers

2. The costs of lawsuit are assessed against the Plaintiff.

A. In the Bupyeong-gu Incheon Metropolitan City, the Plaintiff was a company that employs 120 full-time workers and engages in passenger transport business. On April 14, 2012, the Plaintiff was subject to disciplinary action against his/her employees, Kim*, Song*, Jeon * (hereinafter referred to as “the instant workers”).

B. On June 21, 2012, the instant worker filed an application for remedy against unfair dismissal and unfair labor practices with the Defendant, and on June 21, 2012, the Plaintiff recognized that the dismissal of the instant worker was unfair dismissal. Within 30 days from the date of receipt of the written adjudication, the Plaintiff made a determination on the amount equivalent to the wages that could have been received if the instant worker had been reinstated to the original position and had worked during the period of dismissal (hereinafter “the instant remedy order”).

C. The Plaintiff and the instant workers filed an application for reexamination with the National Labor Relations Commission, but the National Labor Relations Commission dismissed all their applications on October 22, 2012.

D. Meanwhile, the Plaintiff did not carry out the instant remedy order within the implementation date ( August 16, 2012) as stipulated in the instant remedy order, and the Defendant imposed upon the Plaintiff each disposition of imposition of KRW 15 million for compulsory performance as of October 4, 2012, KRW 15 million, and KRW 18 million for compulsory performance as of March 22, 2013 (hereinafter “each disposition of this case”).

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 through 6, the purport of the whole legal theory

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

Article 33 ("Legal Provisions of this case") of the Labor Standards Act that orders the employer to impose non-performance penalty on the employer who fails to comply with the order for remedy by the Labor Relations Commission is in violation of the unconstitutional Act for the following reasons. Thus, each of the dispositions of this case based on this order is unlawful.

1) Although a disposition of dismissal against a worker constitutes a judicial relation under the nature of the disposition of dismissal is determined by the court's final decision, the enforcement fine system under the provision of this case is compelling the employer to perform the order of remedy before the final decision of the court. The enforcement fine system under the provision of this case is imposing the enforcement fine immediately even though there exist sufficient means of other remedy (such as an order to provide a certain amount of security, provisional disposition, etc.) in order to achieve its purpose, and it is impossible to receive the refund in case the case is terminated due to conciliation, etc. by the court, not in case where the order of remedy is revoked by the review decision of the National Labor Relations Commission or by the final decision of the court, but in case where the case is terminated due to conciliation, etc., the provision of this case does not meet the minimum infringement and the balance of legal interests

2) Although disputes arising in labor contract relations between judicial persons are the principle that the court has jurisdiction, the Labor Standards Act grants the authority to determine unfair dismissal to the Labor Relations Commission, which is an administrative agency, and further recognizes enforcement fines, which are administrative enforcement means, as well as administrative enforcement means, to the Labor Relations Commission’s decision on unfair dismissal, violates the right to a trial by a judge.

3) Coercive enforcement of an administrative compulsory action, which is an administrative compulsory action, with no determination of the Labor Relations Commission’s order for remedy, violates the rule of law by compelling a non-obligatory person to perform the obligation.

4) The Labor Standards Act provides for penal provisions against a person who fails to comply with an order for remedy established under Article 111, and where an employer’s failure to comply with an order for remedy becomes final and conclusive, the enforcement fine under the instant legal provisions and criminal punishment under Article 111 are all possible, thereby violating the principle of prohibition of double punishment.

5) The legal provision of this case also contradicts the principle of clarity in determining the upper limit of the amount of charges for compelling compliance as KRW 20,000,000, because it is not clear whether the criteria for imposing charges are once or once, one year, or two years.

(b) Relevant statutes;

As shown in the attached Form.

