[1] The legal nature of the disposition of retirement based on the reason not on automatic termination of employment relations (=a dismissal) and the standard for interpreting the reason for the above ipso facto retirement

[2] The case holding that "when a person was sentenced to imprisonment without prison labor or heavier punishment" as a ground for voluntary dismissal under the rules of employment means a case where a sentence was rendered

[1] In a case where an employer provides the grounds for a certain reason as a reason for a ipso facto retirement or dismissal and provides the procedure different from that of ordinary dismissal or discipline, unless the reason for ipso facto retirement appears to be the grounds for automatic termination of labor relations such as the death or retirement age of a worker, and the expiration of the term of a labor contract, a disposition on ipso facto retirement shall be deemed as a dismissal subject to restrictions under Article 27 of the former Labor Standards Act (amended by Act No. 5309 of Mar. 13, 1997). If the rules of employment, etc. provide that a reason for ipso facto retirement does not constitute a reason for automatic termination of labor relations as above, its meaning shall be determined reasonably in light

[2] The case holding that when "at the time of being sentenced to imprisonment without prison labor or more severe punishment as one of the grounds for voluntary dismissal" under the rules of employment is different grounds for voluntary dismissal or disciplinary action, and compared with and review of the grounds for dismissal by force, it means a case where an employer is convicted, i.e., a judgment of conviction, that is, a case where the physical detention of a worker being detained as a criminal offense is not resolved, in which the worker is not able to raise an objection against the worker even if the worker is dismissed automatically, on the ground that the situation where the employer is unable to perform his/her basic duty under the labor contract continues for a long time, and where the employer is convicted

[1] Articles 27 (see current Article 30), 27-3 (see current Article 33), and 94 (see current Article 96), Article 7 of the Enforcement Decree of the Labor Standards Act, Articles 1 [general administrative disposition], 2, 19, and 27 of the Administrative Litigation Act / [2] Articles 27 (see current Article 30), 27-3 (see current Article 33), and 94 (see current Article 96) of the former Labor Standards Act, Article 7 of the Enforcement Decree of the Labor Standards Act

[1] Supreme Court Decision 92Da54210 delivered on October 26, 1993 (Gong1993, 3160), Supreme Court Decision 93Da43866 delivered on December 21, 1993 (Gong1994Sang, 493), Supreme Court Decision 94Da42082 delivered on March 24, 1995 (Gong1995Sang, 1722), Supreme Court Decision 95Da1767 delivered on July 14, 1995 (Gong1995Ha, 2801), Supreme Court Decision 96Da21065 delivered on October 29, 196 (Gong196Ha, 3524 delivered on September 29, 196) / [2] Supreme Court Decision 94Da42939 delivered on March 13, 195 (Gong196Ha, 3524 delivered on September 29, 1992)

EXEAD Co., Ltd.

The Chairman of the National Labor Relations Commission

Intervenor joining the Intervenor

Seoul High Court Decision 97Gu45404 delivered on October 30, 1998

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

The grounds of appeal are examined.

1. On the first ground for appeal

In a case where an employer stipulates the occurrence of a certain cause as a ground (e.g., ipso facto retirement or dismissal; hereinafter the same shall apply) and provides the procedure different from that of ordinary dismissal or discipline, unless the ground for ipso facto retirement appears to be a ground for automatic extinguishment of labor relations, such as the death or retirement age of a worker, the expiration of the term of a labor contract, etc., a disposition on ipso facto retirement shall be deemed as a dismissal subject to restrictions under Article 27 of the former Labor Standards Act (amended by Act No. 5325, Mar. 13, 1997). If the rules of employment, etc. provide that the reason for ipso facto retirement does not constitute a ground for automatic extinguishment as a ground for ipso facto retirement, its meaning shall be determined reasonably in light of the purport of the provision or the contents of other reasons for ipso facto retirement (see Supreme Court Decision

According to the records of this case, except for "when a worker is sentenced to imprisonment without prison labor or more severe punishment," the grounds for dismissal for the plaintiff company's employment rules are as follows: ① where the worker has expressed no intention to provide labor explicitly or implicitly (in the case of submission of private staff members, failure to provide labor, failure of military personnel), ② where the worker is unable to provide labor due to its nature (in the case of death, quasi-incompetent, incompetency, or bankruptcy), ③ where the period of work has expired (the retirement age, the expiration of the period of labor contract), and "where the worker is subject to legal measures due to any other criminal act, such as intimidation or assault, interference with duties, embezzlement, breach of trust, fraud, fraud, etc." (see, e.g., Supreme Court Decision 299Da294999, Apr. 29, 1999).

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of the legal principles as to the interpretation of the grounds for temporary dismissal, and the Supreme Court Decision 97Nu1600 Decided September 26, 1997 cited in the ground of appeal is not only a sentence of imprisonment without prison labor or a heavier punishment but also a decision of the suspension of execution as well as a decision of the suspension of execution as to the grounds for disqualification or dismissal of employees, and it is not possible to invoke the case in this case as different reasons for the

2. On the second ground for appeal

According to the reasoning of the judgment below, the court below acknowledged facts as to the ground for suspension and disciplinary procedure of this case, and the contents of relevant provisions. The plaintiff company provided an opportunity to explain to the person subject to disciplinary action prior to the disciplinary action. Thus, the suspension disposition of this case was not effective since it did not give such an opportunity. In addition, the second suspension disposition against the person subject to disciplinary action is heavy in terms of the degree and motive of the relevant misconduct. In light of the records, the court below's fact-finding and judgment are just and there is no error of law by mistake of facts or misapprehension of legal principles as pointed out in the grounds for appeal. The ground for appeal pointing this out is without merit.

3. 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 on the bench.

Justices Lee Jae-hee (Presiding Justice)