[1] The elements for a disciplinary action against an employer to be subject to criminal punishment under Articles 110 and 30(1) of the Labor Standards Act

[2] The case holding that it is difficult to readily conclude that a criminal crime is constituted by evaluating the fact that an employer’s failure to properly implement the procedure, such as not notifying an employer of a renewed contract term for a worker, but not notifying the worker of a retirement at the latest due to the expiration of the contract term, constitutes a notification of dismissal, not a notification of retirement upon the expiration of the contract term, but a notification of dismissal

[1] Articles 30(1) and 110 of the Labor Standards Act / [2] Articles 30(1) and 110 of the Labor Standards Act, Article 662 of the Civil Act

[1] Supreme Court Decision 93Do3128 delivered on June 14, 1994 (Gong1994Ha, 1994) Supreme Court Decision 95Do2218 delivered on November 24, 1995 (Gong1996Sang, 304 delivered on October 7, 2005)

Defendant

Defendant

Attorney Noh Jae-hwan

Chuncheon District Court Decision 2005No287 delivered on October 14, 2005

The judgment of the court below is reversed, and the case is remanded to Chuncheon District Court Panel Division.

We examine the grounds of appeal.

1. According to Article 662 of the Civil Act, where a worker continues to provide his/her labor after the termination of an employment contract, if the employer fails to raise an objection within a reasonable period, he/she shall be deemed to have been employed again under the same conditions as the previous employment.

The court below acknowledged the facts as stated in its decision after comprehensively taking account of the employment evidence, and determined that the defendant's notice of this case against the non-indicted 1 was not a notice of retirement upon the expiration of the contract term, but a notice of dismissal. In light of the records, the above fact-finding and decision of the court of first instance as cited by the court of first instance are justifiable. The fact-finding and decision of the court below are justifiable. The fact-finding of the court of first instance, which the non-indicted 1 received the above notice of dismissal from the defendant, and did not continue to provide labor for the remaining period

In addition, examining the relevant evidence in light of the records, the court below is also justified in finding facts as stated in its reasoning after compiling the relevant employment evidence, and it cannot be deemed that there was a justifiable reason to dismiss Nonindicted 1 at the time of dismissal.

The court below did not err by misunderstanding the facts against the rules of evidence or by misapprehending the legal principles on unfair dismissal as alleged in the grounds of appeal.

The ground of appeal on this part is without merit.

2. In a case where it is not unreasonable for an employer to determine that there exists a justifiable reason for the pertinent disciplinary action in light of the circumstances at the time when the disciplinary action occurred, even if the disciplinary action is deemed to have no justifiable reason in the judicial proceedings, and thus null and void, it cannot immediately be subject to criminal punishment under Articles 110 and 30(1) of the Labor Standards Act. Furthermore, the same reason is subject to criminal punishment only when the disciplinary action is deemed to have abused or exceeded the right of disciplinary action in its content, and it is deemed to have been subject to criminal punishment (see, e.g., Supreme Court Decisions 93Do3128, Jun. 14, 1994; 95Do218, Nov. 24, 1995; 2005Do3763, Oct. 7, 2005).

According to the records, on October 21, 2002, Non-Indicted 1 was employed temporarily for three months at Choung Bank (the name omitted) branch (hereinafter “instant business site”) and carried out affairs such as card system management. Employees employed temporarily as Non-Indicted 1, etc. were continuously renewed their employment contract for six months upon expiration of the first three-month contract period. At the time when Non-Indicted 1 retires, other temporary employees than Non-Indicted 1 (the non-Indicted 1) have renewed their employment contract and extended their contract period every six months for six months. The procedure for the renewal of the contract for temporary employees in the instant business site was registered with the company prior to the expiration of the contract period with the head office and obtained approval from the head office from the non-Indicted 1, and the Defendant did not request the change of the contract period to the non-Indicted 2 for the first time after consultation with the head office to the non-Indicted 1 for the extension of the contract period from the non-indicted 2, which is the first time prior to the expiration of the contract period with the non-indicted 1, and the defendant 2.

However, in the case of this case, even if the employment contract between the defendant and the non-indicted 1 was implicitly renewed under the same conditions as the previous one and then the dismissal of the non-indicted 1 was an exercise of the right to cancel the employment contract, its legitimacy may be recognized if there exist objective reasonable grounds at the time of the dismissal and considerable social norms. However, as seen earlier, the defendant was requested from the non-indicted 2 who was in charge of the contract renewal procedure on January 14, 2003 to approve the renewal period of the contract with the non-indicted 1 for six months prior to the expiration of the original contract term, and the head office was ordered to extend the contract term by up to one month until February 28, 203 after consultation with the non-indicted 3, to apply for the approval of the head office to the non-indicted 1's temporary extension of the contract term, and it is difficult to conclude that the defendant's temporary extension of the contract term belongs to the non-indicted 1's head office without notifying the non-indicted 1's new employment contract term.

Nevertheless, the court below found the Defendant guilty of the facts charged in this case solely based on its stated reasoning. In so doing, the court below erred by misapprehending the legal principles on the violation of Article 30 (1) of the Labor Standards Act, which affected the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

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 Shin Hyun-chul (Presiding Justice)