[1] The meaning of "involuntary dismissal" of an executive officer subject to a resolution by the board of directors under the former Agricultural Cooperatives Act, and whether the status of an employee is removed against his/her will, such as disciplinary dismissal (negative)

[2] The standard for determining whether the employee's employment relationship with the employee can not continue in light of the social norms, which recognized the legitimacy of the dismissal disposition

[1] In accordance with the former Agricultural Cooperatives Act (amended by Act No. 10522, Mar. 31, 2011) and the articles of association of the livestock industry cooperatives, the term "election and dismissal of an executive officer subject to resolution by the board of directors means the appointment of an executive officer as an executive officer or dismissal from an executive officer, and it is reasonable to view that the appointment and dismissal of an executive officer against his/her will is not included in the expulsion

[2] The dismissal disposition is justified in cases where there are grounds for an employee's responsibility to the extent that the employee's employment relationship cannot be continued by social norms. Whether the employee's employment relationship with the employee can not continue by social norms should be determined by comprehensively examining various circumstances, such as the purpose and nature of the employer's business, the circumstances of the workplace, the status and details of the employee's duty, the motive and background of the act of misconduct, the influence of the employee's deceptive scheme on the company's business order, the past attitude of employment

[1] Articles 43(3)6, 56, and 107 of the former Agricultural Cooperatives Act (Amended by Act No. 10522, Mar. 31, 201) / [2] Article 23(1) of the Labor Standards Act

[2] Supreme Court Decision 2007Du979 Decided May 28, 2009

Plaintiff 1 and one other (Attorneys Yoon Young-young et al., Counsel for the plaintiff-appellant)

Leecheon Livestock Industry Cooperatives (Law Firm Dao et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Na107179 decided October 19, 2012

The part of the lower judgment against Plaintiff 1 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 between Plaintiff 2 and the Defendant are assessed against the Defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

A. The lower court determined that the part of the proviso to Article 76(2) of the Personnel Management Regulations of the Defendant Union, which stipulates that the dismissal of an executive officer against his/her own will is null and void in accordance with the relevant provision of the Articles of Incorporation, without going through a resolution of the board of directors, on the ground that the dismissal of an executive officer of a local livestock cooperative (hereinafter “local livestock cooperative”) is subject to a resolution of the board of directors under Articles 43(3)6, 56(2), and 107 of the former Agricultural Cooperatives Act (amended by Act No. 10522, Mar. 31, 201) and Articles 49(1)6 and 60(3) of the Articles of Incorporation, taking into account the importance of the duties in charge of the executive officer of a local livestock cooperative (hereinafter “local livestock cooperative”) is null and void, on the ground that, in light of the aforementioned purport, the dismissal of an executive officer among executive officers means dismissal against his/her will, such as disciplinary dismissal.

B. However, the lower court’s determination is difficult to accept for the following reasons.

1) Article 56 of the Act, which applies mutatis mutandis to regional livestock cooperatives pursuant to Article 107 of the Act, provides that “An employee of a local agricultural cooperative (hereinafter referred to as “local agricultural cooperative”) shall be appointed or dismissed by the president of the cooperative as stipulated by the articles of association (Paragraph 1), as stipulated by the articles of association, and an executive officer shall be appointed or dismissed by the president of the cooperative (Paragraph 2) through a resolution of the board of directors from among those who have passed a screening test conducted by the president of the central association.” Article 49(1)6 of the articles of association of the defendant cooperative provides that “the appointment or dismissal of executive officers” shall be decided by the board of directors, and Article 60 provides that “an employee of the cooperative shall be appointed or dismissed by the president of the cooperative (Paragraph 1). The executive officer under paragraph (2) shall be appointed or dismissed by the president of the cooperative from among those who have passed a screening test conducted by the president of the central federation (Paragraph 2).”

