[Plaintiffs, Appellees] Plaintiff 1 and 1 other Plaintiffs' Attorney Jeong Tae-ryu
[Defendant, Appellant] Korean Broadcasting System (한국방송공사) Saemaul Geumgo (새마을금고, Community Credit Cooperative) Defendant's Attorneys Choi Hyu-seop and 1 other
[Lower Court Judgment] Seoul High Court Judgment 90Na20703 rendered on September 25, 1990
[Order]
The part of the lower court judgment concerning Plaintiff 1 is reversed, and this part of the case is remanded to the Seoul High Court.
The Defendant's remaining appeal is dismissed.
The costs of the dismissed portion of the appeal shall be borne by the Defendant.
[Reasoning]
As to the Defendant's Attorneys' grounds of appeal (to the extent supplementing the grounds of appeal, since the supplementary brief on grounds of appeal was submitted after the filing period had expired):
1. The lower court, based on the evidence it adopted, found the following facts: the Defendant Geumgo (Community Credit Cooperative) is a corporate body whose members consist of the executives and employees of the non-party Korean Broadcasting System (한국방송공사) as well as the employees of the Defendant Geumgo itself, and whose purposes include credit business, cultural welfare business, educational business, and community development business; the president of the said Korean Broadcasting System had served as the chairman of the board of the Defendant Geumgo, representing it and overseeing its affairs, and the other executive positions were likewise held by executives of the said Broadcasting System; and while the Plaintiffs were working at the Defendant Geumgo, around early August 1980, due to the close relationship between the Defendant Geumgo and the said Broadcasting System, the compulsory dismissal measures against journalists at the said Broadcasting System were carried out in parallel at the Defendant Geumgo as well, and, following instructions from the executives of the Defendant Geumgo, the Plaintiffs, together with some 20 other general staff employees, collectively drafted and submitted letters of resignation to the Defendant Geumgo; and the Defendant Geumgo, knowing that the Plaintiffs' expressions of intent to resign did not reflect their true intent, nevertheless accepted the Plaintiffs' letters of resignation on August 8 of the same year and processed them as voluntary resignations (의원면직). This fact-finding by the lower court is justified.
Whether an expression of intent is a "declaration not representing true intent" (진의 아닌 의사표시) is to be determined according to whether there exists an internal intent corresponding to the intended legal effect. Even if the Plaintiffs, at the time of drafting and submitting their letters of resignation, recognized that they might be processed as voluntary resignations on the basis of those letters, this alone cannot be said to mean that they had an internal intent to resign. Accordingly, the Plaintiffs' expressions of intent to resign constitute declarations not representing true intent, and the lower court's determination to the same effect is justified; there is no error of misapprehension of law as argued in the grounds of appeal.
Even where an employer takes the form of a voluntary resignation by receiving and accepting a letter of resignation from an employee, thereby terminating the employment relationship, if the employer has caused an employee who had no intent to resign to draft and submit a letter of resignation against his will, then in substance the employment relationship is being terminated by the unilateral intent of the employer, and this constitutes a dismissal; a dismissal measure without justifiable cause is no different from an unfair dismissal.
Therefore, the argument premised on the proposition that an unfair dismissal cannot arise where the form of a voluntary resignation has been taken is without merit and cannot be accepted.
2. As to this case, in which Plaintiff 1 seeks, by way of a claim for damages arising from a tort, an amount equivalent to the lost salary and lost retirement allowance for the period from September 1, 1980 to September 26, 1982, the date of his mandatory retirement, regarding the Defendant's defense of extinctive prescription:
The lower court, having interpreted the phrase "when the victim becomes aware of the damage and of the person who caused the damage," as used in Article 766, Paragraph 1 of the Civil Act (민법), to mean not merely that the victim must actually become aware of the occurrence of the damage and of the person who caused it, but also that the victim must become aware that the tortious act constitutes a tort giving rise to a claim for damages on that basis, found that the said Plaintiff first became aware, around December 1988, when the National Assembly's Education and Public Information Committee held a hearing concerning the compulsory dismissal measures against journalists, that the voluntary resignation disposition against him constituted a tort giving rise to a claim for damages; accordingly, the lower court determined that the extinctive prescription period began to run from that time and that the prescription period had not yet expired, and on that basis rejected the Defendant's defense.
However, the reason why the voluntary resignation disposition against the said Plaintiff constitutes a tort lies in the fact that the Defendant caused the said Plaintiff, against his will, to draft and submit a letter of resignation, and then processed the voluntary resignation disposition on the basis of that letter of resignation. The said Plaintiff already knew of the facts constituting the requirements of this tort at the time the voluntary resignation disposition was made against him, and he must be deemed to have become aware of the occurrence of damage caused by this tort on the date on which the said lost salary or lost retirement allowance should have been paid. What he came to learn through the hearing of the National Assembly's Education and Public Information Committee was merely the underlying background circumstances relating to the facts constituting the requirements of the tort, and nothing more; therefore, the extinctive prescription period for the said Plaintiff's claim for damages should be deemed to run from the date on which the said lost salary or lost retirement allowance should have been paid.
The lower court's judgment contains an error of misapprehension of law concerning the starting point of the extinctive prescription period, or a contradiction in reasoning, which affected the judgment; therefore, this ground of appeal is meritorious.
For the foregoing reasons, the part of the lower court judgment concerning Plaintiff 1 is reversed, and this part of the case is remanded to the lower court; the Defendant's remaining appeal is dismissed; and the costs of the dismissed portion of the appeal shall be borne by the losing party. This judgment is rendered as set forth in the Order, by the unanimous opinion of the participating Justices.
Justice Kim Sang-won (Presiding Justice), Park Woo-dong, Bae Seok, Yun Yeong-cheol