A. Whether the date, time, place, etc. of the disciplinary committee to be held without a party's assertion in the case of nullification of dismissal violates the principle of pleading

(b) Whether the employer is able to cancel the disciplinary action and take a new disciplinary measure;

(c) Whether a new disciplinary action is against the principle of res judicata or the principle of good faith, after revocation of the disciplinary dismissal disposition;

D. Whether the proviso of Article 3 subparag. 4 of the Trade Union Act applies to the validity of an individual labor contract

(e) Whether the act of participating in an illegal dispute can be deemed a cause of disciplinary action in a case where an employee who contests the validity of dismissal was involved in an illegal dispute and the employee’s status was recovered due to the invalidity of dismissal;

(f) the effect of a disciplinary action taken without going through such procedures where the disciplinary action regulations, such as the rules of employment, do not stipulate procedures for a discipline accused person to appear and make statements.

A. The principle of pleading does not violate the principle of pleading on the ground that it is recognized only as a principal fact and it does not apply to indirect facts, since the date, time, place, etc. of holding the disciplinary committee is only an indirect fact, and thus, it is not against the principle of pleading

B. The employer’s disciplinary action against a worker is a punishment for a worker’s violation of corporate order and can also be revoked in his/her own review procedure. If the employer voluntarily acknowledges that the employer was erroneous in the defect in the disciplinary procedure, recognition of the grounds for disciplinary action, and the illegality of the disciplinary action, etc., the employer may cancel the disciplinary action on his/her own without any remedy order issued by the Labor Relations Commission or the court’s judgment to nullify the invalidity thereof

C. If a disciplinary dismissal disposition is revoked, it shall be deemed that the dismissal is not retroactively dismissed, as in the judgment of nullification of the dismissal, and thus, it cannot be deemed as a violation of the principle of res judicata or the principle of good faith on the ground that a new disciplinary disposition is to be taken in addition to the same reason or a new reason, and it shall not be deemed as a deviation from the court’s judgment on the ground that a new disciplinary disposition

(d) The proviso of Article 3 subparag. 4 of the Trade Union Act provides for the qualifications to be a member of a trade union as a provision to protect the establishment and existence of a trade union and to ensure that the activities of a trade union are not impeded by the employer’s unfair exercise of personnel rights. Thus, this is only applicable in relation to the status as a member of a trade union, and it shall not be extended and applied to the validity of an individual

E. An employee who contests the validity of dismissal due to a legal action within a reasonable period of time after dismissal has the status of an employee or a member who is entitled to take part in an industrial action because he/she does not fall under a third party prohibited from participating in an industrial action. Thus, even if the employee is dismissed within that limit, he/she is obligated to comply with the company's regulations or the statutory provisions related to an industrial action. Therefore, if the act involved in an illegal industrial action is included in an illegal industrial action, he/she shall not be held liable for such act. Thus, the act that participated in an illegal industrial action becomes null and void after dismissal and thereby

F. If the procedures for providing a discipline accused person with an opportunity to attend and make statements are not prescribed by the rules of employment, the effect of disciplinary action is not affected even if the disciplinary action was taken without going through such procedures.

Article 27(1) of the Labor Standards Act; Article 188 of the Civil Procedure Act; Article 2 of the Civil Act; proviso to Article 3 subparag. 4 of the Trade Union Act

A. Supreme Court Decision 92Da2315, 23322 delivered on April 13, 1993 (Gong1993Sang, 1378). Supreme Court Decision 80Da2945 delivered on May 26, 1981 (Gong1981, 1397) 91Nu11698 delivered on May 11, 1993 (Gong1993Ha, 1717). Supreme Court en banc Decision 87Da2132 delivered on May 23, 1989 (Gong1989, 972) 91Da4358 delivered on August 14, 192 (Gong1992, 2654 delivered on March 31, 1992).

Plaintiff

Seoul High Court Decision 201Na1488 decided May 1, 2012

Seoul High Court Decision 92Na39930 delivered on April 27, 1993

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

We examine the grounds of appeal.

1. As to the first point (in violation of the rules of evidence collection, the incomplete hearing, and the violation of the principle of pleading)

According to the reasoning of the judgment of the court below, the court below reviewed the following facts based on the following facts: the plaintiff was a person who was employed as an assistant to the disciplinary action against Bolue Household Co., Ltd. (hereinafter the defendant Co., Ltd.) on Jan. 13, 1989; the plaintiff left his workplace for about 30 minutes on Jan. 14, 1989, and attached a notice demanding the dismissal; the notice was issued on Jan. 21, 1989 on Jan. 21, 1989 (hereinafter referred to as the "the first dismissal"); the plaintiff's lawsuit seeking nullification of dismissal against the defendant Co., Ltd. on Mar. 18, 1989; after the judgment in favor of the plaintiff on Aug. 2, 190, the defendant Co., Ltd. was revoked on Aug. 20, 190, and the defendant Co., Ltd. participated in the above dismissal disposition on the ground of the violation of the rules of employment or the violation of the rules of employment.

