Plaintiff 1 and 25 others (Law Firm, Attorneys Su-dong et al., Counsel for the plaintiff-appellant)

Kimcheon-si (Law Firm Barun, Attorneys Yoon-Gyeong et al., Counsel for the defendant-appellant)

April 3, 2015

Seoul Administrative Court Decision 2014Guhap60863 decided December 18, 2014

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the court of first instance is revoked. The plaintiffs confirm that they are in the status of members of Kimcheon Arts Group under the defendant. The defendant shall pay to each plaintiff 20% interest per annum from the day after the delivery date of the copy of the complaint of this case to the day after the delivery date of the copy of the complaint of this case as stated in the attached Table 1 to the day of full payment. The defendant shall pay to each plaintiff 20% interest per annum from February 2014 to the day of each plaintiff's reinstatement.

1. Quotation of judgment of the first instance;

The grounds for the plaintiffs' assertion in the trial while filing an appeal are not significantly different from the already asserted contents in the trial of the first instance, and even if the evidence submitted in the trial of the first instance shows evidence No. 9 submitted in the trial of the first instance, the decision of the first instance court rejecting the plaintiffs' assertion is justified.

Therefore, the reasoning of the judgment of the court in this case is as follows: (a) the intervenor’s “in the first instance court’s decision” is “Defendant market”; (b) the 8th 10 of the 8th 10 juries “recilation”; and (c) the 4th son’s “recilation” is added on the ground of recognition during the 10th 10 10 junives; and (b) the 2th 2nd 1st son’s supplement of the part of the judgment regarding the argument that the plaintiffs had repeatedly emphasized in the trial, and thus, it is consistent with the reasoning of the judgment of the first instance court; and (c)

2. Details of the judgment on supplement;

A. Details of the plaintiffs' assertion that the plaintiffs have repeatedly emphasized in the trial

For the following reasons, the Defendant’s failure to re-commission the Plaintiffs as members of the instant Order is null and void because it infringes on the Plaintiffs’ legitimate right of renewal without reasonable grounds, and refuses to re-commission, which constitutes an unfair dismissal.

1) The rejection of a contract on the ground that the plaintiffs recognized the legitimate expectation for re-commissions is unfair to allow renewal of the contract only if the contract should be selected through an open recruitment procedure, which is a mere procedure for appointment of new members, not an existing re-commissioning procedure, and that such disclosure recruitment procedure was not applied.

2) The Ordinance of this case separates the re-commissioning of existing members and the commissioning of new members, and it is guaranteed re-commissions unless the amount of skill is significantly lowered due to the opposite interpretation of Article 8(3) of the Enforcement Rule of the Ordinance of this case. Thus, Article 9(3) of the Ordinance of this case does not provide that Article 9(3) of the Ordinance of this case grants the Defendant the discretion to decide whether to re-commission the existing members and

3) The instant open screening was used as a means for arranging certain members without securing objectivity and fairness. The Defendant’s assertion that the instant open screening was a part of the fact that 21 new members were commissioned instead of arranging 26 members through the instant open screening. As such, the Defendant’s assertion that the instant open screening was a part of the process for unfair dismissal is merely a mere fact for unfair dismissal.

4) The Plaintiffs only prepared a written oath to the effect that they would not raise any objection to the increased occasional rating results to pay the increased allowances, but did not agree with the restructuring plan or the termination of labor relations. Thus, the instant open screening process is merely the Defendant promoted against the intent of the Plaintiffs.

5) The eligibility to apply for the instant open screening process may not be limited on a regional level, or the right of expectation for re-commissioning of existing members may not also be infringed on, on the ground that it is necessary to select members with outstanding annual intervals and to maintain and improve the level of the instant group by providing local residents with an opportunity for fair competition.

B. Determination

In light of the following circumstances that can be seen by adding the whole purport of the pleadings to the evidence and the statement of No. 21 submitted in the first instance trial and the statement of No. 21 of the Enforcement Rule of the instant Municipal Ordinance, the rejection of the instant re-commission shall be deemed reasonable and reasonable in light of social norms. Therefore, the termination of the Plaintiffs’ appointment contract due to the refusal of the re-commission of this case constitutes unfair dismissal and thus cannot be deemed null and void. Accordingly, the Plaintiffs’ above assertion is without merit.

① Article 9(3) of the instant Ordinance provides that the re-commission of an existing member whose appointment period has expired only provides that “A member may be re-commissioned through screening,” and does not impose any obligation on the Defendant to re-commission a person whose appointment period has expired, or does not impose any restriction on the specific method of implementation of “a screening of a screening member.” Therefore, there is no ground to interpret the said provision stipulating the possibility of re-commissioning an existing member beyond the right to expectation of re-commissioning, and there is no method of screening. Therefore, the issue of whether to re-commission an existing member whose appointment period has expired and how to conduct a screening for such review shall be determined based on the judgment of the Defendant market as the person who is the person who is the person who is the authority to establish and operate the instant sub-commission, unless there are extenuating circumstances to deem that the screening method

② Article 6 of the Ordinance of this case provides that "the appointment method of a conductor and a new member shall be commissioned by the City Mayor through the deliberation of the public screening division and the committee," but the appointment procedure of an existing member and a new member shall be separated as alleged by the plaintiffs, and the appointment procedure of an existing member shall not be interpreted to be excluded from the beginning of the open screening process.

