Where the rules of employment are amended between the time of the occurrence of the disciplinary cause and the time of the request for disciplinary procedure, the effect of the amended rules of employment and the application of the amended rules of employment that provide for unfavorable legal effects by extending the period of prescription for workers with regard to existing facts or legal relations shall be restricted.

If an enterpriser established the enforcement date while preparing or amending the rules of employment, barring special circumstances, the rules of employment becomes effective as of the enforcement date stipulated therein, and thus, barring any special circumstance, if the rules of employment were amended between the time of occurrence of grounds for disciplinary action and the time of request for disciplinary procedure, it shall be based on the amended rules of employment as well as their prescribed provisions, barring any special provision otherwise stipulated in the transitional provision. In cases where the amended rules of employment provides unfavorable legal effects, such as extending the prescription period against workers while applying the existing facts or legal relations, such facts or legal relations are not already completed or terminated before the amended rules of employment enters into force, it shall not be deemed as null and void pursuant to Article 96(1) of the Labor Standards Act as it goes against the principle of unreasonable pay in the Constitution, and in relation to the application of the amended rules of employment, it may be limited to exceptional cases where the worker’s trust in the continuation of the previous rules of employment is deemed to be more protected than the public interest demand on the application

Articles 94 and 96(1) of the Labor Standards Act, Article 13 of the Constitution

Korea Transportation Safety Authority (Law Firm Gangseo, et al., Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

Defendant 1 and three others (Law Firm LLC et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2013Nu7577 decided February 13, 2014

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

The grounds of appeal are examined.

1. The rules of employment have the nature of a legal norm that prescribes collective legal relations between labor and management. Thus, unless there is clear evidence, the objective meaning of the language should be respected, and when interpreting beyond the objective meaning should be prudent and strict (see Supreme Court Decision 2002Da69631, Mar. 14, 2003). In addition, unless there are special circumstances, if a business operator established the rules of employment in the course of formulating and amending the rules of employment, the rules of employment becomes effective as of the enforcement date stipulated in the rules of employment, and barring special circumstances, if the rules of employment were amended at the time of the request for disciplinary procedure and the rules of employment at the time of the request for disciplinary procedure, unless otherwise stipulated in the transitional provision, it should be based upon the amended rules of employment and their provisions, even if the amended rules of employment provides unfavorable legal effects such as extending the period of prescription against workers while providing the existing facts or legal relations as the subject of application of the rules of employment, such facts or legal relations are not completed or terminated before the revised rules of employment are in violation of the principle.

2. The reasoning of the lower judgment reveals the following facts.

A. On December 207, 2007, the Intervenor 1 (hereinafter “ Intervenor”) committed misconduct in receiving money and valuables, and the Intervenor 2 committed misconduct in receiving money and valuables on January 19, 2007, and the Intervenor 3 and 4 committed misconduct in receiving money and valuables around August 28, 2007.

B. Article 83-2(1) of the State Public Officials Act amended by Act No. 9296 of Dec. 31, 2008 extended the prescription period from three to five years for acceptance of money and valuables, and for embezzlement and misappropriation of public funds. The Ministry of Strategy and Finance, compared to the audit period on Apr. 15, 2009, issued a written request to the Board of Audit and Inspection to amend its own personnel regulations in line with the amendment of the above State Public Officials Act, on the ground that the purpose of the disciplinary system was set aside due to lack of the prescription period, and that there was a demand from each government agency to revise its own personnel regulations in accordance with the amendment of the above State Public Officials Act, the provision on disciplinary action against receipt of money and entertainment was not implemented for 3 to 5 years. The Plaintiff did not stipulate that “The provision on disciplinary action was implemented for 1 to 3 years retroactively from the date of the amendment of the former State Public Officials Act,” and Article 83-2(1) of the Addenda of the Act was not enacted.

C. The Board of Audit and Inspection has audited the Plaintiff two times from December 21, 2010 to March 25, 201, and thereafter, the investigation agency conducted investigation into the Plaintiff’s suspicions of non-acceptance of money and valuables related to personnel affairs, including the Intervenor 1 and the Intervenor 2 based on the audit result. As a result, the Intervenor’s above misconduct of receiving money and valuables was discovered. The Plaintiff requested a disciplinary resolution on November 20, 201 and passed a disciplinary resolution on December 13, 201, and the said Intervenor was finally dismissed from office on December 13, 201. The Plaintiff requested a disciplinary resolution on January 5, 201 with respect to the above misconduct of receiving money and valuables by the Intervenor 3 and 4, and the said Intervenor was finally dismissed on January 26, 2012.

3. Examining the above facts in light of the legal principles as seen earlier, the Intervenor’s act of receiving and receiving money and valuables was between January 19, 2007 and December 2007, and the Plaintiff extended the three-year period of prescription on the embezzlement and misappropriation of public funds on July 31, 2009 to five years, and without any transitional provision on the extension of the prescription period, the Plaintiff revised the personnel regulations as of July 31, 2009 as of the date of the amendment. Even if the revised personnel regulations as of July 31, 2009 stipulate unfavorable legal effects by extending the prescription period for workers, it cannot be deemed that the period of prescription, which was three years prior to the enforcement of the above revised personnel regulations, was retroactive provisions prohibited under the Constitution, and it cannot be deemed that the Plaintiff’s request for disciplinary resolution as of July 15, 2009, which was the date of enforcement of the disciplinary decision as of July 21, 2005.

Nevertheless, the court below held that the decision of this case which dismissed the plaintiff's request for reexamination on the ground that the above disciplinary action against the plaintiff's intervenors was unlawful since three years have passed since the plaintiff's request for disciplinary resolution was made in accordance with the personnel regulations prior to the amendment of the Act on the Management of Personnel, and the disciplinary action against the intervenor was made after three years have passed since the plaintiff's request for disciplinary resolution was made. The court below erred by misapprehending the legal principles on the interpretation of the rules of employment for which disciplinary action has been extended without the transitional provision, which affected the conclusion of the judgment. The ground of appeal

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition.

Justices Yang Chang-soo (Presiding Justice)