207Na125194 Invalidity of Dismissal, etc.

○○ (Maximum○)

A person shall be appointed.

Law Firm LLC et al.

Attorney Gangnam-chul et al.

National Health Insurance Corporation

A person shall be appointed.

For the transfer of representative director

Attorney Kim Han-soo, Counsel for the plaintiff-appellant

Seoul Western District Court Decision 2007Gahap4318 Decided November 8, 2007

May 23, 2008

July 25, 2008

1. Revocation of a judgment of the first instance;

2. The defendant confirmed on March 16, 2007 that his automatic retirement against the plaintiff is null and void.

3. The defendant shall pay to the plaintiff money calculated at the rate of KRW 3,901,279 per month from March 17, 2007 to the plaintiff's reinstatement.

4. All costs of the lawsuit shall be borne by the defendant.

5. Paragraph 3 can be provisionally executed.

The decision is as follows: (a) The plaintiff stated that "the dismissal" was made on March 16, 2007, but this is a ipso facto retirement.

The ratio seems to be written in writing).

1. Facts of recognition;

The following facts are not disputed between the parties, or may be recognized by comprehensively taking account of the overall purport of the pleadings as to Gap evidence 1, 3, Eul evidence 1, Eul evidence 2-1, Eul evidence 2-3, Eul evidence 3, and 4. The defendant Corporation was a corporation in charge of all affairs related to the national health insurance under the National Health Insurance Act, and the plaintiff was employed by the defendant Corporation on January 1, 1993 as of March 23, 2007 by the defendant Corporation's office head office in Gwangju Special Metropolitan City, the defendant Corporation was employed as a Grade-5 employee of the general management office.

B. In addition, the Plaintiff was working as the secretary-general of the Democratic Labor Group (a union member of the Korea Social Insurance Labor Union established with employees of the Defendant Corporation) of the Jeonnam Headquarters under the Jeonnam Headquarters of Gwangju, Gwangju, and decided to jointly participate in the strike by requesting the improvement of wages and working conditions at the x 10 non-regular sub-councils established by the 10 sub-committee employees of the Y Y Y Y Y Y YP, thereby engaging in the strike while requesting the improvement of wages and working conditions.

On October 25, 2005, the Plaintiff participated in the 'Y-nam Labor Relations Business and the Hanam-dong Local Civil Substitute Games' to take part in the 'V-non-regular workers' strike, and the Plaintiff instigated the participants to enter the P plant in the society of the above assembly.

C. On August 18, 2006, the Plaintiff was indicted on charges of special obstruction of performance of official duties, etc. in relation to the above assembly and was sentenced to a suspended sentence of three years in the year and June, 2006, and the Plaintiff’s appeal (Seoul High Court 2006No********) and the appeal (Supreme Court Decision 2006Do*******) were dismissed, and the judgment of the first instance court on March 15, 2007 became final and conclusive.

D. On March 23, 2007, Defendant Corporation issued a ipso facto retirement disposition against the Plaintiff on March 16, 2007 (hereinafter “instant ipso facto retirement disposition”) on the ground that the conviction against the Plaintiff was finalized pursuant to Article 83 of the personnel regulations of Defendant Corporation.

E. A person who falls under any of the following subparagraphs shall not be appointed as an employee under Article 8 (Disqualifications):

4. A person who was sentenced to imprisonment without prison labor or a heavier punishment and for whom two years have not passed since the period of the suspension of execution expires;

Article 83 (Ipso Facto Retirement) If an employee falls under any of subparagraphs 1 through 4 and 6 through 8 of Article 8, he shall automatically retire: Provided, That this shall not apply to a person who has been subjected to a suspended sentence of imprisonment without prison labor or heavier punishment due to a traffic accident.

