[1] Whether a disciplinary committee is able to make a disciplinary decision by fundamentally modifying the grounds for disciplinary action for which a disciplinary decision was requested or by adding other grounds for disciplinary action, and the validity of disciplinary dismissal against a person subject to disciplinary action, such as granting a person an opportunity to vindicate

[2] In a case where the National Health Insurance Corporation dismissed a worker Gap on the ground of violation of personnel regulations, the case holding that the judgment below erred by misapprehending the legal principles on the ground that the dismissal disposition made in violation of the disciplinary procedure is null and void, on the ground that the disciplinary committee did not have a new disciplinary cause for which the disciplinary resolution was not required, and that the disciplinary committee did not have been given an opportunity to vindicate for

[3] Even if the text of a document posted on an in-house electronic bulletin board causes damage to another person's personality and false information about the facts recorded therein, if the purpose is to maintain and improve working conditions, and the content of the document is true in view of the whole, whether the act of posting a document constitutes a legitimate scope of business (affirmative)

[1] Under the rules of employment and other disciplinary regulations, when a certain disciplinary cause occurs to a worker, a person who has the right to request a disciplinary resolution first requests the disciplinary committee to make a disciplinary resolution based on the grounds for disciplinary action, and the disciplinary committee provides that the person who has the right to request a disciplinary resolution shall provide the person subject to disciplinary action with an opportunity to state his/her opinion, and in the case of a disciplinary resolution, the disciplinary committee shall deliberate and determine only the person subject to the disciplinary cause for which the disciplinary resolution has been requested, and the disciplinary committee shall not make a disciplinary resolution by adding other disciplinary causes, such as fundamental revision of the grounds for disciplinary action for which the disciplinary resolution has been requested or circumstances that have occurred after the disciplinary resolution, etc. In addition, if the disciplinary action was conducted in violation of such disciplinary procedure despite the person who has the right to request a disciplinary resolution was given an opportunity to present himself/herself and submit explanations and explanatory materials, the exercise

[2] In a case where the National Health Insurance Corporation dismissed a worker Gap on the ground of violation of personnel regulations, the case holding that the court below erred by misapprehending legal principles on the ground that the dismissal disposition against the disciplinary committee, which was requested by the Corporation for a disciplinary resolution, was invalid regardless of whether the grounds for disciplinary action are acknowledged, on the ground that the disciplinary committee's act of posting a notice on the electronic bulletin board of the company Gap was requested by the disciplinary committee only as grounds for disciplinary action, and the disciplinary committee did not notify Gap of the fact that "the injury to dignity when making a statement," which was not required for a disciplinary resolution, constitutes grounds for disciplinary action; and that the disciplinary committee did not notify Gap of the fact that "the injury to dignity when making a statement," which was caused by the disciplinary committee's response to the circumstances during which the disciplinary committee was attended due to drinking conditions, cannot be deemed to have been given an opportunity to submit a vindication and supporting materials for the grounds for disciplinary action.

[3] Even if the character, credit, reputation, etc. of another person is damaged, injured, or likely to be damaged, injured, or impaired, or a part of the facts stated in a document is false or exaggerated or distorted, if the purpose of distributing the document is not to infringe upon the rights or interests of another person, but to promote the maintenance and improvement of working conditions, the promotion of workers' welfare, and the enhancement of economic and social status, and if the contents of the document are true in view of the whole, it belongs to the legitimate scope of activities of workers.