③ Article 8(3) of the Enforcement Rule of the instant Municipal Ordinance, which the Plaintiffs cited as the ground for guaranteeing the re-commission of the existing members, provides that “A member whose amount of skill has been significantly lowered according to the result of a performance evaluation may be dismissed.” Even if interpreting the foregoing text, it cannot be deemed that the dismissal may not be made unless the amount of skill has been significantly lowered as alleged by the Plaintiffs. In addition, in light of the basic purpose of a regular rating procedure and the provisions related to re-commissioning, it is merely a provision that the said provision may dismiss the members whose amount of skill has been significantly lowered, and it is difficult to grasp the regulations concerning whether to re-commission or re-commissioning for the existing members.

④ In light of the purpose of the establishment of the instant Educational Group, the commissioning process of the members, the characteristics of the duties of the members or their expertise, etc., the Defendant does not re-commission only the existing members in organizing and operating the instant Educational Group, but it is necessary to newly select members with an outstanding annual interval and heat by providing them with an opportunity for fair competition, thereby maintaining and improving the level of the instant Educational Group. The instant open screening process, which allowed all applicants including the existing members to recruit members through practical examination and interview, appears to be a reasonable method consistent with the above purport, and there is no other circumstance to deem that the Defendant abused discretion in the process of adopting the open recruitment method, or that there is any unreasonable point in determining the standards or methods of evaluation.

⑤ 피고는 이 사건 교향악단의 모집계획을 수립하고 이 사건 공개전형을 마련하여 기존 단원을 포함한 응시자들에 대한 실기 심사 및 면접을 실시하였는데, ㉮ 이 사건 공개전형을 통하여 원고들을 제외한 이 사건 교향악단의 기존 단원 중 상당수가 재위촉되었을 뿐 아니라 이 사건 공개전형 결과 기존 단원들의 합격률(54명 중 26명)이 신규 응시자의 합격률(73명 중 21명)에 비하여 높게 나타난 점, ㉯ 원고들 가운데 이 사건 공개전형을 통해 재위촉 되지 못한 사람은 각 분야별 모집인원 내 순위에 미치지 못하는 점수를 취득하였거나 거주지 제한 등으로 인해 이 사건 공개전형에 응시하지 못한 것에 기인한 것일 뿐인 점, ㉰ 기록상 피고가 기존 단원 중 원고들만을 특정하여 재위촉을 거부할 만한 사정이 보이지 않고, 갑 제7호증의 기재만으로 특정 단원에 대한 정리가 예정되어 있었다고 보기에는 부족한 점, ㉱ 원고들에 대한 실기평정은 이 사건 예술단에 소속되지 아니한 3분의 2 이상의 외부 전형위원이 하였으며, 그 전형위원은 대학교수 등 해당분야에 전문성과 덕망이 풍부한 자로서 전형일에 임박하여 위촉된 점, ㉲ 이 사건 공개전형의 악기별 실기 심사곡 중 상당수는 이 사건 교향악단이 연주회에서 연주한 바 있던 곡으로 기존 단원으로 근무하던 원고들에게 유리하였던 점, ㉳ 원고들에게 폐지된 파트(튜바) 및 주소지 제한 외에는 모두 동일하게 이 사건 공개 전형에 응시할 기회가 주어진 점, ㉴ 을 제16호증(2011년도 교향악단 전형결과)의 기재를 보아도 심사위원으로 참가한 유일한 내부인사인 지휘자 소외인의 평정결과와 2인의 외부 심사위원들의 평정결과가 전체적인 면에 있어서는 크게 차이가 나지 않는 점 등에 비추어 보면 피고가 공정성과 합리성이 결여된 심사과정을 거쳐 부당하게 원고들의 재위촉을 거절하였다고 보기 어렵다.

6) On 209, the Arts Group affiliated with Kimcheon-si choir, Kimcheon-si Group, and the Youngcheon-gu Group of this case raised the allowances of the members of the above three organizations through its own meeting and gathering opinions on the end of the day before the announcement, and through its own joint meeting, but for a limited period of time, different allowances by grade by distinguishing the grades of the members through self-evaluation, and finally agreed on a restructuring plan to adjust the number of the above members, and submitted a proposal to the head of the art group of this case. The members of the Arts Group, including the plaintiffs, submitted a written pledge to the effect that "I would not raise any objection to the results of the occasional evaluation of each organization conducted under the above restructuring plan, such as the above" from among the members of the arts group of this case. It seems that the members of the Arts Group of this case, including the plaintiffs, were aware of the possibility of changing the screening prior to the announcement of this case, and that if the screening of this case was rejected, they would not be re-commissioned.

(7) In light of the contents of a written pledge stating “in accordance with the restructuring plan”, the reasons why the written pledge was made, the financial status and operating status of the school platform of this case, etc., it is not possible to find out the reasons for exclusion only from the subject of the Plaintiffs’ awareness and consent after the follow-up restructuring.

(8) Considering the characteristics of the instant sub-committee operated with the Defendant’s budget for the purpose of cultivating citizens’ sentiments and promoting local culture, the Defendant’s eligibility to apply for the instant open screening cannot be deemed to be unreasonable to limit the eligibility to apply for the instant open screening, and to adjust the organization of the sub-committee according to budgetary circumstances. According to the evidence No. 21, the Defendant appears to have expanded its door to the Daegu and North Korean residents, instead of limiting the eligibility to apply for the instant open screening to the residents in the Daegu and North Korea, and thus, the limitation of the Defendant’s eligibility to apply for such examination is sufficiently feasible, and therefore, it cannot be deemed unfair to apply for the

3. Conclusion

Therefore, the judgment of the court of first instance is just, and all appeals by the plaintiffs are dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Kim Jong-soo (Presiding Judge)