[Plaintiff, Appellant] Daewoo Shipbuilding & Heavy Machinery Co., Ltd. (대우조선공업주식회사), Attorney Kim Dae-seob, counsel for the plaintiff
[Defendant, Appellee]
[Judgment Below] Seoul High Court Decision 92Na54151 rendered May 27, 1993
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
The grounds of appeal are examined.
1. The rules of employment (취업규칙) referred to in Article 94 of the Labor Standards Act (근로기준법) mean the standards established by an employer with respect to the working conditions applicable to all employees of the relevant business, including matters such as employees' service discipline and wages, and it does not matter what name is given to such rules (see this Court's Decision 91Da30828, rendered February 28, 1992).
2. According to the facts established by the court below, the Plaintiff Company's Personnel Regulations (인사규정) provide for matters that should be stipulated in rules of employment under the Labor Standards Act, such as promotion (including pay raises), retirement and dismissal, and other matters applicable to all employees of the relevant workplace. The Personnel Regulations that were in effect on November 7, 1988 (hereinafter referred to as the "Personnel Regulations Before Amendment"), at the time when this agreement on overseas training was entered into between the Plaintiff Company and Defendant 1, provided that an employee who, like the said Defendant, received overseas training for a period of six months or more but less than one year, would be exempted from repayment of the overseas training expenses if he served a mandatory period of service of five years from the date the overseas training ended, and that if he retired within that period, he was required to repay the portion of the training expenses corresponding to the remaining mandatory period of service. The Personnel Regulations in effect on July 22, 1991 (hereinafter referred to as the "Amended Personnel Regulations"), at the time the said Defendant resigned, had shortened this mandatory period of service to a period calculated as twice the number of weeks from the date of departure to the date of return plus one year, provided that the total period could not exceed four years. Given that the Plaintiff Company's Personnel Regulations, as described above, contain standards concerning working conditions such as service discipline and wages that must be applied equally to all employees, they have the effect of rules of employment under Article 94 of the same Act regardless of their designation. Therefore, the judgment of the court below to this effect is correct, and the argument that the said Personnel Regulations are merely internal regulations of the Plaintiff Company established for the purpose of efficient personnel management, or that the provisions concerning overseas training in the said Personnel Regulations do not constitute rules of employment, cannot be accepted.
Accordingly, this ground of appeal is without merit.
As to the Second Ground of Appeal
1. According to the facts established by the court below, Defendant 1 was dispatched by the Plaintiff Company to Germany from November 13, 1988 to May 15, 1989, and received overseas training at the Howaldtswerke shipyard. Before departing for Germany, on November 7, 1988, the said Defendant entered into this agreement with the Plaintiff Company, under which the said Defendant would borrow from the Plaintiff Company the expenses required for the overseas training, and the mandatory period of service was set to run until February 28, 2001, after the said Defendant completed the training and returned to work at the Plaintiff Company; if the said Defendant continued to work at the Plaintiff Company beyond that stipulated period, he would be exempted from liability to repay the borrowed money, but if he violated this and retired in the middle of the period, he was to repay the borrowed money to the Plaintiff Company. Nevertheless, the said Defendant resigned on July 22, 1991.
2. Given the facts as stated above, this agreement, which set the said Defendant's mandatory period of service until February 28, 2001, constitutes an employment contract that established working conditions less favorable to the employee than the standards set forth in the Personnel Regulations Before Amendment, which were the rules of employment in effect at the time the agreement was made, and therefore the portion exceeding the standards of the Personnel Regulations Before Amendment must originally be deemed void. Furthermore, if, at the time the said Defendant later retired, the said Personnel Regulations had been amended in a manner more favorable to the said Defendant, then the mandatory period of service for exemption from the obligation to repay the overseas training expenses should follow the Amended Personnel Regulations. The judgment of the court below to this effect is correct.
3. The argument is that, if the said Defendant's mandatory period of service is interpreted as being valid only for five years in accordance with the Personnel Regulations Before Amendment that were in effect at the time this agreement was made, then the mandatory period of service became fixed at five years at that time, and therefore, even if the Personnel Regulations were subsequently amended to shorten the mandatory period of service, the Amended Personnel Regulations should apply only to overseas training conducted after their enforcement, and cannot apply to overseas training already undertaken, nor can they affect the already-fixed mandatory period of service. However, unless the Amended Personnel Regulations contain a separate provision excluding retroactive application, the Personnel Regulations amended in a more favorable direction should be deemed applicable to the mandatory period of service of an overseas trainee whose exemption period was still running at that time. Therefore, this argument cannot be accepted.
This ground of appeal is also without merit.
Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Justice Kim Seok-su (Presiding Justice), Bae Man-woon (Justice in charge), Kim Ju-han, Jeong Gwi-ho