[Plaintiff, Appellee]
[Defendant, Appellant] Daehan Jungsuk Mining Co., Ltd. (대한중석광업주식회사), Litigation Attorney Park Jong-yun
[Judgment Below] Daegu High Court Judgment 91Na4165, decided December 12, 1991
[Order]
The part of the judgment below against the Defendant is reversed, and this part of the case is remanded to the Daegu High Court.
[Reasoning]
We examine Ground of Appeal No. (2).
(1) According to the reasoning of the judgment below, the court below found it undisputed that the Plaintiff joined the Defendant company on September 8, 1968 as a simple employee, was promoted to a Grade 1 employee from January 1, 1972 and worked as such, then, in order to be promoted again to Grade 2, resigned once on August 13, 1974, and was assigned as a newly hired Grade 2 employee in the form of re-entry on the 15th of the same month, continuing to work without any gap until his retirement on March 7, 1990. The court below then determined that even though the Plaintiff had submitted a letter of resignation as described above, this was merely formal, and that the Plaintiff should be regarded as having continuously worked from the date of his first employment until the above date of retirement; therefore, the Defendant company was obligated to pay the Plaintiff the retirement allowance calculated by aggregating the entire period as the period of continuous service. Furthermore, with respect to the Defendant company's assertion that the Plaintiff's intermediate resignation was made by his own genuine declaration of intent solely for his economic and status-related benefit and was therefore valid, the court below rejected this assertion on the ground that the written evidence, Exhibit Eul No. 3, and the testimonies of non-party witnesses 2 and 3 were insufficient to establish this, and there was no other evidence to establish it.
(2) However, where it is asserted that a certain declaration of intent is invalid as a declaration not reflecting the true intent, the burden of proof lies with the party making such assertion. Yet, upon examination of the record, there is no evidence to establish either that the Defendant company, without bringing about any change whatsoever in the employment relationship between the Plaintiff and the Defendant, merely went through the formal procedures of paying retirement allowance to the Plaintiff, processing an intermediate resignation, and re-hiring him, or that the Plaintiff's submission of the letter of resignation at issue in this case was made as a declaration not reflecting his true intent, lacking the inner intent of the Plaintiff as an employee due to the circumstances of the employer, such that the resignation, despite having occurred as described above, did not take effect.
On the other hand, according to Exhibit Eul No. 1, Exhibit Gap No. 1, Exhibit Eul No. 3-1 and 3-2, Exhibit Eul No. 4, Exhibit Eul No. 5, Exhibit Eul No. 6, Exhibit Eul No. 7-1 and 7-2, none of which were rejected by the court below, as well as the testimonies of non-party witnesses 1, 2, and 3 before the court of first instance and the court below, the following facts may be recognized: under the Defendant company's personnel regulations, regular employees ("saweon") were classified into grades ranging from Grade 1 to Grade 5; a person holding a bachelor's degree from a four-year university who passed the Defendant company's open competitive recruitment examination would, after completing a prescribed probationary period (three months), be hired and enter as a Grade 2 employee; the Plaintiff, despite holding a bachelor's degree from a four-year university, joined the company on September 8, 1968, without going through the above open competitive recruitment examination, as a simple employee designated "ilgo" (day laborer), and by August 1974 had been promoted to and was working as a regular Grade 1 employee; at that time, in response to a request from employees (nine persons) who held four-year university degrees but were not Grade 2 employees, the Defendant company, in recognition of their meritorious service to the company, decided that those who had served four years, the period required for promotion to Grade 2, would be immediately promoted to Grade 2, while those who had not yet completed the required years of service would be given the choice, after fulfilling the required four years of service, either to undergo review under the Defendant company's personnel regulations and be promoted to Grade 2, or to resign from their then-current Grade 1 or temporary position as of August 1974, thereby once liquidating their employment relationship with the Defendant company, and then re-enter as a regular Grade 2 employee holding a four-year university degree (apparently without undergoing the open competitive recruitment examination); the Plaintiff chose the latter option, and as noted above, received his retirement allowance up to that point and retired from the Defendant company; at that time, the Plaintiff raised no objection to re-entering as a Grade 2 employee, and even prepared a written statement to the effect that he would not raise any issues under the Labor Standards Act (근로기준법) (whether civil or criminal). Given these circumstances, the Plaintiff's retirement in August 1974 must be regarded as a retirement based on the Plaintiff's genuine intent and thus valid, and it must be held that the employment relationship between the Plaintiff and the Defendant was thereby severed. In such a case, the calculation of retirement allowance must be based on service rendered from the date of re-entry onward (see this Court's Judgments 90Da20398, decided May 28, 1991; 90Da16801, decided May 28, 1991; and 91Da12035, decided December 10, 1991).
(3) In the end, the judgment below is illegal in that it reversed the burden of proof and violated the rules of evidence, and is also illegal in that it misapprehended the legal principles concerning the calculation of retirement allowance. Therefore, the argument pointing out this error is well-founded.
Accordingly, without need to examine the remaining grounds of appeal, the part of the judgment below against the Defendant is reversed, and this part of the case is remanded to the court below for further deliberation. This judgment is rendered as set forth in the Order, with the unanimous agreement of the participating Justices.
Justice Park Woo-dong (Presiding Justice), Justice Kim Sang-won, Justice Yoon Young-cheol, Justice Park Man-ho