(영문) 서울고등법원 춘천재판부 2016.3.30.선고 2015나1883 판결

The judgment of the first instance shall be revoked. In the first instance, the defendant's dismissal against the plaintiff on December 30, 2014 shall be revoked.

confirmation that it is invalid. Preliminaryly, the defendant's action against the plaintiff on 12,30 December 2014 was taken against the plaintiff.

revoked (in the first instance added the conjunctive claim),

Reasons

1. Basic facts

A. The Defendant is a corporation with the aim of contributing to the stabilization of people’s lives and the promotion of public welfare by facilitating the development of coal mines under the Korea Coal Corporation Act and stabilizing the demand and supply of coal through the production, processing, and sale of coal and the operation of incidental business. 2) The Plaintiff is a person who joined the Defendant on February 29, 200 and has worked as a pitr in the B Mining Center.

B. On May 14, 2014, the Plaintiff 31st election of the head of the Defendant Trade Union B branch office and the head of the press report related thereto) held in the election of the head of the Defendant Trade Union B branch office (hereinafter referred to as the “Chapter B”) 31, which was implemented on May 14, 2014. As a result of the above election ballot counting, the Plaintiff and the second candidate C were elected on May 15, 2014 as the result of the election ballot counting.

B) D had at least 20 20,00 won on the day of the above line voting and the apartment on which the Defendant 200,000 won 50,000 won 50,000 won of the day of the above line voting, and D reported to the same effect on May 16, 2014, as C retires for health reasons after the interview with the Plaintiff’s members, but E was elected as a result of the election.

B) On September 29, 2014, D, following the election of the 31st head of the 31st party B, who was suspected of receiving money or goods, and the election of the 32th party head of the 32th party old-age department, there was an argument that both candidates sent a piracy text message in the election campaign process, and there is controversy.

C. B’s disciplinary action against the Plaintiff on November 17, 2014, B held a disciplinary committee and spreads money and goods in the 31st election of the head of the 32th branch office, and made a decision to remove the Plaintiff from the partnership on the ground that “the Plaintiff violated Articles 30 and 31 of the Regulations on the Election of the head of the 32 branch office, and damaged organization disturbance and the reputation of the association”. The head of the B branch office ordered the Plaintiff to order the expulsion in accordance with the above resolution, and was dismissed by the reexamination disciplinary committee held on December 5, 2014 at the Plaintiff’s request.

2) On December 5, 2014, the head of the sub-chapter B notified the head of the relevant mining center of the result of the above disciplinary action and review, which is the date of the above resolution, and notified that the above disciplinary action violates the rules of employment of the defendant, and thus, the measures related thereto also

D. The Defendant’s disciplinary action against the Plaintiff 1) On December 29, 2014, upon the request of the head of B branch office, the president of B mining center requested a disciplinary resolution against the Plaintiff. Accordingly, the B mining center personnel committee on December 30, 2014.

'The plaintiff spreads money and valuables in the 31st election of the head of the 32th branch office, and spreads false facts in the 32th election of the head of the 32 branch office, which constitutes a disciplinary cause under Article 46 subparagraphs 4 and 8 of the Personnel Management Regulations of the defendant, and decided to dismiss the plaintiff.

2) Accordingly, on December 30, 2014, the Director of the B Mining Headquarters, as of December 31, 2014, shall be punished by the Plaintiff as of December 31, 2014, and publicly announced the purport of the dismissal disposition (hereinafter referred to as “instant dismissal disposition”), and the same day.

(e) the relevant regulations;

The provisions of the defendant or defendant trade union in relation to this case are as shown in the attached Table 1.

【Unsatched Facts, Gap evidence 1 through 3, Eul evidence 2, 3, 6, 8, 9, 10, 11, 24 through 39, 50 (including branch numbers) and the purport of the whole pleadings

2. The plaintiff's assertion

Defendant B’s personnel committee of the Korea Resources Commission notified the Plaintiff one day prior to the date of the personnel committee meeting and deprived the Plaintiff of the Plaintiff’s opportunity to vindicate (violation of Article 40(1) of the Enforcement Rule of the Personnel Management Regulations). The reason for disciplinary action is only “violation of the Regulations (Defamation of Works and Violation of the Order of Work)” and it is insufficient to present the reason. Thus, the instant disposition of dismissal is procedural defect.

