2013Na60342 Nullification of dismissal

A person shall be appointed.

Attorney ○○○, ○○, ○○, ○○○

B Bank, Inc.

○○○○

Law Firm ○○, Counsel for the defendant-appellant

[Defendant-Appellant]

Seoul Central District Court Decision 2012Gahap71607 Decided August 22, 2013

May 9, 2014

June 30, 2014

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The defendant's dismissal against the plaintiff on March 6, 2009 confirms that the dismissal is null and void.

C. The defendant 319, 885, 148 won and the following day after the delivery date of a copy of the complaint of this case to the plaintiff

The amount calculated at the rate of 20% per annum from August 7, 2012 to the date of full payment and the return of the plaintiff from August 7, 2012 to the date of full payment.

Until the sixth day of each month, 7,802,077 won shall be paid.

1. Basic facts

A. On July 29, 1993, the Plaintiff joined the Defendant, worked at the Defendant’s branch office from August 2003 to December 2007, and worked as the Defendant’s team leader from March 6, 2009.

B. On January 2009, the Defendant, through the Defendant’s original compliance officer’s website and the Defendant’s homepage of Korea’s financial holding company, provided that, on September 9, 2007, the Plaintiff, working for the Defendant’s branch in Singapore, 50% and 16% shares of the Defendant’s 700,000 ScG capital located in Singapore, invested in the Defendant’s branch in Singapore. While the Plaintiff operated the Plaintiff on the ground of Magu’s interested parties D on the ground of magus, the Plaintiff was gathering and threatening D on the ground of embezzlement of public funds. If there is no possible disciplinary action, the Plaintiff was informed that the Defendant’s overseas resident would know the Defendant’s non-conscept and non-cons.

C. From February 6, 2009 to February 20, 2009, the Defendant inspected the Plaintiff through the exchange of telephone and e-mail with the informants, and on March 6, 2009, after going through a resolution of the personnel council on March 6, 2009, made an action of dismissal against the Plaintiff (hereinafter “instant disposition of dismissal”), and the reasons for the disposition of dismissal are as follows.

From May 2007 to October 2007, the Plaintiff was working for the Defendant’s branch in Singapore and engaged in profit-making activities by investing in the said branch in the said business form with the said employees. The Plaintiff violated the code of ethics and regulations by disregarding the special circumstances of overseas stores, impairing the bank’s credit and honor due to the limited privacy. The Defendant’s reputation was damaged to the extent that it could not be converted into money by making a profit-making activities through investment in the Defendant’s overseas financial resources status in Singapore.

D. On April 10, 2009, the Plaintiff received KRW 59,568,746 as retirement pay from the Defendant without any reservation or condition to the Defendant, and began the automobile sales business from May 16, 2009 to the E-group located in Indonesia.

E. On August 23, 2012, the Plaintiff filed the instant lawsuit on the ground that the instant disposition for dismissal was null and void.

F. The provisions on disciplinary action and personnel affairs in the Defendant are as follows.

[Guidelines for Disciplinary Measures]

Article 2 (Persons subject to Disciplinary Measures) Where an employee falls under any of the following subparagraphs, he/she shall be subject to disciplinary measures:

2. Where he/she disturbs the order of a bank in violation of the regulations, instructions, or orders concerning the duties of the party; 8. Where he/she conducts private lending and borrowing of money or arranges private lending and borrowing of money with customers and employees outside of business affairs;

Article 3 (Types of and Grounds for Disciplinary Action) The kinds of and grounds for disciplinary action against employees under the preceding Article shall be as follows:

1. Dismissal;

(a) Where he/she causes serious loss to banks or customers, or significantly disturbs the credit order by intentionally or by gross negligence by engaging in unlawful or unjust conduct;

[Personnel Regulations]

Article 11 (Matters to be Observed) When an employee performs his/her duties, he/she shall comply with the following matters in accordance with the principle of good faith:

1. Compliance with laws and subordinate statutes: He/she shall observe the relevant Acts and subordinate statutes and regulations which form the basis for carrying out his/her duties, and faithfully obey the legitimate orders and directions of his/her superior;

2. Guarantee of credit and dignity: It shall be ensured that he/she maintains his/her dignity under the influence of good faith and that he/she does not cause any act that leads to the brush of another person or any damage to the credit and reputation of the bank;

Article 12 (Prohibited Matters) No employee shall commit any of the following acts:

1. Prohibition of profit-making or concurrent operation: No person may conduct a business for profit-making or become an executive of another company without approval from the president of the Bank;

2. Prohibition of private lending and borrowing of money: He/she shall not arrange private lending and borrowing of money and arrange private lending and borrowing of money and shall not engage in entertainment accompanied by receipt of money and other valuables, except for the following business affairs:

【Service Ethics of Officers and Employees of the Ethics Code】

(c) Protegri workers' taxes: At all times, they shall maintain clean living habits, live in harmony with water, and shall not make speculative asset investment, excessive borrowing, etc.;

(d) Credit and maintenance of dignity: It shall be ensured that the act does not lead to the brush of others or damage the credit and reputation of the bank, as it has committed a serious behavior and maintenance of dignity;

【Code of Conduct B】

(a) Prohibition of disturbance in the performance of duties (3) Private lending and borrowing of money: He/she shall not directly or indirectly engage in monetary transactions or arrange for lending and borrowing of money, and his/her officers and employees shall not pay excessive loans or guarantee. (4) Profit-making or concurrent operation of business: he/she shall not engage in a business for profit-making or become an executive or employee of another company without approval from the president of the Bank;

[Ground of recognition] Facts without dispute, significant facts in the court, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 through 7, part of witness F in the trial, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The plaintiff did not have invested in entertainment establishments, and monetary lending and lending between the employees in the defendant and the plaintiff did not constitute grounds for dismissal, and the time of dismissal was not specified in the notice of dismissal, and the disposition of dismissal in this case is excessive, and thus the disposition of dismissal in this case is null and void. Therefore, the defendant is obliged to pay the plaintiff wages and damages for delay after the disposition of dismissal in this case.

