[1] Where a small-sum case does not meet the requirement of "when the Supreme Court makes a decision contrary to the precedents" that can be used as the grounds of appeal, but the Supreme Court can ex officio determine the error in interpreting and applying the substantive law

[2] In a case where an employer did not make an advance notice of dismissal 30 days before the dismissal of an employee, whether the employer should pay the employee an advance notice of dismissal regardless of whether the dismissal is valid (affirmative), and in a case where the dismissal is unfair and thus is not effective, whether the employee should return the amount equivalent to the advance notice of dismissal as unjust enrichment (negative)

[1] In a case where there is no precedent of the Supreme Court concerning the interpretation of statutes applicable to a specific case in a small-sum case, and there is a case where a number of small-sum cases at issue are pending in the lower court, and the Supreme Court has made a decision on what kind of cases according to the adjudication division, on the ground that the small-sum case is a small-sum case without making a decision on the interpretation of statutes, it would be likely to undermine the legal safety of people's lives if the case is terminated without making a decision on the interpretation of statutes. In such a case where there are special circumstances, even if the Supreme Court did not meet the requirement of "when a decision contrary to the precedents of the Supreme Court," which can be deemed as the ground for final appeal,

[2] If an employer fails to make a pre-announcement of dismissal 30 days pursuant to the main sentence of Article 26 of the Labor Standards Act, the pre-announcement of dismissal is the amount payable to the employee regardless of whether the dismissal is effective, and even if dismissal is unfair and effective, it cannot be deemed that there is no legal ground for the employee to receive the pre-announcement of dismissal allowance. The grounds are as follows.

(1) The main text of Article 26 of the Labor Standards Act provides, “Where an employer intends to dismiss a worker (including dismissal for managerial reasons), at least 30 days shall give the worker an advance notice, and where an employer fails to give an advance notice 30 days, he shall pay an ordinary wage for at least 30 days,” and there is no ground to interpret that the employer is liable to pay an advance notice of dismissal or an advance notice of dismissal allowance only when the dismissal is effective.

(2) The pre-announcement system stipulated in Article 26 of the Labor Standards Act is a system in which an employee intends to take time and economic leave to seek a new workplace in preparation for dismissal, and it does not have relationship with the validity of dismissal itself. Even if dismissal is null and void, it cannot be said that there is little need to guarantee an employee the above time and economic leave through the pre-determination system of dismissal, compared to the valid case of dismissal.

③ In a case where an employer fails to make the pre-announcement of dismissal while dismissing an employee, the determination of dismissal becomes null and void, and even if the employee is paid unpaid wages, it is difficult to view that the legislative purpose of Article 26 of the Labor Standards Act, which seeks to protect the employee in the process of dismissal, is sufficiently achieved through the pre-announcement of dismissal system. Considering that whether to make the pre-announcement of dismissal or whether to pay the pre-announcement of dismissal does not affect the validity of the private law (private law) of the dismissal, the need to protect the employee by itself is greater.

[1] Article 3 subparagraph 2 of the Trial of Small Claims Act / [2] Article 26 of the Labor Standards Act, Article 741 of the Civil Act

[1] Supreme Court Decision 2015Da3570 Decided March 16, 2017 (Gong2017Sang, 756) / [2] Supreme Court Decision 93Da28553 Decided March 22, 1994 (Gong1994Sang, 1306) Supreme Court Decision 2009Do1383 Decided April 15, 2010 (Gong2010Sang, 953)

The Council of Representatives of Second Cancer Residents;

Defendant

Gwangju District Court Decision 2016Na4927 Decided April 6, 2017

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. In a case where there is no precedent of the Supreme Court concerning the interpretation of statutes applicable to a specific case in a small-sum case, and there is a case where a number of small-sum cases at issue are pending in the lower court and where there is a decision to what kind of cases according to the adjudication division, the Supreme Court’s conclusion of the case without making a decision on the interpretation of the relevant statutes on the grounds that it is a small-sum case is likely to undermine the legal safety of people’s lives if the case is terminated without making a decision on the interpretation of the statutes. In such a case where there is no special circumstance, even if the Supreme Court did not meet the requirement of “when a decision contrary to the precedents of the Supreme Court,” which may be the ground for final appeal, it shall be deemed that the error of applying the substantive law can be determined in a manner that performs the intrinsic function of the Supreme Court, such as the unification of statutory interpretation

