[Plaintiff, Appellant and Appellee]
[Defendant, Appellee and Appellant]
[Court Below] Seoul High Court Decision 90Na18571 rendered on August 21, 1990
[Order]
The part of the judgment below concerning the wage claim, among the portions in which Defendant lost, is reversed, and this part of the case is remanded to the Seoul High Court.
The remainder of Defendant's appeal and Plaintiff's appeal are all dismissed.
The costs of the appeal with respect to the dismissed portions shall be borne by each appellant respectively.
[Reasoning]
1. As to Plaintiff's grounds of appeal.
A. As to Ground 1
According to the reasoning of the judgment below, the court below found, based on the evidence cited, the fact that Non-party 1, Non-party 2, and others, who are employees of Defendant company, assaulted Plaintiff and caused him multiple contusions including to the facial area requiring two weeks of treatment, and then held that there was no evidence to establish that Plaintiff sustained, in addition to the above injuries, a fracture of the 12th thoracic vertebra requiring six weeks of treatment as a result of the assault by the above non-parties. Examining the record, the above fact-finding by the court below is acceptable, and there is no illegality of violation of the rules of evidence as argued in the grounds of appeal. This ground is without merit.
B. As to Ground 2
The court below assessed the consolation money for Plaintiff at KRW 200,000, taking into account the circumstances and results of this accident, the degree of injury sustained by Plaintiff, and all other circumstances revealed in the pleadings. Examining the record, the above assessment of the amount of consolation money by the court below is appropriate, and there is no illegality of misapprehension of law as argued in the grounds of appeal. Therefore, this ground is without merit.
2. As to Defendant's grounds of appeal.
A. As to Ground 1
According to the reasoning of the judgment below, the court below found, based on the evidence cited, the following facts: that under Defendant company's employment rules (취업규칙), an employee may be ordered to take leave of absence when 20 days or more of medical treatment or rest are required due to illness (Article 9(1)(b)); that the period of leave of absence under this provision may not exceed two months (Article 10); and that if the employee fails to return to work within the leave period upon its expiration, that day shall be deemed the date of retirement (Article 11(1)). The court below further found that Plaintiff, citing the injury and treatment noted above, was absent from work from February 24, 1989 onward, repeatedly submitting only absence reports without submitting an application for leave of absence, and that Defendant, deeming this to fall under Article 9(1)(b) of the employment rules, placed Plaintiff on leave of absence on April 20 of that year, retroactively calculating the commencement date as February 24, 1989 (the date Plaintiff began his absence), and then, on the ground that the leave period expired on April 24 of that year, processed Plaintiff's retirement as of that date pursuant to Article 10 and Article 11(1)(e) of the employment rules and notified Plaintiff thereof.
The court below held, on the premise that where Defendant, applying the above employment rules, ordered leave of absence on the ground that Plaintiff fell under the case requiring 20 days or more of medical treatment or rest due to illness, without separately specifying a leave period, the leave period should be the maximum period prescribed under the employment rules, namely two months, and that the commencement of this period should be calculated from the date the leave was ordered, and that retirement should be deemed to occur only when the employee fails to return to work by the expiration of the two-month leave period — that Defendant's act of, on April 20, 1989, retroactively calculating the commencement date of the leave period to February 24 of that year (the date Plaintiff began his absence) and, based thereon, processing Plaintiff's retirement a mere four days later, on April 24 of that year, could not be regarded as a legitimate action under the said employment rules, and therefore that the retirement disposition was null and void. Examining the record, the above findings and determination of the court below are acceptable, and the provisions of the employment rules relied upon by Defendant in the grounds of appeal cannot serve as a basis for retroactively calculating the commencement date of the leave period. Therefore, there is no illegality in the judgment below as argued. This ground is without merit.
B. As to Ground 4
According to the reasoning of the judgment below, the court below found, based on the evidence cited, that while Plaintiff was driving a city bus owned by Defendant company and caused an accident injuring a passenger, and was in the company office demanding that the company bear the medical expenses, an argument arose with the officer in charge, in the course of which Non-party 1, the operations manager of Defendant company, and Non-party 2 and others assaulted Plaintiff. The court below then held that, in light of the circumstances in which Non-party 1, as the operations manager of Defendant company, quarreled with and then assaulted Plaintiff in connection with the handling of an accident arising from bus operations, the acts of Non-party 1 and Non-party 2, who joined in, may be recognized as acts related to, even if not themselves, the execution of their duties, and accordingly recognized Defendant's employer liability. Examining the record, the above fact-finding by the court below is justly acceptable, and the phrase "in connection with the execution of duties" under Article 756 of the Civil Act (민법) means that where an employee's act is objectively deemed to be the employer's business activity or the execution of duties, or related thereto, such act is deemed to have been done in connection with the execution of duties without regard to the subjective circumstances of the actor (see this Court's Decisions 86Daka1923 rendered on November 22, 1988; 88Daka8682 rendered on February 28, 1989; 90Da8954 rendered on January 11, 1991, etc.). Accordingly, the court below's recognition of Defendant's employer liability for the assault committed by Defendant company's executive against Plaintiff in connection with Defendant's business is also justified, and there is no illegality of misapprehension of the facts due to violation of the rules of evidence, or misapprehension of law regarding tort and employer liability, as argued in the grounds of appeal. This ground is without merit.
