2011Guhap28684 Revocation of Disposition of Imposing a non-performance penalty

A Stock Company

Seoul Regional Labor Relations Commission

November 1, 2011

December 2, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 5,00,000 for non-performance penalty against the Plaintiff on May 31, 2011 is revoked.

1. Details of the disposition;

A. The Plaintiff’s employee B asserted that he was subject to unfair dismissal from the Plaintiff and filed an application for unfair dismissal with the Defendant.

B. On March 11, 2011, the Defendant recognized that B was unfair, and determined that B would pay KRW 16,886,160 to B in lieu of the reinstatement of the original position within 30 days from the date of receipt of the written ruling (hereinafter “instant ruling”). The Plaintiff, without complying with the order of remedy prescribed in the instant ruling, filed an application for reexamination with the National Labor Relations Commission, and filed an application for reexamination with the National Labor Relations Commission. On May 31, 2011, the Defendant rendered a disposition imposing KRW 5,00,000 for the enforcement fine on the Plaintiff on the ground of the Plaintiff’s non-performance of the order of remedy (hereinafter “instant enforcement fine”).

D. On June 3, 2011, the Plaintiff and B reached a settlement with the effect that the Plaintiff paid KRW 3 million to B, and that B withdraws various civil and criminal cases against the Plaintiff.

[Ground of recognition] A without dispute, Gap evidence No. 5, the purport of the whole pleadings

2. Whether the charge for compelling the performance of this case is lawful

A. The plaintiff's assertion

B Although voluntary withdrawal was made, since the Defendant deemed that B was unfairly dismissed from the Plaintiff, the instant determination was unlawful, and therefore, the imposition of the instant non-performance penalty on the ground of non-performance of the illegal determination is also unlawful.

B. Determination

Article 32 of the Labor Standards Act provides that "the effect of the remedy order issued by a local Labor Relations Commission shall not be suspended by an application for reexamination or an administrative litigation," and Article 33 (1) of the same Act provides that "the local Labor Relations Commission shall impose a charge for compelling the performance on an employer who fails to comply with the order by the deadline for performance after receiving the order for remedy." Therefore, in this case where no evidence exists to deem that the order for remedy issued by the Plaintiff was suspended by the deadline for performance, as seen earlier, unless it is obvious that the Plaintiff failed to comply with the order for remedy by the deadline for performance. In addition, even if the Plaintiff and B agreed upon by the National Labor Relations Commission after the deadline for performance of the order for remedy, the imposition of the charge for compelling the performance of this case which was already made before the deadline for

Therefore, the Plaintiff asserts that the imposition of enforcement fines in this case is unlawful. The Plaintiff asserts that the imposition of enforcement fines in this case is unlawful since the judgment in this case is unlawful. In the event that two or more administrative dispositions are continually conducted, when one of the preceding dispositions and subsequent dispositions completes one legal effect, the defect is succeeded to the subsequent disposition, and thus the validity of the subsequent disposition can be asserted on the ground of the defect in the preceding disposition even in a case where it becomes impossible to dispute the validity of the preceding disposition because of the defect in the preceding disposition. On the other hand, in a case where the preceding disposition and subsequent disposition are carried out for separate legal effect independently, the validity of the subsequent disposition cannot be asserted on the ground of the defect in the preceding disposition except for a case where the defect in the preceding disposition and subsequent disposition are grave and obvious, and even if the preceding disposition and subsequent disposition are carried out independently for a different effect, it is harsh that the absence of force in the preceding disposition and binding force exceed the limit of admission in this case, and if the result is predicted to the parties, it is not possible to guarantee the rights of the people in the preceding disposition, 195.

In light of the general legal principles and the purport of the enforcement fine system to secure the effectiveness of the order of remedy by the Regional Labor Relations Commission, and the purport of the remedy order system by the Labor Relations Commission as prompt remedy procedure, the plaintiff cannot assert illegality of the judgment of this case as the illegal ground for the imposition of the enforcement fine of this case. Thus, the plaintiff's above assertion is judged to be without merit and specific reasons are as follows.

The judgment of this case, which is a prior disposition, and the imposition of enforcement fine of this case, which is a subsequent disposition, are not combined with one another, but for a separate legal effect. Thus, unless the judgment of this case is revoked, the imposition of enforcement fine of this case cannot be asserted on the ground of illegality of the judgment of this case.

○ As the Plaintiff had an opportunity to settle the issue of non-performance of the remedy order in the review procedure of the National Labor Relations Commission, which is the procedure for protesting against the instant determination, in a lump sum, so recognizing the non-performance of the remedy order or the binding force of the instant determination, which is the preceding disposition, would bring about a harsh disadvantage exceeding the permissible limit of admission to the Plaintiff, and the result does not constitute a case where the parties concerned

Therefore, the instant disposition is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

the presiding judge and deputy judge

Judges Yang Yang-ju

Judges Lee Jae-in