[1] Where a disciplinary measure is taken for the same reason after the removal from one's position was taken, whether the removal from one's position is invalidated (affirmative), and whether there is a benefit to seek nullification of the removal from one's position (negative in principle)

[2] Whether the grounds for disciplinary action which was not the grounds for disciplinary action can be added to the new trial procedure (negative)

[3] Whether the pertinent disciplinary action may be maintained in a case where there are sufficient grounds for disciplinary action to recognize the validity of the pertinent disciplinary action even if there are some other grounds for disciplinary action, which are not recognized in part (affirmative)

[4] Criteria for determining whether a disciplinary action against a worker has deviation or abuse of discretionary power

[5] The requirements for an unfair dismissal of an employer to constitute a tort

[1] Article 250 of the Civil Procedure Act, Article 30 of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007) (see Article 23 of the current Labor Standards Act) / [2] Article 30 of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007) (see Article 23 of the current Labor Standards Act) / [3] Article 30 of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007) / [4] Article 30 (see Article 23 of the current Labor Standards Act) of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007) / [5] Article 750 of the Civil Act, Article 230 of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007)

[1] Supreme Court Decision 97Da2590 delivered on September 26, 1997 (Gong1997Ha, 3252), Supreme Court Decision 93Da10743 delivered on September 10, 1993 (Gong1993Ha, 2730) / [2] Supreme Court Decision 98Da2365 delivered on May 22, 1998 (Gong1998Ha, 1718) / [3] Supreme Court Decision 82Nu405 delivered on April 26, 1983 (Gong1983, 901), Supreme Court Decision 91Nu4102 delivered on November 22, 1991 (Gong1992, 320) / [2] Supreme Court Decision 2005Du26405 delivered on September 24, 2005 (Gong205205Ha decided April 26, 2005)

Plaintiff

A school juristic person (name omitted) University (Law Firm Rate, Attorneys Kim Tae-hwan et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2005Na88611 decided May 12, 2006

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal on invalidity of the removal from position

The disposition of dismissal from one's position is a disposition which does not continue to exist as it is, but does not assign only the position, and if a disposition of dismissal from one's position is taken for the same reason as that of the dismissal from one's position after the dismissal from one's position for any reason, the disposition of dismissal from one's position previously taken after the dismissal from one's position shall lose its validity (see Supreme Court Decision 97Da25590 delivered on September 26, 1997, etc.). If such a disposition of dismissal from one's position loses its validity, barring special circumstances such as restrictions on promotion and rank by the personnel regulations, there is no benefit to seek confirmation of invalidity (see Supreme Court Decision 93Da10743 delivered on September 10, 193, etc.).

In light of the above legal principles and records, the court below, citing the reasoning of the judgment of the court of first instance, rejected the judgment of the court below that the disposition of removal from position of this case was invalidated due to the disposition of suspension from office of this case, and that the records of removal from position should be deleted only after three years have passed since the date of the date of the date of the removal from position under the personnel regulations of the defendant corporation, and thus the plaintiff is likely to suffer disadvantage in personnel management and others than those who have no record of the removal from position during that period. However, this is merely a de facto disadvantage, and it cannot be deemed as a legal disadvantage, and it cannot be the most effective and appropriate means to seek nullification of the removal from position with respect to the disadvantage caused by the reduction of salary due to the removal from position of this case, and there is no error in the misapprehension of legal principles as to the removal from position which affected the conclusion of the judgment. The ground of appeal related to this cannot be accepted

2. As to the grounds of appeal on the existence of grounds of disciplinary action

Reviewing the reasoning of the first instance judgment cited by the lower court in light of the records, the lower court, based on the evidence adopted by the lower court, accepted the following purport: (a) the Plaintiff’s act of abusing the president’s authority and neglecting his/her duties to verify that the Plaintiff suffered disadvantage in personnel affairs; and (b) the questioning statement (name omitted); (c) the Plaintiff’s act of abusing the president’s authority and neglecting his/her duties to send it to the president; (d) the Plaintiff distributed (name omitted) university newspaper reporters; (e) submitted a request to audit the Board of Audit and Inspection, thereby impairing (name omitted); (e) the Plaintiff’s reputation was damaged; and (e) the Plaintiff arbitrarily copied personnel-related materials and books of account without approval of the president or the head of the relevant department and disclosed them to the public; and (e) the fact that such act constitutes grounds for disciplinary action against the Defendant corporation’s act of violating the rules and personnel regulations as alleged in the grounds for appeal.

