조건부 징계의 법적 쟁점

다국어 초록 (Multilingual Abstract)

Many scholars and judicial precedents seem to reach consensus that the procedural justification is essential for effectively disciplining employees as well as the substantial one. Then, if employer disciplines employees for just cause under a defective procedure, the disciplinary action is not binding. Employer must go forward with a disciplinary procedure again for the same reason because of the requisite for procedural justification. In practice there are some issues about exercising employer's discretion to discipline employees at a proper time. It could be considered that the discipline with just cause maintains substantially a legal effect making the procedural justification a condition. Considering the character of discipline system and the process, we can't conclude that the conditional discipline per se is unfair. But it is also true that because the conditional discipline can force employees to resign and to give up the legal proceedings relating to the discipline under a defective procedure, it makes against employees' interest. Therefore, it is possible interpretation that Labor Standard Act Section 23 (1) is applied to the discipline for employees depending on whether some intolerable disadvantages to employees and an unexpected legal instability because of the condition.