If there is an investigation, press report, etc. about a misconduct after the statute of limitations on the misconduct itself expires, whether a new ground for disciplinary action occurs or whether the point of time of investigation, press report, etc. can be seen as the starting point of the new statute of limitations (negative)

If a new disciplinary cause is deemed to have occurred after the statute of limitations on the misconduct itself, which falls under the disciplinary cause, even after the statute of limitations on the misconduct itself has expired, it is contrary to the purport of the statute of limitations on the disciplinary action in order to restrict the exercise of the right to discipline for a certain period of time, and there is concern that the new disciplinary cause may be decided by the employer, etc.

Article 23(1) of the Labor Standards Act

[Plaintiff-Appellant] 2008Du2484 decided Jul. 10, 2008 (Gong2008Ha, 1167)

Plaintiff (Law Firm Lins, Attorneys Lee Han-hoon et al., Counsel for plaintiff-appellant)

The Chairman of the National Labor Relations Commission

The Small and Medium Enterprise Research Institute (Law Firm Lee & Lee, Attorneys Cho Jong-soo, Counsel for defendant-appellant)

Seoul High Court Decision 2018Nu3999 decided April 24, 2019

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

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment and the record, (1) the Plaintiff was convicted of summary charges for taking property in breach of trust on August 17, 2016 and received a total of KRW 30 million from the contractor’s related person three times from June 22, 2012 to August 24, 2012. (2) The Plaintiff confirmed the receipt of the Plaintiff’s money on or around December 2, 2015 by the Ministry of Government Administration and Home Affairs, and notified the Intervenor on February 2, 2016; (3) the Plaintiff was indicted of summary charges for taking property in breach of trust on August 17, 2016; and (4) the Intervenor’s personnel committee determined that the Intervenor’s disciplinary action against the Intervenor, which was a public institution under the jurisdiction of the Office for Government Policy Coordination, was not severely damaged by the Intervenor’s disciplinary action (the Intervenor’s disciplinary action) by receiving a summary order, and (3) the Intervenor’s disciplinary action against the Intervenor’s disciplinary action against the Intervenor’s 16.

2. Article 40 of the above personnel regulations of the Intervenor constitutes a provision on the disciplinary action that intends to impose restrictions on the employer’s exercise of the right to discipline for reasons of the expiration of the period, and the starting point of the statute of limitations for the disciplinary action should be deemed to be the time when the grounds for disciplinary action have occurred pursuant to the above provisions. Furthermore, if the new grounds for disciplinary action are deemed to have occurred since the act of misconduct, which constitutes the grounds for disciplinary action itself, was investigated or reported to the press after the expiration of the statute of limitations for the disciplinary action, it is contrary to the purport of the statute of limitations for the disciplinary action that intends to restrict the exercise of the right to discipline for reasons of the lapse of a certain period, and there is concern that the new grounds for disciplinary action may be caused by the employer, etc. In addition, if the statute of limitations for the wrongful act itself expires, even if there is a later investigation or press report on the wrongful act, it shall not be deemed that the new grounds for disciplinary action have occurred or that the new period of prescription for the disciplinary action, such as investigation or press report, etc.

3. Examining the facts acknowledged earlier in light of the aforementioned legal principles, since the Plaintiff’s misconduct in breach of trust continues to exist from June 22, 2012 to August 24, 2012, the period of prescription expires when two years have passed from August 24, 2012, and the Intervenor’s right to disciplinary action was extinguished. After that, even if the Intervenor’s conviction was significantly damaged due to the Plaintiff’s commencement of investigation into the above act in breach of trust and the prosecution of the Plaintiff, it cannot be deemed as a new ground for disciplinary action.

Nevertheless, the lower court determined that the Plaintiff’s receipt of a summary order due to the crime of taking property in breach of trust constitutes a new disciplinary cause that damages the Intervenor’s prestige, and that the statute of limitations has not yet been completed. Therefore, the lower court erred by misapprehending the legal principles on the statute of limitations and the starting point of the statute of limitations, which affected the conclusion

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)