2020Na11498 Action for nullification of Disciplinary Action, etc.

A

Law Firm LLC et al., Counsel for the defendant-appellant

Attorney Song Chang-sung, Counsel for the defendant-appellant

B Partnership

Attorney Jeong-sik et al., Counsel for the defendant

Daejeon District Court Decision 2019Gahap102379 Decided February 17, 2020

August 20, 2020:

September 10, 2020

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The first instance judgment is revoked. The Defendant confirms that disciplinary dismissal against the Plaintiff on March 19, 2019, which was made by the Plaintiff, is null and void. The Defendant pays to the Plaintiff the amount calculated at the rate of KRW 7,202,370 per month from March 19, 2019 to the date of reinstatement.

1. Quotation of the first instance judgment

The reasons for this Court concerning this case are as follows, except for the supplement or addition of the first instance judgment as to the matters alleged by the plaintiff in priority in the trial, I accept it pursuant to the main sentence of Article 420 of the Civil Procedure Act (other grounds alleged by the plaintiff in the appeal of this Court are not significantly different from the allegations in the first instance court, and even if all evidence submitted by the first instance court are examined, I agree with the first instance judgment).

2. Parts to be supplemented or added; and

A. Among the grounds for disciplinary action, the portion of corporate seal imprint without permission

The plaintiff asserts that he has the authority to use the corporate seal as a superior of M, who is the person in charge of custody of the corporate seal imprint. The person in charge of custody of the corporate seal imprint under Article 5 and Article 6 of the Regulations on the Management of Importants, shall be the head of the general affairs department, and the use thereof shall be made after the approval of the chairperson is completed. However, the plaintiff is not the head of the general affairs department, and there is no authority to keep the corporate seal, even if the person in charge of the head of the general affairs department is the superior of the head of the general affairs department, it is not the fact that the authority to keep the corporate seal is not generated, and there is no authority to use the corporate seal at the time when the plaintiff affixed the corporate seal, and there is no approval of the president at the time when the plaintiff affixed the corporate seal.

B. Voluntary spending of funds for failure to provide accounting among the grounds for disciplinary action

1) According to the records of this case, the plaintiff stated on the first day for pleading of the first instance trial that there is an excessive room for the first time of accounting of the official fees, and on the first day for pleading of the first instance trial, since the right to use the official fees is granted to the plaintiff, it is not an issue even if it did not handle the account while using it.

2) According to this, it is reasonable to view that the plaintiff's confession was established in court as to the fact that the plaintiff used money deposited in the defendant's account and neglected accounting. However, the plaintiff asserted that all accounting was made on the second date for pleading of the court of first instance, and that it was inconsistent with the previous confession. This is reasonable to consider this as an implied assertion of revocation of confession (Supreme Court Decision 2001Da6367 Decided April 13, 2001). Accordingly, this part of the plaintiff's assertion is reasonable. The confession contrary to the truth pursuant to the proviso to Article 288 of the Civil Procedure Act may be revoked if it is proved that it was due to mistake, and the plaintiff did not submit any evidence that the previous confession was contrary to the truth and that it was caused by mistake. Rather, according to the evidence No. 5-1, No. 6-1, and No. 27, the plaintiff's assertion that the plaintiff was using the amount deposited in the defendant's account without being recorded in the evidence No. 5-1, No. 6-1, and No. 27.

C. The plaintiff asserts that disciplinary action is too harsh. However, in light of the detailed criteria for disciplinary action under Article 11-2 and attached Table 1 of the Enforcement Rule of the C Union Act, which are the criteria for disciplinary action, the disciplinary action is illegal only when the disciplinary action that the person with authority to take the disciplinary action has abused the discretionary power assigned to the person with authority to take the disciplinary action since the disciplinary action has considerably lost validity under the social norms (see, e.g., Supreme Court Decision 2000Da60890, 6096, Aug. 23, 2002). However, in light of the content and nature of the above misconduct which is the basis for disciplinary action under the instant case, the detailed criteria for disciplinary action under Article 11-2 and attached Table 1 of the C Union Act, which are the criteria for disciplinary action, it is not recognized that the person with authority to take the disciplinary action has abused its discretion because the disciplinary action has considerably lost validity under the social norms.

3. Conclusion

Therefore, the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, Park Jong-young

Judge Lee Jae-soo

Judges Kim Gin-sik