Plaintiff (Law Firm LLC, Attorneys Choi Yong-seok et al., Counsel for plaintiff-appellant)

Hyundai U.S.C. (Law Firm Samsung, Attorney Park Chang-joon, Counsel for the defendant-appellant)

December 11, 2008

1. The defendant shall pay to the plaintiff 230,145,837 won with 5% interest per annum from August 9, 2005 to December 18, 2008 and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of the lawsuit shall be divided into two parts, one for which the plaintiff and the other for which the defendant bear each of them.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 426,987,859 won with 5% interest per annum from August 9, 2005 to the service date of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Facts of recognition;

A. On December 1, 1980, the Plaintiff became a member of the Defendant Company and worked in the Dok PP Office of Production Technology since 1987, and had been working for the first sports department, the representative of the labor union, and the chairman of the Democratic Workers' Partnership. However, on February 20, 1997, the Plaintiff, upon receiving an application for reexamination, demanded the head of the division in charge as well as the subordinate staff to go through the said head. On February 25, 1997, the Plaintiff distributed printed materials stating that the Defendant Company would reduce the amount of incentives that the Defendant Company did not reduce with regard to the performance bonus, allowances, and the annual and monthly leave. Accordingly, on April 14, 1997, the Defendant Company, upon receiving an application for reexamination, issued a disciplinary action against the Plaintiff on the grounds of dismissal of the Plaintiff, and upon receiving the application for reexamination.

B. The plaintiff filed a lawsuit seeking confirmation of invalidity of the above dismissal and payment of unpaid wages during the period of dismissal on the ground that the plaintiff's act constitutes grounds for disciplinary action, even if the plaintiff's act does not constitute grounds for disciplinary action, it confirmed that the dismissal disposition against the plaintiff of the defendant company was null and void by social norms, and that the dismissal disposition against the plaintiff was not heavier than 76,031 won per day on the ground that the plaintiff's unpaid wages were paid 78,235,899 won based on the average wage of 76,031 won per day, and 2,312,609 won per month from February 20, 200 to the plaintiff's reinstatement. The defendant company appealed against this and appealed, but the Busan High Court Decision 2001Na802, Supreme Court Decision 2002Da13911 decided March 29, 202; the defendant company paid the plaintiff the above judgment to the plaintiff on March 20, 2005.

[Ground for Recognition: Facts without dispute, entries in Gap evidence 1-1-3, the whole purport of pleadings]

2. Claim for unpaid wages;

The Plaintiff asserts to the effect that, after dismissal from the Defendant Company, the wage increase amounting to KRW 4,222,224, which occurred after November 21, 2001, which was the date of the conclusion of the fact-finding proceedings in the lawsuit seeking confirmation of invalidity of dismissal, does not conflict with res judicata of the final and conclusive judgment, and the special circumstances arise to significantly undermine equity among the parties, as the circumstances forming the basis for calculating the amount clearly changed, and thus, the aforementioned wage increase amounting to KRW 4,222,224 are sought as unpaid wages.

According to the above facts, this court's final and conclusive judgment (200Gahap993) was the one ordering the payment of KRW 2,312,609 per month from February 20, 200 to the plaintiff's reinstatement, and was the one ordering the payment of fixed-term funds. In such a case, where special circumstances arise that significantly undermine equity between the parties as the circumstances forming the basis for calculation after the conclusion of pleadings at the fact-finding court were clearly changed after the conclusion of the lawsuit, it shall be deemed that the res judicata effect of the judgment in the previous suit does not extend to the difference between the parties. However, the plaintiff's assertion that, in addition to the amount recognized in this court's case 200Gahap993, the additional payment of the wage increase applied from May 21 of each year, 200, which had the character of special bonus, was not accepted, but there was no evidence to acknowledge this part, and that such determination was not in conflict with the concept of res judicata effect of the plaintiff's claim after the completion of pleadings at the fact-finding court.

3. Claim for additional compensation;

(a) Whether an agreement to bring an action exists;

As to the instant lawsuit seeking additional payment of the amount equivalent to average wages of 100% during the dismissal period pursuant to Article 46 subparag. 2 of the collective agreement between the Defendant Company and the affiliated trade union (hereinafter “instant collective agreement”), the Defendant Company asserts to the effect that this part of the lawsuit is unlawful, on the ground that the instant collective agreement was concluded to the effect that the Plaintiff’s claim for additional payment is unlawful, because the instant collective agreement did not apply only where an employee who was subject to unfair disciplinary action did not claim the money, such as wages, but only where it was recognized as a disciplinary action by the Labor

According to the evidence No. 4 of this case, the collective agreement of this case provides that “10% of the average wage as well as wages that should be paid as a matter of course at the time of attendance shall be paid in addition to the amount of unpaid wages. However, it can be recognized that the relevant actual expenses incurred by the principal until it is proved to be unfair disciplinary action shall be paid additionally by the company.”

