[Plaintiff, Selected Party, Appellant]
[Defendant, Appellee] Deoksin Jeonggong Co., Ltd. and one other; Defendants' Attorney: Park Tae-hun
[Judgment Below] Seoul High Court, Judgment of August 21, 1992, Case No. 92Na15408
[Order]
The part of the judgment below concerning Defendant 2 is reversed, and this part of the case is remanded to the Seoul High Court.
The Plaintiff's appeal against Defendant Deoksin Jeonggong Co., Ltd. is dismissed, and the costs of the appeal with respect to this part shall be borne by the Plaintiff.
[Reasoning]
We examine the grounds of appeal.
As to the part concerning Defendant Deoksin Jeonggong Co., Ltd.
According to the record, the measures taken by the court below, which did not accept the Plaintiff's assertion that Defendant Deoksin Jeonggong Co., Ltd. (hereinafter "Defendant Company") had also succeeded to liability for damages, including wages and consolation money, arising from Defendant 2's wrongful dismissal of the worker, may be upheld, and it cannot be said that there was any violation of the rules of evidence or misunderstanding of the law as argued in the grounds of appeal.
Therefore, this ground of appeal is without merit.
As to the part concerning Defendant 2
1. According to the reasoning of the judgment below, in this case in which the Plaintiff and the Selected Parties sought payment of consolation money on the ground that they suffered mental distress due to Defendant 2's wrongful dismissal of the Plaintiff on January 11, 1990, the court below held as follows: in light of the fact that an employment contract is a bilateral contract under which the worker provides labor to the employer and the employer, as consideration therefor, pays wages to the worker, even if Defendant 2, as the employer, wrongfully dismissed the Plaintiff, this amounts merely to Defendant 2's wrongful failure to perform the obligation to pay wages, and can ultimately be regarded as a failure to perform a monetary obligation; and absent special circumstances, a creditor of a monetary obligation who suffers nonperformance thereof cannot be deemed to have suffered mental damage separately from the damage equivalent to the amount of the claim and delay damages thereon, and since there is no other evidence to acknowledge that the Plaintiff suffered mental damage due to the said dismissal, the court below rejected the claim.
2. As stated by the court below, it is true that an employment contract is a bilateral contract consisting of the worker's provision of labor and the employer's corresponding payment of wages; however, since the worker's provision of labor under the employment contract is not necessarily aimed solely at the acquisition of wages, it cannot always be said that an employer's wrongful dismissal of a worker amounts merely to nonperformance of the obligation to pay wages; such a dismissal may in some cases constitute a tort. In such a case, even if the dismissal is legally null and void and the situation reverts to that existing before the dismissal, the dismissal as a social fact is not retroactively extinguished or dissolved; therefore, the mere fact that the worker receives the wage claim and delay damages thereon cannot be said to completely cure the mental distress damage caused by the tort.
3. It is, of course, natural that where an employer's disciplinary dismissal of a worker is found to be unjust and therefore invalid, the mere fact that the dismissal is rendered invalid does not by itself mean that the dismissal constitutes a tort. However, in cases such as: where the employer, despite having absolutely no grounds to dismiss the worker for disciplinary reasons, intentionally fabricates or asserts some nominal ground for dismissal solely with the intent to drive the worker out of the workplace, and carries out the dismissal by resorting to the means of disciplinary action; or where the fact relied upon as the ground for dismissal is objectively clear to not fall under the statutory grounds for dismissal or clear to be improper as a ground for dismissal, and this could easily have been recognized with only a little care, yet the employer nevertheless proceeded with the disciplinary dismissal on that ground—in such cases where it is clear that the abuse of the right to discipline cannot be tolerated under sound social norms or common social sense, the dismissal does not merely lack justification under Article 27, Paragraph 1 of the Labor Standards Act (근로기준법) and thereby have its effect denied, but constitutes the unlawful infliction of mental distress upon the other party, and may thus constitute a tort in relation to the worker. Accordingly, the court below should have examined whether Defendant 2's dismissal of the Plaintiff falls under such circumstances.
4. The judgment below is unlawful in that it misunderstood the legal principles concerning the establishment of tort liability in cases of wrongful dismissal and thereby failed to exhaust the necessary deliberation, and the ground of appeal is well founded to this extent.
Therefore, the part of the judgment below concerning Defendant 2 is reversed and remanded, the Plaintiff's appeal against Defendant Company is dismissed, and the costs of the appeal with respect to this part shall be borne by the Plaintiff. This judgment is rendered as stated in the Order, by the unanimous opinion of the Justices involved.
Supreme Court Justice Kim Seok-su (Presiding Justice), Bae Man-un (Justice in charge), Choe Jong-yeong