In addition, the plaintiff did not spread money or valuables in the election of the head of the branch office, or there is no reason for disciplinary action. The order to dismiss a person who is the most severe disciplinary action, even if there is a reason for disciplinary action, is deviating from or abusing the authority of disciplinary discretion.

Therefore, the plaintiff asserts that the plaintiff primarily sought confirmation of the invalidity of the disposition for dismissal of this case, and that the disposition for dismissal of this case should be revoked.

3. Determination on the legitimacy of the conjunctive claim

The plaintiff sought revocation of the disposition of dismissal in this case in preliminary case, but a lawsuit of formation for the purpose of forming and extinguishing the legal relations, such as the claim for revocation, can be brought only when there is a express provision in the law (Supreme Court Decision 2000Da45020 Decided January 16, 2001). Since there is no legal ground for filing such a lawsuit, the preliminary claim seeking revocation is unlawful.

4. Judgment on the main claim

(a) the existence of procedural defects;

As seen earlier, Article 40(1) of the Enforcement Rule of the Personnel Regulations of the Defendant stipulates that “The schedule for the personnel committee to be held shall be notified to the discipline accused person by not later than two days prior to the enforcement date of the Personnel Regulations,” and according to the evidence No. 35-1 of the evidence No. 35, it is recognized that the head of B mining office notifies the Plaintiff on December 29, 2014, which is the day before the date

However, in full view of the facts found above, Eul evidence 24-2, Eul evidence 25-4, Eul evidence 28-28, Eul evidence 30-2, Eul evidence 31-4, Eul evidence 37-4, Eul evidence 37-4, Eul evidence 1-2, Eul's whole purport of the whole arguments and arguments as follows: ① The personnel committee which made the disposition of dismissal in this case was held upon the request of the head of Eul branch to examine the plaintiff's dismissal in this case and its disciplinary reasons; ② therefore, Eul's expulsion against the plaintiff in this case and the disposition of dismissal in this case are the same facts as the grounds for disciplinary action in this case; ③ the plaintiff's dismissal in this case is the same

11. Upon receipt of the notice of holding the personnel committee of B branch offices on December 11, 2014, the Plaintiff attended the 31st election of the head of the relevant branch office and stated his/her opinion to the effect that there is no such fact as to the spread of money and valuables at the time of the 32th election of the head of the relevant 31st branch office, and the spread of false facts at the time of the 32th election of the head of the relevant branch office. ④ The Plaintiff’s request for a retrial was held on December 5, 2014, and the Plaintiff appeared at the 2nd branch review committee, which was held on December 5, 2014, and stated again his/her opinion on the grounds for the said disciplinary action. ⑤ The Plaintiff is recognized as having stated his/her opinion in detail without raising

According to the above facts, the plaintiff had already been aware of the facts of his disciplinary action in B branch prior to the opening of the personnel committee in B branch prior to the opening of B branch, and had been sufficiently prepared to explain the grounds for the disciplinary action in this case, and sufficiently explained the grounds for the disciplinary action in this case. The plaintiff appeared to have been present at the personnel committee on December 30, 2014 and sufficiently explained the grounds for the disciplinary action in this case without objection to the notification procedure. Thus, the procedural defect that failed to notify by two days prior to the opening of the personnel committee is cured (see Supreme Court Decision 94Nu11767, Mar. 3, 1995, etc.).

Furthermore, it is reasonable to view that the procedural defect was cured inasmuch as the Plaintiff sufficiently explained the grounds for disciplinary action as stated in the disciplinary action as the ground for disciplinary action only referred to as "the violation of the provision (Defamation of construction and the disturbance of workplace order)" (Evidence A) and as seen earlier, it is also difficult to view that the instant disposition of dismissal was a serious defect to the extent that it is deemed null and void even if it is not so. The Supreme Court Decision 90Nu1786 Decided September 11, 1990 cited by the Plaintiff is against the administrative agency's administrative disposition and it is inappropriate to be invoked as it is in the instant case.

Therefore, this part of the argument that this case's dismissal procedure defects exist and invalidation is not justified.

