Plaintiff (Law Firm Lins, Attorneys Lee Han-hoon et al., Counsel for plaintiff-appellant)

The Chairman of the National Labor Relations Commission

The Small and Medium Enterprise Research Institute (Law Firm Lee & Lee, Attorneys Cho Jong-soo, Counsel for defendant-appellant)

April 3, 2019

Seoul Administrative Court Decision 2017Guhap64064 decided February 28, 2018

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff, including the part arising from the supplementary participation.

The judgment of the first instance court shall be revoked. The decision of the Central Labor Relations Commission on March 29, 2017 between the Plaintiff and the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) shall be revoked. The decision of the first instance shall be revoked.

1. Details of the decision on retrial;

On March 10, 1994, the Plaintiff first concluded a labor contract with the Intervenor by stipulating the contract term as “from March 10, 1994 to March 9, 195,” and concluded a labor contract by stipulating that “from March 10, 1994 to March 9, 195, the Plaintiff entered into a labor contract again at each time when the contract term expires, and on December 31, 2013, the contract term as “from January 1, 2014 to December 31, 2016”.

On September 9, 2016, the Intervenor issued a summary order of KRW 15 million to the Plaintiff as a crime of taking property in breach of trust (hereinafter “instant disciplinary cause”), and notified the Plaintiff that the Plaintiff would dismiss the Plaintiff as of September 23, 2016, based on Article 39 (Disciplinary Action) of the Intervenor’s Personnel Regulations, Articles 9 (Disciplinary Action Subject to Disciplinary Action), 10 (Guidelines), and 14 (Effect of Disciplinary Action) of the Employee Disciplinary Rules (hereinafter “instant dismissal”).

The Plaintiff asserted that the dismissal of the instant case constitutes unfair dismissal, and filed an application for remedy with the Seoul Regional Labor Relations Commission (Seoul District Labor Relations Commission Decision 2016Du2129). However, the Seoul Regional Labor Relations Commission dismissed the Plaintiff’s application for remedy on December 13, 2016. On the other hand, the Plaintiff filed an application for review with the National Labor Relations Commission (Central District Labor Relations Commission Decision 2017Du73), but the National Labor Relations Commission dismissed the Plaintiff’s application for review on March 29, 2017 on the ground that the legitimacy of the grounds for disciplinary action is recognized and the disciplinary action is appropriate (hereinafter “instant decision”).

[Ground of recognition] No dispute, Gap evidence 1, 2, Eul evidence 5, Eul evidence 2, Eul's evidence 2 (the additional evidence includes the number; hereinafter the same shall apply), the purport of the whole pleadings

2. The intervenor's defense prior to the merits and the judgment thereon

A. Summary of the intervenor's assertion

Article 4(1)5 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term Act”) and Article 3(1)1 of the Enforcement Decree of the Fixed-Term and Part-Time Workers Act do not have a legitimate expectation that the labor contract will be renewed. The labor contract between the Plaintiff and the Intervenor terminated on December 31, 2016. Accordingly, the Plaintiff’s benefit to be relieved was extinguished by the instant lawsuit. Therefore, the instant lawsuit is unlawful because there is no benefit to the lawsuit.

B. The legal principle on the legitimate right to expect the renewal of a fixed-term worker's employment contract

In full view of the circumstances surrounding the pertinent labor relations, such as the motive and circumstance in which the labor contract is concluded and the standard for renewal of the contract, whether or not the requirements or procedure for renewal are established, the actual condition thereof, and the contents of the work performed by the employee, etc., in a case where the employer is acknowledged to have a legitimate expectation that the labor contract is renewed if certain requirements are met between the parties to the labor contract, the employer’s unfair refusal of renewal of the labor contract is without any effect as it is unfair, and the labor relationship after the termination of the contract is identical to the renewal of the previous labor contract (see, e.g., Supreme Court Decision 2007Du1729, Apr. 14, 2011).

In addition, if an employer can hire a fixed-term worker within two years by the enforcement of the Fixed-term Workers Act, and if the total period of employment of a fixed-term worker exceeds two years, the legislative purport of the above provision is basically to guarantee the status of workers by preventing abuse of a fixed-term employment contract, it cannot be deemed that the legitimate expectation right for the renewal of a fixed-term worker already formed before the enforcement of the fixed-term employment contract is excluded or restricted (see Supreme Court Decision 2011Du12528, Feb. 13, 2014). Furthermore, it does not restrict the formation of legitimate expectation right for the renewal of a fixed-term worker under Article 4 of the Fixed-term Workers Act (see Supreme Court Decision 2014Du45765, Nov. 10, 2016). This is reasonable to deem that an employer can use a fixed-term worker exceeding two years based on the proviso to Article 4 of the Fixed-term Workers Act.

