[부당해고구제재심판정취소][공1992.10.1.(929),2679]
A. In a case where the remedy procedure under Article 27-3 of the Labor Standards Act was in progress and a final judgment was rendered against the employee in a lawsuit seeking nullification of a separate dismissal filed for the same reason, whether the remedy benefit should be deemed extinguished (affirmative)
B. The case reversing the judgment of the court below in order to urge the plaintiff to prove the existence of the relief interest under the above paragraph (a) and to review and determine again, as the plaintiff was submitted with a final judgment against the plaintiff in the claim for nullification of dismissal after the closing
A. In a case where an employer filed an application for remedy on the ground that the dismissal of the employee is without justifiable grounds under Article 27-3 of the Labor Standards Act, and the employee filed a lawsuit seeking nullification of dismissal for the same reason and became final and conclusive after a dismissal decision was rendered on the ground that the claim is groundless, the remedy benefits should no longer be deemed to have been extinguished, as it has already become final and conclusive that the dismissal is not unfair.
B. The case reversing the judgment of the court below in order to urge the parties to prove the existence of the relief interest under Paragraph (a) above and to review and determine again, since the judgment of the court below against the plaintiff was submitted in the claim for nullification of dismissal after the closing of argument.
Article 27-3 of the Labor Standards Act
Law Firm Had Co., Ltd., Counsel for defendant-appellant
The Chairman of the National Labor Relations Commission
Supreme Court Decision 91Nu321 delivered on August 27, 1991
Seoul High Court Decision 91Gu21123 delivered on March 26, 1992
The judgment below is reversed and the case is remanded to Seoul High Court.
The grounds of appeal by the defendant litigant are examined.
1. According to the records, the court below's determination that the non-party, who was a driver of the plaintiff company, did not suffer from an injury to the non-party 1 on November 18, 1989, for the above non-party 2's reason, was not entitled to receive an injury to the non-party 1 during the above period of suspension of business for 10 days after receiving injury to the non-party 2 from the non-party 1 to December 10, 1989. Thus, the court below's determination that the non-party 2's dismissal of the non-party 1 was legitimate for the reason that the non-party 2's dismissal of the non-party 1 and the non-party 2's dismissal of the non-party 1 for the reason that the non-party 2's dismissal of the non-party 1 was no longer necessary for the non-party 2's dismissal of the non-party 2's work after the expiration of the period of suspension of business and the non-party 2's dismissal of work.
2. However, after remanding, the judgment of the court below cited the plaintiff's assertion for the same reasons as the reasons for the judgment of the court below prior to remanding, adding only the statement No. 26 (Medical Examination) and the fact-finding inquiry report to the director of the Ministry of Foreign Affairs and the director of the Ministry of Foreign Affairs about the fact-finding. In light of the records, the above evidence No. 26 is deemed to have provided medical treatment to the non-party on December 5, 1989, and the normal working time of the above fact-finding inquiry report is the same as the initial medical examination time. Thus, each additional evidence added to the above evidence does not constitute a new evidence supporting the judgment of the court below. However, the court below's finding the same facts prior to remand violates the binding force of the judgment of the party member's remand, and therefore, it erred in the misapprehension of legal principles as to restrictions on dismissal under Article 27 (2) of the Labor Standards Act and the judgment of evidence that affected the conclusion of the judgment. Therefore, the theory of appeal pointing this out is justified
3. However, in a case where an employer filed an application for remedy on the ground that the dismissal of the employee is without justifiable grounds under Article 27-3 of the Labor Standards Act, and an employee filed a lawsuit seeking nullification of dismissal for the same reason and became final and conclusive upon a dismissal decision as a result of the dismissal decision on the ground that the claim was groundless, the remedy benefits should no longer be deemed to have been extinguished, as it has already become final and conclusive that the dismissal is not unfair.
Therefore, in the administrative litigation against an order for remedy or a review decision of the National Labor Relations Commission based on Article 27-3 of the above Labor Standards Act, if it is proved that the judgment of failure to file a petition for remedy has become final and conclusive, the court shall reject the petition for remedy on the ground of the extinguishment of the remedy interest. According to the records, the plaintiff submitted reference materials supporting the fact that the judgment of failure to file a petition for remedy has become final and conclusive after the closing of argument of the court below, such as the judgment of failure to file a petition for remedy, which was filed by the non-party against the plaintiff in the Busan District Court 90 Ma
4. Therefore, we reverse and remand the judgment below. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Song Man-man (Presiding Justice)