2011Da98457 Nullification of dismissal, etc.

A

B Stock Company

Supreme Court Decision 2010Da21962 Decided March 24, 2011

Seoul High Court Decision 2011Na30859 Decided October 21, 2011

June 28, 2012

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

If a person subject to disciplinary action is ordered to give an opportunity to defend himself/herself necessary in accordance with the provisions of the collective agreement or rules of employment, etc., the disciplinary action, which was taken without going through such procedures, shall be null and void in principle. However, if a person subject to disciplinary action does not provide any procedure concerning the provision of opportunity to attend and state his/her opinion, or if it is merely voluntary, the disciplinary action shall not affect the validity of the disciplinary action even if it was taken without going through such procedure (see, e.g., Supreme Court Decision 92Da4274, Jul. 13, 1993).

Examining the reasoning and records of the judgment below in light of the above legal principles, the defendant's disciplinary provision only provides that if the disciplinary committee deems it necessary for investigation of facts, it may hear the party's written or oral statement, and it does not provide that the opportunity to make a statement against a person to be disciplined is necessary. Thus, the defendant's disciplinary committee sent a written request to the plaintiff on January 14, 2000 to submit written evidence to the plaintiff on the ground of disciplinary dismissal on January 21, 200 as stated in its holding on January 21, 200 and did not provide the plaintiff with an opportunity to make a statement on the remaining three grounds, such as that he sent a written request to submit written evidence to the plaintiff on January 14, 200 for five of them and recorded the conversation with the same member, it cannot be said that the defendant's disciplinary action against the plaintiff of this case is null and void.

The judgment of the court below to the same purport is just, and there is no illegality that affected the conclusion of the judgment by misunderstanding the legal principles on discretion or defense in the disciplinary procedure.

2. Regarding ground of appeal No. 2

The former Labor Standards Act (amended by Act No. 8293 of Jan. 26, 2007) which was applied at the time when the Defendant’s disciplinary committee decided to dismiss the worker, provided that the employer does not have any provision such as Article 27(1) of the current Labor Standards Act which provides that the grounds for dismissal and the time of dismissal shall be notified in writing. In addition, the Defendant’s disciplinary provision also provides that “if the Disciplinary Committee makes a disciplinary decision, the party shall be notified of the details of the disciplinary decision.” This provision provides that the notification obligation of the result of the disciplinary decision, so long as the contents of the notification are included in the major grounds for disciplinary decision and the contents of the disciplinary decision, it shall not be construed that each of the grounds for dismissal are not specified in detail.

In the same purport, the decision of the court below which rejected the plaintiff's assertion that there is a procedural error in the procedure for which specific grounds for disciplinary action are not provided in the notice of decision of the disciplinary committee of this case is justifiable, and there is no violation of law that affected the conclusion of the judgment by excluding the interpretation of Article 16 of the disciplinary regulation or by

The Supreme Court precedents cited in the grounds of appeal are related to the case to which Article 27 (1) of the current Labor Standards Act applies, and it is not appropriate to invoke the previous case in this case.

3. As to the third ground for appeal

The ground of appeal in this part is that the defendant's disciplinary committee did not give the plaintiff an opportunity to make a statement as to the three grounds above, and the decision of disciplinary action was made, and the review procedure based on this is also illegal.

However, as determined earlier, the defendant's disciplinary committee cannot be deemed to have a duty to give the plaintiff who is a person to be disciplined an opportunity to make a statement, and it cannot be deemed that the defendant had a duty to notify the individual disciplinary reasons under the Labor Standards Act or the defendant's disciplinary regulations at the time. Thus, the above ground of appeal that the defendant's disciplinary dismissal of the disciplinary action in this case was defective in the review

4. As to the fourth ground for appeal

The allegation in the grounds of appeal in this part is that the Secretariat of each disciplinary committee in receipt of a request for reexamination under Article 19 of the Defendant's disciplinary provision provides that the grounds for reexamination must be notified in advance to the disciplinary committee members, but the defendant merely failed to notify the committee members of the grounds for reexamination that the plaintiff requested postponement of the disciplinary committee but did not accept a request for postponement of the disciplinary committee, and thereby notified the plaintiff to the extent that "the plaintiff stated that he did not object to a series of violation of the disciplinary rules applied by the disciplinary committee". Accordingly, the disciplinary committee members submitted an opinion on the reexamination under the circumstances that the plaintiff did not know of the grounds for reexamination. If the disciplinary committee members were to know of the grounds for reexamination which the plaintiff asserted, the result of reexamination would have changed if the committee members were to know of the grounds for reexamination which the plaintiff argued, and the court below did not make any decision on such defects, which affected the conclusion of the judgment.