C. As to the existence of a labor contract relationship

Comprehensively taking account of the respective descriptions and the overall purport of arguments in Eul-B and Eul-B, the facts that the intervenor has renewed his employment contract over 13 times in total for about 23 years from 1994 to 2016 can be acknowledged as follows.

The term of the employment contract between 10.3 and 10.3 2.3 (one year from March 10, 1994 to March 9, 195) 8, 2004 to June 30, 2005 (one year from March 10 to March 9, 1997) "the 20.3 months from July 1, 2005 to December 3, 1997 (two years) 10.3 (one year from March 1, 2005 to six months from December 31, 2006) 20.3 (Special Advisor from March 10 to 21.3 (one year and six months) 10.3 (Special Advisor from March 10 to September 21, 2007) 1 to 20.3 (one year from March 21, 2019 to September 31, 2019).

In the event that the term of employment contract expires for the employees of the Intervenor including the Plaintiff, the Intervenor appears to have concluded the employment contract again by setting the term of employment contract, except in extenuating circumstances. On the contrary, there is no sufficient evidence to deem that the Intervenor determined whether to conclude the employment contract by examining the appropriateness of re-employment, including whether the evaluation results meet the conditions of re-employment.

In full view of these facts, even if the Plaintiff was in the position of fixed-term worker as alleged by the Intervenor, it is reasonable to determine that there was a legitimate expectation right to renew the labor contract to the Plaintiff, as the Plaintiff and the Intervenor created a trust relationship that the labor contract is renewed, except in extenuating circumstances. Moreover, in light of the fact that the circumstance that the Plaintiff acquired a doctor’s degree cannot be a ground to deprive the Plaintiff of the status of workers, the mere fact that the Plaintiff acquired a doctor’s degree and concluded the labor contract as a researcher cannot be deemed to have waived or excluded the right to expect that is recognized as above at the time of the conclusion of the labor

However, there is no sufficient evidence as to the purport that the intervenor expressed his/her intent to refuse to renew the labor contract with the Plaintiff at the time of the expiration of the term of the labor contract with the Plaintiff, in addition to notifying the Plaintiff of the instant dismissal. Moreover, the expression of intention to dismiss and refuse to renew the labor contract with the Plaintiff differs from the purpose, requirements, procedure, legal effect, etc. of the system, and thus, notification of dismissal as a disciplinary action

Therefore, if the dismissal of this case is invalidated as alleged by the Plaintiff, it is reasonable to view that the labor relationship remains effective by renewal of the labor contract between the Plaintiff and the Intervenor with the same content as the previous one after the term of the labor contract expires on December 31, 2016. The Intervenor’s defense prior to the merits, which differs from the premise, is without merit.

3. Whether the decision on the retrial of this case is lawful

A. Whether the instant grounds for disciplinary action exist

1) Summary of the Plaintiff’s assertion

Of the instant disciplinary grounds, a summary order issued to the Plaintiff among the instant disciplinary grounds cannot be deemed the Plaintiff’s act. Two years have already elapsed since the statute of limitations was imposed on the receipt of money and valuables, which are criminal acts in the summary order. Such receipt of money and valuables by the Plaintiff cannot be a new disciplinary ground separate from the receipt of money and valuables due to an unexpected reason. Therefore, the Plaintiff’s receipt of the summary order cannot be a new disciplinary ground separate from the receipt of money and valuables.

In addition, the Plaintiff did not report the receipt of money and valuables and the progress of criminal procedures related thereto to the press, and the Intervenor’s “public disclosure system of management information of public institutions” (hereinafter “ALIO”) was not disclosed before the Intervenor’s disciplinary action, and the fact that the Plaintiff received a summary order due to the crime of taking property in breach of trust was not widely known. Therefore, there was no possibility that the Intervenor’s prestige might be significantly damaged. Accordingly, the instant grounds for disciplinary action do not exist.

(ii) the facts of recognition

A) The Intervenor’s status as a public institution

An intervenor is a foundation which is established on September 2, 197 and established on March 23, 1987 after obtaining permission for establishment on March 23, 1987 and is engaged in a comprehensive research, survey, policy proposal, etc. for the development of the national economy and small and medium enterprises.