Meanwhile, according to the records, even though Defendant Corporation General Service Disciplinary Committee decided to take the above facts as grounds for disciplinary action against the Plaintiff for the second month suspension from office, it was added to the fact that the Plaintiff acquired the branch, account number, etc. of the bank in violation of the Act on Real Name Financial Transactions and Confidentiality in order to enforce the Seoul High Court Decision 2003Na2422 in the review procedure conducted by the Plaintiff. In addition, there is no evidence to acknowledge all records, and it is not allowed to add the grounds for disciplinary action which were not taken as grounds for disciplinary action in the original disciplinary action to a new trial procedure is deprived of the opportunity to review the additional grounds for disciplinary action (see Supreme Court Decision 98Da2365, May 22, 1998, etc.). Thus, it is erroneous that the Defendant added the above illegal acquisition of financial transaction information as grounds for disciplinary action in the new trial procedure by the Plaintiff. However, even if some of the grounds for disciplinary action are not recognized, it is not acceptable to acknowledge the validity of the disciplinary action, and it is not acceptable.

3. As to the grounds of appeal on the legitimacy of a disciplinary decision

In principle, when a disciplinary measure is taken against an employee, the disciplinary measure is taken at the discretion of the person having the authority to take the disciplinary measure. Thus, the disciplinary measure is illegal only when the person having the authority to take the disciplinary measure has been deemed to abuse the authority to take the disciplinary measure since the person having the authority to take the disciplinary measure has considerably lost validity under the social norms. If the disciplinary measure is deemed to be a disposition which considerably lacks validity under the social norms, it shall be deemed that it is objectively and objectively unfair in light of the characteristics of the job, the content and nature of the misconduct, the purpose of achieving the disciplinary measure by the reason for the disciplinary measure, and all the circumstances accompanying it (see Supreme Court Decision 2001Du1069, Jul. 25, 2003, etc.).

In light of the above legal principles and records, it is reasonable that the court below, citing the reasoning of the judgment of the court of first instance, taking the fact that the defendant violated the personnel regulations and service regulations as seen earlier against the plaintiff as grounds for disciplinary action for the suspension of two months, is proper, and the decision of the court below, which judged that it cannot be deemed that it abused the discretionary power granted to the person having authority to take the disciplinary action because it has considerably lost validity under social norms, is justified, and there is no error of law such as misunderstanding of legal principles

4. As to the ground of appeal on the claim for damages

If an employer intentionally, under the intention of seeking to dismiss a worker without any grounds for dismissal, intentionally makes, or on the ground of a nominal reason for dismissal at a workplace, or pays attention to the fact that it does not constitute a ground for dismissal, such as the rules of employment, or it is objectively clear and clear that the fact caused by dismissal does not constitute a ground for dismissal, or cannot constitute a ground for dismissal, such circumstance can be easily recognized, even if it is obvious that the abuse of the right of dismissal cannot be accepted under our sound social norms and social norms, such as in a case where dismissal is made for that reason, in a case where it is obvious that the abuse of the right of dismissal is not permissible under our sound social norms and social norms, the dismissal is not limited to the denial of its validity due to its lack of justification under Article 30(1) of the Labor Standards Act, but it illegally causes mental distress to the other party, thereby constituting a tort in relation to the worker (see Supreme Court Decisions 92Da43586, Oct. 12, 193; 2006Da17355, Jul. 28, 2006).

Examining the reasoning of the judgment of the court of first instance cited by the court below in light of the above legal principles, even if the dismissal disposition against the plaintiff on May 22, 2001 becomes null and void by a final judgment, the grounds for the disciplinary action are recognized, but the fact that the disciplinary action is only imposed, and thus, the defendant corporation did not dismiss the plaintiff under the intent to find the plaintiff only without any grounds for the disciplinary action, or it does not constitute a case where it is obvious that the abuse of the right to dismiss the plaintiff cannot be accepted under the sound social norms or social norms. Meanwhile, the defendant corporation's rejection of the right to dismiss is justified by responding to the lawsuit to confirm the invalidity of the above dismissal disposition filed by the plaintiff, and the Supreme Court on July 8, 2004, which did not return the plaintiff until the judgment to the plaintiff becomes final and conclusive after the above judgment became final and conclusive, and it cannot be viewed that the reinstatement was unreasonably delayed by the mere omission of the plaintiff's reinstatement after October 1, 2004, as alleged in the grounds for appeal.

5. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Si-hwan (Presiding Justice)