In this case, pursuant to the main text of Article 26 of the Labor Standards Act, an employer did not make an advance notice of dismissal for at least 30 days, and paid an advance notice of dismissal for at least 30 days as an advance notice of dismissal. In the absence of validity due to the dismissal, the issue is whether the employee should return the amount equivalent to the advance notice of dismissal to unjust enrichment. However, there is no precedent of the Supreme Court, and there is no lower court’s decision on this issue. Therefore, for the unification of statutory interpretation, the interpretation and application of the above statutory provision is determined. 2. If an employer did not make an advance notice of dismissal for at least 30 days while the employer dismissed an employee pursuant to the main text of Article 26 of the Labor Standards Act, the advance notice of dismissal is the amount to be paid to the employee regardless of whether the dismissal is valid, and even if that dismissal does not have any legal effect, the grounds are as follows.

(1) The main text of Article 26 of the Labor Standards Act provides, “Where an employer intends to dismiss a worker (including dismissal for managerial reasons), at least 30 days shall give the worker an advance notice, and where an employer fails to give an advance notice 30 days, he shall pay an ordinary wage for at least 30 days,” and there is no ground to interpret that the employer is liable to pay an advance notice of dismissal or an advance notice of dismissal allowance only when the dismissal is effective.

② The pre-announcement of dismissal under Article 26 of the Labor Standards Act is intended to give an employee an opportunity to seek a new workplace in preparation for dismissal (see Supreme Court Decision 2009Do1383, Apr. 15, 2010). The effect of dismissal itself does not have any relationship with the validity of dismissal. Even in a case where dismissal is null and void, the need to guarantee an employee the above time and economic surplus through the pre-announcement of dismissal is small, compared to the valid case of dismissal.

(3) In a case where an employer fails to pay the pre-announcement of dismissal without the pre-announcement of dismissal while dismissing an employee, even if the dismissal becomes null and void and the employee is paid unpaid wages, it is difficult to view that the legislative purpose of Article 26 of the Labor Standards Act, which intends to protect the employee in the process of dismissal, is sufficiently achieved through the pre-announcement of dismissal system. Considering the fact that whether to pre-announcement of dismissal or whether to pay pre-announcement of dismissal does not affect the validity of the private law (private law) of dismissal (see Supreme Court Decision 93Da28553, Mar. 22, 1994), the necessity to protect the employee is greater through the pre-announcement of dismissal itself.

3. According to the reasoning of the lower judgment and the record, the Plaintiff’s disciplinary action against the Defendant, who is an employee, as of May 20, 2015, and paid KRW 2,714,790 to the Defendant on May 27, 2015. After that, the former Southern Regional Labor Relations Commission rendered a decision that the dismissal constitutes unfair dismissal; and according to the purport of the said determination, the Plaintiff returned the Defendant on August 11, 2015 and paid the Defendant wages from the time of dismissal to the time of reinstatement.

Examining these facts in light of the legal principles as seen earlier, the aforementioned pre-determination allowance is the amount that the Plaintiff would pay to the Defendant regardless of whether the dismissal is legitimate or valid as a result of the Plaintiff’s failure to perform the duty of pre-determination of dismissal under Article 26 of the Labor Standards Act while dismissing the Defendant. Therefore, even if the dismissal of the Defendant is null and void, the Defendant cannot be deemed to have received the pre-determination allowance from the Plaintiff without any legal ground. In so doing, the lower court did not err by misapprehending the legal doctrine on

4. Therefore, the appeal is dismissed, 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 on the bench.

Justices Park Jung-hwa (Presiding Justice)