[Plaintiff, Appellee]
[Defendant, Appellant] Tongil Co., Ltd., Counsel Yoon Kyung-hyun and one other
[Judgment Below] Busan High Court Decision 89Na9302 rendered on November 29, 1990
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Defendant.
[Reasoning]
The grounds of appeal are examined.
(1) As to the First Ground of Appeal
According to the reasoning of the judgment below, the court below, upon comprehensive consideration of the evidence cited therein, found the following facts: the Plaintiff joined the Defendant company on October 6, 1980, and worked as a technical employee, and was elected chairman of the Defendant company's labor union on May 2, 1985; the Plaintiff conducted labor union executive training as indicated in the judgment at the date, time, and place indicated therein; in connection with this, the Defendant company reported the Plaintiff and 17 other executives, totaling 18 persons, to the Gyeongsangnam-do Police Bureau for violation of the Act on Assembly and Demonstration (집회및시위에관한법률), and on the same day also reported, together with the above assembly case, the labor dispute action conducted by Defendant company's workers from April 6 to April 26, 1985, which had been led by the Plaintiff while he served as the labor union's secretary-general, for violation of Article 12(2) of the Labor Dispute Adjustment Act (노동쟁의조정법), which prohibits labor disputes at defense industry enterprises; the Plaintiff was detained on June 28, 1985, on suspicion of violating the Labor Dispute Adjustment Act and the Act on Assembly and Demonstration; as a result of the investigation of the above reported case, the Gyeongsangnam-do Police Bureau and the Masan District Public Prosecutors' Office rendered a decision of no suspicion with respect to the Plaintiff's holding of the above labor union executive training assembly, on the ground that it was difficult to view the act as one likely to cause significant social unrest, while indicting the Plaintiff before the Masan District Court on July 20, 1985, with respect to the labor dispute portion for violation of the Labor Dispute Adjustment Act, and the said court sentenced the Plaintiff on December 10, 1985, to one year's imprisonment, suspended for two years; the Defendant company, deeming that, as a result of the above labor union executive training assembly case led by the Plaintiff, numerous employees and management staff including the president were subjected to investigation, thereby internally disturbing the atmosphere of the company and externally damaging the company's honor and credit, and that this constituted grounds for disciplinary action under Article 74, Item 10 of the Defendant company's Rules of Employment (regarding misconduct in the performance of duties, acts disturbing the order and discipline of the company, acts impairing harmony among employees, and acts damaging the honor or credit of the company) and Article 10, Item 1 of the Disciplinary Regulations, dismissed the Plaintiff by way of disciplinary action effective July 5, 1985. Having established these facts, the court below then held as follows: the Plaintiff held the above labor union executive training assembly during non-working hours, namely Saturday evening through Sunday dawn; the content of the executive training conducted at the assembly did not violate social norms or could be regarded as part of legitimate labor union activities; further, even if, due to the investigation initiated as a result of the Defendant company's report concerning the above labor union executive training assembly on suspicion of violation of the Act on Assembly and Demonstration, numerous employees including the Plaintiff were taken into custody by investigative authorities, thereby internally disturbing the atmosphere of the Defendant company and causing significant disruption to production activities, and externally damaging the honor of the Defendant company, this should be regarded merely as an incidental result of the exercise of the State's criminal justice power; moreover, since the above labor union executive training assembly matter, which the Defendant company put forward as the premise for the grounds of disciplinary action against the Plaintiff, was found through investigation to be a case of no suspicion, the disciplinary dismissal in this case rendered by the Defendant company against the Plaintiff either does not fall under grounds for disciplinary action, or was based on grounds for which the Plaintiff cannot be held responsible, and is therefore null and void. Upon examining the record against the evidence cited in the judgment below, the above determination of the court below is acceptable, and there is no illegality therein such as incomplete deliberation, insufficient reasoning, or misapprehension of the legal principles concerning justifiable grounds for disciplinary dismissal, as argued in the grounds of appeal. Therefore, this argument cannot be accepted.
