[Plaintiff, Appellee] Keumsung Precision Industry Co., Ltd., Attorney Ahn Dong-il, Counsel for the Plaintiff
[Defendant, Appellant] Lee Sang-gon, Attorney Jeong Yeon-jo, Counsel for the Defendant
[Original Judgment]
Seoul High Court Decision 79Na2322, decided February 22, 1980
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Defendant.
[Reasoning]
The Court judges Grounds of Appeal No. 1 and No. 4 of the Defendant's counsel together.
According to the facts found by the court below upon comprehensive consideration of the evidence it adopted, Keumsung Corporation (금성사), a non-party company, decided to separate all portions of its electronics industry division related to the defense industry into an independent company by establishing a separate stock company. On February 24, 1976, it established the Plaintiff company, of which the said company became the majority shareholder holding 95 percent of the total shares, and transferred all organization, facilities, and personnel relating to the above portion to the Plaintiff company, whereby the Plaintiff company succeeded to and assumed all rights and obligations relating thereto, and accordingly succeeded to the said non-party company's status in the employment relationship with the Defendant. Around February 24, 1976, when the said Keumsung Corporation transferred the Defendant to the Plaintiff company, it notified the fact to 25 trainee employees, including the Defendant, who were then undergoing training in the United States, and in giving such notice, it made clear that any employee who did not consent to the transfer to the Plaintiff company would not be transferred; nevertheless, all 25 employees, including the Defendant, raised no objection and acquiesced in the said personnel action. Furthermore, when a letter of guarantee of identity (personal surety) for employees became necessary as they became employees of the Plaintiff company, the employees, including the Defendant, finding it difficult to prepare and submit such letters of guarantee due to their circumstances abroad, requested that they be allowed to substitute an identity guarantee insurance policy in lieu of the letter of guarantee, and the Plaintiff company, acceding to this request, took out the said identity guarantee insurance on behalf of the said employees and substituted the insurance policy received therefor for the letter of guarantee. After the establishment of the Plaintiff company, the Plaintiff company remitted all expenses needed by the said employees at the place of training, and the Defendant, even after returning to Korea, raised no objection whatsoever to the said transfer and worked as an employee of the Plaintiff company for approximately 15 months. Upon examining the record, the facts as found by the court below may be recognized as such. Given these facts, the lower court's determination that the Defendant's consent must be deemed to have existed with respect to the Defendant's transfer to the Plaintiff company is acceptable. Therefore, the arguments premised on the assertion that the above transfer was made without the Defendant's consent, and alleging that the original judgment erred in the legal principles concerning the status of an employee and unfair labor practices, or in the legal principles concerning an employer's succession to employees, are without merit, as they do not correspond to the facts.
The Court judges Grounds of Appeal No. 2 and No. 3 together.
The court below held that, with respect to the Defendant's undertaking, made upon being dispatched abroad for the technical training at issue in this case, to faithfully complete the training, the provision in the Overseas Dispatched Employees' Service Obligation Period Guidelines (해외파견자 근무의무 기간요령) of the non-party Keumsung Corporation—stating that where the period of overseas dispatch is one year or longer, if the employee fails to work for at least five years from the date of return to Korea, the employee shall reimburse the expenses incurred for the dispatch and any other damages—must be construed as an agreement whereby, in cases where the employer bears and pays all expenses necessary for the employee's education abroad and the employee retires after returning to Korea without working for the agreed period, the employee shall reimburse the employer for the actually incurred expenses, but shall be exempted from such reimbursement if the employee works for the agreed period; and that this is not an agreement for a penalty or liquidated damages prohibited under Article 24 of the Labor Standards Act (근로기준법). Accordingly, the court below held that the above period of five years or more of service is not a term of the labor contract as referred to in Article 21 of the Labor Standards Act, but should be regarded merely as the period for exemption from the obligation to reimburse expenses as described above.
Considering the fact that the technical training in this case occurred prior to the enforcement of the Basic Vocational Training Act (직업훈련기본법), and that the purport of Articles 21 and 24 of the Labor Standards Act is to prevent the restriction of an employee's freedom to resign so as to compel continued labor, and further considering the fact that the purpose for which enterprises such as the said non-party company or the Plaintiff company bear and expend costs to dispatch employees abroad for technical training is to utilize, for the benefit of the enterprise, the skills acquired by the employee upon completion of the training and return to Korea, and that there is a need, for this purpose, to have the employee work for a certain period, the determination of the court below is acceptable as it stands and is justified. It cannot be said that this constitutes a case in which the court below misapprehended the legal principles concerning the prohibition on agreements for penalties, as argued, or the legal principles concerning the term of a labor contract.
Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. It is so decided as stated in the Order, by the unanimous opinion of the Justices involved.
Chief Justice Kim Yun-haeng
Justice Yang Byeong-ho
Justice Jeong Tae-won