(영문) 서울고등법원 2015.5.15.선고 2014나53259 판결

On January 29, 2013, the defendant confirms that a disposition of removal against the plaintiff on January 29, 2013 is void. The defendant is against the plaintiff.

In addition, ① 135,00,000 won, and the amount stated in the column of the claim amount in the attached Table among them, delayed losses in the attached Table.

“Initial Date in Reckoning” means 5% per annum from each applicable date to June 12, 2014, and full payment from the following day:

(2) From May 1, 2014 to the date of reinstatement of the plaintiff, the amount calculated at 20% per annum; and

No later than the end of each month, the amount of money calculated at the rate of 9,000,000 won shall be paid.

2. Purport of appeal

The order is as set forth in the text.

Reasons

1. Facts of recognition;

[Ground of recognition] The facts without dispute, Gap evidence No. 1, Eul evidence No. 22, and the purport of the whole pleadings. The defendant employs 150 full-time workers as a corporation with the purpose of running a private teaching institute business, such as operating " dedicated dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated

B. On January 18, 2013, the Defendant held a disciplinary committee against the Plaintiff on the ground that (i) absence from office and absence from office without permission, (ii) non-performance of personnel orders and refusal to perform duties, (iii) unauthorized travel, (iv) non-payment of vehicle for university business, and (v) refusal to receive postal items (hereinafter “Disciplinary Reason Nos. 1 through 5”) were decided on the removal of the Plaintiff. Accordingly, the Defendant’s chief director, on January 29, 2013, issued a removal disposition against the Plaintiff (hereinafter “instant removal disposition”).

(2) Where a person subject to disciplinary action under the provisions of paragraph (1) has any reasonable ground to believe that a member of the teachers' disciplinary committee is likely to make an unfair resolution, the committee may make a written request for challenge and make a decision on challenge. (2) In this case, the person subject to challenge shall not participate in the resolution of the committee. (3) If the member of the teachers' disciplinary committee falls short of the two-thirds of the incumbent members due to exclusion or challenge under the provisions of Article 63 of the Act or paragraph (1) and it is impossible to examine a disciplinary case, the committee chairperson of the teachers' disciplinary committee shall request the appointing authority to appoint temporary members so that the number of the incumbent members may be not less than two-thirds of the incumbent members. (3) If a request for challenge is made by the committee pursuant to the provisions of paragraph (1) of this Article, the committee chairperson shall explain in writing that there is a concern that a member of the teachers' disciplinary committee might be subject to disciplinary action, and a person subject to disciplinary action may not be subject to a request for challenge under the provisions of paragraph (2) of this Article 1).

A. Whether procedural illegality is established

1) The parties’ assertion

The plaintiff filed an application for challenge against all seven disciplinary committee members of the defendant Disciplinary Committee, and among six committee members filed an application for challenge due to common causes, the disciplinary committee members who received the application for challenge participated in the resolution on challenge against the disciplinary committee members who received the application for challenge due to common causes. This argues that the decision on challenge is a serious defect in the procedure for resolution on challenge, and thus the disposition on dismissal in this case is null and void.

In regard to this, the defendant asserts that the plaintiff's motion for challenge constitutes abuse of the challenge system, and that the rejection of the plaintiff's motion without excluding the relevant disciplinary committee members is justifiable as measures within the necessary scope for the proper operation of the disciplinary system.

2) Relevant legal principles

The purpose of the challenge system against a disciplinary commissioner under Article 24-8 of the Enforcement Decree of the Private School Act is to maintain neutrality, objectivity and fairness in the process of disciplinary proceedings and resolution to the maximum extent possible by excluding disciplinary members who are likely to compromise the fairness of disciplinary resolution. A person subject to disciplinary action also is the only right to oppose the biased composition of the disciplinary committee. Thus, in interpreting the latter part of Article 24-8(2) of the Enforcement Decree of the Private School Act, the purpose and purpose of the challenge system should be sufficiently considered. Generally, since a challenge is against an individual of disciplinary committee members, a challenge resolution is made individually against such individual member, so even if there is a challenge against a member, each disciplinary committee member subject to challenge cannot participate only in a challenge resolution against him/her, and it is possible to participate in a challenge resolution for other persons. However, if a challenge is caused by common causes of challenge, it is consistent with the purport of the resolution system excluding a decision on challenge and a decision on challenge for other persons. This is also consistent with the purport of Article 24-8(2) of the Enforcement Decree of the Private School Act.