C. Determination

1) Legislative intent of the legal provision of this case

Under the past liberal market economy, employers can freely conclude and terminate labor contracts with neighboring workers for the rational management of companies. However, allowing employers to terminate labor contracts in a relatively bad position not only seriously threaten the right to survival of workers in a position, but also causes social anxiety and conflicts by causing aggravation of working conditions, imbalance of division, rule of capital, inconsistency in social distribution structure. Accordingly, today's advanced countries such as Germany and the United Kingdom have limited freedom of dismissal in legislative policy or by preparing separate procedures to promptly seek unfair dismissal against workers, thereby promoting national economic stability and development at the same time. Korea's compliance with the labor law provides that workers may not be subject to disciplinary action against dismissal, temporary retirement, suspension from office, transfer, and removal from office without justifiable grounds (Article 23 (1) of the Labor Standards Act), and that employees need to be dismissed under the Labor Standards Act (Article 23 (2) of the Labor Standards Act).

Meanwhile, the former Labor Standards Act (amended by Act No. 8293, Jan. 26, 2007) provides for criminal punishment against dismissal, etc. without justifiable grounds (Article 110); however, there was criticism that civil disputes arise in criminal cases and the employer’s right to just dismissal regardless of the employee’s intent; on the other hand, regarding non-performance of the order for remedy by the Labor Standards Commission against dismissal, etc. without justifiable grounds, there was no means of sanctions against the validity of the order; thus, the former Labor Standards Act, amended by Act No. 8293, Jan. 26, 2007, instead of deleting the penal provisions against dismissal, etc. without justifiable grounds, is a new provision of Article 136-1 of the Labor Standards Act which provides that the person who failed to comply with the order for remedy shall be punished by imprisonment with prison labor for not more than 20,000 won and a fine not exceeding 36-20,000 won for non-performance of the order for remedy by up to one year and two years.

2) Whether the legal provisions of this case are unconstitutional

A) Whether the property right has been infringed

(1) The legitimacy of the legislative purpose and the suitability of the means

The remedy system for unfair dismissal against the Labor Relations Commission is a system introduced by an employee who is unfair from the employer to receive prompt and simplified remedy for a right in accordance with the administrative remedy procedure, and the legal dispute between his/her union and company is promptly settled and thereby promoting the overall national economic interest. Since the legal provision of this case is intended to ensure the effectiveness of such remedy order, the legitimacy of legislative purpose can be recognized. If the employer fails to comply with the old order of the Labor Relations Commission, it is necessary to enable the employer to impose compulsory remedy for non-performance of administrative duties, as it is likely to cause delay for a long period of time, so the suitability of the means is also recognized.

(2) The minimum of the infringement

The legal provision of this case provides that the enforcement fine shall be imposed within 20 million won, and (1) the amount according to the type and degree of the offense, the procedure for the return of the enforcement fine imposed and collected, and other necessary matters shall be prescribed by Presidential Decree (Paragraph 4), and that even if the order for remedy is repeatedly imposed and collected within two times a year until the order for remedy is implemented, it shall not be imposed and collected in excess of two years (Paragraph 5). In addition, the amount for imposing the enforcement fine shall be set within the limit of the amount for imposing the enforcement fine, and the frequency and period of imposing the enforcement fine shall be limited within two times a year, and the amount for imposing the enforcement fine shall be limited within two years, and the refund of the enforcement fine after the return procedure prescribed by Presidential Decree shall be limited within the nature of the restrictive disposition against the user who fails to comply with the order for remedy. Thus, it cannot be concluded that the enforcement fine already paid may not be returned until the termination of the litigation for cancellation of the order through adjustment, etc. under the legislative system of this case cannot be concluded to be less than any other legislative method of enforcement.

(3) The balance of the legal interests.

An employer who fails to comply with a remedy order may suffer a disadvantage subject to the enforcement fine repeatedly until the remedy order is complied with, but at the same time, protecting workers by ensuring the effectiveness of the remedy order and promptly remedying the workers who were unfairly dismissed, and at the same time resolving disputes between the union and the company at an early stage and promoting the stability and development of the national economy is greater than the above disadvantage suffered by the deceased. Therefore, the legal provision of this case does not violate the principle of balance of legal interests.

