(영문) 대법원 2015.11.26.선고 2015두46550 판결

1. In principle, when a disciplinary measure is taken against a worker due to the grounds for the disciplinary measure, the disciplinary measure is held at the discretion of the person having the authority to take the disciplinary measure. To be deemed unlawful, a disciplinary measure is limited to cases where the person having the authority to take the disciplinary measure has abused discretionary power, which considerably lacks validity under the social norms. In order to be deemed a disciplinary measure which considerably lacks validity under the social norms, it shall be determined as cases where it is objectively and objectively unreasonable in light of the characteristics of duties, the contents and nature of the grounds for the disciplinary measure, and the purpose of achieving the disciplinary measure through the disciplinary measure, and all the circumstances accompanying it (see, e.g., Supreme Court Decisions 200Da60890, 60906, Sept. 23, 201; 2010Da99279, Sept. 27, 2012). Moreover, the court and the employer’s position should be determined in light of the following factors: (i) whether the person has committed the pertinent disciplinary measure and/or the pertinent employer’s position.

Meanwhile, in a case where there are several facts of disciplinary action against a worker, the determination shall not be based on one or some of the grounds for the disciplinary action, but rather on the overall basis of the grounds (see, e.g., Supreme Court Decisions 2010Da21962, Mar. 24, 201). In a case where it is sufficient to recognize the validity of the relevant disciplinary action only with the other grounds for the disciplinary action recognized even if some of the grounds for the disciplinary action is not recognized, the relevant disciplinary action shall not be deemed unlawful even if the relevant disciplinary action is maintained (see, e.g., Supreme Court Decisions 82405, Apr. 26, 1983; 2002Da5155, Jun. 25, 2004); and the misconduct for which the statute of limitations has lapsed may be considered as materials for taking into account a disciplinary action (see, e.g., Supreme Court Decisions 94Da5294, Sept. 5, 195; 98Du1424, Nov. 26, 1999).

In addition, in a case where a person having an authority to take disciplinary action determines the criteria for disciplinary action, and accordingly takes disciplinary action, barring special circumstances such as where the determined criteria for disciplinary action are unreasonable or where it is necessary to dismiss only a specific worker, the pertinent disciplinary action cannot be deemed unlawful against the principle of equity (see, e.g., Supreme Court Decisions 97Nu7165, Sept. 12, 1997; 2007Du7093, Oct. 12, 2007).

2. Review of the reasoning of the first instance judgment as cited by the lower court, the evidence duly admitted and the record reveals the following facts.

A. From July 15, 2005 to July 16, 2012, the Plaintiff served as the head of the finance division of the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) and was in charge of the Intervenor’s business of receiving and receiving the Intervenor’s credits, and committed the following misconduct (hereinafter referred to as the “instant misconduct”) in relation to the duties in charge.

(1) (A) When the Plaintiff offered real estate from D as security and offered each security loan of KRW 65 million to D on Nov. 8, 2005, and KRW 10 million on Feb. 27, 2006, the Plaintiff assessed the security on the basis of the publicly assessed individual land price and loaned the amount to be assessed on the basis of the officially assessed land price and exceeding 80% of the assessed amount in violation of the Intervenor’s credit operating rules and regulations, which provide that the security shall be loaned within the limit of 80% of the assessed amount (hereinafter “the Plaintiff’s act of improper evaluation of security and lending”).

(B) The Plaintiff handled each credit loan of KRW 10 million against D, and KRW 10 million on November 26, 2007. However, in the case of normalization of overdue debts, the Plaintiff did not provide loans to debtors, such as overdue debts of forestry cooperatives or the National Forestry Cooperatives Federation. However, in violation of the Intervenor’s credit management manual that stipulates that the Plaintiff may exceptionally grant loans, etc., accompanied by the Plaintiff’s written opinion of review, in violation of the Intervenor’s credit management manual that provided that the Plaintiff may exceptionally grant loans, etc. (hereinafter “the Plaintiff’s existing debts due to violation of the obligor qualification limitation”) while carrying out the loan examination (hereinafter “the Plaintiff’s second misconduct”), and did not prepare a false credit evaluation statement stating the credit rating point of D and attach the written opinion of review by the president of the association (hereinafter “the third misconduct”).