On the other hand, it is reasonable to deem that such a request for exclusion or challenge itself constitutes abuse of the right to request exclusion or challenge, and that such request is not permissible, in cases where the disciplinary committee cannot be organized by simultaneously exclusion or challenge against all or most of the disciplinary committee members, or where the decision of the disciplinary committee itself is impossible, and it is obvious that the request for exclusion or challenge is for the purpose of delaying the disciplinary procedure, etc. In such cases, it shall not be deemed that the participation of the disciplinary committee member subject to the request for challenge is prohibited (see Supreme Court Decision 2007Da127, Jan. 30, 2009).

3) Determination

갑 제20호증, 을 제1, 4, 5호증 ( 각 가지번호 포함 ) 의 각 기재에 변론 전체의 취지를 종합하면, 이 사건 대학교 총장이 2012. 12. 10. 제1 내지 5 징계사유를 이유로 원고에 대한 징계를 요청하여 위원장, 위원 ◆◆◆, □□□, ■■■, △△△, ▲▲ ▲, ▽▽▽으로 이루어진 징계위원회 ( 위원 총 7명 ) 가 구성된 사실, 원고는 2013. 1. 10 . 개최된 징계위원회에 출석하여 기피신청서를 제출하고 퇴장하였는데, 위 기피신청서에는 " 위원장 의 경우 피고의 이사장 및 이 사건 대학교 총장과 함께 업무상 배임 혐의로 기소되었으므로 업무상 배임 책임을 전가하기 위하여 불공정한 심의를 할 우려가 있고, 나머지 6인의 징계위원의 경우 총장의 지시에 의해 원고의 노조원 자격을 박탈하는 결의를 주도하였으므로 이번에도 총장 지시에 따라 원고에게 불리한 징계를 내릴 우려가 있다. " 는 취지로 기재되어 있는 사실, 이에 징계위원회는 같은 날 기피신청을 받은 징계위원을 한명씩 순차로 제외한 후 나머지 6인의 징계위원이 제외된 1인의 징계위원에 대한 기피신청을 기각하는 결정을 순차로 한 사실이 인정된다 .

According to the above facts of recognition, although the plaintiff filed an application for challenge against six disciplinary committee members due to common causes, the above six disciplinary committee members participating in the resolution of challenge against other disciplinary committee members who received a request for challenge due to common causes with them. Therefore, it may be deemed that the challenge resolution violates Article 24-8(2) of the Private School Act and Article 13(2) of the Regulations on Disciplinary Measures against Teachers and Employees.

However, in full view of the facts acknowledged by Gap evidence Nos. 3, Eul evidence Nos. 3, Eul evidence Nos. 3, 6, 15, and 29, and the whole purport of arguments, and circumstances revealed therefrom, the plaintiff's motion for challenge is obviously aimed at delaying disciplinary proceedings, and it constitutes abuse of the system contrary to the fundamental purpose of the challenge system. Therefore, even if the plaintiff's motion for challenge is illegal, it cannot be viewed that the removal disposition of this case is unlawful due to its violation of the procedure, even if the defendant Disciplinary Committee rejected it without dismissal.

① The Defendant, as the head of the Library on March 1, 2007, issued a transfer order to the Plaintiff as a library. The Plaintiff committed an unlawful act, such as: (a) removing the Plaintiff from position on October 1, 2007 and attempting to prevent fire by bringing the gasoline; (b) however, the Defendant, on January 25, 2008, suspended the Plaintiff from position; and (c) paid wages to the Plaintiff even after the Plaintiff was absent from office without permission on August 1, 2008; (d) on November 21, 2012, the head of the Gwangju District Prosecutors’ Office prosecuted the Defendant and the president of the University on charges of occupational breach of trust; (e) the Defendant demanded the Plaintiff to make a resolution on disciplinary action against the Plaintiff on December 10, 2012; and (e) the Defendant, on the other hand, did not demand the Plaintiff to be dismissed from office on December 21, 2013 to 00 million won; and (e) the Defendant did not demand the Plaintiff to make a resolution on the Plaintiff’s disciplinary committee.