2. Judgment on the plaintiff's assertion

A. The summary of the argument (1) The instant disposition constitutes dismissal due to its nature. The Plaintiff’s act not only is related to the duties of the Defendant Corporation, but also cannot be deemed to have damaged the honor or credit of the Defendant Corporation due to the Plaintiff’s act. Therefore, there is no justifiable reason for the aforementioned ipso facto retirement disposition. (2) Although the articles of incorporation of the Defendant Corporation only provide disciplinary dismissal and ex officio dismissal for the reason of loss of status against the employee’s will, it is against the articles of incorporation that stipulate ex officio retirement without delegation of the articles of incorporation in the personnel regulations, which are subordinate regulations, the personnel regulations on ipso facto retirement are invalid

(3) Since the instant disposition constitutes an important matter concerning the appointment or personnel affairs of an employee, it must undergo deliberation by the ordinary personnel committee, provide the Plaintiff with an opportunity to vindicate his own position and submit favorable materials, but the instant ipso facto retirement disposition does not go through the aforementioned procedures. (4) Therefore, the instant ipso facto retirement disposition is null and void as there is no substantive and procedural justification, and thus, the Defendant Corporation is obliged to pay the Plaintiff the amount equivalent to the wages that the Plaintiff would have received if the Plaintiff would have not been subject to the Plaintiff’s ipso facto retirement from March 17, 2007 to the Plaintiff’s ipso facto retirement.

B. Whether the instant ipso facto retirement disposition is justifiable

First, we examine the validity of Article 83 of the Personnel Management Rules of Defendant Corporation, which is the basis provision on the disposition of the instant ipso facto retirement.

According to the evidence Nos. 3 and 4, Article 16 of the articles of incorporation of the defendant corporation provides that "the chief director shall appoint or dismiss employees under the title of "the appointment or dismissal of employees" under the personnel regulations, and Article 17 provides that "the employees of the corporation shall not be dismissed against their will except where they are subject to disciplinary action or ex officio dismissal under the title of "the status guarantee of employees" as prescribed by the personnel regulations. The personnel regulations delegated by the articles of incorporation of the defendant corporation provide that "the grounds, types, procedures, etc. of disciplinary action shall be included in Chapter 7, and Article 85 provides that "the grounds and procedures for ex officio dismissal shall be included in Article 83, as well as that of Article 83 shall be included in Article 83.

According to the above facts, it is clear that Article 17 of the articles of incorporation of the defendant Corporation is a status guarantee of the employee, and its contents are to limit the case where the person who has the authority to appoint and dismiss the employee against his will among the matters concerning the appointment and dismissal of the employee provided for in Article 16 of the articles of incorporation. Thus, the personnel management regulations enacted by delegation of the articles of incorporation do not violate Article 17 of the articles of incorporation, and such regulations are null and void. Article 83 of the personnel management regulations clearly stipulate a disciplinary dismissal as well as ex officio dismissal as stipulated in Article 17 of the articles of incorporation, because Article 17 of the articles of incorporation provides a disciplinary dismissal as a reason which may be dismissed against his will and ex officio dismissal, it is obvious that the disposition of this case based on the above personnel management regulations is null and void because there is no justifiable reason (see Supreme Court Decision 91Da27556 delivered on September 8, 192).

In addition, as long as the instant disposition is deemed null and void based on Article 83 of the Regulations on Personnel Affairs null and void in violation of Article 17 of the Articles of Incorporation of the Defendant Corporation, the remaining arguments of the Plaintiff are not judged separately

C. Defendant Corporation’s obligation to pay the amount equivalent to the wages (1) of this case is null and void as seen earlier. Accordingly, despite the instant ipso facto retirement disposition, the labor contract between the Plaintiff and Defendant Corporation remains effective, and even if the Plaintiff was unable to actually provide labor due to the instant ipso facto retirement disposition, it is due to the body of acceptance by Defendant Corporation. As such, Defendant Corporation is obligated to pay to the Plaintiff the amount equivalent to the wages that the Plaintiff would normally have received if the Plaintiff provided to the Plaintiff from the day following the date of the instant ipso facto retirement disposition until the date the Plaintiff was reinstated. (2) In full view of the purport of arguments in the statement of evidence No. 3, the average wages that the Plaintiff received from the Defendant Corporation before ipso facto retirement disposition of this case can be acknowledged as constituting grounds for the 3,901,279, as indicated in the attached Form No. 3, and thus, Defendant Corporation is obligated to pay the Plaintiff’s wages at the rate of 3,901,279 won to the Plaintiff from March 17, 2007.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance which has different conclusions is unfair, and it is so decided as per Disposition by cancelling it and accepting the plaintiff's claim.

Justices Kim Jong-chul

Judges Cho Jin-chul

Judges Kim Jong-do

A person shall be appointed.

A person shall be appointed.