(4) Sub-decisions

Therefore, the legal provision of this case is not contrary to the principle of excessive prohibition, so it cannot be said that the employer's property right is excessively infringed.

B) Whether the right to trial has been infringed

Article 27 (1) of the Constitution provides that "All citizens shall have the right to a trial under law by judges who are determined by the Constitution and laws." Article 27 (1) of the Constitution provides that all citizens shall have the right to a trial in accordance with the contents and procedures of a constitutional law by judges appointed by self-determination and procedure as determined by the Constitution and laws and guaranteed physical independence and human independence.

The legal provision of this case only prescribes that an employer who fails to comply with the order for remedy should impose and collect a non-performance penalty in order to ensure the effectiveness of the order for remedy. The employer does not limit an administrative litigation against the order for remedy, and the employer’s enforcement of the order through imposition of non-performance penalty does not bring any benefit in dispute over the validity of the order for remedy by trial. Thus, the legal provision of this case cannot be said to infringe the employer’s right to trial.

C) Whether it violates the rule of law

Since the Labor Relations Commission's order of remedy also constitutes an administrative disposition and fair power is recognized, it is not possible to deny its validity, unless the order is void by the review of the National Labor Relations Commission or the court decision.

Therefore, the plaintiff's assertion that compelling the performance of a remedy order is against the rule of law, even though the remedy order is not yet finalized without undergoing all appeals procedures, is beyond the fairness of administrative action, so no further need to be examined.

D) Whether the principle of prohibition of double punishment is violated

Article 13(1) of the Constitution of the Republic of Korea provides that "All citizens shall not be repeatedly punished against ......" This is the principle of prohibition of double punishment, "the principle of prohibition of double punishment" that cannot be tried once a judgment becomes final and conclusive on the same case, which is declared in the Constitution as the binding principle of the State's penal authority, so that the State may not repeatedly exercise its penal authority on the same criminal act, thereby guaranteeing the fundamental human rights of the people. In this regard, "Punishment" referred to in Article 13(1) of the Constitution refers to a punishment as an enforcement of the State's penal authority on a crime in principle, and all sanctions or non-profit measures taken by the State shall not be included in "the punishment" (see Constitutional Court Order 2009Hun-Ga5, Jun. 30, 201).

As seen earlier, enforcement fines under the legal provisions of this case are one of the administrative indirect enforcement means to impose a certain monetary burden upon an unqualified person when he/she fails to perform his/her obligations within a given period of time, by imposing psychological pressure upon him/her, and by allowing him/her to perform such obligations in the future.

Therefore, this is not only a punishment as a sanction for a certain violation of the past, but also a compulsory means to secure the future obligation, and thus, it does not constitute a punishment for which the state to enforce the penal authority against a crime. Therefore, there is no room for applying the principle of prohibition of double punishment declared by Article 13(1) of the Constitution.

E) Whether the principle of clarity has been violated

The legal provision of this case imposes a non-performance penalty not exceeding KRW 20 million on an employer who fails to comply with the order by the deadline for implementation after receiving the order for remedy, and (1) may repeatedly impose and collect a non-performance penalty under paragraph (1) not later than twice a year until the order for remedy is executed within the limit of two times a year from the date when the order for remedy was first issued, and even in this case, the non-performance penalty shall not be imposed and collected in excess of two years (Paragraph (4). In light of the structure, text, etc. of the above provisions, it may be difficult to say that the non-performance penalty is the upper limit per imposition of KRW 20 million as prescribed in paragraph (1). Thus, the plaintiff's assertion that the legal provision of this case violates the principle of clarity is also without merit.

F) Sub-determination

Therefore, the Plaintiff’s assertion that the instant legal provision is unlawful on a different premise is not contrary to the Constitution, and thus, it cannot be accepted.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.