② Article 8 of the Regulations on Disciplinary Action against Teachers and Staff of a defendant corporation provides that "in principle, the disciplinary committee shall make a disciplinary decision within 60 days from the date of receipt of a written request for disciplinary decision, and in extenuating circumstances, the period may be extended only once by up to 30 days by a resolution of the disciplinary committee. According to such provision, the defendant disciplinary committee completed a disciplinary decision against the plaintiff within a maximum of 90 days from December 10, 2012, which requested a resolution by the chief director of the defendant disciplinary committee.

③ 피고는 2012. 10. 29. 원고와 그의 전 배우자이자 이 사건 대학교 교수인 ▼▼ ▼에게 교직원 복무규정 미준수에 따른 경고, 업무용 차량 반납 요청 등을 내용으로

하는 우편물과 전자우편을 발송했는데, ▼▼▼이 2012. 11. 2. 위 전자우편을 수신한 이후로 원고와 ▼▼▼ 모두 피고가 발송한 우편물의 수취를 거절하였고 전자우편도 확인하지 않았다 ( 이들에 대한 우편물은 원고의 주소지로 발송되었는데 2012. 11. 5. 수취거절을 이유로 모두 반송되었고, 원고는 소장에서 원고의 배우자가 우편물의 수취를 거부했다는 취지로 기재하기도 하였다 ). 게다가 원고는 2012년부터 미국에 있는 자녀

The name Handphone was used, but no one related to the university was informed of this phone number.

④ On December 27, 2012, and January 2, 2013, the Plaintiff did not appear at the first and second Disciplinary Committee opened on December 27, 2012. On January 10, 2013, the Plaintiff appeared at the third Disciplinary Committee opened on January 10, 2013. On this day, the Plaintiff filed an application for challenge against all disciplinary members of the seven disciplinary committee, and immediately left the meeting place.

⑤ 원고가 주장하는 징계위원 6인에 대한 공통된 기피신청 사유는 총장의 지시에 의해 원고의 노조원 자격을 박탈하는 결의를 주도하였으므로 이번에도 총장 지시에 따라 원고에게 불리한 징계를 내릴 우려가 있다는 것이다. 그런데 이 사건 대학교의 노동조합은 2012. 12. 경 임시총회를 열어 4급 이상의 직원들을 조합원에서 제외하는 의결을 하였을 뿐 원고를 특정하여 조합원 자격을 박탈하는 결의를 한 사실이 없다. 또한 징계위원 중 이 사건 대학교 노동조합 위원장 ▽▽▽과 부위원장 ▲▲▲를 제외한 나머지 4인의 징계위원이 이 사건 대학교 노동조합의 간부라고 볼 증거도 없는 상황에서 단지 노동조합의 의결에 참여하였다는 이유만으로 그 의결을 주도하였다고 볼 수도 없다. 또한, 피고의 조직구성과 직급 체계에 비추어 위와 같은 임시총회의 결의 내용이 위법하거나 부당한 것이라고 볼 수도 없다. 따라서 원고의 위 징계위원 6인에 대한 기피신청은 그 주장 자체로 이유 없음이 명백하다 .

(6) "The proviso to Article 4 (2) 2 of the Regulations on Disciplinary Action against Teachers and Employees by the defendant" shall be construed as "any disciplinary commissioner."

The number of members who are teachers and employees shall be at least 1/3 of the members. Since the university trade union of this case adopts the Universal Partnership System, the majority of the employees of the defendant is presumed to be members of the trade union, and the majority of the employees of the defendant is unable to appoint most of the employees as disciplinary committee members if they are avoided solely on the ground that the union of this case adopts the Universal Partnership System, and a resolution to deprive the employees of class 4 or higher, is made to deprive them of their membership. This may make

7) The Re-Examination Disciplinary Committee also filed a motion to challenge all five members of the Re-Examination Committee for the same or similar reason as that of the Re-Examination Committee.

B. Whether the grounds for disciplinary action exist

1) Summary of the Plaintiff’s assertion

① The Plaintiff was absent from office or dismissed without permission. The evidence presented by the Defendant is written at will by the persons who received the Defendant’s instructions, and thus, cannot be believed (Disciplinary Reason No. 1).

② Since the Defendant did not issue a normal personnel order or grant a normal duty to the Plaintiff, the failure to comply with the personnel order and refusal to perform duties cannot be the grounds for disciplinary action against the Plaintiff (Disciplinary Reason No. 2).