B. Defendant’s assertion

The Plaintiff filed the instant lawsuit that did not raise any objection for about 3 years and 4 months after receiving the instant disposition of dismissal, and received retirement allowances. Accordingly, the instant lawsuit is unlawful against the principle of good faith and the principle of invalidation. Even if the Plaintiff’s lawsuit is lawful, the grounds for dismissal of the instant case exist, and the date the Plaintiff entered in the notice of dismissal is specified in the notification of dismissal disposition, and it is reasonable to take disciplinary action. Thus, the instant disposition of dismissal is justifiable.

3. Whether the lawsuit of this case is legitimate

A. Relevant legal principles

In general, since the exercise of rights shall be in accordance with the good faith and shall not be abused, it shall not be permitted to exercise the rights in accordance with the so-called principle of invalidation, in a case where the exercise of rights is recognized as a result of a violation of the good faith principle which governs the entire legal order, by failing to exercise the rights within a considerable period of time, even though the right holder had the opportunity to exercise the rights actually, and thus, the right holder as the obligor has no legitimate expectation that the right holder would not exercise the rights (see Supreme Court Decision 2005Da45827, Oct. 28, 2005).

Therefore, even in a case where an employee who was dismissed by the employer, claims the invalidity of the dismissal disposition, and claims for wages after the dismissal disposition, on the ground that the labor relation still remains effective, the above good faith principle should be observed. In particular, in a case where the employee received retirement allowances from the employer without any objection after the dismissal disposition, and thereafter, engaged in another occupation without a dispute over the dismissal disposition, such as making an application for remedy for unfair labor practices, barring any special circumstance, he shall be deemed to have recognized the validity of the dismissal disposition. Accordingly, filing a lawsuit claiming the validity of the dismissal disposition after the long period from the time of dismissal disposition shall not be permitted in light of the request for prompt resolution of labor disputes, the good faith principle, and the principle of invalidation (see, e.g., Supreme Court Decisions 9Da3475, Apr. 25, 200; 95Da4904, Nov. 26, 1996).

B. Determination

(1) On April 10, 2009, the Plaintiff received retirement allowance of 59,568,746 won from the Defendant without any reservation or condition of objection against the instant dismissal disposition, and left Indonesia without any dispute against the dismissal disposition by filing a request for remedy for unfair labor practices, etc., and entered Indonesia as of May 16, 2009 and entered Indonesia and carried out the automobile sales business. The instant dismissal disposition was filed only on August 23, 2012, which was about three years and four months after the date of the instant dismissal disposition, and only on August 23, 2012, it was recognized as above.

In light of the above legal principles, barring special circumstances, the instant lawsuit cannot be permitted as it violates the principle of good faith and the principle of invalidation. (2) As to this, the Plaintiff asserted that: (a) during the disciplinary procedure, the Plaintiff brought a lawsuit against the Plaintiff on the grounds for disciplinary action, and (b) had the intent to be reinstated by submitting a written opinion and a written statement; (c) did not withhold an objection because the Defendant did not give the Plaintiff an opportunity to refuse to receive retirement benefits or to make a reservation or condition of objection; (d) immediately after the disposition of dismissal, the Plaintiff collected materials to dispute the validity of the disposition of dismissal to the said employees upon recommendation of the labor company and the attorney; and (5) the Plaintiff was well aware that it is impossible for the Plaintiff to re-employment if the disposition of dismissal was made by the Defendant, and thus, the Plaintiff was sufficiently predicted, and thus, the instant lawsuit was lawful.

(1) However, it cannot be deemed that there was a dispute over the validity of the instant disposition of dismissal even if the Plaintiff asserted the disciplinary procedure, and it cannot be deemed that there was no dispute about the validity of the instant disposition of dismissal, and the Plaintiff’s "in the name of the Defendant’s employee who is in friendship with the Plaintiff in the judgment of the court of distinguished service to Indonesia, told the Plaintiff to return it through a lawsuit (No. 25-1 through No. 6). However, even if the Plaintiff actually expressed the same statement to some of the Defendant’s employees, it cannot be said that the Plaintiff asserted the validity of the instant disposition of dismissal against the Defendant. If the Plaintiff refused to receive retirement benefits, or intended to withhold the objection, it cannot be seen that the Plaintiff could easily be seen that the Plaintiff’s intention to dispute the instant disposition of dismissal, such as returning or depositing retirement benefits, or notifying the Defendant that he reserved and received retirement benefits, and ② the Plaintiff’s entry is not legally prohibited, but can not be viewed as a legitimate ground for invalidation of the Plaintiff’s right to appeal against the Defendant.

4. Conclusion

If so, the plaintiff's lawsuit of this case shall be dismissed, and the judgment of the court of first instance is just with this conclusion. Thus, the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-chul

Judges Kim Gung-sik

Judges Lee Young-young