[Plaintiffs, Appellants]
[Defendant, Appellee] Dongyang Cement Co., Ltd. (Attorneys Lim Dong-jin and 4 others, Counsel for the defendant)
[Judgment Below] Seoul High Court Decision 96Na13554 rendered on February 5, 1997
[Order]
The appeal is dismissed. The costs of the appeal shall be borne by the Plaintiffs.
[Reasoning]
The grounds of appeal are examined.
1. As to Ground No. 1
Where an employer terminates the employment relationship by receiving and accepting an employee's letter of resignation, taving the form of a voluntary resignation, if the employer forced the employee, who had no intention to resign, to prepare and submit a letter of resignation against his will, this substantially constitutes a termination of the employment relationship by the unilateral intent of the employer and thus amounts to a dismissal; however, where this is not the case, since the employment relationship between the employer and the employee is terminated by mutual agreement through the employer's acceptance of the employee's declaration of intent to resign as expressed in the letter of resignation, the employer's disposition of voluntary resignation cannot be regarded as a dismissal (see Supreme Court Decision 92Da3809 rendered on July 10, 1992; Supreme Court Decision 91Da38686 rendered on January 26, 1993; Supreme Court Decision 95Nu7765 rendered on July 30, 1996, etc.).
According to the reasoning of the judgment below, the court below found the following facts: the Plaintiffs joined the Defendant company on the dates set forth in the attached List 2 to the judgment below and worked as guard police officers (청원경찰); the Defendant company, in order to respond to the expansion of the company's scale and the resulting increase in and need for specialization of security demand, decided from around mid-1985 to outsource security work to a specialized security service company, and after going through a bidding process around November 1985, selected Beoma Industrial Co., Ltd. (limited partnership company; hereinafter referred to as "Beoma Industrial Co.") as the service provider and decided to enter into a service contract with Beoma Industrial Co. on November 14 of the same year; that around that time, when the Defendant recommended that the Plaintiffs retire from the Defendant company and join Beoma Industrial Co., the Plaintiffs, together with their families, gathered at the Defendant company's Samcheok factory and staged a sit-in protest for 2-3 days, but eventually accepted the Defendant company's persuasion and submitted letters of resignation on November 19 and 20 of the same year; that accordingly, the Plaintiffs resigned (voluntary resignation) from the Defendant company effective November 22 of the same year and received retirement allowances, and then joined Beoma Industrial Co. as new employees on November 23 of the same year and continued to work there. Based on these findings, the court below determined that the Plaintiffs' submission of the above letters of resignation could not be regarded as having been coerced by the Defendant or as a declaration of intent not genuinely made in accordance with the employer's instructions without any intention to resign, and therefore the Defendant's disposition of dismissal (voluntary resignation) against the Plaintiffs dated November 22, 1985 could not be deemed an unfair dismissal.
Examining the record, the fact-finding of the court below as above is justified, and there is no illegality in violation of the rules of evidence as pointed out in the grounds of appeal in the judgment below; the determination of the court below based on these facts is also justified as it accords with the legal principles set forth above, and there is no illegality such as misapprehension of the legal principles concerning declarations of intent not genuinely made and unfair dismissal. This ground of appeal cannot be accepted.
2. As to Ground No. 2
According to Article 9 of the former Act on Guard Police Officers (청원경찰법) (before amendment by Act No. 4369 of May 31, 1991), the provincial governor (도지사) may suspend or abolish the deployment of guard police officers, or reduce the number of personnel deployed, when it is deemed that there is no longer a need to continue deploying guard police officers, when the employer engaging the guard police officers (청원주) neglects its duty to bear the expenses for the guard police officers, or when it is deemed necessary to reduce the number of personnel deployed due to a reduction in the scale of the facility where the guard police officers are deployed or a decrease in the importance of such facility. Further, according to Article 13, Paragraph 1 of the former Enforcement Decree of the Act on Guard Police Officers (청원경찰법시행령) (before amendment by Presidential Decree No. 13435 of July 30, 1991), where the employer engaging the guard police officers intends to abolish or suspend the deployment of guard police officers or reduce the number of personnel deployed, it shall submit an application for abolition, suspension, or reduction of the deployment of guard police officers to the provincial governor through the chief of the competent police station. However, even if the employer engaging the guard police officers terminated the private-law employment relationship with the guard police officer without a decision or order from the provincial governor concerning the abolition, suspension, or reduction of personnel of the deployment of guard police officers, and without submitting an application for abolition, suspension, or reduction of the deployment of guard police officers, this should not be construed as having any effect on the validity of such private-law act.
The judgment below, which is to the same effect, is justified, and there is no illegality of misapprehension of the legal principles as pointed out in the grounds of appeal. This ground of appeal also cannot be accepted.
3. Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the Plaintiffs, the appellants, all participating Justices being unanimous in this opinion, as set forth in the Order.
Presiding Justice Park Jun-seo, Justice Kim Hyeong-seon, Justice Lee Yong-hoon (Justice in charge)