(영문) 서울행정법원 2014.7.11. 선고 2014구단50456 판결

The imposition of enforcement fines of KRW 8,00,000 against the plaintiff on January 1, 2013 by the National Labor Relations Commission shall be revoked.

Reasons

1. Basic facts

A. The Plaintiff is a business owner who runs a village bus transport business by employing 53 full-time workers after being established on March 2, 1993.

B. On November 5, 2010, the Plaintiff employed workers A as a community bus engineer with a one-year contract period fixed, and agreed to extend the contract period with A on November 5, 2011. On November 28, 2011, A verbally expressed to B his/her intent to resign in the event that it does not take corrective measures, and B delivers it to C on the same day, and C delivers it to C on the same day, without directly confirming the Plaintiff’s intention to resign or demanding the submission of a written resignation, and C prepares and processes the written goods as a member of the Council from December 1, 2012.

C. A filed an application for remedy with the Seoul Regional Labor Relations Commission because the processing of the Plaintiff’s member positions constitutes an unfair dismissal, and the Seoul Regional Labor Relations Commission dismissed the application for remedy on February 9, 2012. On May 30, 2012, A filed an application for review with the National Labor Relations Commission on the ground that the expression of intention of A constitutes an unfair dismissal. On May 30, 2012, the Central Labor Relations Commission revoked the first instance judgment and issued an order for review within 30 days from the date of receipt of the written adjudication, stating that “A is reinstated to the original position and is paid an amount equivalent to the wages that could have been paid if the Plaintiff had worked during the period of dismissal” (see Supreme Court Decision 2012Du268, hereinafter referred to as “instant decision for reexamination”). The Plaintiff was served on July 6, 2012 on the written adjudication for reexamination.

D. Although the Plaintiff, who was dissatisfied with the instant decision on reexamination, filed a lawsuit seeking the revocation of the said decision on reexamination, a judgment dismissing the Plaintiff’s claim was rendered and finalized on the ground that there was no effective declaration of resignation by A (see, e.g., Supreme Court Decision 2012Guhap22989, Jan. 30, 2013; Supreme Court Decision 2013Nu6024, Aug. 29, 2013). E., the National Labor Relations Commission rendered a disposition imposing an enforcement fine of KRW 8 million on the Plaintiff on the ground that the Plaintiff failed to comply with the order for remedy of the instant decision on reexamination by August 6, 2012, the period for performance, pursuant to Article 33 of the Labor Standards Act, and on November 21, 2013 (hereinafter referred to as “instant disposition”).

[Based on Recognition] Each entry of Gap 1 to 4 (including paper numbers)

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The labor contract with A is terminated as of November 4, 2012. The instant decision on reexamination was finalized on September 2013, when the judgment dismissing the Plaintiff’s claim was finalized on or around September 2013, and thus, at the time the decision on reexamination of reexamination of this case became final and conclusive, it was impossible to reinstate A’s original position. The instant decision on reexamination of this case ordered the reinstatement of the original position that cannot be implemented, and thus, is null and void as the defect is serious and apparent.

(2) Of the instant decision on reexamination, it is impossible to implement the instant order because it is impossible to specify the amount of the payment order equivalent to the amount of the wage during the dismissal period and to easily calculate the amount of the wage. As such, the defect is serious and obvious, and thus, it is null and void.

(3) As long as the order of remedy for the instant review ruling is null and void as a matter of course, the instant disposition premised on the order of remedy is also void as a matter of course.

(b) Relevant Acts and subordinate statutes: To be listed in attached Form;

C. Determination

(1) Whether the retrial ruling of this case is null and void as a matter of course

A) In a lawsuit seeking the revocation of an administrative disposition, since the substantive and procedural illegality of the administrative disposition is the subject matter of a lawsuit seeking the revocation of the administrative disposition, there has been res judicata as to the legitimacy of the administrative disposition after the judgment dismissing the claim for the revocation of the administrative disposition becomes final and conclusive, and thereafter, the plaintiff is not allowed to seek the confirmation of invalidity of the same administrative disposition, and furthermore, even in a case where the prior question of a lawsuit seeking the invalidation of the same administrative disposition becomes final and conclusive, the res judicata effect of the final and conclusive judgment is not allowed in the subsequent suit (see Supreme Court Decision 98Da10854, Jul. 24, 1998).