The Act on the Management of Public Institutions applied to intervenors has introduced an disclosure system (ALIO) that announces major management information for five years to strengthen transparency in the management of public institutions and citizen monitoring function in around 2006, and has also provided that the disclosure system is mandatory to disclose the result of disciplinary action against executive officers and employees of public institutions since September 2016.

B) Receipt and detection of money and valuables by the Plaintiff

From July 1, 2008 to June 30, 2012, the Plaintiff was the president in the order of the Intervenor’s (direction omitted)’s (the Secretariat was abolished by the organizational restructuring on July 1, 2012) who was in general in charge of directing and supervising the entire affairs of the Intervenor. The Intervenor was performing interior works for the relocation of the office from June 11, 2012 to July 15, 2012. The Plaintiff, who was in charge of interior works, including the selection of the contractor, was in charge of the construction work three times in total (i.e., KRW 30 million) from June 22, 2012 to August 24, 2012 (i.e., KRW 10 million from June 22, 2012 + KRW 30 million from July 4, 2012 to KRW 7 million from July 24, 2012).

In the process of auditing participants around December 2015, the Office for Government Policy Coordination established under the Office for Government Policy Coordination confirmed that the Plaintiff received not only KRW 30,000 as above, but also performed tasks of non-reported research, and paid service costs.

C) Summary order against the plaintiff and injury to the intervenor's prestige

On February 2, 2016, the Small and Medium Business Administration, which is the competent authority for the intervenors, notified the intervenors of the following measures and the result thereof by April 1, 2016:

Table 1 included in the main text, ① The time under which the “Accusation” is made to a person in charge of the receipt of money and valuables from the contractor and a responsible person (related person: the plaintiff et al.). ② The amount of research service costs incurred by the plaintiff et al. who did not make a report while conducting external research activities are recovered.

Accordingly, on March 28, 2016, the Intervenor filed an accusation with the competent investigation agency against the Plaintiff. On August 17, 2016, the Plaintiff was indicted for summary violation of trust and received a summary order of KRW 15 million from the Seoul Southern District Court (2016Da11869) on September 1, 2016. The Plaintiff filed an application for formal trial.

D) Disciplinary dismissal against the Plaintiff and its disclosure

On September 7, 2016, the personnel committee of the intervenor deliberated on the plaintiff as follows and decided on disciplinary dismissal (date: September 23, 2016).

Based on the suspicion of violation of trust in the main text, the prosecutor notified the police of his opinion to the prosecution, and the prosecutor took summary prosecution (a fine of KRW 15 million, and the date of disposition: August 17, 2016) and issued a summary order on September 1, 2016 at the Seoul Southern District Court. A public institution, including the past details of disciplinary action, whose purpose is to realize the public interest, is to realize the public interest of the researcher (the intervenor refers to the intervenor; hereinafter the same shall apply), is determined to have significantly damaged the prestige of the research institute (Article 9 of the Regulations on the Punishment of Employees).

Accordingly, the Intervenor notified the Plaintiff of the instant dismissal on September 9, 2016, and registered the “Disciplinary Action Date” on October 12, 2016 pursuant to Articles 11 and 12 of the Act on the Management of Public Institutions (ALIO) in the disclosure system (ALO).

E) The determination of conviction against the Plaintiff as to the circumstances subsequent to the dismissal of the instant case

On September 22, 2017, the Seoul Southern District Court (2016 High Court 2250) rendered a judgment of conviction of KRW 10 million against the Plaintiff as a crime of taking property in breach of trust. The Plaintiff appealed, but on October 19, 2018, the Seoul Southern District Court (2017No2104) dismissed the Plaintiff’s appeal to the effect that “The Plaintiff had any talk about the payment of the case cost, payment rate, etc., because there was an illegal solicitation, because there was a talk about whether the Plaintiff would pay the case cost to the person in charge of the construction before the final selection of the construction candidate company as the construction company.” The Plaintiff appealed again, but the Supreme Court (2018Do17453) dismissed the Plaintiff’s appeal on December 18, 2018.

[Reasons for Recognition] The aforementioned evidence, Gap evidence Nos. 6, 8, Eul evidence Nos. 1 to 3 and 7, and the purport of the whole pleadings

3) As to whether the instant grounds for disciplinary action exist

Comprehensively taking account of all the above facts and various circumstances revealed by the evidence Nos. 4 and 5, the grounds for disciplinary action that “the plaintiff committed an act significantly detrimental to the intervenor’s prestige due to the receipt of a summary order by receiving money or goods” fall under the independent grounds for disciplinary action distinct from the receipt of money or goods, and thus, the period of prescription has not yet expired, as well as the existence of the grounds for disciplinary action can be sufficiently recognized. Accordingly, the plaintiff’s assertion in this part is without merit.

