Plaintiff (Nex Law Firm, Attorneys Southern-bong et al., Counsel for the plaintiff-appellant)

Cultural Broadcasting Co., Ltd. (LLC, Attorneys Lee Sung-sung et al., Counsel for defendant-appellant)

Seoul Western District Court Decision 2018Gahap35776 Decided August 22, 2019

July 8, 2020

1. The judgment of the court of first instance is modified as follows.

A. We affirm that the Defendant’s dismissal against the Plaintiff on May 18, 2018 is null and void.

B. The defendant shall be the plaintiff.

(1) KRW 80,890,707;

(2) The amount calculated by the ratio of KRW 8,043,425 per month from May 19, 2018 to January 2019, from April 2020 to the Plaintiff’s reinstatement.

sub-payment.

C. The plaintiff's remaining claims are dismissed.

2. 10% of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

3. The above paragraph 1-b. above may be provisionally executed.

Order 2 and the Defendant paid to the Plaintiff the amount calculated at the rate of KRW 8,043,425 per month from May 19, 2018 to the time of the Plaintiff’s reinstatement (the Plaintiff sought payment of the amount calculated at the first instance court to the rate of KRW 8,634,708 per month including overtime allowances, but the Plaintiff excluded the part of the claim for overtime allowances at the time of the trial and reduced the claim of money).

1. Quotation of judgment of the first instance;

This Court's explanation is based on the reasoning of the judgment of the court of first instance except for the following reasons. Thus, this Court's explanation is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Parts to be dried;

○ From 14th to 18th of the first instance judgment

[5] Judgment on the grounds for disciplinary action

③ The instant disciplinary cause caused the Plaintiff to commit tort, such as defamation or insult, by delivering the instant documents to Nonparty 2 and Nonparty 3, who was a camera, who was a mermera, to friendship with a specific person, including defamation or insult.

The public performance of the elements of a tort of defamation or insult refers to a state in which many and unspecified persons can be recognized, and even if a fact was distributed to one person individually, if there is a possibility of spreading it to an unspecified or many unspecified persons, if the requirement of performance is satisfied, and if there is no possibility of spreading it differently, the public performance of the elements of a tort of defamation or insult refers to a performance (see Supreme Court Decision 99Do5622, May 16, 200, etc.).

In light of the following circumstances, it is difficult to conclude that the evidence submitted by the Defendant alone was likely to transmit the documents of this case to the non-party 2 and the multiple unspecified persons at the time when the documents of this case were delivered to the non-party 3 and the non-party 3, and there is no other evidence to prove otherwise. Accordingly, the delivery of the documents above cannot be deemed to constitute a tort of defamation or insult, as it goes against the public performance, and thus, cannot be deemed to constitute tort of defamation or insult.

A) The Plaintiff did not participate in the strike led by the Defendant in 2012, and was in a hostile relationship with the first union, such as Nonparty 1 and criticismed by the Defendant, and prepared the instant documents with the content of arbitrarily classifying and evaluating the reporters of the 1st union, and has the influence of the first union, as he himself. The Plaintiff shared the contents with Nonparty 2, Nonparty 3, and Nonparty 3, who are in conflict with the Defendant, and did not leak the said documents to the inside and outside.

B) At the time, the employees who completed a strike for six months at around 2012 and returned to the strike (which belongs to Article 1) and employees who did not participate in the strike (which belonged to Article 3) were suffering from a sudden conflict of interest. If the content of the instant documents were leaked inside and outside of the Republic of Korea, it seems that the Plaintiff, Nonparty 3, and Nonparty 2 shared the content of the said documents in a secret interest and separately controlled them so that they could not be leaked to the inside and outside of the Republic of Korea.

C) In fact, the Plaintiff prepared the said documents, and kept them in an internal e-mail server accessible only by the Plaintiff. In the audit process conducted by the Defendant’s Audit and Inspection Board, the existence was not known for a few years until the said documents were discovered, and no one was aware of the content, other than those who were allowed by the Plaintiff and the Plaintiff to access the instant file.

D) On June 29, 2018, the public prosecutor of the Seoul Western District Public Prosecutor’s Office rendered a decision to the effect that “the content of the instant document appears to have indicated the author’s personal judgment or opinion, and it is difficult to view it as a statement of facts that can be specifically proven, and there is no evidence that the suspect (the name of the Plaintiff) publicly delivered the instant document to another person (Evidence of Evidence).”

