Plaintiff (Attorney Choi Jong-chul, Counsel for the plaintiff-appellant)

National Bank Co., Ltd. (Law Firm Gyeong & Yang, Attorney Park Jong-dae, Counsel for the defendant-appellant)

September 5, 2008

The plaintiff's claim is dismissed.

Litigation costs shall be borne by the plaintiff.

The defendant shall pay to the plaintiff 325,721,612 won and 252,694,238 won among them, 207. From August 4, 2007, from April 10, 2004 to 23,027, and from March 21, 2007 to 50 million won, 20% interest per annum from March 21, 2007 to 20% interest per annum.

1. Basic facts

The following facts are not disputed between the parties:

A. The first standby order and the disciplinary dismissal of this case

(1) On August 2, 1982, the Plaintiff, who was employed by the Defendant and worked as the vice head of the Northern Branch and Housing Bank on December 27, 2000, was subject to disciplinary action on December 27, 200 by the Defendant on the ground that it violated the service regulations (hereinafter “instant disciplinary action”).

The reason why the Plaintiff’s first standby is as follows, and the following grounds were added to this, and the dismissal of the instant disciplinary action was decided.

① On December 13, 200, the Defendant and the Housing Bank were led by being in charge of the vice-chairperson-chairperson-general-general-general-general-general-general-general-general-general-general-director-general-general-general-general-general-general-general-general-general-director-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-general-level-

(2) On December 13, 200, the trade union actively participates in the activities of the trade union, such as participating in the interview between the president and the chairperson of the trade union in the process of occupying the office of president of the trade union on December 13, 200 and creating a low-income agricultural land due to the retirement of president and executive officers, and receiving the promise of "suspension of a merger promotion" from

③ On December 23, 200, through “Public Notice of the next team leader’s Council”, the next team leader’s unification of action and public notice of “5-2 of the next team leader’s council” shall be publicly notified, and on December 26, 2000, the next team leader’s act of acting as the president after the resignation of Nonparty 2 of the second team leader’s council on December 26, 2000, while performing activities by acting as the president, the next team leader’s office of training center will interfere with the bank’s normal business activities by publicly announcing the conclusion of

(4) The fund-raising fund shall be developed to meet the expenses incurred by the next team leader council.

(5) As a proxy for the duties of the chairperson of the next team team leader, the newspaper advertisements referred to in the item “whether a merger for a Gu” is made in the name of the next team leader of the National Bank (hereinafter referred to as “the daily economy, Joseon Day, and ASEAN”) shall be led by carrying out collective actions contrary to the bank’s management policies, such as leading the publication of daily economy, Joseon Day, and ASEAN, thereby undermining the bank’s credibility and honor and seriously disturbing order

(6) Even after the closure declaration of the strike under the Trade Union Act (on December 28, 2000), the actual situation that continuously causes water by carrying out actions contrary to the Bank's management policies, such as merger and opposition activities, through the Nowon-B Bank's oars room, Internet personal homepage, and the Internet home page of the Housing Bank Branch of the Korea Housing Bank of Korea, etc., and by inducing its staff.

Article 48 of the Guidelines for Personnel Management provides that the defendant provided an opportunity to vindicate to the plaintiff pursuant to Article 46 of the Guidelines for Personnel Management and submitted a written vindication from the plaintiff. The plaintiff appealed against the dismissal of the disciplinary action of this case and filed a request for reexamination pursuant to Article 48 of the Guidelines for Personnel Management. On May 28, 2001, the defendant held a personnel committee for reexamination and heard oral arguments in the presence of the plaintiff, and dismissed the plaintiff's request for reexamination

B. Application for remedy against the dismissal of the instant disciplinary action and judgment

(1) On August 24, 2001, the Plaintiff filed a request for remedy from unfair dismissal and unfair labor practices against the instant disciplinary dismissal with the Seoul Regional Labor Relations Commission, and was recognized as unfair dismissal on August 24, 2001. The Defendant’s objection and filed a request for review, but the National Labor Relations Commission dismissed the request for review on December 13, 2001.