However, the reasoning of a written judgment is sufficient to indicate the judgment on the parties’ allegations and other means of offence and defense to the extent that it can be recognized that the text is justifiable, and it does not necessarily have to be directly determined on all parties’ allegations or means of offence and defense. Therefore, even if no specific and direct judgment is indicated on the parties’ allegations in a written judgment, if it is possible to find out that the allegations were quoted or rejected in light of the overall purport of the reasoning of the judgment, it cannot be deemed omission of judgment. Even if the court did not make a judgment, if it is obvious that the allegations were rejected even if it was not actually determined, it cannot be said that there was an error of omission of judgment due to lack of influence on the conclusion of the judgment (see, e.g., Supreme Court Decision 2006

According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion that the plaintiff's assertion to the same purport as this part of the ground of appeal was alleged in the ground of appeal and that there was no error in the retrial procedure. In light of the above legal principles, the court below rejected the plaintiff's comprehensive decision as to the above argument, and therefore, did not err in the judgment below.

In addition, Article 19 of the Defendant’s Disciplinary Rule does not necessarily mean that the Secretariat of the Disciplinary Committee notifies the person subject to disciplinary action of the grounds for a retrial of the content of the claim for a retrial, and it does not necessarily mean that the notification of the grounds for a retrial raised by the person subject to disciplinary action in a reasonable manner should be given. This part of the grounds for appeal does not determine that the notification of the grounds for a retrial of this case, which is known in the ground for appeal itself or recognized by the record, fails to meet such requirements. Therefore, it cannot be deemed that there is procedural defect related to the dismissal of the

5. Ground of appeal No. 5

Article 19 of the Criminal Procedure Act provides that the Secretariat in receipt of a request for review shall notify each disciplinary committee of the facts, reasons for review, date and place of review in advance, but the disciplinary committee which is difficult to attend the Review Committee may submit its opinion on the review in writing. In addition, Article 11 of the Disciplinary Regulations provides that the disciplinary committee may make a written resolution if necessary, and other cases such as the members of office staff below higher than the level of deputy head office may be deliberated and decided by the head of the business office after hearing the opinion of the Business Headquarters Disciplinary Committee and the opinion of the Secretariat of the Accident Disciplinary Committee, so it does not seem that there is a final voting right on the review by the Review Disciplinary Committee.

Examining the above circumstances in light of the records, the court below determined that the review on the dismissal of the disciplinary action of this case based on the facts stated in its holding is reasonable to deem that the new review was not held at a specific date and at a specific place, but it was not different from that held by the new disciplinary committee in the manner of asking the members of the disciplinary committee's opinion on the request for a retrial and providing their answers thereto according to the written submission of opinions set forth in the defendant's disciplinary regulations. Ultimately, the decision of the court below that the new disciplinary action of this case did not have any unlawful grounds for nullifying the disciplinary action of this case, and that this is just. Contrary to the defendant's grounds for appeal, it did not err in the misapprehension of Article 19 of the disciplinary action regulations

6. As to the grounds of appeal Nos. 6 and 7

The Plaintiff asserted at the lower court on September 5, 201 that with respect to the illegality of the instant standby order through the statement in preparatory brief (2) on September 5, 2011, it is necessary to determine the illegality of the instant standby order as a preliminary question on the dismissal of the instant disciplinary action, and that there is a need to further deliberate on the substantive defect of the grounds for the instant disciplinary action, including this point, since its substance is not stolen but copied with respect to the report on the theft of diskettes.

As to this, the court below rejected the plaintiff's assertion different from the plaintiff's previous assertion on the ground that it constitutes a means of attack and defense against actual time limit, and rejected the plaintiff's claim seeking confirmation of invalidity of the standby order in the court below prior to remand, which became final and conclusive as the plaintiff did not appeal, and this is not included in the judgment of the court below after remand.

