2. The costs of the lawsuit are assessed against the defendant.

A. The Plaintiff is a corporation with the purpose of manufacturing and selling automobile and transportation machinery, appliances, and parts thereof.

B. Of the collective agreement concluded on September 7, 2006 between the Plaintiff and the Plaintiff’s trade union, Article 50, which is a provision regarding the retirement age between the Plaintiff’s metal labor union and the Plaintiff’s headquarters, stipulates that “the retirement age of employees shall be the end of the year in which they reach 58 years of age.” However, on October 9, 2008, Article 33(1) of the said collective agreement, which was newly concluded on October 9, 2008, provides that “the retirement age of employees shall be the end of the year in which they reach 58 years of age, but may be extended until the end of the year in which they reach 59 years of age only if they wish to be disqualified for health” (hereinafter “instant retirement age provision”).

C. The Plaintiff, based on the instant retirement age provision on December 31, 2008, extended the Plaintiff’s retirement age of 58 years to the end of the year in which 59 years old. D. The Plaintiff filed an application for the payment of aged employment promotion subsidy of KRW 52,00,00,00 with the Defendant on September 25, 2009, and with the Defendant on January 4, 2009 and February 26, 100,10,100,000, total amount of aged employment promotion subsidy of KRW 52,00,00,00,00 in total, pursuant to Article 25(1)2 of the Enforcement Decree of the Employment Insurance Act.

E. On October 21, 2009, the Defendant rendered the instant disposition rejecting payment of the retirement age on the ground that: (a) the retirement age prescribed in the instant retirement age provision is 58 years of age, and has not been extended by more than one year than the age prescribed in the previous collective agreement; (b) however, the proviso of the same Article stipulates, “it may be extended by the end of the year in which he turns 59 years of age”; (c) in a case where a collective agreement provides the grounds for extending the retirement age under the proviso to the proviso to the said provision, the retirement age may be extended according to the requirements for extending a certain retirement age or the company’s circumstances; (d) in a case where the meaning of extending the retirement age

[Ground of recognition] Facts without dispute, Gap evidence 1-1 to 4, Gap evidence 2-2, and 3-1, 2, Gap evidence 4, 5, Gap evidence 11, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The parties' assertion

1) The plaintiff's assertion

Article 23 of the Employment Insurance Act and Article 25 (1) 2 of the Enforcement Decree of the same Act provide that the retirement age of workers shall be uniformly extended from 58 to 59 years of age. The Plaintiff actually extended the retirement age of all workers who reach 58 years of age each year by one year without any condition or examination pursuant to the above provision. Thus, the Defendant’s disposition of this case based on the premise that the Plaintiff did not meet the above eligibility requirements for the payment of incentives is unlawful even though the Plaintiff is eligible for the payment of incentives for the promotion of the elderly employment.

2) The defendant's assertion

The retirement age provision of this case provides that "if a person wishes, only a person who does not have any grounds for disqualification for health may be extended until the end of the year in which he turns 59 years of age." Thus, the plaintiff may refuse to grant selective retirement age to some workers on the ground of "grounds for disqualifications for the health of workers". Thus, the above provision does not guarantee the extension of retirement age for all workers who wish to extend their retirement age by the age of 59. Thus, it cannot be viewed as being eligible

(b) Related statutes;

Article 23 (Support for Promotion of Employment of Aged, etc.)

The Minister of Labor may, as prescribed by Presidential Decree, provide necessary assistance to employers who hire the aged and others or take other measures necessary for their employment security or to workers involved in such employers' actions, in order to promote the employment of those who have particular difficulty in finding employment under normal conditions of the labor market, including the aged (hereinafter referred to as "seniors, etc."), as prescribed by Presidential Decree.

