[Defendant]
[Appellant] Prosecutor
[Defense Counsel] Attorney Cho Yong-rak
[Judgment Below]
Suwon District Court Decision 95No303, decided August 10, 1995
[Order]
The appeal is dismissed.
[Reasoning] As to the grounds for appeal
Even where an employer imposes a certain disciplinary punishment on an employee without following the prescribed procedures, so that the effect of the punishment cannot be recognized, such a procedural violation alone does not immediately subject the employer to criminal punishment under Article 107 and Article 27(1) of the Labor Standards Act (근로기준법), unless there are special circumstances such as the employer having intentionally disregarded the disciplinary procedures with the intent to impose an unjust punishment. Beyond this, criminal punishment is warranted only where the punishment, in its substance, is found to constitute an abuse of the right to discipline or to exceed its permissible scope, and is further evaluated as being punishable under generally accepted social norms (see this Court's Decision 93Do3128, decided June 14, 1994).
Having found the facts as stated in its judgment, the court below determined as follows: even if Defendant dismissed the non-indicted person because the non-indicted person, in disobedience to Defendant's order transferring his post—issued for the purpose of enhancing the company's credibility with its business partners and establishing work discipline—continued not to report to work at the company, and, despite three subsequent demands to resume normal work, still did not report to work; and even if the dismissal cannot be recognized as effective because it was carried out without going through a resolution of the personnel committee, this fact alone is insufficient to find that Defendant intentionally disregarded the disciplinary procedures with the intent to impose an unjust punishment on the non-indicted person. Rather, it appears not unreasonable that Defendant judged there to be justifiable grounds for disciplinary dismissal of the non-indicted person, and thus it cannot be found that Defendant had the awareness, i.e., criminal intent, of dismissing the non-indicted person without justifiable cause in violation of Article 27(1) of the Labor Standards Act. On this basis, the court below found that the facts charged in this case fell within the category of cases lacking proof of the criminal facts, and accordingly rendered a not-guilty verdict for Defendant. In light of the legal principles set forth above, this determination is correct, and there is no illegality therein, such as a misapprehension of the facts due to a violation of the rules of evidence, or a misunderstanding of the legal principles concerning Article 107 and Article 27(1) of the Labor Standards Act, as argued in the grounds of appeal. The argument is without merit.
Accordingly, the opinions of the Justices participating in this case being unanimous, it is decided to dismiss the appeal, as stated in the Order.
Justice Park Jun-seo (Presiding Justice), Park Man-ho (Justice in Charge), Lee Yong-hun