B. Inasmuch as the judgment dismissing the claim for cancellation of the instant decision was final and conclusive, the Plaintiff’s assertion that the instant decision of review was void as a matter of course is contrary to the res judicata of the final and conclusive judgment, and thus, without any further review, is without merit.

C. In addition, the remedy order issued by the Labor Relations Commission is not in itself an executory power, and is realized by the employer’s act as the offender. As such, it does not need to be excessively strict interpretation as to the specific contents of the order. The employer appears to be able to easily calculate the amount of wages that could have been received if the worker provided normal labor for an unfair dismissal period based on the average wage. The specific amount of an amount equivalent to wages objectively reasonable can be finally determined through mutual agreement between the parties or civil litigation, etc. If it is impossible for the employer to accurately specify the amount of wages or specify wages by the rules of employment or wage payment practices, it would be deemed that the employer may be exempted from liability for nonperformance by arbitrarily paying or depositing the amount calculated by applying the calculation standards that reasonably reasonable grounds for the appeal to the court, and it is difficult for the Labor Relations Commission to impose enforcement fines if the worker fails to comply with the order, etc. This is also difficult to calculate the amount equivalent to the average wages of the worker who failed to receive wages for a certain period of time. It is also difficult for the Plaintiff to use the order as a specific period of 1018.

(2) An order of remedy issued by the Labor Relations Commission for non-compliance with the order of remedy in the instant case is an administrative disposition and becomes effective as soon as the other party to the disposition received a written disposition, and is not subject to the suspension of its validity as a matter of course on the ground that the other party to the disposition filed a lawsuit seeking cancellation of the order, and the judgment dismissing the request for cancellation of the order of remedy does not become effective as a matter of course. The delivery of the written disposition of remedy in the instant case to the Plaintiff was made on July 6, 2012. As of the time when the contract period with A remains for about four months, and the Plaintiff was not able to comply with the order of remedy in the original position. Therefore, the Plaintiff’s failure to comply with the order of remedy in the original position cannot be deemed to have justifiable grounds. In addition, a labor relationship between the parties to the labor contract upon the expiration of the term of the labor contract is terminated as a matter of course by setting a separate measure, such as dismissal of the employer, and thus, the status of an employee is repeated for a period of 97 days (see Supreme Court en banc Decision 97Da.

C. The instant decision on reexamination pertains to the Plaintiff’s remedy for unfair dismissal on November 28, 201. Although it is unclear whether the content of a labor contract relationship between the Plaintiff and A can be applied to the instant legal doctrine on repeated renewal, the Plaintiff’s refusal to conclude a renewed contract without justifiable cause on November 4, 2012 when the contract term with A expires is a separate secondary dismissal, separate from the fact that A may make a separate remedy within the Labor Relations Commission, and the remedy order on the instant decision does not affect the second unfair dismissal. Accordingly, even if the Plaintiff paid an amount equivalent to the amount of wages from December 1, 2011 to November 4, 2012 when deposited for A, the Plaintiff did not pay the amount equivalent to the amount equivalent to the amount of the instant decision on reexamination to the amount equivalent to the amount of wages, and the Plaintiff did not pay the amount equivalent to the amount equivalent to the amount of the instant order on the ground that the contract term expires.

(3) Therefore, the Plaintiff’s assertion is without merit.

3. Conclusion

The plaintiff's claim is dismissed as without merit, and the costs of lawsuit are fully borne by the plaintiff who has lost. It is so decided as per Disposition.