[1] Whether there is a benefit to seek confirmation of invalidity of dismissal as a civil action in a case where an administrative lawsuit seeking revocation of a decision on reexamination which dismissed a request for relief from unfair dismissal was filed and the judgment was invalidated and the judgment became conclusive (affirmative)

[2] Criteria for recognizing legitimacy of dismissal, which is a requirement for recognizing legitimacy of dismissal, the criteria for determining whether the employment relationship was “less continued in light of social norms,” and whether the act of misconduct which was not used as a ground for disciplinary action can be considered as materials for taking disciplinary action (affirmative in principle)

[3] The case holding that, in case where a worker was dismissed on the ground that the worker's unfair speech and behavior with respect to promotion was committed against his superior officer, had a physical threat to his superior officer, and caused a disturbance to the company's service order by recording the conversation with his superior officer, etc., the case holding that the worker's employment relationship was caused by a situation in which the worker's responsibility was unable to continue the employment relationship by social norms

[1] The order of remedy by the Labor Relations Commission is merely a public duty to obey the order of remedy, but does not directly cause or change legal relations between the employee and the employer. Thus, even if an administrative lawsuit seeking the cancellation of the ruling of dismissal of the unfair dismissal request was filed and the judgment was finalized after the judgment was rendered against the employee, this is merely a confirmation that the decision of retrial is lawful and thus the employer does not bear the obligation under the public law, or does not cause any change in legal relations between the employee and the employer, and thus, the employee has a benefit to seek confirmation of the invalidity of dismissal by filing a civil lawsuit separately.

[2] Dismissal is justified in cases where there are grounds for an employee's responsibility to the extent that the employee's employment relationship cannot be continued under the social norms. Whether the employee's employment relationship with the employee in question has reached the extent that it is impossible to continue to exist under the social norms shall comprehensively examine various circumstances, such as the purpose and nature of the employer in question, the circumstances of the workplace, the status and the duty of the employee in question, the motive and circumstances of the act of misconduct, the influence of the employee's deceptive scheme on the company's business order, such as the risk of impeding the company's deceptive scheme, and the previous job attitude. If there are various kinds of suspicions of disciplinary actions against the employee, it shall not be determined either by the grounds for disciplinary action or by some of them, but by the overall reasons. Even if the disciplinary action does not take place as grounds for disciplinary action, it shall be determined in light of the overall reasons.

[3] The case holding that in case where a worker was dismissed on the ground that the worker was unable to continue the employment relationship under the social norms due to various circumstances, such as the motive and background leading up to the worker's misconduct, the details of the misconduct, and circumstances after dismissal, in light of various circumstances such as the worker's motive and circumstance leading up to the worker's misconduct, the contents of the misconduct, and circumstances after dismissal, in a case where the worker was dismissed on the ground that the worker was under a bodily threat to his superior, and the worker's physical threat was committed to his superior.

[1] Article 248 of the Civil Procedure Act / [Institution of Action] Article 248 of the former Labor Standards Act (Amended by Act No. 6507, Aug. 14, 2001; see current Article 23(1)); Article 33(1) and (2) of the former Labor Standards Act (Amended by Act No. 6507, Aug. 14, 2001; see current Article 28(1) and (2) of the former Trade Union and Labor Relations Adjustment Act; Articles 84(1) and 85(2) (see current Article 31(2) of the Labor Standards Act) of the former Labor Standards Act / [2] Article 30(1) (see current Article 23(1)) of the former Labor Standards Act (Amended by Act No. 6507, Aug. 14, 2001; / [3] Article 30(1) of the former Labor Standards Act (Amended by Act No. 6507, Aug. 14, 14, 200)

[1] Supreme Court Decision 91Da22100 delivered on May 22, 1992 (Gong1992, 1959) / [2] Supreme Court Decision 95Nu15742 delivered on September 20, 1996 (Gong1996Ha, 3214), Supreme Court Decision 2001Du1045 delivered on May 28, 2002 (Gong2002Ha, 1559), Supreme Court Decision 2001Du8018 delivered on July 8, 2003 (Gong203Ha, 1722)

Plaintiff (Attorney Lee Jae-hoon, Counsel for plaintiff-appellant)

ELB Co., Ltd. (LLC, Kim & Kim LLC, Attorneys Ko Hyun-chul et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2007Na49139 decided February 5, 2010

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

The Labor Relations Commission’s order for remedy is merely a public duty to obey the remedy order to the employer, and does not directly cause or change legal relations between the employee and the employer (see, e.g., Supreme Court Decision 91Da22100, May 22, 1992). Even if an administrative lawsuit was filed against the employee seeking the cancellation of the ruling dismissing the unfair dismissal request, and the judgment was rendered against the employee and became final and conclusive, it is merely a confirmation that the ruling for remedy is lawful and thus, the employer does not bear the public duty in accordance with the remedy order, or does not result in a change in legal relations between the employee and the employer, and thus, the employee has a benefit to seek the confirmation of the invalidity of the dismissal by filing a civil lawsuit separately.

In light of the above legal principles, the judgment of the court below that rejected the Defendant’s main defense is justifiable.

The Supreme Court Decision 92Nu6099 delivered on July 28, 1992 pointed out in the ground of appeal is different from the case, and it is not appropriate to invoke the case in this case.