B. In full view of the contents of evidence Nos. 20, 21, 22, 31, and 47 with respect to the dissemination of money and valuables at the time of the election of the head of the 31st branch office, and the witness F’s testimony and arguments, the Plaintiff ordered the Plaintiff’s election campaign members, including I and J, to deliver money bags to the members of the Plaintiff’s election campaign office on May 14, 2014, which is the day before the 31st election of the head of the 31st branch office was the day before the 31st election of the head of the 31st branch office, and the witness F’s testimony and arguments. ② The Plaintiff’s election campaign members informed K and L of the fact that the money and valuables were distributed to the members of the 3th branch office, as seen earlier, and each of the above money and valuables were insufficient to recognize the fact that the 3th branch office’s new election campaign was spreaded on May 15, 2014.

According to the above facts, it is reasonable to view that at the time of the election of the 31st head of the branch office, the Plaintiff spreaded money and valuables in violation of Article 31(1) of the Rules on the Election of the branch office, and caused anti-defluence and incompetence among the union members who are employees of the workplace, thereby disrupting the order of the workplace, and that the above act was reported to the press, thereby impairing the honor of the Defendant. This constitutes grounds for disciplinary action under Article 46(4) and (8)

B) On September 29, 2014, the 32th election of the head of the 32th branch office: (a) the Plaintiff’s election campaign clerk at the time of the 32th election did not receive a text message from the members on September 24, 201, stating that “The 32th election of the head of the 32th branch office is likely to cause excessive and mixed election campaign; and (b) the Plaintiff’s assertion that he sent the instant text message during the election campaign period is controversial. The Plaintiff’s election campaign clerk at the time of the 32th election of the head of the 32 branch office did not receive a text message from the members on September 24, 2014 to the 20th election of the head of the 24th branch office, including that the Plaintiff sent the text message to the members of the 32th branch office, and that the Plaintiff would not have any right way to receive a text message from the 24th election of the head of the 24th branch office.

Furthermore, based on each of the following circumstances acknowledged by the above evidence, i.e., ① the subject of the instant text message was sent at the time of the 32th election for the head of the 32th branch office, but the subject of the relevant misconduct could easily be seen as a party candidate; ② the Plaintiff did not present any supporting evidence that there was the fact or suspicion indicated in the above text message; ③ the Plaintiff was aware of the fact that the Plaintiff sent text message at the Appellate Committee on the disposition of expulsions by the 200 branch office; ④ The Plaintiff made a statement that the Plaintiff mobilized and obtained the number of persons including other election campaigners to send text messages to more than 200 members; ④ In full view of the fact that it is difficult to view the Plaintiff or the Plaintiff’s independent act irrelevant to the Plaintiff’s election campaign board as the Plaintiff or the Plaintiff’s election campaign board, in violation of Article 31(2) of the Rules, and thus, it is difficult to deem that the Plaintiff committed the above act to distortly affect the order of the Plaintiff and the Plaintiff’s work members.

The Plaintiff’s above act constitutes grounds for disciplinary action under Article 46 subparag. 4 and 8 of the Defendant Personnel Management Regulations.

2) Appropriateness of a disciplinary action

In light of the following facts: ① the distribution of false facts about contributions or the other party in an election is important to impair fairness and transparency; ② the Plaintiff committed the act of misconduct in two consecutive elections over a short period of time; ② the Plaintiff not only the B District Disciplinary Committee and the B Mining Facility Personnel Committee but also denied his misconduct in the process of the instant lawsuit; ③ the Plaintiff’s above act causes the conflict between the two employees of the B Mining Facility; ③ it is not easy to say that the degree of misconduct is less than that of the Plaintiff’s act of impairing the personality among the employees, who are very important in the characteristics of the work in the high risk of accidents; ④ Furthermore, it is difficult to deem that the instant dismissal disposition was considerably harsh or lack objective validity compared to the Plaintiff’s act; and there is no evidence to acknowledge it otherwise.

Therefore, the plaintiff's assertion on this part is without merit.

5. Conclusion

Therefore, the plaintiff's primary claim shall be dismissed as it is without merit, and the judgment of the court of first instance shall be just, and the appeal shall be dismissed as it is without merit, and the conjunctive claim shall be dismissed as it is so decided as per Disposition.