In light of the relevant legal principles and records, all of the above measures of the court below are justified, and there is no violation of law that affected the conclusion of the judgment by either misapprehending the legal principles on the method of attack and defense by the time limit or omitting judgment, as otherwise alleged in the

7. As to ground of appeal No. 8

The allegation in the grounds of appeal in this part is that the court below recognized the physical threat to the company and the fact-finding related to the grounds for disciplinary action as the grounds for a legitimate disciplinary action against the company's confidential recording of the contents of conversation with the union members, and further recognized the fact-finding related to the grounds for a disciplinary action. This part of the judgment of the court below

However, the recognition of facts and the selection and evaluation of evidence, which are conducted on such premise, belong to the exclusive authority of the fact-finding court unless they exceed the bounds of the principle of free evaluation of evidence. In light of the record, even after examining the reasoning of the lower judgment, the lower court does not seem to have exceeded the bounds of the principle of free evaluation of evidence. Therefore, the allegation in the above ground of appeal is nothing more than

8. As to ground of appeal No. 9

The allegation in the grounds of appeal in this part does not constitute a justifiable ground for disciplinary dismissal for the reason that the defendant's disciplinary committee did not provide the plaintiff with an opportunity to make a statement. Therefore, the court below's decision should have judged whether a disciplinary action is appropriate solely on the remaining grounds except the above grounds. The court below's decision is unlawful.

However, as determined earlier, the Defendant’s disciplinary provision does not provide that the opportunity to make a statement against a person subject to disciplinary action is not required, and thus, it cannot be said that it does not constitute a justifiable ground for disciplinary dismissal solely on the ground that it is a ground for disciplinary dismissal for which no opportunity to make a statement has been granted. Therefore, this part of the ground of appeal on a different premise is without merit without further review.

9. As to the assertion on violation of the Attorney-at-Law Act

A. The Plaintiff’s attorney at the previous appellate court’s attorney representing the Defendant, among the attorneys at the attorneys-at-law who violated Article 31(1)3 of the Attorney-at-Law Act, was erroneous in the judgment of remanding the previous case. The Plaintiff asserted that the judgment of the court below after remanding the case was unlawful due to such error.

However, even if an attorney-at-law was in violation of Article 31 (1) 3 of the Attorney-at-Law Act, if the other party did not raise any objection against it, such litigation has full effect under the Civil Procedure Act (see, e.g., Supreme Court en banc Decision 72Da1183, May 13, 1975). According to the records, the plaintiff did not raise any objection against the circumstances as alleged in the previous remand trial and even after the remand of the case, until the closing of argument in the court below.

Therefore, since the procedural acts of the defendant's attorney at the previous appellate court have a complete effect under the Civil Procedure Act, the plaintiff's above assertion cannot be accepted without examining whether there are circumstances, such as the plaintiff's assertion.

B. The plaintiff asserts to the purport that if there are grounds for a limitation on case acceptance under Article 31 (1) 3 of the Attorney-at-Law Act, the law firm shall be subject to the limitation on case acceptance.

Article 57 of the Attorney-at-Law Act provides that Article 31 (1) shall apply mutatis mutandis to law firms, and Article 50 (1) of the Attorney-at-Law Act provides that law firms shall perform their duties in the name of corporation. In light of this, the limitation on acceptance of cases pursuant to Article 31 (1) of the Attorney-at-Law Act, which provides for the grounds for limitation on acceptance of cases, shall be applied mutatis mutandis to law firms pursuant to Article 57 of the Attorney-at-Law Act, and Article 31 (1) of the Attorney-at-Law Act, which provides that the limitation on acceptance of cases shall be delegated by one of the parties to the case

However, Article 31 (1) 3 of the Attorney-at-Law Act provides that restrictions on attorney-at-law's acceptance of cases concerning public officials, mediators, or arbitrators, unlike subparagraphs 1 and 2 of Article 31 of the Attorney-at-Law Act. It is clear that a law firm cannot be a public official, mediators, or arbitrator as provided in the above provision. In addition, when Article 31 (2) of the Attorney-at-law Act applies Article 31 (1) 1 and 2 of the Attorney-at-law Act, a law office which has two or more attorneys-at-law who are not law firms, limited liability law firms, or law firms, but is operated in the form of uniform acceptance and handling of cases or other attorney-at-law's affairs, and distributes profits or shares expenses among them except Article 31 (1) 3 of the Attorney-at-law Act, it is difficult to interpret that an attorney-at-law who is subject to restrictions on acceptance of cases pursuant to Article 31 (1) 3 of the Attorney-at-Law Act is an individual who performed duties as a public official, etc.

The Supreme Court's precedents cited by the plaintiff are related to Article 31 (1) 1 of the Attorney-at-Law Act, which are different from this case concerning Article 31 (1) 3 of the Attorney-at-Law Act.

Ultimately, we cannot accept this part of the Plaintiff’s assertion.

10. Conclusion

Therefore, the appeal is dismissed by the assent of all participating Justices, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

The presiding judge shall have jurisdiction over the case.

Justices Lee In-bok

Justices Park Jae-hee in charge