(영문) 서울고등법원 2014.11.27. 선고 2014누55122 판결

The judgment of the first instance is revoked. The Defendant’s disposition of imposition of KRW 10,00,000 for non-performance penalty against the Plaintiff on December 13, 2013 shall be revoked. The Defendant’s disposition of seizure against a deposit in the transaction between the Plaintiff and the Han Bank on February 13, 2014 shall be revoked.

Reasons

1. The part citing the first instance judgment

The reasoning of the judgment by this court is as follows, except for the addition of the judgment on the plaintiff's argument at the trial by the court below as stated in the reasoning of the judgment of the court of the first instance. Thus, this court shall accept it as it is in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

2. Additional determination

A. The plaintiff's assertion

1) Article 30(3) of the Labor Standards Act provides that when the Labor Relations Commission issues an order for remedy for unfair dismissal, it may order the Plaintiff to pay the amount equivalent to the reinstatement of the original position and the amount equivalent to the wages. Nevertheless, in violation of the above provision of the Labor Standards Act, the Defendant ordered the Plaintiff at the same time to pay the amount equivalent to the wages for the original position and B in breach of the above provision of the Labor Standards Act

2) In addition, even though the disposition that restricts fundamental rights requires the legal basis, the defendant made a disposition that concurrently pays the original position and the amount equivalent to wages as above without such legal basis. This is serious and obvious that it is null and void.

(b) judgment;

1) The provision of Article 30(3) of the Labor Standards Act provides that “When the Labor Relations Commission issues an order for remedy (referring only to an order for remedy against dismissal) pursuant to paragraph (1), it may order an employee to pay money or goods equivalent to or above the amount of wages that the employee would have received if he/she had provided during the period of his/her dismissal, instead of ordering the employee to return to his/her original position if he/she does not wish to return to his/her original position.” The provision provides that even according to the language and text itself, the employee does not want to return to his/her original position while making a request for remedy against unfair dismissal. According to the evidence No. 2, the order for remedy in this case is issued by B along with seeking payment of the amount equivalent to the original and wages, and does not fall under the subject of the above provision. Accordingly, the Plaintiff’s assertion that the order for remedy in this case is unlawful against

2) Article 30(1) of the Labor Standards Act provides that "if the Labor Relations Commission determines that the dismissal, etc. is unfair after the completion of the inquiry under Article 29, the Labor Relations Commission shall issue an order for remedy to the employer." In the case of unfair dismissal, it is reasonable to interpret that the order for remedy under the above provision includes the reinstatement of the worker in the case of unfair dismissal and the payment of the amount equivalent to the wages during the period of dismissal, etc., and the interpretation of the above provision. Therefore, it is reasonable to interpret that the order for remedy under the above provision includes the reinstatement of the worker in the case of unfair dismissal and the payment of the amount equivalent to the wages during the period of dismissal for the worker in the case of the worker in the case of unfair dismissal. Therefore, the plaintiff's assertion that there

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.