Luxembourg The defendant filed a claim against the chairperson of the National Labor Relations Commission for the cancellation of the Seoul High Court on November 12, 2002 (Seoul Administrative Court No. 2002Guhap6777), but the defendant appealed but dismissed the appeal (Seoul High Court No. 2002Nu20215), and the defendant filed a second appeal, but the defendant dismissed the appeal on December 24, 2004 (Supreme Court No. 2004Du4390).

Secondly, the grounds for invalidation of the instant disciplinary dismissal against the Plaintiff recognized in the appellate trial and the final appeal filed by the Defendant are as follows.

In contrast to the defendant's merger promotion, it is recognized that the plaintiff was in violation of the defendant's service regulations by posting a newspaper advertisement to encourage or encourage the merger or opposition of the next team leader council's vice-chairperson and the office of acting as the president of the next team leader's council in order to encourage or encourage the labor union's merger or opposition, and by posting an article on the Internet. However, such merger or opposition activities, etc. are not deemed personal activities of the plaintiff, but are organized by the decision-making of the next team leader's council, and the disciplinary action of this case is justifiable as it abuse

(c) the second standby and relief;

(1) On December 24, 2001, after Seoul Regional Labor Relations Commission judged that the dismissal of the instant case was unfair, the Defendant returned the Plaintiff to the atmosphere as a position at the time of the dismissal, and maintained the status of the standby order from that point to December 26, 2006 (hereinafter “the second standby order”).

The plaintiff filed a petition with the Seoul Regional Labor Relations Commission for the remedy of the unfair standby order against the second standby order, and was recognized as an unfair standby order on May 16, 2002. The defendant filed an application for review with the National Labor Relations Commission, and the National Labor Relations Commission determined that the second standby order was justifiable on September 6, 2002.

Referencely, on September 30, 2002, the plaintiff filed an administrative litigation against the president of the National Labor Relations Commission to revoke a decision of retrial (Seoul Administrative Court 2002Guhap32605), but the case was terminated by the withdrawal of the plaintiff's lawsuit thereafter.

(d) Order, leave of absence, and relief;

The defendant held a personnel committee on December 26, 2006 during the second standby order period, and issued a temporary retirement order to the plaintiff pursuant to Article 34 of the Personnel Management Guidelines for six months (from December 26, 2006 to June 25, 2007) on the ground that the plaintiff did the strike owner, the development of the merger withdrawal activities after the strike, and the bank's opposition to the management policy. Accordingly, the plaintiff filed an application for unfair temporary retirement order with the Seoul Regional Labor Relations Commission for remedy, and was recognized as an unfair temporary retirement order on June 4, 2007.

E. Defendant personnel regulations

Each standby and the disciplinary dismissal of this case, and the defendant's regulations related to the leave of absence are as stated in the attached Form "Personnel Regulations", "Personnel Management Guidelines" and "Remuneration and Retirement Allowance Regulations".

2. The defendant's each personnel disposition against the plaintiff

A. Summary of the plaintiff's assertion

The first standby order was issued on the same ground as the dismissal of the instant disciplinary action, so long as the dismissal of the instant disciplinary action becomes null and void, the first standby order also becomes void. Therefore, the Plaintiff must return the Plaintiff to the second standby order, which is the status prior to the first standby order. Nevertheless, the Defendant issued the second standby order, which serves the Plaintiff as the waiting position, and the second standby order also becomes null and void in violation of the final judgment confirming that the instant disciplinary action is null and void, or null and void due to an unreasonable long-term standby order.

(b) Markets:

(i) the validity of the first standby;

㈎ 피고 인사규정에 의하면, “직무수행능력의 부족, 사고의 발생 및 우려, 근무태도의 불성실 또는 기타의 사유로 직무를 수행하기 곤란한 직원에 대하여 그 사유가 없어질 때까지 직무를 부여하지 아니하고 대기발령을 할 수 있다(제38조)”라고만 규정되어 있다. 그리고 이 사건 징계해고는 피고 인사규정 제48조에 따라 1차 대기발령과는 별도의 징계절차를 거쳐서 이루어진 것이다.

