[Plaintiff, Appellant]
[Defendant, Appellee] Korea Tourism Corporation (Attorneys Kim Dong-hwan and 2 others as litigation representatives)
[Judgment Below] Seoul High Court Decision 91Na47552 rendered on April 20, 1992
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
On the grounds of appeal by the Plaintiff's litigation representatives
1. According to the reasoning of the judgment below, the court below found, based on the evidence adopted, the following facts: that Defendant Corporation is a juristic person established under the Korea Tourism Development Corporation Act (한국관광개발공사법) for the purpose of carrying out projects relating to the promotion of the tourism industry, the development of tourism resources, research and development of the tourism industry, and the training and cultivation of tourism personnel; that when the development project of the Gyeongju Bomun Tourist Complex was commenced under the supervision of the Ministry of Construction around 1974, Defendant Corporation, on August 6 of that year, dispatched about ten employees, including the Plaintiff, to the Gyeongju Development Office of the Ministry of Construction to work at the Gyeongju site, and that on October 25 of the same year, Defendant Corporation established a Gyeongju Liaison Office under its Development Department and had the Plaintiff and other employees dispatched to the Gyeongju site continue to work as employees belonging to the said Gyeongju Liaison Office; that around July 1975, the development project of the aforementioned Gyeongju Bomun Tourist Complex was substantially completed, and on July 25, in order to take over and manage the Gyeongju Bomun Complex constructed under government supervision as described above and to develop and maintain it as a comprehensive tourist complex of international standard, the non-party Gyeongju Tourism Development Corporation Co., Ltd. (hereinafter "the non-party company") was established as a separate juristic person; that the non-party company, with the assistance of Defendant Corporation, thereupon proceeded to recruit employees, and that the Plaintiff, who was at the time working as a technical staff member at Defendant Corporation, expressed his intention that he would move to the non-party company if he could change his job category to clerical staff and work as a clerical employee, and that the non-party company accepted this, whereupon the Plaintiff submitted his resignation to Defendant Corporation on July 31, 1975, received his retirement allowance, retired from Defendant Corporation, and from the following day worked as a clerical employee at the non-party company; and that thereafter, upon learning around March 1977 that Defendant Corporation was recruiting experienced employees, the Plaintiff submitted his resignation to the non-party company on March 31, 1977 and retired therefrom, and rejoined Defendant Corporation on April 1 of the same year, continuing to work as a clerical employee until he retired from Defendant Corporation on October 17, 1989. Based on these findings, the court below determined that the Plaintiff's retirement from Defendant Corporation on July 31, 1975 was, rather than constituting any disadvantage or unreasonable treatment of the Plaintiff, in fact favorable treatment of the Plaintiff in that it allowed him to work as a clerical employee, and that, insofar as there is no ground to find any intent to evade the Labor Standards Act (근로기준법) or any culpability in violation of the principle of good faith, social justice, or equity, the Plaintiff's declaration of intent to retire should be regarded as a juristic act done of his own free will; therefore, the said retirement and re-employment cannot be deemed void as a false declaration made in collusion or as a violation of the Labor Standards Act, and accordingly the period of continuous service for the purpose of calculating the retirement allowance runs from April 1, 1977, the date of re-employment. The above fact-finding and determination by the court below are acceptable, and it cannot be said that there is any illegality in violation of the rules of evidence or any error in the legal interpretation regarding the calculation of the period of continuous service, as argued in the grounds of appeal. This ground of appeal is without merit.
2. In the reasoning of its judgment, the court below stated that the retirement allowance payment regulations of Defendant Corporation as amended effective January 1, 1981 were changed disadvantageously, as indicated in the judgment, for employees who had been subject to the previous regulations, and that since there was no consent to such change obtained through the collective decision-making method of these employees, the said amended retirement allowance payment regulations should be deemed void; however, the court below further determined that although the employees of Defendant Corporation were aware that the amended retirement allowance payment regulations were disadvantageous to them and thus void, because the regulations had been implemented for a long period without objection, the labor union organized by employees belonging to Defendant Corporation, including the Plaintiff, when concluding a collective agreement with Defendant Corporation on December 31, 1984, established retirement allowance regulations with the same content as the disadvantageously amended retirement allowance payment regulations; that this constitutes a case in which the void retirement allowance payment regulations were accepted as valid and their retroactive application was ratified at the same time; and that, accordingly, the amended retirement allowance payment regulations should also apply to the Plaintiff.
However, there is no material to find that the Plaintiff joined the said labor union (see Defendant's Exhibit No. 5-1 and Exhibit No. 6-1), and moreover, no evidence can be found to establish that the employees of Defendant Corporation, at the time of concluding the said collective agreement, were aware that the amended retirement allowance payment regulations were void due to the aforementioned circumstances. If this is so, it cannot be said that the amendment of the retirement allowance payment regulations became effective through subsequent retroactive ratification, and therefore the determination of the court below, which is inconsistent with this, constitutes an illegality in that it misapprehended the facts in violation of the rules of evidence and failed to exhaust the necessary deliberation. This ground of appeal is meritorious.
For the foregoing reasons, the judgment below is reversed and the case is remanded to the court below, this Judgment being rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Justice Yoon Young-cheol (Presiding Justice), Park Woo-dong (Justice in charge), Kim Sang-won, Park Man-ho