Requirements for disciplinary action against workers under Article 107 and Article 27(1) of the Labor Standards Act to be subject to criminal punishment under Article 107 and Article 27(1)

Even in cases where an employer cannot recognize the validity of disciplinary action because he/she did not follow the prescribed procedures for the disciplinary action against a worker, barring special circumstances such as intentionally disregarding the procedure with the employer’s intent to impose unfair disciplinary action, the employer cannot immediately be subject to criminal punishment pursuant to Articles 107 and 27(1) of the Labor Standards Act on the sole ground of such violation of the procedure. Here, such disciplinary action is recognized as abuse of the right to disciplinary action or beyond the scope thereof in its content, and it is subject to criminal punishment only in cases where it is assessed as a violation of social norms.

Articles 27(1) and 107 of the Labor Standards Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Gyeong-soo et al., Counsel for plaintiff-appellant)

Defendant

Defendant

Attorney Suh Chang-ho et al.

Seoul Criminal Court Decision 93No3476 delivered on October 6, 1993

The judgment of the court below is reversed and the case is remanded to the Panel Division of the Seoul Criminal Court.

The grounds of appeal are examined.

1. The facts charged of this case is that the defendant, as the representative director of the corporation, is the user of the taxi transport business, and the driver was punished without justifiable grounds by suspending service on the taxi from July 10, 191 to September 16 of the same year without legitimate disciplinary procedure on the ground that the dedicated owner operated the taxi fare meter. The court below found the defendant guilty of the above facts charged for the following reasons.

In other words, according to macroscopic evidence, if he applied for a private taxi transport business license in 1991 and expected to acquire the license and retire the company. However, from May 1, 1991 before the retirement forecast period, Dongin's taxi commission was considerably increased. In particular, during the period from July 1, 1991 to July 9, 191, five days or more without passengers' operating hours (public vehicle hours). Accordingly, the defendant, without a disciplinary procedure, determined that the above constitutional owner operated the taxi commission in a way that would increase taxi commission in order to advance retirement pay, and without a disciplinary procedure, ordered the vice-director of the company management division of July 9, 191 to suspend his assignment to the above constitutionalism and to suspend his employment until September 16, 1991. However, according to the above collective agreement and rules of employment, the defendant's act of refusing employment as a means of disciplinary action against the above defendant's dismissal under the circumstances that the above disciplinary action was not established, the defendant's act of ordering the above dismissal committee to suspend its employment.

2. However, the above judgment of the court below is hard to accept.

Article 27 (1) of the Labor Standards Act provides that "an employer shall not dismiss, lay off, suspend, transfer a worker without any justifiable reason, reduce his/her wages, or take other punitive measures against a worker" and Article 107 of the same Act provides that the effect of disciplinary measures can not be recognized because the employer failed to take a prescribed procedure in imposing a certain disciplinary measure against the worker, barring special circumstances such as intentionally disregarding the disciplinary procedure with the employer's intent to impose unfair disciplinary measures, the employer cannot immediately be subject to criminal punishment pursuant to the above provision on the ground of such procedural violation. In addition, it is correct to interpret that such disciplinary measure is subject to criminal punishment only in cases where the employer intentionally neglects the procedure with the employer's intent to impose unfair disciplinary measures.

According to the records, in light of the above unconstitutionalism's performance of taxi commission and operational records, it is reasonable to view that the defendant was aware that he operated a meter by the means of increasing taxi commission in order to make retirement retirement and increase retirement allowances (Chapter 26 of the investigation record). Meanwhile, when the representative of the company exercises personnel rights against employees, he can recognize that he was notified of the above measures to a trade union pursuant to the above company's rules of employment (Chapter 94 of the investigation record), and ultimately, the defendant was aware of the above measures as part of personnel action, not as a disciplinary action, and as part of the above suspension of assignment. Accordingly, even if the above measures taken by the defendant were to be taken as a result, it cannot be readily concluded that the defendant intentionally neglected the prescribed disciplinary procedure as a result of unfair disciplinary action, and it is not easy to conclude that the defendant did not have any intent to manipulate the disciplinary action as a matter of social norms, and thus, it is not easy to conclude that the defendant's act of operating the above disciplinary measure as a matter of social norms is not easy.

The court below should have judged the criminal punishment of the defendant after undergoing a further examination on the above points.

For the reasons indicated in its holding, the court below erred by misapprehending the legal principles as to the penal provisions of the Labor Standards Act, which found the Defendant guilty of the facts charged of this case, and by doing so, failing to exhaust all necessary deliberations on the case. The grounds for appeal are with merit.

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

Justices Kim Jong-ju (Presiding Justice)