The court below did not err in the misapprehension of legal principles as to the relationship between litigation for cancellation of the decision on review of unfair dismissal and litigation for confirmation of invalidity of dismissal and the interests of litigation.

The ground of appeal on this part is without merit.

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and determined that among the grounds for dismissal of this case, the defendant did not recognize the remainder of the grounds for dismissal of this case, even though it was found that the plaintiff violated the order of service by recording conversations with the members of the same fee, and the defendant did not recognize the remainder of the grounds for dismissal.

Examining the admitted evidence of the court below in light of the records, the above fact-finding and judgment of the court below are just and acceptable.

The court below did not err in the misapprehension of legal principles as to the probative value of facts recognized in a final judgment as otherwise alleged in the ground of appeal.

This part of the grounds of appeal is without merit.

3. Regarding ground of appeal No. 3

Dismissal is justified in cases where there are grounds for an employee’s responsibility to the extent that the employee’s employment relationship can not continue. Whether the employee’s employment relationship has reached the extent that the employee’s employment relationship was impossible under the social norms shall comprehensively examine various circumstances such as the employer’s business purpose and nature, status of the workplace, details of the employee’s status and duties in charge, motive and circumstances of the act of misconduct, influence of the employee’s deceptive scheme on the part of the employee’s deceptive scheme, etc. If there are several facts of suspicions of disciplinary action against the employee, it shall not be determined either by the grounds for disciplinary action or by some of them, but in light of the overall reasons. Even if the disciplinary action does not take place as grounds for disciplinary action, it shall be determined in light of the overall reasons (see, e.g., Supreme Court Decisions 95Nu15742, Sep. 20, 196; 2005Du18581, May 28, 2002).

According to the reasoning of the judgment below, in full view of the circumstances in its reasoning, the court below determined that the dismissal of the plaintiff was null and void on the ground that the dismissal of the plaintiff on the ground of the grounds in the above-mentioned disciplinary action is excessive since the dismissal of the plaintiff on the ground that it is not sufficient to recognize that the plaintiff was responsible for the plaintiff to the extent that the plaintiff could not continue a labor relationship with the defendant by social norms on the ground that the dismissal of the plaintiff on the ground in the above-mentioned disciplinary action is excessive, even though the plaintiff response somewhat unreasonable and inappropriate compared to the general public with respect to the commercial and the

However, according to the facts acknowledged by the lower court, the starting point of the instant case was derived from the Plaintiff’s failure to promote himself to Nonparty 1, 2, and other superior officers beyond a significant social level as the Plaintiff went away from promotion, by exercising the pressure on the disadvantage of personnel affairs due to the expulsion to the representative director, etc., and thus impeding the order of service in the company.

In addition, the Plaintiff has recorded the contents of conversation with his employees or their employees in three or more tape tapes a day of dismissal after the instant standby order. Such an act is detrimental to the unity in the workplace by infringing on the privacy and the freedom of private life and causing mutual confidence among employees. Even though considering the motive that the Plaintiff had received unfair treatment within the company after the standby order and attempted to obtain evidence, in light of the content of the act of misconduct, the period during which the Plaintiff committed the act of misconduct, and the number of times during which the Plaintiff committed the act of wrongful treatment in the company, it is reasonable to deem that the act of infringing the trust relationship with the company and its employees beyond the provisions on unfair treatment in the company.

The lower court determined that the Plaintiff’s act of causing physical harm to Nonparty 2, a commercial person, caused damage to the Plaintiff, and the Plaintiff was subject to relatively minor criminal punishment. However, examining the form and circumstances of the act, it cannot be deemed that the Plaintiff interfered with the business of the commercial person by force, such as the Plaintiff’s act of causing physical harm to Nonparty 2, a commercial person, and the Plaintiff’s act of causing a relatively minor criminal punishment. However, considering the form and circumstances of the act, it did not seem to have attempted to find out a diskette lost inside the office and immediately reported theft, and Nonparty 2 called Nonparty 2 as the thief and called Nonparty 2 as the thief, and took the attitude that the police officer would have been faced with Nonparty 2’s duty by force.

Furthermore, according to the facts acknowledged by the court below, the plaintiff filed a complaint against the representative director and 15 employees such as non-party 2, etc. under suspicion of assault, accusation, perjury, etc., even after being notified of the decision of provisional disposition of prohibition of assembly, the plaintiff puts a tag on the defendant's temporary meeting place held in July 200, which was held in July 200, and obstructed the holding of the general meeting of shareholders and interfered with the holding of the general meeting of shareholders, and caused two monarchs by assault to the order keepers who restrain it in the process, and posted a notice that slanders the defendant on the Internet site opened by the plaintiff.

In light of the aforementioned legal principles, in full view of the motive and background leading up to the Plaintiff’s misconduct, the content and frequency of the misconduct, the period and frequency of the misconduct, the degree of the disturbance of the company’s service order, and the circumstances after the dismissal, it is reasonable to deem that the Plaintiff and the Defendant caused a situation in which the employment relationship could no longer be continued by social norms.

Nevertheless, the court below determined that the dismissal of this case was null and void because it exceeded the scope of disciplinary discretion and without any justifiable reason. Thus, the court below erred by misapprehending the legal principles on disciplinary decision of dismissal, which affected the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)