2012AD 19681 Nullification, etc. of a disposition of suspension from office

1. ○○;

2. Kim Jae-in

3. Private sector ○; and

The address of the plaintiffs, Yeongdeungpo-gu Seoul Metropolitan Government Sododong 0

[Defendant-Appellant] Defendant 1 et al.

Attorney Shin Jae-soo, Counsel for the plaintiff-appellant

OO Broadcasting Corporation

Yeongdeungpo-gu Seoul Metropolitan Government Manaro 0

Representative Director ○ Kim

Law Firm LLC, Attorney Park Jae-soo

Attorney Kim Yong-mun

November 15, 2013

December 20, 2013

1. On September 11, 2012, the Defendant confirmed that each of the disciplinary measures taken against Plaintiff Lee ○, who was suspended from office for three months against Plaintiff Lee ○, and against Plaintiff Lee ○○, was null and void for one month of suspension from office, and one month of suspension from office for Plaintiff Kim ○ on September 24, 2012.

2. The Defendant shall pay to the Plaintiff ○○○○ KRW 10,00,00, and KRW 3,000,000, and KRW 00 to the Plaintiff Kim○, and KRW 20 per annum from November 2, 2012 to the day of full payment.

3. The costs of the lawsuit shall be borne by the defendant.

4. Paragraph 2 can be provisionally executed.

The order is as set forth in the text.

1. Basic facts

A. Status of the parties

The Defendant is a broadcasting business entity that runs broadcasting business, cultural service business, etc. The Plaintiff ○○ is a vice head of the culture production department of the Defendant, and the Plaintiff ○○ is a candidate for the production of “○○○○”, a broadcast program producer of the Defendant’s broadcast program, and the Plaintiff ○○ has been working as a PD in charge of the production of the same program. The Plaintiff ○○ is an employee of the Defendant ○○ in charge of the production of the same program.

B. On August 24, 2012, the Plaintiff Lee○-○ and Kim○-○ produced a program (hereinafter referred to as "○○-○ case") related to the labor-management rules between Non-Party O system Korea Co., Ltd. (hereinafter referred to as "○○○") located in racing and the Non-Party metal trade union branch (hereinafter referred to as "○○○○○ branch") comprised of its employees, and Non-Party metal trade union branch (hereinafter referred to as "○○ branch") produced a program related thereto (hereinafter referred to as "○○○ branch"). The Plaintiff Lee○-○, a superior of Kim○-○, and Non-Party ○○○ (hereinafter referred to as "the program of this case") refused to broadcast the program of this case.

3) On the other hand, on August 24, 2012: around 41, 2012, Plaintiff ○○○ published on the Defendant’s free bulletin board. On the other hand, on the 27th day of the same month, Kim○-○ published on the Defendant’s free bulletin board a letter explaining the reasons for the ○○○ proposal, and on the 10th day of the same month, the Plaintiff ○-○, and Lee○-○, respectively, posted on the same bulletin board. Around 12:29 and around 15:47, respectively, posted a new letter that explains the contents of the ○○ proposal (the above notices of this case are collectively referred to as “the notice of this case.” The contents are as shown in attached Table 1).

4) On September 11, 2012, the Defendant held a personnel committee and took each of the disciplinary measures against the Plaintiff Lee ○○ on September 11, 2012, on the grounds of violation of the Broadcasting Production Guidelines (hereinafter referred to as the “Guideline”); three months of suspension from office on the grounds of violation of the Guidelines; two months of suspension from office on the grounds of violation of the Guidelines; and one month of suspension from office on the grounds of violation of the workplace order (related to the posting of the free bulletin board); and one month of suspension from office on the grounds of the violation of the workplace order (related to the posting of the free bulletin board). As a result of the Plaintiffs’ request for reexamination, the Plaintiff Kim ○ was reduced to one month from suspension from office on September 24, 2012; the first suspension from office on the rest of the Plaintiffs was maintained (hereinafter referred to as the “instant suspension from office”).

C. Details of the defendant's employment rules and guidelines for broadcast production related to this case are as shown in the attached Table 2.

[Ground of recognition] In the absence of dispute, entry in Gap 1, 4, 5, Eul 2, 6, and 10 evidence (which include each number; hereinafter the same shall apply) and the purport of the whole pleadings.