[1] Article 23(1) of the Labor Standards Act / [2] Article 23(1) of the Labor Standards Act / [3] Article 23(1) of the Labor Standards Act

[1] Supreme Court Decision 84Nu299 delivered on September 25, 1984 (Gong1984, 1747) Supreme Court Decision 90Da8077 delivered on July 9, 1991 (Gong1991, 2112)

Plaintiff (Law Firm citizen, Attorneys Kim Ba-soo, Counsel for plaintiff-appellant)

National Health Insurance Corporation (Law Firm Lee & Lee LLC, Attorneys Lee Jong-ho et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2010Na56168 decided November 5, 2010

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. On the first ground for appeal

In the rules of employment, etc., when a certain disciplinary cause occurs to a worker, a person who has the right to request a disciplinary resolution first requests the disciplinary committee to make a disciplinary resolution based on the grounds for disciplinary action, and the disciplinary committee shall provide a person who has the right to request a disciplinary resolution with an opportunity to state his/her opinion, and in the case of a disciplinary resolution, the disciplinary committee shall deliberate and determine only the disciplinary cause for which a disciplinary resolution has been requested by the person who has the right to request a disciplinary resolution, and shall not make a disciplinary resolution by adding other disciplinary reasons, such as fundamental revision of the grounds for disciplinary action for which the disciplinary resolution has been requested or circumstances after the disciplinary resolution has occurred (see Supreme Court Decision 84Nu299 delivered on September 25, 1984). In addition, if a disciplinary action was conducted in violation of such disciplinary procedure despite the person has been given an opportunity to present himself/herself and present arguments and supporting materials, such exercise of the right to request disciplinary resolution shall be deemed null and void, regardless of whether the grounds for disciplinary action is recognized (see Supreme Court Decision 900Da777, July 9, 19991.).

In full view of the circumstances leading up to the dismissal disposition and disciplinary procedure of this case and the Plaintiff’s statement in the process of the disciplinary procedure, it is reasonable to deem that the Plaintiff’s statement that appeared at the Disciplinary Committee on September 30, 2009 at drinking (hereinafter “instant statement”) was considered as one of the materials for disciplinary action rather than that determined as the grounds for a regular disciplinary action. In the dismissal disposition of this case, even if the statement of this case was one of the grounds for a regular disciplinary action in the dismissal disposition of this case, the court below acknowledged the Plaintiff’s statement that “the above Committee explained that the attendance at the Disciplinary Committee in the state of drinking was due to the fact that there was a relative funeral problem, etc.” Thus, the lower court determined that it is difficult to deem that the Plaintiff’s right to vindicate was infringed in the disciplinary procedure.

However, we cannot accept the above judgment of the court below.

According to the evidence No. 2 of the judgment below duly adopted and investigated by the court below, the disciplinary committee, which was requested by the defendant to make a disciplinary decision, stipulated the "demeaning the dignity of the case" as one of the disciplinary reasons for the reason that the defendant violated the duty to maintain dignity while explaining specific disciplinary reasons against the plaintiff. Thus, the above disciplinary committee should be deemed to have taken the "demeaning the dignity of the case at the time of the plaintiff's statement" as a separate independent disciplinary reason at the

However, according to Gap evidence Nos. 16 (Enforcement Rule of the Personnel Regulations), Eul evidence Nos. 12 (Personnel Regulations), Eul evidence Nos. 6-2 (Request for Disciplinary Action), and Eul evidence Nos. 6-3 (Request for Disciplinary Action), the defendant's disciplinary provision requires the disciplinary committee to make a disciplinary decision first (Article 76 of the Personnel Management Regulations and Article 41 of the Enforcement Rule of the Personnel Management Regulations), and the disciplinary committee shall make a disciplinary decision through prescribed procedures within a fixed period (Article 77 of the Personnel Management Regulations). In the procedure, the disciplinary committee provides that a discipline accused person may sufficiently exercise his/her right to defense against the disciplinary cause and provide him/her with an opportunity to present his/her opinion (Article 78 of the Personnel Management Regulations), and the defendant's new disciplinary decision Nos. 42 and Article 43 of the Enforcement Rule). In addition, the defendant's disciplinary decision No. 971, Feb. 17, 200, which did not request the disciplinary committee's disciplinary action.

