[1] Criteria for determining the legal nature and legitimacy of removal from position

[2] The nature of the disposition of removal from position (i.e., dismissal) and the requirement for a legitimate disposition of removal from position where the disposition of removal from position is properly made, which does not constitute abuse of personnel rights or disciplinary rights

[3] The case holding that it constitutes abuse of the right of disciplinary action in a case where a disposition of temporary dismissal was taken on the ground that the three-month period expires after removal from a position without reasonable grounds

[1] Article 30 of the Labor Standards Act / [2] Article 30 of the Labor Standards Act / [3] Article 30 of the Labor Standards Act

[1] Supreme Court Decision 95Nu15926 delivered on October 29, 1996 (Gong1996Ha, 3588) / [2] Supreme Court Decision 92Da54210 delivered on October 26, 1993 (Gong1993Ha, 3160), Supreme Court Decision 94Da4351 delivered on December 5, 1995 (Gong196Sang, 179), Supreme Court Decision 98Du18848 delivered on September 3, 199 (Gong199Ha, 2111)

Plaintiff (Attorney Lee Jong-sung, Counsel for plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Korea Invention Promotion Association (Attorney Min Hong-soo, Counsel for defendant-appellant)

Seoul High Court Decision 2002Nu3340 delivered on May 30, 2003

The part of the judgment of the court below pertaining to the disposition of compulsory dismissal is reversed, and that part of the case is remanded to the Seoul High Court. The remaining grounds of appeal are dismissed. The costs of appeal regarding the dismissed appeal are

1. Regarding removal from position

The removal from position refers to the removal of a provisional measure that prevents a worker from engaging in his/her duties by temporarily assigning his/her position in order to prevent anticipated occupational interference if the worker is charged with his/her duties in the future in the future in cases where the worker lacks job performance or job performance or attitude is poor, and where the worker is prosecuted for a criminal case, the removal from position refers to the removal of his/her position as a temporary measure that prevents the worker from performing his/her duties by temporarily assigning his/her position in order to prevent anticipated occupational interference, etc. Therefore, the nature different from the disciplinary measure that is conducted for the purpose of maintaining corporate order in relation to the past misconduct of the worker. Thus, the legitimacy of the removal from position for the worker differs from the disciplinary measure that is conducted for the purpose of maintaining corporate order. Thus, it shall be determined by whether the removal from position exists in the case where the removal from position violates the procedure regulations for the removal from position, and it shall not be concluded that the removal from position is not justifiable solely on the ground that the violation violates equity in light of disciplinary action against the worker's act of cruel and similar behavior (see

The court below determined that, in calculating the basic amount of individual projected price of computer equipment to be introduced by gross negligence, the plaintiff, as the head of planning and management team of the participant corporation's name omitted (the title "name omitted", January 2, 2002), which was an affiliated organization of the participant corporation, was lawful for the reason that the plaintiff's 34,33,000 won was erroneously stated as 68,66,00 won in the unit price of the second type for the product of the computer equipment (hereinafter "the product of this case") and the plaintiff's 2nd unit price of the product of this case, which was considerably poor for the reason that the plaintiff's 68,700,000 won was considerably poor for the reason that the plaintiff's 2nd unit price of the product of this case was removed from his/her job performance or was considerably poor for the reason that he/she did not perform his/her duties on December 3, 1996 in concluding the contract for the introduction and installation of computer equipment.

According to the above legal principles and records, the above fact-finding and judgment of the court below are just, and there is no error of law by misunderstanding of facts against the rules of evidence or misunderstanding of legal principles as to reasons

2. As to the disposition of compulsory dismissal from office

A. The lower court determined that the instant temporary dismissal disposition was not unlawful on the ground that the Plaintiff’s mistake caused damage to KRW 70,000,000 by reason that the Intervenor did not compensate for such damage or disclose a specific compensation plan, and that the Intervenor filed a lawsuit against the Plaintiff seeking compensation against the Plaintiff and continued the lawsuit, and that the Plaintiff avoided compensation even if the Plaintiff was a person causing large damage and was responsible for recovery therefrom, and that the Plaintiff was transferred to the victim, and that there was no circumstance to assign position on the ground that the Plaintiff’s cause of removal from position, such as recovery of duties or improvement of work performance, is extinguished.

B. The instant disposition against the Plaintiff constitutes grounds stipulated in Article 25(1)1 of the personnel regulations of the intervenor corporation, and thus, the grounds for removal from position have not been extinguished or terminated until three months have passed since the Plaintiff was subjected to removal from position. Accordingly, the disposition of removal from position was taken based on Article 17 subparag. 4 of the same regulations, and such disposition of removal from position is deemed as having terminated a labor contract relationship against the employee’s will against the employee’s unilateral intention when observing it as a whole, and constitutes a substantial dismissal, and therefore, it constitutes a restriction under the Labor Standards Act.

Therefore, a person subject to the disposition of removal from his position under the personnel regulations of the intervenor corporation would be highly likely to be subject to the disposition of removal from position under certain conditions based on the validity of the disposition of removal from position itself. On the other hand, the disposition of removal from position continues to exist without being assigned a position for three months after the removal from position. Thus, even if the disposition of removal from position is properly issued, in order to be a legitimate disposition of removal from position, which does not constitute abuse of personnel rights or disciplinary rights, the disposition of removal from position must exist for three months after the removal from position in order to be a legitimate disposition of removal from position, such as lack of job performance or lack of work performance (see Supreme Court Decision 94Da4351 delivered on December 5, 195, etc.).

According to the records, after the removal from the position of this case, the plaintiff made efforts to make several contacts with the personnel in charge of HP in order to recognize the fact that the damage was inflicted on the participant corporation in his office and recover the amount of the damage. However, the participant corporation formally requested compensation for the damage only to the plaintiff without making any effort to recover the amount of damage, and filed a complaint against the plaintiff under the charge of occupational breach of trust, etc. while claiming compensation for damage against the plaintiff, it can be known that the plaintiff could not compensate the participant corporation for the damage or disclose a specific compensation plan. In addition, there is no evidence to deem that there was a lack of the plaintiff's duty to perform its duties or lack of work performance during the period of the issuance of the standby order after the removal from the position of this case, it constitutes abuse of the right of disciplinary action. Thus, this constitutes abuse of the right of disciplinary action.

Nevertheless, the judgment of the court below that the removal from office of this case is justified is erroneous in the misapprehension of legal principles as to the legitimacy of the removal from office of this case.

3. Conclusion

Therefore, the part of the judgment of the court below as to the dismissal from office is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeals are dismissed. The costs of appeal as to the dismissal from office are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee Han-gu (Presiding Justice)