[Plaintiff, Appellee] Plaintiff, Attorney Kim Tae-cheong, Counsel for the Plaintiff
[Defendant, Appellant] Defendant, School Foundation, Attorney Oh Yong-ho, Counsel for the Defendant
[Judgment Below] Gwangju High Court Judgment rendered October 29, 1991, Case No. 90Na1075
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Defendant.
[Reasoning] The grounds for appeal (including the supplementary brief on grounds for appeal, which was submitted after the filing period had expired, to the extent it supplements the original brief) are examined.
1. In a case where the Plaintiff won entirely in the first instance and only the Defendant appealed, the Plaintiff may still expand the scope of the claim at the appellate stage, and this is deemed to constitute an incidental appeal. Therefore, it cannot be said that the lower court committed an error of misapprehending the legal principles regarding the scope of review on appeal and the amendment of claims, as argued in the grounds for appeal, by accepting such expansion.
2. According to the reasoning of the judgment below, the lower court, based on the evidence cited, found the following facts: After the so-called "September 9 Incident," which was a clash between students of the university operated by the Defendant School Foundation, occurred, the Plaintiff, as the president (Hakjang) of the university, announced the so-called "Seven Pledges" in order to smoothly resolve the said incident, received the resignations of all the professors holding administrative posts at the university at the time, and simultaneously submitted his own resignation to the Defendant; that the chairman of the board of directors of the Defendant Foundation at the time ratified the Plaintiff's Seven Pledges and actively implemented them so as to achieve democratization within the university, while at the same time entrusting the academic administration of the university to the Plaintiff as president, thereby delegating to him the task of resolving the incident, suspended from office the dean of student affairs, the dean of academic affairs, and the head of the physical education department, and decided not to hold the remaining professors holding administrative posts responsible for the incident; that the Plaintiff accepted the chairman's delegation regarding the resolution of the incident and thereafter continued to perform the duties of president; that accordingly, the resignations of the other professors holding administrative posts were all returned to the persons concerned by the Plaintiff, who was in charge of such matters, but the Plaintiff's own resignation was kept in custody by the Defendant Foundation's administrative office at the direction of the chairman of the board, the non-party, and was not returned; that thereafter, as the implementation of the matters under the Seven Pledges proceeded slowly, disturbances continued without cease, including students demanding the president's resignation, and the chairman of the board, the non-party, repeatedly recommended that the Plaintiff resign, criticizing his lack of administrative ability, on or around August 20, 1988, August 27, 1988, and September 10, 1988; that on September 12, 1988, the Plaintiff suddenly issued and distributed to various press organizations a statement asserting that the failure to achieve democratization within the university was due to the arbitrary rule of the chairman of the board, the non-party, and urging that, for the sake of democratization within the university, the foundation and the school be separated, the organizational structure be reorganized, and all authority over personnel and finance be delegated to the president; and that on September 19 of that year, the Defendant Foundation, based on the resignation the Plaintiff had submitted on September 15, 1987, as noted above, dismissed the Plaintiff pursuant to a resolution of the board of directors of the Defendant Foundation. Having recognized the facts as stated in the judgment, the lower court rejected some of the evidence inconsistent therewith, as well as the testimony of the witnesses referred to in the grounds for appeal, which supported the assertion that the Plaintiff had repeatedly requested the chairman of the board of the Defendant Foundation, the non-party, on various occasions to delay the acceptance of the said resignation, finding such testimony unreliable. Upon comparison with the record, the above fact-finding of the lower court is deemed proper and may be accepted, and it cannot be said that there was an error of misapprehending the facts in violation of the rules of evidence or the rules of experience, as argued in the grounds for appeal.
3. In a case where an employee offers, by way of submitting a letter of resignation, to rescind the employment contract by mutual agreement, and the employer's acceptance thereof results in the termination of the employment relationship, the employee must be deemed entitled to freely withdraw the declaration of intention to resign at any time before the employer's intention to accept has been formed and the effect of terminating the employment contract has become definite (see this Court's Judgment rendered April 10, 1992, Case No. 91Da43138). As found by the lower court, after the Plaintiff submitted the resignation at issue in this case, the chairman of the board of the Defendant Foundation entrusted the Plaintiff with continuing to handle the academic administration of the university, including the resolution of the September 9 Incident, and the Plaintiff accepted this and continued to perform the duties of president of the Defendant School Foundation's university for nearly one year thereafter; and it was only around August of the following year, about one year after the resignation had been submitted, that the chairman of the board newly recommended that the Plaintiff resign. Given these facts, it must be said that the Defendant Foundation had, in effect, returned the said resignation, and that the Plaintiff had withdrawn his intention to resign. Upon careful examination of the record, it can be seen that the Plaintiff made an assertion to this effect, and it cannot be said that the return of a resignation necessarily requires a resolution by the board of directors of the Defendant Foundation.
The judgment of the lower court, being to the same effect, is proper, and it cannot be said that there was an error of misapprehending the legal principles as argued in the grounds for appeal, or a violation of the principle of party disposition or the principle of argument (dispositive principle), nor can it be said that the lower court's failure to specify the exact point in time at which the Plaintiff withdrew his intention to resign, in finding the above facts, constitutes a failure to state reasons or a contradiction in the reasons.
4. Even if grounds existed for disciplinary dismissal, a disposition of dismissal effected in the form of accepting a resignation which, having already been withdrawn, is to be regarded as having no effect, without following the procedures for dismissal corresponding to such disciplinary grounds, cannot be justified. The judgment of the lower court, being to the same effect, is proper, and there is no error of misapprehending the legal principles as argued in the grounds for appeal.
5. Upon examination of the record, it can be seen that the Plaintiff received the retirement allowance referred to in the grounds for appeal on May 8, 1989, at which time the instant lawsuit at the first instance—an action to confirm the invalidity of the dismissal disposition, which the Plaintiff had filed on September 30, 1988—was already pending. Accordingly, the lower court's determination that the mere fact that the Plaintiff received the retirement allowance after the said dismissal disposition cannot be deemed to constitute recognition of the validity of the dismissal disposition at issue in this case is proper and may be accepted, and there is no error of misapprehending the legal principles as argued in the grounds for appeal.
6. Upon examination of the record, the lower court's determination—rejecting the evidence cited in support of the assertion that the Plaintiff ordered demonstrating students to attack students opposing the demonstration during the September 9, 1987 Incident, thereby causing the Defendant Foundation to suffer the damages referred to in the grounds for appeal, and finding that there was no evidence to establish this—is proper and may be accepted, and there is no error of misapprehending facts in violation of the rules of evidence and the rules of experience.
All the grounds for appeal are without merit.
7. Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. It is so decided, in accordance with the unanimous opinion of the participating Justices, as stated in the Order.