In addition, according to the above evidence, the defendant's personnel regulations provide that the disciplinary committee shall notify the person to be disciplined of the fact of the disciplinary committee's holding of the opportunity to make a statement (Article 78 (1) of the Personnel Management Regulations), and that the person to be disciplined shall be given an opportunity to present arguments and explanatory materials. However, the defendant's disciplinary committee did not notify the plaintiff of the fact that "in the event of the statement of this case" constitutes grounds for disciplinary action even during the meeting of the disciplinary committee, the plaintiff's response to the circumstances during which the person was present at the disciplinary committee due to drinking conditions, and thus, the plaintiff cannot be deemed to have been given an opportunity to present arguments and explanatory materials as to the grounds for disciplinary action. The dismissal disposition

Nevertheless, the lower court determined that it is difficult to deem the Plaintiff’s right to vindicate in the instant disciplinary procedure was infringed, by misapprehending the legal doctrine regarding the scope of voting rights of the disciplinary committee, prior notice of persons subject to disciplinary action and the procedures for granting opportunity to vindicate, thereby adversely affecting the conclusion of the judgment

2. On the second ground for appeal

A. As to the act of posting a notice on July 17, 2009

According to the reasoning of the judgment of the court below and the reasoning of the judgment of the court of first instance cited by the court below, the court below determined that if the plaintiff as an employee has a complaint in accordance with the defendant's policies, the court below should raise an objection in accordance with the defendant's legitimate procedure, and posted a notice on July 17, 2009 that criticizes the defendant's policies without any grounds on the defendant's electronic bulletin board, thereby violating Article 38 (4) of the personnel regulations of the defendant. In comparison with the records, the judgment of the court below is acceptable, and there is no error in the misapprehension of legal principles as to the establishment of the act of injury to dignity, as alleged by

B. As to the act of posting a notice on July 21, 2009

Even if the character, credit, reputation, etc. of another person is damaged, injured, or likely to be damaged, injured, or impaired, or a part of facts stated in a document is false or exaggerated or distorted, if the purpose of distribution of the document is not to infringe upon the rights or interests of another person, but to promote the maintenance and improvement of working conditions, the promotion of workers’ welfare, and the enhancement of economic and social status, and the contents of the document are true in view of the whole, it falls under the legitimate scope of activities of workers.

According to the reasoning of the lower judgment and the reasoning of the first instance judgment cited by the lower court, the lower court determined that the Plaintiff constitutes grounds for disciplinary action, on the grounds that the Plaintiff violated Article 38(4) of the Personnel Regulations, on the ground that the Nonparty’s reputation was impaired and distorted the personnel policy of Defendant Corporation, thereby impairing the Nonparty’s reputation, and thereby, constitutes grounds for disciplinary action.

However, according to the facts and records acknowledged by the court below, although the above notice may damage the non-party's personal reputation, the purpose of this article is to recommend that the defendant's president observe the one-year work regulations, which are the principle of transfer personnel management, to prevent the harm of arbitrary personnel affairs, and to prevent the harm of the other party's personal affairs. The purpose of the notice is not to infringe upon the rights and interests of others, but to maintain and improve the working conditions, promote the welfare of workers, and improve the economic and social status, and the contents of the document seems to be true

Therefore, even if the character, credit, reputation, etc. of the non-party is damaged, injured, or likely to be damaged, injured, or injured, or part of the facts stated in the document is false or distorted, according to the language written in the above article, the posting of the above article shall be deemed not to fall under the grounds for disciplinary action, because it belongs to the legitimate scope of workers' activities.

Nevertheless, the lower court determined that the act of posting a notice on July 21, 2009 constituted a disciplinary cause. In so doing, the lower court erred by misapprehending the legal doctrine on workers’ legitimate scope of activities, thereby adversely affecting the conclusion of the judgment. The grounds for appeal pointing this out are with merit (However, although the Plaintiff’s retirement age remains for one year at the time of the instant dismissal disposition, the Plaintiff’s accurate retirement age cannot be known on the record, and thus, there is a possibility that the retirement age has expired during the period of the final appeal due to the lack of accurate time of arrival of the Plaintiff’s retirement age, and the lower court

3. Conclusion

Therefore, the judgment of the court below is reversed without any further review on the remaining issues, including whether the judgment of the court below on disciplinary action is proper, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)