(a) The case that is null and void as it was conducted without giving an opportunity to vindicate the grounds for disciplinary action, such as the rules of employment;

(b) The case holding that it cannot be deemed that the receipt of a retirement allowance has been approved as valid after the filing of a lawsuit, such as disciplinary dismissal and nullification confirmation, etc.

C. In a case where a worker claims wages during the period of unfair dismissal, whether the amount received from the Trade Union Fund should be repaid to the employer (negative)

(a) The case that is null and void as it was conducted without giving an opportunity to vindicate the grounds for disciplinary action, such as the rules of employment;

(b) The case holding that it cannot be deemed that the receipt of a retirement allowance has been approved as valid after the filing of a lawsuit, such as disciplinary dismissal and nullification confirmation, etc.

C. Workers who failed to provide labor due to unfair dismissal may claim wages from the employer in accordance with the main sentence of Article 538(1) of the Civil Act. In this case, if the worker gains profits from his/her own debt, they shall be repaid to the employer, but the benefits to be repaid shall be limited to those in proximate causal relation with the discharge of the obligation. However, the amount that the worker received from the labor union fund during the dismissal period shall not be deemed to be the profits in proximate causal relation with the removal of the labor union fund.

A. Article 27(c) of the Labor Standards Act; Article 538 of the Civil Act; Article 36 of the Labor Standards Act

A. Supreme Court Decision 82Meu2981 decided Oct. 26, 1982 (Gong1923,57) (Gong1923,57) 87Da683 decided Nov. 8, 1988 (Gong1988,1523) 90Da6095 decided Dec. 7, 1990 (Gong1991,428) (Gong1987,82), Supreme Court Decision 90Nu4952 decided Jan. 25, 1991 (Gong191,878) Da.69Da13577 decided Mar. 31, 1969 (Gong406) (Gong4067, Dec. 28, 2012)

Plaintiff 1 and four others

Attorney Yoon-sung et al., Counsel for the defendant-appellant-appellee

Busan High Court Decision 89Na8422 delivered on November 29, 1990

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

(1) As to the first ground for appeal:

According to the reasoning of the judgment below, Article 74 of the Rules of Employment of the company provides that the company shall provide the person concerned with an opportunity to vindicate the disciplinary cause. Article 17 of the Rules of Disciplinary Action provides that a person subject to disciplinary action shall be notified of the date, time, and place of the disciplinary action. Article 20 of the above Rules provides that a person subject to disciplinary action shall make a statement about the disciplinary cause and that a person subject to disciplinary action may make a proxy statement if the person subject to disciplinary action is unable to make a statement. The act of absence from office from November 5, 1987 to December 25, 1987 without permission from the plaintiffs to the above place of the disciplinary action under Article 10 subparag. 17 of the Rules of the company's disciplinary action shall not be deemed to be a case where the plaintiffs were absent without permission for the above time and place of the disciplinary action, and thus, the defendant company shall not hold a disciplinary committee at the meeting of the above defendant company's 10:30 on November 26, 1987.

(2) As to ground of appeal No. 2

The court below recognized that the plaintiff 1 received each of the above amounts of the defendant's assertion as retirement allowance without expressing any intention on December 24, 198 and February 11 of the same year, and the plaintiff 3, 4, and 5 of the same month as retirement allowance. However, since it is apparent in the record that the date when the plaintiffs filed the lawsuit in this case was on February 5, 198, prior to the date of the above retirement allowance payment, it cannot be deemed that the plaintiffs approved the validity of disciplinary action by receiving the retirement allowance, or that the plaintiff did not have approved the correction of the procedure for disciplinary action against the defendant company, or provided the foundation of trust that approved or approved the defects in the procedure for disciplinary dismissal against the defendant company. In light of the records, the judgment of the court below is just and it is not erroneous in the misapprehension of legal principles as to the principle of good faith or the principle of no advice, and it cannot be deemed that the court below's decision that the plaintiff 1 received the retirement allowance payment in this case cannot be accepted after the decision of dismissal of the party members.

(3) As to the third ground for appeal:

A worker who was unable to provide labor due to unfair dismissal may claim wages from the employer under the main sentence of Article 538(1) of the Civil Act. In this case, when the worker gains profits from his/her own debt, the benefits to be repaid to the employer shall be paid to the employer, but the benefits to be repaid to the employer shall be limited to the proximate causal relation with the discharge of his/her obligation. According to the records, even though there is no dispute between the parties as to the fact that he/she received the amount of 70,000 won or 325,00 won per month during the partial dismissal period, such as the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class.

(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.

Justices Lee Jae-sung (Presiding Justice)