Plaintiff (Law Firm citizen, Attorneys Kang Young-chul et al., Counsel for plaintiff-appellant)

National Health Insurance Corporation (Law Firm Lee & Lee, Attorneys Jeong Tae-won, Counsel for defendant-appellant)

October 1, 2010

Seoul Western District Court Decision 2009Kahap16582 Decided May 26, 2010

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant's dismissal against the plaintiff on October 29, 2009 shall be confirmed to be null and void. The defendant shall pay to the plaintiff 5,595,88 won per annum from October 29, 2009 to the delivery date of a copy of the complaint of this case from October 29, 2009 to the delivery date of a copy of the complaint of this case, and 20% per annum from the next day to the full payment date.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation is as follows, except for addition of the following judgments as to the matters asserted by the Plaintiff in the trial, and therefore, it is consistent with the reasoning of the first instance judgment pursuant to the main sentence of Article 420 of the Civil Procedure Act.

2. Additional matters to be determined;

A. The plaintiff's assertion

Article 78(1) of the Defendant’s Personnel Regulations provides that “The Disciplinary Committee shall notify a person subject to disciplinary action of the fact that the disciplinary committee held the disciplinary committee in order to give him/her an opportunity to make a statement.” As such, deliberation and resolution by the disciplinary committee which infringed the right to vindicate shall be deemed null and void of a serious procedural procedural violation. However, the Plaintiff’s appearance at the Central Disciplinary Committee on September 30, 2009 and made a statement (hereinafter “instant statement”) was a special circumstance following the Plaintiff’s death in the Plaintiff’s lodging room, and if the Plaintiff was given an opportunity to express his/her background or motive, the determination of disciplinary action would be sufficiently taken into account. Moreover, “defensive behavior at the time of statement” recognized by the Central Disciplinary Committee as the ground for disciplinary action was not discussed at the time of the Defendant’s request for disciplinary action, and thus, the dismissal of the instant case is null and void because it did not have procedural justification.

B. Determination

(A) Comprehensively taking account of the purport of oral argument as indicated in Gap evidence No. 2, the defendant, as of October 26, 2009, posted comments on the grounds of disciplinary action accompanying the notice of dismissal to the plaintiff as of October 21, 2009 on the ground of the disciplinary action, which "the defendant, on July 21, 2009, posted such comments on the grounds of the disciplinary action to the non-party 1 (the non-party to the judgment of the Supreme Court) twice on July 17, 2009, insulting the employees on two occasions at the free bulletin board. The defendant denied the authority of the documents of the defendant, defames the defendant's policy against the defendant, thereby violating the duty to maintain dignity, and violates the duty to maintain dignity of the employees, such as failing to comply with the provision of this case." Further, it is clearly acknowledged that the non-party 3 violated the duty to maintain dignity by openly pointing out the grounds for disciplinary action against the non-party 1's official status and violating the duty to maintain dignity of the employees."

(B) In full view of the circumstances surrounding the instant dismissal disposition and disciplinary procedure, the Plaintiff’s statement in the process of the disciplinary procedure, etc. revealed in such facts of recognition, etc., although the statement of this case, which the Plaintiff is at issue, is discussed in the grounds for the disciplinary decision, it is reasonable to deem that it was considered as one of the materials of the disciplinary decision rather than that determined as a

In addition, even if the statement of this case was one of the grounds for a formal disciplinary action in the dismissal disposition of this case, the plaintiff himself recognized that "the above committee has explained that the attendance at the disciplinary committee in the state of drinking was due to a funeral issue, etc." As such, the plaintiff also has an opportunity to sufficiently make statements and reflect on this point. Therefore, it is difficult to see that the plaintiff's right to vindicate in the disciplinary procedure has been infringed.

In addition, the statement in this case cannot be used as a ground for disciplinary action, and even if it is merely a material for the determination of disciplinary action, considering all the circumstances such as the motive and background of the act of misconduct which was the ground for the dismissal disposition in this case, the status and duty of the plaintiff, previous work attitude, past work experience, it is judged that the defendant's choice as a ground for disciplinary action against the plaintiff is justifiable as a reasonable exercise of discretionary power.

(C) Therefore, the dismissal disposition of this case has both procedural and substantive legitimacy, and thus, the Plaintiff’s assertion cannot be accepted.

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed as it is without merit.

Judges Yellow-Jung (Presiding Judge)