[Plaintiff, Appellant]
[Defendant, Appellee] Daewoo Kijeon Industrial Co., Ltd., Attorneys Park Eun-su and 1 other, Counsel for the Defendant
[Judgment of Remand]
Supreme Court Decision 92Da54210, decided October 26, 1993
[Order]
The appeal is dismissed.
The costs of the appeal are to be borne by the Plaintiff.
[Reasoning]
The grounds of appeal are examined.
1. As to Grounds 1 and 5
Where an employer stipulates the occurrence of a certain event as a ground for automatic retirement (당연퇴직) and treats the procedure differently from an ordinary dismissal or disciplinary dismissal, the disposition of automatic retirement based on such ground shall be deemed a dismissal subject to the restrictions under Article 27 of the Labor Standards Act (근로기준법), except where the ground for automatic retirement is regarded as a cause for the automatic extinction of the employment relationship, such as the employee's death, retirement age, or expiration of the term of the employment contract. Accordingly, for a disposition of automatic retirement to be valid, there must be a justifiable reason as provided in Article 27, Paragraph 1 of the Labor Standards Act. Therefore, the mere fact that a collective agreement or the like does not require that the procedures applicable to other disciplinary dismissals be followed with respect to grounds for automatic retirement does not render such provision void as an attempt to circumvent the dismissal-restriction provisions of the Labor Standards Act. Where, as in the case of automatic retirement, no procedural provisions are established that differ from those for ordinary disciplinary dismissal, it cannot be said that the other general disciplinary procedures must be followed in effecting the automatic retirement disposition, except where the ground for automatic retirement is also identically stipulated as a ground for disciplinary action.
This conclusion is not to be interpreted otherwise even where the ground for automatic retirement is substantively regarded as a ground for disciplinary action.
Article 23 of the Labor-Management Agreement (노사합의서) concluded between the Defendant Company and the Defendant Company's labor union, which was in effect at the time of the automatic retirement disposition in this case, stipulates grounds for automatic retirement separately from grounds for disciplinary action, and Article 9 of the Defendant Company's Rules of Employment (취업규칙) likewise stipulates grounds for automatic dismissal (당연면직) and dismissal by administrative authority (직권면직), among others, separately from grounds for disciplinary action and dismissal grounds; while it provides procedures, etc. with respect to disciplinary action, it contains no provisions whatsoever regarding procedures for automatic retirement, etc.
Therefore, in this case, the provisions of the aforementioned Labor-Management Agreement, collective agreement, and Rules of Employment, which designate "having been convicted of a criminal offense" as a ground for automatic retirement, cannot be deemed void as an attempt to circumvent the dismissal-restriction provisions of the Labor Standards Act, and the disciplinary procedure provisions are not to be applied to the automatic retirement disposition made pursuant thereto. Accordingly, the arguments premised on a contrary view are all without merit.
2. As to Ground 2
A. As stated above, the meaning of "having been convicted of a criminal offense," as stipulated as a ground for automatic retirement in the Labor-Management Agreement and the like, must be reasonably determined in light of the purpose of the provision and the content of the other grounds for automatic retirement.
In this case, the grounds for automatic retirement or automatic dismissal stipulated in the Labor-Management Agreement or the Rules of Employment, aside from "having been convicted of a criminal offense," consist of: (1) cases where the employee has expressly or implicitly indicated the absence of any intention to provide labor (where the employee has submitted a letter of resignation; where, upon expiration of the prescribed period of leave of absence or extinction of the ground for such leave, the employee fails to submit a request for reinstatement despite there being no impediment to reinstatement, such that the employee is deemed to have no intention to return to work; where the employee fails to respond to the company's request to return to work following unauthorized absence; where a person drafted into military service converts to a career soldier); (2) cases where, by their nature, the employee is unable to provide labor (death, adjudication of quasi-incompetency or incompetency, or adjudication of bankruptcy); and (3) cases where the anticipated period of labor has expired (retirement age, expiration of the employment contract term). In light of the content of these provisions, it is reasonable to interpret the purpose of designating "having been convicted of a criminal offense" as a ground for automatic retirement as likewise being grounded in "the fact that a state of inability to perform the fundamental obligation of providing labor under the employment contract has continued for a long period," such that the employer may effect automatic retirement of the employee without the employee having any room to raise an objection—that is, as referring to a case where an employee who has been detained for a criminal offense receives a guilty verdict of a nature such that the state of physical detention, which renders actual provision of labor impossible, is not resolved (e.g., a sentence of actual imprisonment without suspension).
Therefore, so long as the meaning of "having been convicted of a criminal offense," as stipulated as the ground for automatic retirement in this case, is interpreted as above, the automatic retirement provision of the Labor-Management Agreement or the automatic dismissal provision of the Rules of Employment cannot be said to violate the principle of presumption of innocence.
The Plaintiff argues that, since a leave of absence due to an employee's extended detention lasts only until the finalization of the judgment, the above ground for automatic retirement means "the case of having received a finalized guilty judgment for a criminal offense." However, the Labor-Management Agreement or Rules of Employment applicable at the time of the automatic retirement disposition in this case contained no separate provision granting a leave of absence to a person detained for a criminal offense; rather, such a case was merely treated as one in which there existed an unavoidable circumstance recognized by the company (see Article 21, Paragraph 1, Item (c) of the Labor-Management Agreement; Article 10.1, Item (1), Sub-item (d) of the Rules of Employment), permitting the company to grant a leave-of-absence disposition, provided that even in such a case, the period thereof could not exceed three months. Moreover, the separate provision the Plaintiff refers to, granting a leave of absence to a person detained for a criminal offense, first appeared in Article 22, Paragraph 1, Item (c) of the collective agreement concluded in May 1991, after the automatic retirement disposition in this case; and even under that provision, it merely states that the period of leave of absence may not exceed the period until the finalization of the sentence, not that the period of leave of absence must extend until the finalization of the sentence.
