Where the dismissal has caused an illegal mental pain and constitutes a tort;

If an employer intentionally dismisses a worker without any grounds for disciplinary action, under the intent of the employer to find the worker at the workplace, by intentionally making the reason for dismissal or on the ground of disciplinary action, or if it is objectively apparent that a fact which was the reason for dismissal does not constitute the reason for dismissal, or cannot be considered the reason for dismissal, or if it is paid a little amount of attention, it can be easily identified that such circumstances can be easily identified, but it is obvious that the abuse of the right to disciplinary action can not be permitted under our sound social norms or social norms, such as the case where the dismissal is made for the reason, even though it is not justified under Article 27(1) of the Labor Standards Act, if it is evident that the dismissal is not the case where the abuse of the right to disciplinary action can not be justified under our sound social norms or social norms, it is not merely the case where the dismissal is denied due to its lack of justification under Article

Article 750 of the Civil Act, Article 27(1) of the Labor Standards Act

Plaintiff (Appointed Party)

[Defendant-Appellee] Defendant 1 et al., Counsel for defendant-appellee

Seoul High Court Decision 92Na15408 delivered on August 21, 1992

The part of the lower judgment against Defendant 2 is reversed, and that part of the case is remanded to the Seoul High Court.

The plaintiff's appeal against the defendant Shin Young-sung Co., Ltd. is dismissed, and the costs of appeal against this part are assessed against the plaintiff.

We examine the grounds of appeal.

Part on Defendant Shin Young-sung Co., Ltd.

According to the records, we affirm the court below's decision that did not recognize the plaintiff's assertion that he succeeded to the liability for compensation such as wages and consolation money, etc. due to the unfair dismissal of the defendant 2's workers, and there is no error of law or misunderstanding of legal principles against the rules of evidence such as the theory of lawsuit.

Therefore, there is no reason to discuss.

Part on Defendant 2

1. According to the reasoning of the judgment below, in this case where Defendant 2 sought consolation money on the ground that he was unfairly dismissed on January 11, 1990 and the plaintiff and the designated parties suffered emotional distress, the court below rejected the case on the ground that labor contract is a bilateral contract under which the employer paid wages to the worker in return for providing labor to the employer, even if Defendant 2, the employer, was unfairly dismissed, it is merely a failure of the same defendant to perform the obligation to pay wages. Thus, barring any special circumstance, the obligee with respect to nonperformance of monetary obligation cannot be viewed as having suffered emotional distress other than incurring losses, and there is no other evidence to acknowledge that the plaintiff suffered emotional distress due to the above dismissal.

2. A bilateral contract, the terms of which include the provision of labor to workers and the payment of their wages, is the same as the reasoning of the court below. However, since the provision of labor to workers under a labor contract does not merely aim at the acquisition of wages, it cannot be said that the dismissal of workers is merely a failure to perform the obligation to pay wages, and there may be cases where such dismissal constitutes a tort. In such a case, even if the dismissal was null and void under the law and returned to the state prior to the dismissal, the dismissal as a social fact is not retroactively extinguished or resolved, and therefore, it cannot be said that the payment of wages or its delay damages is completely cured.

3. Generally, it is natural that an employer’s disciplinary dismissal against a worker would not immediately constitute a tort on the ground that the dismissal is invalidated in cases where it is judged that the dismissal is null and void due to the reason that the dismissal is null and void. However, the court below should examine whether dismissal constitutes a tort against a worker since it is objectively clear that an employer intentionally makes the ground for dismissal or uses the means of disciplinary action on the ground that the employer would find the worker at the workplace without any grounds to discipline the worker, or it would not constitute a ground for dismissal, it is objectively obvious that a fact which was the ground for dismissal does not constitute a ground for dismissal, or would not constitute a ground for dismissal, or if it is obvious that the abuse of the right to discipline, such as disciplinary dismissal, would be readily recognizable under our sound social norms and social norms, even if it is obvious that the dismissal is null and void due to its lack of legitimacy as referred to in Article 27(1) of the Labor Standards Act, and it constitutes a tort against the worker, and thus, it should be examined whether the dismissal constitutes a tort against the plaintiff 2.

4. The judgment of the court below is erroneous in the misapprehension of legal principles as to the establishment of tort in unfair dismissal, and it is justified to the extent of this issue.

Therefore, the part of the judgment of the court below against the defendant 2 is reversed and remanded, and the appeal against the defendant company by the plaintiff is dismissed, and the costs of appeal are assessed against the plaintiff. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Jong-soo (Presiding Justice)