[Plaintiff, Appellee]
[Defendant, Appellant] Kwanak Educational Foundation (school juristic person) (Attorney Kim Sang-won, counsel for the defendant)
[Judgment Below] Seoul High Court Decision 95Na16914 rendered on October 17, 1995
[Order]
The appeal is dismissed. The costs of the appeal are to be borne by the Defendant.
[Reasoning]
The grounds of appeal submitted by the Defendant's attorney are examined.
1. As to Ground 1
A.
The lower court's fact-finding on the points pointed out in the argument is justified and acceptable, and there is no illegality therein, such as a violation of the rules of evidence, as alleged in the argument. Therefore, this ground is without merit.
B.
If an employee dismissed by an employer receives retirement allowance, etc. without raising any reservation of objection or condition, it shall be deemed, absent special circumstances, that the employee has acknowledged the validity of the dismissal; accordingly, filing a lawsuit disputing the validity of the dismissal long after that point would be impermissible as contrary to the principle of good faith or the principle of estoppel. However, even in such a case, if there exist objective circumstances indicating that the employee did not acknowledge the validity of the dismissal and continued to dispute it, or if there are circumstances suggesting the contrary, such as receiving the allowance under circumstances where there was otherwise reasonable cause, it should not be uniformly concluded that the employee acknowledged the validity of the dismissal merely because the retirement allowance was received without an explicit reservation of objection (see this Court's Decisions 93Da21736, delivered on September 24, 1993; 92Da29429, delivered on March 9, 1993, etc.).
In the same vein, the lower court found that the Plaintiff filed the instant lawsuit seeking confirmation of invalidity of the dismissal on July 27, 1994, two years and six months after the date of the ex officio dismissal, and that the Plaintiff had received the retirement allowance on June 29 of the same year, prior to filing the lawsuit, without an explicit reservation of condition. However, the lower court also found that: two days after being notified of the instant ex officio dismissal, the Plaintiff sent a letter of protest against the dismissal to Nonparty ○○○, who was then the acting chairman of the board of directors of the Defendant juristic person; for about five months thereafter, the Plaintiff intermittently visited the general affairs office of Kwanak Girls' Commercial High School to demand reinstatement; around that time, the Plaintiff, together with Nonparty 1 and others who had been dismissed by the Defendant juristic person and were pursuing lawsuits against the Defendant juristic person seeking nullification of their dismissals, acted in concert while monitoring the progress of those lawsuits; on June 2, 1994, the Plaintiff submitted a petition for audit to the Seoul Metropolitan Office of Education, pointing out the unfairness of the instant dismissal and requesting relief; the Plaintiff received the retirement allowance on June 29 of the same month; and the Plaintiff filed the instant lawsuit only about one month after receiving the retirement allowance. In light of these circumstances, the lower court determined that the mere facts that the Plaintiff did not file a request for reexamination, received the retirement allowance without an explicit reservation of objection, and filed the instant lawsuit about two years and six months after the date of the instant ex officio dismissal are insufficient to find that the Plaintiff had, prior to filing the instant lawsuit, created an appearance of having accepted the result of the ex officio dismissal and of not intending to dispute its validity. Accordingly, the lower court concluded that the Plaintiff's filing of the instant lawsuit was not contrary to the principle of good faith or the principle of estoppel. This determination is justified and acceptable, and there is no illegality therein, such as a misapprehension of the legal principles concerning the principle of good faith or the principle of estoppel, as alleged in the argument.
This Court's precedents cited in the argument (see this Court's Decisions 90Da20428, delivered on October 25, 1991; 91Da39085, delivered on March 13, 1992; 93Da21736, delivered on September 24, 1993, etc.) involve different facts and are not appropriate to invoke in this case.
This ground is without merit.
2. As to Ground 2
Upon examination of the relevant provisions of the Private School Act (사립학교법) and the articles of incorporation of the Defendant juristic person, etc., it can be accepted that the lower court's determination — that the Defendant's ex officio dismissal of the Plaintiff was null and void due to a procedural defect, because the Defendant juristic person, in dismissing the Plaintiff, did not obtain the consent of the disciplinary committee pursuant to the proviso of Article 33 of the Defendant juristic person's personnel rules, which proviso is itself null and void for being contrary to the Private School Act and the Defendant juristic person's articles of incorporation — is justified. Even if, as argued, the Defendant juristic person convened a disciplinary committee and obtained its consent while the instant lawsuit was pending, this circumstance cannot be deemed to cure the aforementioned defect. Therefore, it cannot be deemed erroneous that the lower court, even though the Defendant submitted materials showing that it had obtained the disciplinary committee's consent to the ex officio dismissal after the conclusion of the oral argument in the lower court, did not reopen the oral argument to examine the legality of the procedure of the ex officio dismissal.
In addition, this Court's precedents cited in the argument involve different facts from this case and are not appropriate to invoke. All grounds of appeal are without merit.
3. Accordingly, 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 participating in the adjudication.
Justice Ji Chang-gwon (Presiding Justice), Cheon Gyeong-song (Justice in charge), An Yong-deuk, Shin Seong-taek