2. The parties' assertion

A. The plaintiffs

The Plaintiffs complied with the Defendant’s guidelines and all procedures according to the production practices of “○○○,” and implemented all follow-up measures according to the decision of the program production manager. Moreover, the instant bulletin belongs to the freedom of expression and cannot be subject to disciplinary action.

Therefore, the instant suspension disposition is null and void due to deviation from and abuse of the right to the amount of disciplinary action even if there is no grounds for disciplinary action, and even if there is a family reason. The Plaintiffs seek against the Defendant for the confirmation of invalidity of the instant suspension disposition and the payment of wages not paid during the suspension period.

(b) the Defendant;

The Plaintiffs, in violation of the guidelines, selected the subject without reporting or consulting on the manufacturer responsible person, and did not report it to the responsible person even during the production process of the ○○ proposal, reported a broadcast program including OO case on August 23, 2012, which was prior to the day of the broadcast of the instant program, and did not comply with the repeated instructions given by the production responsible person, and urged editing work. Moreover, after the OO case was finally removed, the Plaintiffs slanderd the superior, Kim○ and Kim○-○, a superior on the bulletin board of the intra-company website. Accordingly, the instant disposition of suspension from office was valid and it cannot be said that there was grounds for disciplinary action, and that there was deviation or abuse of discretionary authority.

3. Determination as to the claim for nullification of the suspension disposition of this case

(a) Facts of recognition;

The following facts may be acknowledged by comprehensively taking into account the following facts: Gap 2, 3, 8 through 12; Eul 1, 3, 5; Eul 1, 13-1, Eul 14; Eul ○○○○, Eul 4, 7; Eul 4, and 7's testimony against the following facts; Eul 4 and 7's testimony against the following facts are not trusted; Eul 12's statements were insufficient to recognize the following facts; Eul 12's "the nature of ○○'s broadcast service" was the most serious issue during the period of production of the program from June 3, 201 to December 15, 201; "the audience's attention" was the first time of production of the program of this case; "the audience's attention" was the first time of production of the program of this case; and the first time of production of the program of this case was the first time during the period of production of the program of this case.

Before the broadcast of the program of this case, the subjects introduced through the item of the ‘the program of this case' were the case of the successful bid fraud of the human group, the case of the teacher's excessive punishment, the case of assault against the head of Park○○ Seoul Special Metropolitan City, the fraud suspicion of the Park Cemetery Foundation that manages the maximum ○○ cemetery, the problem of apartment noise noise, and the theft caused by the high price explosion, etc.

2) The ○○ and the ○○○ Branch Association established an industrial action since February 2010, and the ○○○○ Branch Association respondeded to a lock-out. On May 2010, a resolution was passed by the members of the ○○ Branch Association to change the said branch, which is a company-level labor union, into a company-level labor union, after going through a general meeting, but the rules of labor and management have been continued, such as filing a lawsuit seeking confirmation of invalidity of the resolution on the change of organization by the Korean Metal Trade Union.

On the other hand, from May 18, 201, ○ conducted education on the name of “○○ Education” against his employees from around May 18, 201. In the instant education course conducted in the form of two-day stay, where the task was imposed on the employees during the said education course and the performance of the task was not possible, the act of infringement of human rights, such as putting a punishment, such as a dives unfolding long door, and dives, was caused by the act of infringement of human rights. Accordingly, on July 19, 2012, a petition was received by the IC Committee, which is the State, and from the “OO,” which is the Defendant’s program for accusation of current issues, 2012.

10.7. Around July 10, 100, a broadcast program production officer and a person in charge of the production of the instant program, the first production officer at the time of production of the instant program, the first production officer at the time of production of the instant program, Kim ○○, the head of the Defendant’s culture, and the last officer at the time of production was Kim ○, the head of culture, the country of culture. However, since the production of the “OOOO”, including Kim ○, was under the jurisdiction of four programs, it was actual, since this ○○○ was selected and appointed through consultation with other PD, and submitted a broadcast program by combining the results after reporting the subject to appointment to Kim ○○, and the role of Kim ○○ was determined by the agreement between the Plaintiff and the first production officer at the time of production of the instant program.

