(영문) 부산고등법원 2014.7.10.자 2013라299 결정

1. Of the decision of the court of first instance, the part of the claimant's loss of provisional disposition and indirect compulsory performance ordered below shall be revoked.

2. The Claimant shall not prevent the Respondent from performing its duties as the Director-General of the Respondent (Grade 1, 2 and 4) by doing any act described in paragraphs 1 through 3 of the Schedule since five days after the date on which the Respondent was notified of this decision, and that the Claimant shall not interfere with the Respondent’s performance of duties as the Director-General of the Respondent (Grade 1, 2).

B. When the respondent violates the obligations of the above paragraph (a), 50,000 won per day shall be paid to the applicant from the day following the expiration of the period described in the above paragraph (a) to the day of the performance of the obligations.

3. The applicant's remaining requests are dismissed.

4. The filing costs shall be borne by the respondent.

Purport of request and purport of appeal

The period of indirect compulsory performance shall not be specified, and the provisions of Section 2 shall be the same as those of Section 2, except for the fact that indirect compulsory performance is a cause of one million won per day.

Reasons

1. Basic facts

The record reveals the following facts.

(a) Status of the applicant and the primary disciplinary action;

1) On November 1, 198, the applicant joined the respondent company and served as the director general of the editing bureau from December 21, 2010, posted a letter of opposition to the disciplinary action against the chairperson of the Trade Union and Labor Relations Commission on his/her home page on November 9, 2011, and re-enters articles without reflecting the request of the respondent, such as the representative director, etc. In response, the respondent held the Disciplinary Committee on November 30, 201 and took a waiting measure against the applicant (hereinafter referred to as "first disciplinary measure").

2) However, the Respondent applied for provisional disposition to suspend the performance of duties of the Director-General for the applicant under the Busan District Court 201Kahap2444 as the Respondent applied for provisional disposition to suspend the performance of duties of the Director-General for the applicant, and the Claimant applied for provisional disposition to preserve the status of employee under the same court 2012Kahap666.

3) On February 10, 2012, the above court dismissed the application of the above 2011Kahap2444 on the ground that the first disciplinary action was invalid due to procedural defect that failed to meet the quorum, and rendered a provisional disposition that the applicant partially accepted the application of the above 201Kahap266, thereby having the status of the Director General of the Respondent.

4) However, on February 24, 2012, the respondent filed an application for indirect enforcement with the above court No. 2012tagi505 on the ground that the respondent does not comply with the above provisional disposition order. However, on March 29, 2012, the applicant accepted the respondent’s assertion that indirect enforcement is not allowed due to its nature as a provisional disposition seeking voluntary performance, which is a preliminary disposition seeking to preserve the status of senior citizens from the date of examination.

B. Circumstances after the first disciplinary action

1) On November 30, 201, on which the first disciplinary action was taken, the respondent failed to publish a newspaper for the first time after the publication in the Busan Central District Court on November 30, 201. Accordingly, the respondent filed a lawsuit seeking compensation for damages with D and Busan Busan District Court No. 201Gau415328, which are non-party 253.

2) On January 19, 2012, the respondent newly appointed the representative director and executive officers. The applicant did not recognize the new representative director E as the issuer, and did not publish the personnel master plan of E in the Busan daily book, and issued the Busan daily report from January 20 to January 26, 2012.

3) The applicant reported that there is a crisis that the editing right of the Busan daily newspaper might be damaged, such as exercising influence over the management and editing of the Busan daily newspaper on a total of 25 occasions from November 18, 2011 to February 10, 2012, the applicant shall not participate in the management such as refusing the request for recommendation right of the President of the Busan daily Labor union by the Fixed Scholarship Foundation, which is a public interest foundation, to refuse the request for recommendation right of the President of the Busan daily Labor union, and the publication of an article that raised suspicion that the Chairperson of the New Daily Emergency Countermeasures against the Busan Central Labor Relations Committee exercises influence in the extension of the period of time and makes it possible to change the current editing system into the appointment system.

4) Accordingly, a fixed scholarship council filed a claim for objection against the respondent, the Press Arbitration Commission made a decision in lieu of the mediation to post a counterargument report on March 6, 2012, and the Busan Busan Arbitration Board did not raise an objection against the respondent, and the said decision became final and conclusive as is. The respondent ordered the applicant to post a counterargument report based on the above decision, but the applicant failed to do so. On May 1, 2012, Busan District Court ordered the respondent to pay an indirect compulsory payment of KRW 2 million per day of the violation (200,000,000 per day).

5) On April 2, 2012, the applicant published the Busan District Order No. 40964, which was published on April 2, 2012, by mistake in accordance with No. 40964, and by mistake in the order of the serial number from that time until April 9, 2012.

6) From November 201 to March 2012, 201, the number of copies of the newspaper subscription’s discontinuance, which the respondent took charge of editing, was a total of 581 copies of the newspaper subscription’s discontinuance, increased by 340 copies compared to the previous year.