(1) "An intervenor's act seriously undermines his/her prestige" as an independent disciplinary ground.

Article 39 (Disciplinary Action) of the Intervenor’s Personnel Regulations and Article 9 (Disciplinary Action Subject to Disciplinary Action) of the Employee Punishment Regulations stipulate “when the Institute violates the provisions of the Research Institute’s Regulations,” in addition to the grounds for disciplinary action, “when the Institute has committed an act significantly impairing the dignity of the Institute” as separate grounds for disciplinary action

Among these disciplinary reasons, the former aims at maintaining the order of the organization as the intervenor's research institute, but the latter aims at protecting the social status, reputation, or public confidence of the intervenor, which is a specialized research institute for the purpose of contributing to the development of small and medium enterprises by conducting a comprehensive investigation and research on the economic issues related to small and medium enterprises.

In addition, although the latter's disciplinary action requires that the employee's act outside the intervenor, the former disciplinary action does not necessarily require that the employee's misconduct outside the intervenor. As such, the former disciplinary action does not necessarily satisfy the latter's disciplinary action.

In addition, the latter does not result in close connection with the former disciplinary cause. In a case where the former disciplinary cause and the latter’s disciplinary cause fall short of time, in principle, the same should not be deemed to exist among the social factual relations in principle. Moreover, the Plaintiff’s violation of the Intervenor’s provision by accepting money and valuables and the Plaintiff’s act was discovered after several years, and the court issued a summary order to the Plaintiff, thereby causing the Plaintiff to issue the summary order, and there is no sufficient proof as to the special circumstance that the Intervenor’s prestige is identical in social factual relations.

In addition, while the intervenor's employees do not seriously undermine the intervenor's status by an act other than his/her duties, the intervenor's employees may sufficiently present the intervenor's status. Furthermore, in light of the fact that the intervenor is a public institution, the latter's grounds for disciplinary action can be deemed to have the objective as independent grounds for disciplinary action distinct from the former grounds for disciplinary action.

In full view of these circumstances, it is reasonable to view that the Intervenor’s act of seriously damaging the dignity of the Institute may be a separate disciplinary cause, in addition to taking the Intervenor’s act of violating the Intervenor’s provision as the subject of disciplinary action, and that the statute of limitations for the disciplinary action shall run separately for each

(2) The plaintiff's responsibility for damages to the intervenor's prestige

The Plaintiff’s receipt of money and valuables was revealed in the process of auditing the Intervenor, not by the Intervenor but by the Ministry for Government Policy Coordination affiliated with the Office for Government Policy Coordination. immediately thereafter, the said Ministry notified the Intervenor of the fact of receiving money and valuables to the Small and Medium Business Administration, which is the competent authority of the Intervenor, and the Small and Medium Business Administration ordered the Intervenor to file a complaint against the Plaintiff and to notify the result to the Intervenor. The Intervenor had no choice but to file a complaint with the investigative authority. The Prosecutor claimed for a summary order, and the court issued

In addition, at the time of deliberation of disciplinary dismissal in this case, the intervenor was planned to be audited by an external institution as a public institution. In addition, at the time of deliberation of the disciplinary dismissal in this case, the intervenor had already been registered in the public institution under the relevant statutes as a public institution and expected to make public the outline, accusation, disciplinary action, etc. Accordingly, when the intervenor's employee, such as the plaintiff, committed an illegal corruption related to his/her duties, there was a risk of serious damage to the intervenor's prestige by being informed of the details of the illegal corruption and the accusation and disciplinary action, even if the intervenor's internal auditor was not internal auditor, and by being informed externally by the external institution's auditor. In light of the intervenor's career, position, etc., it is reasonable to view that the plaintiff was sufficiently aware of such facts. Accordingly, it is reasonable to deem that the plaintiff's improper corruption was discovered as above and received a summary order as such belongs to the Plaintiff's scope of responsibility, and it is not a reason different from the Plaintiff's responsibility.

(3) Consideration of acceptance of money and valuables for deliberation on existence of a disciplinary cause.

