[1] Where a ipso facto disposition constitutes dismissal due to its nature, whether the employment relationship is terminated even without the employer’s expression of intent to terminate the employment relationship (negative)

[2] Where a new trial is null and void due to a failure to comply with a new trial procedure or a serious defect in a new trial procedure, the validity of the original disciplinary action ( null and void)

[3] In a case where a person having the right to request disciplinary action fails to take a disciplinary action following the original disciplinary decision and only a person having the right to request disciplinary action is allowed to request a retrial and a disciplinary action is taken only by the worker after the request is made (affirmative) and in a case where the worker fails to comply with the above review procedure, the effect of the disciplinary action (affirmative)

[1] Where an employer provides for a certain reason as a reason for ipso facto retirement and the procedure is ordinarily dismissed or disciplinary action, unless the reason for ipso facto retirement is considered as a reason for automatic termination of labor relations such as the worker's death, retirement age, termination of the term of labor contract, etc., a disposition of ipso facto retirement is a dismissal subject to restrictions under Article 27 of the former Labor Standards Act (amended by Act No. 5245 of Dec. 31, 1996). As long as ipso facto retirement is deemed as a dismissal, a labor relationship is terminated only when the employer expresses his/her intention to terminate a labor relationship such as retirement disposition, etc.

[2] The procedure for review of a disciplinary action is a procedure for the relief or confirmation of a disciplinary action, which is entirely a single disciplinary action, and its legitimacy should also be determined in whole on the grounds that the procedure is justifiable. Therefore, if a disciplinary action satisfies the requirements, even if the procedure for review is not fully implemented or it is impossible to recognize the validity of review due to a serious defect in the procedure for review, the disciplinary action shall not be deemed null and void as it goes against the procedural justice.

[3] In a case where the head of the current business entity of the Korea Telecommunication Corporation requested a review to the Regional Headquarters General Disciplinary Committee on the ground that the resolution is too minor without a disciplinary resolution of the General Disciplinary Committee of the current business entity, and the head of the regional headquarters was first dismissed as a result of the review, the meaning of the provision of the disciplinary rules on the disciplinary duties of the said Corporation that the person with the disciplinary authority would not be dissatisfied with the review disposition shall be subject to the original disciplinary resolution, and where either or both of the persons subject to the disciplinary authority and the person subject to the disciplinary action have requested a review under the equitable opportunity to request a review, it is reasonable to interpret that the parties are not dissatisfied with the review disposition. Thus, in the above case, if the person having the disciplinary authority fails to take the disciplinary action according to the original disciplinary resolution, and only the person having the disciplinary authority fails to request a review, and if the worker is subject to the disciplinary action, it shall be allowed to request a review as a remedy for the disciplinary action, and even if there is any opportunity to attend the procedure and make statements and submit materials favorable.

[1] Article 27 (1) (see current Article 30 (1)) of the former Labor Standards Act (amended by Act No. 5245 of Dec. 31, 1996) / [2] Article 27 (1) (see current Article 30 (1)) of the former Labor Standards Act (amended by Act No. 5245 of Dec. 31, 1996) / [3] Article 27 (1) (see current Article 30 (1)) of the former Labor Standards Act (amended by Act No. 5245 of Dec. 31, 1996)

[1] Supreme Court Decision 92Da54210 decided Oct. 26, 1993 (Gong1993Ha, 3160), Supreme Court Decision 93Da7464 decided Nov. 9, 1993 (Gong1994Sang, 61), Supreme Court Decision 94Da42082 decided Mar. 24, 1995 (Gong1995Sang, 17293Hah, 19695Hah, 296397, 2997) decided Jun. 30, 1995 (Gong1995Ha, 2547), Supreme Court Decision 96Da43904 decided Feb. 14, 197 (Gong97, 1997) 97Da1963979 decided Jul. 29, 209)

Plaintiff 1 and one other (Law Firm Busan General Law Office, Attorneys Jeong Jae-sung et al., Counsel for the plaintiff-appellant)

Korea Telecommunication Corporation (Attorney Lee Jae-soo, Counsel for defendant-appellee)

Busan High Court Decision 97Na2818 delivered on May 28, 1998

The judgment below is reversed, and the case is remanded to Busan High Court.

Examination of the Grounds of Appeal

1. As to Plaintiff 2’s ground of appeal

In a case where an employer stipulates the occurrence of a certain cause as a reason for ipso facto retirement and the procedure is ordinarily dismissed or disciplinary action, unless the reason for ipso facto retirement is shown as a reason for automatic extinguishment of labor relations such as the death, retirement age, termination of the term of labor contract, etc., the ipso facto retirement disposition under Article 27 of the former Labor Standards Act (amended by Act No. 5245 of Dec. 31, 1996) shall be deemed as a dismissal subject to the restriction under Article 27 of the former Labor Standards Act (see Supreme Court Decisions 92Da54210, Oct. 26, 1993; 94Da42082, Mar. 24, 1995). As long as ipso facto retirement is viewed as a dismissal, the labor relationship is terminated only when the employer expresses his/her intent to terminate the labor relationship such as retirement disposition, etc. (see Supreme Court Decision 96Da43904, Feb. 14, 1997).

