[1] Where a disciplinary measure is taken for the same reason after a worker was dismissed from his/her position, whether the removal from his/her position loses its validity (affirmative), and whether the worker has a benefit to apply for remedy against the removal from his/her position (affirmative with qualification)

[2] The case holding that the court below erred in the misapprehension of legal principles, in case where the removal from office was invalidated due to the same reason for violating the employee's duty under the personnel management rules and impairing the dignity of the worker who posted a letter of insulting the president of the National Health Insurance Corporation on the trade union Internet bulletin, and the dismissal disposition was rendered for the same reason

[1] The removal from position is a disposition that maintains the status of a worker as it is, but does not assign the position. If a disciplinary measure is taken for the same reason as that of the removal from position after the removal from position for any reason, the previous disciplinary measure becomes void. Here, the validity of the removal from position is retroactively extinguished and it is not the same as that of the removal from position from the beginning. Thus, the effect of the removal from position is not retroactively extinguished even if the removal from position becomes invalidated, and thus, if the personnel regulations stipulate legal disadvantage such as imposing restrictions on promotion and rank due to the effect of the removal from position, etc., the employee subject to the removal from position has interests to file a petition for remedy against the invalidated removal from position to remove such legal disadvantage.

[2] In a case where a worker, who posted a statement of insulting the president of the National Health Insurance Corporation on the labor union Internet bulletin, was removed from his position on the grounds that he violated an employee's duty under the personnel management regulations and damaged his dignity, and then was removed from position for the same reason, the case holding that the court below erred in the misapprehension of legal principles on the grounds that since the worker was at a disadvantage in personnel affairs and benefits, such as promotion and promotion due to the above removal from position, was subject to restrictions on promotion and promotion, reduction of remuneration, etc., and since disputes over the validity of the above removal from position have not become final and conclusive on the grounds that the worker's status cannot be deemed to have been lost, even if the removal from position lost its validity

[1] Article 23 of the Labor Standards Act / [2] Article 23 of the Labor Standards Act

[1] Supreme Court Decision 97Da25590 delivered on September 26, 1997 (Gong1997Ha, 3252) Supreme Court Decision 2006Da33999 Delivered on December 28, 2007

Plaintiff (Law Firm Han-chul, Attorneys Jeong Tae-tae et al., Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

National Health Insurance Corporation (Law Firm Spah, Attorneys Seo-jin et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2007Nu872 decided August 14, 2007

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

The grounds of appeal are examined.

The removal from position is a disposition that maintains the status as a worker but does not assign only the position. If a disciplinary measure is taken for the same reason as that of the removal from position after a worker was removed from position for any reason for which reason, the removal previously taken by the subsequent disciplinary action becomes void (see Supreme Court Decision 97Da25590, Sept. 26, 1997, etc.). Here, the invalidation of the removal does not mean that the removal does not retroactively extinguish the same as that of the removal from position from the beginning, and the validity of the removal ex post facto expires rather than that of the removal from position. Therefore, the effect of the removal from position does not retroactively cease to exist even if the removal from position becomes void. Thus, in the personnel regulations, etc. stipulate legal disadvantage such as imposing restrictions on promotion and promotion due to the effect of the removal from position, etc., a worker subject to the removal from position has the interest to apply for remedy against the invalidated removal from

According to the records, the Intervenor’s Intervenor (hereinafter “ Intervenor”) posted a letter on the labor union’s Internet bulletin to insult the Intervenor’s chief director, thereby infringing on the employee’s duty under the personnel regulations and impairing his dignity, and subsequently dismissed the Plaintiff for the same reason. The Intervenor’s personnel regulations impose restrictions on promotion and rank in the event of removal by not including the period of dismissal from position in the minimum years required for promotion and the minimum period of service required for promotion. The remuneration regulations stipulate that 20 percent (50%) of remuneration shall be reduced during the period of dismissal from position during which the Plaintiff was removed from position. Meanwhile, the Plaintiff asserted the validity of the instant dismissal along with the instant removal from position.

According to this, the plaintiff suffered disadvantage in personnel affairs and benefits, such as the reduction of remuneration, due to the restriction on promotion and rank due to the removal from position, and as long as there is dispute over the validity of the dismissal disposition of this case and its validity is not confirmed, the plaintiff cannot be deemed to lose the status of the intervenor's employee, and is still in a state of disadvantage in personnel affairs. Thus, even though the removal from position of this case lost its validity due to the removal from position of this case, the plaintiff has a benefit in remedy for

Nevertheless, the lower court, citing the first instance judgment, determined that the Plaintiff did not have any interest in remedy against the removal from the position solely on the ground that the removal from the position became invalidated by the removal from the position of this case, is erroneous in the misapprehension of legal principles as to the relief benefit in the relief procedure, such as unfair dismissal

The ground of appeal pointing this out is with merit.

Therefore, 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 Yang Chang-soo (Presiding Justice)