[Plaintiff, Appellee]
[Defendant, Appellant] Hanjin Shipping Co., Ltd., Litigation Representative Hanmi Joint Law Office, Attorneys Yoo Kyung-hee and 3 others in charge
[Judgment Below] Seoul Civil District Court Decision 92Na3846 delivered on November 26, 1992
[Order]
The judgment below is reversed, and the case is remanded to the Panel Division of the Seoul Civil District Court.
[Reasoning]
According to the reasoning of the judgment below, the court below found, as undisputed facts, that the Plaintiff joined non-party Jinyang Shipping Co., Ltd. (whose trade name was later changed to Seonju Sangsun Co., Ltd.) on July 25, 1980 and worked there; that as the said Jinyang Shipping Co., Ltd. was absorbed into and merged with Daehan Sunju Co., Ltd., the predecessor of the Defendant company, on September 1, 1984, the Plaintiff thereafter worked as a shore employee (陸員) of the Defendant company (the said Daehan Sunju Co., Ltd. changed its trade name to Daehan Sangsun Co., Ltd. on March 7, 1988, which company absorbed and merged with Hanjin Shipping Co., Ltd. on December 2 of the same year, and thereafter changed its trade name to Hanjin Shipping Co., Ltd.) until the Plaintiff retired on June 26, 1991; and that whereas Jinyang Shipping Co., Ltd., where the Plaintiff originally joined and worked, had in effect a single-rate retirement allowance system under which a retiring employee was paid a retirement allowance equivalent to one month's average wage at the time of retirement for each year of continuous service, the Defendant company's rules of employment, which had been validly in effect even before the Plaintiff joined the company, provided for a progressive-rate retirement allowance system as stated in the original judgment. Based on these findings, the court below determined that, since Jinyang Shipping Co., Ltd., which employed the single-rate method of paying retirement allowances, was absorbed into and merged with the Defendant company, which employed the progressive-rate method, it is a matter of course, as a legal principle, that when the Plaintiff, who had worked for the merged-out company, retires as an employee of the Defendant company after the merger, the Defendant company must, in calculating the Plaintiff's period of continuous service, aggregate the period of service at Jinyang Shipping Co., Ltd.; however, this does not mean that the retirement allowance itself must be calculated by the progressive-rate method. The court below further determined that the Defendant company, which survives the merger, only succeeds to the obligation to calculate and pay the retirement allowance for the period of service at Jinyang Shipping Co., Ltd. according to the single-rate method, and that since the effect of a merger does not retroactively extend to the past, and since there is no evidence in this case that the Defendant company specifically provided, as a transitional measure at the time of the merger, in its rules of employment or otherwise, that the retirement allowance for the period of service at Jinyang Shipping Co., Ltd. should also be calculated by the progressive-rate method used by the Defendant company, the Plaintiff's retirement allowance for the period of service at Jinyang Shipping Co., Ltd. should be calculated according to that company's regulations under the single-rate method, while the retirement allowance for the period of service at the Defendant company after the merger should be calculated according to the Defendant company's rules of employment under the progressive-rate method.
However, where employment relationships are succeeded to by reason of a merger of companies, the status under the previous employment contract is comprehensively succeeded to as it stands; therefore, unless there is a new agreement at the time of the merger, through amendment of the rules of employment or conclusion of a collective agreement, etc., to change and coordinate the content of the employees' employment relationships so as to unify them after the merger, the surviving company or the newly established company after the merger must be deemed to succeed to the retirement allowance relationship of employees who had worked for the extinguished company with the same content as before.
Therefore, if there was no measure, at the time the Defendant company merged with the said Jinyang Shipping Co., Ltd., to unify, in its rules of employment or otherwise, the retirement allowance system for employees who had worked for the extinguished company into the progressive-rate method used by the surviving company, then the Plaintiff's retirement allowance, both for the period of service at Jinyang Shipping Co., Ltd. and for the period of service at the Defendant company, should be calculated in accordance with the status under the employment contract that the Plaintiff held as an employee of Jinyang Shipping Co., Ltd., that is, in accordance with the single-rate method. The court below's determination that the retirement allowance for the portion corresponding to the period of continuous service from September 1, 1984, when the Plaintiff, who had worked for the extinguished company, came to work as a shore employee of the surviving Defendant company due to the merger, until March 31, 1987, before the amendment of the rules of employment referred to in the original judgment, should be calculated by the progressive-rate method, constitutes either an error in the legal interpretation of the retirement allowance regulations applicable in the case of a merger of companies, or an incompleteness in the deliberation of the case; and the argument pointing this out is well-founded.
Therefore, the judgment below is reversed and the case is remanded to the court below, and it is so ordered by the unanimous opinion of the participating Justices as stated in the Order.
Presiding Justice Cheon Kyung-song, Justice Ahn Woo-man (Justice in charge), Justice Kim Yong-jun, Justice Ahn Yong-deuk