According to the court below's duly admitted, the defendant's personnel regulations shall not be employed as an employee unless two years have passed since the period of suspension of execution expired (Article 10 subparagraph 4). In the case where an employee falls under any subparagraph of Article 10, Article 33 (1) 3 of the Rules of Employment provides that an employee shall be dismissed as a matter of course, and Article 9 subparagraph 3 of the Rules of Employment of the defendant provides that an employee shall be dismissed as a matter of course. On August 22, 1995, the plaintiff 2 was sentenced to 10 months of imprisonment and 2 years of suspension of execution due to the violation of the Punishment of Violences, etc. Act at the Seoul District Court on Punishment of Violences, etc., and on September 5, 1996. Accordingly, if the facts are identical, even if the above plaintiff was sentenced to the suspension of execution, this does not seem to have been automatic grounds for termination of employment relations, and thus, the defendant, the employer, as an employee, still has the status of the above plaintiff, such as the above dismissal.

Therefore, even if the dismissal of this case against the above plaintiff is null and void in different opinions, the above plaintiff is naturally dismissed in accordance with the above personnel regulations, and thus, the defendant's employee status is lost. Thus, the above plaintiff's claim for nullification of the dismissal of this case is erroneous in the misapprehension of legal principles as to the termination of labor relations and thus, it is not only a claim for confirmation of past legal relations but also has no interest in confirmation. The plaintiff's appeal pointing this out has merit.

2. As to Plaintiff 1’s ground of appeal

A. The facts duly established by the court below are as follows.

On May 30, 1995, the director general of the defendant's Namsan Call General Disciplinary Committee requested the plaintiff 1 to be dismissed on the ground of the act as stated in the judgment below. On June 12, 1995, the committee decided to punish the above plaintiff 1 as one month from suspension. On the same day, the director general of the Nam Ulsan Call Call Bureau decided to dismiss the plaintiff 1 on the ground that the above disciplinary resolution against the above plaintiff is too unfasible, the defendant's disciplinary request and the person subject to disciplinary action may raise an objection against the committee's resolution or disciplinary action." On September 7, 1995, the Busan General Disciplinary Committee requested a reexamination to the Busan General Disciplinary Committee pursuant to Article 18 (1) of the disciplinary rules of the defendant's disciplinary action against the plaintiff 20, Article 4, Article 4-2, and Article 3 of the Personnel Rules of the defendant's employment, and rejected the above plaintiff 27th of the above disciplinary committee on the ground that the above disciplinary action against the plaintiff was dismissed.

B. The above plaintiff asserted that the dismissal of this case is null and void since it did not deliberate and decide on the review requested by the Central Disciplinary Committee in accordance with the defendant's disciplinary duties regulations as the cause of the claim.

On the grounds delineated below, the court below rejected the above argument. In other words, the defendant's disciplinary rules decided a review of the disciplinary decision or disposition of the regional headquarters, and the general disciplinary committee of the regional headquarters provides that a review decision (Article 6 (1) 3 and (3) 3) shall apply mutatis mutandis to the procedures for review (Article 7 and Article 8) shall apply mutatis mutandis to the disciplinary committee (the latter part of Article 24 (1)), and the parties are not again dissatisfied with the new disciplinary committee (the latter part of Article 24 (1)). The defendant's disciplinary decision cannot be deemed to be a new disciplinary committee's request for a new review because the head of the regional headquarters made a request for a new review without a disciplinary decision of the general disciplinary committee of the current institution, and the defendant's request for a new review cannot be deemed to be a new disciplinary decision of the current general disciplinary committee for the reason that it is too inappropriate for the head of the regional headquarters to request a new review disciplinary committee of the current general institution to make a request for a new review and to submit materials.

C. However, such determination is difficult to accept.

The procedure of review on a disciplinary action is a procedure for the relief or confirmation of a disciplinary action, and its legitimacy should also be determined in whole as to the procedure of a disciplinary action. Thus, a disciplinary action cannot be deemed null and void as it goes against the procedural justice in a case where the original disciplinary action fails to comply with the review procedure at all or where it is impossible to recognize its validity due to a serious defect in the review procedure, even though it satisfies the requirements (see, e.g., Supreme Court Decisions 93Da29662, Jan. 24, 1995; 95Nu6410, Jun. 14, 1996; 97Da10956, 10963, Sept. 30, 197).

Even according to the facts acknowledged by the court below, the director general of Ulsan National Call may request a review to the Busan General Disciplinary Committee without taking a disciplinary action against the above plaintiff on the ground that the original disciplinary action is too weak, and according to the result of the review, the head of Busan General Disciplinary Committee would have decided that the above plaintiff was subject to a disciplinary action for the first time. In addition, the meaning of the latter part of Article 24 (1) of the above disciplinary action rules, which provides that a disciplinary action authority cannot re-appeal the above plaintiff, is subject to a disciplinary action (Article 17 (1) of the above disciplinary action rules), and where either or both of the persons subject to a disciplinary action and a disciplinary action have requested a review after one or both of them are given an equitable opportunity to request a review, it is reasonable to interpret that the person concerned is not dissatisfied with a disciplinary action. In this case, if a request for a review is made by a person entitled to a disciplinary action due to failure to take a disciplinary action according to the original disciplinary action, and if the above plaintiff was subject to a disciplinary action, the person entitled to request should not be allowed to request for review.

Therefore, if a new review procedure against the above plaintiff in accordance with the above disciplinary rules is refused and fails to comply with it at all, the disciplinary action against the dismissal in this case is obviously contrary to procedural justice, and thus, shall not be deemed null and void.

Nevertheless, the judgment of the court below as above is erroneous in the misapprehension of legal principles as to the provision of review under the above disciplinary rules, and the argument disputing this issue is with merit. Thus, the judgment of the court below cannot be maintained without further determination as to the remaining grounds of appeal of the above plaintiff.

3. 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.

Justices Lee Yong-hun (Presiding Justice)