A. The scope of ex officio investigation in administrative litigation

B. In a lawsuit seeking cancellation of the Tribunal on Remedy against Unfair Dismissal, whether it goes against the principle of pleading if the court rejected the claim on the legitimacy of dismissal and recognized the worker's fault in not specifically claiming the dismissal.

(c) Validity of rules of employment and collective agreement concerning grounds for dismissal;

A. Since the provision of Article 26 of the Administrative Litigation Act recognizes a partial exception to the principle of pleading, in administrative litigation, the court may, if deemed necessary by the court, ex officio examine and investigate the facts on which the parties do not clearly assert, and determine them based on the data indicated in the record.

B. In a lawsuit disputing the adjudication tribunal on relief from unfair dismissal under Article 27-3 of the Labor Standards Act, the party asserting it shall be responsible for the assertion and proof of the legitimacy of dismissal. Thus, in the process of rejecting the argument on the legitimacy of dismissal, the court did not regard the mistake that the worker did not specifically assert in the process of rejecting the argument on the legitimacy of dismissal, and it does not go against the principle of pleading

C. In the event that the collective agreement explicitly provides that “in respect of dismissal, the collective agreement shall govern and shall not dismiss workers under the rules of employment,” or that “workers shall not be dismissed for any reason other than that provided in the collective agreement,” the grounds for dismissal, etc. shall follow the collective agreement, or where the same grounds for dismissal conflict with the provisions of the collective agreement and the rules of employment with respect to the same grounds for dismissal, an employer may take disciplinary action against workers only in accordance with the grounds for disciplinary action provided in the collective agreement.

(a) Article 26(c) of the Administrative Litigation Act; Article 27(1)(b) of the Labor Standards Act; Article 27-3(c) of the Labor Standards Act; Article 97(1) of the Trade Union Act; Article 36(1) of

A. Supreme Court Decision 87Nu1182 delivered on April 27, 198 (Gong1988,926) 91Nu2854 delivered on November 8, 1991 (Gong1992,130) 92Nu3199 delivered on July 10, 1992 (Gong1992,2434) (Gong1991,2136) (Gong1936 delivered on July 12, 1991) 92Nu13035 delivered on January 15, 1993 (Gong1993Sang,742) 92Da48697 delivered on April 27, 1993 (Gong193,1953Sang, 1958) 196Da319634 delivered on April 16, 1994)

Plaintiff-Appellant Lee Young-young et al., Counsel for the plaintiff-appellant

The Chairperson of the National Labor Relations Commission

Appellant, Inc., Counsel for the defendant-appellant-appellee

Seoul High Court Decision 93Gu7008 delivered on March 25, 1994

All appeals are dismissed.

The costs of appeal against intervention in the costs of appeal are assessed against the Intervenor joining the Defendant, and the remainder are assessed against the Defendant.

The grounds of appeal are also examined.

1. Article 26 of the Administrative Litigation Act provides that "the court may, if deemed necessary, conduct an ex officio examination of evidence, and determine facts not asserted by the parties," thereby recognizing partial exceptions to the principle of pleading. Thus, in administrative litigation, the court may, if deemed necessary, conduct an ex officio examination and investigate ex officio and determine it based on the materials indicated in the record even if the parties have clearly asserted facts (see, e.g., Supreme Court Decision 92Nu3199, Jul. 10, 1992; Supreme Court Decision 91Nu2854, Nov. 8, 191; Supreme Court Decision 87Nu1182, Apr. 27, 198; Supreme Court Decision 68Nu21, Jul. 29, 1969; etc.).

In addition, in a lawsuit that contests the adjudication tribunal on relief against unfair dismissal under Article 27-3 of the Labor Standards Act, the party asserting it shall bear the burden of proof. Therefore, the court's rejection of the argument on the legitimacy of dismissal, and it does not go against the principle of pleading (see Supreme Court Decision 90Da9353, Jul. 12, 1991).

Therefore, Article 52 subparag. 1 and 3 of the Rules of Employment of the Intervenor Intervenor Company (hereinafter referred to as the “ Intervenor Company”) based on the materials indicated in the record when determining the legality of the instant decision on reexamination, is against the collective agreement, and thus, it cannot dismiss the Plaintiff for that reason, and on the ground that the grounds that the grounds for dismissal otherwise applied to the Plaintiff cannot be deemed to fall under any of the grounds for disciplinary action stipulated in the collective agreement, the dismissal of the instant case was unfair on the ground that the dismissal of the Defendant and the Intervenor Company was not asserted by the Plaintiff, the lower court did not err in violation of the principle of pleading, such as theory of lawsuit, or in misunderstanding the legal principles on the burden of assertion,

2. In a collective agreement to the effect that “in respect of dismissal, a collective agreement shall govern and shall not be dismissed under the rules of employment,” or that “in the dismissal of workers for reasons other than those provided for in the collective agreement, workers shall not be dismissed,” where the grounds for dismissal, etc. are explicitly provided for in the collective agreement or where the provisions of the collective agreement and the rules of employment conflict with each other with respect to the same grounds for disciplinary action, the employer may take disciplinary action against workers only in accordance with the grounds for disciplinary action provided for in the collective agreement (see, e.g., Supreme Court Decisions 93Da26151, Jun. 14, 1994; 93Da62126, Jun. 14, 1994; 92Da48697, Apr. 27, 1993; 92Nu13035, Jan. 15, 1993).

However, Article 21 of the collective agreement provides that "the above company shall not take disciplinary action against the intervenor except for the cases falling under any of the following subparagraphs." Article 21 of the collective agreement provides that ① it may cause enormous losses to the company due to intentional refusal or interference with its business operations, ② it may interfere with the order of fraudulent acts or community destruction of the company using violence, ③ it shall be absent without permission or habitually for 7 days or more, ⑤ it shall be decided through consultation between the labor and management, so it shall not be deemed that there was a ground for disciplinary action against the intervenor 2's non-compliance with the above Article 21, and it shall not be deemed that there was a ground for disciplinary action against the plaintiff 1 and the intervenor 2's non-compliance with the above Article 192's non-compliance with the above Article 29. The plaintiff's non-compliance with the defendant 2's non-compliance with the order of disciplinary action against the plaintiff 192. The plaintiff 2's non-compliance with the order of disciplinary action against the plaintiff 19.

Therefore, the fact-finding and judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles regarding the interpretation of the rules of employment and collective agreement of the intervenor company and the interpretation of the rules of employment or disciplinary action, incomplete deliberation, incomplete deliberation, omission of evidence preparation, and omission of judgment. There is no ground for all arguments.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. The part pertaining to participation in the appeal is assessed against the intervenor joining the defendant, and the remaining part is assessed against the defendant. It is so decided as per Disposition by the assent of all participating judges.

Justices Jeong Jong-ho (Presiding Justice)