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(영문) 서울고등법원 2018.11.21 2018누62418
부당해고구제재심판정취소
Text

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff, including the part arising from the supplementary participation.

Reasons

1. The purport of the grounds of appeal is not that of the public interest purpose, but that of the case, an incorporated association is merely a part of the intervenor's favor to the City/Do in order for C to neglect the plaintiff.

The grounds for disciplinary action against the intervenor are recognized and serious, and the dismissal of this case is appropriate as the plaintiff and the intervenor are no longer able to continue the employment relationship due to the reasons attributable to such intervenor.

Therefore, the review decision of this case and the judgment of the court of first instance, which judged that the disciplinary decision of the dismissal of this case is excessive, should be revoked as it is unlawful.

2. Determination

A. Whether to take a disciplinary measure against a worker in the relevant legal doctrine is at the discretion of the person having the authority to take the disciplinary measure. However, if the person having the authority to take the disciplinary measure has considerably lost validity under the social norms, it may be deemed unlawful only when it is recognized that the person having the authority to take the disciplinary measure has abused the discretionary authority. If the disciplinary measure has considerably lost validity under the social norms, it should be determined that the disciplinary measure is objectively unreasonable in light of various factors, such as the content and nature of the misconduct causing the disciplinary measure, the purpose to achieve the disciplinary measure, the criteria for the determination of the disciplinary measure, etc. according to the specific case. Even if the exercise of the authority to take the disciplinary measure is left at the discretion of the person having the authority to take the disciplinary measure, it violates the public interest principle that should exercise the authority to take the disciplinary measure for public interest, or is generally considered as a disciplinary reason, going against the principle of proportionality or the principle of fairness that has been applied to the same degree without reasonable grounds, thereby violating the principle of equality.

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