The '○○○○’ is a program aired on a daily basis, and the subject was established after reporting to the Director of the Ministry of Culture, who is an officer in charge of production on a daily day, and the subject was determined. However, in the case of 'case-based business', the subject was commenced on a commercial day or on a demand date, and the subject was reported to the person who is responsible for production during the demand date. Furthermore, the PE confirmed the content of coverage and decided whether to broadcast the subject, and then made a broadcast report to the person responsible for production on a daily day which is the day before the broadcasting day, and then made the broadcast report to the person responsible for production, and made a supplement.

B) ○○ subject selection and production process

On August 20, 2012, Plaintiff ○○ submitted a broadcast draft on the seven topics to be broadcasted by the instant program to Kim○○ on a monthly Saturday, which identified only the other six issues. On August 21, 2012, the following day, at around 30: 10:30, Kim○○ asked about the subject of the subject of the instant program.

On the other hand, on August 20, 2012: around 00: (a) around 21, 2012, Plaintiff Kim ○○ proposed the subject of the instant case to Plaintiff Lee ○○○; (b) however, Plaintiff Lee ○ did not make a decision and ordered Plaintiff Kim ○○ to present an advance coverage to Plaintiff Kim ○○ on the following day. Accordingly, Plaintiff Kim ○ opened a telephone coverage on the same day, and reported the results thereof to Plaintiff Lee ○○ and conduct on-site coverage.

As a result, the plaintiff Lee ○-○ approved this, and the plaintiff Kim ○-○ began on August 22, 2012 with a racing around 00:0, and completed on-site coverage and returned at around 13:0 on the following day. The plaintiff Kim ○-○ returned at around 00.

8. 22. 12: around 00, the plaintiff Lee ○ decided to confirm the process of coverage to the plaintiff Kim ○○ and include the ○○ case in the program of this case.

C) Order to discontinue production by Kim○-○ and decision to stop production by Kim○-○

On August 23, 2012, 2012: around 00: (a) around 00, Plaintiff ○○ reported the broadcast proposal of the instant program to Kim○○○, and accordingly, Kim○○ was in violation of the guidelines in the production process of ○○ proposal and ordered suspension of production on the ground that the content was not neutral. However, Plaintiff ○○○ and Kim○ continued the editing of ○○○ proposal, but around 20:0 on the same day, Plaintiff ○○ instructed Plaintiff ○○○ to suspend re-production, and reported these circumstances to Kim○○○.

On August 24, 2012, the Plaintiff ○○○ and ○○○ requested a decision on whether to broadcast the final compilations with respect to the foregoing instructions of Kim○○○’s production suspension. Around 10:40, in the presence of Kim○○ and Kim○○, the trial society on the instant case was implemented. Here, ○○ finally decided on the ground that the instant program was not consistent with the guidelines and the planning intent of the “living broadcast ○○○”. Accordingly, the instant program was aired with the exclusion of ○○ case, but it was possible to set up the time of the program in a way that sets up the broadcasting time of the remaining items. 4) The Plaintiff’s personnel committee was held with respect to the Plaintiffs.

On September 10, 2012, the first instance trial and review personnel committee on each of the plaintiffs held on September 10 and 24, 2012, deliberated on the following facts: ① the plaintiff Lee ○○ selected a sensitive subject such as labor-management issues without consultation with Kim ○, a program manager, and did not report during coverage; ② the job order was disturbed due to the publication of this case; ② the plaintiff Kim ○○ did not comply with the direction of suspension of production of this case; ② the plaintiff Kim ○○ did not interfere with the order of suspension of production of this case; ③ the plaintiff Kim ○○ violated the work order by the publication of this case; and ③ the plaintiff Kim ○ made a report to the plaintiff Lee ○, a PD, on the appointment of the plaintiff Kim ○○; and ③ the plaintiff Kim ○ did not have any responsibility for failing to comply with the duty to report prescribed in the guidelines.

5) Prior to the Plaintiffs’ commendation and discipline force and the Defendant’s similar disciplinary action case, Plaintiff Kim ○ and ○○○ did not have received any official commendation or disciplinary action, and Plaintiff Lee ○○ received an outstanding award on around 2006 and received a disposition of suspension from office for a period of three months on the ground of sexual harassment around 2007.

