[1] In a case where a defect in the disciplinary procedure is corrected in the course of a retrial, whether such defect is cured (affirmative)

[2] Whether the defect in the procedure of the original disciplinary procedure is cured even in a case where the request for a retrial is dismissed without a review personnel committee being held (negative)

[1] The procedure for review of a disciplinary action is a kind of disciplinary procedure, along with the original disciplinary procedure. The legitimacy of the procedure should be determined as to the whole of the disciplinary procedure. Thus, even if the violation of the procedure is discovered in the original process of disciplinary action, the defect of the procedure is cured if it is supplemented in the process of review.

[2] Where there is a defect in the composition of the disciplinary committee in the original disciplinary procedure, the defect in the original disciplinary procedure may be cured if the reexamination committee, which excluded the defective disciplinary committee member, has gone through legitimate deliberation and resolution. However, it cannot be deemed that the defect was cured by supplementation in the process of reexamination even if the reexamination committee is not held but the request for reexamination is dismissed.

[1] Article 27 (1) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) (see current Article 30 (1) of the Labor Standards Act) / [2] Article 27 (1) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) (see current Article 30 (1) of the Labor Standards Act)

[1] Supreme Court Decision 93Da29358 delivered on October 26, 1993 (Gong1993Ha, 3182), Supreme Court Decision 93Da17690 delivered on November 9, 1993 (Gong1994Sang, 69), Supreme Court Decision 94Da7553 delivered on August 23, 1994 (Gong1994Ha, 2503)

Plaintiff (Attorney Han-chul et al., Counsel for the plaintiff-appellant)

Defendant Agricultural Cooperatives (Attorney Kim Sang-hoon, Counsel for defendant-appellee)

Gwangju High Court Decision 95Na5980 delivered on May 9, 1996

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

1. According to the reasoning of the judgment below, the court below found the following facts and made decisions concerning the disciplinary procedure of this case.

According to the provision on disciplinary action against the plaintiff's employees of the same third grade or lower (Article 43(1) of the Personnel Management Regulations), the committee composed of not more than three employees nominated by the president of the cooperative, among the union's employees of the first grade or higher (Article 58, 59, and 60 of the Personnel Management Regulations): Provided, That the relative of a person related to the disciplinary action or a person related to the disciplinary action may not participate in the deliberation of the committee (Article 10(1) of the Disciplinary Disposition Guidelines), the committee's committee shall have the right of decision if the committee's number of members present at the meeting of a majority of the committee members and the number of members present at the meeting (Article 61(2) of the Personnel Management Regulations). The committee's resolution by the committee is conducted by the head of the association to notify the person subject to disciplinary action to the chairperson at the request of the committee's second grade or higher (Article 43(2), 44, and 45 of the Personnel Management Regulations). The committee's resolution by the committee may be presented within 140 days.

According to the above facts, even though the non-party is a person related to the disciplinary cause of this case against the plaintiff, the decision of this case was made by participating in the deliberation of the disciplinary action to the defendant union personnel committee composed of the defendant union for the deliberation of the disciplinary action, and there is a serious procedural defect. However, as long as the review procedure was lawfully conducted without the non-party's involvement by the plaintiff's appeal, the defect of the procedural violation was cured, and therefore the disciplinary action against the plaintiff was lawfully conducted in accordance with the procedure stipulated in the personnel regulations, etc.

2. The procedure for review of a disciplinary action is a kind of disciplinary action procedure, along with the original disciplinary procedure, and the legitimacy of the procedure should also be determined as to the whole of the disciplinary procedure. Thus, even if there is a defect in the original process of a disciplinary action, if it is supplemented in the process of a retrial, the defect in the procedure of a disciplinary action shall be cured (see Supreme Court Decisions 93Da29358 delivered on October 26, 1993, 94Da7553 delivered on August 23, 1994, etc.).

However, even based on the facts acknowledged by the court below, the non-party involved in the original disciplinary procedure of this case against the plaintiff was involved in the grounds for disciplinary action, and the chairperson of the Jeondo branch rejected the plaintiff's request for a retrial on the grounds as seen above. Thus, if there is a defect in the composition of the disciplinary committee in the original disciplinary procedure, the defect in the original disciplinary procedure can be cured if the retrial committee excluded the defective disciplinary committee from the defective disciplinary committee was made a legitimate deliberation and resolution. However, the defect in the original disciplinary procedure can not be deemed to have been corrected even if the chairperson of Jeondo branch rejected the retrial for the above reasons without the new disciplinary committee as in this case.

Therefore, the court below's decision that the disciplinary procedure of this case is lawful on the ground that the above defects were cured even if the president rejected the application for reexamination of this case, shall not be deemed to have erred in the misapprehension of legal principles as to the correction of defects in the disciplinary review, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

3. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Don-hee (Presiding Justice)