Requirements for the employer's unfair dismissal to constitute a tort

In general, if an employer's dismissal of a worker's disciplinary action is judged to be null and void due to a lack of justifiable grounds, such dismissal can not immediately constitute a tort. The case should be the case where it is evident that the abuse of the right of disciplinary action can not be accepted under the sound social norms or social norms, such as where it is objectively evident that the employer intentionally mobilized the means of disciplinary action on the ground of a nominal dismissal under the intent to find the worker at the workplace even though the employer did not have any grounds for disciplinary action against the worker, or that the fact constituting the ground for dismissal does not constitute a ground for disciplinary action, such as the rules of employment, or cannot be considered a ground for disciplinary action, or where it is evident that the abuse of the right of disciplinary action can not be accepted under the sound social norms or social norms.

Article 750 of the Civil Act and Article 27 (1) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) (see current Article 30 (1) of the Labor Standards Act)

Supreme Court Decision 95Da11696 delivered on February 27, 1996 (Gong1996Sang, 1081) Supreme Court Decision 95Da6823 delivered on April 23, 1996 (Gong1996Sang, 1552) Supreme Court Decision 95Da24821 delivered on January 21, 1997 (Gong197Sang, 597)

Plaintiff

Hanyang Enterprise Co., Ltd. and one other (Defendant-Appellee, Counsel for the defendant-appellant)

Seoul High Court Decision 96Na42439 delivered on April 8, 1997

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

The court below, citing the reasoning of the judgment of the court of first instance, where an employer's disciplinary action against a worker is judged to be null and void in general because it is not legitimate, the dismissal can not immediately constitute a tort, and the employer's intent to take disciplinary action against a worker is to find the worker at the workplace without any grounds to discipline, and it is objectively clear that the dismissal intentionally took the means of disciplinary action on the ground of a nominal dismissal under the intention of the employer to find the worker at the workplace, or that a certain ground for dismissal does not constitute a ground for disciplinary action, such as rules of employment, or a ground for disciplinary action cannot be considered as a ground for disciplinary action, and it can be easily recognized if the employer took full care of such circumstance, even though it is obvious that abuse of the right of disciplinary action can not be permitted under sound social norms or social norms (see Supreme Court Decision 92Da43586, Oct. 12, 193). The court below rejected the plaintiff's claim for disciplinary action against the defendant 2 as well as the defendant 2's ground for appeal.

In addition, the reasoning of the judgment of the court of first instance as to the extinctive prescription of the right to claim damages is merely an additional statement, and even if there were errors as alleged in the ground of appeal in that part, the argument does not affect the conclusion of the judgment. The ground of appeal cannot be accepted.

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

Justices Cho Chang-hun (Presiding Justice)