2006No000

00, 00 00 corporate representative director

Defendant

Maximum Constitution only

Seoul Southern District Court Decision 2005Gohap000 Decided July 6, 2006

March 30, 2007

The judgment of the court below is reversed.

The defendant shall be innocent.

1. The facts charged in this case and the judgment of the court below

The facts charged of this case is that "the defendant is the representative director of Gangseo-gu, Seoul Metropolitan Government 00 enterprises (main owners) who employs 150 full-time workers and operates the taxi transport business, and the employer is the employer. The employer is a person in charge of the business, although he could not dismiss the worker without any justifiable reason, 000 who worked as a driver at the above place of business was dismissed without any justifiable reason on April 30, 2005 on the ground that he did not give an opportunity for explanation by the Disciplinary Committee held on April 30, 2005, and was dismissed without any justifiable reason, and the court below found the defendant guilty of all the facts charged.

2. Summary of grounds for appeal;

The Defendant notified 000 of the fact that he was holding the standing committee, and 000 was aware of the fact that the above notice was sent with content certification, and thus, renounced the opportunity for the Defendant to vindicate himself, and the Defendant’s dismissal against 000 was justifiable dismissal, but the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

3. The judgment of this Court

(a) Facts of recognition;

According to the evidence duly examined and adopted at the court below's second trial records, including the witness's statement of 000 in the trial records, the following facts can be acknowledged. (1) On February 2005, 200, the defendant's second trial records stated to the purport that "if you drink 000 only, I will see it." On April 8, 200, the defendant's office of the company's dispatch of the same year and the place of placement of the annual leave application were the dispute.

(2) In addition, on April 27, 2005: 01 to 16:23 of the same day, the Defendant operated the taxi (number: 4735) of the Defendant to set the total amount of KRW 80,200,000, but did not pay to the company.

On the other hand, according to Article 7 (2) of the Wage Agreement which the defendant company entered into with the labor union on November 8, 2004, the driver of the defendant company shall pay the whole transport earnings recorded in the operating recording device received from the business to the company, and the driver of the defendant's company shall arbitrarily uses the transport income (use) and shall not operate the vehicle on the operation record of the operating recording device, and shall give first warning to the case where there is an unfair charge, use of a meter meter, metres operation and damage, or a civil petitioner's failure to meet the daily working hours, and shall be subject to disciplinary action by referring to the disciplinary committee in accordance with the collective agreement if there is no previous opening of the vehicle, and 00 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 3 0 0 0 0 0 0 0 0 0 . .

(5) On the other hand, on April 28, 2005, the defendant's company sent a summons to hold the 30th 11th 00 Disciplinary Committee of the same month on April 28, 2005 to "Seongsan-dong in Gangseo-gu, Seoul" at the domicile of 000, but the address was unknown, and the defendant's company did not attend the defendant's disciplinary committee held on April 30 of the same month. (6) The provisions of the defendant's company with respect to dismissal of 000 are as follows:

[Rules of Employment]

Article 23 (Service) Employees shall observe orders to perform their duties in good faith and endeavor to improve work efficiency, as well as shall observe, in particular, the following matters faithfully:

7. They shall not drink alcohol while on duty, or engage in any scambling activity such as drinking, violence or verbal abuse, or commit any other conduct disturbing the order of the workplace;

13. Transportation revenues shall be paid in full as soon as the work ends.

Article 47 (Dismissal) If an employee falls under any of the following subparagraphs, he/she may be dismissed after deliberation by the Disciplinary Committee:

1. When he/she violates various duties of service;

3. Where the company disturbs the order of the above guidance, such as slandering, rashing, rashing, threateninging, threatening, threatening, defamation, etc. with respect to commercial matters and rent; 15. Where it violates any other Act or subordinate statutes or a labor contract.

[Collective Agreement]

Article 17 (Rewards)

1. The reward and punishment for employees shall be imposed in a manner that the company notifies the union thereof; and

2. Where a union has an objection to the penalty imposed by a company, it may examine it and correct it at the Trade Association and Private Funds Council (Provided, That in cases of disciplinary action, it shall notify the person concerned in advance and give him/her an opportunity to vindicate);

B. Determination

In a case where it is impossible for an employer to recognize the validity of disciplinary action because he/she did not take a prescribed procedure for the disciplinary action against a worker, barring special circumstances such as intentionally disregarding the procedure for disciplinary action with the employer's intent to impose unfair disciplinary action, the subject of criminal punishment under Articles 110 and 30(1) of the Labor Standards Act merely on the ground of such violation of the procedure.

In this context, the disciplinary action is subject to criminal punishment only when it is recognized that the disciplinary action is abused or deviates from the scope of the disciplinary action in its contents and that it is judged to have the potential of punishment by social norms (Supreme Court Decision 195 delivered on 195).

11. Supreme Court Decision 95Do2218 delivered on June 14, 1994; Supreme Court Decision 93Do3128 delivered on June 14, 1994

On the other hand, the following circumstances recognized by the above facts are as follows: ① The rules of employment of the defendant's company provide that the defendant's company's company's violation of various duty of service in Article 47, and the company's violation of the order of deceptive scheme, such as defamation, personal attack, attack, threat, defamation, etc. shall not be permitted to do so during working hours or to do so within the company, such as drinking, assault, abusive language, etc., not to disturb the order of the workplace, and transportation income shall not be deposited in full immediately after the completion of work; ② The defendant's company's rules of employment stipulate that the defendant's company's rules of employment shall be one of its duty of service; ② The defendant's company's employees against his superior while serving in the defendant company; ② the company's dispute was punished with the company's employees; and the defendant's company's rules of employment shall not

In light of the fact that some of the grounds for disciplinary action prescribed in Article 23 are violated, even though they were found to have violated

In dismissing the defendant 00, the validity of dismissal cannot be recognized because it did not undergo disciplinary procedures under the rules of employment, such as not confirming whether or not a notice of convening a disciplinary committee against 000 was not served and giving an opportunity to explain to 000, but it is difficult to say that the defendant intentionally neglected the disciplinary procedure with intent to impose unfair disciplinary action against 000, and rather, it is not unreasonable to judge that there is a justifiable reason to dismiss 000 as the defendant. Thus, it is difficult to view that the defendant was aware that he was dismissed without justifiable reason in violation of Article 30(1) of the Labor Standards Act, that it was intentional, or that there was no other evidence to acknowledge it.

Therefore, although the facts charged in this case constitute a case where there is no proof of a crime and should be acquitted of the defendant under the latter part of Article 325 of the Criminal Procedure Act, it shall be deemed that the court below erred by misunderstanding facts or by misunderstanding the legal principles as to the violation of Article 30 (1) of the Labor Standards Act, which affected the conclusion of the judgment. Thus, the defendant's appeal pointing this out is justified.

4. Conclusion

Therefore, the judgment of the court below shall be reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and the following judgment shall be rendered again after pleading.

As seen in paragraph (1) above, the summary of the facts charged in this case is as stated in paragraph (1) above, and as seen in paragraph (3) above, the facts charged in this case constitutes a case where there is no proof of crime, and thus, the defendant is acquitted pursuant to the latter part of

Justices Kim Dong-dong et al.

Judges Choi Du-ho

Judges Kim Jong-ok