(C) Meanwhile, in the course of implementing each of the above loans more than four times, the Plaintiff did not undergo deliberation by the Credit Committee even though all of the above loans exceed the ceiling on the total amount of loans (hereinafter “non-performance of 4 kinds of loans”) in violation of the Intervenor’s credit operating rules that stipulate that all of the loans should be deliberated by the Credit Committee on the loans exceeding the ceiling on the total amount of loans (hereinafter “the Plaintiff’s non-performance of 136,020,157”). (D) The Intervenor’s non-payment of outstanding loans, etc. calculated by the Intervenor after the Intervenor’s voluntary auction of secured real estate and the disposal of bad debts

(2) (A) Although the Plaintiff was registered as a person subject to credit management due to the delinquency of the Plaintiff’s debt owed to the E community credit cooperatives, on November 15, 2008, in violation of the Intervenor’s credit management rules, the Plaintiff approved the Intervenor’s exemption from the obligation of the secured loan of KRW 157 million against the Intervenor, and changed the Intervenor’s obligor to E on the computerized data, and additionally implemented the Plaintiff’s loan of KRW 30 million to E on November 25, 2008 in excess of the credit limit of the same person (i.e., violation of the obligor qualification limitation and the same person’s lending limit; hereinafter “non-performance of Article 5”).

(B) In addition, the credit committee did not hold in each of the above lending processes beyond the limit of the union president (as a violation of the pre-payment standard, hereinafter referred to as "six misconducts").

(C) The principal and interest of E calculated by the Intervenor after the Intervenor’s voluntary auction and the disposition of bad debt depreciation for the secured real estate by J reaches KRW 174,016,461.

(3) Until May 24, 2011, the Plaintiff did not take any measures to recover the claim even though the Plaintiff was in arrears for 1,276 days until May 24, 201 for a short period of 216 days from the debt amounting to the total amount of KRW 772,00,000,000, including D and E (i.e., nine hundred and seventy million won).

(4) In order to borrow 15 million won from E, the Plaintiff: (a) requested HaX’s wife R to grant a loan of KRW 15 million on July 16, 2010; and (b) performed a loan of KRW 15 million to R on July 16, 2010; (c) attached a photograph of another land in the vicinity of the said forest on the security evaluation sheet with knowledge that some of the secured real estate provided by R is a station located in a military protection area; (d) was allowed to have access to the vehicle; (e) was able to have access to the vehicle; and (e) was able to have access and have good accessibility and high usefulness; and (e) the head of the Intervenor’s association reported that the Plaintiff directly confirmed the said forest and the Plaintiff was able to realize the said forest and the Plaintiff was false (e.g., a credit business for the security evaluation; hereinafter “unlawful misconduct”).

B. On October 1, 2012 and October 11, 2010, the Intervenor held a disciplinary committee on the grounds that the Plaintiff’s instant misconduct and the instant 7 and 8 misconduct as indicated in the holding of the lower court constituted grounds for disciplinary action. Meanwhile, the lower court recognized that the portion related to the Plaintiff’s lending of November 27, 2006 out of the first misconduct and the second and fourth misconduct as indicated in the rules on the disciplinary action against the Intervenor’s member cooperatives was five-year period from the date of the occurrence of the respective grounds for disciplinary action until the time of the request for disciplinary action, and recognized that the part pertaining to the Plaintiff’s lending of November 27, 2006 was not subject to grounds for disciplinary action under the Intervenor’s Rules on the Disciplinary Action against the Member Associations.

Ultimately, the lower court determined that the part related to the lending of funds from November 26, 2006 and the violation of Articles 5, 6, 9, and 10 were justifiable grounds for disciplinary action (hereinafter referred to as the "violations committed in the first instance judgment"), and determined that the removal of this case from office, on the grounds of the reasons as stated in its reasoning, including the above circumstances, was reasonable under the social norms, and that the removal of this case was in violation of the right of disciplinary discretion.

D. However, in the process of investigating the Plaintiff upon the Intervenor’s complaint, F, and AG stated to the effect that the Intervenor’s actual authority over the financial affairs of the Intervenor is concentrated on the head of the finance division, and that it is difficult for the Intervenor to confirm the misconduct of the head of the finance division due to the Intervenor’s lack of separate financial affairs.