Article 25 (Incentives for Promotion of Employment of the Aged)

(1) Pursuant to Article 23 of the Act, the Minister of Employment and Labor shall grant incentives for promotion of employment of senior citizens to employers of business meeting any of the following requirements:

2. The retirement age shall be extended by at least one year, and the retirement age shall be at least 56 years old: Provided, That where the retirement age of the relevant workplace is lowered within three years before the extension of the retirement age, subsidies for promotion of employment of the aged shall not be granted;

C. Determination

1) Under the ordinary conditions of the labor market, the aged employment promotion subsidy is paid to an employer who takes measures necessary for employment security of those who have particular difficulty in finding employment, and according to Article 23 of the Employment Insurance Act and Article 25(1)2 of the Enforcement Decree of the same Act, the employer is obliged to extend the retirement age for more than one year than the existing age, and pay the retirement age when they reach 56 years of age or older.

2) Under the above provision, the term “retirement age system” is a system that naturally terminates a labor contract by which an employee reaches a certain age stipulated in the rules of employment, collective agreement, or labor contract. A uniform, forced, and automatic labor contract relationship is terminated on the ground that an individual employee reaches a specific age without specifically considering his/her intent or ability to continue the labor relationship. Therefore, when a collective agreement or rules of employment provides for retirement age, “the retirement age shall be at 00 years” is generally stated in a single age. However, as seen earlier, the term “the retirement age shall be at 58 years old, but if the employee wishes, the retirement age may be extended up until the end of the year in which he/she becomes 59 years old,” and in principle, it should be interpreted that the employee’s retirement age should be reasonably construed not only by the end of the year in which he/she becomes 58 years old or at the end of the year in which he/she becomes disqualification but also by the employer’s intent to extend the retirement age at the end of the year in question.

3) Comprehensively taking account of the overall purport of the arguments in the statement in Gap evidence Nos. 6 through 8, Gap evidence Nos. 11, 12, and 14, the plaintiff was requested to amend the collective agreement to demand the plaintiff's trade union to extend the retirement age from 58 to 60 years of age on March 2008, but the plaintiff was unable to accept it easily, and the labor and management agreed to extend the retirement age for one year by mutual concession. The plaintiff and the plaintiff's trade union concluded a collective agreement including the retirement age provision in the case of this case, and made an announcement that the retirement age of workers was extended from 58 to 59 years of age through the newsletter, etc. The plaintiff's retirement age was extended from 58 years of age to 159 years of age without undergoing a special examination or evaluation (However, the plaintiff's retirement age was extended from among the plaintiff's workers to 58 years of age to 59 years of age without providing the retirement age (the above extension of the retirement age to 159 years of age to 200,15 years of age).

In light of the agreement process between the labor and management, the situation at the time of negotiations, the actual operational situation, etc. revealed in the above facts, it is reasonable to view that the objective intent agreed between the Plaintiff and the Plaintiff’s trade union when concluding a collective agreement containing the instant retirement age provision is to uniformly extend the retirement age set at the end of the year in which the employee reaches 58 years of age in the previous collective agreement despite the ambiguousness in the expression of the retirement age provision in the instant retirement age provision. In addition, in light of the aforementioned circumstances, the phrase “limited to a person who has no grounds for disqualification for selective extension of the retirement age” is rather than reservation of the employer’s right to decide whether to reject the extension of the retirement age of the employee for health reasons. If it is impossible or considerably difficult for the employer to provide labor due to physical disability or disease of the employee even before reaching the retirement age, or if the employer is unable or considerably difficult to provide labor due to the employer’s failure to provide labor or is ordinarily able to provide labor due to an inappropriate reason (in addition, it is reasonable to confirm the dismissal procedure as prescribed in the Labor Standards Act.

Therefore, the Plaintiff extended the retirement age of workers subject to collective agreement pursuant to the instant retirement age provision from the end of the year in which he becomes 58 years of age to the end of the year in which he becomes 59 years of age. Thus, the Defendant’s disposition of this case which did not pay the retirement age is unlawful even though it falls under the eligibility to receive the aged employment promotion subsidy.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judges Lee Young-Nam

Judges Cho Jong-tae