Therefore, it cannot be said that the first standby order is unlawful as a matter of course, on the ground that the dismissal of the instant disciplinary measure is unlawful if the Defendant made the first standby order against the Plaintiff in order, or the instant disciplinary measure is dismissed. Ultimately, the legality of the first standby order is determined depending on whether the first standby order falls under the scope of the Defendant’s legitimate personnel rights.

㈏ 기업이 그 활동을 계속적으로 유지하기 위하여는 노동력을 재배치하거나 그 수급을 조절하는 것이 필요불가결하므로, 대기발령을 포함한 인사명령은 원칙적으로 인사권자인 사용자의 고유권한에 속한다. 따라서 이러한 인사명령에 대하여는 업무상 필요한 범위 안에서 사용자에게 상당한 재량을 인정하여야 하므로, 이것이 근로기준법 등에 위반되거나 권리남용에 해당하는 등의 특별한 사정이 없는 한 위법하다고 할 수 없다( 대법원 2005. 2. 18. 선고 2003다63029 판결 참조).

㈐ 1차 대기발령은 위 1.가.⑵의 ① 내지 ⑤항 기재와 같이 원고가 피고의 복무규정 위반하였다는 것을 그 이유로 한 것이고, 원고가 피고의 복무규정을 위반한 사실은 앞서 인정한 바와 같으므로 1차 대기발령은 피고의 정당한 인사권의 범위 안에 속하여 위법하지 아니하다.

d. The effects of the second standby order

㈎ 1차 대기발령이 유효한 이상, 대기발령 상태에 있는 원고에 대한 이 사건 징계해고가 위법하여 원고가 원직에 복귀하는 경우, 피고가 원고를 이 사건 징계해고 당시의 직급인 대기역으로 복직시켰다고 하여 이를 위법하다고 볼 수는 없다.

㈏ 그러나, 대기발령이 일시적으로 당해 근로자에게 직위를 부여하지 아니함으로써 직무에 종사하지 못하도록 하는 잠정적인 조치이고, 근로기준법 제30조 제1항 에서 사용자는 근로자에 대하여 정당한 이유 없이 전직, 휴직, 기타 징벌을 하지 못한다고 제한하고 있는 취지에 비추어 볼 때, 사용자가 대기발령 근거규정에 의하여 일정한 대기발령 사유의 발생에 따라 근로자에게 대기발령을 한 것이 정당한 경우라고 하더라도 당해 대기발령 규정의 설정 목적과 그 실제 기능, 대기발령 유지의 합리성 여부 및 그로 인하여 근로자가 받게 될 신분상·경제상의 불이익 등 구체적인 사정을 모두 참작하여 그 기간은 합리적인 범위 내에서 이루어져야 한다. 만일 대기발령을 받은 근로자가 상당한 기간에 걸쳐 근로를 제공할 수 없다거나, 근로를 제공하는 것이 매우 부적당한 경우가 아닌데도 사회통념상 합리성이 없을 정도로 부당하게 장기간 동안 대기발령 조치를 유지하는 것은 특별한 사정이 없는 한 정당한 이유가 있다고 보기 어려우므로 그와 같은 조치는 무효이다.

㈐ 이 사건 징계해고가 부당해고로 인정된 이후에도, 피고가 원고에 대하여 2001. 12. 24.부터 2006. 12. 26.까지 5년 이상 장기간 대기발령을 하여 원고로 하여금 근로계약상의 근로의무를 제공하지 못하게 하고, 뒤에서 보는 바와 같이 정상급여의 34%만을 지급하여 왔다면, 2차 대기발령을 할 당시 정당한 이유가 있었다고 하더라도, 대기발령의 잠정적 성격에 비추어 사회통념상 합리적인 기간을 경과한 이후에까지 부당하게 장기간 동안 유지된 부분은 무효이다.