Meanwhile, Article 2 of the Personnel Regulations of the Defendant Union provides that "this provision shall apply to regular employees prescribed by the Regulations on the Organization." Article 73 provides that "Appointment to Grade IV by successful recruitment from among those who have passed the screening examination conducted by the National Federation Chairperson." Article 76 provides that "the officer means the full-time director of the principal office and the full-time director of the branch office and the regular director of the branch office." Paragraph (2) provides that "The officer shall be appointed and dismissed by the head of the association upon the resolution of the board of directors pursuant to Article 5 from among those who have passed the screening examination conducted by the National Federation Chairperson." In any of the following cases, Article 73 provides that "the officer shall be dismissed by the chief of the association (the appointment of the executive officer from among those who have passed the screening examination conducted by the National Federation Chairperson."

2) In full view of the above laws related to the appointment and dismissal of the above employees and the executive officers, the articles of incorporation of the defendant association, and the personnel regulations enacted pursuant to the delegation thereof, etc. ① the provisions concerning the manager of the Commercial Act apply mutatis mutandis to the executive officers of the defendant association (Article 56(3) of the Act). ② The personnel regulations of the defendant association provide that the head of the association may change to another position or not re-appointed the executive officers through a resolution of the board of directors (Articles 77 through 83 of the above personnel regulations). In full view, the appointment and dismissal of the executive officers subject to a resolution of the board of directors pursuant to the Act and the articles of incorporation of the defendant association means the appointment and dismissal of the executive officers as the executive officers in general service or as the executive officers, and it is reasonable to view that the status of

Therefore, it cannot be deemed null and void as it goes against the articles of incorporation of the law or the defendant union, because it stipulated that the disciplinary dismissal of the executive officer should not go through a resolution of the board of directors under the proviso of Article 76(2)1 of the Personnel Management Regulations

C. Nevertheless, the lower court determined otherwise by deeming that the instant disciplinary dismissal disposition constitutes a dismissal from office among the appointment and dismissal of the executive officers, and that the part of the Defendant Union’s personnel management provision proviso to Article 76(2)1 “where an executive officer is subject to disciplinary action” was null and void. In so doing, the lower court erred by misapprehending the legal doctrine on disciplinary proceedings, thereby adversely affecting the conclusion of the judgment. The

On the other hand, the Supreme Court Decision cited by the court below points out that it is inappropriate to invoke the case as it differs from the case in question.

D. However, as seen below, insofar as the instant disciplinary dismissal disposition against Plaintiff 2 is deemed null and void on the ground of excessive disciplinary disposition, the error of the lower judgment did not have affected the conclusion of the judgment against Plaintiff 2.

2. Regarding ground of appeal No. 2

A disposition of dismissal is justified when there are reasons for an employee’s responsibility to the extent that the employee’s employment relationship cannot be continued by social norms. Whether it is impossible to continue the employee’s employment relationship with the employee should be determined by comprehensively examining various circumstances, including the purpose and nature of the employer’s business, the conditions of the workplace, the status and details of the employee’s duty, the motive and background of the act of misconduct, the influence of the employee’s deceptive scheme on the company’s business order, and the previous attitude of work (see Supreme Court Decision 2007Du979, May 28, 2009, etc.).

The lower court, based on its stated reasoning, determined that the disciplinary action against Plaintiff 2 was null and void as a disposition that clearly lacks validity under the social norms, on the ground that the purpose of the instant disciplinary measure against Plaintiff 2 was to be achieved through the instant disciplinary measure against Plaintiff 2, including the fact that it appears sufficiently possible through other disciplinary measures such as suspension from office or reduction of salary, etc., and that the disciplinary measure against Plaintiff 2 was null and void.

In light of the above legal principles and records, the above judgment of the court below is just, and contrary to what is alleged in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

3. Conclusion

Therefore, the part of the lower judgment against Plaintiff 1 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remaining appeals are dismissed, and the costs of appeal between Plaintiff 2 and the Defendant are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices

Justices Jo Hee-de (Presiding Justice)