C. Second disciplinary action against the applicant and the progress of lawsuit

1) On April 18, 2012, the respondent held a disciplinary committee and took a waiting measure against the applicant that a series of actions, such as Paragraph B, constitute a disciplinary cause while nine members of the company were present (hereinafter referred to as “instant disciplinary measure”). The applicant filed a lawsuit against the respondent against Busan District Court Decision 2012Kahap542, and filed an application for a provisional measure to preserve the status of workers as the Busan District Court Decision 2012Kahap1296.

2) On June 14, 2013, the above court rendered a judgment in favor of the Plaintiff on the ground that the instant disciplinary action was unlawful by abusing the discretionary power assigned to the person having authority over disciplinary action. The appeal filed by the respondent (No. 2013Na5176) also was dismissed on January 8, 2014, and the appeal filed by the respondent is still pending in Supreme Court Decision 2014Da9632 as of June 2014.

3) In addition, on August 6, 2013, the above court rendered a provisional decision that the applicant is in the position of the respondent's bureau head office (class No. 2 and class No. 4) until the judgment on the merits of the lawsuit against the respondent becomes final and conclusive, and the above provisional disposition decision became final and conclusive on the ground that the respondent did not file an appeal.

D. The background of the instant application

After the above provisional disposition decision became final and conclusive on August 13, 2013, the applicant offered the respondent to work at the office of the respondent, but the respondent refused to provide labor for the applicant who did not assign duties that correspond to the status of the bureau chief (class 2 and class 4) in accordance with the above provisional disposition decision, and reached the application in this case on August 22, 2013. Provided, That the respondent is paying the applicant the corresponding benefits corresponding to the grade.

2. Summary of grounds of appeal;

Since the disciplinary action in this case is unlawful by abusing discretion, it is null and void. Within the respondent, there is a number of positions equivalent to the applicant's salary, such as the period of office, and there is no practical difficulty in the personnel announcement. The respondent does not have any situation in which the applicant does not work because the respondent is not assigned to a position, and the respondent does not interfere with the applicant's access to the newspaper company. As a newspaper reporter, the fact that the applicant is unable to work for a long time until the Supreme Court's decision on the merits of this case does not cause a decline in his ability as a professional worker, but the suffering therefrom is difficult to calculate the amount of damages in detail,

3. Determination

A. We cannot deny that an employee who continues to provide labor under a labor contract is of character with dignity and value as a human being and an employee’s provision of labor to his/her workplace cannot be separated from his/her own character in a labor relationship. On the other hand, an employee’s provision of labor under a labor contract does not simply aim at acquiring wages, but rather at realizing the self-employed through his/her own work, maintaining and improving skills, and forming a smooth human relationship, and thus realizing his/her personality by gathering the development of the personality which he/she participated in (see, e.g., Supreme Court Decision 93Da11463, Dec. 21, 1993). Therefore, an employer’s refusal and provision of labor to the extent consistent with the exercise of his/her right to command and order by concluding a labor contract constitutes an employee’s infringement upon the employee’s personality right, and thus, an employer should not be obliged to pay compensation for such infringement upon the employee’s own personality right without any justifiable reason.

In light of the records of this case, ① the application for provisional disposition to preserve the status of workers filed by the respondent as remedy of the right to the first disciplinary action was cited on the ground of procedural defect that the respondent did not meet the quorum of the disciplinary committee, ② the respondent held the disciplinary committee at the time of the second instance and the second instance, but the decision of the court that found the disciplinary action in this case invalid due to abuse of discretionary power (not yet became final and conclusive during the trial) was rendered on two occasions, and ③ the decision to recognize the status of workers was made on two occasions, but the respondent did not issue a personnel order, such as paying wages only to the applicant and granting duties in line with its class. In other words, it is acknowledged that the applicant did not issue an indirect compulsory disposition to preserve the status of workers after the second instance and the second instance court, and that the applicant did not issue an indirect compulsory disposition to preserve the status of workers after the second instance and the second instance of this case's decision to preserve the status of workers, which is the most essential part of the applicant's right to request the second instance judgment.

B. In addition, in order to ensure the effectiveness of the decision of provisional disposition of this case, indirect compulsory measures under Article 261 of the Civil Execution Act are deemed necessary. In full view of all the circumstances such as the background leading up to the request for provisional disposition of this case, the nature of provisional disposition, the necessity of indirect compulsory execution, etc. recorded in the records of this case, it is reasonable to require the applicant to pay the amount calculated by the ratio of KRW 500,000 per day from the date of notification of the provisional disposition of this case where the applicant violates the provisional disposition of this case, until the time of performance of his obligation.

However, since it is not necessary to continue the provisional disposition order of this case even after the judgment on the merits between the claimant and the respondent becomes final and conclusive, the period of provisional disposition of this case is reasonable until the judgment on the merits becomes final and conclusive

4. Conclusion

Therefore, the application of this case is reasonable within the above scope of recognition, and therefore, the part falling under the above scope of recognition among the decision of the court of first instance is revoked, and the provisional disposition and indirect compulsory performance are ordered, and the remaining appeal is dismissed, and it is so decided as per Disposition.

July 10, 2014