In this case, in light of the fact that the defendant's personnel management guidelines limit the period of leave of absence to one year in the case of other reasons, it is reasonable to view that the reasonable period of standby, which is a minor disadvantage disposition rather than the leave of absence, should be within one year. Thus, the standby order issued after December 24, 2002 is unfairly maintained for a long period exceeding one year from the date when the second standby order was issued and thus null and void, barring special circumstances.

【Effect of Disposition of Leave of Absence

In light of the purport of Article 30(1) of the Labor Standards Act that limits the employer’s temporary retirement without any justifiable reason, even if the employer grants the employer the right to issue a temporary retirement order due to the occurrence of a certain reason for temporary retirement pursuant to the rules of employment or collective agreement of the employer, if there exist such grounds, it shall be deemed that there exists a justifiable reason only when the employer is unable to provide labor for a considerable period of time or it is deemed extremely inappropriate to provide labor (see Supreme Court Decision 2003Da63029, Feb. 18, 2005, etc.).

With respect to the instant case, the order temporary retirement disposition taken without reasonable grounds during the second order of temporary retirement, which was invalidated for an unduly prolonged period, cannot be seen as the exercise of legitimate personnel rights.

3. Determination on the claim for unpaid wages

A. The plaintiff's assertion

Since the first standby order, the instant disciplinary dismissal, the second standby order, and the disposition of leave of absence are all void, the defendant must pay to the plaintiff the difference between the wages that the plaintiff would have obtained if he had provided to the plaintiff as a vice-director from December 28, 2000 to August 3, 2007, the date of the first standby order, and the wages already received.

(b) Markets:

(1) The first standby order is valid, and the plaintiff has received the full amount of the standard wages during the period from December 28, 2000 to March 31, 2001, which is the first standby order. Thus, the plaintiff's claim for unpaid wages during the first standby order period is without merit.

However, the defendant is obligated to pay to the plaintiff the amount equivalent to the wages which the plaintiff could have received as remuneration if the plaintiff provided labor during the period of the second standby order and the leave of absence which was acknowledged as above.

B. On the other hand, on March 14, 2003, the Defendant paid 24,881,600 won as of the waiting period during which the instant disciplinary action was brought against the Plaintiff (from April 1, 2001 to December 24, 2001). ② After that, the Defendant paid the Plaintiff monthly wages on the basis of the waiting station (at least 34% of the normal wage) and the order temporary retirement wages (at least 10% of the normal wage) from April 1, 2001 to July 30, 207, the total amount was 238,742,567. ③ The Defendant paid the Plaintiff the difference between the two parties’ wages and the order temporary retirement wages from April 1, 2001 to July 31, 2007; and ③ there was no dispute between the two parties’ wages from April 1, 2001 to July 31, 2007, 309494 and damages for delay.

Then, the defendant has already paid to the plaintiff the full amount of wages corresponding to the period of the second standby and the leave of absence that is invalid after the second standby and the leave of absence of order. Thus, the plaintiff's claim for this part is therefore without merit.

4. Determination on the claim for the difference between interim accounts of retirement allowances

A. The plaintiff's assertion

On November 1, 2001, the defendant should pay the difference as it calculated and paid the amount of interim retirement allowance under the Labor Standards Act, considering the comparison of the plaintiff's retirement allowance with the motive student's retirement allowance promoted as the vice head, by calculating and paying the amount of interim retirement allowance under the Labor Standards Act.

(b) Markets:

The Plaintiff’s interim settlement amount of retirement pay under the Plaintiff’s Labor Standards Act is 17,232,934 won (4,054,808 won x 51/12) as of October 31, 2001, comprehensively taking account of the Plaintiff’s evidence Nos. 7 and 8’s evidence Nos. 7 and 8. Thus, the Plaintiff’s interim settlement amount of retirement pay under the Plaintiff’s Labor Standards Act is 17,232,934 won (4,08 won x 51/12).

