[1] Method of determining whether a worker was dismissed on the ground of a legitimate act for the worker's trade union work in substance, unlike the ground for the disciplinary action on the surface

[2] The elements for a disciplinary action against an employer to be subject to criminal punishment under Articles 30(1) and 110 of the Labor Standards Act

[1] Article 27(1) of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007); Article 39 of the Trade Union Act / [2] Articles 30(1) and 110 of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007)

[1] Supreme Court Decision 90Nu7685 delivered on April 23, 1991 (Gong1991, 1518), Supreme Court Decision 93Nu4595 delivered on December 10, 1993 (Gong1994Sang, 371) / [2] Supreme Court Decision 93Do3128 delivered on June 14, 1994 (Gong1994Ha, 1994) Supreme Court Decision 95Do218 delivered on November 24, 1995 (Gong196Sang, 304) Supreme Court Decision 205Do8291 delivered on November 11, 2007

Plaintiff

Defendant and Prosecutor

Seoul Southern District Court Decision 2007No140 decided August 1, 2007

Each appeal shall be dismissed.

We examine the grounds of appeal.

1. As to the prosecutor's appeal

In cases where an employer is deemed to have imposed a disciplinary action against a worker on the ground of a worker’s justifiable act for labor union affairs, unlike the ground for disciplinary action on the ground of the worker’s disciplinary action on the ground of the worker’s disciplinary action, it shall be deemed as one of the unfair labor practices under the Trade Union and Labor Relations Adjustment Act. Whether the worker’s justifiable act for labor union affairs was the reason for disciplinary action on the part of the employer, the contents of the justifiable act for the worker’s trade union’s work, the period of disciplinary action, the relationship with the employer and the trade union, and all other circumstances that may presume the existence of the intent to engage in unfair labor practices should be compared and determined comprehensively (see, e.g., Supreme Court Decisions 90Nu7685, Apr. 23, 191; 94Nu3001, Dec. 23, 1994).

In light of the above legal principles and records, the court below's determination that the defendant's disposition of suspension of duties against the non-indicted 1 and the non-indicted 2 on January 24, 2005, such as dismissal on April 8, 2005, was derived from the defendant's intent to engage in unfair labor practice cannot be concluded, and that there is no other evidence to acknowledge this otherwise is acceptable as a legitimate fact-finding and judgment.

In addition, by taking account of the various circumstances recognized by the employment evidence, the court below is just in holding that the defendant's remarks on June 6, 2004 and his actions on June 7, 2004 by the members cannot be viewed as unfair labor practices that control or intervene in the organization or operation of a trade union, and that there is no other evidence to find the defendant guilty of this part of the charges.

The court below did not err by violating the rules of evidence or by misapprehending the legal principles on unfair labor practices.

In addition, in a case where it is not unreasonable for an employer to determine that there exists a ground for disciplinary action in light of the circumstances at the time of the disciplinary action, even if the disciplinary action is recognized as having no justifiable ground in the judicial proceedings and null and void, it cannot immediately be subject to criminal punishment under Articles 10 and 30(1) of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007). Here, the disciplinary action is subject to criminal punishment only where it is recognized that the disciplinary action is abused or deviates from its content and it is deemed that it has a ground for social norms (see, e.g., Supreme Court Decisions 93Do3128, Jun. 14, 1994; 95Do218, Nov. 24, 1995; 2005Do316381, Oct. 27, 2005).

According to the above legal principles and facts acknowledged by the court below, it is unreasonable to judge that the defendant had justifiable grounds for disciplinary action at the time of taking each of the disciplinary actions as stated in the judgment below. Thus, even if each of the above disciplinary actions is recognized to be null and void in judicial proceedings without justifiable grounds, it is difficult to readily conclude that the above disciplinary action of the defendant is constituted a criminal offense by evaluating that the above disciplinary action of the defendant was punishable by social norms. Although the reasoning of the court below is partly inappropriate, the conclusion that the court below did not constitute a criminal punishment under the Labor Standards Act

The court below did not err in the rules of evidence or in the misapprehension of legal principle.

2. As to the defendant's appeal

Since the court of final appeal is a follow-up trial on the judgment of the appellate court, matters which are not subject to a trial in the appellate court are not subject to the scope of a trial in the court of final appeal. Thus, a ground other than those which the defendant did not assert as the grounds of appeal in the appellate court or is subject to a trial in the appellate court ex officio shall not be considered as the grounds of final appeal (see, e.g., Supreme Court Decision 2005Do29

In light of the above legal principles and records, the defendant and his defense counsel did not submit the appellate brief within the deadline for submission of legitimate appellate brief, and they did not state the grounds for appeal in the petition of appeal. In this case, the defendant's argument concerning the facts charged in violation of the Labor Standards Act concerning "the former disposition on January 1, 2005 against non-indicted 2" in the appellate brief cannot be a legitimate ground for appeal, since the court below's determination on the facts charged in violation of the Labor Standards Act in relation to "the former disposition on January 1, 2005 against non-indicted 2" is subject to the judgment of the court below ex officio. Furthermore, even if examined, the

3. Conclusion

Therefore, each appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)