[2] In a case where it is impossible to recognize the validity of dismissal due to a failure to undergo legitimate disciplinary procedure in dismissing a worker who is partially acknowledged as grounds for disciplinary action under the Rules of Company Employment, whether the employer can be found to have had intention to dismiss the above worker without justifiable grounds in violation of Article 30(1) of the Labor Standards Act (negative)

[2] In dismissing a worker who is deemed to have violated some of the grounds for disciplinary action under the Rules of Employment of the company, the effect of dismissal can not be recognized because he did not undergo disciplinary action under the Rules of Employment because he did not confirm whether the notice of disciplinary action was served and did not provide an opportunity to vindicate the above worker, but it is difficult to view that the employer was aware that the above worker was dismissed without good cause in violation of Article 30(1)

The defendant shall be innocent.

The facts charged of this case is that "the defendant is the representative director of the non-indicted 1 corporation located in Gyeyang-dong, Gangseo-gu, Seoul Metropolitan Government who has employed 150 full-time workers and operated the taxi transport business. The employer is the employer, and the non-indicted 2, who worked as a driver at the above workplace, was dismissed without any justifiable reasons on the same day on the ground that he did not give an opportunity for vindication at the Disciplinary Committee held on April 30, 2005 and did not cause any damage to the order of deception." Thus, the court below found the above non-indicted 2 guilty of all the facts charged, taking into account the following evidences.

2. Summary of grounds for appeal;

The Defendant notified Nonindicted 2 of the fact that he was holding the set of punishment committee, and Nonindicted 2 was aware of the fact that the above notice was sent with content certification, and gave up his opportunity to vindicate himself, and the lower court erred by misapprehending the legal doctrine or by misapprehending the fact that the Defendant was guilty, even if the Defendant’s dismissal of Nonindicted 2 was justifiable.

3. The judgment of this Court

A. Facts of recognition

The following facts can be acknowledged according to the evidence duly examined and adopted by the court below, including Nonindicted 3’s statement in the second trial record of the court below.

(1) On February 2005, Non-Indicted 2 stated to the effect that “the Defendant will drink only,” and on April 8, 2005, Non-Indicted 2 said that the Defendant’s office of the company was the issue of the location where Non-Indicted 4 and Non-Indicted 4 were placed with the annual leave application.

(2) In addition, from April 27, 2005, from April 27, 2005 to 16:23 of the same day, Nonindicted Party 2 operated the Defendant’s taxi (number omitted) and 80,200 won in total, but did not deposit the Defendant’s taxi with the company.

On the other hand, according to Article 7(2) of the Wage Agreement concluded with the labor union on November 8, 2004, the defendant company provides that "the driver who gets on board shall pay the whole transport earnings recorded in the operation recording device received from the business to the company, and the transport income is arbitrarily used (use) and the situation of operation due to the output of the operation recording device is poor, and there is a unfaithful business act (unfair collection of charges, no meter meter, use of a meter meter, operation of a meter, damage to the passenger), and the shortage of working hours per day due to the lack of working hours per day, etc. shall be given first warning, and in the absence of any further re-rupture, it may be subject to disciplinary action by referring the same to the disciplinary committee

(3) On April 27, 2005, Non-Indicted 2 stated to the effect that “A taxi company has been entered in the same company with the head of the labor union organization of Non-Indicted 5, which was posted in the Defendant’s office on the same day,” Non-Indicted 2 opened a new letter of appointment of the head of the labor union of Non-Indicted 5, which was posted in the Defendant’s office for the dispatch of the company. Non-Indicted 2 was punished by dispute with Non-Indicted 5, who opened the letter of appointment of the head of the labor union of Non-Indicted 5.

(4) Accordingly, the Defendant Company Disciplinary Committee held the disciplinary committee for the disciplinary action against Nonindicted 2 on April 18, 2005 and on the 30th of the same month, and held the former chairman of the Trade Union as a representative member of the disciplinary action against the trade union.

