[1] The legal nature of removal from position

[2] Criteria for determining the legitimacy of removal from position

[3] The case holding that an ex officio dismissal disposition is not an abuse of the right of personnel management

[1] The removal from position means a provisional measure that prevents a worker from engaging temporarily in his/her duties due to the lack of job performance or poor job performance or job attitude when the worker is prosecuted for a criminal case, etc., and that is different from a disciplinary measure that is taken for the purpose of maintaining business order in the past, since it is different from a disciplinary measure that is taken for maintaining business order in relation to the misconduct of a worker in the past.

[2] Except as otherwise expressly provided for in the rules of employment, etc., a disciplinary procedure is not required for the removal from position when the removal from position is conducted, and it does not require the employer to take various kinds of disciplinary actions against the worker's misconducts, unlike the disciplinary action where the dismissal from position is allowed for the worker to take various kinds of disciplinary actions against the worker's dismissals. Thus, the legitimacy of the removal from position is determined by whether the worker's removal from position exists as a ground for the removal from position or violates the procedural provisions for the removal from position, and it cannot be readily concluded that the removal from position goes against equity in light of the disciplinary action against the worker's harsh and similar misconducts.

[3] The case holding that it cannot be concluded that the ex officio dismissal of a worker who did not indicate the change is beyond the scope of legitimate personnel rights or abused personnel rights in accordance with personnel regulations, on the ground that the worker did not seem to have changed his/her ability to perform his/her duties during the period of removal from his/her position after he/she was removed from his/her position by improvement of his/her duties or by reflecting his/her mistake, etc., and the worker, instead of having divided his/her own misconduct by the direction of the president, he/she only transferred his/her responsibility to his/her superior as if he/she had been forced to do so.

[1] Articles 27 and 27-3 of the Labor Standards Act / [2] Articles 27 and 27-3 of the Labor Standards Act / [3] Articles 27 and 27-3 of the Labor Standards Act, Article 27 of the Administrative Litigation Act

[1] [2] [3] Supreme Court Decision 95Nu13418 delivered on October 29, 1996 (the same purport) / [1] Supreme Court Decision 75Nu121 delivered on April 13, 1976 (Gong1976, 9108), Supreme Court Decision 83Nu489 delivered on February 28, 1984 (Gong1984, 623), Supreme Court Decision 91Da30729 delivered on July 28, 1992 (Gong192, 2541) / [3] Supreme Court Decision 79Nu279 delivered on January 13, 1981 (Gong1981, 13649) (Gong13649), Supreme Court Decision 94Da31979 delivered on December 5, 195 (Gong1979)

Seoul Olympic Sports Promotion Corporation (Attorney Han Jong-hun, Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

Defendant joining the Defendant (Law Firm General Law Office, Attorneys Yoon Jong-tae et al., Counsel for the defendant-appellant)

Seoul High Court Decision 94Gu29531 delivered on September 19, 1995

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

The grounds of appeal are examined.

1. The removal from position refers to the removal from position as a temporary measure that prevents a worker from performing his duties for the purpose of preventing anticipated occupational trouble if the worker is prosecuted for a criminal case. Thus, it is different from disciplinary measures taken for the purpose of maintaining the order of the worker in the past as a disciplinary measure against the worker's misconduct (see, e.g., Supreme Court Decisions 75Nu121, Apr. 13, 1976; 83Nu184, Oct. 25, 1983; 83Nu489, Feb. 28, 1984; 91Da30729, Jul. 28, 1992; 91Da30729, Mar. 6, 1993; 2000Da36477, etc., which are similar to the removal from position). Thus, it does not necessarily mean that the removal from position cannot be decided with respect to the procedure of removal from position of the worker, other than the procedure of removal from position.

2. According to the reasoning of the lower judgment, the lower court determined that the Intervenor’s assistant to the Defendant (hereinafter referred to as the “ Intervenor”) worked for accommodation facilities, which are affiliated organizations of the Plaintiff’s affiliated organizations, withdrawn the budget from the general affairs division by Nonparty 1, who received instructions from the president, and requested the president to raise incidental expenses for the business trip from the president, and that the money is used illegally for the president’s overseas business trip, not for the original budget items. On July 15, 1993, the lower court determined that the Intervenor’s assistant to the Defendant’s Intervenor’s work performance did not fall under the scope of 885,000 won under the pretext of his personal affairs and expenditure resolution of the lower court, and that the Intervenor’s employees were not subject to removal from his position by 1,250,000 won or more due to the Plaintiff’s improper dismissal from his position, and that the Plaintiff’s employees were also subject to removal from his position by 300,000 won or less through the Plaintiff’s unlawful dismissal of his work performance bill and expenditure resolution of the Plaintiff 1 and 2.

However, according to the records, it is clear that the intervenor's act of removal from his position was not an act of removal from his position because it was established for the purpose of gathering, operating, and managing the Seoul Olympic Games and the fund for the promotion of national sports and its incidental business by the plaintiff's National Sports Promotion Act, and the plaintiff's act of removal from his position cannot be seen as an act of removal from his position under the circumstances that the plaintiff's act of removal from his position could not be seen as an act of removal from his position under the circumstances that the plaintiff's act of removal from his position could not easily be seen as an act of removal from his position because the plaintiff's act of removal from his position could not be seen as an act of removal from his position under the circumstances that the plaintiff's act of removal from his position could not be seen as an act of removal from his position under the circumstances that the plaintiff's act of removal from his position could not be seen as an act of removal from his position under the circumstances that the plaintiff's act of removal from his position could not be seen as an act of removal from his position.

In addition, it does not appear in the record that the intervenor, after being subject to removal from his position, had improved his job ability during the period of his removal from his position, or had been in opposition to his mistake, etc. The records show that the intervenor, as if he committed his misconduct, rather than having done his misconduct by the president’s instruction, he only transferred his responsibility to the superior of his responsibility. Thus, it cannot be readily concluded that the plaintiff's ex officio dismissal of the intervenor, which did not indicate such circumstances, has violated his legitimate personnel authority or abused his personnel authority in accordance with personnel regulations.

Nevertheless, the court below judged otherwise. The court below erred by misapprehending the legal principles on the scope of legitimate personnel rights in removal from position, thereby affecting the conclusion of the judgment. Therefore, there is a reason to point this out.

3. Therefore, the lower judgment is reversed and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)