징계 절차의 실무상 쟁점 검토 - 징계위원회의 의결범위, 징계양정의 참작, 징계의 시효, 구제신청 기산점을 중심으로 -

This paper examines the potential legal issues in respect to the practice of due process ; such issues include the extent of authority of the disciplinary committee when the committee conflicts with the disciplinary authority, the significance and its limits of evidence or references provided by both parties- although the evidence cannot serve as explicit basis of discipline, the expiration time due for the discipline, and the starting point of application of remedy regarding the Labor Relations Committee’s unjust dismissal. The extent of authority of the disciplinary committee aforementioned entails the scope of the case that requires disciplinaryaction, however limits from revising its fundamental basis of discipline or supplying further addendum. Although some cases may consider the culpable actions of around the respective call for discipline or the culpable actions of otherwise nonrelated situations as evidence to both parties, such procedures disregard the appropriate due process (such as providing the defendant the opportunity to testify for himself) and thus can be deemed improper. In regards to extending the limitation period through amending the Rules of Employment, it is impermissible after the limitation period had been determined in order to uphold legal uniformity and protect its credibility. Conversely, it may be permissible for instances which the limitation period has yet to be set, through nulla poena sine lege, or so-called ‘anti-ex post facto law’. In Labor Standards Act section 28, article 2, the phrase ‘the date on which the unfair dismissal and related act took place’, refers specifically to the moment effective immediately after the period of advance notice of dismissal, instead of the starting point beginning at the time of ordinary notice of suspension, wage reduction, or other types of discipline. Furthermore, the starting point of application of remedy can be considered as time of the original disciplinary disposition, regardless of additional examinations of the case. However, it is appropriate to reinforce legislation to produce more explicit and comprehensive regulations.