2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 2,714,790 won with 5% interest per annum from August 12, 2015 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

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

(a) Dismissal, reinstatement from the plaintiff's dismissal, decision of unfair dismissal, etc. of the defendant;

1) The plaintiff is the council of occupants' representatives of two amba-dong apartment located in Gwangju-gu, Gwangju-gu, and the defendant was employed by the plaintiff on May 2, 2005 and served as the head of the management office.

2) On May 18, 2015, the Plaintiff took disciplinary action against the Defendant as of May 20, 2015, including “the act of paying KRW 19680,000 out of the coal construction cost in violation of Article 47(2) of the Housing Act, Article 51(2) of the Housing Act, and Article 66 of the Enforcement Decree of the Housing Act” as of May 20, 2015.

3) On July 20, 2015, the Defendant asserted that the Plaintiff’s disciplinary dismissal was unfair, and filed an application for remedy with the former Regional Labor Relations Commission (Seoul Southern District Court Decision 2015Du203). On July 20, 2015, the former Regional Labor Relations Commission ruled that the Plaintiff’s disciplinary dismissal was unfair.

4) On August 11, 2015, the Plaintiff returned the Defendant to the Director General.

B. Payment, etc. of money for failure to give advance notice of dismissal to the defendant

On May 27, 2015, the Plaintiff did not make an advance notice of dismissal 30 days prior to the dismissal of the Defendant, and accordingly, paid KRW 2,714,790 to the Defendant with ordinary wages of at least 30 days under Article 26 of the Labor Standards Act (hereinafter “the money for breach of duty of pre-announcement of dismissal of the instant case”). The Plaintiff notified the Defendant to return the said money to the Defendant on September 3, 2015, after returning the Defendant to the Director of the Management Office in accordance with the unfair dismissal ruling. However, the Defendant did not return it.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 10 (including branch numbers), the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. The defendant's main defense

Since the Plaintiff is a non-corporate body, it shall undergo a resolution of the general meeting of members in filing a lawsuit on its property as in the instant case. The instant lawsuit is unlawful as it was filed without a legitimate general meeting of members.

B. Relevant provisions

It is as shown in the attached Form.

C. Determination: The defendant's defense prior to the merits must be rejected.

1) Requirements for resolution of council of occupants' representatives

Article 27 of the Two Cancer Management Rules provides that the council of occupants' representatives may resolve on the number of members (referring to the prescribed number of members by management rules pursuant to the main sentence of Article 50 (5) of the Decree, and where two-thirds or more of the members of the relevant council of occupants' representatives are elected, referring to the elected number) with the consent of a majority of the members of the council of occupants' representatives. Article 17 (1) of the Two Cancer Management Rules provides that "the representatives of each building that constitutes the council of occupants' representatives shall elect the total number of 32 persons by each of the following constituency in proportion to the number of households of each building pursuant to Article 50 (

Therefore, in the case of being elected by at least 2/3 (at least 22 persons) of the members of the 2/3 council of occupants' representatives, a resolution should be made with the consent of the majority of elected persons, and at least 2/3 of the total number of persons (at least 17 persons) if not elected.

2) Resolution by the council of occupants' representatives on December 29, 2015 on the instant lawsuit by the council of occupants' representatives.

Comprehensively taking account of the descriptions of the evidence No. 6 and the purport of the entire pleadings, the Plaintiff may recognize the fact that the council of occupants’ representatives, at the time of December 29, 2015, has resolved on the instant lawsuit with the consent of 15 from among the 17 members present among the 21 members of the council of occupants’ representatives.

3) On June 14, 2016, the council of occupants' representatives ratified the “instant lawsuit” of the council of occupants' representatives.

In full view of the respective entries and arguments in the evidence Nos. 11 and 13, the Plaintiff, on June 14, 2016, confirmed the following facts: “A. (a) introduction and personnel of the new representative, (b) consultation on the public announcement of the notice of entrusted management, (c) consultation on other pending matters, and (d) consultation on other pending matters,” and on June 14, 2016, at the council of occupants’ representatives held accordingly, the council of occupants’ representatives ratified the “resolution on the lawsuit against the instant lawsuit” with the consent of 19 persons among the 25 members of the council of occupants’ representatives, among the total members of the council of occupants’ representatives held on June 14, 2016.

4) Sub-determination: The instant lawsuit is lawful.

Comprehensively taking account of the aforementioned evidence, the instant lawsuit was a major issue at the time when the council of occupants' representatives was announced as of June 14, 2016, and therefore, the members of the council of occupants' representatives have been well aware of the fact that the lawsuit in question was pending in the lawsuit and its progress, and thus, it appears that there was a problem as to the legitimacy of the resolution of the council of occupants' representatives concerning the instant lawsuit. In addition, if the dispute is pending between the Plaintiff and the Defendant and the process of the lawsuit in this case, the “consultation on other pending matters” announced as the agenda of the council of occupants' representatives on June 14, 2016 includes matters concerning the “resolution on the lawsuit in this case,” which was announced as the agenda of the council of occupants' representatives on December 29, 2015. Accordingly, it can be said that the new resolution of the council of occupants' representatives was legitimate after combining the two-thirds or more of the fixed number (32 persons) set forth in the management rules with the consent of a majority of the members of the council of occupants' representatives' representatives elected.