C. Whether the disciplinary discretion has been exceeded or abused

1) In a case where it is sufficient to recognize the validity of the relevant disciplinary action only with other grounds for disciplinary action, which are recognized even if a certain number of grounds for disciplinary action are not recognized, the same shall not apply to the maintenance of the relevant disciplinary action. However, the determination should be made carefully to ensure that the relevant disciplinary action is not likely to cause unexpected disadvantages to the worker, taking into account the following: (a) the details and proportion of the grounds for disciplinary action, which were recognized among the entire grounds for disciplinary action; (b) the reasons not recognized partially among the grounds for disciplinary action; (c) the type of the relevant disciplinary action; (d) the procedures for determining the disciplinary action prescribed by the relevant company; and (e) the standards and practices for the relevant company’s scale and nature of business; and (e) the standards and practices for disciplinary action (Supreme Court Decision 2017Du57318 Decided November 28, 2019).

2) The Plaintiff prepared the instant documents to classify 65 persons with the same rank and evaluate them voluntarily and maliciously, and prepared a personnel movement proposal and sent it to Nonparty 1, the personnel management authority. If the said documents were actually personnel or leaked to the inside and outside of the Republic of Korea, there is a high possibility of criticism in light of the Defendant’s service order and the harm of human dignity among workers, etc.

3) However, in full view of the aforementioned facts, comprehensively taking account of the overall purport of Gap evidence Nos. 4, 9, 15, Eul evidence Nos. 1, 2, 3, Eul evidence Nos. 7-3, Eul evidence Nos. 8-4, Eul evidence Nos. 8-1, and Eul evidence Nos. 20-1, Eul evidence Nos. 4, 9, 15, Eul evidence Nos. 7-2, and 20-1, it is difficult to conclude that the extent of the misconduct is more severe to the extent that the employment relationship can no longer continue with the grounds for disciplinary action. Accordingly, the dismissal disposition

A) The Plaintiff shared the content of the instant documents and personnel movements with Nonparty 2, Nonparty 3, and Nonparty 1, and only stored the instant documents and personnel movements in his personal net server for about five years, and did not leak them out to the Republic of Korea for about five years, and there is also insufficient evidence to deem that personnel rights have been exercised as well. Rather, the existence and specific contents of the instant documents and personnel movements became known to the inside and outside of the Republic of Korea due to the Defendant’s special audit and distribution of the press opinions and news reports in around 2017. Therefore, it is difficult to readily conclude that the Plaintiff’s act of preparing and keeping the instant documents and personnel movements directly affected the Defendant’s employees’ unity and service order.

B) Nonparty 1 was the head of the news gathering center under the jurisdiction of the news reporting state, and Nonparty 2 and Nonparty 3 were the senior carmer, who was a core member of Article 3, and the Plaintiff was merely a general member. Therefore, at the time of preparing each of the above documents, Nonparty 1 was not in a position to exercise any influence on the employees of the first union at the time of preparing the above documents.

C) At the time, the Plaintiff, on the ground that he did not participate in the strike led by the first labor union in 2012, was faced with the mind of being alienated from the employees of the said labor union, etc., the Plaintiff prepared the instant documents and a personnel movement proposal as a means of expressing his original network under the status of having his labor union and worships.

D) The Plaintiff submitted a written application to the effect that the preparation of the instant documents and a personnel movement itself reflects the preparation of the instant documents and a written proposal, and that he wanted to make a genuine apology before dismissal (see, e.g., written application for carbon on April 7, 2020).

E) The Plaintiff joined the Defendant in 2004 and worked in good faith as a Kamer for about 14 years, without being subject to a single disciplinary measure until the instant dismissal disposition, and during that period, he/she was awarded a special prize, excellent prize, or encouragement prize on seven occasions.

D. Scope of damages

1) As seen earlier, as long as the instant dismissal disposition is null and void, even if the Plaintiff was unable to actually provide labor during the period of dismissal, this is attributable to the Defendant, and thus, the Defendant is liable to pay the Plaintiff the amount equivalent to the wages that the Plaintiff would have received if not the

Furthermore, it is deemed that the Defendant’s wage amount that the Plaintiff was paid by 8,043,425 won (an average amount of wages and bonuses paid in 2015) from May 19, 2018 to the date of the instant dismissal does not conflict between the parties. Thus, barring special circumstances, the Defendant is liable to pay the amount equivalent to the unpaid wage calculated at the rate of KRW 8,043,425, each of which is the date following the instant dismissal disposition, from May 19, 2018 to the date of reinstatement, barring special circumstances.