(2) As to the Second Ground of Appeal
The court below examined the Defendant's argument that: the Plaintiff, on May 2, 1986, received without reservation of any objection the retirement allowance and dismissal allowance which the Defendant company had deposited for performance immediately after the above disciplinary dismissal, and only two years later, on May 2, 1988, filed the instant lawsuit; first, the Plaintiff, upon receiving the deposited amount, already approved the above disciplinary dismissal as valid; and second, labor-management disputes, particularly disputes relating to the validity of dismissal, require prompt resolution both from the standpoint of the worker, who depends on wages for livelihood, since dismissal is a measure that deprives the worker of his status, and from the standpoint of the employer, for whom the supply and demand of labor forms the basis of management; moreover, since the grounds for disciplinary action against the Plaintiff arose from a collective demonstration, and the Plaintiff was detained, sentenced, and released, and thereafter received the deposited amount including the retirement allowance and did not contest the validity of the dismissal for two years thereafter, considering all these circumstances together, the Plaintiff provided the Defendant company with a basis for trust that the Plaintiff had approved the above disciplinary dismissal as valid; therefore, it is argued, the Plaintiff's belated contest of the validity of the above disciplinary dismissal is not permitted under the principle of good faith or the principle of estoppel. As to this argument, the court below, upon comprehensive consideration of the evidence cited therein, found the following facts: from the time the Plaintiff received notice of the convening of the disciplinary committee, he made clear that he could never accept the disciplinary action and that he would fight against it; even after being disciplinarily dismissed, he continued to serve as chairman of the Defendant company's labor union, went to the Defendant company demanding withdrawal of the disciplinary dismissal, while also attending the labor union's regular general meetings and various events to engage in union activities, and on May 2, 1986, upon the advice of counsel, withdrew and received the deposited amount which the Defendant company had deposited; the acting chairmen of the Defendant company's labor union, until April 1988, included the issue of reinstatement of dismissed persons such as the Plaintiff in the agenda when conducting collective bargaining with the Defendant company and attempted to resolve it, but in April 1988, when drafting the labor union's collective agreement proposal, made a proposal that the issue of dismissed persons would be left to the court's determination; the Plaintiff filed the instant lawsuit on May 2, 1988; and thereafter the labor union's collective agreement proposal was concluded as a collective agreement as it was on October 25, 1988. Having established these facts, the court below held that the Plaintiff continuously contested the validity of the above disciplinary dismissal from the time of the dismissal until the filing of the instant lawsuit, and it is reasonable to view that the Defendant company was also aware of these circumstances; therefore, even though the Plaintiff did not expressly reserve an objection when receiving the deposited amount, in light of the circumstances before and after the receipt as described above, it is reasonable to view that the Plaintiff impliedly reserved an objection; accordingly, the act of receiving the deposited amount alone cannot be deemed to constitute approval of the above disciplinary dismissal as valid; furthermore, the mere fact that the Plaintiff filed the instant lawsuit only after two years had elapsed since receiving the deposited amount cannot be conclusively deemed to have provided the Defendant company with a basis for trust that the Plaintiff had approved the above disciplinary dismissal as valid. On this basis, the court below rejected the Defendant's above argument. Upon examining the record against the evidence cited in the judgment below, the above determination of the court below is likewise acceptable, and there is no illegality therein such as misapprehension of the legal principles concerning the nature of retirement allowances or the principle of good faith, as argued in the grounds of appeal; and the precedent of this Court cited in the grounds of appeal differs from the instant case in its factual relationship regarding the circumstances under which the retirement allowance was received and the Plaintiff's conduct before and after receiving the retirement allowance, and is therefore inappropriate to invoke in this case. Therefore, this argument also cannot be accepted.
(3) As to the Third Ground of Appeal
The argument raised in the grounds of appeal is a new argument raised for the first time before this Court, which was not raised up to the court below, and therefore cannot constitute a legitimate ground of appeal against the judgment below. This argument also cannot be accepted.
(4) Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This Judgment is rendered as stated in the Order, by the unanimous opinion of the Justices involved.
Presiding Justice Lee Jae-sung, Justice Lee Hoi-chang, Justice Bae Man-woon, Justice Kim Seok-su