However, collective agreement is a trade union, which is an independent organization of workers, for the purpose of maintaining the working conditions of workers and improving their economic status by promoting their welfare, and thus, its explicit provisions cannot be interpreted disadvantageously to workers, since the trade union, which is an independent organization of workers, is conducted through collective bargaining in relation to the working conditions. Thus, the written evidence No. 7-1 through No. 4, No. 11-1, No. 11-4, No. 13, and No. 17 is insufficient to recognize that the collective agreement of this case can only be concluded if the worker against whom the claim under the collective agreement of this case was made is made only and fails to file a claim for the payment of money, and it is not sufficient to recognize that the above written defense of the defendant company is a non-permanent special agreement that makes it impossible

(b) Whether the additional compensation arises;

On the other hand, the plaintiff sought payment of additional compensation equivalent to 100% of average wages during his entire dismissal period under the collective agreement of this case. The defendant company asserts that ① harmony with all the provisions of the collective agreement of this case, such as cost-bearing agreements of the company under the proviso of this case, ② Unfair disciplinary provisions of the collective agreement were amended in 1990, 1994, and 1996 since its enactment in 198, and the current average wage provision of 100% was first stipulated in the amendment in 1990, which was the first provision in the collective agreement of this case, is not limited to the members who worked at work suspended or dismissed, but rather to the extent that the scope of the application of the provision related to unfair disciplinary measures is applied equally. The main point of the amendment was to the effect that the subsequent provision is maintained, and the practices were maintained, ③ the situation of the introduction of the collective agreement between labor and labor, and at least the content of the collective agreement of modern industries, which is the parent company or the contents of modern industrial cooperation relationship, 10% compensation in the present collective agreement.

In light of the principle of interpretation of the collective agreement in light of the contents, form, and purport of the collective agreement in this case, the provision on additional compensation of 100% of the average wage stipulated in the above collective agreement in order to prevent unfair dismissal of the defendant company and to enforce the exercise of appropriate disciplinary rights. As such, the provision on additional compensation of 10% of the average wage as stipulated in the above collective agreement in this case has the nature of sanctions and penalty for violation of the duty to return to work and for violation of the duty to return to the original position of the defendant company, it means to compensate by adding an amount equivalent to 100% of the wages that the worker was not paid during the period from the dismissal to the restoration to the original position. Accordingly, the defendant company has the obligation to pay the plaintiff the amount equivalent to 10% of the average wage as of March 12 of the date of dismissal (76,031 wonx 3,027).

(c) Scope of additional compensation;

(1) Claim for comparative negligence and reduction

The defendant company argued to the effect that since the plaintiff's negligence contributed to the occurrence or expansion of damages due to the plaintiff's negligence after taking into account the disciplinary action against the plaintiff before and after the disciplinary action against the plaintiff, it shall offset the negligence by taking into account this point. However, since the plaintiff is seeking to pay additional compensation pursuant to the collective agreement in this case, the plaintiff is seeking to compensate for damages due to the tort, there is no ground for the plaintiff's assertion of comparative negligence and other reduction

(2) The grounds for appeal

The defendant company asserts to the purport that since the plaintiff was subject to disciplinary action on April 26, 1997, the plaintiff was working at Samsung Heavy Period and the wind voting factory, etc., the plaintiff's income should be deducted from the plaintiff's income. ② The plaintiff led an illegal demonstration such as the assembly of reinstatement in front of the defendant company's sentiments from March 22, 200 to September 22, 200, and the non-party 19, who was the general secretary and the employees of the defendant company, retired from the defendant company after being seriously wounded in the process, thereby causing the defendant company to compensate for damages of 24 million won against the plaintiff. Thus, since the plaintiff has a claim for compensation equivalent to the above amount, the above amount should be deducted from the above amount.

On the other hand, there is no evidence to acknowledge that the plaintiff had obtained income during the period of dismissal, and it is not sufficient to recognize that the statement on the evidence No. 3 alone was that the non-party 19 suffered injury due to the plaintiff's illegal act. Therefore, there is no ground for appeal against the above deduction by the defendant company.

In addition, the defendant company revised the interest rate under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings during the course of the final and conclusive judgment before the final and conclusive judgment, and the defendant company has paid to the plaintiff the amount of 78,235,89 won in lump sum and 5% per annum under the Civil Act from February 23, 2000 to May 21, 2003 and damages for delay at the rate of 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment. However, the defendant company claims the deduction of the amount equivalent to the damages for delay since the plaintiff made unjust enrichment with respect to the amount of 18,122,863 won, which is the difference between the plaintiff and the damages for delay, by paying to the plaintiff the full amount of 25% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings before the final and conclusive judgment of the previous suit.

The amount equivalent to the wages that the Plaintiff received from the Defendant Company cannot be deemed to be based on the final judgment of the previous suit even if it is based on the assertion of the Defendant Company, and even if it constitutes unjust enrichment, the Defendant Company paid to the Plaintiff, even though it was aware that there was no liability equivalent to the above difference. Thus, this cannot be claimed for the return of the amount because it constitutes a non-debt repayment as stipulated in Article 742 of the Civil Act. Therefore, there is no ground for

D. The assertion and judgment of the defendant company

The defendant company also asserts that the defendant company cannot claim consolation money on the premise that the dismissal in this case constitutes a tort against the defendant company, since it is objectively clear that the ground for dismissal was intentionally created or that the ground for dismissal against the plaintiff was not the ground for dismissal even though there was no reason to punish the plaintiff. Although the defendant company could easily know such circumstances, it does not constitute disciplinary action by abusing the right to discipline. However, the plaintiff's assertion is merely seeking additional payment of compensation under the collective agreement in this case, and it does not claim compensation on the premise that the dismissal in this case constitutes a tort. Thus, the defendant company's assertion is groundless since it does not claim compensation on the premise that the dismissal in this case constitutes tort.

4. Conclusion

Thus, the defendant company is obligated to pay to the plaintiff 230,145,837 won and damages for delay at the rate of 5% per annum from August 9, 2005 to December 18, 2008, which is the sentencing date of this case, and 20% per annum (the Civil Act) from the next day to the day of full payment, to the day of full payment. Thus, the plaintiff's claim is accepted within the above recognition scope. It is so decided as per Disposition by the court below.

Judges Lee Dong-hwan