[Plaintiffs, Appellants and Appellees]
[Defendant, Appellee and Appellant] Korea Airports Corporation (한국공항공단) (Litigation Counsel: Attorney Choi Deok-bin)
[Judgment Below] Seoul High Court Judgment 95Na24090, dated October 26, 1995
[Order]
That part of the judgment below which found the Defendant liable to pay retirement allowance for the second period of continuous service, among the portions in which the Defendant lost, is reversed, and that part of the case is remanded to the Seoul High Court. All of the Plaintiffs' appeal and the remainder of the Defendant's appeal are dismissed. Of the costs of appeal with respect to the dismissed portions, the portion arising from the Plaintiffs' appeal shall be borne by the Plaintiffs, and the portion arising from the Defendant's appeal shall be borne by the Defendant.
[Reasoning]
1. We examine the Plaintiffs' grounds of appeal.
According to the reasoning of the judgment below, the court below found as follows: it is undisputed between the parties that the Plaintiffs joined the Defendant Corporation as security guards (청원경찰) on July 1, 1980, worked there, submitted letters of resignation dated February 6, 1987, were processed as dismissed effective the 15th of that month, were newly hired as employees (고용원) of the Defendant Corporation on the same date, worked as parking management personnel, and were dismissed by disciplinary action on February 8, 1995. Accordingly, absent special circumstances, the Plaintiffs should not be regarded as having continuously worked for the Defendant Corporation for 14 years, 7 months, and 7 days from July 1, 1980 to February 8, 1995, but rather should be regarded as having worked, first, for 6 years, 7 months, and 14 days from July 1, 1980 to February 14, 1987, and then retired, and subsequently, second, having worked for 7 years, 11 months, and 14 days from February 15, 1987 to February 8, 1995.
The court below then addressed the Plaintiffs' argument that: among the Plaintiffs, Plaintiff 1 worked as the chief of the security guard unit and Plaintiff ○○○ worked as the head of the security guard squad, and when their respective terms expired on February 15, 1987, they wished to continue working as general employees; in that process, due to the Defendant Corporation's coercion, they were unavoidably compelled to submit letters of resignation from their positions as security guards and go through the procedure of being newly hired as employees; therefore, the Plaintiffs' expressions of intent to resign constituted sham declarations made by collusion (통정허위표시) and are void, and accordingly the Plaintiffs should be regarded as having continuously worked from their original date of hire until the aforementioned disciplinary dismissal, without having retired in the interim.
As to this argument, the court below held as follows: it is undisputed between the parties that the term of office for the chief or the head of the squad of the Defendant Corporation's security guard unit is fixed at 5 years, and that the Defendant Corporation had a policy of requiring that, when a person wished to continue working in a different department after the expiration of the term of office as chief or head of the squad, that person first resign from the security guard position and go through the procedure of being newly hired into a different job category, and that the Plaintiffs also went through the procedure of resigning from the security guard position after the expiration of their terms and being newly hired as employees in accordance with the above. However, these facts alone are insufficient to establish that the Plaintiffs' aforementioned expressions of intent to resign constituted sham declarations made by collusion and are therefore void, and there is no other evidence to establish this. Rather, according to the evidence presented, it can be recognized that those who served as chief or head of squad of the Defendant Corporation's security guard unit and whose terms expired could, according to their own free will, continue to work as ordinary security guards until the mandatory retirement age; however, when a person who was reluctant to continue working as an ordinary security guard wished to change to a different job category and department, that person was made to submit a letter of resignation and go through the procedure of being newly hired into a different job category; to date, there have been a total of 6 persons who served as chief or head of squad of the security guard unit and whose terms expired, of whom 3 persons, including the Plaintiffs, resigned and were newly hired as employees, while the remaining 3 persons continue to work as ordinary security guards. Taking these circumstances together, it should be concluded that the Plaintiffs chose, of their own free will, to leave the security guard position and be newly hired as employees; therefore, the Plaintiffs' expressions of intent to resign were based on the Plaintiffs' genuine intent, and it is difficult to regard them as sham declarations made by collusion in which they merely went through the formal procedure of resignation without any actual intent to resign.