C. As to Ground 2
Where a dismissed employee, upon receiving retirement pay, etc., raised no objection or condition whatsoever, or submitted a written statement to that effect, a lawsuit contesting the validity of the dismissal shall be deemed unlawful; however, where the employee had already filed a lawsuit contesting the validity of the dismissal before receiving the retirement pay, it cannot be deemed that the employee acknowledged the validity of the dismissal disposition (see this Court's Decision 91Da2656 rendered on May 14, 1991).
The court below found that although it is recognized that Plaintiff received retirement pay from Defendant on June 1, 1990, since Plaintiff had already filed this lawsuit, it cannot be said that Plaintiff thereby approved the retirement disposition. Examining the record, the above determination by the court below is justified, and this Court's Decision 88Daka19804 rendered on September 29, 1989, relied upon in the grounds of appeal, is a case in which the plaintiff unconditionally received the retirement pay, etc. deposited by the company and filed a lawsuit seeking confirmation of invalidity of dismissal nearly eight months later, and thus does not constitute an appropriate precedent for this case. Therefore, this ground is without merit.
D. As to Ground 3
Where an employer's disposition of retirement against an employee is null and void, the employee, having been unable to provide labor due to a cause attributable to the employer, may claim from the employer, pursuant to Article 538(1) of the Civil Act (민법), payment of wages as the counter-performance that the employee would have received had he provided labor during that period (see this Court's Decisions 81Da626 rendered on December 22, 1981; 87Daka2132 rendered on May 23, 1989, etc.). According to the descriptions in Exhibit Ga No. 5-1 and 5-2 cited by the court below and Exhibit Eul No. 19 which the court below did not reject, the wage agreement concluded between Defendant and its labor union provides for monthly payment of extended working hours allowance, transportation allowance, driving allowance, weekly/monthly holiday allowance, etc. to drivers meeting certain requirements, and it is clear that Plaintiff had continuously received such allowances before his absence. Therefore, the court below's measure of calculating the wages not paid to Plaintiff after his retirement disposition, based on Plaintiff's wages before the absence, including the aforementioned allowances that Plaintiff had continuously and regularly received under the wage agreement, is justified. Moreover, since the court below did not recognize any obligation on Defendant's part to pay ordinary wages, there is no illegality of misapprehension of law regarding wage calculation in the judgment below as argued.
However, according to the reasoning of the judgment below, the court below held that since Plaintiff's leave-of-absence period commenced on April 20, 1989, the date on which Defendant issued the leave order, Defendant's retirement disposition dated April 24 of that year — based on the ground that the two-month leave period, calculated from February 24 of that year (the date Plaintiff began his absence), had expired — was null and void, and accordingly ordered payment of the full amount of wages to Plaintiff from the 25th of that month until his reinstatement. However, if Plaintiff's leave-of-absence period commenced on April 20 and lasted two months, then Plaintiff must be deemed to have been in leave-of-absence status during that period. Therefore, the court below should have examined the matter of wage payment during the leave-of-absence period and recognized Defendant's obligation to pay wages only in cases where wages are payable even during the leave-of-absence period (according to the description of Exhibit Eul No. 1-2 cited by the court below, the rule provides that during the leave-of-absence period, no wages shall be paid except where there is a special provision of law or ordinance, or where the leave is due to circumstances of the company's operation). However, the court below, without examining this matter, recognized the payment obligation, thereby committing an error of misapprehending the law concerning the calculation of wages during the leave-of-absence period, which affected the judgment. Therefore, this ground is with merit.
3. Accordingly, the part of the judgment below concerning the wage claim, among the portions in which Defendant lost, is reversed and this part of the case is remanded to the court below, and the remainder of Defendant's appeal and Plaintiff's appeal are all dismissed, with the costs of the appeal with respect to the dismissed portions to be borne by each appellant respectively. It is so decided by the unanimous opinion of the Justices participating, as stated in the Order.
Justice Choi Jae-ho (Presiding Justice), Yoon Kwan, Kim Ju-han, Kim Yong-jun