3. Judgment on the merits

A. The plaintiff's assertion

The amount of the breach of duty of pre-determination of dismissal was paid on the premise that the dismissal was effective and the relationship of employment contract was terminated, and as the dismissal of the plaintiff against the defendant was judged to be unfair dismissal, the relationship between the plaintiff and the defendant was restored. Accordingly, the defendant lost the legal cause of holding the amount of the breach of duty of pre-determination of dismissal, which was paid by the plaintiff. Therefore, the defendant must return to the plaintiff the amount of the breach of duty

B. Relevant provisions

It is as shown in the attached Form.

C. Determination

In full view of the following circumstances, the amount of violation of the duty of advance notice of dismissal of this case is that the plaintiff shall pay to the defendant as a result of the plaintiff's dismissal without performing the duty of advance notice of dismissal under Article 26 of the Labor Standards Act, and it is not related to the legitimacy or validity of the dismissal. Therefore, in this case where the plaintiff did not receive advance notice of dismissal from the plaintiff, it is reasonable to view that the defendant has a legal ground for receiving the amount of violation of the duty of advance notice of dismissal, notwithstanding

1) The main text of Article 26 of the Labor Standards Act provides that “When an employer intends to dismiss a worker (including dismissal on the ground of management), at least 30 days’ advance notice shall be given, and if an employer fails to make such advance notice within 30 days, ordinary wages shall be paid for at least 30 days’ ordinary wages.” The duty of advance notice of dismissal and the obligation to pay money for such violation shall be limited to the existence or absence of judicial validity of dismissal. Therefore, Article 26 of the Labor Standards Act on advance notice of dismissal shall be complied with regardless of the existence or absence of judicial validity of the relevant dismissal. Therefore, if an employer dismisses a worker without such advance notice of dismissal, the employer shall pay the amount of the advance notice of dismissal corresponding to ordinary wages for at least 30 days’ ordinary wages, and the circumstances that the dismissal becomes null and void after it is deemed unlawful and void shall not affect the above obligation to pay the amount of the advance notice of dismissal obligation.

2) In light of the purpose of the Labor Standards Act (Article 1), the main text of Article 26 of the Labor Standards Act does not state that “30 days’ advance notice or payment of not less than 30 days’ ordinary wages should be made,” and the structure that provides that “30 days’ advance notice should be made and not less than 30 days’ ordinary wages shall be paid if such advance notice was not made before 30 days’ advance notice)” with respect to the dismissal procedure, the employer should, in principle, make a “pre-announcement of dismissal,” and if such “pre-announcement of dismissal” is violated, the employer bears the obligation to pay “not less than 30 days’ ordinary wages.” Thus, it conforms to the purport of Article 26, and therefore, it is reasonable to deem that the “30 days’ ordinary wages” is paid as sanctions pursuant to the breach of the duty of pre-determination of dismissal rather than the amount paid as the effective dismissal of the labor contract relationship, and it is irrelevant to whether the termination of the nationality of the labor contract relationship is resolved.

3) Article 110 Subparag. 1 of the Labor Standards Act provides that a person who violates Article 26 of the Labor Standards Act shall be punished by imprisonment for not more than two years or by a fine not exceeding 10 million won. Meanwhile, the circumstance that an employer did not make a pre-announcement of dismissal against Article 26 of the Labor Standards Act and did not have any influence on the judicial effect of the dismissal (see Supreme Court Decisions 97Nu14132, Nov. 27, 1998; 93Da28553, Mar. 22, 1994). On the contrary, it is reasonable to view that the enterpriser bears the duty to comply with the procedure of dismissal as stipulated under Article 26 of the Labor Standards Act, regardless of the legal effect of the dismissal. If the dismissal is null and void, it is unreasonable to interpret that the employer did not comply with the provision of Article 26 of the Labor Standards Act in favor of the employer who lawfully discharges the dismissal, and thus, it is unreasonable that the employer did not pay more than 10 days of the dismissal.

4) The main text of Article 26 of the Labor Standards Act purports to give an employee a time or economic leave to seek a new job in preparation for dismissal (see Supreme Court Decision 2011Da53638, May 28, 2015). In full view of the fact that the violation of the duty of pre-determination of dismissal is difficult to be replaced by a simple economic compensation for the pre-determination period, and the actual violation of the duty of dismissal is null and void, and is not restored by being paid wages during the period of dismissal, and thus, cannot be seen as restitution regardless of the legal validity of the dismissal.

5) If the dismissal is confirmed to be null and void, if the dismissal is to be returned in unjust enrichment, it would be contrary to the purport of the Labor Standards Act which intends to protect workers by having the workers implement the pre-determination procedure prior to the dismissal, because it would result in the same treatment as the pre-determination of dismissal in cases where the dismissal is null and void, or equivalent to the pre-determination of dismissal in lieu thereof, and the payment of the pre-determination of dismissal is not made.

4. Conclusion

Thus, the plaintiff's claim shall be dismissed as it is not correct. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted and the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed as per Disposition.

[Attachment]

Judge Lee Jong-hun (Presiding Judge)