Meanwhile, according to the above evidence, the defendant paid 11,19,167 won (12,78,177 won - 363,177 won - 363,177 won - 1,296,000 won (12,778,177 won - 363,010 won - 1,296,000 won) from the interim settlement amount of retirement pay of 12,778,177 won on March 9, 2004, and the fact that the defendant paid 4,454,757 won (17,232,934 won - 12,778,177 won) from the deduction of 224,090 won from the interim settlement amount of retirement pay of 21,454,757 won on August 21, 207 (17,934 won).

Ultimately, since the defendant paid the total amount of interim settlement of retirement pay to the plaintiff, this part of the plaintiff's claim is without merit.

5. Determination as to the plaintiff's claim

A. The portion of the claim for monthly leave allowances during the period from December 28, 2000 to August 3, 2007

(1) The Plaintiff seeks the payment of annual paid leave allowance for the annual monthly paid leave under the Defendant’s guidelines on the use of the Defendant’s monthly paid leave.

on August 3, 2007, the Plaintiff received full annual leave allowance from the Defendant for the unused annual leave, and all facts that have already used the annual leave claimed here.

However, the monthly paid leave allowance for the worker is designated as the annual paid leave, and there is no possibility that the right to claim monthly paid leave allowance for the monthly paid leave for the worker already employed on the regular paid leave. In addition, there is not sufficient evidence to acknowledge the plaintiff's assertion that the defendant forcedly used the monthly paid leave for the worker, and there is no other evidence to acknowledge this. Thus, this part of claim is without merit.

B. On January 2005, part of the claim for promotion discount premised on promotion to the head of a branch office

If the Plaintiff continued to serve as the Vice-President without a waiting order and a leave of absence, on January 2005, the Plaintiff sought payment for the subsequent promotion personnel on the premise that the Plaintiff was promoted from the Vice-President (L4 class) to the Branch Director (L4 class).

However, if the plaintiff continued to serve as the vice-director without issuing a waiting order and taking a leave of absence, there is no evidence to prove that the plaintiff would have been promoted from the vice-director to the branch office on January 2005. Therefore, this part of the claim is without merit.

C. Part of the claim for overdue interest under the Act on Special Cases Concerning Facilitating Legal Proceedings

(1) On August 24, 2001, the Plaintiff asserted that the Seoul Regional Labor Relations Commission, which judged that the dismissal of the instant disciplinary action is unfair, was known to the Defendant that the dismissal of the instant disciplinary action was unfair. Thus, the Defendant is obligated to pay damages for delay at the rate of 20% per annum under Article 3 of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from August 24, 2001 until August 3, 2007, which paid the difference in wages.

Article 3 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings provides, “The statutory interest rate which serves as the basis for calculating the amount of damages resulting from the default of monetary obligations shall be the interest rate prescribed by the Presidential Decree within the limit of 40/100 per annum from the day following the day on which a complaint demanding the performance of monetary obligations or a document corresponding thereto was served on the obligor.” However, it is apparent that the date when the Seoul Regional Labor Relations Commission’s decision on the application for unfair remedy is not “the day on which a complaint demanding the performance of monetary obligations or other document corresponding thereto was served on the obligor,” and therefore, the claim for this portion

D. The part claiming consolation money

The plaintiff asserts that the plaintiff is liable to compensate the plaintiff for mental damage suffered by the plaintiff due to the illegal act, since the plaintiff's rejection of unfair dismissal, the issuance of unfair atmosphere, and the temporary retirement order constitute a tort because it constitutes deviation or abuse of personnel authority.

However, even if the plaintiff was based on all evidence, it is insufficient to recognize the defendant's intentional act or negligence, such as that the defendant intentionally committed a disadvantageous measure under the intent to harm the plaintiff, or that it was evident that the defendant did not constitute a disadvantageous measure, or that he could easily recognize such circumstances if he exercised due care, even though he did not have any reason to harm the plaintiff, and there is no other evidence to acknowledge it. Thus, the plaintiff's assertion is without merit without further review.

6. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Park Jong-young (Presiding Judge)

It is impossible to sign and affix a seal on the Magyoung maternity leave.