On the other hand, on June 7, 2010, the defendant issued a disposition of reduction of one month against the non-party ○○ and Kim○, who are his employees, for the reason that he slandered the president by using a character-to-be expression (i.e., 'after-the-spot type', 'the 'the 'the 'the 'the 'the 'the 'the 'the '', 'the 'the 'the 'the 'the 'the ''), 'the 'the 'the ' the 'the ' the 'the ' the 'the ' the '', ' the ' the ' the 'the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the '

B. Determination as to the existence of grounds for disciplinary action

In full view of the above facts and the purport of the entire arguments, the instant suspension disposition is deemed to have no grounds for disciplinary action in light of the following circumstances. Accordingly, this part of the Plaintiffs’ assertion on this issue is with merit. The Defendant’s assertion on this issue is divided into grounds for disciplinary action against the Plaintiffs.

1) The part concerning prior consultation and non-performance of the duty to report as set out in the guidelines of ○○○○.

The Defendant’s guidelines provide that the broadcast subject shall be consulted with the program manager in advance and shall be reported from time to time to time to the responsible person in the course of coverage, but on the other hand, the primary responsibility for production shall be determined by the PD in charge. Also, in light of the nature of the “cropsing business” issue aimed at introducing a timely chemical product, such prior consultation and the degree of reporting obligation should be flexibly interpreted depending on the need for the program production.

However, in light of the fact that Plaintiff Kim ○, on August 22, 2012, started with a racing on the new wall, the time at which Plaintiff Lee ○, and Kim ○○ selected ○○ as the subject of theme is as soon as possible.

There seems to have been p.m. Accordingly, it was impossible before that time to report on the selection of the subject to theme to Kim○○○, and even if the Plaintiff Lee○○ considered the subject of the “Cro business” as the subject of the issue, it is difficult to readily conclude that it is a failure to report or a false report.

In addition, even if the authority of Kim○, a manufacturing officer, is not expressly delegated to the Plaintiff Lee ○, a manufacturing officer, in connection with the production of "OO", it appears that most of the production of the program was led by the Plaintiff Lee ○○. In particular, in relation to the production of "OO" item, it appears that there was a practice of starting coverage before reporting theme to Kim○, a manufacturing officer, in connection with the production of "OO" item. Also, even in the case of the entry of the Defendant's proposal for deliberation of the Personnel Committee (No. 13-1) of the submission of the Defendant, it seems that the Defendant dealt with the item, such as the labor-management problem that had not been dealt with once until now, such as the "OOO that ordinarily deals with living information type item." Since the appointment of PD ordinarily has a duty to report prior to the commencement of the production or photographing, it seems that there was no problem even if the appointment of PD did not normally report the subject to reporting to the manufacturing manager.

In principle, whether ○○’s recommendation is neutral or broadcast content of “O” is not subject to the judgment of the court of this case, but rather, compared with other subjects introduced through “the program broadcasting business” prior to the broadcast of this case, it is difficult to view the ○○ proposal as an exceptional. In addition, prior to this, it is difficult to view the production and transfer of the program of this case as seen earlier.

Considering the production practices of 'O', it seems that there was a justifiable reason to determine that ○○ broadcast could have been aired even if the Plaintiff’s OO or Kim○ submitted a broadcast proposal prior to a day of broadcasting.

In full view of these circumstances, even if there are circumstances in which Plaintiff ○○ did not report prior to the instant case on the ○○ case and did not observe the procedures set forth in the guidelines, it is difficult to view it as grounds for disciplinary action.

2) The non-compliance with the direction of the discontinuance of production by Plaintiff Lee O and Kim ○○

According to the defendant's guidelines, PD is required to make a decision on whether to broadcast the programs through a meeting held by the upper responsible person, unless there is a considerable reason. Therefore, it is reasonable to view that, if there is any disagreement between PD and manufacturing responsible person's opinion on whether to broadcast the programs through a meeting held by the upper responsible person, he/she may attempt to communicate and persuade one another on the premise that he/she would follow the upper responsible person's decision. Therefore, even if the above plaintiffs requested to stop production on several occasions before Kim ○○'s decision was made, even if Kim○ issued orders to stop production on several occasions before the decision was made by Kim○-○ and Kim○'s decision, it is difficult to see that the above plaintiffs' request was in violation of guidelines or work order (if the order to suspend production was issued by the superior, it is against the language of the above guidelines, and it is against the nature and fairness of the media, which is premised on autonomy and fairness). Accordingly, even if it did not occur during the production process of the plaintiff ○○'s decision through the above guidelines.