③ From July 20, 2012 to August 26, 2012, the Plaintiff’s departure from overseas on the grounds of marriage is not an overseas trip to which this Act applies, and thus, the Plaintiff’s departure from overseas does not need to obtain permission from the president (Disciplinary Reason 3).

④ The Defendant provided the Plaintiff with business-related vehicles according to the employment contract between the Plaintiff and the Defendant, and the Plaintiff used the said employment contract as impliedly renewed each year.

The Defendant’s requesting the Plaintiff to return the business-use vehicle was in violation of the above employment contract (No. 4)

(Disciplinary Reason)

⑤ The Plaintiff did not intentionally refuse to receive postal items, and even if he intentionally refused to receive postal items, the Plaintiff does not have a duty to receive such items (Disciplinary Reason No. 5). 2

(1) Disciplinary reasons: Recognition

을 제7, 17호증의 각 기재, 당심증인 →→→→의 증언 및 변론 전체의 취지에 의하면, 원고가 2011년 소정근로일수 247일 중 21일, 2012년 소정근로일수 251일 중 49일만 출근하고 나머지 기간에는 무단으로 결근한 사실이 인정되므로, 따라서 피고가 원고의 위와 같은 무단결근과 근무지 무단이탈을 징계사유로 삼은 것은 정당하다 .

(2) Disciplinary reasons: Recognition

According to the purport of the evidence Nos. 13 and 26 and the whole pleadings, the defendant granted the Plaintiff the duty to read reference materials from August 1, 2008 to the time when the removal of this case is taken, but it is recognized that the plaintiff did not perform his duty. Therefore, the ground for appeal No. 2 is recognized.

The plaintiff asserted that the defendant did not individually notify the plaintiff of the division of work, but there is no ground to view that the defendant had such individual duty of notification, and the plaintiff March 21, 2012.

In light of the fact that the Plaintiff was working at the Plaintiff’s office in the library for 2011 and 49 days during 2012, it does not seem that the Plaintiff was unaware of the fact that the Plaintiff was working for the library because it submitted an application for leave and entered the library as the library (No. 19-1).

(3) Disciplinary reasons: Improper (including those reasons for disciplinary action as referred to in subparagraph 1)

From July 20, 2012 to August 26, 2012, the fact that the Plaintiff was travelling to the United States without obtaining approval from the president of the University does not conflict between the parties. Meanwhile, according to the statement on the evidence No. 10, Article 3 of the Regulations on Overseas Travel of Teachers and Staff recognizes that Article 3 of the Regulations on Overseas Travel lists the kinds of overseas travel as academic research, academic degree, academic degree, exchange professor, etc. The above provision is determined to be applicable. However, since the Plaintiff’s aforementioned overseas travel purpose does not correspond to the kinds of overseas travel listed in the above provision, it cannot be applied to the Plaintiff’s above overseas travel. Accordingly, the Defendant cannot be subject to disciplinary action on the ground of violation of Article 5 of the above provision. However, the Plaintiff’s above act constitutes absence without permission from the Defendant and thus constitutes grounds for disciplinary action only.

As to this, the Plaintiff presented to the president of the University of this case, and the president rejected the Plaintiff’s application for leave without justifiable grounds, thereby not falling under the grounds for disciplinary action No. 1. However, the statement of evidence No. 19 alone is from July 20, 2012 to August 26, 2012.

The Plaintiff’s assertion is without merit, since it cannot be deemed that the president of the University applied for leave to the president of the University, and there is no other evidence to acknowledge it. In addition, the Plaintiff’s assertion that the Plaintiff reported the Defendant’s oral leave to the president of the University, but there is no evidence to acknowledge it, and it is only recognized that the Plaintiff did not report to the Defendant president according to the statement in

(4) Disciplinary reasons: Recognition

According to the purport of Gap evidence Nos. 2 and Eul evidence Nos. 14 and the whole arguments, it is recognized that the plaintiff and the defendant agreed to provide the plaintiff with the amount of business-use automobiles owned by the defendant during the contract period and bear the full amount of operating expenses, the defendant did not prepare a separate annual salary agreement, and the defendant notified the plaintiff that he should return it for personal use on the ground that "the vehicle provided for business-use purposes" was "No. 24 and November 2, 2012 and it cannot be used for personal use".

