Requirements for unfair dismissal of the user to constitute a tort

If an employer intentionally dismisses a worker from his/her workplace by using a means of disciplinary action under the intention of seeking to find out a worker in the workplace without any grounds to discipline him/her, or if he/she pays objectively clear and clear that a fact which was the ground for dismissal does not fall under the grounds for dismissal, such as the rules of employment, or cannot constitute the grounds for dismissal, or he/she does not fall under the grounds for dismissal, such circumstance can be easily identified, even if it is obvious that abuse of the right of disciplinary action can not be permitted under our sound social norms or social norms, such as disciplinary action in cases where it is obvious that the abuse of the right of disciplinary action can not be permitted under our sound social norms or social norms, it does not mean that such dismissal has no justification under Article 27(1) of the Labor Standards Act, but it is illegal that the dismissal causes mental pain to the other party, thereby constituting a tort against the worker.

Article 750 of the Civil Act, Article 27 (1) of the former Labor Standards Act (amended by Act No. 5305 of March 13, 1997) (see current Article 30 (1))

Supreme Court Decision 92Da43586 delivered on October 12, 1993 (Gong1993Ha, 3061), Supreme Court Decision 95Da11696 delivered on February 27, 1996 (Gong1996Sang, 1081), Supreme Court Decision 95Da6823 delivered on April 23, 1996 (Gong196Sang, 155Da24821 delivered on January 21, 1997 (Gong197Sang, 597) (Gong197Ha, 3237)

Plaintiff (Attorney Lee So-young et al., Counsel for the plaintiff-appellant)

Subject Motor Vehicle Co., Ltd. (formerly: Sungwon-si Co., Ltd.)

Seoul High Court Decision 97Na35308 delivered on February 4, 1998

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

The grounds of appeal are examined.

On the first ground for appeal

According to the reasoning of the judgment of the court of first instance cited by the court below, the court below acknowledged the facts as stated in its reasoning based on the evidence, and judged that if the plaintiff did not perform his obligation to return retirement allowances already paid to the defendant company due to the dismissal of the defendant company upon the dismissal decision of the Labor Relations Commission, it does not constitute embezzlement of company's property, one of the grounds for dismissal under the collective agreement and rules of employment. Furthermore, even though the plaintiff expressed his intention to return the above retirement allowances to the defendant company, the plaintiff must calculate and deduct the above amount of wages and consolation money, etc. during the unfair dismissal period, and request the above amount to be returned in installments on the grounds of economic circumstances, the defendant company unilaterally suspended the dispatch to the plaintiff without any reasonable measures and procedures, in addition to demanding the return of retirement allowances from the plaintiff, and if it is possible to dismiss the plaintiff ex officio, it does not seem that there is a justifiable reason for the dismissal of the defendant company. In light of the records, the above fact-finding and judgment of the court below are correct, and there is no error in the misapprehension of legal principles as to the grounds for appeal as to dismiss.

On the second ground for appeal

If an employer intentionally dismisses a worker without any ground to discipline him/her at a workplace by intentionally establishing a ground for dismissal or on the ground of disciplinary action under the intention of seeking to find the worker at the workplace, or if he/she pays objectively clear and clear that a fact which was the ground for dismissal does not fall under the ground for dismissal, such as the rules of employment, or cannot constitute the ground for dismissal, or he/she is paid due attention to it, such circumstance can be easily identified. However, if it is obvious that abuse of the right of disciplinary action can not be permitted under our sound social norms and social norms, such as where he/she takes disciplinary action against him/her for this reason, if it is evident that such dismissal is not permissible under our sound social norms and social norms, it does not merely deny the validity of Article 27(1) of the former Labor Standards Act (amended by Act No. 5305 of March 13, 1997), but it is unlawful to inflict mental pain on the other party, thereby constituting a tort in relation to the worker (see, e.g., Supreme Court Decision 2004Da19697.297.

In the same purport, the court below judged that the defendant company's dismissal against the plaintiff and the dismissal of the plaintiff from the Labor Relations Commission after the dismissal of the plaintiff and the recovery of the plaintiff, and that a series of acts that did not pay wages during that period did not constitute grounds for dismissal under the rules of employment, which do not constitute an objective reason for dismissal under the rules of employment, and thus, it cannot be accepted in light of social norms or social norms. In addition, if the defendant paid a little amount of money, he could have easily known such circumstances, it constitutes a tort in relation to the plaintiff. The decision of the court below is just and acceptable in all of the measures of ordering the defendant to pay consolation money in accordance with the decision of the Labor Relations Commission, and it is not erroneous in the misapprehension of legal principles as to consolation money as pointed out in the grounds for appeal.

The grounds of appeal cannot be accepted.

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

Justices Seo Sung-sung (Presiding Justice)