2) As to this, the Defendant asserts that the intermediate income earned by the Plaintiff should be deducted from the wages to be paid to the Plaintiff from February 2, 2019 during the period of dismissal to the reinstatement.

The wages paid to a dismissed worker who worked in another workplace during the period of dismissal due to a cause attributable to the employer constitute a benefit derived from the discharge of his/her own obligation under Article 538(2) of the Civil Act, and thus, the employer can deduct the above benefit (so-called interim income) in paying the wages during the period of dismissal. However, the amount within the scope of the shutdown allowance under Article 46 of the Labor Standards Act out of the amount of wages that the worker can receive, cannot be deducted from interim income, and only the amount exceeding the shutdown allowance should be deducted from interim income (see Supreme Court Decision 93Da37915 delivered on November 9, 1993, etc.).

According to the purport of the Plaintiff’s evidence No. 38 and the oral argument, it is recognized that the Plaintiff received intermediate income of KRW 41,219,200 during the period of dismissal from February 2, 2019 to March 2020. Furthermore, the excess amount of shutdown allowance for the same period is equivalent to 30% of the monthly unpaid wages, and the interim income to be deducted is limited to the amount less than two. Ultimately, the Defendant’s final amount of unpaid wages after deducting the above interim income from the wages to be paid from February 2019 to March 2020 is KRW 80,890,707. This part of the Defendant’s assertion is with merit within the aforementioned recognition scope (the Defendant’s assertion that the interim income should be deducted from wages from April 20, 202 to reinstatement. However, it is not sufficient to recognize that the Plaintiff’s income exceeds or exceeds a certain amount of income from April 2, 2020 to March 20).

본문내 포함된 표 [단위: 원] 기간 월 미지급임금 휴업수당 초과 금액 (원 미만 버림) 중간수입액 공제액 최종 미지급 임금액 2019. 2. 8,043,425 2,413,027 2,000,000 2,000,000 6,043,425 2019. 3. 8,043,425 2,413,027 3,000,000 2,413,027 5,630,398 2019. 4. 8,043,425 2,413,027 2,000,000 2,000,000 6,043,425 2019. 5. 8,043,425 2,413,027 2,000,000 2,000,000 6,043,425 2019. 6. 8,043,425 2,413,027 2,000,000 2,000,000 6,043,425 2019. 7. 8,043,425 2,413,027 2,000,000 2,000,000 6,043,425 2019. 8. 8,043,425 2,413,027 3,000,000 2,413,027 5,630,398 2019. 9. 8,043,425 2,413,027 3,289,460 2,413,027 5,630,398 2019. 10. 8,043,425 2,413,027 3,508,750 2,413,027 5,630,398 2019. 11. 8,043,425 2,413,027 3,289,460 2,413,027 5,630,398 2019. 12. 8,043,425 2,413,027 4,385,950 2,413,027 5,630,398 2020. 1. 8,043,425 2,413,027 4,166,660 2,413,027 5,630,398 2020. 2. 8,043,425 2,413,027 3,289,460 2,413,027 5,630,398 2020. 3. 8,043,425 2,413,027 3,289,460 2,413,027 5,630,398 합계 112,607,950 - 41,219,200 31,717,243 80,890,707

Therefore, the Defendant is obligated to pay to the Plaintiff the amount calculated by deducting the lesser of the amount of interim income and the amount in excess of business suspension allowances from the unpaid wage to February 2019, which should be paid from May 19, 2018 to January 2019, April 2020 to the Plaintiff’s reinstatement, and ② KRW 80,890,707, i.e., unpaid wage to be paid from February 2019 to March 2020 [ = 112,607,950 ( = 8,043,425 x 14 months)] to the Plaintiff.

3. Conclusion

Thus, the plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as there is no ground. Since the judgment of the court of first instance is partially unfair, the judgment of the court of first instance shall accept the plaintiff's appeal in part and it is so decided as per Disposition.

Judges Man-man (Presiding Judge) E. S. E. S. S. interference