In addition, the principle of pleading is recognized only for the principal facts and it does not apply to indirect facts (see, e.g., Supreme Court Decision 92Da23315, 23322, Apr. 13, 1993). Since the date, time, place, etc. of holding the disciplinary committee are not only for indirect facts, it is not against the principle of pleading on the ground that it was recognized without a party's assertion. There is no reason to discuss.

2. On the second (legal scenarios)

A. In light of the fact that the employer’s disciplinary action against workers is a punishment for a violation of public order of workers, and that the disciplinary action can be revoked even in its own review procedure (see, e.g., Supreme Court Decision 91Nu11698, May 11, 1993). If the employer voluntarily acknowledges that there was a defect in the disciplinary procedure, recognition of the disciplinary cause, and illegality of disciplinary action, etc., the employer may cancel the disciplinary action by itself without any remedy order issued by the Labor Relations Commission or a court’s judgment to nullify the invalidity of the disciplinary action (see, e.g., Supreme Court Decisions 91Da43558, Aug. 14, 192; 87Meu2132, May 23, 1989); further, it is possible for the employer to take a new disciplinary action (see, e.g., Supreme Court Decision 80Da2945, May 26, 198

In addition, if a disciplinary dismissal disposition is revoked, it shall be deemed that it is not dismissed retroactively as the judgment of nullification becomes final and conclusive (see, e.g., Supreme Court Decision 91Nu11698, May 11, 1993). Thus, it cannot be deemed that a new disciplinary disposition is against the principle of res judicata or the principle of good faith by adding a new reason or a new reason (see, e.g., Supreme Court Decision 80Da2945, May 26, 1981). Thus, it cannot be deemed that a revocation of a disciplinary disposition after a judgment of nullification of a disciplinary action is revoked after a judgment of nullification is rendered

Although the reasoning of the lower court is somewhat inappropriate, it is eventually justifiable to reject the Plaintiff’s assertion in the same purport.

B. In addition, Article 3 subparag. 4 of the Trade Union Act provides that "no worker who contests the validity of dismissal shall be construed as a person who is not a worker." Since the proviso of Article 3 subparag. 4 of the Trade Union Act provides for the qualifications to be a member of a trade union as a member of a trade union by protecting the establishment and existence of a trade union and by exercising the employer's unreasonable personnel rights, it is only applicable in relation to the status of a member of a trade union, but it cannot be extended to the validity of an individual labor contract between the worker and the employer (see, e.g., Supreme Court Decisions 92Da42354, Jun. 8, 1993; 91Da14413, Mar. 31, 1992; 91Do3051, May 8, 1992; 200Do3051, Feb. 19, 197).

The court below's conclusion that it is inappropriate for the plaintiff to have the status as an employee solely based on the interpretation of the above provision, but it is ultimately justifiable to view that the plaintiff's act of taking part in the illegal strike of this case can be considered as a cause of disciplinary action. There is no reason for

3. On the third ground for appeal

The court below erred by failing to decide on the assertion that the grounds for dismissal of this case alleged by the plaintiff and the process of investigating the grounds for dismissal and imposing a new disciplinary action violates the principle of equity, but where procedures for providing a discipline accused person's opportunity to attend and make statements under the rules of employment, etc. are not prescribed, the disciplinary action does not affect the validity of the disciplinary action (see, e.g., Supreme Court Decision 91Da14406, Oct. 9, 192; 91Da14406, Oct. 9, 199). In light of the type of strike of this case recognized by the facts established by the court below and the degree of the plaintiff's participation in the illegal strike, etc., the dismissal of the plaintiff cannot be deemed as going beyond the scope of the disciplinary authority.

In addition, according to the statements, etc. of evidence Nos. 34-1, 2(s) and 36-5(s) of evidence Nos. 34-1, 36(s), there is no evidence that the plaintiff's assertion is a member of the strike guidance division (the central committee member or the leader of each department), and that the degree of his/her participation in the illegal strike is heavier than the plaintiff.

Therefore, since the above allegations by the plaintiff are clearly rejected due to the lack of reason, such errors by the court below are not affected by the conclusion of the judgment (see Supreme Court Decision 92Da10698 delivered on June 26, 1992). It is therefore without merit.

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

Justices Kim Jong-sik (Presiding Justice)