2016Re-Da224 Pre-Announcements of Dismissals

A person shall be appointed.

A person shall be appointed.

Supreme Court Decision 2013Da79764 Decided January 23, 2014

Seoul Eastern District Court Decision 2013Na1909 Decided September 25, 2013

January 12, 2017

The decision of review shall be revoked.

The judgment below is reversed, and the case is remanded to the Seoul Eastern District Court.

1. Determination as to the existence of a ground for retrial

A. According to the records, the following facts are revealed. (1) The plaintiff (hereinafter "the plaintiff") filed a lawsuit claiming dismissal of the plaintiff on January 30, 2013, against the defendant (the defendant hereinafter "the defendant hereinafter "the defendant hereinafter "the plaintiff ") by Seoul Eastern District Court 2012Gaso80212, who was working for the defendant (the defendant hereinafter "the defendant hereinafter "the plaintiff hereinafter "the plaintiff of this case") as a English instructor, claiming that the defendant dismissed the plaintiff without giving notice of dismissal 30 days prior to dismissal and claiming compensation for delay. (2) The first instance court declared that the plaintiff dismissed the plaintiff's claim on January 30, 2013, and the appeal was filed by the Seoul East Eastern District Court 2013Na1909, but the appellate court appealed on September 25, 2013.

Article 35 Subparag. 3 (hereinafter “instant legal provision”) of the Labor Standards Act (wholly amended by Act No. 8372, Apr. 11, 2007; hereinafter the same) rendered a judgment dismissing an appeal on the ground that “the monthly wage worker who was a monthly wage worker and for whom six months have not yet passed” does not constitute a pre-announcement of dismissal. The Plaintiff appealed to Supreme Court Decision 2013Da79764, Jan. 23, 2014; however, the appeal was dismissed and finalized on January 23, 2014.

(3) On the other hand, while the plaintiff filed an application for adjudication on the constitutionality of the provision of this case during the appellate trial, the appellate court rendered a decision to dismiss the application for adjudication on the constitutionality of the provision of this case on September 25, 2013. (4) The plaintiff filed an adjudication on constitutional complaint with the Constitutional Court 2014HunBa3. The Constitutional Court ruled on December 23, 2015 that the provision of this case, except for the case where "the person who was a monthly salary worker and for whom six months have not passed without reasonable grounds," "the person who was subject to the application for adjudication on the constitutionality of the provision of this case, violates the right to work of a monthly salary worker for less than six months, and violates the principle of equality" (hereinafter referred to as "the decision of unconstitutionality of this case"). (5) The plaintiff served a notice of the decision of unconstitutionality of this case on January 6, 2016.

B. Examining the above facts in light of relevant legal principles, this case constitutes the pertinent case, which was an opportunity to make a decision of unconstitutionality through constitutional complaint, and there is a ground for retrial falling under “where a constitutional complaint under Article 75(7) of the Constitutional Court Act is accepted in the judgment of retrial.”

2. Ex officio determination

A. Article 26 of the Labor Standards Act provides, “When an employer intends to dismiss a worker (including dismissal due to managerial reasons), he/she shall give the worker a notice at least 30 days prior to dismissal, and when he/she did not give a notice at least 30 days, he/she shall pay a ordinary wage for at least 30 days.” However, the “monthly wage worker who was a monthly wage worker and for whom 6 months have not yet passed” was excluded from the subject of the pre-determination of dismissal. However, by applying the instant legal provision, the lower court maintained the first instance court, which dismissed the Plaintiff’s claim for pre-determination of dismissal, on the ground that the Plaintiff’s period of working at the instant private teaching institute is 16 months, and thus, cannot claim the pre-determination of dismissal

However, since the legal provision of this case was determined as unconstitutional after the judgment of the court below and lost its effect, the court below's decision that applied the legal provision of this case was no longer able to maintain it.

3. Conclusion

Therefore, the judgment of the court below shall be reversed without examining the grounds of appeal, and the case shall be 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 Kim Jae-hyung

Justices Park Byung-hee

Justices Park Poe-young

Justices Kim Jong-il