[1] The person who bears the burden of proving the legitimacy of dismissal in a lawsuit to revoke the Tribunal on Remedy against Unfair Dismissal (=the person who is the principal)

[2] The criteria for determining the urgent managerial necessity and the meaning of making every effort to avoid dismissal

[3] The case holding that it cannot be recognized that there was an urgent managerial necessity and efforts to avoid dismissal for employees of the apartment management service company that entered into an entrusted management contract with the company merely because the council of occupants' representatives requested a reduction of the council of occupants' representatives

[1] The burden of proving the legitimacy of dismissal shall be borne by the claimant in a lawsuit disputing the adjudication tribunal on relief from unfair dismissal under Article 33 of the Labor Standards Act.

[2] The urgent managerial necessity, which is required as a requirement for the justification of the so-called layoff that a company dismissess workers due to the managerial necessity, means that the company's efforts to avoid dismissal should be determined by comprehensively examining the overall management situation rather than based on the number of business sectors or business offices of the company, and that all possible measures should be taken to minimize the scope of dismissal by the employer, including rationalization of management policies or work methods, prohibition of new employment, utilization of temporary leave and voluntary retirement, and transfer of employment.

[3] The case holding that it cannot be recognized that there was an urgent managerial necessity and efforts to avoid dismissal for employees of the apartment management service company that entered into an entrusted management contract with the company solely on the ground that there was a request for reduction of the council of occupants' representatives of apartment houses

[1] Articles 27(1) (see current Article 30(1) and 27-3 (see current Article 33) of the former Labor Standards Act (amended by Act No. 5309, Mar. 31, 1997); / [2] Article 27(1) (see current Article 30(1)) of the former Labor Standards Act (amended by Act No. 5309, Mar. 31, 1997) / [3] Article 27(1) (see current Article 30(1)), Article 27-3 (see current Article 33) of the former Labor Standards Act (amended by Act No. 5309, Mar. 31, 1997)

[1] Supreme Court Decision 91Da29811 delivered on August 14, 1992 (Gong1992, 2651), Supreme Court Decision 94Nu5069 delivered on February 14, 1995 (Gong1995Sang, 1345) / [2] Supreme Court Decision 89Da2445 delivered on March 13, 1990 (Gong190, 881 delivered on December 22, 1992), Supreme Court Decision 92Da1479 delivered on December 22, 1992 (Gong193, 52199 delivered on December 222, 195) (Gong196Sang, 480), Supreme Court Decision 94Da3179 delivered on May 16, 1997 (Gong196, 480)

forest industry corporation

The Chairperson of the National Labor Relations Commission

Intervenor joining the Defendant

Seoul High Court Decision 97Gu47691 delivered on December 11, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, since it is evident that the council of occupants' representatives of ○○○ Jeju Apartment Complex 1 Complex (hereinafter referred to as the "representative council") has decided to reduce the costs for the purpose of saving the security, the court below's argument in the grounds of appeal that there was an error of mistake of facts in this part is without merit.

2. The court below rejected the plaintiff on the 18th of the same month, after the plaintiff, a company, the purpose of which is to manage apartment houses, concluded an entrusted management contract with the representative meeting on July 8, 1993 on an apartment complex 1 apartment complex, and concluded an entrusted management contract with the contract term of two years on June 12, 1995, which is the time the contract term expires, and decided on December 16, 1996 that the representative meeting, among the employees of the above management office, decided to reduce the number of chief and one clerk from among the employees of the above management office on the ground of the cost reduction, and notified the plaintiff on the 18th of the same year of the decision to dismiss the participant with the division class and the decision to dismiss the representative meeting on December 31 of the same year, on the ground that the plaintiff had no choice but to comply with the reduction decision of the office of the representative committee, and thus, the plaintiff's dismissal was an inevitable measure for management of the company. According to the above management contract, the plaintiff did not have made a prior consultation with the representative board of the management office.

The burden of proving the legitimacy of dismissal is borne by the claimant in a lawsuit disputing the Tribunal on Remedy for Unfair Dismissal under Article 33 of the Labor Standards Act (see, e.g., Supreme Court Decision 94Nu5069, Feb. 14, 1995). The urgent managerial necessity is required as a requirement for the justification of the so-called layoff that dismisses an employee due to a corporate operational necessity, not based on the number of a part of a business or a place of business of a company, but on the overall management situation of a company (see, e.g., Supreme Court Decision 89Meu2445, Mar. 13, 1990); and the efforts to avoid dismissal should be made by comprehensively examining the management situation of the company (see, e.g., rationalization of management policies or work methods, prohibition of new employment, temporary retirement, utilization of temporary retirement and transfer of voluntary retirement).

According to the records, the non-party, who is the complaint of the above management office, filed an application for transfer to another apartment complex, and Article 12 of the plaintiff's personnel management and service regulations provide for the transfer between complexes. In light of the above fact that there are more apartment complexes entrusted by the plaintiff in charge of the management of all apartment complexes except the above apartment complexes. Thus, inasmuch as the plaintiff did not submit data to estimate the management status of the whole company, such as the effect of the management status of all apartment complexes managed by him, total number of employees, operating income, size of the company, company's assets and liabilities, etc., it cannot be acknowledged that there is an urgent situation for the plaintiff to reduce the personnel expenses due to the reduction or loss of the operating income in the one management office, which occurred from the representative meeting to the plaintiff's payment for the reduction of personnel expenses, and therefore, it is not impossible for the plaintiff to rearrange the number of employees who cannot continue to work in the apartment complex management office to the management office or the head office of the apartment complex management office of the other apartment complex.

Therefore, it is just that the court below did not make efforts to avoid dismissal of the intervenor, and there is no error in the misapprehension of legal principles as to efforts to avoid necessary dismissal as a requirement for layoff. This part of the grounds of appeal cannot be accepted.

3. The allegation in the grounds of appeal that the intervenor committed an unlawful act as alleged in the grounds of appeal is a new argument that did not exist in the court below. Thus, the allegation in the grounds of appeal to the effect that there was an error of omission of judgment as to

4. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo Sung-sung (Presiding Justice)