Hello, this is attorney Choi Jong-ha of Cheongchul Law Firm.

The principle of double jeopardy (일사부재리)—that one is not punished twice for the same wrong—is commonly known as a principle of criminal trials. In practice, however, it is more common than one might expect for a company to want to reopen disciplinary proceedings over a matter it has already disciplined. The most frequent situations are: “We ended it with a suspension, but the matter seems serious, so we want to change it to dismissal,” or, conversely, “We dismissed the employee, the Labor Relations Commission found it excessive, and while we will accept that, we still want to impose a suspension.” For an employee who believed the discipline was over and done with (and in some cases even believed the discipline had been nullified after winning), this is not easy to accept—so does double jeopardy apply to company discipline?

To state the conclusion first: in principle it does apply, but there are cases in which discipline may be imposed again.

The Supreme Court of Korea has consistently held that “where an employer imposes double discipline on an employee, the disciplinary measure is void as contrary to the principle of double jeopardy or the prohibition against double punishment.” However, this principle of double jeopardy presupposes the following three requirements (Supreme Court, September 29, 2000, Judgment No. 99Du10902).

First, both the prior and the subsequent measure must be disciplinary measures in their legal nature. This covers reprimand, wage reduction, suspension, and dismissal, as well as measures classified as discipline under the rules of employment. Where there was only a simple caution or warning, or a personnel transfer, that is not discipline under the rules of employment or internal company rules, no double-discipline issue arises even if separate disciplinary proceedings are later opened.

Second, the prior disciplinary measure must have been validly established without being revoked. In other words, if the prior measure was lawfully revoked by the company itself, or lost effect after being found void by the Labor Relations Commission or a court, the subsequent new discipline is a “re-imposition,” not double discipline.

Third, the alleged disciplinary facts underlying the prior and the subsequent disciplinary measures must be identical. Even where several acts of misconduct occurred around the same time, whether it amounts to double discipline can be determined by whether the acts stated as grounds for discipline are the same.

Accordingly, (1) before imposing any disciplinary measure, check in the documents the scope of the facts that were previously subject to discipline, and (2) if you conclude that a measure already imposed was inappropriate, you need to formally revoke or withdraw that measure first and only then impose discipline anew.