[Parties]
[Plaintiffs, Appellees]
[Defendant, Appellant] Seoul Olympic Sports Promotion Foundation (Litigation Representatives: Attorney Cho Young-gil and 3 others)
[Judgment Below] Seoul High Court Decision 2008Na34844 rendered on April 3, 2009
[Order]
All appeals are dismissed. The costs of the appeal shall be borne by the Defendant.
[Reasoning]
The grounds of appeal are examined.
1. As to the assertion of violation of the rules of evidence and insufficient deliberation concerning the continuous period of employment
Where an employment contract is renewed upon its expiration by entering into a new employment contract, or where employment contracts under identical conditions are repeatedly concluded, the renewed or repeated periods of employment must be aggregated in determining whether there was continuous employment and the number of years of continuous service, which constitute the requirements for payment of retirement allowance (see Supreme Court en banc Decision 93Da26168 rendered on July 11, 1995, etc.).
Even if there exists a partial gap period between renewed or repeatedly concluded employment contracts, if such gap period is not long compared to the entire period of the employment contracts, and if it is recognized that there is a reasonable ground for not providing labor or not paying wages during that period—such as being attributable to the seasonal nature of the relevant work, school vacation periods, or circumstances such as a standby period or a rest period for recuperation—it is reasonable to view that the continuity of the employment relationship is maintained even during that period (see Supreme Court Decision 2004Da29736 rendered on December 7, 2006; Supreme Court Decision 2010Da58490 rendered on December 9, 2010).
The court below, comprehensively considering the evidence set forth in its judgment, found the following circumstances as indicated in its ruling: ① although the Plaintiffs were formally classified as "daily contract employees," their daily employment relationship continued without interruption throughout their period of service; ② the employment contracts between the Plaintiffs and the Defendant were concluded on a yearly basis corresponding to each racing season and expired around December, but immediately before expiration, in November or around December, employment contracts under identical conditions were repeatedly concluded setting the working period as the racing season from around January to around December of the following year; ③ during their period of service, the Plaintiffs continuously worked three days a week (for cycle-racing related work), two days a week (for boat-racing related work), or five days a week (where cycle-racing and boat-racing related work were performed together); ④ although fixed-term contracts with a gap of a few weeks within a year had been concluded prior to February 2006, this was due to the Defendant's unilateral circumstance that cycle races (boat races) could not be held during the winter season owing to seasonal factors, resulting in a temporary suspension of the employment relationship, and the Defendant had continuously renewed the employment contracts with the Plaintiffs in accordance with the cycle-racing (boat-racing) schedule; ⑤ the Defendant had established renewal criteria for daily contract employees such as the Plaintiffs, giving preferential hiring each year to experienced employees who satisfied such criteria, assigning the same employee number even after contract renewal for the purpose of performance evaluation, and, prior to 2003, granting pay-grade recognition according to years of service and paying career allowances, among other measures—thereby providing sufficient circumstances that would lead the Plaintiffs to expect that the employment relationship would continue even after the expiration of the employment contract; ⑥ the Defendant urged the Plaintiffs to attend the "Ticket Sales Employees' Day" event even during the winter gap period, and sent New Year's cards under the president's name at the end of each year, using this as an occasion to enhance the Plaintiffs' sense of belonging as employees. Based on these findings, the court below determined that even if the Plaintiffs did not actually provide labor to the Defendant during the period from around the end of December to around January or early March of the following year, which corresponds to the period outside the racing season approved by the Minister of Culture and Tourism, there is substantial room to view this period as a period of temporary suspension of business or a standby period, and that, inasmuch as the employment contracts had been repeatedly concluded for close to ten years as described above, the Plaintiffs, viewed as a whole, were in a continuous and subordinate employment relationship with the Defendant; therefore, notwithstanding the above-mentioned periods of suspension of business, the Plaintiffs' service satisfies the requirements of regularity, continuity, and permanency of an employee, which form the premise for payment of retirement allowance, over the entire period of employment including such periods of suspension of business.
Examining the facts found by the court below in light of the aforementioned legal principles, the above findings and determination by the court below are justified, and there is no illegality therein, such as violation of the rules of evidence or insufficient deliberation concerning the continuous period of employment, as alleged in the grounds of appeal. This ground of appeal is without merit.
2. As to the assertion of misapprehension of the legal principles concerning the principle of good faith, etc.
In order to deny the exercise of a right on the ground that it violates the principle of good faith, it must be the case that good faith was conferred upon the other party, or that, viewed objectively, the other party is in a position where it is justified in holding such good faith, and the exercise of the right in violation of such good faith on the part of the other party must have reached a degree that cannot be tolerated in light of the concept of justice (see Supreme Court Decision 2003Da2390, 2406 rendered on April 22, 2003, etc.).
The court below determined that, considering that the claim for unemployment benefits and the claim for retirement allowance differ in their legal nature and in the subject bearing the obligation to pay, and that the change in acquisition and loss of qualification for national pension and health insurance had been unilaterally handled by the Defendant, the circumstances asserted by the Defendant alone cannot be deemed sufficient to establish that the Plaintiffs' claim for retirement allowance in this case violates the principle of good faith. This determination by the court below is also justified in light of the relevant legal principles and the record, and there is no illegality therein, such as misapprehension of the legal principles concerning the principle of good faith, or failure to state reasons or inconsistency in reasoning, as alleged in the grounds of appeal. This ground of appeal is also without merit.
3. Conclusion
Therefore, all appeals are dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Justice Lee Sang-hoon (Presiding Justice), Kim Ji-hyung, Jeon Su-an (Justice in charge), Yang Chang-soo