3) The part concerning the plaintiffs' writing of this case

Some of the contents of the instant comments are as follows: “No culture as the Director of the Cultural Production Bureau is available to Kim○-○,” or as to “No Ma○-○, it contains somewhat excessive or emotional expressions about strike,” and Plaintiff ○○-○, a member of another department who is entirely irrelevant to the production of ○○ proposal, without confirmation of accurate facts.

However, the instant bulletin appears to have the purport to raise an issue of the Defendant’s decision on the instant case’s ○○ case rather than harming a specific person as a whole, and the Plaintiff’s ○○○○ written bulletin does not seem to have included a particular content of slandering ○○○ or Kim○, etc. Moreover, the Plaintiff’s assertion to the effect that the content of the instant bulletin was related to the strike, and thus, the Plaintiffs were irrelevant to the Defendant’s internal issues at the time.

In addition, as long as Kim○○ or Kim○-○ actually rendered an order to suspend production or a decision to refrain from production, it seems that there was a reasonable ground to think of the facts in addition to the violation of the guidelines as the Plaintiffs. Taking account of these circumstances, it is difficult to deem the preparation of the instant bulletin as a ground for disciplinary action.

C. Determination as to whether a disciplinary discretion has been exceeded or abused

On the other hand, considering that the above acts of the plaintiffs constitute grounds for disciplinary action, in principle, whether the disciplinary action should be imposed upon workers for the reason for disciplinary action is based on the discretion of the person having authority to take the disciplinary action, but if it is recognized that a disciplinary action has abused the discretionary power that has been placed to the person having authority to take the disciplinary action because it has substantially lost validity under the social norms, the disciplinary action can be deemed unlawful. Here, a disciplinary action which has substantially lost validity under the social norms refers to a case in which, depending on specific cases, it is deemed that it is objectively unreasonable in light of the characteristics of duties, the contents and nature of the misconduct which has caused the disciplinary action, and the purpose of the disciplinary action and all the circumstances accompanying such disciplinary action (see

27. Supreme Court Decision 2010Da99279 Decided January 2, 201

However, in full view of the purport of the argument as a whole in the previous facts of the pleading, it appears that there was a production practice different from the guidelines as seen earlier in relation to the production of ○○○○○○○○○○○, ○○○○○○, despite the acts of the Plaintiff’s Lee ○, and Kim○○, did not broadcast the case and did not cause any broadcast accident. ③ The contents and expressions of the instant bulletin, the level, etc. do not seem to be excessive, and the Defendant did not seem to have any excessive degree of attendance suspension or any other disciplinary action against the members who use clearly insulting expressions, ④ the Defendant did not have any history of past disciplinary action against the Plaintiff Kim ○, and the Defendant did not have any history of past disciplinary action against the Plaintiff Kim○, and thus, the instant suspended disposition seems to be a deviation and abuse of discretion.

Therefore, the plaintiffs' assertion on this point is also justified.

D. Sub-committee

Therefore, the instant suspension disposition is null and void because there is no cause for disciplinary action, or even if there is a cause for disciplinary action for household affairs, it constitutes a deviation or abuse of discretionary authority, and as long as the Defendant contests the invalidation of the disposition, the Plaintiffs have interests to seek confirmation.

4. Determination on the part on the claim for wage payment

As long as the instant suspension disposition is null and void, the Defendant is obligated to pay the wages that the Plaintiffs could have received during the respective suspension period. However, there is no dispute between the parties as to the fact that the Plaintiffs’ wages that the Plaintiffs had not received during the suspension period are KRW 10 million in the case of Plaintiff O, Plaintiff Kim ○, and CivilO.

Therefore, as wages during the suspension period, the Defendant is obligated to pay to the Plaintiff Lee ○○○, KRW 10 million, KRW 3 million, and each of the above three million amounts to the Plaintiff Kim ○, and KRW 20 million, as the Plaintiffs seek, damages for delay at the rate of 20% per annum prescribed by the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from November 2, 2012 to the day of full payment.

5. Conclusion

Therefore, it is decided as per Disposition by admitting the plaintiffs' claims for all reasons.

Judges Park Jae-sik

Judges Kim Dong-dong

Judges Type Mai

A person shall be appointed.