[Plaintiff, Appellee] Yu Gun-jong
[Defendant, Appellant] School Foundation Sungkyunkwan University (Attorney Hong Seung-man, Counsel for the Defendant)
[Original Judgment] Seoul High Court Decision 66Na2192, 765, rendered December 12, 1968
[Order]
The appeal against the part of the original judgment confirming that the Defendant's disposition of June 29, 1964, dismissing the Plaintiff from his position as an administrative staff member of the Defendant Foundation, is null and void, is dismissed.
The part of the original judgment ordering the Defendant to pay the Plaintiff 251,550 won, together with interest thereon at the rate of 5% per annum from November 30, 1965, until the date of full payment, which was decided against the Defendant, is reversed, and this part of the case is remanded to the Seoul High Court.
[Reasoning]
The Court examines Grounds of Appeal Nos. 1 and 3 of the Defendant's counsel.
According to the facts established by the court below, on August 10, 1961, at a time before the Private School Act (사립학교법) was promulgated and enforced on June 26, 1963, when Sungkyunkwan, a foundation juristic person (재단법인), was operating Sungkyunkwan University, the Plaintiff was employed as a staff member of the said university, belonged to the General Affairs Division, was dispatched to work in the Administrative Division of the same foundation, and from April 25, 1963, was in charge of collecting rent for a match factory called Samgong Chemical operated by the foundation. Upon the enforcement of the Private School Act, the foundation juristic person Sungkyunkwan changed its organizational form to become the Defendant Foundation, and since the business of unified management of Confucian shrine rites, Sungkyunkwan, and local Confucian schools related to Confucianism, which the foundation juristic person Sungkyunkwan had previously conducted as its business purpose, could no longer be conducted by a school foundation under the Private School Act, a separate foundation juristic person Sungkyunkwan was established on December 1, 1963, to continue the Confucian-related business, and the Plaintiff returned to work in the Administrative Division of the Defendant Foundation. Given these facts, regardless of the length of time between the establishment of the newly formed foundation juristic person on December 1, 1963, and the Defendant's dismissal of the Plaintiff on June 29, 1964, since there is no assertion or proof in this case of any specific grounds for dismissing the Plaintiff, it cannot be found that there existed justifiable grounds for the dismissal. Therefore, there is no illegality in the court below's ruling to the same effect. As for the fact that the Plaintiff was dismissed on June 29, 1964, but only learned of this after reporting to work on July 1 of the same year, and accordingly had his attendance stamped up to that date, and as set forth above, it is a fact established by the court below that the Plaintiff returned to work in the Administrative Division after the former foundation juristic person Sungkyunkwan changed its organizational form to become the Defendant Foundation. Therefore, the argument that the Plaintiff, having worked in the General Affairs Division, was aware of the disposition dismissing him, is without merit.
The Court examines Ground of Appeal No. 2.
Unlike the case where, pursuant to Article 20, Paragraph 1 of the Labor Standards Act (근로기준법), an employment contract setting working conditions below the standards prescribed by the same Act becomes null and void only with respect to that portion,
Article 27 of the same Act is a mandatory provision stating that dismissal may not be made without justifiable grounds; even if Article 9 of the Defendant Foundation's Rules on Rewards and Punishments provides that personnel reductions may be made due to the school's circumstances or changes in organizational structure, this provision applies only where there exist justifiable grounds as prescribed in Article 27 of the Labor Standards Act above. Since it is clear from the reasoning of the judgment below that the court below found there to be no material supporting a finding that the Plaintiff was an employee lacking enthusiasm compared to others, and established the fact that the Defendant, around the time it dismissed the Plaintiff, newly hired a number of employees equal to the number dismissed, the court below's reasoning holding the disposition dismissing the Plaintiff to be null and void is justified, and the argument is without merit.
The Court examines Grounds of Appeal Nos. 4 and 5.
As seen above, since the Defendant's dismissal of the Plaintiff was unjust, even though employment, as provided in Article 655 of the Civil Act (민법), consists of providing labor and receiving remuneration in return therefor, the fact that the Plaintiff did not provide labor was entirely attributable to causes for which the Defendant Foundation is responsible, and therefore the Plaintiff may claim remuneration from the Defendant pursuant to the main text of Article 538, Paragraph 1 of the Civil Act. Accordingly, the court below's measure of granting the Plaintiff's claim for remuneration is justified, and the argument that in the case of wrongful dismissal, the employer is merely subject to punishment under Article 110 of the Labor Standards Act and bears no obligation to pay remuneration, is without merit. Furthermore, the court below established the fact that the Plaintiff was receiving a monthly remuneration of 16,770 won from the Defendant at the time of his dismissal, and ordered payment of 251,550 won in remuneration for the 15-month period from July 1964 to September 1965 as claimed by the Plaintiff; however, under the current Income Tax Act (소득세법), income tax on wage and salary income earners is to be withheld at source, and therefore only the remaining amount after deducting income tax should have been granted. The court below's failure to do so constitutes an illegality in failing to apply the Income Tax Act.
For the reasons stated above, with respect to the portion of the Plaintiff's claim seeking confirmation of the nullity of the dismissal disposition, the argument is without merit; and with respect to the portion of the claim for payment of remuneration, the argument has merit. Accordingly, pursuant to Article 400 and Article 406, Paragraph 1 of the Civil Procedure Act (민사소송법), the Court, by unanimous opinion, renders judgment as set forth in the Order.
Supreme Court Justices: Son Dong-uk (Presiding Justice), Bang Sun-won, Na Hang-yun, Yu Jae-bang