According to the language and text of the above annual salary agreement, it is apparent that the amount of passenger car to be provided by the defendant to the plaintiff is a business, and as long as the necessity of the defendant to use the vehicle ceases to exist due to the removal from the head of the planning office and the head of the library office, the defendant'

The plaintiff's act of failing to comply with the defendant's above instructions constitutes grounds for disciplinary action.

(5) Disciplinary reasons: Recognition

On October 29, 2012, the Defendant sent to the Plaintiff postal items and e-mail with the purport to return the vehicle for business. The Plaintiff refused to receive the said postal items and did not confirm the e-mail. In full view of the circumstances before and after the dispatch of the said postal items, including the Defendant’s chief director and the president of the University of this case, it is determined that the Plaintiff intentionally refused to receive the said postal items.

Although the Plaintiff was absent from most of the contractual work days without permission, the Plaintiff intentionally refused to receive mail without confirming e-mail sent by the Defendant. The Plaintiff’s act constitutes a violation of the duty under the good faith principle to maintain a minimum liaison relationship with the Defendant so that it can be performed upon receiving the Defendant’s instruction, unless there exist any other justifiable reasons. Therefore, it does not appear that there exists any justifiable reason otherwise.

1) The plaintiff's assertion

Even if some of the grounds for disciplinary action are recognized, the defendant's dismissal, which is the most severe disciplinary action against the plaintiff, is unjust as it deviates from and abused discretion. 2)

In principle, it is illegal that a disciplinary measure is taken when a disciplinary measure is taken against a private school teacher or staff.

In order to raise an appeal, a disciplinary action taken by the person having authority over disciplinary action is limited to cases where it is deemed that the person having authority over disciplinary action has abused discretion, which has considerably lost validity under the social norms, and where it is deemed that the disciplinary action was an abuse of discretionary power by the person having authority over disciplinary action, and where it is objectively unreasonable in light of the characteristics of duties, the contents and nature of the offense, and the purpose of the disciplinary action and the circumstances accompanying the disciplinary action, depending on the specific cases (see Supreme Court Decision 2012Du20298, Dec. 26, 2012).

위 인정사실과 갑 제3호증, 을 제21, 24호증의 각 기재, 당심증인 ←←의 증언 및 변론 전체의 취지에 의하여 인정되는 아래의 사정들을 종합하면, 이 사건 파면처분이 객관적으로 명백히 그 재량권을 남용하거나 한계를 일탈한 것이라고 볼 수 없다 .

① The Plaintiff’s unauthorized absence from work, leave of work, etc. neglected to perform basic duties as an employee, and was considerably prolonged from January 2008 to the end of January 2012 (the fact of absence from work without permission from 2008 to 2010 is recognized by the respective statements in the evidence No. 26 and No. 29, and the Defendant’s disciplinary action may be considered as disciplinary action even if the statute of limitations was not based on the grounds for disciplinary action.)

② The Plaintiff is the pro-friendly parent of Defendant president and the president of the University of this case, and is the relative student of the president of the University of this case.

2. From September 28, 1996, the Defendant’s director was appointed from the university of this case to September 28, 1996. The Plaintiff is the highest class of the employees other than the president in general service is class 3 of general service, and the employees corresponding thereto are not only the △△ Administrative Director and the Plaintiff.

③ Around March 1, 2007, the Plaintiff committed an unlawful act, such as occupying the president’s office or attempting to prevent a fire. Around March 1, 2007, the president of the instant university and the president of the instant university were indicted on charges of occupational breach of trust, etc., and became subject to the Ministry of Education’s comprehensive audit results. Nevertheless, the Plaintiff continuously neglected his/her duties and received wages of KRW 560 million from the Defendant and received convenience, such as automobiles, from the Defendant. This constitutes a case where the Defendant intentionally causes damage to the Defendant by using his/her family relationship with the president, etc., and the amount of damage is very heavy.

3. Determination on the claim for payment of the amount equivalent to wages

Since the removal of this case against the plaintiff is legitimate as seen earlier, the plaintiff's claim for payment of the amount equivalent to the plaintiff's wages premised on the invalidity of the removal of this case is without merit.

4. Conclusion

Therefore, the plaintiff's claim is dismissed in its entirety as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the judgment of the court of first instance is revoked, and the plaintiff's claim is dismissed.