E. In addition, Article 6 [Attachment Table] No. 1 of the Intervenor's Disciplinary Criteria for Disciplinary Action (General Provisions) provides that "a person falling under the grounds for disciplinary action, who has caused serious damage to the union or seriously disturbed order by intention or gross negligence," "a person who has committed a criminal act, such as embezzlement, breach of trust, theft, and acceptance of money and valuables," and subparagraph 2 of the same Article provides that "the person who has committed a criminal act, such as neglect of duties or disturbance of accounting order" among violations of the obligation of good faith or "crimes related to finance" shall be subject to removal from office if he/she has committed a serious misconduct, and where he/she has committed an intentional act with the intention of misconduct, he/she shall be subject to dismissal from office and dismissal from office if he/she had intention

On the other hand, Article 21 of the Rules on the Disciplinary Action against Member Associations of the Intervenor provides that disciplinary action may be mitigated in cases where a person subject to disciplinary action has received an official commendation in accordance with the order or the Government Commendation Regulations, but a person subject to disciplinary action is excluded from the scope of mitigation in cases of a crime related to financial and general business.

3. We examine the above facts in light of the legal principles as seen earlier.

A. Cheating in the 9th instance judgment can be deemed to have been caused by mistake or occupational negligence due to failure to perform duties, as recognized by the lower court. However, the remaining misconduct in the lower judgment is an act of violating the Intervenor’s credit-related provisions, such as lending a loan to those who did not meet the loan eligibility due to the Plaintiff’s delinquency in the payment of the existing principal and interest of loan, making a false report to the approving authority, or making a false report to the lending authority in the process, and not undergoing deliberation by the Credit Committee, and thus, it may be deemed to have caused damage to the intervenors or causing danger of damage to the intervenors. Therefore, all of them

B. Considering the substance and nature of the misconduct recognized by the lower court as well as the Intervenor’s business purpose and nature of the Intervenor’s business entity engaging in credit business, such as lending to its members, it is reasonable to view that the Plaintiff’s repeated act of not complying with the minimum internal review regulations to ensure the soundness of the financial institution’s assets and the Intervenor’s business affairs, which may be assessed as breach of trust, is essentially infringing on and damaging the Intervenor’s business and credit, and seriously disturbing the Intervenor’s internal accounting order or regulation.

Therefore, in light of the Plaintiff’s status that requires high level of professional morality and integrity and the content of the duties, even though the dismissal in the instant case is not recognized as a cause of disciplinary action or the statute of limitations has expired, it is inevitable to take into account that the dismissal in the instant case causes considerable heavy disciplinary action only with regard to the misconduct recognized by the lower court. Even if the payment of principal and interest, etc. due to the instant misconduct is difficult to take the Plaintiff’s responsibility or it is difficult to clearly calculate the actual and individual damages incurred by the Intervenor as a result of the instant misconduct, in light of the circumstances surrounding the instant misconduct, it is clear that the part of the Plaintiff contributed to the occurrence of the damages is considerably significant, and that at least, the Plaintiff has committed an act that may cause a considerable financial risk to the Intervenor.

Therefore, in light of the overall reasons for the wrongful acts committed by the Plaintiff, it is sufficient to view that the extent of the wrongful acts committed by the Intervenor is not less than that of the amount of damages actually suffered by the Intervenor, and that it has reached the extent that the employment relationship with the Intervenor cannot be continued as an employee who actually exercises overall control over financial affairs of financial institutions

D. In addition to these circumstances, considering the following circumstances, the Plaintiff’s act of misconduct excluded from the criteria for disciplinary action and mitigation as prescribed by the Intervenor’s disciplinary regulations related to the disciplinary action, it is difficult to readily conclude that the dismissal of the Plaintiff’s dismissal against the Plaintiff constitutes an unlawful dismissal that abused the Plaintiff’s discretionary authority due to excessive suspicion to the extent that the removal of the Plaintiff’s dismissal from office is considerably unreasonable under the social norms, and thus constitutes an unlawful dismissal that abused the Plaintiff’s disciplinary discretionary authority.

4. Nevertheless, the lower court determined that the removal of the instant case was a deviation from and abuse of discretion due to the circumstances indicated in its reasoning, which are insufficient to view that the Intervenor abused the authority of disciplinary discretion.

Therefore, this judgment of the court below is erroneous in the misapprehension of legal principles as to the scope of discretion of disciplinary action and the requirements for recognition of legitimacy of dismissal, which affected the conclusion of the judgment. The ground of appeal assigning this

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.