Upon examination of the record, this fact-finding and determination by the court below are deemed to be justified and are affirmed. The grounds and supporting evidence raised by the Plaintiffs for the first time at this instance—namely, that the Plaintiffs received commemorative gifts as long-term employees of 10 years or more, and that they used vacation leave granted to long-term employees of 10 years or more pursuant to the collective bargaining agreement and received long-term service allowances—cannot have any effect on the court below's fact-finding and determination. Accordingly, the Plaintiffs' argument disputing the judgment below on the grounds that it violated the rules of evidence or misunderstood the legal principles concerning the calculation of the period of continuous service cannot be accepted. The precedent cited by the Plaintiffs (this Court's Judgment 76Da1812, dated September 14, 1976) concerns a different factual situation from the present case and is not appropriate to invoke in this case. This ground of appeal is without merit.
2. We examine the Defendant's grounds of appeal.
As to Ground 1
The gist of the Defendant's first ground of appeal is that, insofar as the Plaintiffs are regarded as having retired once as of February 14, 1987, the statute of limitations on their retirement allowance claim should be regarded as having expired as of February 14, 1990; the court below overlooked this and held the Defendant liable to perform, which constitutes a misunderstanding of the legal principles concerning wage claims under the Labor Standards Act (근로기준법).
However, whether the statute of limitations on a claim has expired is a matter to be determined upon the debtor's raising of such defense, and as there is no indication in the record of this case that the Defendant raised a statute of limitations defense up until the pronouncement of the judgment below, disputing this matter now cannot constitute a legitimate ground of appeal. This ground of appeal is without merit.
As to Ground 2
According to the reasoning of the judgment below, the court below found that the Defendant Corporation amended its compensation regulations (보수규정), which had been in effect since July 1, 1980, around February 1981, thereby lowering the originally applicable retirement allowance payment rate; however, in amending the compensation regulations as above, the Defendant Corporation did not obtain the consent of a majority of all employees or of a labor union organized by a majority of employees, but implemented the amendment with only the approval of the Minister of Transportation. The court below then held that the Defendant Corporation's lowering of the retirement allowance payment rate constituted an amendment of the rules of employment (취업규칙) in a manner disadvantageous to employees, and that in such a case, unless the consent of all employees is obtained through consultation with them, the amended rules of employment have no effect as against employees who were working at the time the rules of employment were amended. In this case, since the Defendant Corporation did not obtain the consent of a majority of employees at the time of amending the compensation regulations, the amendment is void as against the Plaintiffs, who had joined and been working for the Defendant Corporation prior to the amendment; therefore, even though the Plaintiffs retired after the amendment of the compensation regulations, the Plaintiffs' retirement allowance should be calculated according to the payment rate standard under the pre-amendment compensation regulations. On this premise, the court below calculated the Plaintiffs' proper retirement allowance for both the first and second periods of continuous service in their entirety according to the pre-amendment retirement allowance payment rate.
However, as discussed above, if the Plaintiffs retired once upon the expiration of the first period of continuous service and were then rehired the following day, and if the employment relationship was thereby severed, then at the time of such rehiring, the amended compensation regulations were already in effect; therefore, the compensation regulations applicable to the Plaintiffs' second period of continuous service should be the amended compensation regulations, and this conclusion cannot be altered merely because the Plaintiffs' original date of hire preceded the amendment of the compensation regulations. Accordingly, the above determination by the court below reflects a misunderstanding of the legal principles concerning the effect of rules of employment and is contrary to precedent (this Court's en banc Judgment 91Da45165, dated December 22, 1992), and can no longer be sustained. The ground of appeal pointing this out is with merit.
Therefore, that part of the judgment below which found the Defendant liable to pay retirement allowance for the second period of continuous service, among the portions in which the Defendant lost, is reversed, and that part of the case is remanded to the court below; all of the Plaintiffs' appeal and the remainder of the Defendant's appeal are dismissed; and as for the costs of appeal with respect to the dismissed portions, it is held that each losing party shall bear its own costs, the opinions of the participating Justices being unanimous, and it is so ordered as set forth in the Order.
Justice Kim Seok-su (Presiding Justice), Jeong Gwi-ho, Lee Don-hui (Justice in Charge), Lee Im-su