[Plaintiff, Appellant]
[Defendant, Appellee] Heungmyeong Unsu Co., Ltd., Litigation Representative Attorney Park Jong-chang
[Judgment Below]
Seoul High Court Decision 85Na54 delivered on June 26, 1985
[Order]
The appeal is dismissed.
The costs of the appeal are to be borne by the Plaintiff.
[Reasoning]
1. As to the appeal as of right (권리상고)
The gist of the grounds for the appeal as of right is that the judgment below contains errors in fact-finding due to a violation of the rules of evidence, and errors of law due to a misunderstanding of the legal principles concerning disciplinary procedure and disciplinary discretion. However, it is clear that such grounds do not fall under any of the grounds for appeal set forth in each item of Article 11 of the Act on Special Cases Concerning the Expedition, etc. of Legal Proceedings (소송촉진등에관한특례법), and therefore do not constitute lawful grounds for appeal.
2. As to the appeal by leave (허가상고)
(1) According to the reasoning of the judgment below, the court below, upon comprehensive consideration of the evidence it cited, found as follows: it was discovered that the Plaintiff, between January 1, 1982 and April 30, 1982, manipulated the meter of the vehicle he was driving and thereby embezzled 724 liters of diesel fuel worth 201,272 won; on May 31, 1982, the Plaintiff received a disciplinary pay cut of 10% of three months' salary from the Defendant company, and at the same time submitted a written pledge stating that he would never again commit such an act and would abide by all of the company's regulations. Nevertheless,
1) during June 1982 he used 101 liters of diesel fuel, during July 1982 he used 114 liters, and during August 1982 he used 12 liters, in excess of the standard quota set by the Defendant company, totaling 227 liters in excess;
2) although he had no vacation plan for June 1982, on June 22, 1982 he requested the head of the Defendant company's Gumi business office to grant him four days of leave from June 23 to June 26, 1982; the said business office head refused to grant this on the ground that there was no replacement driver available, and instead instructed him to operate an export cargo trailer traveling from Gumi via Iri to Busan; however, after departing Gumi Industrial Complex driving the said trailer at approximately 22:40 that day, without obtaining the Defendant company's consent, he arbitrarily handed over the driving of the vehicle to a fellow driver, non-party ○○○, who was staying at an inn of unknown name within the Gumi Industrial Complex, and thereafter failed to report for work from the following day until June 26, 1982;
3) on August 2, 1982, without obtaining permission to go out, he left his post without authorization from 09:00 to 11:00 that day and went to Gumi Soonchunhyang Hospital; this incident led to a severe dispute with non-party ○○○, the acting manager of the Gumi business office; at that time, the Plaintiff requested sick leave for the treatment of eczema on his foot, but the said ○○○, citing the circumstance that disruption to the transport of export containers must be avoided, the fact that the Plaintiff's symptoms were not so severe as to prevent him from driving, and the absence of a suitable replacement driver at that moment, instructed the Plaintiff to continue working, saying that they would reconsider after he made one more trip to Busan and back; the Plaintiff thereupon used abusive language, saying "You bastards, don't you treat people like human beings?" and, after transporting the export container to Busan at around 16:30 that day and returning to the Gumi business office at around 22:00 that day, unilaterally threw the vehicle key into the office and immediately left his post without authorization, going up to Seoul, and was absent without leave for 9 days until August 11, 1982, on the pretext of treating his eczema.
Upon examination against the record, the above fact-finding by the court below and the process by which it selected and weighed the evidence leading thereto are properly affirmed, and there is no illegality of insufficient deliberation or misapprehension of facts due to violation of the rules of evidence, as argued in the grounds of appeal.
(2) Furthermore, the court below held that the Plaintiff's above series of acts clearly fall under the grounds for disciplinary dismissal prescribed in the Defendant company's rules of employment, personnel and service regulations, and salary regulations, and that the Defendant company's disciplinary dismissal of the Plaintiff, carried out following a resolution of the personnel committee on this basis, cannot be deemed to constitute a departure from or abuse of its discretion concerning discipline, in light of the degree of the Plaintiff's misconduct and the purpose for which the Defendant established its disciplinary system. The above judgment of the court below, based on accurately and lawfully established facts, is properly affirmed, and there is no illegality of misapprehension of the legal principles concerning disciplinary discretion as argued in the grounds of appeal. Therefore, this argument is without merit.
(3)
In general, where procedures concerning discipline are prescribed in the rules of employment, etc., for the disciplinary dismissal of a worker, such procedures are, in the absence of evidence to the contrary, required by fairness and constitute a condition for the validity of the discipline. However, where the provisions concerning discipline in the rules of employment, etc. do not provide for procedures such as granting the person suspected of a disciplinary offense an opportunity to appear and make statements, dismissal without following such procedures cannot, on that ground alone, be deemed invalid as discipline (see this Court's Decisions 78Da304 delivered on January 30, 1979; 79Nu306 delivered on December 26, 1979).
The court below held that, since the Defendant company's rules of employment (Exhibit Eul No. 4) and personnel and service regulations and salary regulations (Exhibit Eul No. 3) do not contain any provision requiring that the person subject to discipline be mandatorily summoned to appear and given an opportunity to make statements at the time of the personnel committee's resolution on discipline, the Plaintiff's assertion that the discipline was invalid because he was not given an opportunity to explain himself during the disciplinary procedure must be rejected; this measure is proper, and there is no illegality of misapprehension of the legal principles concerning disciplinary procedure as argued in the grounds of appeal. Therefore, this argument is also without merit.
3. Accordingly, all the Justices involved in this case unanimously agree to dismiss the appeal and order the losing party to bear the costs of the appeal, and judgment is rendered as stated in the Order.
Supreme Court Justice Yoon Gwan (Presiding Judge), Oh Seong-hwan, Lee Byeong-hu, Lee Jun-seung