The Plaintiff further argues that, pursuant to the Agreement dated June 12, 1990, it was agreed that no personnel action would be taken against detained employees whose sentences had not yet been finalized, and that therefore the meaning of "having been convicted of a criminal offense," as the ground for automatic retirement, must be interpreted as "when a finalized guilty judgment has been received." However, as will be discussed below, the said Agreement merely provides, in connection with the 1990 wage negotiations, that the timing at which personnel action may be taken against a detained employee is to be deferred until the finalization of the sentence; accordingly, the meaning of "having been convicted of a criminal offense," as the ground for automatic retirement, cannot be interpreted, on the basis of the said agreement, as meaning "when a finalized guilty judgment has been received."
B. The Plaintiff further contends that even if the meaning of "having been convicted of a criminal offense" is interpreted, on the basis of the practical impossibility of providing labor, as referring to a case of having received a sentence of actual imprisonment in the first instance, the Plaintiff, at the time of the automatic retirement disposition against him in this case, had already been released after being sentenced to a suspended sentence in the appellate court, and thus the ground for automatic retirement had ceased to exist. However, once a ground for automatic retirement has arisen, the ground for automatic retirement cannot be said to be extinguished merely because of a subsequent change in circumstances, absent circumstances such as the ground being rescinded; nor can circumstances such as those asserted by the Plaintiff be said to result in the extinguishment of the ground for automatic retirement. Moreover, in this case, as will be discussed below, with respect to employees detained in connection with the 1990 wage negotiations, as in the Plaintiff's case, a labor-management agreement had been reached to defer personnel action until the finalization of the sentence; thus, although a ground for automatic retirement had already arisen (in the Plaintiff's case, he was detained on June 13, 1990 due to his own unlawful act, and approximately four months later, on September 8 of the same year, was sentenced in the first instance to one year of imprisonment without suspension, and approximately four months and sixteen days thereafter, on January 25, 1991, was sentenced to one year of imprisonment with a two-year suspension of execution), if it were held that the ground for automatic retirement was extinguished merely because the detainee's body was released in the course of deferring the personnel action pursuant to the aforementioned labor-management agreement, this would defeat the purpose of designating "having been convicted of a criminal offense" (i.e., having received a sentence of actual imprisonment in the first instance) as a ground for automatic retirement on the basis of a prolonged failure to provide labor; therefore, such an interpretation cannot be adopted.
Although there are aspects of the court below's interpretation of the meaning of "having been convicted of a criminal offense" that are not appropriate, its conclusion that the meaning thereof refers, as stated above, to a case of having received a sentence of actual imprisonment in the first instance is, in the end, justified; therefore, the arguments premised on a contrary view are likewise without merit.
3. As to Ground 3
Although a ground for automatic retirement under the Labor-Management Agreement and Rules of Employment had arisen with respect to the Plaintiff, who had been detained for an extended period for a criminal offense and had failed to provide labor, following the rendering of a guilty judgment of actual imprisonment in the first instance, the Defendant, pursuant to the Labor-Management Agreement dated June 12, 1990 between the Defendant Company's labor union and the Defendant Company, did not effect an automatic retirement disposition against the Plaintiff, whose body remained detained and was not released; however, upon the rendering of a judgment in the appellate court on January 25, 1991, sentencing the Plaintiff to one year of imprisonment with a two-year suspension of execution, and upon his release, the Defendant immediately effected an automatic retirement disposition against the Plaintiff on the 29th of the same month. This is to be deemed a justified act in accordance with the aforementioned agreement.
Although there is an error in the court below's judgment in that it interpreted the content of the aforementioned agreement differently, its conclusion in rejecting the Plaintiff's argument that the automatic retirement disposition in this case violates the aforementioned Agreement dated June 12, 1990 is justified; therefore, this argument is without merit.
4. As to Ground 4
According to the reasoning of the judgment below, the court below held that the Defendant Company's automatic retirement disposition against the Plaintiff was lawful, and it is thus clear that the court below rendered its judgment with respect to the Defendant's automatic retirement disposition against the Plaintiff dated January 29, 1991. However, while so holding, the court below erred in determining, on the one hand, that the date on which the ground for automatic retirement against the Plaintiff arose was June 26, 1991, and that the Defendant was therefore obligated to pay wages to the Plaintiff from January 29 of that year until June 26 of that year. Nevertheless, in this case, in which only the Plaintiff has appealed, the argument that the aforementioned error of the court below constitutes an unlawfulness in violation of the principle of party presentation (변론주의) and the principle of party autonomy (당사자주의) does not constitute a lawful ground for appeal.
5. Accordingly, all of the grounds of appeal are without merit, and the appeal is hereby dismissed, with the costs of the appeal to be borne by the losing party, the Plaintiff. This judgment is rendered as set forth in the Order, the opinions of the participating Justices being unanimous.
Justices Kim Hyeong-seon (Presiding Justice), Park Man-ho (Justice in Charge), Park Jun-seo, Lee Yong-hun