[Plaintiff, Appellant] Plaintiff, Counsel: Attorney Byun Gap-gyu and 1 other
[Defendant, Appellee] Chosun Beer Co., Ltd. (조선맥주주식회사), Counsel: Attorney Hong Gi-bae
[Original Judgment] Seoul High Court, Judgment of October 10, 1990, Case No. 90Na5667
[Order]
The original judgment is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
As to the grounds for appeal
1. The court below, based on the evidence, found the following facts: that the Plaintiff joined the Defendant company on February 6, 1967 and worked as a security guard; that on October 1, 1975 (the date of October 29 of the same year stated in the original judgment is merely the date on which the letter of resignation was written; according to the entries in Exhibit A No. 1-1, the date on which the voluntary retirement was processed was October 1 of that year), the Plaintiff was processed as having voluntarily retired for the first time, and was then processed as having been rehired on October 30 of the same year; that on March 25, 1978, the Plaintiff was processed as having voluntarily retired for the second time, worked at the non-party limited partnership Ilgwang Trading Co., and was then processed as having been rehired by the Defendant company on June 2 of the same year, working thereafter until his mandatory retirement on January 15, 1985.
The court below then, with respect to the Plaintiff's assertion that he had continuously worked for the Defendant company from February 6, 1976 to January 15, 1985, and that his expressions of intent to resign in connection with the first and second processing of his voluntary retirement were declarations of intent not corresponding to his true intention (non-genuine declarations of intent), did not make any determination as to the first voluntary retirement, and, with respect to whether the Plaintiff's expression of intent to resign in connection with the second voluntary retirement processing was a non-genuine declaration of intent, disbelieved the entries in Exhibit A Nos. 14-1, 14-2, and 15-1 through 15-4 (each a transcript of witness examination), which appeared to support the Plaintiff's assertion, as well as the testimony of Non-party 1, a witness before the court below, and part of the testimony of Non-party 2, a witness before the court of first instance, and held that the entries in Exhibit A No. 12 (corrective order), Exhibit A No. 16 (judgment), and Exhibit A No. 17 (newspaper article) alone were insufficient to prove this assertion, and that there was no other evidence to prove it. Rather, the court below found, by comprehensively considering the entries in Exhibit B No. 1-2 (letter of resignation), Exhibit B No. 5 (request letter), the testimony of Non-party 3, a witness before the court below, and the testimony of Non-parties 4, 5, and 6, witnesses before the court of first instance, together with the overall purport of the pleadings, that around March 13, 1978, in order to raise funds for an application to purchase a unit in the Wonho Apartment, the Plaintiff sent a letter to the head of the Defendant company's labor union branch requesting cooperation so that he could receive his retirement allowance as soon as possible, while at the same time submitting a letter of resignation to the Defendant company. Furthermore, since the Plaintiff admitted that he had received a retirement allowance from the Defendant company at the time of the second voluntary retirement processing, the court below determined that the Plaintiff's submission of the letter of resignation at the time of the second voluntary retirement processing was voluntary, and that therefore the labor contract relationship between the Plaintiff and the Defendant company was validly terminated at that time.
2. However, a non-genuine declaration of intent refers to a declaration of intent in which there is no internal intent corresponding to the intent to produce the legal effect expressed. In this case, even if the Plaintiff's act of submitting the letter of resignation was voluntary, this fact alone may establish the intent to produce the effect of resignation, but it cannot thereby be inferred that the Plaintiff also necessarily had the internal intent to terminate the labor contract relationship itself.
According to the entries in Exhibit A Nos. 10-14, 10-16, 10-18, 10-19, and 10-21 (each a collective bargaining agreement), which were also cited by the court below, the entries in Exhibit B Nos. 12-1 and 12-2 (memorandum of agreement), which were not rejected by the court below, and the testimony of Non-party 3, a witness before the court below, also cited by the court below, it can be seen that: the Defendant company, in order to reduce the heavy burden of paying retirement allowances calculated on a progressive rate basis to regular Class A employees, had, from no later than July 1, 1976, induced regular Class A employees to submit letters of resignation, upon which it paid interim retirement allowances and then reprocessed them as newly hired employees, while leaving the starting point for calculating years of continuous service unchanged, but changing the rate applicable to retirement allowances after the date of rehiring from the progressive rate system to the single (flat) rate system; that eventually, on May 9, 1978, labor and management agreed that, with respect to regular Class A employees who had already received interim retirement allowances, Article 13, Paragraph 2 of the collective bargaining agreement, which provided for the single-rate system applicable to regular Class B employees, would also apply to them from the date of their rehiring; and that, based on this agreement, letters of resignation were obtained from all remaining regular Class A employees who had not yet received interim retirement allowances, interim retirement allowances were paid to them, and then, on October 1, 1979, a collective bargaining agreement was concluded applying the single-rate system for retirement allowances to all employees.
In light of the above, it is difficult to view the Plaintiff's submission of the letter of resignation to the Defendant company and the sending of the letter to the head of the Defendant company's labor union branch, at the time of the second voluntary retirement processing of the Plaintiff, a regular Class A employee, as being based on an internal intent to terminate the existing labor contract relationship or to limit his years of continuous service. Rather, it should be viewed as being based on an internal intent merely to receive the interim retirement allowance under the system whereby the Defendant company, while leaving the starting point for calculating years of continuous service as it originally was, intended, under a policy of changing the retirement allowance rate after rehiring from the progressive rate system to the single-rate system, to pay interim retirement allowances.
3. In light of the foregoing, the court below should have examined whether the Defendant company, under its policy of reducing the heavy burden of paying retirement allowances under the progressive rate system, intended to terminate the existing labor contract relationship and conclude a new labor contract, thereby changing the starting point itself for calculating years of continuous service, in exchange for paying interim retirement allowances to its employees, or whether it intended merely to change the retirement allowance rate from the progressive rate system to the single-rate system while maintaining the existing labor contract relationship as it was. However, the court below failed to conduct such an examination, or otherwise erred in violation of the rules of evidence, and this error affected the outcome of the judgment. Therefore, the argument pointing out this error is well-founded.
Accordingly, the Justices unanimously agree to reverse the original judgment and remand the case to the court below for further trial and judgment, and hereby render judgment as stated in the Order.
Justice Yoon Young-cheol (Presiding Justice), Justice Park Woo-dong, Justice Bae Seok, Justice Kim Sang-won