[Plaintiff, Appellant and Appellee] Plaintiff
[Defendant, Appellee and Appellant] Seocheon Agricultural Land Improvement Association, Attorney Lee Ik-jae
[Judgment Below] Seoul High Court Decision 75Na2952 rendered on June 18, 1976
[Order]
All appeals are dismissed. The costs of appeal shall be borne by the Plaintiff and the Defendant, respectively.
[Reasoning] (1) First, we examine the Plaintiff's grounds of appeal.
According to the facts found by the court below, it was determined that the Plaintiff was not recognized as having continuously served from December 1, 1956 to September 9, 1963. Upon examining the process of fact-finding taken by the court below in order to establish this fact, it is lawful and contains no error.
(2) Next, we examine the grounds of appeal of the Defendant's attorney.
(A) As to Ground 1,
It is true that in part of its judgment, the court below stated that the Plaintiff was hired as an employee of the Defendant association on September 10, 1963. However, in light of the context of the judgment below, it can be understood that this means the Plaintiff was hired as a temporary employee outside the fixed personnel quota. Therefore, there is no illegality in the judgment below of finding facts without basis in evidence.
(B) As to Ground 2,
According to the facts lawfully found by the court below, the Defendant association hired the Plaintiff for a certain period, then dismissed him, and in most cases reappointed him the very next day, or created documents making it appear that he was reappointed only 4 or 20 days after his dismissal, but in fact the Plaintiff continuously served during that entire period. Upon careful examination of the record, there is no contradiction in the reasoning of the court below's fact-finding process. It is reasonable to hold that in such cases of actual continuous service, no dismissal takes legal effect. Furthermore, even if wages were calculated on a daily basis, if such daily employment relationship continued without interruption and the Plaintiff received wages on a monthly basis like a regular worker, it is reasonable to pay retirement allowance to him in accordance with the provisions applicable to employees within the fixed quota under the Defendant association's remuneration regulations. The judgment below to this effect is justified, and there is no illegality therein based on a misunderstanding of the legal principles concerning employees under the Defendant association's remuneration regulations. Nor is there any illegality in the judgment below being in conflict with a Supreme Court decision. (See this Court's Decision 74Da165, 1626, rendered on June 24, 1975)
(C) As to Ground 3,
Even though the Defendant association's remuneration regulations took effect on October 1, 1970, it was proper to apply these regulations to the Plaintiff, who served continuously from September 10, 1963 to January 18, 1974. This is because the Defendant's attorney, at the third oral argument date in the court below held at 10:00 on April 2, 1976, explained and acknowledged that the above remuneration regulations also apply to executives and employees who had been working even before their enforcement. (Record, page 141) Therefore, even though the court below did not examine whether there existed remuneration regulations of the Defendant for the period from September 10, 1963 to September 30, 1970, this does not constitute an illegality of insufficient deliberation.
If so, since these grounds of appeal are without merit, all appeals are dismissed, and the costs of appeal shall be borne by the Plaintiff and the Defendant, respectively. The opinions of the Justices participating in this judgment are unanimous.
Justice Min Mun-gi (Presiding Justice), Lee Yeong-seop, Kim Yun-haeng, Kim Yong-cheol