The Intervenor’s personnel committee considered the Plaintiff’s acceptance of money and valuables in the process of deliberating on the existence of grounds for disciplinary action. Whether the Plaintiff’s act was detrimental to the Intervenor’s prestige and whether the Plaintiff’s criminal act was included in the Plaintiff’s mere fatherism, and whether the Plaintiff committed an act of corruption by abusing his/her position in the Intervenor. Therefore, examining the details of the Plaintiff’s money and valuables in deliberating on the existence of grounds for disciplinary action is justifiable as a necessary process.

In addition, it is true that the intervenor's personnel committee considered the intervenor's disciplinary action against the plaintiff. However, this is not intended to determine the existence of grounds for disciplinary action, but merely for the determination of disciplinary action. Therefore, it is not deemed that the intervenor's act was actually conducted and the plaintiff's acceptance of money and valuables was made as grounds for disciplinary action or double punishment was made.

(4) Large damage to the intervenor’s prestige.

In a series of processes from the detection of the fact that the Plaintiff received money from small and medium enterprises to the summary order therefor, the Intervenor has weak self-defensive capacity to the extent that he does not properly supervise the business-related criminal conduct of the Plaintiff (defensive omission), and without making self-defensive decision-making, the Intervenor was required to receive instructions from the competent authority, and there was no choice but to receive criticism, etc. that is a public institution that is going against the development of small and medium enterprises

In light of these circumstances, the purport of Articles 11 and 12 of the Act on the Management of Public Institutions that provide that public agencies shall disclose the request for disposition according to the result of the audit and the status of the operation of disciplinary action to the public disclosure system (ALIO) and the level of fairness and integrity that the intervenor has to prepare as a public agency is ordered to receive a summary order by receiving money from a small and medium enterprise having business-related relationship with the intervenor. The fact that the plaintiff, who was an employee of the intervenor, received money from the public agency, is sufficient to cause serious damage to the citizen's trust on the intervenor by having the citizen raise doubts about the fairness, integrity, etc. of the intervenor as a public agency. Even if such fact was not reported to the media, it is difficult

B. Whether the disciplinary discretion is exceeded and abused

Even if a disciplinary action does not constitute a disciplinary action, the materials for the deliberation and performance of a disciplinary person subject to disciplinary action, and the facts of a disciplinary action committed before or after the reason for the disciplinary action can be considered as materials for consideration from the disciplinary action (see Supreme Court Decision 2001Du10455, May 28, 2002). Moreover, a disciplinary action for which the statute of limitations has expired may also be considered as materials for consideration from the disciplinary action (see Supreme Court Decisions 94Da5294, Sept. 5, 1995; 2015Du46550, Nov. 26, 2015, etc.).

In general, the Plaintiff received KRW 30 million from the other party to the work, and received 30 million from the other party to the work, and filed a complaint for this reason, and was convicted of a fine of KRW 10 million due to the crime of breach of trust. Moreover, the fact of receiving and receiving money was discovered in the course of the audit by the Corruption Promotion Group established under the Office for Government Policy Coordination, thereby causing significant damage to the level of fairness and integrity required for the intervenors as a public institution. The amount of money and valuables received by the Plaintiff is the maximum amount of KRW 30 million. Moreover, on November 29, 2012, the Plaintiff was subject to the three-month disciplinary action of suspension from office on November 29, 2012, on the ground that the Plaintiff paid expenses without obtaining approval, on the ground that it was improper for the Plaintiff’s unjust payment of expenses, on the ground that it was an external suspension from office for the period of November 15, 2014, and was subject to disciplinary action on non-reported and welfare membership purchase and disciplinary action on December 324, 2016.

Considering these circumstances, it is difficult to view that a disciplinary action, which is objectively unreasonable and considerably inappropriate under the social norms, is objectively unreasonable, even if the intervenor sufficiently takes into account such circumstances as the Plaintiff’s work for about 20 years in 20 years and the Plaintiff’s various commendations, etc. were given to the Intervenor. Therefore, this part of the Plaintiff’s assertion is without merit.

C. Sub-decision

Therefore, the decision of the retrial of this case is legitimate.

4. Conclusion

The plaintiff's claim shall be dismissed without any justifiable reason. The judgment of the court of first instance that rejected the lawsuit in this case as unlawful is not justifiable, and thus, the judgment of the court of first instance shall be revoked and the case shall be remanded to the court of first instance, but since it was deliberated to the extent that it can render a judgment on the merits, this court shall render a judgment on the merits in accordance with Article 8 (2) of the Administrative Litigation Act and the proviso of Article 418 of the Civil Procedure Act. The plaintiff's appeal shall be dismissed by maintaining the judgment of the court of first instance that is not favorable to

Judges Park Jong-nam (Presiding Judge)