Judge Symmetricia

Judges Yoon Jae-sung

Labor Standards Act

Article 30 (Order, etc. for Remedy)

(1) If a Labor Relations Commission determines that the dismissal, etc. is unfair after completing the examination under Article 29, it shall issue an order for remedy to the employer, and if it judges that the dismissal, etc. is not unfair, it shall make a decision to dismiss the application for remedy.

(2) Determination, order for remedy, and decision of dismissal under paragraph (1) shall be notified in writing to the employer and the worker respectively.

(3) In issuing the order of remedy (referring only to the order of remedy against dismissal) under paragraph (1) of this Article, if the worker does not want the reinstatement (the reinstatement of the original position) of the original position, the Labor Relations Commission may order the worker to pay money and valuables in excess of the amount equivalent to the wages that the worker would have received if he/she had provided during the period of dismissal, instead of the order of reinstatement of the original position.

Article 31 (Confirmation of Order, etc. for Remedy)

(1) An employer or worker who is dissatisfied with an order for remedy or a decision of dismissal made by a local Labor Relations Commission pursuant to the Labor Relations Commission Act may apply for reexamination to the National Labor Relations Commission within ten days from the date he/she has received a written notice of such order or decision of dismissal.

(2) With respect to any decision made by the Central Labor Relations Commission on reexamination under paragraph (1), the employer or worker may institute a lawsuit pursuant to the Administrative Litigation Act within 15 days from the date of receiving the written decision made by reexamination.

(3) Where no application for reexamination or administrative litigation is filed within the period referred to in paragraphs (1) and (2), the order for remedy, decision of dismissal, or decision on reexamination shall become final and conclusive.

Article 32 (Effect of Orders for Remedy, etc.)

No order for remedy, decision of dismissal, or decision of reexamination by the Labor Relations Commission shall suspend its effect upon a request for re-examination or the institution of administrative litigation to the National Labor Relations Commission under Article 31.

Article 33 (Non-performance Penalties)

(1) A Labor Relations Commission shall impose an compulsory performance of not more than 20 million won on an employer who has received an order for remedy (including a decision on reexamination, the contents of which are the order for remedy; hereafter the same shall apply in this Article) and fails to comply with the order by the deadline for implementation thereof.

(2) A Labor Relations Commission shall inform an employer in writing that the charge for compelling the performance is to be imposed and collected not later than 30 days prior to the imposition of the charge for compelling the performance under paragraph (1).

(3) When imposing a non-performance penalty under paragraph (1), it shall be imposed in writing specifying the amount of the non-performance penalty, reasons for imposition, deadline for payment, receiving institution, method of raising an objection, institution raising an objection, etc.

(4) The amount of a non-performance penalty imposed pursuant to paragraph (1) depending on the type and degree of violation, procedures for the return of the non-performance penalty imposed and collected, and other necessary matters shall be prescribed by Presidential Decree.

(5) A Labor Relations Commission may repeatedly impose and collect a charge for compelling the performance under paragraph (1) two times a year from the date on which the first order for remedy is issued until the order for remedy is complied with. In such cases, no charge for compelling the performance shall be imposed and collected in excess of two years.

(6) The Labor Relations Commission shall not impose any new charge for compelling compliance if the order for remedy is complied with, but shall collect the charge for compelling compliance already imposed before the order for remedy is complied with.

(7) If a person liable to pay the charge for compelling execution fails to do so by the payment deadline, a Labor Relations Commission shall urge it to do so within a specified period, and if the person fails to pay the charge for compelling execution under paragraph (1), it may collect

(8) If the employer subject to the order for remedy fails to comply with it by the deadline for execution thereof, the worker concerned may inform the Labor Relations Commission of such fact within fifteen days after such deadline has expired.

Article 11 (Penal Provisions)

A person who fails to comply with a decision on reexamination which contains any order of remedy or remedy which becomes final or conclusive by filing an administrative litigation pursuant to Article 31 (3) shall be punished by imprisonment with labor for not more than one year or by a fine not exceeding 10 million won.