(5) On the other hand, on April 28, 2005, the defendant's company sent a summons to hold the 11:00 Disciplinary Committee (Reward) on April 28, 2005 to "Seoul Gangseo-gu (Seoul Metropolitan City Number omitted)" which is the domicile of non-indicted 2, but returned to the non-indicted 2's address unknown (after the disciplinary committee was held), and Non-indicted 2 did not attend the defendant's company disciplinary committee held on April 30, 2005.

(6) The provisions of the Defendant Company regarding dismissal of Nonindicted 2 are as follows.

【Employment Rules】

Article 23 (Service Employees) Any employee shall, in good faith, observe an order to take charge of his duties by complying with such an order, and endeavor to improve the work efficiency, and in particular, observe the following matters:

7. They shall be prohibited from drinking alcohol, or doing any scambling act such as drinking, assault or verbal abuse, etc. inside their working hours and from disturbing the order of the workplace;

13.The transportation revenue shall be paid in full as soon as the service ends.

Article 47 (Dismissal) If an employee falls under any of the following subparagraphs, he/she may be dismissed after deliberation by the Disciplinary Committee:

1. When he/she violates various duties of service;

3. Where the company disturbs the order of fraudulent means, such as slandering, rashing, rashing, threatening, threatening, threatening, defamation, etc., with respect to commercial matters and fellows.

15. Where he violates other Acts and subordinate statutes or labor contracts.

【Organization Convention】

Article 17 (Rewards and Punishment)

1. The reward and punishment for employees shall be imposed when the company notifies the union thereof; and

2. Where a union has an objection against a penalty imposed by a company, it may examine it and correct it at the Trade Union and Labor Relations Council (Provided, That in cases of disciplinary action, it shall notify the person concerned in advance, and give him/her an opportunity to vindicate

(b) Markets:

Even in cases where an employer cannot recognize the validity of disciplinary action because he/she did not take a prescribed procedure for the disciplinary action against a worker, barring special circumstances such as intentionally disregarding the procedure with the employer's intent to impose unfair disciplinary action, the employer cannot immediately be subject to criminal punishment pursuant to Articles 110 and 30(1) of the Labor Standards Act on the sole ground of such violation of the procedure. In addition, such disciplinary action is recognized as abuse of the right to disciplinary action or beyond the scope thereof in its content and it is deemed that it is subject to criminal punishment only in cases where it is deemed to have been punished by social norms (see Supreme Court Decisions 93Do3128, Jun. 14, 1994; 95Do218, Nov. 24, 1995, etc.).

In light of the following circumstances acknowledged by the above facts, i.e., (i) the defendant's rules of employment stipulate that the defendant's dismissal of his company violates various duty to work in Article 47, (ii) the defendant's company's acts of defamation, personal attack, attack, threat, defamation, etc. against his company's commercial and fellows as grounds for dismissal; (iii) Article 23 stipulates that drinking during working hours, drinking, assault, verbal abuse, etc. shall not be prohibited; and (iv) transportation income shall not be paid in full immediately after the completion of work; (iv) it is difficult to find that the defendant violated the disciplinary reasons under Article 23 of the Rules of Employment of the defendant's company, such as non-indicted 2's non-indicted 2's refusal to pay transportation income; and (v) it is difficult to find that there is no justifiable reason to recognize disciplinary action against the defendant as the dismissal of his company without any justifiable opportunity under Article 20 of the Rules of Employment.

Therefore, even though the facts charged in this case constitute a case where there is no proof of crime and should be acquitted of the defendant under the latter part of Article 325 of the Criminal Procedure Act, it shall be deemed that the court below erred by misunderstanding facts or by misunderstanding the legal principles as to the violation of Article 30 (1) of the Labor Standards Act, which affected the conclusion of the judgment. Thus, the defendant's appeal pointing this out has merit.

4. Conclusion

Therefore, the judgment of the court below shall be reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it shall be judged as follows.

The summary of the facts charged in this case is as shown in paragraph (1) above. As seen in paragraph (3) of the above Article, the facts charged in this case constitutes a case where there is no proof of crime, and thus, the defendant is acquitted pursuant to the latter part of Article 325

Judges Kim Dong-ho (Presiding Judge)